Date: 20021118
Docket: IMM-525-02
Neutral citation: 2002 FCT 1191
Ottawa, Ontario, Monday, this 18th day of November, 2002.
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ALICE MBABAZI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated February 7, 2002, wherein the applicant was declared not to be a Convention refugee as defined in section 2 of the Immigration Act, R.S.C. 1985, c. I-2
[2] The applicant submits the Board's decision should be quashed and send the case sent back for redetermination for the following reasons:
- (a) the panel violated natural justice, or acted in a manner which was capricious, by failing to act consistently with the direction it gave to the applicant's counsel at the hearing;
- (b) the panel erred in law by failing to acknowledge or consider the applicant's ability to speak the local language of Rwanda, and in particular, her ability to speak that language in the manner of people living in the Rwandan border region near Uganda;
(d) the cumulative effect of the Board's errors have had an impact on the validity of its decision.
FACTS
[3] The applicant claims to be a citizen of Rwanda and to have a well-founded fear of persecution based on her membership in a particular social group, the Diaspora Tutsi. She was born in Rwanda, but in 1964, when she was just an infant, her parents fled to Uganda as refugees. Following the establishment of a Tutsi government in Rwanda in 1994, Tutsi refugees in Uganda were made to return to their country. The applicant returned to Muvumba, the area from which she originated, with her husband and her five children. She alleges that in Rwanda she was persecuted by local Tutsis and Hutus. The local Tutsis blamed the returnees for the war and the Hutus threatened to kill her if she did not leave Rwanda.
[4] The Board determined that the applicant was not a Convention refugee. The panel concluded the applicant was not from Rwanda, although it could not come to a determination as to the applicant's country of origin. The panel did not give any probative weight to the documents submitted by the applicant as proof of her Rwandan citizenship and found her testimony concerning these documents and how she allegedly obtained them in Rwanda not credible. On this basis the panel determined the claimant did not have a well-founded fear or persecution. The Court is not in a position to second guess the panel on whether these documents are fake. In plain English, the panel, after assessing the several documents to establish identity and the viva voce evidence, concluded that the documents were fake.
STANDARD OF REVIEW
[5] This case involves issues of natural justice, the failure of the Board to consider all of the evidence and its evaluation of the authenticity of the applicant's identity documents.
[6] The appropriate standard when reviewing the Board's alleged failure to consider all of the evidence is found in paragraph 18.1(4)(d) of the Federal Court Act. It is whether the Board "based its decision . . . on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it".
[7] Mr. Justice Cullen's decision in Adar v. Canada (Minister of Citizenship and Immigration), (1997) 132 F.T.R. 35 addresses the standard of review in cases where the authenticity of documents is in question. He stated at para. 15:
In Sivasamboo v. M.C.I., [1995] 1 F.C. 741, Mr. Justice Richard found that the Board is an expert tribunal. Thus, the standard of review of the Board on findings of fact is patent unreasonableness [as agreed with by this Court in De Connick v. M.C.I. (1996), 110 F.T.R. 207; Chen v. M.C.I. (1995) 102 F.T.R. 203; Acosta v. Canada, IMM-805-95 (September 28, 1995), [1995] F.C.J. No. 1291]. In terms of determining the validity of passports and other identity documents, this standard is underscored. The Board has all of the expert evidence before it as well as the documents themselves. It assesses the credibility of witness's testimony and weighs it accordingly. It is not necessary for the tribunal to address each and every document before it. However, the tribunal must, nevertheless, justify its conclusions with appropriate reference to the evidence before it.
This Court has also used the standard of patent unreasonableness for reviewing findings of the Board dealing with the authenticity of documents in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2002 FCT 162 at paras. 11-13.
ANALYSIS
(A) Natural Justice
[8] The strategy of the applicant's counsel before the Board was to establish the applicant had to be either Ugandan or Rwandan based on the language she spoke, and then disprove she was Ugandan. To do so, the applicant's counsel wrote to the High Commission of Uganda, asking it to confirm whether she was a citizen of Uganda and whether she was entitled as of right to Ugandan citizenship. The High Commission's three-line reply did not indicate whether the applicant was a
citizen, but did include a photocopy of the Citizenship provisions of the Ugandan Constitution. A review of the provisions indicates that if one accepts the applicant's story, she is not entitled to Ugandan citizenship. At the hearing, the panel indicated it was not satisfied with this evidence because counsel's letter was worded in manner that would have lead the High Commission to believe the applicant was not a Ugandan citizen.
[9] The possibility of asking the Ugandan High Commission a second time was discussed at the hearing and can be found at pp. 336-337 of the Record:
Counsel: I mean the question could be put again to them more bluntly or in a simpler letter.
Presiding Member: And how would you (inaudible) ?
Counsel: By fax.
Presiding Member: No, no, but how? (Inaudible) ?
Counsel: Like to say if the Board wanted it, to say can you check and see if she's a citizen of Uganda.
Presiding Member: Okay. How would they check (inaudible) ?
Counsel: Well, don't they have records of birth in Uganda?
Presiding Member: I guess.
Counsel: Perhaps.
Presiding Member: Let me think on it and if I want that I'll let you know.
Counsel: All right.
Presiding Member: Because I don't like asking for impossible things, but at the same time I will think this through, okay? Madam, we've come to the end of your hearing. We're finished today.
[10] The applicant's counsel argues that this exchange had the effect of discouraging him from making any more efforts on this issue. He waited for further instructions from the Board that never came. Instead, the Board issued a negative decision. The applicant submits the panel violated natural
justice by indicating one course of action, relied upon by the applicant and her counsel, and then failing to follow it. This violates natural justice, as stated in Velauthar v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 425 (C.A.) (QL).
[11] The Court finds the panel did not violate natural justice or act in a capricious manner. The panel did not undertake to conduct a further inquiry of the Ugandan High Commission. The panel member stated: "Let me think on it and if I want that I'll let you know." The use of the word "if" demonstrates the panel was indicating that it might undertake a further inquiry, not that it would do so. It also demonstrates that the panel undertook to inform counsel of its decision only if it felt a further inquiry was needed.
(B) The applicant's ability to speak the local language of Rwanda
[12] At the outset of the hearing, the Board's interpreter spoke with the applicant off the record to verify that they understood each other. He told the Board that the applicant speaks Kinyarwandan mixed with Swahili, which he stated is typical for people from the region of Rwanda near the Ugandan border. The applicant's counsel wanted to rely on this comment, but the Board would not allow the interpreter to be a witness. The applicant submits the Board erred by failing to consider the interpreter's comments and the applicant's ability to testify in Kinyarwandan, a language which is completely local to Rwanda. The applicant relies on this Court's decision in Chehar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1379 (T.D.)(QL) as authority for the proposition that the applicant's ability to testify in a language is part of the evidence on record at the hearing.
[13] The Board did not deny the applicant natural justice by not calling the interpreter as a witness. First, there is no evidence on the record that such a request was made. If the request was made off the record and denied, counsel should have taken steps to have the request included in the record. Second, under the Rule 21 of the Convention Refugee Determination Division Rules, SOR/93-45,any party wishing to call an expert witness must file at the registry and serve on every party a report on the qualifications and expected testimony of the expert witness. The applicant did not follow this procedure and the panel was entitled not to allow the interpreter to appear as a witness. If counsel for the applicant felt it was vital to the applicant's case to establish she spoke like people in the region of Rwanda near the Ugandan border, he should have called an expert witness to testify on this matter.
[14] The applicant argues the Board's failure to consider the interpreter's comment is a reviewable error. The Court disagrees. As the interpreter was not called as a witness before the Board, his comments were not a part of the evidence before the panel.
[15] Nor did the Board err by failing to consider the applicant's ability to testify in Kinyarwandan. As established in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), the Board is not required to refer to every piece of evidence and explain how it was dealt with. The applicant's ability to speak Kinyarwandan, which she admitted in her Personal Information Form is poor because she grew up in Uganda, is simply not sufficient to make a finding the applicant is Rwandan in the absence of any corroborating documentary evidence.
(C) Documentary evidence
[16] The applicant's identity documents contain a number of flaws. The applicant submits the Board erred by ignoring justifications given by the applicant for the perceived flaws in her identity documents, or erred in fact in its reading of those documents. There were five pieces of documentary evidence before the Board.
[17] The first was the applicant's identity card, which contains a number of grammatical errors and does not list the applicant's husband as required by Rwandan civic regulations. The Board concluded the card was not authentic and the applicant's husband did not exist. The applicant has failed to make any satisfactory submissions explaining the errors on the card. Accordingly, there is no basis for this Court to question the Board's finding the card was not authentic. The Board's finding the applicant's husband does not exist is also reasonable. The applicant claims her husband is not listed because the marriage was a customary one. When the panel member informed counsel that customary marriages are recognized, at p.332 of the Record, counsel could give no other explanation as to why the applicant's husband was not included on her identity card.
[18] The second identity document was the applicant's Rwandan driver's license, issued in Kigali on July 5, 1997. The panel felt it was implausible the applicant took driving lessons given her life of poverty and subsistence living. The applicant argues the Board erred by imposing Canadian values on Rwanda assuming that the applicant had to take driving lessons to get a driver's license. The transcript indicates at pp. 284-286 and 299-300 of the Record that the applicant testified she had taken driving lessons, which were paid for by a friend with a car and who promised to lend it to the applicant. The Board was not imposing Canadian values on Rwanda.
[19] The third identity document was a testimonial of good conduct allegedly issued by the applicant's commune of Muvumba. The Board concluded at p. 5 of its reasons:
As for the testimonial of good conduct allegedly issued by the claimant's commune of Muvumba, it too appears to have been fabricated for the occasion. The letter bears no date, and the stamp has on it "Commune Muvumba" and "Prefecture de Kigali." The fake aspect of that letter is quite visible. First of all, there are two prefectures for Kigali: Kigali Rural and Kigali Ville. Furthermore, as noted above, Muvumba is not in either of those Prefectures, a fact that an official from that commune would certainly know. The panel thus finds that the letter is another fabricated document.
The applicant argues the document does not state that Muvumba is in the district of Kigali as the word Kigali does not appear in it. The applicant's argument is misdirected. The panel member conclusion was based on the stamp on the document, which includes the words "Commune Muvumba" and "Prefecture de la Ville de Kigali", not the text of the letter. The panel did err by concluding the stamp did not refer to either of the prefectures for Kigali; however, as Muvumba is located in the Umutara prefecture, not in the Prefecture de la Ville de Kigali, the error is immaterial. The panel's finding was not patently unreasonable.
[20] The fourth piece of documentary evidence was the applicant's primary school record from Namungo, Uganda, dated 1978. The document has been folded but otherwise was in good condition. It was rejected because the Board did not believe the applicant was able to preserve the document in such good condition. She had testified that she always carried it with her, even when she worked in the fields. The applicant argues the Board failed to realize she carried this document in a large pouch underneath an African dress, which is not the same as a pocket in Western pants. The Board had an opportunity to examine the condition of the documents and was provided with a full explanation on how the applicant carried these documents, see p. 298 of the Record. This Court does not find sufficient grounds to interfere with the Board's finding on this point.
[21] The final identity document was a testimonial from the applicant's church in Rwanda, called St. Famille Church. The Board concluded the letter was written by someone fluent in English, but not French, because the letter was written in English. In addition, the name of the church is a peculiar mix of English and French, a discrepancy that could not be explained by the applicant. It is submitted by the applicant that the panel acted unreasonably because in the area in which the church is located, people speak English, French, Kinyarwandan and Swahili, and the mixing of languages is not unusual. The Court finds the Board did act unreasonably in rejecting the letter. The Court fails to see how the fact it was written by someone fluent in English but not French is relevant to its authenticity given the milieu of languages spoken in that area of Rwanda.
(D) Validity of the Board's decision
[22] The only patently unreasonable error made by the Board was its unreasonable rejection of the testimonial from the applicant's church. The Court finds that the error was inconsequential. Inconsequential errors are insufficient cause to overturn a tribunal's decision, see Khorasani v. Canada (Minister of Citizenship and Immigration), 2002 FCT 936. It was reasonably open to the Board to conclude the applicant was not from Rwanda based on its findings of inauthenticity of her other identity documents. As the panel did not make any reversible errors, the Court declines to interfere with the Board's decision.
ORDER
IT IS HEREBY ORDERED THAT:
For these reasons, the Court finds that the Board acted reasonably in dismissing the applicant's claim for refugee status. This application for judicial review is denied. Neither counsel proposed a question for certification. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-525-02
STYLE OF CAUSE: ALICE MBABAZI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, NOVEMBER 5, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: MONDAY, NOVEMBER 18, 2002
APPEARANCES BY: Mr. Raoul S. Boulakia
For the Applicant
Ms Catherine Vasilaros
For the Respondent
SOLICITORS OF RECORD: Mr. Raoul S. Boulakia
Barrister & Solicitor
45 Saint Nicholas St
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021118
Docket: IMM-525-02
BETWEEN:
ALICE MBABAZI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER