Date: 19991119
Docket: IMM-5979-98
Between:
AHAMAT ASSANE BAGEURI,
Plaintiff,
- and -
THE MINISTER,
Defendant.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board in which the panel concluded that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act ("the Act").1
[2] The plaintiff is a citizen of Chad. He alleged that he had a well-founded fear of persecution because of his membership in a particular social group, the family. Specifically, the plaintiff alleged he was the nephew of the late Abbias Kotty, formerly a leading political figure, who was Minister of Defence in 1991 and Minister of Transport in 1992. The latter got wind of his possible arrest and left the country for Libya. The plaintiff, who was living with his uncle, was arrested and held until August 1993 when he was released under an agreement signed by the government and the Kotty opposition forces.
[3] A few months after his return to Chad in 1993 his uncle was killed. The plaintiff was arrested at the time of this incident and released on August 16, 1996. He left Chad for Cameroon immediately and remained there until July 1997. As he was afraid he would be extradited to Chad he left Cameroon to come to Canada on July 19, 1997.
[4] It should be explained that the plaintiff's claim came before the panel on two occasions, January 19 and May 7, 1998.
[5] In support of his claim at the first hearing the plaintiff filed a school identity card and a copy of a birth certificate as proof of his identity. At the hearing the panel agreed to have the school card submitted to experts; it also gave the plaintiff until April 20, 1998 to file additional identity documents.
[6] Despite the arranged schedule, the panel rendered a decision on March 11, 1998 that the plaintiff was not a Convention refugee as there was no credible evidence regarding his identity. As the panel reached its decision before the end of the time allowed to the plaintiff to file additional documents, a re-hearing was scheduled for May 7, 1998.
[7] On May 4, 1998 the plaintiff filed a new birth certificate and two affidavits from Chad nationals who knew the plaintiff when he was living in Chad. At the hearing of May 7, 1998 the question of identity had not yet been resolved. The panel sought an expert opinion on the new certificate. This expert opinion concluded that it was a forgery.
[8] On July 6, 1998 counsel for the plaintiff submitted a new birth certificate issued by the Chad embassy in Washington. This certificate was regarded by the panel as a document of convenience. On September 30, 1998, as the evidence submitted by the plaintiff was not conclusive, the latter refused to grant the plaintiff refugee status.
[9] As regards this evidence, since certain documents proved to be false and the certificate from Washington was not very convincing, the panel could reasonably conclude simply on that basis that the plaintiff had not credibly demonstrated his identity.
[10] At the same time, the panel said nothing about important evidence directly related to the plaintiff's identity. The affidavits entered in the record confirming the plaintiff's identity were dismissed by the panel without explanation.
[11] It is worth recalling Iordanov v. Canada (M.E.I.),2 which made a distinction between various kinds of evidence, those specific to the claim and those which are documentary in nature.
| . . . it can be concluded that there are two types of evidence which can be presented at CRDD hearings: evidence which is specific to the applicant's claim and which corroborates the applicant's evidence and evidence which is general in form (documentary evidence) and does not specifically deal with the applicant's claim, but which generally deals with country conditions. The Court of Appeal has clearly established that the failure of the CRDD to consider the first type of evidence, and a failure to refer specifically to the first type of evidence in its reasons may vitiate the decision.3 |
[12] Accordingly, when evidence directly related to the plaintiff's claim and corroborating his testimony is in question, the panel must refer to it.
[13] As pointed out in Berete v. Minister of Citizenship and Immigration,4 "evaluation of the evidence is a matter within the panel's jurisdiction. However, the panel must first consider the record evidence and comment on it when it may have a serious impact on an applicant's claim. If the panel decides to disregard the evidence, it must clearly state the reasons why it placed no weight on it".5
[14] Similarly, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)6 Evans J. explained the nature of this duty of the panel: "the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts".7
[15] In the case at bar the affidavits corroborated the plaintiff's testimony regarding his identity. The panel had a duty to comment on this evidence and if it decided to disregard the evidence, the panel should have clearly indicated why.
[16] For these reasons, the application for judicial review is allowed. The matter is referred back for re-hearing before a panel of different members.
| Danièle Tremblay-Lamer Judge |
MONTRÉAL, QUEBEC
November 19, 1999
Certified true translation
Bernard Olivier, LL. B.
| FEDERAL COURT OF CANADA TRIAL DIVISION Date: 19991119 Docket: IMM-5979-98 Between: AHAMAT ASSANE BAGEURI, Plaintiff, AND THE MINISTER, Defendant. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-5979-98 |
| STYLE OF CAUSE: AHAMAT ASSANE BAGEURI, |
Plaintiff,
AND
THE MINISTER,
Defendant.
PLACE OF HEARING: Montréal, Quebec
| DATE OF HEARING: November 16, 1999 |
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: November 19, 1999
APPEARANCES:
| Claudia Gagon for the plaintiff |
| Simon Ruel for the defendant |
SOLICITORS OF RECORD:
| Claudia Gagnon for the plaintiff |
Montréal, Quebec
| Deputy Attorney General of Canada for the defendant |
Ottawa, Ontario
__________________3 Ibid, at para. 11. Note that the Court referred to Lai v. Canada (Minister of Employment and Immigration) (1991), 160 N.R. 156 (F.C.A.), in which the Federal Court Appeal Division reversed a decision by the CRDD on the ground that the latter did not take relevant evidence into account.
4 (March 3, 1999), IMM-1804-98 (F.C.T.D.).