Date: 20021211
Docket: IMM-4876-01
Neutral Citation: 2002 FCT 1289
BETWEEN:
Justin IKELEMFU NGOYI
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] On July 5, 2001, the Refugee Division of the Immigration and Refugee Board (the panel) dismissed the claim by the applicant, Justin Ikelemfu Ngoyi, a citizen of the Democratic Republic of the Congo (DRC).
[2] The applicant alleges a well-founded fear of persecution by the Congolese authorities because of his political opinions:
1. At the University of Kinshasa, he was working with other students to form a resistance group in opposition to the Kabila government;
2. Having a fiancée of Rwandan origin, he was opposed to the Kabila government's policy of expelling Rwandans from the country. He says he protected his fiancée and her mother and later helped them flee the DRC.
[3] According to his Personal Information Form (PIF), he was arrested and tortured and transferred the next day to the central prison in Makala, in which he was incarcerated for fourteen months. His father bribed the military authorities. The applicant was released and fled the country, claiming refugee status in Canada on May 24, 2000.
[4] The panel did not believe the applicant's story. In particular, it did not believe the applicant had been jailed in the central prison in Makala.
[5] According to the panel, the applicant was not credible because he was unable to draw a sketch of the prison or provide any particulars concerning the premises in which he was imprisoned. Furthermore, he was confronted with a drawing of the interior of the prison (exhibit T-1) taken from the report of the Zairean human rights association (Association zaïroise des droits de l'homme, or ASADHO). The panel writes:
Contrary to the claimant's sketch, all the cell blocks are inside the rectangle formed by the four walls. There are gardens, workshops, sheds, a health centre and a small football stadium. When confronted, the claimant could not explain why he knew nothing about all those details. Contrary to his sketch, there are buildings and cell blocks in the place where he claimed he took walks with the other prisoners.
[6] On July 16, 2001, while the panel was deliberating, the Minister's representative sent a notice of intervention pursuant to subparagraph 69.1(5)(a)(ii) of the Immigration Act, in which it is stated that the Minister intends to participate in the claimant's hearing at the date determined by the Registry. The minister's representative filed three items in evidence: a copy of the applicant's file at the Canadian Embassy in Paris, a copy of the CAIPS notes of the Canadian High Commission in London, and a copy of the applicant's Notice of Claim, which was completed June 5, 2000.
[7] On July 27, 2001, the Minister's representative filed an amended notice of intervention along with two further pieces of evidence: a copy of the notes from two interviews with the applicant by immigration officers in Canada.
[8] On this point, the panel writes:
In reaching its decision, the panel did not rely on the documents that were sent by the Minister's representative while the case was reserved for decision. However, those documents do not seem to contradict the panel's conclusion in any way.
ANALYSIS
[9] The credibility of a claimant's story is at the core of the panel's jurisdiction. A finding of non-credibility is based on an assessment of the facts and the Court cannot intervene unless the factors in paragraph 18.1(4)(d) of the Federal Court Act are present, that is, the panel has based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[10] The Court must intervene. The panel dismisses the applicant's testimony by weighing it and the applicant's drawing against the map of the prison taken from the ASADHO report. That report is dated 1993 and we do not know the exact date of the map. The panel members admit that they do not know if the buildings or cell blocks of the prison have since been demolished (Certified record, page 457). In the circumstances, the panel's finding of non-credibility is arbitrary.
[11] The applicant raised a second point. He argued that the panel committed a breach of natural justice in receiving the intervention of the Minister's representative and his exhibits after the conclusion of the hearing. In the circumstances, I need not determine the merit of this submission.
[12] The application for judicial review will be allowed, the panel's decision will be set aside and the matter will be referred back for redetermination by a differently constituted panel. No question has been proposed for certification.
"François Lemieux"
Judge
Ottawa, Ontario
December 11, 2002
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4876-01
STYLE: JUSTIN IKELEMFU NGOYI
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 30, 2002
REASONS FOR ORDER OF MR. JUSTICE LEMIEUX
DATED: DECEMBER 11, 2002
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
GUY M. LAMB FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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