Date: 20080314
Docket: IMM-2088-06
Citation: 2008 FC 347
Ottawa, Ontario, March 14, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
CHARLES
MUKASI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Charles Mukasi is former leader of the Union pour le progrès
national (UPRONA) in Burundi. He arrived in Canada in 2005 and claimed refugee
protection based on a fear of political persecution in his home country. A
panel of the Immigration and Refugee Board granted Mr. Mukasi’s claim without
holding a hearing. The Board concluded that Mr. Mukasi had established his
identity, did not present any issues that might exclude him from refugee
protection, and had shown that his account of events was consistent with
documentary evidence on the conditions in Burundi.
[2]
The applicant, the Minister of Citizenship and Immigration, argues that
the Board erred when it failed to refer Mr. Mukasi’s claim for a hearing and by
granting his claim in the face of reliable contradictory evidence. I agree that
the Board should have not have granted Mr. Mukasi’s claim without a hearing.
Therefore, I must allow this application for judicial review.
I.
Issues
- Did the Board err in failing to
hold a hearing?
- Was the Board’s decision out of
keeping with the evidence before it?
[3]
Given my conclusion that the Board should have referred Mr. Mukasi’s
claim for a hearing, it is unnecessary for me deal with the second issue. The
evidence will have to be reconsidered by a different decision-maker.
II. Analysis
- The Statutory Framework
[4]
Generally speaking, the Board must hold a hearing into a refugee claim (Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (IRPA), s. 170 ((b);
enactments cited are set out in an Annex). However, the Board may allow a claim
without a hearing if the Minister has not given notice of an intention to
intervene (s. 170(f)). In addition, if a refugee protection officer
recommends that the Board allow a claim without a hearing, the Board may do so
only if the case does not disclose any issues that should be brought to the
Minister’s attention, the claimant’s identity has been sufficiently
established, there are no serious issues of credibility involved, the
claimant’s account of events is consistent with information on conditions in
the country of origin, and the claimant has established that he or she meets
the definition of a Convention refugee or a person in need of protection (Refugee
Protection Division Rules, SOR/2002-228 (RPD Rules), s. 19(4)(a)-(d)).
[5]
If any of these conditions is absent, the Board must hold a hearing.
Further, the Board has a duty to notify the Minister if it believes there is a
possibility that the claimant should be excluded from Convention refugee status
(RPD Rules, s. 23(1)).
- The Board’s Decision
[6]
The Board concluded that Mr. Mukasi had established his identity with a
genuine passport. It also found that the documentary evidence confirmed Mr.
Mukasi’s account of events and that his claim of political persecution was
well-founded.
[7]
The Minister points out that there was also evidence before the Board
showing:
• Mr. Mukasi led a faction of UPRONA that was opposed to the
peace process in Burundi. He was arrested for his stance.
• UPRONA was associated with a violent militant group.
• Mr. Mukasi was believed personally to have incited violence
in the late 1990s.
• Mr. Mukasi was ousted from his leadership role because of his
opposition to peace negotiations, yet he refused to accept his dismissal.
III. Discussion
and Conclusion
[8]
Considering the evidence before the Board, it appears to me that the
Board erred in granting Mr. Mukasi’s claim without a hearing. First, there was
evidence that Mr. Mukasi was associated with violence. This should have alerted
the Board to the possibility that Mr. Mukasi might be excluded from the
definition of a Convention refugee based on Article 1(F) of the Convention.
That provision states, among other things, that the Convention does not apply
to persons who have committed a crime against peace, a war crime, a crime
against humanity, or acts contrary to the purposes and principles of the United
Nations.
[9]
Further, this evidence indicated that, while there was some documentary
support for Mr. Mukasi’s claim, there were also serious questions about its
veracity. The Board should have noted that the credibility of some of Mr.
Mukasi’s assertions would have to be assessed at a hearing and measured in the
light of the documentary evidence as a whole.
[10]
Accordingly, I will allow this application for judicial review and direct
the Board to refer Mr. Mukasi’s claim for a hearing. I will entertain any
submissions regarding a question of general importance that are filed within
ten days of this judgment.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed;
2.
The
Court will consider any submissions regarding a certified question that are
filed within ten (10) days of the issuance of these reasons.
“James
W. O’Reilly”
Annex “A”
|
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
Proceedings
170. The Refugee
Protection Division, in any proceeding before it,
…
(b) must hold a hearing;
…
(f) may, despite paragraph (b), allow a claim for refugee protection without a
hearing, if the Minister has not notified the Division, within the period set
out in the rules of the Board, of the Minister’s intention to intervene;
|
Loi
sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
Fonctionnement
170. Dans toute affaire dont elle est saisie, la Section de la
protection des réfugiés :
[…]
b) dispose de celle-ci par la tenue d’une audience;
[…]
f) peut accueillir la demande d’asile sans qu’une audience soit
tenue si le ministre ne lui a pas, dans le délai prévu par les règles, donné
avis de son intention d’intervenir;
|
|
Refugee
Protection Division Rules,
SOR/2002-228
Allowing a claim without a hearing
19(4) If the refugee
protection officer recommends that the claim be allowed without a hearing,
the Division may allow the claim if
(a) there are no issues that should be brought to
the attention of the Minister;
…
(d) the
information given by the claimant is consistent with information about
conditions in their country of nationality or, if they have no country of
nationality, their country of former habitual residence, and establishes that
the claimant is a Convention refugee or a person in need of protection.
Notice to the Minister of possible exclusion — before a
hearing
23. (1) If the Division
believes, before a hearing begins, that there is a possibility that sections
E or F of Article 1 of the Refugee Convention applies to the claim, the
Division must notify the Minister in writing and provide any relevant
information to the Minister.
|
Règles
de la Section de la protection des réfugiés, DORS/2002-228
Demande accueillie
sans audience
19(4) Si
l’agent de protection des réfugiés recommande que la demande d’asile soit
accueillie sans audience, la Section peut l’accueillir si les conditions
suivantes sont réunies :
a) aucun point litigieux ne doit être porté à l’attention
du ministre;
[…]
d) les
renseignements que le demandeur d’asile a fournis sont compatibles avec les
renseignements sur les conditions du pays dont il a la nationalité ou, s’il
n’a pas de nationalité, du pays dans lequel il avait sa résidence habituelle,
et ils démontrent qu’il est un réfugié au sens de la Convention sur les
réfugiés ou une personne à protéger.
Avis au ministre
avant l’audience d’une exclusion possible
23. (1) Si elle croit, avant
l’audience, qu’il y a une possibilité que les sections E ou F de l’article
premier de la Convention sur les réfugiés s’appliquent à la demande d’asile,
la Section en avise par écrit le ministre et lui transmet les renseignements
pertinents.
|
Email this Content