Date: 19990618
Docket: IMM-3776-98
BETWEEN:
DAVE NZONGO MAYELA
REGIME NGUNYA EPOLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] Dave Nzongo Mayela and Regime Ngunya Epolo claim to be spouses and citizens of Zaïre. The Convention Refugee Determination Division concluded that Mr. Mayela was Angolan and dismissed their refugee claims.
[2] The applicants arrived in Canada from France. The travel documents used by Mr. Mayela include a passport issued in the name of an Angolan, Simao Nkosi Nzuzi, and a Canadian visa issued to Mr. Nzuzi.
[3] Ms. Epolo testified that when she applied for her visitor's visa from the Canadian embassy in Paris, she also sought a second visa in the name of Mr. Nzuzi, a fellow student and working acquaintance of hers, who was also residing in France. Her intention was to obtain this document to facilitate Mr. Mayela's entry into Canada. According to her testimony, there was a physical resemblance between Mr. Mayela and Mr. Nzuzi. She attached the photograph of her husband to the visa application in Mr. Nzuzi's name. The visa application was also signed by Mr. Nzuzi who, according to Ms. Epolo, accompanied her when she attended at the embassy offices to submit both visa applications.
[4] In its reasons, the tribunal made this finding of fact:
Le tribunal n'a pas accepté les explications offertes par les revnedicateurs afin d'expliquer les différentes informations entre les documents de l'agente d'immigration au Canada et le témoignage des revendicateurs quant à l'identité du revendicateur en tant que citoyen de la RDC. Le tribunal est d'avis que si l'Ambassade du Canada à Paris a délivré un visa au citoyen Angolais suite à la réception des documents nécessaires, ceci s'explique par le fait que les deux prétendues personnes seraient les mêmes, ce qui expliquerait l'obtention d'un visa pour le citoyen Angolais, qui serait le revendicateur.
Counsel for the respondent accepted that this passage from the tribunal's decision did not necessarily constitute a negative finding of credibility concerning Ms. Epolo.
[5] If it had chosen to do so, it was open to the tribunal to reject Ms. Epolo's testimony concerning the visa applications. There may even be a suggestion to that effect in the tribunal's broad statement that it did not accept "les explications offertes par les revendicateurs afin d'expliquer les différentes informations", in assessing the documentary evidence in the context of the applicants' testimony. However, the tribunal was "... under a duty to give its reasons for casting doubt upon [her] credibility in clear and unmistakable terms."[1]
[6] In finding that Mr. Nzuzi and Mr. Mayela were one and the same person ("les deux prétendues personnes seraient les mêmes"), the tribunal reached a conclusion totally contrary to the thrust of Ms. Epolo's lengthy testimony concerning her role and that of Mr. Nzuzi in seeking the visa applications. It was a reviewable error in law for the tribunal to reach such a conclusion without stating in its decision, in clear and unmistakable terms, its reasons for not accepting her testimony. The tribunal failed to do this and, for this reason, its decision will be set aside.
[7] It is not necessary, in these circumstances, that I deal at great length with the applicants' second principal issue. In its reasons, the tribunal concluded that: "La carte d'identité nationale, la carte verte a été identifiée contrefaite." The original copy of Mr. Mayela's national identity certificate from Zaïre was seized by immigration officials and submitted to the Royal Canadian Mounted Police for verification of its authenticity. The tribunal relied on the R.C.M.P. finding that the certificate was screen-printed and that the "cachet impression appears hand-made". The tribunal did not have the original national identity certificate at the hearing. The certificate was apparently returned to immigration officials, or remains in the possession of the R.C.M.P. In any event, the tribunal refused to accommodate the request of the applicants' counsel, made a few days prior to the hearing and at the pre-conference meeting, to examine the original certificate.
[8] In the re-hearing of this matter, the Convention Refugee Determination Division will be directed to provide the applicants with access to Mr. Mayela's original national identity certificate, upon the terms and conditions which it considers to be fair and appropriate. The applicants, through their counsel, should have the opportunity of having the certificate examined by responsible persons to assist them in assessing the R.C.M.P. report concerning the certificate's authenticity.
[9] Accordingly, this application for judicial review is allowed and the matter will be referred for re-hearing and redetermination before a differently constituted panel in a manner not inconsistent with these reasons. Neither party suggested the certification of a serious question.
"Allan Lutfy"
Judge
TORONTO, ONTARIO
June 18, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3776-98
STYLE OF CAUSE: DAVE NZONGO MAYELA
REGIME NGUNYA EPOLO
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: TUESDAY, JUNE 15, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LUTFY J.
DATED: FRIDAY, JUNE 18, 1999
APPEARANCES: Mr. Raoul Boulakia
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Raoul S. Boulakia
Barrister & Solicitor
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
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