Date: 20020927
Docket: IMM-1988-01
Neutral citation: 2002 FCT 1011
Ottawa, Ontario, this 27th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
EMILE YIMBI OMBE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), dated March 22, 2001, wherein the Board determined that the applicant is not a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the Board.
Background
[3] The applicant is a 24 year old citizen of the Democratic Republic of Congo ("DRC"). The applicant claims a well-founded fear of persecution based on his political opinion.
[4] The applicant's claim is as follows. The applicant spoke out against the "Comité du pouvoir populaire" ("CPP") at a meeting at the University of Kinshasa on January 6, 2000. The applicant was arrested on January 10, 2000 and taken to prison in the town of Ngombe. The applicant recognized many other detainees as students from the university who had participated in the debate on January 6th. The applicant was allegedly beaten and tortured during his detention.
[5] On January 19, 2000, the applicant's uncle, who was a Commandant in the Congolese Armed Forces, arranged for the applicant's escape from prison. After staying one night with his uncle, the applicant fled the DRC on January 20, 2000 and arrived in Canada via Brazzaville on January 23, 2000.
[6] Upon his arrival in Canada, the applicant stated his intention to make a refugee claim. The Board hearing into the applicant's Convention refugee claim took place on October 23, 2000 and January 31, 2001.
[7] The Board concluded as follows in the decision dated March 22, 2001:
After careful consideration of all the evidence and because of the reasons set out above, the panel is not satisfied, on a balance of probabilities, as to the credibility of the claimant's account of events. Accordingly, the panel is not persuaded that there is a reasonable chance or a serious possibility that the claimant would be persecuted for any of the enumerated grounds in the event of his return to the DRC.
[8] The Board determined that the applicant was not a Convention refugee. This is the judicial review of the Board's decision.
Applicant's Submissions
[9] The applicant submits that the Board based their implausibility finding entirely on a mistake of fact.
[10] The applicant submits that the applicant never testified that he left "his more current documents with his parents." The applicant admits that there is no difference between his parents' home and his wife's home.
[11] The applicant submits that the Board did not doubt that the university transcript he provided, issued March, 1999, was genuine. The applicant submits that accordingly, there was no reason to doubt his testimony that he was still a student in January, 2000.
[12] The applicant submits that the Board asserted that the applicant's evidence was confusing as to whether the CPP were introduced on the campus in January, 1999 or January, 2000. The applicant submits he was not evasive or contradictory on this point. The applicant submits that he testified that the CPP was introduced on campus in 1999. The applicant testified that the debate in January, 2000 was to discuss their introduction to the campus. The applicant submits that the Board's reasons were arbitrary as the applicant's testimony was not confusing.
[13] The applicant submits that it is not reasonable to expect that every arrest in the DRC would be documented by human rights groups.
[14] The applicant submits that the Board ignored the claimant's testimony that Professor Mubake was a supporter of the government. The applicant submits that there was no evidence that Professor Mubake took a stand against the CPP. The applicant submits that the Board made a serious mistake of fact on this point.
[15] The applicant submits that the Board member adjourned the hearing for three months and was clearly confused and unprepared to proceed when the hearing resumed. The applicant submits that the Board member was confused to thinking there was a second member assigned to the case that was on maternity leave.
[16] The applicant submits that despite no substantial new evidence being adduced on January 31, 2001, the Board was unable to arrive at a decision.
[17] The applicant submits that he was denied a fair hearing. The applicant submits that this is shown by the factual errors in the decision and the false suggestion that counsel and RCO were confused about the composition of the Board. The applicant submits that the errors in the reasons reflect a lack of attention paid during the hearing.
Respondent's Submissions
[18] The respondent submits that the Board made findings of credibility and plausibility that were reasonably open to it on the record.
[19] The respondent submits that the decision does not give rise to a reasonable apprehension of bias.
[20] The respondent submits that the Board is entitled to decide adversely with respect to a claimant's credibility on the basis of contradictions and inconsistencies in the claimant's story and between the claimant's story and other evidence before the Board.
[21] The respondent submits that if the Board made errors of fact, which is not admitted, any such errors were not so central to the decision as to warrant setting the decision aside.
[22] The respondent submits that the test for a reasonable apprehension of bias is whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide an issue unfairly (see Committee for Justice and Liberty et. Al. v. National Energy Board (1976), 68 D.L.R. (3d) 716 (S.C.C.)).
[23] The respondent submits that there was some confusion at the second sitting of the applicant's hearing about whether the hearing had been commenced with two Board members or one. The transcript indicates that the applicant himself reminded everyone that there had only been one member from the beginning. The respondent submits that there is no basis for saying that the Board's initial confusion would lead her to decide an issue unfairly.
[24] The respondent submits that there is no evidence that the applicant raised an objection at the hearing on the grounds of an apprehension of bias. The respondent submits that a party who wishes to rely on an allegation of bias must raise the issue at the first available opportunity and cannot raise the issue for the first time in an application for judicial review (see In Re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986] 1 F.C. 103, at 110, 112, 113 (F.C.A.); Bourouisa v. Canada (M.C.I.) [1997] F.C.J. No. 887 (QL) (F.C.T.D.) per Nadon J.; and Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892 at 942)).
[25] Issues
1. Did the Board make a reviewable error by making credibility and plausibility findings that were not reasonably open to it?
2. Does the Board decision give rise to a reasonable apprehension of bias?
Relevant Statutory Provisions and Regulations
[26] The Immigration Act, R.S.C. 1985, c. I-2, defines a Convention refugee as follows:
|
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
. . . |
« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
. . . |
Analysis and Decision
[27] Issue 1
Did the Board make a reviewable error by making credibility and plausibility findings that were not reasonably open to it?
I have reviewed the portions of the transcript referred to by counsel and I am of the view that the evidence taken in its totality does not lead to the conclusion that the applicant stated that the CPP was first introduced to the university in 2000. His Personal Information Form stated in part as follows:
A meeting was called on January 6, 2000 to debate the political situation in the university. One of the big issues was the introduction of the CPP (Commite [sic] du pouvoir populaire).
This statement to me means that there was a political situation in the university and the introduction of the CPP was one of the problems. This could mean that the CPP was introduced to the university earlier than 2000 which is what the applicant stated in his testimony. The panel should not have used this suggested conflict to find the applicant to not be credible.
[28] The Board also stated that it did not make sense that some of the applicant's documents were left with his parents when he was living by himself while attending university and visiting with his wife on weekends. A review of the applicant's testimony establishes that he left documents with his wife, not his parents. The Board was in error to base a credibility finding on this statement.
[29] I am of the view that the tribunal made a reviewable error for these reasons.
[30] The application for judicial review is allowed and the decision of the Board is quashed and the matter is referred to a differently constituted panel of the Board for a re-hearing.
[31] Because of my finding on Issue 1, I need not deal with the other issue raised in this case.
[32] Neither party wished to submit a proposed question for certification.
ORDER
[33] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a differently constituted panel of the Board for a re-hearing.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
September 27, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1988-01
STYLE OF CAUSE: EMILE YIMBI OMBE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, June 6, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, September 27, 2002
APPEARANCES:
Mr. David Yerzy
FOR APPLICANT
Mr. David Tyndale
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. David Yerzy
108 - 14 Prince Arthur Avenue
Toronto, Ontario
M5R 1A9
FOR APPLICANT
Department of Justice
Suite 3400, Box 36, The Exchange Tower
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020927
Docket: IMM-1988-01
BETWEEN:
EMILE YIMBI OMBE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER