Ottawa, Ontario, January 31, 2005
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
AUGUSTIN MBOUKO
ROLANDE ANNIE MBOUKO
ELVIRA CHANTAL MBOUKO
AUGUSTANIE LUDM MBOUKO
Respondents
REASONS FOR ORDER AND ORDER
BACKGROUND
[1] The Minister of Citizenship and Immigration (the Minister) is asking this Court to set aside the decision of the Refugee Protection Division (the panel) dated February 16, 2004, that (1) the Mbouko family, citizens of the Central African Republic (the CAR), are Convention refugees, (2) they are refugees sur place, (3) the Minister did not meet the burden of proving that Mr. Mbouko should be excluded under Article 1F(b) of the former Immigration Act (serious non-political crime) and (4) the incidents that occurred in the CAR in 2003 do not correspond to a change in circumstances that is significant enough to remove the reasonableness of the fear alleged.
[2] According to the Minister, there is only one reason why the panel’s decision should be overturned. Referring to new legislation concerning the obligation to provide written reasons (subsection 61(3) of the Refugee Protection Division Rules) and to the Federal Court of Appeal in Mehterian v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 545, the Minister submits that the panel erred in law: it breached the principles of procedural fairness and natural justice by providing insufficient and inadequate reasons in reaching its decision.
[3] The refugee claim was heard on April 5, 2002, September 17, 2002, November 13, 2002, and February 26, 2003. As indicated above, the panel’s decision was handed down on February 16, 2004.
[4] The principal claimant is afraid of being persecuted by the CAR, because, he says, a plot was mounted against him owing to his political opinions (membership in the opposition party, the Rassemblement démocratique centrafricain [RDC], and his support of the RDC during the 1999 elections) and his Yakoma ethnicity.
[5] He fled the CAR in February 2000 and went to Cameroon, where he applied for a Canadian visa, which was denied. In August 2000, he was in the United States, and five weeks later, in Canada.
[6] The plot consisted in a fraud charge laid on January 27, 2000, for making and uttering false documents, aiding and abetting in customs fraud and false pretences, and in a national and international arrest warrant issued by the Senior Examining Magistrate of the CAR.
[7] The offences were related to the sale of oil to Zongo Oil by PETROCA, for which Mr. Mbouko worked as Assistant to the Marketing Director. The oil was sold tax free because it was intended for export, but instead Zongo Oil resold it fraudulently on the domestic market including tax, from which the politicians in power profited. Zongo Oil was headed at the time by Sani Yalo, President Patassé’s son-in-law.
[8] The panel’s analysis takes up only one of several pages of the decision. The entire analysis is reproduced below.
ANALYSIS
After analysing all of the evidence, both the testimony and the documentary evidence, the panel has concluded that the adult claimants and their children are “Convention refugees” for the following reasons.
In the panel’s opinion, the testimony of the principal claimant was credible. The claimant established that he had worked as an executive at PETROCA and that, because of his membership in the Yakoma ethnic group and the RDC party, he had been “scapegoated” for a fraud. The claimant’s allegations are confirmed by the numerous personal documents filed in evidence.
The Minister’s representative failed to meet her burden of proving that the claimant should be excluded under paragraph 1F(b), since no evidence was adduced that established a serious reason to believe that the claimant had participated in the fraud of which he was accused.
Furthermore, in view of the breach of confidentiality with respect to identifying information from the file of a refugee protection claimant, the four claimants became refugees “sur place” under paragraphs 94 to 96 of the UNHCR Handbook.
Someone from the Canadian Embassy, seeking information about the claimant, Mr. Mbouko, (Exhibit M-10), met with the Attorney General of the Central African Republic, a country with limited freedom of expression, since it was led at the time by President Patassé, although the case was criminal in nature and involved the President of the Republic.
Finally, the testimony of the adult claimants is consistent with the extensive documentary evidence filed in this case, which does not disclose any fundamental and durable change in the political situation in the CAR.
The panel determines that the two adult claimants and their children have established that they would face a “reasonable chance” of persecution within the meaning of Adjei, if they were to return to the Central African Republic
[Emphasis added.]
[9] Subsection 61(3) of the new Refugee Protection Division Rules, a provision that was not included in the former immigration framework, reads as follows:
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(3) If the reasons of the Division indicate that it has allowed a claim for refugee protection after determining that sections E or F of Article 1 of the Refugee Convention do not apply, the Division must provide the notice of decision and written reasons for the decision to the claimant and the Minister. [Emphasis added.] |
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(3) Dans le cas où elle indique dans les motifs de sa décision qu’elle accueille la demande d’asile après avoir conclu que les sections E ou F de ‘article premier de la Convention sur les réfugiés ne s’appliquent pas, la Section transmet au demandeur d’asile et au ministre, avec l’avis de décision, les motifs écrits de la décision. [je souligne] |
1) Principles
[10] The crux of Mehterian, supra, is summarized in the following two paragraphs of the decision of Hugessen J.A.:
Subsection 69.1(11) of the Immigration Act [R.S.C. 1985, c. 1-2.] requires that the Refugee Division "give written reasons" for any decision against the claimant. If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary.
We are all of the opinion that the reasons given by the Refugee Division in this case do not meet these criteria. Stating that the claimant "did not prove the existence of the reasonable fear of persecution", without saying any more, may mean that the panel did not believe the claimant, or that it believed him but that the reasons for the alleged persecution do not fall within the reasons listed in the Act, or that the reasonable fear which existed in the past is no longer reasonable because of changed circumstances in the country of origin. There are several other possibilities, inter alia that the Refugee Division interpreted the Act itself badly.
[Emphasis added.]
[11] Case law defines the circumstances in which sufficient reasons must be provided to enable individuals to understand why their claims failed and determine whether they should appeal.
[12] I quote Martineau J. in Canada (Minister of Citizenship and Immigration) v. Koriagin, 2003 FC 1210, at paragraphs 5, 6 and 7:
¶ 5 To fulfil the obligation under paragraph 69.1(11)(b) of the Act, the reasons must be sufficiently clear, precise and intelligible to allow the Minister or the person making the claim to understand the grounds on which the decision is based and, where applicable should the decision be appealed, to allow the Court to satisfy itself that the Refugee Division exercised its jurisdiction in accordance with the Act. See inter alia: Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.) (QL); Minister of Citizenship and Immigration v. Roitman, [2001] F.C.J. No. 718 (F.C.T.D.) (QL); Zannat v. Minister of Citizenship and Immigration (2000), 188 F.T.R. 148; Zoga v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1253 (F.C.T.D.) (QL); Khan v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1187 (F.C.T.D.) (QL).
¶ 6 A determination that there is a reasonable fear of persecution based on one of the grounds listed in the Convention raises a question of mixed fact and law. In Chan v. Canada (Minister of Employment and Immigration), [1995] 187 N.R. 321, the Supreme Court of Canada reaffirmed that a refugee claimant has the burden of proof in establishing a well-founded fear of persecution. Clearly, this determination calls for a careful analysis of the claimant's testimony and of the documentary evidence concerning the conditions in the country. When written reasons are required, it is not sufficient to state that the determination in the affirmative is based on the evidence without further explanation.
¶ 7 The subjective fear of the claimant must always be assessed. When the evidence shows that the claimant did not take advantage of the first opportunity to claim refugee status this could compromise his claim under certain circumstances. Although this consideration is not determinative in itself, it is relevant in assessing the claimant's credibility: Gavryushenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1209 (QL); Ilie v. Minister of Citizenship and Immigration (1994), 88 F.T.R. 220; Huerta v. Minister of Employment and Immigration, [1993] 157 N.R. 225, paragraph 4 (F.C.A.).
[13] I also refer to Layden-Stevenson J. in Liang v. Canada (Minister of Citizenship and Immigration), 2003 FC 1501:
It is important not to lose sight of the purpose of reasons. In Li v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 413 (T.D.), Mr. Justice Teitelbaum, citing Syed v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283 (T.D.), stated:
The function of written reasons is to allow an individual adversely affected by an administrative tribunal's decision to know the underlying rationale for the decision. To that end, the reasons must be proper, adequate and intelligible and must give consideration to the substantial points of argument raised by the parties ... The Refugee Division is obligated, at the very least, to comment on the evidence adduced by the applicant at the hearing. If that evidence is accepted or rejected, the applicant should be advised of the reasons why.
At the same time, the reasons are not to be read microscopically and held to a standard of perfection. They must be read as a whole: Medina v. Canada (Minister of Employment and Immigration) (1990), 120 N.R. 385 (F.C.A.); Ahmed v. Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221 (F.C.A.).
[14] Although the decision of Evans J., as he then was, in Cepada-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, dealt with whether a panel had failed to consider the evidence before it, I feel it is still relevant in this case:
¶ 15 The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
¶ 16 On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
¶ 17 However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[15] The notion of adequate reasons has been raised a number of times before the Supreme Court of Canada, albeit in a criminal context. I nevertheless feel that it can also be useful in an immigration case and provide guidance with respect to the specific issue before me.
[16] I quote paragraph 46 of Binnie J.’s reasons in R. v. Sheppard, 2002 SCC 26:
¶ 46 These
cases make it clear, I think, that the duty to give reasons, where it exists,
arises out of the circumstances of a particular case. Where it is plain from
the record why an accused has been convicted or acquitted, and the absence or
inadequacy of reasons provides no significant impediment to the exercise of the
right of appeal, the appeal court will not on that account intervene. On the
other hand, where the path taken by the trial judge through confused or
conflicting evidence is not at all apparent, or there are difficult issues of
law that need to be confronted but which the trial judge has circumnavigated
without explanation, or where (as here) there are conflicting theories for why
the trial judge might have decided as he or she did, at least some of which
would clearly constitute reversible error, the appeal court may in some cases
consider itself unable to give effect to the statutory right of appeal. In
such a case, one or other of the parties may question the correctness of the
result, but will wrongly have been deprived by the absence or inadequacy of
reasons of the opportunity to have the trial verdict properly scrutinized on
appeal. In such a case, even if the record discloses evidence that on one view
could support a reasonable verdict, the deficiencies in the reasons may amount
to an error of law and justify appellate intervention. It will be for the
appeal court to determine whether, in a particular case, the deficiency in the
reasons precludes it from properly carrying out its appellate function.
[Emphasis added.]
[17] In a recent decision by the Court of Appeal for Ontario, R. v. Brown (2002), 61, O.R. (3d) 619, Catzman J.A. quashed the trial decision because the reasons “neither advanced the accused’s understanding of the reasons for his conviction (beyond the blanket rejection of his testimony and the unenlightening reference to the ‘accumulation of evidence’), nor did they facilitate meaningful appellate review of the correctness of the decision”.
2) The standard of review
[18] With respect to the standard of review, Layden-Stevenson J. in Liang, supra, sums up my line of thinking in paragraph 9 of her reasons:
¶ 9 The standard of review for findings of fact made by the CRDD is set out in paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, C. F-7, as amended. Findings of fact can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division. This standard is the same as that of patent unreasonableness. Findings that apply the law to the facts of the case can be reviewed only if they are unreasonable. Insofar as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous: Harb v. Canada (Minister of Citizenship and Immigration) (2003), 302 N.R. 178 (F.C.A.). Questions of law are reviewable on a standard of correctness: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (Pushpanathan).
3) Conclusions
[19] Counsel for the claimants argues that the panel’s decision is well reasoned and, to convince me, discussed the testimonial and documentary evidence by referring to the panel’s record.
[20] In his view, the evidence supports the scapegoat theory, according to which the President of the CAR and PETROCA executives covered up their participation in the customs fraud by falsely charging, with the help of magistrates, lower management of the oil company. He submits that nothing in the record contradicts Mr. Mbouko, who must be presumed to have told the truth.
[21] According to counsel for the respondents, the Minister failed to prove that Mr. Mbouko should be excluded, because the only evidence he filed was the indictment.
[22] In addition, the principal claimant explained why he delayed coming to Canada.
[23] Finally, the documentary evidence shows that changes in the CAR are tenuous.
[24] In my view, some evidentiary elements undeniably support the claimants’ story.
[25] Nevertheless, as counsel for the Minister claims, there is some contradictory evidence, and he contends that the panel did not analyse and weigh the evidence as a whole. It is important, counsel argues, to realize that my duty is not to decide whether the panel’s findings are justified or whether the claimants should be granted refugee status. The issue is limited to determining whether the panel’s reasons are sufficient.
[26] In my opinion, the Minister had several grounds on which he could argue that the panel’s reasons were insufficient, constituting an error in law.
[27] First, the panel issues a finding of credibility without mentioning evidence that, in my view, undermined the principal claimant’s credibility:
1. Contradictory evidence about when he stopped working for PETROCA;
2. His testimony concerning his salary and the sums of money in the bank statements he submitted to the Canadian Embassy in support of his visa application;
3. The plausibility of his testimony concerning his arrest, charges and flight;
4. The fact that two of his colleagues who had been arrested with him were not subsequently released;
5. The credibility of his story about his five-week stay in the United States.
[28] With respect to this last point, I refer to paragraphs 15 and 16 of Nadon J.’s decision in Canada (Minister of Citizenship and Immigration) v. Roitman, 2001 FCT 462:
¶ 15 Another error made by Mr. Choquette, in my view, concerns his conclusion about the defendants' credibility. At p. 2 of his reasons Mr. Choquette said the following:
[TRANSLATION]
At the outset the tribunal has no hesitation in saying that the account, given primarily by the female claimant, of the personal injuries inflicted on the minor child is essentially confirmed by him and is fundamentally honest and credible.
¶ 16 There is nothing else in Mr. Choquette's reasons regarding the defendants' credibility. There were several points in evidence before the Refugee Division which could have affected their credibility. This can be seen simply from reading the dissenting reasons of Mr. Handfield on the following points: the fact that the claimants did not claim refugee status while they were staying in Ireland, Holland and possibly France; the fact that the defendant indicated in her PIF that all members of her family, except for her, had remained in Moldavia, while she testified viva voce that her sisters Irina and Anna and her mother were also living in Israel; the fact that the defendant Alexander could not give the name of the town where he had lived in Israel; and the fact that the defendant could not remember the name of the school where she had registered her son in September 1999.
[29] Second, the panel did not carry out an analysis of the coup d’état in 2003 in the CAR against President Patassé, who was deposed. Furthermore, it did not rule on how the coup could have eliminated the fear of the principal claimant or his wife, who is a cousin of the son of the CAR’s former president, the leader of the RDC, who returned from exile and is now a member of the Council of Ministers and has been restored to his rank of Lieutenant General.
[30] Third, the panel is silent and does not refer to any evidence with respect to the probative value of the international warrant the CAR’s judicial authorities issued for Mr. Mbouko’s arrest. The panel does not refer to any evidence in support of its finding that Mr. Mbouko was made a scapegoat for a fraud.
[31] Fourth, the panel found that the claimants were refugees sur place, simply because somebody from the Canadian Embassy met with the CAR’s Attorney General to obtain information about the principal claimant.
[32] In this regard, paragraph 96 of the Handbook on Procedures and Criteria for Determining Refugee Status, published by the United Nations Commissioner for Refugees, indicates that:
96. A person may become a refugee “sur place” as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.
[33] The panel did not analyse this matter. Some of the evidence indicates that the CAR authorities were aware the principal claimant had fled the country and knew his whereabouts.
[34] I refer to McGillis J. in Igbinosun v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1705, in which she states the following at paragraph 6:
¶ 6 In the present case, the evidence establishes that the identity of the applicant was disclosed to Nigerian police officials to determine whether he had been charged with the offence of murder. There is no evidence to indicate that any confidential information given by the applicant in his personal information form was disclosed. The objection to the admissibility of the telex on the basis that the Privacy Act was violated has been advanced in the absence of a proper evidentiary framework and, as a result, must be rejected. Alternatively, even if Canadian officials did provide confidential information from the applicant to the Nigerian police, the disclosure was made for the purpose of permitting the Minister to formulate an opinion as to whether the claim of the applicant raised a matter within the exclusionary provision in subsection F(b) of Article 1 of the Convention. [See subparagraph 69.1(5)(a)(ii) of the Immigration Act.] Since the applicant provided the information for immigration purposes, its use, if any, by the Minister or his representatives was clearly "for a use consistent with that purpose" within the meaning of paragraph 8(2)(a) of the Privacy Act. [See also Rahman v. M.E.I., decision dated June 10, 1994, F.C.T.D., No. IMM-2078-93].
[Emphasis added.]
[35] Fifth, the panel did not indicate which evidence served as a basis in finding that “no evidence was adduced that established a serious reason to believe that the claimant had participated in the fraud of which he was accused”.
[36] The panel does not in any way address the applicable standard of review, which is neither “beyond a reasonable doubt” nor “on a balance of probabilities,” but, rather, the lower standard of “serious possibility based on credible evidence”.
ORDER
THE COURT ORDERS that:
For these reasons, the application for judicial review is allowed, the panel’s decision set aside and the matter referred for rehearing by a differently constituted panel. The parties have one week to submit questions for certification, with a right of reply within five business days following the date on which the proposed questions are received.
J u d g e
Certified true translation
Jason Oettel
SOLICITORS OF RECORD
STYLE OF CAUSE: MCI v. AUGUSTIN MBOUKO ET AL
DATE OF HEARING: January 10, 2005
REASONS FOR ORDER BY: The Honourable Mr. Justice Lemieux
APPEARANCES:
SOLICITORS OF RECORD:
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