Date: 20011213
Docket: IMM-6327-00
Neutral citation: 2001 FCT 1380
BETWEEN:
ROSALIE SIBA
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("Refugee Division") that the applicant, a citizen of Congo-Brazzaville, is not a Convention refugee on the ground that her story was not credible and that she did not demonstrate a subjective fear of persecution.
[2] The facts in the tribunal's decision were set out as follows:
[TRANSLATION]
The claimant's problems allegedly began in 1993. In April the claimant's brother and his family were allegedly killed by a combination of Cobra and Ninja militia because, as he was a member of the Congolese Labour Party (CLP), he was regarded by the Ninjas as an enemy.
In April the militia allegedly turned against the claimant and her family. They burst into her home, fired shots into the air and demanded that she give them her jewels and money, and then put their threat of rape into execution. The claimant was terrified and took refuge with a neighbour, then fled to Pointe Noire because she thought she could find a relatively calm atmosphere there.
Finding that there were still certain ethnic tensions there, the claimant said she was very afraid that the fighting would start again. That was when she decided to leave the Congo for Belgium, leaving her two children behind her with her sister.
Later, after completing her course of study in Belgium, the claimant said she applied for entry to Canada to finalize her study. However, before going to Canada, she said that as she believed in the national forum for reconciliation, unity, democracy and reconstruction in the Congo which was being held in Brazzaville in January 1998 and in the news broadcast by the media about a more peaceful atmosphere, she went back to her country to visit her children.
On arrival in the Congo her passport was seized and confiscated by the authorities on the pretext, she was told, that all Congolese passports had to be changed. The promise that she would later be given a new passport was not kept, she said.
On June 26, 1999, when she was on her way to the police station to find out what had become of members of her family, whose house had been ransacked and looted, she said she was stopped, detained and questioned about her life, relations and political activities in Europe, and especially about her former activities in the UPADS, at the time she was living in the Congo.
After several days of detention she was charged with conspiracy and collaboration with the former authorities in Belgium, with reference to her uncle, former councillor and ambassador of the Congo in Brussels, described as "genocidal" because he had served in the Pascal Lissouba government.
She was kept prisoner for three weeks in inhuman conditions and owed her safety to a guard who was a cousin of her children's father. He allowed the claimant to escape from her place of detention on July 25, 1999 and from the Congo some two months later.
[3] The Refugee Division concluded that the applicant was not credible and that she had not established a subjective fear of persecution. It also concluded that there was no credible basis for her claim pursuant to s. 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
(i) Duty to act fairly - audi alteram partem
[4] In general the Court does not intervene on a question of credibility in view of the well-settled rule that on account of its expertise the Refugee Division is in the best position to determine the plausibility of testimony. However, this rule assumes that there has been a full and complete hearing which allows the tribunal to assess a claimant's credibility. A full and complete hearing means that the claimant has a chance to present his or her case and make the arguments underlying his or her claim.
[5] In the case at bar, after reading the transcript several times, I have come to the conclusion that the applicant did not have an opportunity to be heard.
[6] Several times during the hearing, the tribunal prevented Ms. Siba from speaking and completing her replies. The following are a few striking examples. In the first passage, the tribunal did not allow the applicant to elaborate on the letter she received.
[TRANSLATION]
Q. But how did you know that had to be taken? . . .
A. I received a letter from the embassy in which . . .
Q. The embassy of what country? Of . . . of Canada?
(Tribunal's record, p. 281)
[7] The same is true in the following passage, in which the applicant could not finish giving her explanation about the seizure of her passport:
[TRANSLATION]
By chairperson (addressing claimant)
. . .
Q. Yes, but why did they seize your passport in '99?
A. Excuse me. In . . . in '99, I left at the time the existing government had changed because in '96 it was President Pascal Lissouba who was in power. So there was no reason for me to go to the Congo because I had lost my mother.
By member (addressing claimant)
- You did not understand . . .
By chairperson (addressing claimant)
Q. But . . .
By member (addressing claimant)
- . . . answer the question . . .
(Tribunal's record, p. 285)
[8] Shortly afterwards, the tribunal again interrupted the applicant:
[TRANSLATION]
A. I would like to make something clearer. In '96 I went to the Congo, there was the . . . the death of my mother, and in '93 there was a confrontation between the supporters . . . the militia of Bernard Kolela (phonetic) and the militia of Pascal Lissouba. So there were two tribes who . . . who were fighting each other and at that point I was in the JUPADS. I know . . .
- But madam, you yourself said that in '99 for all practical purposes there was no longer . . . there was no longer a government in the Congo.
. . . . .
Q. Is that all? For you . . . your passport was withdrawn, is there any related reason?
A. Until then, I . . .
Q. As I understand the . . . the explanations . . .
(Tribunal's record, pp. 286-287.)
[9] The tribunal even interrupted the applicant at the very end of the hearing:
[TRANSLATION]
By chairperson (addressing claimant)
Q. Do you wish to add anything, madam? _ to say anything to the tribunal?
A. The only thing I would add, is to believe me for . . .
Q. Where are you at present in your studies? At what level are you? Are you still registered at Sherbrooke?
(Tribunal's record, p. 313)
[10] Of course it is permissible, and even desirable, for the tribunal to question the witness, since the purpose of the hearing is to enable the tribunal to determine the truth and ensure that only genuine refugees are approved.
[11] However, such an exercise should not be used to fluster claimants who must confront the formal surroundings of a hearing the outcome of which will have serious consequences for them, since the result of their claim will essentially be in large part determined by their testimony. Such an approach can only be detrimental to the interests of justice. The hearing should not be transformed into a "witch hunt" but should permit a calm discussion between the claimant and the tribunal in an atmosphere conducive to a search for truth. It should give the individual an opportunity to explain his or her situation: [he or she] cannot be the object of constant interruptions, hostility and negative remarks.
(ii) Concept of credible basis
[12] As to the tribunal's conclusion that the claim lacked a credible basis, the respondent maintained in view of Sheikh, [1990] 3 F.C. 238 (F.C.A.), that the objective documentary evidence on the situation in Congo-Brazzaville could not by itself, if the applicant lacked credibility, support a conclusion that her claim had a credible basis.
[13] I do not feel that Sheikh, supra, should be given such a broad interpretation. What Sheikh held was that when the only evidence linking the claimant to the harm in question comes from the testimony of the interested party, and the latter is found not to be credible, the Refugee Division may after analyzing the documentary evidence conclude that the credible basis is lacking.
[14] Further, in Jules, [1994] F.C.J. No. 835 QL, I concluded that general evidence about the political situation in Haiti, which was not related to the claimant's situation, was not by itself a sufficient basis for any conclusion regarding the claim.
[15] However, when independent and credible evidence exists in the record relating to the applicant's situation, it cannot be concluded that a credible basis is lacking.
[16] Recently, in Foyet v. Canada (M.C.I.), [2000] F.C.J. No. 1591 QL, Denault J. clarified the meaning to be given to Sheikh, which must be seen in the legislative context existing at the time, and which is no longer applicable today.
[17] The new s. 69.1(9.1) of the Act requires analyzing all the evidence, both objective and subjective. I agree with Denault J. that a broad interpretation of Sheikh, supra, cannot be reconciled with s. 69.1(9.1) of the Act.
[18] As I have already noted in Seevaratnam v. Canada (M.C.I.), [1999] F.C.J. No. 694 QL, at para. 11:
In my opinion, the Board failed to consider all of the evidence before it and simply denied the Applicant's claim because it did not find her credible. In the circumstances of this case, there was still evidence remaining which could have affected the assessment of the claim. Therefore, this evidence should have been expressly assessed.
[19] When the documentary evidence is relevant I also consider, in view of the serious consequences resulting from a finding under s. 69.1(9.1), that the tribunal is required to specifically indicate the reasons leading to its application based on the objective evidence.
[20] In the case at bar, the tribunal did not specifically assess the evidence as a whole, and the latter included a medical and psychological report which corroborated the applicant's story about the injuries sustained. It also gave no specific explanation of the reasons leading it to conclude that there was no credible basis pursuant to s. 69.1(9.1) of the Act.
[21] For these reasons, the application for judicial review is allowed. The matter is referred back for re-hearing before a panel of different members.
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Danièle Tremblay-Lamer
Judge |
Montréal, Quebec
December 13, 2001
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
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FEDERAL COURT OF CANADA TRIAL DIVISION
Date: 20011213
Docket: IMM-6327-00
Between:
ROSALIE SIBA
Applicant AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-6327-00
STYLE OF CAUSE: ROSALIE SIBA
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 11, 2001
REASONS FOR ORDER AND ORDER BY: TREMBLAY-LAMER J.
DATED: December 13, 2001
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Sylviane Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec