Date: 20011016
Docket: IMM-1551-01
Neutral Citation: 2001 FCT 1117
BETWEEN:
GIKOTSHI PATRIC MUSEGHE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board (hereinafter the "Board") dated March 2, 2001, determining that the applicant does not meet the definition of "Convention refugee."
FACTS
[2] The applicant was born on February 15, 1978, at Boma in the province of Bas-Congo and is a citizen of the Democratic Republic of Congo (DRC).
[3] The applicant was a clan chief who had been involved in the Scouting movement since 1993. He joined that movement of his own free will. The purpose and the philosophy of the Scouts is to provide a physical and moral education in order to serve society.
[4] The applicant fled his country for fear of reprisals because his family was reputed to have ties with the Rwandans.
[5] The applicant's eldest brother, Gimwanga Muesghe, was killed by militiamen on
September 14, 1998, because of his physical resemblance to a Tutsi-Rwandan.
[6] The applicant's sister, Marie-Ange Museghe, was found to be a Convention refugee at her hearing of May 9, 2000, because of her physical resemblance to Tutsi-Rwandans.
[7] On August 12, 2000, the assistant to the burgomaster of the Commune appeared at the meeting of the applicant and his team, to address the Scout members in order to persuade them to enrol in the Congolese armed forces.
[8] The applicant reacted by telling him that it was not a good time. Because of his objection, the applicant was suspended from the Scouting movement. He was accused of being an opponent of the government and therefore of being a Rwandan.
[9] On September 1, 2000, the applicant was arrested and brought to the Commune police station. Because of his opinions, as noted above, the applicant was slapped and whipped twenty times in addition to being imprisoned for two days and two nights.
[10] On October 4, 2000, the applicant succeeded in fleeing the DRC; he arrived in Canada the following day and claimed refugee status on October 9, 2000, on the basis of political opinion and his membership in a particular social group, his family.
[11] He used a false French passport in the name of Anglebert Moulaymia.
ISSUES
[12] 1. Did the Immigration and Refugee Board--Convention Refugee Determination Division base its decision on erroneous findings of fact that were made in a perverse or capricious manner and without regard for the material before it?
2. Did the Immigration and Refugee Board--Convention Refugee Determination Division err in law by failing to rule on all of the evidence relating specifically to the applicant?
ANALYSIS
1. Did the Immigration and Refugee Board--Convention Refugee Determination Division base its decision on erroneous findings of fact that were madein a perverse or capricious manner and without regard for the material before it?
Standard of Judicial Review
[13] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732, the Federal Court of Appeal described the circumstances that will justify judicial intervention in regard to the findings of a tribunal concerning the credibility of an applicant:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[14] In Razm v. MCI, [1999] F.C.J. No. 373, Mr. Justice Lutfy wrote:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances
Finally, in Cepeda-Gutierrez v. MCI, [1998] F.C.J. No. 1425, Mr. Justice Evans confirmed that the Court should not intervene in a decision by the Refugee Division unless it is patently unreasonable:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In
addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence" ...
Newspaper article of January 9, 2001, in Le Potentiel, Congolese Press
[15] It was unreasonable, in my view, for the Board to doubt the applicant's involvement with the Scouting movement on the basis of his lack of knowledge of a single event that occurred after his departure from the DRC. The applicant demonstrated his knowledge of the Scouting movement at the hearing and his ignorance of a single event should not undermine his testimony in its entirety.
[16] It is not realistic for the Board to have required that the applicant stay informed of all developments in the DRC with the same degree of commitment once he had arrived in Canada, having regard to the fact that he had just arrived in Canada. I also find that the terms used in writing the decision on that point were too strong:
Because of his lack of knowledge about his movement's national activities, his hesitations and his inability to provide a single credible answer when confronted with this information, the panel does not believe this version of the testimony.
[17] The applicant replied in his affidavit:
[TRANSLATION]
I would like to bring to this Court's attention that the primary reason for the negative decision is the finding that questions my involvement with the Scouting movement on the basis of my lack of knowledge of the information set out in Exhibit A-5. . . . However, Exhibit A-5 refers to information that is subsequent to my departure. A-5 is in fact a newspaper article dated January 9, 2001. I was not asked whether I had kept in touch with the movement in the DRC since my departure.
[18] In regard to that reason, I believe that the Board overstated the importance of this fact.
False French passport
[19] In his testimony, the applicant stated that he flew to Canada via France using a false French passport. The applicant returned that document to its owner without photocopying it. It is obvious that when the Board made its decision, it made an adverse finding.
[20] I do believe it is reasonable for the Board to have wanted to examine that document. The applicant indeed deprived the Board of an important piece of evidence for determining his credibility:
[TRANSLATION]
Q. Why did you return it (the false French passport)?
A. Because the owner was planning to use it afterwards.
- I didn't understand.
A. The owner of the passport was planning to use it, he needed it too and he wanted it back.
Q. You didn't think that it could have substantiated or disproved your claims that you had travelled with a passport that didn't belong to you if you had made photocopies or maybe kept the passport?
A. It was a risk I was taking and I...
- But you took the risk.
A. I didn't ... not for a single moment, I, I knew that it wasn't my passport ...
[21] In Elazi v. MCI, [2000] F.C.J. No. 212, Mr. Justice Nadon stated:
I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is to [sic] easy for a claimant to simply state that he has lost these documents or the facilitator has taken them. If the Refugee Division insists on these documents being produced, the facilitators may have to change their methods.
[22] It is clear that by returning the false passport, the applicant limited the parameters of the Board's examination of the evidence. Consequently, I find that the decision of the Board on that point was reasonable.
No physical resemblance to a Tutsi-Rwandan
[23] On several occasions, the applicant admitted that he looks nothing like a Tutsi. Nonetheless, he claimed to fear persecution because his family is reputed to have ties with the Rwandans.
[TRANSLATION]
Q. In your case, however, you don't seem to look like a Rwandan.
A. Yes, exactly.
- In other words, it does not seem to be a problem in your case.
[24] In order for the Board to determine that there is a risk of persecution if a claimant returns to his or her country of origin, the applicable test is "reasonable chance," pursuant to Adjei v. MCI, [1989] 2 F.C. 680, that was changed to "serious possibility" in Chan v. MCI, [1995] 3 S.C.R. 593.
The applicable test has been expressed as a "reasonable possibility" or, more appropriately in my view, as a "serious possibility."
[25] In this case, because the applicant does not physically look like a Rwandan, there is no "reasonable chance" nor a "serious possibility" that he would be persecuted if he had to return to the DRC. Furthermore, the majority of the applicant's family, namely his parents, his brother and his sister who bear a physical resemblance to Tutsis, are still living there.
[26] In short, the applicant failed to satisfy me that the decision of the Board, in its entirety, was unreasonable and justified intervention by this Court. In regard to the argument relating to the newspaper article, it is difficult to explain how the newspaper article, which was published after the applicant's departure, could have led the Board to make the finding that it made. It is difficult to believe that the Board expected the applicant to stay informed of events in Scouting since his arrival in Canada. The Board was however justified in concluding as it did regarding the false French passport, and that there was no persecution because of the fact that the applicant does not look like a Tutsi-Rwandan.
[27] Accordingly, and having regard to the three arguments in this case, I cannot conclude that the decision of the Board was patently unreasonable.
2. Did the Immigration and Refugee Board--Convention Refugee Determination Division err in law by failing to rule on all of the evidence relating specifically to the applicant?
[28] No, the Board did not err by failing to rule on all of the evidence relating specifically to the applicant. In Cepeda-Gutierrez, supra, Mr. Justice Evans explained:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
[29] The applicant submitted that it was wrong for the Board to have failed to rule on three documents in evidence: first, the death certificate of his brother, Gimwanga Muesghe; second, the decision of the Refugee Division in which his sister, Marie-Ange Museghe, was granted Convention refugee status; and third, the PIF submitted by Marie-Ange Museghe.
[30] The facts in Nzuzi v. MCI, [1999] F.C.J. No. 556, are very similar to the facts in this case. In Nzuzi, the applicant claimed refugee status on the basis of political opinion and membership in a particular social group, her family. The Court in that case concluded that the applicant had not been persecuted and therefore dismissed her application for judicial review. On the question of the evidence, Mr. Justice Rouleau stated:
The Board is entitled to rely on documentary evidence in preference to that of the claimant; the Board is under no obligation to refer to all items in the documentary evidence it relied upon in arriving to its conclusion.
There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely or which it might reject.
Death certificate of the applicant's brother
[31] The Board never questioned the death of the applicant's brother; in fact, it had no reason to comment specifically on the content of that document.
Refugee claim by the applicant's sister, Marie-Ange Museghe, and her PIF
[32] The sister relied on her Tutsi features in claiming refugee status. That factor is not applicable to the applicant, who does not have those features and who based his claim on facts that were unrelated to his sister's claim: his active involvement in the Scouting movement and his membership in a particular social group, his family.
[33] A decision on a claim by a member of the same family cannot be determinative since decisions are made on a case-by-case basis. In that regard, Nadon J. said the following in Rahmatizadeh v. MCI, [1994] F.C.J. No. 578:
[TRANSLATION]
Before concluding, however, I would like to make the following comments. In paragraph 31 of his memorandum, the applicant asserts that the Refugee Division accepted his sister's refugee claim on April 9, 1992. The mere fact of proving that his sister had been found to be a refugee does not carry a lot of weight, since the members of the Division who made that decision made it on the basis of the facts in the record. Why did the applicant not call his sister and brother-in-law to testify to establish that he is of Kurdish nationality? The Division was not bound by a decision made by another panel since it may be that the other panel made an incorrect decision.
[34] In Addullahi v. MCI, [1996] F.C.J. No. 1433, Mr. Justice Gibson stated:
The Tribunal then noted that the Applicant's wife and daughter had been found to be Convention refugees in Canada. It found this to be of little probative value. It referred to Rahmatizadeh v. The Minister of Employment and Immigration.
[35] The application for judicial review should therefore be dismissed.
[36] Neither counsel submitted any question for certification.
Pierre Blais Judge
OTTAWA, ONTARIO
October 16, 2001
Certified True Translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1551-01
STYLE OF CAUSE: GIKOTSHI PATRIC MUSEGHE
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 10, 2001
REASONS FOR ORDER AND ORDER OF MR. JUSTICE BLAIS
DATED: OCTOBER 16, 2001
APPEARANCES:
ANNIE BÉLANGER FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
BÉLANGER, FIORE
MONTRÉAL, QUEBEC FOR THE APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL
OF CANADA FOR THE RESPONDENT