Date: 19990719
Docket: IMM-5827-98
BETWEEN:
ADRIC KATAMBALA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board rejected the applicant"s claim that he was a Convention refugee because he could not establish his identity as a Rwandan national.
[2] The applicant claimed to be a national of Rwanda who had lived in the village of Cyangugu until the strife between the Hutu and Tutsi caused him and his brother to flee to Zaire. He stated that he and his brother had come to New York as stowaways. He was then separated from his brother and arrived in New Brunswick as the result of the assistance of a truck driver who brought him here in the cab of his truck. He has no identity documents, nor have organizations that subsequently attempted to help him, e.g. the Salvation Army, been successful in locating any.
[3] The applicant was seventeen years old at the time of his hearing before the Board. The Board in an attempt to establish his identity, asked him a number of questions about his schooling in Rwanda; he stated that he had gone to school there for five years. The Board was clearly surprised that the applicant did not speak Kinyarwanda and that he said the language in which he had been instructed in the schools in Rwanda were Swahili and English.
[4] There is some confusion in his evidence, he also identifies the language of the schools, after it became clear the Board was not satisfied with his first answer, as including Kinyarwanda, Kiglu and French. However, his consistent and predominant assertion was that the languages of instruction had been Swahili and English. The Board also established through questions put to him that he did not speak Kinyarwanda, nor did he know the Rwandan national anthem.
[5] The Board members were clearly surprised. They noted that they had been hearing Rwandan cases for a couple of years and were under the impression that Kinyarwanda and French were the dominant languages in Rwanda. At the end of the hearing on June 4, 1998, the Board adjourned to allow certain information requests to be made to the Research Directorate of the Immigration and Refugee Board:
...
So what we would like to do is we would like to adjourn the hearing for now. We are going to ask Miss Monk to do some information requests to the Board"s documentation centre, focussing on the testimony that was given today; in particular, the languages which are used in the Ziangugu area. It is our impression that Kinwanda and French are the dominant languages in Rwanda. We ordinarily would have expected the claimant to have greater competence in both those languages. It may well turn out that Ziangugu area has different language patterns. So we are going to make an information request and get that information before we continue.
[6] The Board made it clear that what was contemplated, at that time, was an adjournment. There were witnesses waiting outside the hearing room who planned to give evidence on the applicant"s behalf but were not given an opportunity to do so. Their evidence did not relate to the applicant"s life in Rwanda but only to their knowledge of him as of his arrival in New Brunswick.
[7] The Board members received replies to the information requests they had sent to the Research Directorate. These stated that the schools that the applicant stated he had attended, St. Peter"s Primary School and St. Joseph"s Primary School, were not mentioned in the Rwandan Department of the Ministry of Education"s registers or archives.
[8] The responses stated that the language spoken in Rwanda, including the prefecture of Cyangugu, was Kinyarwanda. The Research Directorate stated that a July 16, 1998 telephone interview with the Director of the Primary Schools Department of the Ministry of Education in Rwanda, revealed that all schools in Rwanda, both private and public, were government funded, and the singing of the national anthem every morning was compulsory. In addition, the Board members were informed that at all primary schools, including those in Cyangugu, had the same organization and subjects of instruction. The responses given in July 1998 also referred to an earlier information response of September 1997. That response stated that the language of instruction in the primary schools of Rwanda, including private schools, was Kinyarwanda, and that French was taught beginning at the fourth level. Swahili was identified as a language spoken by a minority of the population, mainly those engaged in commercial affairs.
[9] These responses were sent to counsel for the applicant by letter dated August 11, 1998. On August 18, 1998, counsel was notified that his response to these materials was required by September 11, 1998. By letter dated August 21, 1998, counsel informed the Case Management Officer that he was still seeking independent confirmation of some information contained in the documentation. Counsel sent a second similar letter dated September 4, 1998. On September 15, 1998, counsel was notified that his reply was needed by the 30th of that month, and that he should submit any evidence on the issue of personal identity or nationality by that date, otherwise the Board would proceed with its decision based on the evidence already before it. No response was received from counsel by September 30, 1998.
[10] The Board subsequently dismissed the applicant"s claim for refugee status on the ground that he had not been able to establish his personal and national identity as Rwandan. In doing so the Board relied primarily on the applicant"s evidence concerning the language of instruction in the schools he had attended and his inability to speak Kinyarwanda. The Board also stated that the applicant story lacked credibility because his description of the events of March-April 1994 in Rwanda did not correspond to the description set out in documents of the time recording those events. Also, it was implausible that he could have crossed Zaire on foot without knowing French, and his description of being voluntarily helped by a truck driver to enter New Brunswick was implausible. These findings were secondary to the Board"s main finding concerning the applicant"s failure to establish his identity.
[11] Counsel for the applicant argues that there was a failure of natural justice or fairness because the Board adjourned the hearing of June 4, 1998, and should have reconvened to hear further evidence from the applicant. This is particularly so, it is argued, when there were witnesses waiting to give evidence on his behalf who were never heard. Also, neither those witnesses, nor the applicant was given an opportunity to respond to the Board"s credibility and implausibility concerns.
[12] I am not persuaded that a breach of the rules of natural justice or fairness occurred. The Board clearly indicated at the hearing that it was concerning itself just with the applicant"s identity. Only after national identity was established could the Board examine whether or not the applicant was a refugee from his country of nationality. The evidence of the witnesses who were never called, while relating to the language he spoke when he arrived (Swahili) and that he was given clothes on arrival, could not address the Board"s basic concern, the country of nationality of the applicant. Counsel for the applicant was sent the information the Board had obtained concerning the schools the applicant had said he attended and the language of instruction in Rwanda. An opportunity was given to respond to that evidence.
[13] In the circumstances, the Board"s decision does not contribute a breach of the rules of natural justice or fairness.
[14] For the reasons given, this application for judicial review must be dismissed.
| (Sgd.) "B. Reed" |
| Judge |
OTTAWA, Ontario