Date: 20041026
Citation: 2004 FC 1508
Toronto, Ontario, October 26th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MIREILLE MAMPIA KITOKO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mireille Mampia Kitoko is a citizen of the Democratic Republic of the Congo (DRC). She claimed refugee protection based upon the persecution that she says that she suffered by reason of her membership in 'Motshodo', a group of Congolese women married to Rwandan men.
[2] Ms. Kitoko's refugee claim was rejected by the Immigration and Refugee Board, which found her not to be credible. Ms. Kitoko now challenges the Board's decision, asserting that its credibility findings were patently unreasonable. According to Ms. Kitoko, the Board made several negative credibility findings that were not reasonably open to it, based upon the evidence before it. In addition, Ms. Kitoko says, the Board erred in failing to consider explanations provided by Ms. Kitoko.
[3] Finally, Ms. Kitoko submits that the Board erred in using its own specialized knowledge to make an adverse credibility finding against her, without first putting her on notice of its intention to rely on this knowledge, and without giving her an opportunity to address the issue.
Were the Board'sCredibility Findings Patently Unreasonable?
[4] The majority of the disputed findings are findings of fact. As such, the standard of review is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[5] While subject to considerable deference, findings of credibility can be set aside where a decision is based on inferences that are not supported by the evidence: Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11. Further, the failure of the Board to consider explanations offered by an applicant may also constitute a basis for setting aside a decision: Owusu-Ansah v. Canada (Minister of Employment and Immigration), (1989), 8 Imm. L.R. (2d) 106 (F.C.A.).
[6] In this case, even taking into account the highly deferential standard of review in issue, I am satisfied that the Board made a number of errors in its treatment of Ms. Kitoko's testimony, and that, as a result, the decision must be set aside.
Ms. Kitoko's Failure to Produce the Photograph of the Motshodo Members
[7] Ms. Kitoko testified that at one time she had a picture of the members of the Motshodo group in her possession. However, she was unable to produce the photograph at her hearing.
[8] The Board stated that Mr. Kitoko had testified that she had not asked her mother to send the photograph to her. This led the Board to question the very existence of the Motshodo group, with the Board noting that Ms. Kitoko had not produced any documentary evidence to establish that the group existed. However, the evidence before the Board does not support its finding in this regard.
[9] A review of the transcript discloses Ms. Kitoko did not say that she had not asked her mother to send her the picture, but rather that she had asked her mother to try to find the picture for her, but that her mother had been unable to find the photo amongst the possessions that Ms. Kitoko had left behind in the DRC.
Ms. Kitoko's Failure to Produce Proof of Her Hospital Treatment
[10] I am also satisfied that the Board erred in failing to properly address Ms. Kitoko's explanation for her inability to produce documentary proof of her hospitalization.
[11] Ms. Kitoko alleges that she was arrested and beaten by agents of l'Agence nationale de renseignment (ANR), who were looking for her husband. She says that she subsequently obtained medical treatment for her injuries, although no documentary evidence of her hospitalization was put before the Board.
[12] According to the Board, Ms. Kitoko testified that her mother had tried to obtain documentary proof of her daughter's hospitalization. To this end, her mother approached the nurse who had assisted Ms. Kitoko in escaping from the hospital, to try to get documents from her. However, the nurse was unwilling to risk trying to get the documentation. The Board states that when Ms. Kitoko was asked why her mother did not then approach the doctor who treated her, Ms. Kitoko replied that her mother only approached the nurse.
[13] A review of the transcript discloses that Ms. Kitoko explained why her mother did not approach the doctor to get copies of documents to prove her daughter's hospitalization. Ms. Kitoko testified that she did not know what fall-out there may have been from her hospital escape. Because the nurse had already helped her once, Ms. Kitoko asked her mother to speak to her, to see if documents could be obtained. However, Ms. Kitoko was reluctant to have her mother approach the doctor directly, as she did not know how he would react to the request.
[14] As Justice Pelletier said in Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.): "It is within [the Board's] mandate to disbelieve Mr. Veres' explanation for the absence of copies of important documents. It is not within its mandate to ignore a reasonable explanation and to treat the evidence as though the explanation had never been given."
[15] Similarly, in this case, it was open to the Board to reject Ms. Kitoko's explanation as to why no effort was made to speak to her doctor to get a copy of her medical records. However, the failure of the Board to even address the explanation for her failure to do so is a reviewable error.
Ms. Kitoko's Explanation for her Failure to Produce Travel Documents
[16] The Board also drew an negative credibility inference from Ms. Kitoko's inability to produce any travel documents. While noting that her agent had retained her false passport in order to re-use it, the Board found it strange that Ms. Kitoko would not have had a copy of her air plane ticket.
[17] The respondent concedes that the Board's conclusion on this issue was 'weak', but submits that this finding, taken in isolation, was not sufficiently material to warrant setting aside the Board's decision.
[18] Here again, the Board failed to address the explanation provided by Ms. Kitoko. Ms. Kitoko testified that the agent told her to give him back the ticket, as it was a round-trip ticket, and could be used to send her back to the DRC. Once again, it was open to the Board to reject this explanation, but not to simply ignore it.
[19] I do no need to address the respondent's materiality argument, as I am not persuaded that this is the only error made by the Board.
Did the Board Err by Unfairly Relying on its Own Specialized Knowledge?
[20] The alleged failure of the presiding member to alert Ms. Kitoko to the fact that he intended to rely on his own specialized knowledge regarding security at Ndjili airport raises an issue of procedural fairness. Questions of procedural fairness are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
[21] In its decision, the Board found it not credible that someone purporting to flee state security officers would travel through Ndjili airport "[O]ù se trouvent compliées les donées concernant les personnes qui sont recherchées."
[22] The respondent submits that this finding did not involve the use of specialized knowledge, but rather the application of common sense and rationality. However, a review of the Board's own reasons demonstrates that this is not the case.
[23] After making the comment noted above regarding Ndjili airport. the Board goes on to state:
De connaissance spécialisée, pour avoir entendu de nombreuses causes de la RDC, il est raisonnable de penser qu'une personne qui est recherchée éviterait de passer par l'aéroport Ndjili en quittant le pays, d'autant plus, il existe d'autres voies terrestres où le risque de se faire attraper est nettement moins élevé. [emphasis added]
[24] At no time during the hearing did the presiding member alert Ms. Kitoko to the fact that he intended to make use of any specialized knowledge regarding airport security at Ndjili airport.
[25] The Board's procedural fairness obligations with respect to its ability to rely on extrinsic information are codified in Rule 18 of the Refugee Protection Division Rules, which states:
Notice to the parties - Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
[26] In this case, by its own admission, the Board used its specialized knowledge regarding airport security in the DRC to make an adverse finding against Ms. Kitoko, without first giving her an opportunity to make representations as to the reliability and use of the information. This constitutes a procedural error, and a denial of natural justice: Kabedi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 545.
Conclusion
[27] It could be argued that none of the errors committed by the Board, taken in isolation, is sufficiently material to warrant setting aside the Board's decision. Whether or not that is in fact the case, the cumulative effect of the errors is such that the Board's decision cannot stand.
Certification
[28] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8833-03
STYLE OF CAUSE: MIREILLE MAMPIA KITOKO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 25, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
APPEARANCES BY:
Mr. Anthony Kako
FOR THE APPLICANT
Mr. Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Anthony Kako
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041026
Docket: IMM-8833-03
BETWEEN:
MIREILLE MAMPIA KITOKO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER