Docket: IMM-4306-13
Citation:
2015 FC 478
Ottawa, Ontario, April 16, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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LOICK KALALA KANKIENZA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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ORDER AND REASONS
I.
Introduction
[1]
The Applicant (Loick) is a citizen of the
Democratic Republic of Congo (Congo). He was 8 years old when he entered
Canada in September 2010. He was accompanied by his maternal aunt, Belle-Grace
Kankienza (Grace), who has been living in Canada since 2004 and has refugee
status.
[2]
In December 2010, Grace filed a refugee
protection claim on behalf of Loick pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) as she feared that due
to his family situation, there would be nobody to care for him if he were to
return to Congo. More particularly, her fear for Loick was grounded on the
fact that (i) his father was a high-profile wanted man in Congo, (ii) having
nobody to care for him in Congo, he would become a street child in a country
where the public system for the protection of orphans or abandoned children is
inexistent or deficient, and (iii) Congo is an unstable country.
[3]
On May 10, 2013, the Refugee Protection Division
of the Immigration and Refugee Board of Canada (the RPD) rejected the claim on
the basis that there was no reliable evidence on record establishing such a
fear. Loick contends that this finding is unreasonable and that it was made in
violation of the rules of procedural fairness as he was required to proceed
unrepresented at the crucial phase of the hearing of his claim.
[4]
For the reasons outlined below, I would allow
the application for judicial review.
II.
Background
[5]
Loick was born on January 23, 2002, in Kinshasa,
Congo. He is the son of Favie Kankienza, Grace’s sister, and John Bahati. His
father, John Bahati, was a member of the presidential guard of former President
Laurent-Désiré Kabila who was assassinated in January 2001. Mr. Bahati
was accused of taking part in the assassination and has since been in exile
with Loick’s mother.
[6]
According to the refugee protection claim, the
mother allegedly went back to Kinshasa to give birth to Loick and then returned
to her husband in exile when the authorities began pursuing her. Before returning
to her husband, she left Loick to be raised by her own father, Mr. Kankienza,
who then allegedly registered Loick under the name Kankienza to avoid any
affiliation with his biological father.
[7]
When Mr. Kankienza died in 2010, Grace
attended the funeral and brought Loick back with her to Canada, using a false
Belgian passport she obtained through a “family’s
friend”. Grace had previously fled Congo in 2004 after the authorities
began persecuting her due to her relation to her sister and Mr. Bahati.
It is on that basis that she was granted refugee status in Canada.
III.
The RPD Decision
[8]
From the outset, the hearing before the RPD
lasted over six sessions, spread out over a period of a little more than one
year, with counsel representing Loick for the first two sessions, a different
counsel for the following two, and no counsel for the last two. Grace first
acted as the Designated Representative for Loick but after having been found unreliable,
the RPD decided that she should be removed from that position. She was
replaced as Designated Representative for Loick by a pro-bono lawyer, Michèle
Brady (Ms. Brady), who first appeared at the hearing’s third session in
February 2012.
[9]
In its decision, the RPD first expressed
its satisfaction with the document establishing Loick’s identity, an issue over
which it struggled significantly, namely his school records. The RPD then
noted that although Grace affirmed that Loick’s maternal grandfather gave him
his name to avoid any link with his wanted father, the other identification
documents, namely the birth certificate, health record and parental
authorization, did identify Loick’s parents as being John Bahati and Favie
Kankienza. The RPD further noted that Loick testified that he lived with his
parents, had visited Mr. Kankienza before his arrival to Canada and that once
in Canada, he spoke frequently on the phone with his mother.
[10]
Based on these findings, the RPD disbelieved the
story that Loick grew up in Congo alongside his maternal grandfather. In fact,
the RPD concluded that the only person able to confirm this story was Grace, who
it found not to be credible. The RPD harshly commented on Grace’s behaviour;
whether it was regarding the false passport, her encouragement of Loick to lie to
the authorities or the fake parental authorization she obtained to get custody
of Loick upon their arrival in Canada.
[11]
The RPD therefore found that the evidence
adduced did not establish that Loick had no relatives who could take care of
him in Congo. The RPD also considered the fact that Grace had two children in Congo
that she had left with a friend when she fled Congo in 2004 to seek asylum in
Canada. The RPD found incongruous that Grace would leave her own children to a
friend but would not make arrangements for her nephew to stay in Congo in the
care of relatives.
[12]
The RPD concluded that the reasons alleged in
the refugee protection claim for fearing to return to Congo were not the real
reasons for Loick’s presence in Canada and that therefore, Loick was not a
person at risk within the meaning of either sections 96 or 97 of the Act.
IV.
Issues and Standard of Review
[13]
This case raises the issue of whether the RPD
reached unreasonable conclusions by disregarding evidence before it or by
predicating its factual conclusions on incorrect legal assumptions. It is not
disputed that decisions on credibility and findings of fact are subject to the
reasonableness standard of review (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47, [2008] 1 S.C.R. 190; Golesorkhi v Canada (Minister of Citizenship and
Immigration), 2008 FC 511, at para 8, [2008] FCJ No 637 (QL); Zavalat v Canada
(Minister of Citizenship and Immigration), 2009 FC 1279, at para 18, [2009] FCJ
No 1639 QL).
[14]
Loick also claims that the RPD violated the
rules of natural justice by requiring that he proceed unrepresented at the
crucial phase of the hearing. Given my answer to the first question, it will
not be necessary to address this second issue.
V.
Submissions of the Parties
[15]
Loick submits that the RPD’s entire decision is
predicated on the assumption that he can live with his parents or other
appropriate relatives in Congo. He claims that the RPD’s reasoning is unduly
vague. In particular, he says that the RPD disregarded Ms. Brady’s testimony
that no relative could be located in Congo and made no reference to this
evidence in its reasons. He further says that although the RPD noted that he
testified that he spoke with his mother on the phone, it disregarded the
evidence that he did not understand the terms mother and father as biological
parents.
[16]
Loick also puts forward that the RPD’s concerns
with regard to Grace’s credibility were unreasonable because her entire
testimony was discredited on the basis that she initially lied to the Canadian
border authorities and the Children’s Aid Society about Loick’s identity,
although it was later recognized that the Children’s Aid Society was satisfied that
Grace was the appropriate caregiver for him. He further contends that the RPD
drew unreasonable inferences and speculated as to the reasons why Grace left
her own children with a friend in Congo when she came to Canada to claim
asylum. Relying on Gracielome v Canada (Minister of Employment and
Immigration), 9 Imm. LR (2d) 237, [1989] FCJ No. 463 (QL)(Gracielome),
Loick asserts this to be a fundamental flaw in the decision since this finding
was central to the decision and that Grace never had the opportunity to rebut
the RPD’s doubts in this regard.
[17]
The Respondent claims that the RPD’s finding
that Loick could live with a family member in Congo is based on credibility and
the absence of trustworthy evidence in this regard and is, therefore,
reasonable. It further claims that even if no reference is made in the RPD’s
decision to the evidence given by Ms. Brady, there is a presumption that the
RPD has considered all the evidence before it. Furthermore, it contends that
it was open to the RPD to prefer Loick’s testimony to that of Ms. Brady or
Grace, even if Loick had just turned 10 at the time of the hearing.
[18]
The Respondent also states that the findings
regarding Grace’s own children and their placement with another family member
in Congo was reasonable and that the RPD had no obligation to confront her with
that fact.
VI.
Analysis
[19]
I find that the problem with the RPD’s decision
is not so much the vagueness of the reasons but rather the unclear distinction
between Grace and Loick’s testimonies. Indeed, the decision does state, in my
view, the reasons for the negative credibility findings: Loick’s testimony indicating
that he had contact with his mother in Congo and Grace’s lack of credibility
due to her actions when she brought Loick to Canada with her, following Mr. Kankienza’s
funeral.
[20]
However, the RPD, in my view, fatally erred by
not referring to and not explaining the impact of Loick’s entire testimony,
particularly in light of the guidelines of the Immigration and Refugee Board of
Canada on evidentiary issues regarding child refugee claimants (Chairperson
Guideline 3, Child Refugee Claimants: Procedural and Evidentiary Issues)
(the Guidelines), which are not even mentioned in the decision. Indeed, it is
clear that Loick’s testimony impacted on the finding that the protection claim
was not credible but there are some troubling aspects of the testimony that are
not addressed by the RPD. For instance, there is no reference to the fact
Loick claimed his mother to be Grace a few minutes after saying that he was
frequently speaking with his “mother” on the
phone since being in Canada. There is no reference either to the fact he
testified he was living with his mother in Congo whilst, in fact, the woman he
recognized as being his mother – Grace - lives in Canada. There is also no
reference to the fact he gave a name other that John Bahati when questioned
about his father’s name and to the fact he eventually said he did not really
remember his parents’ names. The decision is silent on Loick testifying that
he lived alone with his mother while at the same time, when asked of his father’s
whereabouts, answering that his two parents were living together.
[21]
The RPD cannot have it both ways and rely on
some part of the testimony that suits its finding regarding the credibility of
the story (such as the fact that he was speaking with his mother on the phone)
without considering the obvious inconsistencies with the rest of the testimony
(none of the names Loick gave for his parents were in conformity with his birth
certificate, for example). In particular, there is no analysis as to whether
Loick could be considered as a proper witness according to the Guidelines which
list the factors to be considered in order to determine whether a child
claimant is able to provide evidence and there is no analysis either of the
Guidelines’ factors regarding the assessment of the weight to be accorded to
such evidence, when it is provided.
[22]
In addition, there is no reference in the RPD’s
decision to Ms. Brady’s evidence that Loick did not understand the terms “mother” and “father” as
biological parents. There is no reference either to the fact that Loick was
told to tell a story that was not his to the authorities upon his arrival in
Canada. All those factors were relevant to the assessment of Loick’s evidence
and yet, they were ignored by the RPD, which casts doubts on the reasonableness
of its analysis and conclusions.
[23]
It is true that Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 limited the scope of intervention of the
reviewing court when reasons are considered incomplete. However, the standard
remains that the reviewing court be able to understand what lead the
administrative tribunal to reach its conclusion. In the present case, I find
that it is unclear, for this Court, what was accepted from Loick’s testimony
and what was rejected, and why.
[24]
The Respondent contends that the RPD’s
conclusions were reasonable as they were based on the absence of evidence that Loick’s
remaining family members in Congo could not take care of him. However, very
little is submitted by the Respondent on this issue. It is trite law that the
burden of proof to establish a claim lies with the refugee claimant (Li v
Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 FCR
239). However, this Court has also considered that cases where the burden of
proof was set too high for the applicants ought to be sent back for
redetermination by a differently constituted panel (Rajadurai v Canada
(Minister of Citizenship and Immigration), 2013 FC 532, at para 48, [2013]
FCJ No 566 (QL); Alam v Canada (Minister of Citizenship and Immigration),
2005 FC 4, at para 9, 41 Imm LR (3d) 263; Leal Alvarez v Canada (Minister of
Citizenship and Immigration), 2011 FC 154 at para 5, 96 Imm LR (3d) 334).
[25]
In this case, I find that the Respondent’s argument
cannot stand. Grace testified she had no contact with her family members in
Congo. She repeatedly told the RPD the same story regarding her brothers and
sisters in Congo. She did not contradict herself. It is difficult to
understand what the RPD was expecting, beside the highly problematic evidence
of a 10 year old child, in order to prove that nobody was able to take care of Loick
in Congo.
[26]
The Respondent claims that the assessment of Grace’s
credibility was well within the scope of the RPD’s authority. Indeed, in Nour
v Canada (Citizenship and Immigration), 2012 FC 805, [2012] FCJ No 761, a
case also involving a child refugee claimant, the Court confirmed that the assessment
of family members’ testimony is part of the overall analysis of the refugee claim.
However, such assessment must still be reasonable:
44. The Court finds that the member
attributes far too much significance to a few contradictions in the family
members' testimony. Her fixation "on the details of what [A. Nour] stated
to be [her] story caused [the member] to forget the substance of the facts on
which [A. Nour] based [her] claim" (see Djama v Canada (Minister of
Employment and Immigration), [1992] FCJ No 531).
[27]
Similarly, the only time Grace testified - aside
from the first hearing when she was acting as Designated Representative for
Loick - was at the last hearing session. The RPD drilled
her with questions regarding Mr. Kankienza’s Will. No questions were
asked with regards to Grace’s own children and no questions were asked on her
behaviour at the border or with the Children’s Aid Society as to her motivation
to act the way she did.
[28]
The case of Gracielome, above, referred
to by both parties, was a case where the Immigration Appeal Board found
inconsistencies in the evidence but where the actions of the refugee claimants could
have been explained if only the matter was put to them at the hearing. I find
this case to be applicable to the case at bar.
[29]
The Respondent contends that the RPD had no
obligation to confront Grace with the “obvious discrepancies”
in her testimony. I can find no such “obvious
discrepancies” in the hearing transcript. The fact that Grace has two children
in Congo is a pure question of fact. This fact was not even put forward
by her and she was not confronted with it. There
cannot be discrepancies when the fact was not even addressed by the RPD. As
it was said in Shaiq v Canada (Minister of Citizenship and Immigration),
2009 FC 149 at paragraph 77, [2009] FCJ No 149 (QL):
77. Although the RPD is not required to
raise all concerns with an applicant that are related to the Act and the
regulations, procedural fairness does require that an applicant be afforded an
opportunity to address issues arising from the credibility, accuracy or genuine
nature of information submitted. See, for example, Kuhathasan v. Canada
(Minister of Citizenship and Immigration), [2008] F.C.J. No. 587 at
paragraph 37. Consequently, I think the RPD in the present case should have
provided the Applicant with an opportunity to address an issue that was central
to its negative credibility finding.
[30]
Furthermore, it is well established that
findings of fact based on mere speculation are inherently unreasonable as such
findings are generally characterized as mere guesses and devoid, therefore, of
any legal value (Ukleina v Canada (Citizenship and Immigration), 2009 FC
1292, at paras 8 and 14, [2009] FCJ No 1651 (QL)). Here, the fact that Grace
had children whom she left with a friend when she fled Congo was based on the Respondent’s
records dating from Grace’s own refugee claim in 2004. It is impossible to
know what happened to these children in Congo. Perhaps they are no longer there
or their father is in charge or they don’t wish to leave Congo. Nevertheless,
this failure to confront Grace with that fact leads to the inferences drawn
from it by the RPD to be qualified as pure speculation and, as a result, as unreasonable.
[31]
It was completely out of the realm of the RPD to
speculate and I find that this should have had no impact on Loick’s refugee
claim and the assessment of his actual fears of returning to Congo grounded, as
I indicated previously, on the status of his father in Congo, on the fact that
he would become a street child, and on the general instability of that country,
aspects that are all missing in the RPD’s decision.
[32]
This judicial review application is therefore allowed,
as it does not meet the criteria of a justified, intelligible and
transparent decision (Dunsmuir, above at para 47), and the matter is remitted back to the RPD for redetermination by a differently
constituted panel. Loick will then be older and, hopefully, if he testifies
again, aware of the issues and prior evidence.
[33]
Neither party has proposed a question of general
importance. None will be certified.
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