Docket: IMM-1080-15
Citation:
2015 FC 1195
Ottawa, Ontario, October 22, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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VANESSA
ISHUNIYE MBIMBI
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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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JUDGMENT AND REASONS
[1]
The Refugee Protection Division of the
Immigration and Refugee Board rejected Vanessa Ishuniye Mbimbi’s claim for
refugee protection, finding that as she had failed to establish her identity as
a citizen of the Democratic Republic of Congo, there was no credible basis for
her refugee claim.
[2]
Ms. Mbimbi seeks judicial review of the
Board’s decision. She submits that she was treated unfairly by the Board when
it made a finding as to the authenticity of one of her identity documents
without first putting its concerns to her in order to allow her to address
them. Ms. Mbimbi further asserts that a number of the Board’s findings
regarding her identity documents were unreasonable, and that the absence of a
transcript from her refugee hearing prevents the Court from properly
considering her arguments.
[3]
For the reasons that follow, I have concluded
that the application for judicial review should be granted.
I.
The Fairness Argument
[4]
Ms. Mbimbi’s argument that the Board was
obliged to identify its concerns with respect to the signatures on two of her
documents raises a question of procedural fairness. Where an issue of
procedural fairness arises, the Court’s task is to determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances: see Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12 at para. 43, [2009] 1 S.C.R. 339.
[5]
Ms. Mbimbi’s refugee claim was based upon
her alleged fear of persecution in the DRC resulting from her membership in the
“Engagement pour la Citoyenneté et le Développement” [ECiDé] political party. The Board
did not accept Ms. Mbimbi’s ECiDé membership card as proof of her
identity, in part because of the Board’s finding that the signature of the
party’s Secretary General on the card differed from the one on a letter
attesting to her party membership.
[6]
The parties agree that there is no obligation on
the Board to put an inconsistency in the evidence to an applicant where that
inconsistency is apparent on the face of the record. Having carefully reviewed
the two signatures in issue here, I am satisfied that the differences between
them are not so obvious as to relieve the Board from its obligation to put Ms. Mbimbi
on notice of its concerns.
[7]
The signatures in question are quite distinctive
and are very similar, although, as the Board observed, the signature on the
letter has two small lines above the name, while the signature on the
membership card does not. However, Ms. Mbimbi points out that the
differences in the two signatures could be explained by the fact that the space
provided for the signature on the membership card was small, and that this may
have explained the omission of the two small lines over the signature. She was
not, however, able to offer this explanation to the Board, as she was not aware
of the Board’s concern in this regard.
[8]
It is not for me to decide whether this
explanation should be accepted – that is the task of the Board. I am, however,
satisfied that it was unfair of the Board to reject the documents on the basis
of a perceived inconsistency in the signatures, without first giving Ms. Mbimbi
a chance to address its concerns.
II.
The Missing Transcript
[9]
Ms. Mbimbi also challenges the
reasonableness of findings made by the Board with respect to other documents
that she had provided to establish her identity. She further submits that the
absence of a transcript of her refugee hearing prevents the Court from properly
considering her arguments.
[10]
In the absence of a transcript of a hearing, a
reviewing Court must determine whether the record before it allows it to
properly dispose of the application for judicial review. If it does, then the
absence of a transcript will not violate the rules of natural justice: Randhawa
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 595
at para. 8. The question is whether there is a ‘serious possibility’ that the effect
of the absence of the transcript would be to deny a ground of review: City
of Montreal v. Canadian Union of Public Employees, Local 301, [1997] 1
S.C.R. 793.
[11]
I am satisfied that there is indeed a serious
possibility that the absence of a transcript in this case prevents the proper
evaluation of Ms. Mbimbi’s argument that the Board misapprehended the
evidence regarding at least some of her identity documents.
[12]
For example, the Board found that there was an
inconsistency in Ms. Mbimbi’s evidence as to when she first saw the school
transcripts that she provided to the Board to establish her identity. Ms. Mbimbi
claims in her affidavit that the Board misunderstood her evidence on this
point, and that there was in fact no inconsistency in her testimony on this
question. This argument cannot be evaluated without knowing what evidence was
and was not before the Board on this point.
[13]
The Board also rejected an electoral card as
proof of Ms. Mbimbi’s identity on the basis that the card did not conform
to a format that was introduced in 2010. An electoral card is a key document in
establishing the identity of a citizen of the DRC, as it is effectively a national
identity card: J.M.T.K. v. Canada (Minister of Citizenship and Immigration),
[2013] F.C.J. No. 1167 at para. 20.
[14]
Although she admits that she told the Board that
she got the card in order to vote in the 2011 election, Ms. Mbimbi also
states in her affidavit that she had explained to the Board that she had
actually obtained the document in 2009, before the changes to the form
of the document were made.
[15]
While it was open to the Board to reject the
explanation provided by Ms. Mbimbi for the perceived irregularities in the
form of the electoral card, it had an obligation to at least consider any
explanation that she may have provided in this regard. Once again, the absence
of a transcript of the hearing means that we cannot be sure what evidence was
before the Board on this point, and there is thus no way to evaluate the
reasonableness of its finding regarding the authenticity of the electoral card.
III.
Conclusion
[16]
As Ms. Mbimbi noted, a finding that a
refugee claim has ‘no credible basis’ has serious implications for a refugee
claimant. At the end of the day, it will be for the Board to consider Ms. Mbimbi’s
evidence addressing the concerns that have been identified with respect to her
identity documents, and for the Board to determine whether her evidence satisfactorily
addresses those concerns. She is, however, entitled to address the perceived
inconsistency in the signatures on the party documents, and to have her
arguments regarding her evidence with respect to her other identity documents
fully addressed – something that cannot be done in the absence of a transcript
of the refugee hearing.
[17]
Consequently, the application for judicial
review is granted. I agree with the parties that the case is fact-specific, and
does not raise a question for certification.
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