Date: 20000201
Docket: IMM-430-99
Ottawa, Ontario, the 1st day of February, 2000
Present: The Honourable Mr. Justice Pelletier
BETWEEN:
ALAIN ERIC NOWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Alain Eric Nowa (hereinafter Mr. Nowa) is a national of the Republic of the Congo. He fled the Congo as a result of several attempted arrests by the President's security forces and his political activities, including a denunciation on a radio broadcast of dubious financial management practices by the government. In addition to being investigated, Mr. Nowa was also the target of an attempted assassination when someone driving a car without licence plates tried to crush him when he was getting into a taxi. Mr. Nowa was ultimately prompted to leave the country by numerous searches of his home, the most recent on May 7, 1995.
[2] Mr. Nowa came to Canada via Cameroon (2 days), France (13 days) and the United States (1 day), without claiming refugee status in any of those countries. He arrived in Canada on June 17, 1995, claimed refugee status and was questioned by an immigration officer. According to the latter's notes, Mr. Nowa is single. However, in the Personal Information Form (hereinafter PIF), Mr. Nowa refers to his common law wife, whom he names specifically as his wife. According to the immigration officer's notes, which are in the examination record, Mr. Nowa denied having had difficulties with the police. However, in the PIF, Mr. Nowa tells of the attempted arrests and assassination he experienced. The immigration officer concludes with the following comment at the bottom of the examination record:
| [Translation] Claim appears to me to have no basis in the subject's declaration, which is transparently false, and I think this claim should be challenged in every aspect.... |
[3] Mr. Nowa denies giving the replies found in the officer's notes. Likewise, he says there were two immigration officers at the interview, not just one.
[4] The Minister of Immigration and Citizenship indicated his intention to participate in the hearing of Mr. Nowa's motion as a result of the opinion of the immigration officer.
[5] Mr. Nowa's counsel opposed the use of the examination record to contradict or cross-examine his client. Relying on sections 115 and 116 of the Immigration Act, R.S.C. 1985, c. I-2 (hereinafter the Act), he demanded that a form established by an order be proved before the examination record was accepted as evidence. However, the Refugee Division (hereinafter the Division) held that the record was admissible as evidence because, under section 68(3) of the Act, it is "credible or trustworthy" evidence and the issue of whether the form was established by an order is irrelevant in this case. Mr. Nowa's counsel, Mr. Lebrun, then asked that the hearing be adjourned to enable him to call the immigration officers. This request was granted.
[6] When the hearing resumed, the immigration officers failed to appear before the Division, since one of them was in Western Canada and Mr. Nowa did not, unfortunately, have the means to bring him before the Division to testify. Similarly, one of the two tribunal members was not present because he was ill. The other member, who was present at the hearing, gave the applicant the choice therefore of adjourning the hearing yet again or continuing the hearing before a single member. However, the member added that if the hearing were to continue before him alone, the decision would nevertheless be taken by the two board members once the other member had listened to the recording of the session. Mr. Nowa elected to continue the hearing before a single member.
[7] Since Mr. Nowa left the Republic of the Congo, there has been a change of government. In fact, the persons Mr. Nowa feared are no longer in power and the leader of his party has become a member of the transitional council. Mr. Nowa's claim before the Division is based on a fear of persecution for reason of his political opinion and his membership in the Batéké group.
[8] The Division refused Mr. Nowa's claim. The decision, signed by the two members, is based on the contradictions between Mr. Nowa's PIF and his testimony and between the PIF and the examination record. The Division says Mr. Nowa's claim of a fear of persecution for reason of his membership in the Batéké group seems to have been added "[Translation] for the sake of the case". In short, the Division found that Mr. Nowa's claim lacked credibility.
[9] In his application for judicial review, Mr. Nowa objects to the fact that the evidence in the examination record was filed without proof that the form in question had been established by an order. Likewise, notwithstanding his agreement to continue the hearing in the presence of only one tribunal member, Mr. Nowa submits that it seems unfair that the member who was absent from the hearing should be part of a decision in which it was held that he was not credible. Mr. Nowa also states that it is unfair that this same member made findings of credibility on the strength of a recording without having had an opportunity to observe him. Finally, he says the Division erred in failing to credit his fear of persecution as a member of the Batékés group.
[10] Section 115 of the Act gives the Minister the power to establish the forms needed for the purposes of the Act. Section 116 is intended to facilitate evidence of the authenticity and content of official documents.
| 115. The Minister may, by order, (a) establish such forms as the Minister deems necessary for the purposes of the administration of this Act, other than forms relating to claims, appeals and applicants before the Refugee Division or the Appeal Division; and (b) designate ports of entry and immigrant stations for the purposes of this Act. 116. (1) Every document purporting to be a removal order, conditional removal order, rejection order, warrant, order, summons, direction or other document signed by the Minister, the Minister of Health, the Deputy Minister, an adjudicator, and immigration officer, a master or other person authorized or required by or under this Act to make the document is, in any prosecution or other proceeding under or arising out of this Act, evidence of the facts contained therein without proof of the signature or the official character of the person appearing to have signed the document, unless called into question by the Minister or any person acting for the Minister or for Her Majesty. |
| 115. Le ministre peut, par arrêté : a) établir les formulaires qu'il juge nécessaires pour l'application de la présente loi, à l'exception de ceux qui ont trait aux revendications, aux appels et aux demandes présentés devant la section du statut ou la section d'appel; b) désigner, pour l'application de la présente loi, des points d'entrée et des postes d'attente. 116. (1) Tout document - mesure de renvoi, de renvoi conditionnel ou de refoulement, mandat, ordre, arrêté, ordonnance, citation à comparaître, instruction ou autre - censé signé par celui qui a le pouvoir ou l'obligation de le rédiger aux termes de la présente loi, notamment par le ministre, le ministre de la Santé, le sous-ministre, un arbitre, un agent d'immigration ou un responsable de véhicule fait foi de son contenu dans toute procédure relevant de la présente loi, sans qu'il soit nécessaire de prouver l'authenticité de la signature qui y est apposée ou la qualité officielle du signataire, celles-ci ne pouvant être contestées que par le ministre ou par une personne agissant en son nom ou au nom de Sa Majesté. |
[11] The Division was right in not rejecting the examination record. The issue of the form's legality is irrelevant to the issue of the admissibility of the document as evidence of the facts contained therein. Section 115 comes into play when the issue is the validity of an instrument or order. For example, if the Minister, by order, establishes a form for a deportation order, an immigrant may object to his deportation if an immigration officer tries to remove him from the country relying on a deportation order form that is inconsistent with the one established by the Minister. Section 115 is addressed to the formal character of a document, and not its validity as evidence.
[12] As for section 116, its purpose is to eliminate the need to call before the tribunal each individual who signed a document in the record in order to prove its authenticity. The section provides as well that the document is evidence of the facts contained therein, thus eliminating the need to apply the technical hearsay rules. It is also worth noting that these technical rules are now inapplicable, under section 68(3) of the Act.
| 68 (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
| 68 (3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
[13] It was therefore within the jurisdiction of the Division to receive and weigh the probative value of the immigration officer's notes concerning the story Mr. Nowa told him. However, the immigration officer's opinion on the merits of the claim were not relevant to the issues that the Division had to address. Yet the Division's decision leaves no doubt that the officer's opinion was a factor in its deliberations:
| [Translation] The answers given by the applicant have not convinced us and, in accordance with the case law, the tribunal assigns probative value to the examination record and the opinion of the immigration officer. [Emphasis added] |
[14] Thus, having based its decision on the opinion of the immigration officer, the Division erred in law. The Division's task was to decide the issue in so far as Mr. Nowa's claim was concerned. This was a task within the Division's refugee expertise. However, it was not incumbent on the Division to accept the immigration officer's opinion concerning the ultimate issue before it, Mr. Nowa's credibility.
[15] As Jerome A.C.J. stated so clearly, in Gnanapragasm v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1348:
| There are a number of factors which must be considered in the determination of a Convention refugee claim and it is the function of the Refugee Division to assess the likelihood of persecution based on all the evidence before it. It is not incumbent on the tribunal to accept the opinions of third parties concerning the ultimate issue which it has to determine. |
[16] For these reasons, the Division's decision is set aside and the matter is sent back to other Board members for rehearing.
[17] Mr. Nowa's counsel suggested three questions that might be certified as serious questions of general importance, and I quote:
| [Translation] |
| (1) When, as a result of events occurring in his country of origin during his absence, events that result in a change of circumstances such that new grounds arise that might support an application to be classed as a REFUGEE SUR PLACE, is the Refugee Division entitled to base its decision on prior facts or events presented before such change without ruling on the new grounds that are stated? |
| (2) When the Board considers a document -- an examination record at the point of entry -- purporting to be signed by a person authorized or required by or under the Act to make the document, and this person expresses in that document an opinion contrary to the applicant, is the Board entitled to assign probative value to the examination record and the opinion of the immigration officer by relying on previous decisions or the provisions of section 116 of the Immigration Act, which states that this document is proof of its contents in any proceeding before the Board? |
| (3) When, in the course of a hearing, the Board issues an oral decision on an objection and subsequently reports this objection in its written decision, does the Board err in law in citing reasons other than those that were expressed orally during the hearing? |
[18] In my opinion, none of these questions deserves to be certified. The first and third are not raised by my disposition of the application. The second question was decided in these reasons in a way that will not displease Mr. Lebrun and his client. In any event, it is not a question that is controversial.
[19] Accordingly, I do not certify any question.
ORDER
The Division's decision is set aside and the matter is sent back to other Board members for rehearing.
| "J.D. Denis Pelletier" |
| J. |
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: IMM-430-99 |
| STYLE: ALAIN ERIC NOWA v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: DECEMBER 9, 1999 |
REASONS FOR ORDER OF PELLETIER J.
DATED: FEBRUARY 1, 2000
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
ÉDITH SAVARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
ÉDITH SAVARD
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada