Date: 20030226
Docket: IMM-1327-02
Ottawa, Ontario, February 26, 2003
Before: Pinard J.
Between:
Jeannine HAKIZIMANA
and
Cédric BICAMUMPAKA
and
Astrid BICAMUMPAKA SHEMA
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION (M.C.I.)
Defendant
ORDER
The application for judicial review made by the plaintiffs Jeannine Hakizimana and Astrid Bicamumpaka Shema is dismissed.
The application for judicial review made by the plaintiff Cédric Bicamumpaka is allowed and the case referred back to the Immigration and Refugee Board for re-hearing before a panel of different members.
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"Yvon Pinard" Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030226
Docket: IMM-1327-02
Neutral citation: 2003 FCT 223
Between:
Jeannine HAKIZIMANA
and
Cédric BICAMUMPAKA
and
Astrid BICAMUMPAKA SHEMA
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION (M.C.I.)
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on March 12, 2002, denying the plaintiffs the refugee status claimed under the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The principal female plaintiff, Jeannine Hakizimana, alleged a well-founded fear of persecution in her country of origin, Rwanda, on account of her race, namely her membership in the Hutu ethnic group, and her alleged political opinions. Her minor children, Astrid Bicamumpaka Shema ("Astrid") and Cédric Bicamumpaka ("Cédric"), based their claims on hers. Astrid is a national of Rwanda and Cédric has dual Rwandan and Belgian nationality.
[3] The female plaintiff's husband was arrested in Cameroon and is currently being held awaiting trial before the International Criminal Tribunal for Rwanda for war crimes and crimes against humanity.
[4] The IRB divided its decision into two parts, dealing with the case of Cédric separately from that of the female plaintiff and Astrid.
[5] The IRB found that as Cédric had Belgium nationality he benefited from the protection that any Belgian national could have in Belgium and so could not claim Canada's protection.
[6] The IRB found that the principal plaintiff and Astrid were persons excluded from the scope of the 1951 Convention under section 1(E) of the schedule to the Act. It gave the following grounds in support of its decision:
- before going to Cameroon the plaintiffs, who left Rwanda in April 1994, passed through Zaire, where they stayed until January 1997, and through the Congo, where they stayed until June 1997;
- the plaintiff obtained a provisional Cameroon residency card, which subsequently became temporary, and which was equivalent to a residence permit;
- the four tests stated in Shamlou v. Canada (M.C.I.) (1995), 32 Imm.L.R. (2d) 135, which the IRB had to follow in assessing the fundamental rights of a claimant, were met in the case at bar:
- the plaintiffs could return to Cameroon legally, since they held a safe conduct: the plaintiffs could return to Cameroon if the female plaintiff renewed her residency card, which she had not done since arriving in Canada; despite the Cameroon law indicating that the residence card allowed them to leave Cameroon after obtaining an exit visa, the plaintiffs used a false passport to leave the country;
- Cameroon follows a policy of integration favourable to asylum seekers, the latter benefiting from the same advantages as nationals with regard to the exercise of a profession, education and other areas such as access to social services : the female plaintiff worked continually throughout her residence in Cameroon;
- it was admitted by the female plaintiff that her two children had access to education;
- the documentary evidence confirmed that social services were available in Cameroon and that they could be used by persons who were in their territory; the plaintiff did not file any evidence to the contrary;
- the plaintiff admitted and confirmed to the tribunal that she had no fear of the Cameroon authorities; further, she did not leave Cameroon with her children until three months after the attack allegedly made on her residence; she continued working until she left and she did not have to live in hiding; her explanation that she did not want to alarm her children was unacceptable; and
- the plaintiff stated that she had never left Cameroon before leaving for Canada, whereas she went to the Central African Republic from March 12 to19, 1998, on a mission for her employer; her explanation that she did not think about it was unacceptable, and the fact of concealing this undermined her credibility; the event indicated that she could have left and returned legally to Cameroon without any problem.
[7] The plaintiffs maintained that the IRB erred in applying the exclusion clause in section 1(E) of the schedule to the Act, as the testimonial and documentary evidence was that they did not have any vested rights in Cameroon. I do not agree.
[8] The plaintiff obtained a residency card once she arrived in Cameroon. She testified that she had to pay a bribe to a representative of the authorities. However, the IRB did not err in finding that this document was authentic and official, considering the relevant Cameroon law and the evidence entered to the effect that Cameroon is a country where corruption is rampant.
[9] The IRB was right to rely on Shamlou, supra, to determine whether the plaintiffs had the fundamental rights associated with the holding of Cameroon nationality. At paragraph 35 of that case, Teitelbaum J. listed the tests to be followed:
Lorne Waldman in his text submits that Boards should apply section 1E with "great caution". He outlines four criteria that, in his opinion, the Board should follow in undertaking an analysis regarding the "basic rights" enjoyed by an applicant. These four criteria are:
(a) the right to return to the country of residence;
(b) the right to work freely without restrictions;
(c) the right to study, and
(d) full access to social services in the country of residence.
If the applicant has some sort of temporary status which must be renewed, and which could be cancelled, or if the applicant does not have the right to return to the country of residence, clearly the applicant should not be excluded under art. 1E.15
______________________
15 Waldman, Immigration Law and Practice (Markham, Ontario: Butterworths, 1992), para. 8.218 at 8.204-8.205.
[10] The IRB found that during their stay in Cameroon the plaintiffs had the rights set out above. With the valid residency card and an exit visa, the plaintiffs were entitled to return to Cameroon in the event of a temporary departure, as appears in Cameroon law. Also, the female plaintiff had no problems with employment: she worked almost continuously in her professional field of an examiner until she left Cameroon. The children were able to study at school without difficulty. The IRB also relied on the documentary evidence in finding that the plaintiffs had the right to use the social services, a finding not disputed by them.
[11] The plaintiffs submitted that the IRB erred in concluding simply by analogy that the situation of Zairean refugees in Cameroon is the same as that of other refugees. However, it appeared that the analogy to the situation of Zairean refugees only supported the conclusion the plaintiffs had the relevant rights.
[12] The relevant provisions of the Law respecting Conditions of Entry, Residence and Exit of Foreigners in Cameroon (the relevant Cameroon legislation) are the following:
[TRANSLATION]
SECTION 8.-
Foreigners are considered as residents when they have been in that capacity after a regular stay in the national territory for at least six consecutive years.
SECTION 12.-
Any foreigner already holding a valid residency card, as provided in section 17 below, is required on entry to the national territory to present his residency card and passport or any other travel document that is valid, accompanied by an exit visa as provided in section 29 below.
SECTION 17.-
(1) Any foreigner over 18 years of age who has entered the national territory regularly and is authorized to stay therein shall within three months, subject to being returned to the border, appear before the competent authorities to apply for a residency card.
. . .
SECTION 18.-
(1) The residency card is issued to foreigners admitted to the national territory for a stay of at least two years and not exceeding six years.
(2) The residency card is valid for two years and is renewable.
. . .
SECTION 20.-
(1) A foreigner may obtain a resident alien card if he proves uninterrupted residence of at least six years in Cameroon and complies with the laws and regulations in effect.
. . .
SECTION 23.-
. . .
(2) Failure to renew the residency or resident alien card, either because the application was not made within the time stated in (1) above or because it was denied, will result in application of the removal to the border measure mentioned in heading VIII below.
SECTION 25.-
Any foreigner who resides outside the national territory for 12 consecutive months loses the benefit of the rights attaching to the validity of his residency card, or, as the case may be, his resident alien card, and his exit visa, except in the event of illness or act of God which has been duly established.
SECTION 26.-
Unless a foreigner's presence is a threat to society and public order, if he or she is under 18 years of age he or she is automatically entitled to a residency card or resident alien card, held by the individual's head of family or spouse, as the case may be.
. . .
SECTION 29.-
(1) Any foreigner who holds a residency or resident alien card is required to obtain an exit visa when he leaves the national territory, unless a particular agreement provides otherwise.
. . .
SECTION 32.-
(1) Expulsion is the administrative measure taken against any foreigner who appears at the entry to the national territory without completing the conditions of entry specified in this law.
. . .
[13] When the plaintiffs arrived in Canada the female plaintiff had a residency card valid until March 2000. However, by leaving without an exit visa and using forged documents the plaintiffs lost their right to return to Cameroon (sections 12 and 32 of the applicable Cameroon legislation). Also, by staying outside of Cameroon for over 12 consecutive months the plaintiffs lost the benefit of the validity of the residency card (section 25 of the applicable Cameroon legislation), if there was any after their fraudulent departure. Even if the plaintiff had wished to return to Cameroon or tried to renew her residency card after July 1999 it would have been impossible to do so, in view of the provisions of the applicable Cameroon legislation.
[14] In Minister of Citizenship and Immigration v. Choovak, 2002 FCT 573, Rouleau J. noted that the proper time for determining the existence of the right to return to a country is not the date of the hearing, but the date of the application for admission to Canada:
[37] I must admit I have difficulty with the respondent's submission since this would yield the manifestly absurd result that counsel may indefinitely postpone the hearing of a refugee claim so as to cause the residence status of the claimant to expire, thus rendering the exclusion clause of Article 1E of the Convention inapplicable. Article 1E must be read in a more purposive light so as to provide safe haven to those who genuinely need it, not to give a quick and convenient route to landed status for immigrants who cannot or will not obtain it in the usual way. I therefore fully agree with the Federal Court of Appeal decision in the Minister of Citizenship and Immigration v. Mahdi, [1995] F.C.J. No. 1623 (QL) (FCA) at para. 12, that "the real question that the Board had to decide in this case was whether the respondent was, when she applied for admission to Canada, a person who was still recognized by the competent authorities of the United States as a permanent resident of that country".
[15] In the case at bar the plaintiffs lost their right to return to Cameroon when they left with forged documents, thereby failing to comply with s. 29 of the Cameroon relevant legislation. If they had tried to return to Cameroon at once, they would have been denied entry under s. 32 of the said law. This means that the plaintiffs did not have the right to return to Cameroon when they appeared at the point of entry to Canada. However, they lost their status in Cameroon through their own fault. They alleged that they used forged documents because of fear of the Cameroon authorities. The IRB found that in view of the evidence before it such a fear was not reasonable.
[16] It was for the plaintiffs to show that this latter finding of fact was incorrect, and they did not succeed in doing this. As we know, in questions of credibility it is not this Court's function to take the place of the administrative tribunal when, as here, the plaintiff fails to show that its decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). It is well settled that the IRB is a specialized tribunal which has the power of assessing the plausibility and credibility of testimony so long as the inferences it draws are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and the reasons are indicated in a clear and comprehensible way (Hilo v. M.E.I. (1991), 130 N.R. 236 (F.C.A.)). In the case at bar, after reviewing the evidence I am not persuaded that the IRB made any manifest and overriding error of fact. The IRB dismissed the plaintiff's testimony about her fear of returning to Cameroon because the plaintiffs waited three months after the attack before leaving. The IRB regarded as not credible the explanation given by the plaintiff that she did not wish to alarm her children again and so waited for the end of the school year before leaving. In view of the plaintiff's testimony that she continued working for those three months, and that the plaintiffs did not alter their way of life in any way, the IRB's finding that the plaintiff's conduct contradicted her alleged fear was not unreasonable. Apart from the attack described above, no other specific event was mentioned in which the plaintiffs were targets, either for the death squads or the Cameroon authorities. The legal arrest of the plaintiff's husband does not as such suffice to show that the plaintiffs were then in danger of persecution. Based on the facts in evidence the panel was justified in concluding that it was not reasonable for the plaintiffs not to have an exit visa as required by Cameroon law, and that they could not then rely on the lack of a right to return as a means of arguing that the exclusion clause should not be applied.
[17] The plaintiffs further maintained that at no time during the many hearing sessions did the IRB separate the claim of the child Cédric from that of his mother and sister. They also objected that the panel did not designated an ad hoc representative for Cédric or offer the latter an opportunity of speaking.
[18] The following statutory and regulatory provisions need to be set out:
(a) s. 69(4) of the Act:
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69. (4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings. |
69. (4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause. |
(b) s. 15(1) of the Refugee Protection Division Rules, SOR/2002-228:
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15. (1) If counsel for a party believes that the Division should designate a representative for the claimant or protected person in the proceedings because the claimant or protected person is under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing. If counsel is aware of a person in Canada who meets the requirements to be designated as a representative, counsel must provide the person's contact information in the notice. |
15. (1) Si le conseil d'une partie croit que la Section devrait commettre un représentant à la personne en cause parce qu'elle est âgée de moins de dix-huit ans ou n'est pas en mesure de comprendre la nature de la procédure, il en avise sans délai la Section par écrit. S'il sait qu'il se trouve au Canada une personne ayant les qualités requises pour être représentant, il fournit les coordonnées de cette personne dans l'avis. |
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(2) Subsection (1) does not apply in the case of a claimant under 18 years of age whose claim is joined with the claim of a person who is 18 years of age or older. |
(2) Le paragraphe (1) ne s'applique pas dans le cas de la demande d'asile d'une personne âgée de moins de dix-huit ans jointe à celle d'une personne âgée de dix-huit ans ou plus.
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[19] The panel did render two decisions, making a distinction between the claims of the plaintiff and Astrid and that of Cédric. It is also true that it was not until the hearing was underway that Cédric's Belgian nationality became known, as the result of new retroactive legislation introduced in Belgium. However, the IRB erred by failing to appoint an independent counsel for Cédric, as required by s. 69(4) of the Act and by s. 15 of the Refugee Protection Division Rules. By not giving Cédric an opportunity to be heard, the panel also infringed the audi alteram partem rule (Maricic v. Minister of Citizenship and Immigration, 2002 FCT 510). This denial of procedural fairness in my opinion suffices to vitiate the IRB's decision. In Cardinal v. Director of the Kent Institution, [1985] 2 S.C.R. 643, at 661, the Supreme Court of Canada said:
If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
(My emphasis.)
[20] The plaintiffs further submitted that the IRB erred by basing its decision on Exhibit M-21, since counsel for the plaintiffs objected to its filing, the IRB had taken the objection under advisement and it had not decided the point.
[21] At page 1 of its decision the IRB indicated that the plaintiffs had objected to a particular question put by the Minister's representative to the Belgian Embassy, a question contained in Exhibit M-21. The objection was taken [TRANSLATION] "under advisement", but the IRB considered that it was no longer necessary to decide it since the exclusion clause did not apply to Belgium. If the objection was against production of the document the IRB erred by relying on Exhibit M-21 at page 7 of its decision. However, even if the IRB erred, the error is not fatal to its decision as Exhibit M-21 was not in any way used to support any of the reasons for its decision.
[22] Finally, the plaintiffs complained that the IRB was too receptive to the many requests for adjournment made by the Minister's representative, over the objections and protests of their counsel. In view of the fact that from time to time the plaintiffs themselves needed delays and the fact that the Court was not persuaded that this caused them any serious harm, I do not find any infringement of the plaintiffs' rights. In this connection, the possibility that the plaintiffs' chances of obtaining refugee status elsewhere than in Canada being reduced by their residence in this country is not a persuasive argument, since in the circumstances it is ordinarily the time that the refugee protection application in question is made, not the time taken to dispose of that application, that is taken into account.
[23] For all these reasons, no error justifying review by this Court has been established for the case of the principal plaintiff and her daughter Astrid and accordingly their application cannot be allowed. At the same time, where the plaintiff Cédric Bicamumpaka, less than 18 years of age, is concerned, the application for judicial review must be allowed on the grounds that the IRB failed to comply with the requirement of s. 69(4) of the Act, by not designating another person to represent him, and that the panel also erred by not giving him an opportunity of being heard separately.
[24] An order is made accordingly.
[25] The questions suggested by the plaintiffs for certification do not meet the tests laid down by the Federal Court of Appeal in Canada (M.C.I.) v. Liyanagamage (1994), 176 N.R. 4; in this regard, I entirely concur with the written submissions of counsel for the defendant on February 13, 2003, who proposed no questions for certification. Accordingly, no question is certified.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
February 26, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-1327-02
STYLE OF CAUSE: Jeannine HAKIZIMANA
and
Cédric BICAMUMPAKA
and
Astrid BICAMUMPAKA SHEMA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION (M.C.I.)
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: January 16, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: February 26, 2003
APPEARANCES:
Francine Veilleux FOR THE PLAINTIFFS
Guy Lamb FOR THE DEFENDANT
SOLICITORS OF RECORD:
Francine Veilleux FOR THE PLAINTIFFS
Attorney
Lévis, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario