Date: 20010704
Docket: IMM-4537-00
Neutral citation: 2001 FCT 756
BETWEEN:
GALLET SAMPU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated August 4, 2000, which determined that Mr. Gallet Sampu (the applicant) was not a Convention refugee.
[2] The applicant is a citizen of the Democratic Republic of Congo, formerly Zaire. He claimed Convention refugee status based on an alleged fear of persecution by reason of his perceived political opinion and his membership in a particular social group.
[3] The applicant alleged to have a fear of persecution because of his desertion from forced military service and his association with the leading opposition group in Congo, the UDPS (Union pour la démocratie et le progrès social).
[4] In particular, the applicant alleged to have been detained by the government authorities for several days and tortured because he had performed a song in public which was perceived as critical of the regime. The applicant also alleged that the government authorities intended to force him to serve in the army before his escape from jail.
[5] The Board rejected the applicant's claim because it found the evidence presented respecting his membership in the UDPS not to be credible. The Board found the applicant to be lacking in knowledge about the internal structure of the UDPS (particularly his cell) and that the description of his membership card was not consistent with the documentary evidence.
[6] The Board also drew a negative inference from the applicant's failure to provide any document corroborating his membership in the UDPS, given that the documentary evidence indicates that the UDPS has an elaborate mechanism to verify membership in the group.
[7] In particular, the Board did not find credible the applicant's explanation that he did not have any money to pay the contribution to the UDPS in Canada (required to verify his membership in the group), given the large community of Zaireans in Toronto who could have helped him financially or helped him otherwise to find a mean to establish his membership in the group.
[8] Counsel for the applicant submits that the Board erred in law in rejecting the applicant's claim solely on this issue without evaluating his credibility concerning one of the central aspects of the claim. I agree.
[9] While the Board was entitled to consider all of the matters it relied on in assessing the applicant's credibility, including the applicant's membership in the UDPS, it failed to consider the substance of his claim, namely his arrest and torture due to his performance of a song viewed as critical by the government authorities and his escape from forcible enrolment in the army.
[10] I find that the Board erred in law by failing to consider the totality of the evidence tendered in support of the applicant's claim.
[11] In Ahangaran v. M.C.I., (1999) 168 F.T.R. 315, McGillis J. came to the same conclusion in a similar situation, where the Board made credibility findings based solely on matters pertaining to the applicant's travel following his departure from his country, including the use of false documents and identities, to reject his claim. McGillis J. stated at para. 5:
Counsel for the applicant submitted, among other things, that the Board erred by failing to consider the totality of the evidence tendered in support of the claim. I agree with that submission. A review of the Board's reasons confirms that it failed to consider the substance of the claim advanced by the applicant concerning his alleged persecution in Iran. Indeed, the Board's credibility findings are based solely on matters pertaining to his travel following his departure from Iran, including matters such as his use of false documents and identities. Although the Board was entitled to consider all of the matters relied on by it in assessing the applicant's credibility, it was also required to evaluate the credibility of his evidence concerning the substance of his refugee claim. The failure of the Board to consider the totality of the evidence before it constitutes an error of law.
[12] Although I recognize that the Ahangaran, supra, decision dealt with a more peripheral issue, I am nevertheless of the opinion that the principle established therein is applicable here. The Board was required to evaluate the credibility of the evidence on all central aspects of the claim. The membership in the UDPS was a relevant factor but did not pertain to the reasons why the applicant was arrested and why he was forced into the armed forces.
[13] The application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.C.
Toronto, Ontario
July 4, 2001.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4537-00
STYLE OF CAUSE: GALLET SAMPU
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, JULY 3, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: WEDNESDAY, JULY 4, 2001
APPEARANCES: Mr. M. Crane
For the Applicant
Mr. D. Tyndale
For the Respondent
SOLICITORS OF RECORD: Micheal 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: 20010704
Docket:IMM-4537-00
BETWEEN:
GALLET SAMPU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER