Date: 19981218
Docket: IMM-1067-98
OTTAWA, ONTARIO, FRIDAY, DECEMBER 18, 1998
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
André KOUAMA
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
ORDER
For the reasons given in my reasons for order, the application for judicial review is dismissed.
Max M. Teitelbaum
| J.F.C.C. |
Certified true translation
Peter Douglas
Date: 19981218
Docket: IMM-1067-98
BETWEEN:
André KOUAMA
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated February 11, 1998, which determined that the applicant is not a "Convention refugee". The applicant seeks to have the Court set aside that decision and refer the matter back to different Board members for rehearing.
FACTS
[2] The applicant, André Kouama, born on May 9, 1962, is a citizen of the Congo, of the Lari ethnic group. He arrived at Montréal airport on September 29, 1996, and claimed refugee status on the grounds of political opinion, religion and membership in a particular social group.
[3] The facts described below are summarized in the Convention Refugee Determination Division"s decision of February 11, 1998. The applicant stated that in 1993 and 1994, members of the Ninja militia of Mr. Kolelas" Congolese Movement for Democracy and Integral Development (MCDDI) invited him to join their ranks. His refusal offended them. In February 1994, the applicant, who is very religious, began organizing prayer meetings in his house. Members of the militia warned the applicant in 1996 to cease those activities. On July 3, 1996, the Ninjas burst into the applicant"s house. They beat everyone up and attempted to seize the applicant, who managed to escape. That evening, he crossed the border into Zaire. He learned afterward that his property had been ransacked and that one of the group"s members had died in hospital. He therefore decided never to go back to the Congo and to come to Canada to claim refugee status.
Decision of the Convention Refugee Determination Division
[4] The relevant passages from the decision read:
[TRANSLATION]
| After analysing all the evidence, both oral and documentary, the panel has come to the conclusion that the claimant is not a "Convention refugee" for the following reasons. |
| Exhibits A-6 and A-7 show that the claimant"s persecutors have been put out of action and no longer control anything in Brazzaville. Mr. Nguesso has forcibly replaced Mr. Lissouba as head of government. Mr. Lissouba is in exile. His ally, Mr. Kolelas, is also in exile. Mr. Kolelas" Ninja militia has been disbanded. Mr. Nguesso now controls the country and is determined to retain control. He has the support of the French and the Americans. Last, the claimant"s persecutors are now no longer a threat. |
| Under the circumstances, the panel is of the view that in the words of Adjei, the claimant does not have a reasonable chance of persecution. |
SUBMISSIONS OF THE PARTIES
[5] The applicant argues, without insisting on the point, that he was denied a fair hearing because the hearing lasted only 20 minutes and he was not given an opportunity to explain how the political situation in the Congo failed to allay his fears of persecution there. More specifically, in his written submissions, the applicant says that the Board members read parts of question 37 of the PIF aloud and asked him a question about his fears of persecution now that President Lissouba was in exile. He contends that by proceeding in this way, the Board members led him to believe that they accepted the stated facts and that he answered the question satisfactorily, but without having an opportunity to be heard on the other facts in question.
[6] The applicant also argues that the Board erred in disregarding the documentary and oral evidence that shows that the political situation did not serve to allay his fears of persecution. Furthermore, the applicant maintains that the Board erroneously found that the changes in circumstances in the Congo negated his fears of persecution.
[7] The respondent asserts that the time allocated to the hearing was not cut short, that the applicant and his counsel did not raise any objection in the course of the hearing and that the applicant has not shown that the length of the hearing was prejudicial to him. Furthermore, the respondent submits that the length of a hearing does not reflect the quality of a panel"s work and that a panel may limit the time allocated to a hearing, particularly when no objection is raised (Vorobieva v. M.E.I. (1994), 28 Imm.L.R. (2d) 97 (F.C.T.D.)).
[8] In addition, the respondent submits that the Board did not err by having regard to the new circumstances in the Congo in assessing the new situation of the applicant and his fears of persecution. The Board is required to assess whether, in light of the changes, there is a reasonable chance of persecution in the event of his return to the Congo (Stoyanov v. M.E.I. (1993), 157 N.R. 394; Hassan v. M.E.I. (1992), 147 N.R. 317 (F.C.A.)). The Board"s finding that there was no reasonable chance of persecution of the applicant if he were to return to the Congo is based on the documentary and oral evidence, particularly that the applicant"s persecutors are out of action and no longer control anything in Brazzaville. Thus, the Board correctly found that there is no longer any objective basis for the applicant"s fears of persecution. The grounds for fearing persecution must be assessed as at the time his claim is being decided, not some time in the past. Furthermore, the assessment of changes in circumstances is a question of fact with which the Court should not interfere, where there is support for that assessment in the evidence.
[9] The respondent also argues that the applicant has not rebutted the presumption that the trier of fact had regard to all the material before it before making its findings. Moreover, the Board has the necessary discretion to weigh the evidence and draw reasonable inferences therefrom.
ISSUE
[10] Did the Immigration and Refugee Board err in fact or in law, or fail to observe a principle of natural justice, such as to warrant this Court"s intervention?
ANALYSIS
Fair hearing
[11] The applicant contends that he was denied a fair hearing because the hearing lasted only 20 minutes and he did not have an opportunity to be heard. The respondent submits that the length of a hearing is not indicative of the quality of an administrative tribunal"s work, that the length of the hearing was not cut short and that the applicant and his counsel did not raise any objection in the course of the hearing.
[12] The respondent referred the Court to a passage from Mr. Justice MacKay in Vorobieva, supra, on procedure and the time allocated to hearings. At page 100, MacKay J. held:
| When Mrs. Vorobieva testified at the final hearing after the panel had indicated a limited time for testimony, no significant objection concerning the time available was raised. The applicants were advised through counsel that statutory declarations from other witnesses would be received and submissions from counsel were permitted and received following conclusion of the testimony and before the final hearing at which decision of the panel was rendered. |
| I am not persuaded that in controlling its own process and limiting time available for testimony and where the time allocated does not appear to have been unreasonable, and the limits proposed were not strenuously objected to, that the panel denied a fair hearing, or violated subs. 46(3) of the Act. |
[13] In my view, the applicant raises two related issues in his submissions: the length of the hearing and the opportunity to be heard. In the case at bar, the hearing lasted only 20 minutes. Is that sufficient reason to conclude that justice was denied? I am convinced it is not. As an administrative tribunal, the Refugee Board determines the subject matter and the scope of its hearings, provided it acts in good faith (Nova Scotia v. Marshall, [1989] 2 S.C.R. 788). Furthermore, MacKay J. pointed out in Vorobieva, supra, that the Refugee Board controls its own process and the time allocated for each hearing. It goes without saying that the Board has the necessary discretion and expertise to estimate the time required for dealing with cases. On reading the record in this case, I found the facts to be relatively straightforward. Furthermore, the record also shows that the applicant and his counsel did not raise any objection to the length of the hearing. I therefore cannot conclude that the length of the hearing was unreasonable or amounted to a denial of justice.
[14] In addition, the applicant also argued that he did not have an opportunity to be heard during the hearing, which constitutes a denial of procedural fairness. The applicant says in his written submissions that the Board members read part of question 37 of the PIF aloud, then asked him a question about his fears of persecution now that Mr. Lissouba was in exile, and then moved on to another question after listening to his answer. The applicant contends that by proceeding in this way, the Board members led him to believe that they accepted the facts they had just read aloud, and that he was not permitted to be heard on those facts.
[15] In my view, the right to be heard requires a panel, inter alia, to give a person an opportunity to answer the questions put to him or her and to make submissions on every fact or factor likely to affect the decision. In the case at bar, the applicant claims that there was an injustice due to the fact that he was not permitted to be heard, but he did not offer any evidence showing that there was a denial of justice. Nor did he establish that he was prevented from filing any additional evidence. In my view, any injustice to which the applicant refers is the product of his assessment and personal interpretation of the way the hearing was conducted. The applicant assumed that the Board members, by reading part of question 37, accepted those facts. In my view, he had an opportunity to be heard but did not take advantage of it. In addition, counsel for the applicant was specifically asked whether she had any other questions to ask, and she said she did not. I fail to see how the Board erred or failed to observe a principle of procedural fairness or natural justice.
Assessment of the evidence
[16] The applicant also argues that the Board erred unreasonably in finding that Mr. Nguesso"s new government is solidly established and in control of the Congo. The applicant argues that the Board erred in the assessment of the documentary evidence. In his view, the credible and trustworthy documents he filed in evidence show that the Congo is in a state of civil war and that battles are raging between the different militias, that is, Mr. Kolelas" Ninjas and President Nguesso"s Cobras. According to the applicant, the evidence shows that the militias are armed and that the Congo is on the verge of being plunged into a long and bloody ethnic power struggle.
[17] The respondent relies on the presumption that the Board had regard to all the material before it and has the discretion to analyse the evidence and draw reasonable inferences therefrom. Furthermore, the respondent submits that the fact that there is contradictory evidence does not warrant the Court"s intervention since the Board may properly base its decision on whichever evidence it prefers. The Board was justified in finding that the current situation in the Congo removes any objective basis for fearing persecution by members of the Ninja militia. Since the assessment of changes in circumstances is a question of fact, this Court should intervene only if there is a patently unreasonable error (Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (C.A.)).
[18] It is clear that the Board has all the required discretion to assess the evidence before it and make reasonable findings of fact and law thereon. However, should an error be made in assessing the facts, the Court"s intervention would be warranted only if the Board"s decision were based on that basic premise. In the case at bar, it appears from the reasons for the decision that the finding that the applicant"s fears of persecution are not well founded is based on a number of points, including the fact that Mr. Lissouba is in exile and has been replaced by Mr. Nguesso, that Mr. Kolelas" militia has been disbanded, and that Mr. Nguesso has the support of the French and the Americans. I am not satisfied that an error, if any, regarding Mr. Nguesso"s effective control over the Congo and his determination to retain that control warrants the Court"s intervention. In my view, the finding that the fears of persecution are not well founded is not based solely on that evidence.
Assessment of the grounds for fearing persecution
[19] The applicant argues that the Board erred in failing to recognize that his fear is well founded despite President Lissouba"s exile. The applicant maintains that the Board members performed a superficial analysis of the documentary evidence. In this regard, the respondent submits that the Board was justified in having regard to the changes in the political situation in order to determine whether the applicant"s fears of persecution were well founded at the time the claim was being considered. Furthermore, the respondent submits that the Board"s findings on the situation in the Congo are wholly based on the material before it.
[20] It is settled that there is a two-pronged assessment of the basis for the fear; the applicant must show that the fear he allegedly feels over the risk of persecution is well founded both objectively and subjectively. On one hand, the subjective fear is assessed in light of the facts alleged by a claimant or is inferred from a claimant"s conduct, and the sole issue to be decided is that of his or her credibility. On the other hand, the objective fear is assessed in light of the prevailing situation on the date of the hearing, having regard to the changes in circumstances, for example political or social changes. On reading the Board"s reasons, I note that the Board members had regard to the political and military changes in the Congo as well as the support of France and the United States, in order to determine whether the applicant had a well-founded fear of persecution if he were to be returned to the Congo. The issue is the assessment of the objective basis for the fear at the time of the hearing and the applicant"s credibility is not at issue. The sole issue is whether, having regard to the prevailing situation in the Congo, there is a reasonable chance or a serious possibility that the applicant would be persecuted if he were to return to his country of origin. The Board held that this fear was not well founded. The Court cannot intervene unless the applicant establishes that the Board"s objective assessment is unreasonable or capricious. The applicant argues that the evidence in the record shows that his fears are well founded since the militias of the different ethnic groups, including the Ninjas, are armed and active in the Congo. However, the applicant does not refer to any specific document, and the record includes a fair number of newspaper articles reporting on the civil and political situation in the Congo. At page 145, an article reports that the new president, Nguesso, has [TRANSLATION] "routed President Pascal Lissouba"s forces", and other articles at pages 133 ff. of the record report that the civil war is over. Also, at page 146, an article dated October 19, 1997, reports that scores were still being settled between Cobras and supporters of deposed president Pascal Lissouba. In my view, the majority of the articles appear to support the facts on which the Board based its finding. I am not satisfied that the Board erred in its assessment of the evidence and that its assessment of the objective basis for the applicant"s fears is unreasonable or capricious, thus warranting this Court"s intervention.
CONCLUSION
[21] The applicant did not adduce any evidence to show that the Board erred in law or in fact, or failed to observe a principle of natural justice.
[22] The application for judicial review is dismissed.
[23] The parties did not raise any question to be certified.
Max M. Teitelbaum
| J.F.C.C. |
Ottawa, Ontario
December 18, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1067-98
STYLE OF CAUSE: ANDRÉ KOUAMA v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 16, 1998
REASONS FOR ORDER OF TEITELBAUM J.
DATED December 18, 1998
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Josée Paquin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada