Date: 19990617
Docket: IMM-974-98
OTTAWA, Ontario, the 17th day of June 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
FLORENT EPANE
ELISE JOLIE EPANE
Applicants
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
[1] The application for judicial review is allowed and the matter is referred back for redetermination before a differently constituted panel.
P. ROULEAU
JUDGE
Certified true translation
M. Iveson
Date: 19990617
Docket: IMM-974-98
Between:
FLORENT EPANE
ELISE JOLIE EPANE
Applicants
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated January 23, 1998, which determined that the applicants are not Convention refugees.
[2] The applicants are asking the Court to set aside the Board"s decision and refer the matter back for rehearing by a differently constituted panel.
[3] The applicants are Florent Epane and his wife Elise Jolie Epane. They are citizens of Cameroon and claim a well-founded fear of persecution by reason of political opinion. The female applicant is basing her claim on that of her husband.
[4] The male applicant claims that he was the president of the Bessengué subsection of the Social Democratic Front (SDF) from 1992 and had been a member of the party since 1991. As president of this subsection, he had to be aware of the party"s ideology and positions and inform the other members of them.
[5] He was allegedly imprisoned three times, in July 1993, November 1993 and November 1995, because of his involvement in the party. The last period of incarceration lasted six months until he was freed by a stranger. After he was freed on May 26, 1996, he allegedly went into hiding at his cousin"s grandmother"s house until July 16, 1996, and then left the country.
[6] The applicant claims that two police officers went to his house to seize his political documents during his last period of imprisonment. They allegedly raped the female applicant one after the other. After her husband"s escape, the female applicant says she was harassed by the police. Her house was searched, documents were seized, she was interrogated, she had to go to the police station and received summonses. Her house was burned down and her father died from poisoning. Her family then decided she must leave the country. She left in December 1996, five months after her husband.
[7] The Board determined that the applicants were not Convention refugees on the ground that the male applicant was not credible on the issue of his involvement with the SDF. It indicated that the applicant claimed to have 20 years of education. According to the Board, he was unable to discuss with the panel things that a party subsection president should know. Here are several examples:
| [TRANSLATION] |
| 1. The date of the legalization of the party. The applicant answered 1990, maybe 1991. The party was legalized in 1991. |
| 2. The official name of the party newspaper. The applicant said that the paper was called "the party newspaper". When the name the "Social Democratic Front Echo" was suggested to him, he answered "that is it". |
| 3. The applicant could not tell the panel what percentage of votes the SDF had received in the national elections of October 1992. He hesitated before answering 60%. According to the documents, the percentage was actually between 35.9% and 50% of seats. |
| 4. The applicant did not know the percentage of Francophones and Anglophones in the party. He said that the party represented all the people of Cameroon. The Board found this strange as the SDF was originally described as an Anglophone party with an Anglophone president. |
| 5. The applicant cited the municipal elections of January 21, 1994 as the reason for his incarceration in 1995. He later changed his testimony and said that these elections were held in 1995, then in 1996. The elections were held in 1996. The applicant said that he did not know the percentage of the vote because he was in prison at the time. The Board considered it was implausible that a subsection president, even one who was imprisoned and then in hiding at the home of his cousin"s grandmother, would never have inquired about the election results. |
| 6. The applicant stated that there were more than one hundred electoral districts in Yaoundé. This is implausible: there are only 180 in the whole country. It was strange that he did not know how many electoral districts there were in Yaoundé; after all, he claimed to be the representative of the returning officers in 1992. |
| 7. The applicant could not explain to the panel what occurred relating to the SDF in 1993. It was only after hints by a member that he remembered the important events of that year, including the call to boycott French products. |
8. Last, the applicant was not aware of the SDF"s internal problems between members who claimed to have founded it.
[8] The issues are the following: (1) Are the Board"s findings with respect to the applicant"s credibility unreasonable? (2) Did the Board err in failing to consider Mrs. Epane"s testimony? (3) Did the Board err in failing to consider the relevant documentary evidence?
[9] At pages 539-540 of the file, the applicant stated that the SDF was founded in the city of Bamenda in 1990. When he was asked in which year the party was legalized, he answered "Yes, it was in '82. I believe [it was] between '90, end of '90, and it was between . . . between '90 and '91 when the . . . the . . . multi-party system was introduced". According to the documentary evidence (p. 436), the SDF was in fact founded in Bamenda at the beginning of 1990. The government authorized a multi-party system in about June 1990. The SDF was officially legalized in 1991. The applicant therefore knows approximately when the party was legalized. It is still strange that he does not have a better recollection of such an important date in the history of his party, after which it was allowed to put forward candidates in the elections.
[10] With respect to the party newspaper, it is clear from pages 562-563 of the file that the applicant was unable to name the party newspaper.
[11] The Board examined the applicant on the results of the 1992 presidential elections. On the subject of the results obtained by the president of the SDF, John Fru Ndi, the applicant said (p. 544): [TRANSLATION] "With respect to power, he came second, but according to the numbers, or the statistics, he was first". The applicant stated that the did not remember exactly what percentage of the votes the SDF had received. He said that the party had about 60% of votes. According to the Board, it was 35.9%. This was the amount reported by the re-elected government, which was suspected of having committed electoral fraud. The documentary evidence indicates that Mr. Fru Ndi was the preferred candidate and his victory was assured unless there was gross fraud. In the end, his rival, Mr. Biya, won, which led people to doubt the validity of the elections (file, pp. 472 and 510). Personally, I find it unfair to ask the applicant for exact statistics from six years earlier. The applicant at least knew that Mr. Fru Ndi should have won the elections, but lost.
[12] The Board considered it strange that the applicant did not know the percentage of Francophones and Anglophones in the SDF. Here is what the applicant said concerning his party, at page 542 of the file:
| [TRANSLATION] |
| I cannot give you an exact percentage of Anglophones. Why? Because it is . . . it is a party which is not particularly Anglophone. It is a party for all Cameroonians, for the Cameroonian people . . . . |
| When it started to become known it was as an Anglophone party, because in the beginning it was believed to be Anglophone, but in fact people realized that it was not really Anglophone . . . . |
I would say that Cameroon . . . the . . . the SDF belongs to the Cameroonians, we do not belong to one group. It belongs to all Cameroonians, there is no bias because there is no distinction between Anglophone and Francophone Cameroonians. And if I were to say something about that, it would be as if I were to . . . to divide . . . Cameroon or to give the impression that the SDF is only Anglophone.
[13] The applicant"s comments are confirmed by the documentary evidence. At page 344, we learn that the SDF was originally seen as a regional party confined to the northwest, or an Anglophone party. But as the months passed, the SDF emerged from its ghetto and its influence spread rapidly to a broader public, if we can judge by the popularity of the leader of the SDF in the 1992 elections. The party tried to improve its image and distanced itself from the Anglophone dissident movement. At page 484, it is noted that the party has Francophone supporters. One SDF organizer went so far as to say that Francophones constitute up to 60% of SDF members. The comments made by the applicant in 1998 are consistent with this evidence.
[14] The applicant cited the 1994 elections as the cause for his incarceration in 1995. He then changed his mind and said that these elections were held in 1995, then in 1996. He did not know the results of those elections. In his PIF, the applicant said he was arrested in November 1995 during a meeting of the SDF which was called because of the municipal elections of January 21, 1996. At the hearing, the applicant began to speak of the municipal elections of January 21, 1994 (p. 545). Some moments later, he returned to this point and said:
| [TRANSLATION] |
| A. Yes. Please, may I clarify something? |
| - Yes. |
| A. That, that did not happen in '94, it was more like '95 . . . in '96, '96, yes, no, that did not happen in '96. |
| Q. Are you sure of the year then? '96? |
| A. I believe so. |
[15] The applicant was very nervous at the hearing, as can be seen at page 546 when the Board recessed to allow to applicant to calm down. His nervousness is also mentioned at page 534. In my view, the Board did not take this factor into account. In fact, the applicant recognized his error very quickly, mentioned it and corrected it by himself, without the Board having to challenge him on it.
[16] The applicant stated that the SDF won 54% of the seats in the municipal elections (p. 559). This is not true: the party won 27% of the seats (p. 512). The applicant was in prison from November 1995 to May 1996. The elections were held in January 1996. After he got out, he was in hiding and saw few people. It is plausible that he was not properly informed of the election results. Newspapers do not report four month-old news. He also left the country in July 1996.
[17] According to the Board, the applicant did not even know how many electoral districts there were in Douala. He said there were approximately one hundred, which is unlikely because there are only 180 in the whole country. According to the transcript at pages 563 and 564, there seems to have been a misunderstanding:
| [TRANSLATION] |
| Q. How many . . . districts are there in Douala? |
| A. Districts, what? |
| Q. Electoral? |
| A. There are more than . . . there are more than one hundred. |
| Q. Where people vote? |
| A. No, the . . . |
| Q. There are more than one hundred . . . |
| A. No. |
| Q. . . . or specific electoral districts? |
A. What are electoral districts here? They are local committees, that is what the SDF calls them, electoral districts, those are the local committees. And when we speak of the cell, that is . . . the local committee, that is what we call an electoral district.
[18] In my view, there was a misunderstanding over this issue. The applicant referred to electoral districts as being local cells of the SDF, while the Board was speaking of electoral territories on a national scale. The Board did not, however, find it necessary to clarify the issue and changed the subject.
[19] The Board submits that the applicant could not describe the important events of 1993. This conversation is reported at pages 566 to 571 of the record. The applicant was asked to describe what happened in 1993. He did not remember any specific event until a specific issue was mentioned. The applicant was then able to speak to the specific issue, whether it was the Union for Change, a delegation to France or the call to boycott French products. I consider the Board"s finding on this issue unreasonable.
[20] Finally, the Board said that the applicant was unaware of the internal power struggles between the leaders of the SDF. He was asked who was Mr. Fru Ndi"s main rival in the SDF (p. 564). The applicant said that John Fru Ndi"s authority had never really been threatened. He stated that a lawyer and influential member of the party, Bernard Muna, had left the SDF because of allegations that he wanted to unseat Mr. Fru Ndi and that he was conspiring with another party. The applicant felt that Mr. Muna did not really want to unseat Mr. Fru Ndi.
[21] According to the documentary evidence, there are rivalries between politicians, each of whom claim to have founded the SDF (p. 455). Among those who claim to have founded the party are Albert Mukong and Ndeh Ntumaza. Despite the confirmation of Mr. Muna"s dismissal in 1994 at pages 436 and 485, I did not see any indication that Mr. Fru Ndi"s leadership was seriously weakened by anyone. The Board never asked the applicant specifically about the issue of the dispute over the founding of the party.
[22] In my view, some of the findings are reasonable. However, other findings by the Board with respect to the applicant"s credibility are unfounded. I believe that this justifies referral of the claim back to the Board for a redetermination. First, it was unreasonable to draw an adverse conclusion about the applicant"s credibility because he was unable to provide specific statistics which were several years old. Second, there was a misunderstanding over the issue of the definition of "electoral district". The applicant"s severe nervousness and the fact that he corrected his error concerning the date of the municipal elections on his own initiative were not taken into consideration. His statements about the Francophone and Anglophone members of the SDF are consistent with the party"s position. He was never examined on the internal rivalries specifically with respect to the founding of the party. It is therefore not surprising that he did not mention the names the Board was probably expecting to hear. It appears that the applicant was correct when he said that Mr. Fru Ndi"s authority was never really challenged by his rivals in the party. Finally, concerning the events of 1993, he was able to discuss them as soon as the Board asked him more specific and relevant questions.
[23] As I have determined that the Board"s findings with respect to the applicant"s credibility are unfounded, I will not deal with the arguments advanced concerning the documentary evidence or the consideration of Mrs. Epane"s testimony.
[24] The application for judicial review is allowed and the matter is referred back for redetermination before a differently constituted panel.
[25] There is no serious question to be certified.
P. ROULEAU
JUDGE
OTTAWA, Ontario
June 17, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-974-98
STYLE OF CAUSE: FLORENT EPANE, ELISE JOLIE EPANE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 2, 1999
REASONS FOR ORDER OF ROULEAU J.
DATED JUNE 17, 1999
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANTS
SÉBASTIEN DASYLVA FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOYON, GUERTIN, MONTBRIAND & FOR THE APPLICANTS
PLAMONDON, SOCIÉTÉ NOMINALE
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA