Federal Court Decisions

Date: 20041214

Docket: IMM-916-04

Citation: 2005 FC 1736

Ottawa, Ontario, the 14^th day of December 2004

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

MARIE JEANNE MPUTU KABASELE

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]        The human rights picture leading to a credible claim is not the result of a single factor or even of several separate ones, but of an amalgam that emerges and sketches a portrait, as complete as possible, of a life in a particular context.^[1]

NATURE OF JUDICIAL PROCEEDING

[2]        The instant application for judicial review, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act),^[2] has to do with a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rendered on January 15, 2004. In that decision, the Board concluded that the applicant did not meet the definition of a "Convention refugee" in section 96 nor that of a "person in need of protection" in subsection 97(1) of the Act.

FACTS

[3]        The applicant Marie Jeanne Mputu Kabasele, a citizen of the Democratic Republic of the Congo (DRC), alleged a valid fear of persecution on account of the Tutsi tribal origin of her mother.

[4]        The following are the facts alleged by Ms. Mputu Kabasele, as described by the Commission. Ms. Mputu Kabasele was targeted by the DRC security forces because her mother was of Rwandan-Tutsi origin. When President Kabila drove out the Rwandan military in 1998, the soldiers and citizens attacked Rwandans and families who had members of Rwandan-Tutsi origin. Her parents were killed at that time because of her mother's Tutsi origin. The next day, at the funeral of her parents in her house, Ms. Mputu Kabasele and her husband were whipped by soldiers who forbade them to continue with the funeral. Ms. Mputu Kabasele and her husband subsequently moved to another district, and lived there in hiding. Their children stopped attending school.

[5]        On April 20, 2001, while Ms. Mputu Kabasele and her husband were absent, the soldiers burst into their house and tortured her young brother because of his ethnic origin. Ms. Mputu Kabasele and her children left to hide with a friend of her husband outside the town. The friend organized Ms. Mputu Kabasele's trip to Canada. She left the DRC on June 6, 2001. She claimed asylum in Canada on June 12, 2001.

IMPUGNED DECISION

[6]        Despite the highly suspect authenticity of the identity documents, the Board decided to give Ms. Kabasele the benefit of the doubt as to her identity. Relying on its specialized knowledge, according to which in Africa the father's ethnic origin and not the mother's is considered in establishing the ethnic status of the children, the Board concluded that Ms. Mputu Kabasele was not a Tutsi since her father was a Luba. Although it accepted that Ms. Mputu Kabasele was a Tutsi through her mother, the Board indicated that it nevertheless dismissed the application as Ms. Mputu Kabasele lacked credibility. The Board ended by indicating the four points which showed that there was a lack of credibility.

POINTS AT ISSUE

[7]        1. Did the Board infringe the rules of natural justice by relying on its specialized knowledge without previously informing the parties, as required by section 18 of the Refugee Protection Division Rules, and was this breach conclusive?

            2. Was it patently unreasonable for the Board to conclude that the applicant lacked credibility?

ANALYSIS

            1. Did the Board infringe the rules of natural justice by relying on its specialized knowledge without previously informing the parties, as required by section 18 of the Refugee Protection Division Rules, and was this breach conclusive?

[8]        Section 18 of the Refugee Protection Division Rules (the Rules)^[3] provide the following:

18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre -- si celui-ci est présent à l'audience -- et leur donne la possibilité de :       (a) make representations on the reliability and use of the information or opinion; and		a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion;
(b) give evidence in support of their representations.		b) fournir des éléments de preuve à l'appui de leurs observations.

[9]        The Court agrees with Ms. Mputu Kabasele that she was not notified by the Board that the latter would use its specialized knowledge to conclude that [TRANSLATION] "in Africa the father's ethnic origin and not the mother's is considered in establishing the ethnic status of the children". The fact that at the hearing counsel for Ms. Mputu Kabasele put several questions to her about her ethnic identity and, in his questions and final submissions, the protection officer raised the patrilinear nature of the Congo and of Rwanda, is not notice within the meaning of section 18 of the Rules. The Board must itself inform the parties that it intends to use information within its specialized knowledge and give the parties a chance to make representations and submit evidence on the point. The lack of notice is thus an infringement of the rules of natural justice. However, that infringement is not conclusive in the case at bar, since the Board concluded that Ms. Mputu Kabasele was not credible on other important points and that in itself sufficed to dismiss the application. The rule that a breach of natural justice is not conclusive if the outcome would be the same in any case as the result of other factors is explained by Noël J.A. in Kabedi v. Canada (Minister of Citizenship and Immigration),^[4] at paragraph 10:

Based on the jurisprudence set out in Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) ("Yassine") and in Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, a reviewable error constituting a breach of natural justice will ordinarily void the hearing and the resulting decision; however, an exception to this strict rule has been recognized where the other elements of the claim support the original finding and where re-determination of the claim would likely result in the same decision.

            2. Was it patently unreasonable for the Board to conclude that the applicant lacked credibility?

[10]      It is well settled that on questions of credibility, as in the case at bar, the Board's error must be patently unreasonable for the Court to intervene (Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.);^[5] Pissareva v. Canada (Minister of Citizenship and Immigration);^[6] Singh v. Canada (Minister of Citizenship and Immigration)^[7]).

[11]      The Board noted four points on which Ms. Mputu Kabasele lacked credibility. Two of those points are not in dispute, as her counsel made no submissions regarding them. The first concerns the fact that Ms. Mputu Kabasele said she lived in Kinshasa from July 1991 to June 2001. However, when the Board asked her to describe the situation in Kinshasa in 1996, she remained vague and evasive. As the documentary evidence indicated that violent demonstrations against the Tutsis took place in that city in 1996, the Board considered it was unlikely Ms. Mputu Kabasele would not be aware of these events if she was in fact living in Kinshasa in 1996. The second undisputed point indicating a lack of credibility had to do with Ms. Mputu Kabasele's departure from the DRC in 2001, not 1998. Ms. Mputu Kabasele said she left in 2001 with the help of an old family friend. According to the Board, she gave no reasonable explanation when the Board asked why she had not left the country with the friend's help when her parents were killed in 1998.

[12]      Another point which, in the Board's view, added to Ms. Mputu Kabalese's lack of credibility had to do with Response to Information Request RDC32198.F, dated June 30, 1999 (the Response). The relevant passage reads as follows:

[TRANSLATION]

As to the feelings of the Kinshasa population in general toward Tutsis in recent years, we find in Info-Zaïre that from the start of the rebellion in October 1996, "the wrath of the people of Zaïre was directed primarily against Zaïreans of Tutsi origin" (November 26, 1996, 2). [Emphasis added.]

[13]      The Board asked Ms. Mputu Kabasele how she was able to avoid that wrath, especially if the neighbours knew she was a Tutsi through her mother. Ms. Mputu Kabasele explained that the rebellion took place in the east, not in Kinshasa. The Board did not accept this explanation, as it was contradicted by the Response. Accordingly, the Board concluded from this that Ms. Mputu Kabasele had not lived in Kinshasa in 2001.

[14]      Counsel for Ms. Mputu Kabasele maintained that it was not clear whether the Board referred to the events of 1996 or 1998. The Court considers that it is clear from the passage from the Response cited above that the Board was asking Ms. Mputu Kabasele how she was able to escape the wrath of the Zaïreans in 1996. Counsel for Ms. Mputu Kabasele stated that if that were the case, the Board had not dealt in its decision with the murder of her parents in 1998. Yes, that appears to be the case, but the Board was not obliged to comment on the truth of the events occurring in the life of Ms. Mputu Kabasele in 1998. The Board drew up a list of points which were sufficient proof of Ms. Mputu Kabasele's lack of credibility for the application to be dismissed, and that is all it was required to do. Finally, counsel for Ms. Mputu Kabasele claimed that the Board wrongly concluded that Ms. Mputu Kabasele's answer contradicted the documentary evidence. Undoubtedly the rebellion began in the eastern part of the country, as Ms. Mputu Kabasele explained, but the Response also speaks of the [TRANSLATION] "people of Zaïre" whose wrath was unleashed against Zaïreans of Tutsi origin. The phrase "people of Zaïre" suggests that it was a generalized movement that was not confined only to the eastern part of the country, but spread throughout the country as a whole, including Kinshasa. Ms. Mputu Kabasele explained that the rebellion took place only in the eastern part of the country and did not come to Kinshasa. The Board properly concluded that Ms. Mputu Kabasele's answer contradicted the Response.

[15]      The final point that detracted from Ms. Mputu Kabasele's credibility had to do with the allegation that she and her family suffered mistreatment because the Tutsi origin of her mother was known in the Kinshasa district where Ms. Mputu Kabasele lived. According to Response to Information Request RDC37268.E, dated September 17, 2001, the Tutsis left areas controlled by the government or hid, and there was no further systematic persecution and harassment of Tutsis in the DRC. Counsel for Ms. Mputu Kabasele maintained that these two facts cited from the documentary evidence are contradictory. The Court agrees it is clear and logical that the harassment of Tutsis would have diminished, since the great majority left Kinshasa after the 1998 events and this reduction in the number of Tutsis in Kinshasa necessarily brought about a decline in the harassment of that group, but that does not exclude the possibility that those who were unable to leave were victims of persecution. The Court agrees that it is not impossible that some individuals remained in Kinshasa and could have been the subject of persecution, but according to the documentary evidence, and this is what the Board tried to emphasize, persecution was unlikely. The Court agrees that by itself this lack of credibility is not conclusive. However, it was not the only such factor and has to be considered with the list of other points detracting from the applicant's credibility.

[16]      The Court concludes that it was not patently unreasonable for the Board to conclude that Ms. Mputu Kabasele lacked credibility.

CONCLUSION

[17]      For these reasons, the Board answers the two points at issue in the negative. Consequently, the application for judicial review is dismissed.

ORDER

THE COURT ORDERS that the instant application for judicial review be dismissed. No question is certified.

Certified true translation

K.A. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   IMM-916-04

STYLE OF CAUSE:                                                   MARIE JEANNE MPUTU KABASELE

v.

THE MINISTER OF IMMIGRATION AND CITIZENSHIP

PLACE OF HEARING:                                             OTTAWA, ONTARIO

DATE OF HEARING:                                               DECEMBER 13, 2004

REASONS FOR ORDER AND ORDER BY:        THE HONOURABLE MR. JUSTICE SHORE

DATE OF ORDER AND ORDER:                          DECEMBER 14, 2004

APPEARANCES:

Jacques Despatis                                                           FOR THE APPLICANT

Richard Casanova                                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jacques Despatis                                                           FOR THE APPLICANT

Attorney

Ottawa, Ontario

MORRIS ROSENBERG                                              FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario