Date: 20030129
Docket: IMM-4079-01
Montréal, Quebec, January 29, 2003
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
TSHISOLA KANYINDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
For reasons expressed orally, this application for judicial review is allowed, the panel's decision is set aside and the review of the abandonment by the applicant shall be initiated by a differently constituted panel.
"François Lemieux"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030129
Docket: IMM-4079-01
Neutral Citation: 2003 FCT 96
BETWEEN:
TSHISOLA KANYINDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
[1] I repeat in writing the reasons I expressed orally in allowing this application for judicial review.
[2] The issue before the Refugee Division (the panel) was whether Mr. Kanyinda had abandoned his claim for recognition as a refugee. On January 26, 2001, after a three-hour hearing in the morning on the merit of his claim, the claimant failed to appear before the panel for the continuation of the hearing in the afternoon.
[3] The panel initiated the abandonment process. The claimant appeared with his new counsel and gave his explanations.
[4] The panel concluded that the claimant had abandoned his claim. It said the claimant was not diligently prosecuting his claim in accordance with subsection 69.1(6) of the Immigration Act (the Act).
[5] "During his explanations", the panel writes, "the claimant mentioned his fear and emotional sensitivity due to his high blood pressure." It draws the following conclusion:
The claimant was not credible when he stated that he was taking medication for high blood pressure. The 30 tablets prescribed in March 2000 only lasted 30 days, since he acknowledged that he was taking one tablet a day.
The claimant changed his evidence when he stated that the day before his hearing he took his remaining tablet, whereas he had claimed that he was taking one tablet a day. If he had taken his tablets as he claimed, his medication would have been finished in April 2000. It is unlikely that nine months later, he would still have one tablet left.
By not continuing to take his medication during the following nine months, the claimant showed that his high blood pressure was not as serious as he claimed and that it was under control. The claimant contradicted himself on this point, by stating that he panicked often. If his panic spells were due to high blood pressure as he claimed, he would have had to continue his medication and consult the doctor during those nine months, and not after his hearing.
[6] The panel was of the "view that invoking high blood pressure as the reason for his emotional state and behaviour is a fabrication of evidence to justify his refusal to continue with his hearing" and that "[t]he issue of his state of tension was an alibi to justify his refusal to pursue his claim" and "that high blood pressure was a ready-made reason to explain his behaviour".
[7] Counsel for the applicant has proved to me that the panel 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 (see paragraph 18.1(4)(d) of the Federal Court Act).
[8] It is clear that the panel misconstrued the evidence when it found that "[t]he 30 tablets prescribed in March 2000 only lasted 30 days...." The record shows (Certified Record of the panel, p. 31) that it is since March 29, 2000, that he has been treated for high blood pressure. This information is found in a memorandum dated February 14, 2001, by Dr. Dong-Ky La. Moreover, the record establishes that the claimant renewed his prescription on December 12, 2000, (Panel Record, pages 32 and 33).
[9] This misunderstanding of the evidence led the panel to conclude that the claimant had stopped taking his medication for the following nine months and that his high blood pressure was not serious. The panel accordingly found that the applicant was not credible and that he had invented his high blood pressure in order to falsely justify his absence in the afternoon of January 26, 2001.
[10] This error by the panel, as can readily be seen, is central to its decision finding that the applicant had abandoned his claim.
[11] Counsel for the applicant [sic] made a valiant effort to save this wrong decision by referring to a number of items of evidence that might have justified the panel's decision. In other words, he asked me to write a decision different from the one rendered by the panel.
[12] In Ye v. Minister of Citizenship and Immigration (A-711-90, June 24, 1992), the Court of Appeal rejected this approach.
The respondent attempted to defend these reasons of the Board on the basis of evidence other than that relied on by the Board itself. By way of comment, I can do no better than to echo the words of Mahoney J.A. in Owusu-Ansah v. M.E.I. (1989), 8 Imm. L.R. (2d) 106, at 113 (F.C.A.) that: "if there were any other grounds for disbelieving the Applicant ... they were thought to be of less significance than those catalogued."
[13] Mr. Justice Hugessen, then a judge of the Federal Court of Appeal, in Tagari v. Minister of Employment and Immigration (A-353-91, June 20, 1994) wrote that "if the reasons given by the Board cannot be rationally supported, it is not for this Court to find others." Madam Justice Reed, in Su v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 70, was of the same opinion when she wrote "but the Board did not base its decision on that analysis of the evidence and I am not prepared to independently go down that path and supplant the Board's decision. My job is to review the Board's decision on the basis it was given."
[14] For these reasons, this application for judicial review is allowed, the panel's decision is set aside and the review of the abandonment by the applicant shall be initiated by a differently constituted panel. There is no question to certify.
"François Lemieux"
Judge
Montréal, Quebec
January 29, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030129
Docket: IMM-4079-01
Between:
TSHISOLA KANYINDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4079-01
STYLE: TSHISOLA KANYINDA
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 28, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: January 29, 2003
APPEARANCES:
Jean-Michel Montbriand FOR THE APPLICANT
Guy M. Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon, Guertin, Plamondon & Montbriand FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec