Date: 19990415
Docket: IMM-1979-98
BETWEEN:
MIKE TAMBWE-LUBEMBA
VERONIQUE WANYA-KATSHIYA
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicants, citizens of the Democratic Republic of Congo (DRC) formerly Zaïre, seek judicial review of a decision of the Immigration and Refugee Board Convention Refuge Determination Division (the Board) dated March 13, 1998, wherein the applicants were found not to be Convention refugees.
[2] The issues are whether the Board was functus at the time it received the additional documentary evidence submitted by the applicants in light of having signed the reasons for decision twelve days earlier, whether the Board was under a continuing obligation to consider relevant evidence in its possession, even if not adduced by the applicants, and whether the Board ignored certain evidence before it in making a finding.
[3] With regard to whether the Board was functus, the relevant facts are as follows. The hearing took place on January 19, 1998. The Board's decision is dated March 13, 1998. The applicants' counsel, shortly after that date, was told erroneously by an employee of the Board that the decision had not yet been given; the applicants' counsel then delivered to the Board by hand, on March 25, 1998, a document entitled "Guidelines for Refugees and Asylum Seekers from the Democratic Republic of Congo". This document contained information with respect to the "risk faced by private ex-Zaïrian prosperous businessmen" and the male applicant submits that he fell into this category. The Notice of Decision was signed and sent to the applicants on April 3, 1998.
[4] I agree with Justice Nadon in Keita v. Minister of Employment and Immigration (IMM-343-93, April 29, 1994) and find that the Board had no obligation to consider the additional evidence after it had signed its written reasons dated March 13, 1998. The Board was functus; there was no request to reopen the hearing. It is regrettable that the Board's decision was not communicated to the applicants earlier but that has no impact or consequence for the decision made on March 13, 1998. In my view the date of April 3, 1998 is irrelevant to the question of when the decision was actually rendered at which point the Refugee Division became functus officio. Section 69.1(9) stipulates that the Refugee Division "shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister". As this wording indicates, the rendering of the decision is distinct from the sending of the Notice of Decision.
[5] Shairp v. MNR (1989) 1 F.C. 562 is clearly distinguishable because in that case the Federal Court of Appeal was dealing with an oral opinion delivered by a judge prior to the actual "filing and entering of written decision". In my view, in the case before me, the Board was functus after it signed the reasons on March 13, 1998.
[6] The second issue is whether the Board is under a continuing obligation to consider relevant evidence in its possession. In this case the Toronto Office of the Board received the UNHCR Guidelines on January 20, 1998. There is no evidence that the Board member in question, Ms. Filion, ever saw this document prior to March 13, 1998. The document was included in the standard index package for hearings as of March 1998. However, there was no evidence as to when in March the standard index package was prepared.
[7] The applicants submit that the material in this case is similar to that considered in Omar v. Canada (Minister of Citizenship and Immigration.) [1998] F.C.J. No. 463 and that the Board is under a continual obligation to consider relevant evidence in its possession (i.e. at the IRB documentation centre) even if not adduced by the claimant. In Omar, supra the two documents were letters to and from Dutch government officials to the Republic of Kenya and a letter from the Immigration and Refugee Board to the head of the Immigration and Naturalization Service to determine the authenticity of the two letters. Teitelbaum J. stated at paragraphs 17 and 18:
| With regard to the letters of June 14, 1996 and the reply of June 20, 1996 I am satisfied that these documents having been in possession of the Convention Refugee Determination Division and because of their great importance for the determination of an IFA in Somalia should have been considered by the members of the Board. |
I am satisfied that in the circumstances of this case after hearing the applicant's submission that it would have been extremely difficult for the applicant to become aware of these two documents.
[8] In the case before me, the applicants provided evidence showing that the copy of the guidelines for refugees and asylum seekers from the Democratic Republic of Congo was in the Board"s documentation centre as of January 20, 1998. Consequently these documents were available to the applicants who could have submitted them earlier to the Refugee Division for its consideration. The onus of proof is on the applicants to satisfy the Board as to the well-foundedness of their claim.
[9] This case is therefore distinguishable from Omar, supra and comes within the normal rule that the Board is under no continuing obligation to consider relevant evidence in its possession if it is not adduced by the applicants and is not included in the material that the Board has before it at the time of the hearing.
[10] With respect to the third point, the applicants submit that the Board ignored certain evidence before it when it made the following findings:
La preuve de la revendicatrice, à l'égard de sa famille, n'indique pas que sa famille et elle-même ont été impliquées dans le génocide de 1994 et qu'ils étaient des réfugiés Rwandais Hutus. La preuve de la revendicatrice n'indique pas non plus qu'elle a été perçue comme étant une Rwandaise-Hutu, ni comme une personne originaire du Rwanda et de l'ethnie Hutu. Le tribunal est d'avis qu'à la lumière du témoignage de la revendicatrice, il n'y a pas de preuve suffisante qui indique que l'AFDL s'intéresse à elle en raison de son appartenance à un groupe social, sa famille. Le tribunal est d'avis qu'avoir hébergé sa mère, sa grand-mère et ses deux oncles n'est pas une raison valable pour être perçu par l'AFDL comme des opposants, ou des génocidaires, ou des Rwandais Hutus, ou des sympathisants à la cause des Hutus. De plus, les documents d'identité de la revendicatrice indiquent qu'elle est originaire du Kasaï oriental, tel que son mari. Le tribunal est d'avis qu'il n'y a pas de possibilité raisonnable que les origines lointaines de la revendicatrice l'amèneraient à être persécutée par les autorités de Kabila à Kinshasa. Le tribunal ne croit pas non plus que le revendicateur et leurs enfants soient persécutés en raison du profil familial de l'épouse. Le tribunal ne croit pas que leur crainte de persécution en raison de leur appartenance à un groupe social, la famille, est une crainte de persécution bien fondée.
[11] The applicants submit that the documentary evidence was all to the effect that anyone viewed as a supporter of Hutus was at risk. They further submit that this case comes directly under the principles expressed in Mahanandan v. Minister of Employment and Immigration (August 23, 1994), A-608-91, (Fed. C.A.) wherein Isaac C.J. stated at paragraph 7:
| They say, secondly, that beyond a bare acknowledgement that the evidence presented at the hearing consisted of documentary evidence which constituted background information on Sri Lanka, the reasons of the Board were bereft of any further reference to the documentary evidence, let alone any consideration of their claim in light of that evidence.... |
We agree. Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
In my view, this decision is not applicable to the case at hand because the documentary evidence at issue refers to the situation after Mr. Kabila had consolidated his position in the DRC and after the applicant had left the country. The applicant left the DRC in May 1997, only days after Mr. Kabila assumed power. The Board specifically noted that no such killings had occurred in Kinshasa where the applicants resided. The Board further found it implausible that the Kabila authorities would be interested in the fact that the applicants took in the female applicant's 80 year-old grandmother and her two sons. The Board also cited the female applicant's identity documents which indicate that she, like her husband, is from eastern Kasai. The Board's findings were open to it and set out why not all of the evidence was to the effect that anyone viewed as a supporter of Hutus was at risk.
[12] The application for judicial review is dismissed.
[13] I was asked to certify two questions. In my view the first question is too fact- specific and a general answer cannot be provided which would be of assistance in other than the present circumstances. I will certify as a question of general public importance the second question:
| Is it a reversible error if a panel of the Refugee Division determining a refugee claim pursuant to section 69.1 of the Immigration Act ignores documentation not introduced into evidence by a claimant, nor in the possession of a panel but which comes into the possession of the Refugee Division after the conclusion of the hearing? |
Judge
OTTAWA, Ontario
April 15, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1979-98
| STYLE OF CAUSE: MIKE TAMBWE-LUBEMBA |
VERONIQUE WANYA-KATSHIYA
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, APRIL 6, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: MONDAY, APRIL 12, 1999
APPEARANCES: Mr. Micheal Crane
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Micheal T. Crane
Barrister & Solicitor
200-166 Pearl St.,
Toronto, Ontario
M5H 1L3
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990412
Docket: IMM-1979-98
Between:
| MIKE TAMBWE-LUBEMBA |
VERONIQUE WANYA-KATSHIYA
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER