Date: 20040520
Docket: IMM-3248-03
Citation: 2004 FC 735
Ottawa, Ontario, May 20, 2004
Present: THE HONOURABLE MADAM JUSTICE GAUTHIER
BETWEEN:
MUTOBOLA VALENTIN KAMULETE
BRIGITTE MUTOBOLA
HAROLD MUTOBOLA
YANNICK MUTOBOLA
and
MUTOBOLA KAMULETE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Upon an application to judicially review the decision of the Refugee Protection Division (RPD) dated March 27, 2003, rejecting the claims of the applicants under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act);
[2] Upon reviewing the parties' written submissions, including their correspondence since the hearing, the evidence in the certified record including the transcript of the hearing and upon considering the oral submissions, including those made during a teleconference on April 13, 2004;
[3] Upon noting that Yannick Mutobola is 20 years old. He claims that his mother was a Tutsi who married a Congolese citizen, that both his parents were arrested at different times by the Congolese authorities and that they have never been heard of since. His claim is founded on his fear of persecution based on his ethnicity. Valentin Mutobola and his sister Brigitte are the brother and sister of Yannick's father. Harold and Kamulete are Valentin Mutobola's sons. They fear persecution based on their association with Tutsis. Mr. Mutobola alleges that apart from his family relationship with Yannick's mother, he was perceived by the Congolese authorities to be a "Tutsi or a Rwandan sympathizer". Brigitte Mutobola claims that she was harassed by the authorities because of her brothers. Valentin Mutobola also says that he was detained for several months in a cave until he was able to escape in October 2001 with the help of a friend. He came alone to Canada on March 27, 2002. At that time, Brigitte, Harold and Yannick were already in Canada since November 24, 2001. Kamulete Mutobola came by himself in early April 2002. Mr. Mutobola's wife, his other children, Brigitte's other children and Yannick's sisters are still in Congo.
[4] Upon considering that the main arguments of the applicants are that:
i) The RPD breached procedural fairness when it failed to give them an opportunity to comment on its concerns with respect to the authenticity of Valentin Mutobola's national driving license based on the RPD's examination of the original of this document which had been seized by the Immigration Officer at the border upon his arrival and which was not made available to their counsel. The applicants rely on the principle set out in Lawal v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 404 (C.A.) as applied in Afzal v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 708 (T.D), Sorogin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 630 (T.D.) (QL), Kuslitsky v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 787 (T.D.) (QL) and Zas Garcia v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 209 (T.D.) (QL).
ii) The RPD erred in finding that the applicants had failed to establish that there were actually in Congo between 1998 and 2001. In that respect, they submit that the RPD had no reason to disregard Valentin, Brigitte and Yannick's testimonies and it was wrong at law to require them to file documentary evidence to support that fact. Also, in coming to its conclusion, the RPD failed to consider the school record of Yannick Mutobola and the birth certificate of a child of Valentin Mutobola issued in July 2001 (date of birth April 20, 1998);
[5] The RPD failed to consider that Yannick's physical morphology marked him as a Tutsi. It is not necessary to review the other issues raised by the applicants with respect to the credibility and implausibility findings because the Court is satisfied that the decision should be set aside on the basis of other reviewable errors.
[6] Upon determining that as noted by the RPD, Yannick Mutobola did produce evidence establishing his presence in Congo in the relevant period. His claim was rejected on the basis that the RPD could not itself determine that he was a Tutsi by looking at him and he had not produced evidence to establish that he would be associated to Tutsis or considered as such. The Court accepts that the RPD could not take "judicial notice" of Mr. Mutobola's physical morphology but it had to consider his evidence that he has such physical features and that he has been considered as such when he was in Congo for example at school (see his PIF at paragraph 6). Yannick Mutobola's personal credibility was not challenged by the RPD and it is difficult to imagine what other evidence he could have produced to establish his ethnicity. The RPD did not give an example of the documentary evidence he could have produced and the respondent's counsel could not provide any at the hearing.
[7] Also, the RPD does not discuss the documentary evidence which expressly corroborates the applicant's testimony such as:
In areas controlled by the Kinshasa government, most members of the Tutsi ethnic group and those related to them (because they have a parent or grandparent of Tutsi origin) have been evacuated to other countries.
...
The HRW representative explained that morphology, place of residence, language and oral tradition are essential methods of identifying Tutsis and other people with relatives of Tutsi origin.
In terms of physical appearance, members of the Tutsi ethnic group are generally described as being, among other things, slim with pointy noses.
I find that Yannick's claim was simply not evaluated on the merits even though it was significantly different from that of the other claimants, especially when one considers the requirement under section 97 of the Act. In fact, it appears to have been rejected on the basis that his aunt's claim was not credible. This is not logical. This portion of the decision is patently unreasonable and Yannick Mutobola's claim will have to be redetermined by a different member of the RPD after a new hearing in order to ensure that it is properly assessed on its own merits.
[8] Upon concluding that with respect to the other applicants' claims, I am satisfied that the decision also contains a reviewable error.
[9] In its decision, the RPD clearly states on what basis it concluded that it could give no weight whatsoever to Mr. Kamulete's national driving licence. His year of birth was wrong. On page 2 of the document, the last numbers of 1998 and 2003 had visibly been altered and on page 4, it stated that it was renewed on November 2, 2001, while Mr. Kamulete testified that he left Congo on October 12, 2001 to seek refuge in Brazzaville. Each of these issues were discussed during the hearing and the claimants had the opportunity to comment, even after the hearing on the problems concerning this document. As indicated in the decision, the problem with the numbers on page 2 was very visible on the copy used during the hearing, even if it is also said to be even clearer on the original.
[10] The Court agrees with the applicant that as a general principle, no new information or document should be sought or used by the RPD unless it is properly introduced as evidence in the presence of the parties at a duly reconvened hearing, or exceptionally, without a hearing but with the parties' consent and after giving them a realistic opportunity to view the new evidence and comment on it.
[11] That being said, in the very particular circumstances of this case, which are distinguishable from those considered in the decisions referred to by the applicant, had this been the only error relied upon by the applicants, I would not have allowed the application. But, in view of the fact that the RPD committed another material error, I will take this opportunity to note that the RPD should be careful in the way it carries off-record investigations. If it does not already exist, a clear policy and guidelines should be put in place in that respect, and it should cover the consultation of original documents not available at the hearing.
[12] The RPD devoted a sizeable portion of its decision to the point that these claimants had not established that they were in Congo during the alleged period of persecution, particularly between 1998 and 2003. It clearly made an adverse credibility finding in that respect because these applicants had failed to produce better documentary evidence. Having set aside the national driving licence on the basis already explained, it noted that no recent school transcript had been produced for Harold and Kamulete and that it would have expected Valentin Kamulete and his sister to produce documentary evidence in respect to their work with the Congolese government. The RPD says that this evidence is of great importance and it goes on to explain why it does not accept the explanation given by Valentin Kamulete that he could not obtain it from a government from which he was hiding and seeking protection. The RPD states that this could not explain why Mr. Kamulete did not produce pay slips or other official documents relating to his nomination. There is no evidence that any such official document existed but in any event, the absence of supporting documentation cannot reflect adversely on the claimants' credibility unless there is some evidence on file contradicting their testimonies on this point (Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.), Selvakumaran v. Canada (Minister of Citizenship and Immigration), 2002 FCT 623, [2002] F.C.J. No. 842 (T.D.) (QL)).
[13] There is no contradictory evidence here and I am satisfied that this core finding constitutes a material error that vitiates the whole decision. I also note that on page 12 of the decision, the RPD also concludes that the absence of so many documents (which includes for example, a medical report corroborating that Valentin Kamulete was tortured during his detention) shows that the story was fabricated. Here again, the RPD put too much emphasis on the lack of supporting documents.
[14] The applicants submitted a question for certification with respect to the off-record examination of the original national driving licence. The Court finds that this is not a question of general interest because, among other things, the decision on this point turns on the particular facts of this case.
ORDER
THIS COURT ORDERS that:
the application for judicial review is allowed. The decision dated March 27, 2003 is set aside and the claims shall be redetermined by a differently constituted panel.
"Johanne Gauthier"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3248-03
STYLE OF CAUSE: MUTOBOLA VALENTIN KAMULETE
BRIGITTE MUTOBOLA
HAROLD MUTOBOLA
YANNICK MUTOBOLA and
MUTOBOLA KAMULETE v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 27, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MADAM
JUSTICE GAUTHIER
DATED: May 20, 2004
APPEARANCES:
Raoul Boulakia FOR THE APPLICANTS
Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Raoul Boulakia
Toronto, Ontario FOR THE APPLICANTS
Morris A. Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT