Date: 20050408
Docket: IMM-1103-04
Citation: 2005 FC 470
BETWEEN:
MBUYI BITALA
NKANKU BITALA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicants not to be Convention refugees or persons in need of protection. The decision under review is dated the 21st of January, 2004.
THE APPLICANTS AND THEIR EVIDENCE
[2] The Applicants are twin sisters, citizens of the Democratic Republic of Congo (the "DRC"). They arrived in Canada on the 22nd of June, 2003 from Kinshasha, via Ethiopia and the United States of America. They recorded their claim to Convention refugee status on the same day on which they arrived in Canada. They base their claim on membership in a particular social group, their family, and on their perceived political opinion.
[3] The alleged factual basis to the Applicants' Convention refugee claim can be briefly described as follows. The Applicants' mother was a shop-keeper who travelled throughout the DRC to buy beans, salted fish and flour. As a result, she became well known. As a further result, a number of non-governmental organizations consulted with her and relied on her to promote better conditions for women and democracy throughout the DRC.
[4] The Applicants allege that on the 15th of May, 2003, security agents visited their mother at her home and accused her of collaborating with rebels who occupied areas in the East of the DRC. She was neither arrested nor taken into custody for purposes of interrogation.
[5] The Applicants allege that they themselves were members of a group of young Christians that met weekly and that held retreats monthly to discuss issues relating to tolerance and the place of women in society. They allege that, on the 25th of May, 2003 when they returned from a meeting of their young Christians group, security agents confronted them at their home and demanded that they circulate within their group a threatening message.
[6] On the 30th of May, 2003, the Applicants allege that they participated in a demonstration organized by their young Christians group, that approximately 200 persons participated in the demonstration, and that security agents, dressed like civilians, infiltrated the demonstration and demanded the names of the Applicants. The Applicants were not arrested.
[7] On the 6th of June, 2003, the Applicants allege that, on returning from a retreat, they were arrested, taken into custody and accused of inciting a public uprising and activities contrary to public order. They were held in custody for two nights. Thereafter, a friend of their mother known to the Applicants as "Papa Francois" after paying a bribe, obtained their release from custody. They learned that their mother had disappeared on the 6th of June, 2003, and concluded that they were at risk. They were advised to leave the DRC. The Applicants stayed with Papa Francois until the 13th of June, 2003, at which time they left the DRC via the airport at N'Djili using false passports that incorporated their own photographs.
THE DECISION UNDER REVIEW
[8] The RPD determined the Applicants to be citizens of DRC and to be the persons they alleged themselves to be. In all other respects, the RPD found the Applicants' testimony not to be credible on the following bases:
- Despite specifically being asked to do so over four months before the hearing before the RPD, the Applicants did not present any documentary evidence to establish that they were in the DRC during the critical period of time;
- Similarly, the Applicants produced no documentation to confirm that they were part of an association of young Christians and that they participated in activities including the rally on the 30th of May, 2003;
- Given that the Applicants' mother was accused of collaborating with rebels from the Eastern region of the DRC, the Applicants' allegation that state security agents asked them to spread a pro-governmental message to the members of their young Christian group was not plausible;
- It was not plausible that the Applicants' mother was not immediately arrested and taken for questioning when she was accused on the 15th of May, 2003, of collaborating with rebels;
- Similarly, given the Applicants' alleged activities and relationship to their mother, it was not plausible that the Applicants were not immediately arrested as a result of their participation in the 30th of May, 2003 rally;
- It was further not plausible that the Applicants' mother, given the nature of her work and the limited purpose for her travels throughout the DRC, and who had no formal training or evident qualifications, was considered by numerous non-governmental organizations to be an expert on the feminine condition;
- The Applicants were unable to name any of the non-governmental organizations that their mother allegedly assisted;
- Given the Applicants' mother's alleged prominence in the community it was strange ("curieux") that none of the non-governmental organizations with which she was allegedly involved intervened to denounce her disappearance;
- Further, it was equally strange that no newspaper apparently reported the Applicants' mother's disappearance; and
- Finally, it was once again strange that the Applicants did not know anything about the circumstance of their mother's disappearance and never pressed "Papa François" for information or otherwise promoted the investigation of her disappearance.
THE POSITION OF COUNSEL FOR THE APPLICANTS
[9] Counsel for the Applicants urged that the RPD committed a breach of fundamental justice in specifically relying on its specialized knowledge in finding against the Applicants, without giving notice to the Applicants of their intention to do so and providing them an opportunity to respond. In addition, counsel submitted that the RPD erred in rejecting the Applicants' application based on the absence of supporting documentation notwithstanding that the Applicants had been notified of the desirability of producing such documentation well in advance of the hearing, and further erred in rejecting the only documentation, other than their birth certificates, that the Applicants adduced in support of their application.
ANALYSIS
[10] The RPD summarized it's concern regarding lack of documentary support for the Applicants' claim in the following terms:
Tout d'abord, il y a lieu de se demander si les demanderesses se trouvaient en RDC durant la période de persécution alléguée portant sur l'année 2003, en ce qu'elles n'ont produit aucun document qui permettrait au tribunal d'en arriver à cette conclusion.
Cette preuve est capitale, d'autant plus que les demanderesses, qui prétendent avoir voyagé avec un passeport d'emprunt, n'ont pas présenté ce document qui aurait été repris par leur accompagnateur. Elles n'ont laissé non plus aucune trace de l'itinéraire qu'elles ont parcouru avant d'aboutir au Canada par le Fort Érié.
Ce faisant, elles ne se sont pas déchargées du fardeau de prouver qu'elles étaient en RDC durant la période de persécution qui couvre l'anné 2003.
De même, n'ayant présenté aucun document au sujet de leur soi-disant appartenance à l'Association des jeunes chrétiens, les demanderesses ne se sont pas déchargées non plus de leur fardeau d'établir qu'elles appartenaient à ce « mouvement » et qu'elles y ont participé aux activités qui les auraient amenées à quitter leur pays.
Elles n'ont présenté aucune carte de membre ou lettre de cette association pour confirmer leur adhésion et les activités qu'elles prétendent avoir eues. Elles se devaient de présenter cette preuve, d'autant plus que le tribunal leur en avait fait la demande dans l'examen initial produit sous la cote A-1 qui leur avait été envoyé par le biais de leur procureur et signé le 28 juillet 2003, soit quatre mois et demi avant l'audience.
De plus, elles n'ont présenté aucune preuve de la manifestation du 30 mai 2003 qui aurait été organisée par leur organisation et au cours de laquelle des agents de sécurité habillés en civil se seraient contentés de prendre leurs coordonnées sans les avoir arrêtées. Lorsque cette preuve leur a été demandée, elles se sont contentées de dire qu'elles n'avaient rien.
N'ayant présenté aucune preuve pour soutenir leur prétention, le tribunal doit conclure que les demanderesses ne sont pas crédibles.
[11] Based on the forgoing, I am satisfied that the second concern raised on behalf of the Applicants must be rejected. I am satisfied that the RPD's conclusion reflected in the final quoted paragraph was reasonably open to it. Similarly, the third concern, that is to say the rejection of the only documentation, save birth certificates, presented was, I am satisfied, reasonably open to the RPD, notwithstanding that it's rationale for the rejection was perhaps not as eloquent or well reasoned as it might have been.
[12] Finally, I turn to the first issue raised on behalf of the Applicants, the alleged breach of procedural fairness on the part of the RPD in relying on its "specialized knowledge" without providing the Applicants full opportunity to respond.
[13] The RPD wrote:
Voilà autant d'interrogations qui amènent le tribunal à croire que les demanderesses ont fabriqué une histoire pour faire valoir leur revendication.
De connaissance spécialisée en la matière, les agents de sécurité qui accusent un individu de collaboration avec les rebelles vont perquisitionner son domicile, procéder à son arrestation et vont jusqu'à le détenir même arbitrairement pour l'interroger et lui faire subir des mauvais traitements. [emphasis added]
[14] Paragraph 170(i) of the Immigration and Refugee Protection Act[1] clearly authorizes the RPD, in any proceeding before it, to take notice of any information or opinion that is within its specialized knowledge. That being said, this authority is qualified by section 18 of the Refugee Protection Division Rules[2] which is in the following terms:
18. Before using any information or opinion that is within its specialized knowledge, the [Refugee Protection] 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:
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
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) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion;
b) fournir des éléments de preuve à l'appui de leurs observations.
[15] On the facts of this matter, the RPD did not clearly and unequivocally give notice to the Applicants of its intention to rely on its specialized knowledge and provide an opportunity to respond.
[16] In N'Sungani v. Canada (Minister of Citizenship and Immigration)[3], Justice Tremblay- Lamer described failure to comply with the forgoing Rule 18 as constituting "... a breach of procedural fairness."
[17] At paragraphs 24 to 26 of her reasons, Justice Tremblay-Lamer wrote:
I am prepared to accept that the Board's failure to disclose these figures or "specialized knowledge" in the course of the hearing runs counter to its own procedural rules, and constitutes a breach of procedural fairness. The issue here, however, is whether this breach of procedural fairness necessitates a new hearing before a reconstituted Board.
The Applicants suggests that this error is fatal, citing Kitoko v. Canada (Citizenship and Immigration),... . However, in my view, Kitoko, ... does not stand for this proposition. There were several problems with the Board's decision in that case in addition to the failure to disclose its reliance on specialized knowledge, and MacTavish J. specifically concluded that the Board's decision could not stand because of the "accumulative effect of the errors":...
Indeed, the jurisprudence supports a more nuance approach. Ordinarily, a breach of procedural fairness voids the hearing and the resulting decision but an exception to this rule exists... This exception stems fromMobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, ... where the Supreme Court of Canada explained that a breach of procedural fairness does not require a new hearing in "special circumstances" where the claim in question is otherwise "hopeless" or the outcome reached was "inevitable":... . [citations omitted]
[18] In Mir v. Canada (Minister of Citizenship and Immigration)[4] Justice Kelen, after citing N'Sungani, wrote at paragraph 10 of his reasons:
Thus the question that remains is whether the procedural error necessitates setting the decision aside. In my view, it does not. The Board's central finding with respect to secterian killings was that there had been a drastic decline in the number of killings, particularly targeted killings, following the ban of extremist organizations and the implementation of other measures in late 2001 and early 2002. The Board noted that over 400 people were killed by extremist groups in 2001 compared with approximately 40 targeted deaths in 2002 and less than ten targeted deaths in 2003. The applicant does not contest that there was a reduction of the number of deaths in 2002. However, he states that if he had been given an opportunity to respond to the document containing the figures for 2003, he would have argued that it did not support the Board's finding that fewer than ten Shia were the victims of targeted killings. While the parties may debate over the exact number of targeted deaths in 2003, it is clear from the document that the figures cited by the Board are fairly accurate and generally support the Board's conclusion that there has been a downward trend in the number of individual targeted deaths, as opposed to terrorist killings of groups. In these circumstances, it is clear that the Applicant's response would not have impacted the final decision.
[19] While the facts here before the Court are very different than those that were before Justice Kelen, I am satisfied that my colleague's reasoning applies here. The specialized knowledge here relied on by the RPD is essentially not in dispute. I am satisfied that, if the RPD had given to the Applicant the specific notification required by Rule 18 of the Refugee Protection Rules, I am satisfied that, in the circumstances of this particular case, it is clear that the Applicants' response would not have impacted the final decision. In the result, I am satisfied that it would be pointless to return the decision under review for re-hearing and redetermination based on this issue.
CONCLUSION
[20] For the foregoing brief reasons, this application for judicial review will be dismissed.
[21] At the close of hearing, counsel were advised that this application for judicial review would be dismissed. Neither counsel recommended certification of a question. The Court is satisfied that no serious question of general importance arises out of this matter. In the result, no question will be certified.
J.F.C.
Ottawa, Ontario
April 8, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1103-04
STYLE OF CAUSE: MBUYI BITALA, ET AL v.THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: April 4, 2005
REASONS FOR [ORDER or JUDGMENT] : Gibson J
DATED: April 8, 2005
APPEARANCES:
Micheal Crane FOR APPLICANT
Bari Crackower FOR RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR APPLICANT
Barrister and Solicitor
John H. Sims, Q.C FOR RESPONDENT
Deputy Attorney General of Canada
[1] S.C. 2001, c. 27.
[2] SOR/2002 - 228.
[3] [2004] F.C.J. No. 2142 (QL).
[4] [2005] F.C.J. No. 237 (QL)