Date: 20011010
Docket: IMM-95-01
Ottawa, Ontario, the 10th day of October, 2001
Present: The Honourable Mr. Justice Pinard
Between:
BADIBANGA NGOYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The matter is sent back to a newly constituted panel of the Refugee Division for rehearing and redetermination on the merit of the applicant's refugee claim.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20011010
Docket: IMM-95-01
Neutral Citation: 2001 FCT 1099
Between:
BADIBANGA NGOYI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] On March 22, 1999, the Refugee Division of the Immigration and Refugee Board (the "RD") rendered an initial decision against the applicant, a decision that was quashed by my colleague Madam Justice Tremblay-Lamer on February 15, 2000 and sent back before a newly constituted panel. In her decision, Tremblay-Lamer J. wrote, in particular:
[13] Furthermore, the article does not contradict the applicant's version, since it reports his disappearance and not his arrest. The Refugee Division did not question the document's authenticity, so it should at least have recognized that this evidence did not contradict the applicant but corroborated his story as to the fact that he is described by the UDPS authorities as a UDPS fighter and that his disappearance was noted on the eve of the one-day city-wide shutdown.
[14] This incident was at the heart of the claim, and a misinterpretation of the evidence on this central point in the claim strikes a fatal blow to the decision, especially since the anomalies raised concerning the other documents "the membership card in the UDPS and the affidavit of the "Toges Noires" "are relatively insignificant compared with the completely plausible explanations of the applicant.
[15] The application for judicial review is allowed. The matter is sent back for redetermination by a newly constituted panel.
[2] This, therefore, is an application for judicial review of the decision rendered by the new panel on December 14, 2000, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[3] The RD essentially criticizes the applicant, because he elected not to testify, of failing to prove that his allegations were credible.
[4] As it expressly acknowledged in its decision, the RD had before it, however, the applicant's Personal Information Form and other documents filed in support:
[Translation] Counsel presented in evidence his new exhibits P-1 to P-4, the latter being the Personal Information Form of the claimant, including the reply to question 37. Counsel stated that his client did not need to testify.
[5] In the circumstances, absent any unequivocal evidence that the applicant waived full consideration of the merits of his refugee claim, and in view of the decision above by Madam Justice Tremblay-Lamer, I think the panel erred in not at least commenting on the written evidence it had before it before concluding that
[Translation] Proof that the claimant's allegations were credible was not made before the panel, ...
[6] Counsel's statement that his client, the applicant, did not need to testify is far from sufficient to allow the panel to conclude as it did, especially when the panel had at its disposal the transcript of the applicant's earlier testimony at the first hearing before the initial RD panel and the applicant, present at the hearing before it, was available to answer any questions by its members had they considered it necessary to put them to him. I consider the panel's error sufficiently important to undermine its entire decision.
[7] Accordingly, the application for judicial review is allowed. The matter is sent back to a newly constituted panel of the Refugee Division for rehearing and redetermination on the merit of the applicant's refugee claim.
[8] In view of these reasons, as heard at the hearing, there is no matter for certification here.
J.
OTTAWA, ONTARIO
October 10, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-95-01
STYLE: BADIBANGA NGOYI
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: AUGUST 29, 2001
REASONS FOR ORDER OF PINARD J.
DATED: OCTOBER 10, 2001
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA