Date: 19990505
Docket: IMM-2496-98
Between:
YAI FLORENCE FUTILA MAYEKE,
Plaintiff,
- and -
THE MINISTER,
Defendant.
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review from a decision by the Convention Refugee Determination Division that the plaintiff is not a Convention refugee.
[2] The plaintiff is a citizen of the Democratic Republic of the Congo (DRC - formerly Zaire). She claimed to have a well-founded fear of persecution for alleged political opinions and her membership in a particular social group.
[3] The plaintiff operated a terrace beside her house. According to her PIF, on December 5, 1996 when she was taking an order soldiers came in, handcuffed seven customers and the plaintiff and took them to prison.
[4] They were in prison for 15 days. She alleged that she was treated brutally and raped twice.
[5] On December 21, 1996, during the night, she was released. She explained that a guard came to get her and took her to the back door where a jeep was waiting for them outside.
[6] After leaving the prison she said she found that her brother-in-law and a friend, an army major were in the jeep. The same night she was taken to Brazzaville in a canoe to the home of a friend of her mother, where she hid until she left for Canada. On February 4, 1997 she claimed refugee status.
[7] The plaintiff entered in evidence a document certifying that she had had a miscarriage two months after arriving in Canada. The tribunal did not mention this document in its reasons.
[8] The Refugee Division concluded that the plaintiff was not credible and that her claim lacked a minimum basis.
[9] The tribunal accepted that the DRC is unstable, but dismissed the plaintiff's testimony as not credible in particular because of various contradictions regarding her escape.
[10] It is worth noting in this record that at the start of the hearing the tribunal assured the plaintiff that it would ask no questions about the rapes. The tribunal therefore focused its questions on events subsequent to the rapes.
[11] However, in my opinion, since the rapes were the essential part of the claim it was unreasonable to conclude that the plaintiff was not credible by assessing her credibility only on events that occurred immediately after these attacks. When it found that it had doubts about her credibility on collateral facts, the tribunal should have allowed the plaintiff to testify about the central part of her claim. Such an omission constitutes a denial of natural justice.
[12] In Joseph, the Court told the applicant that she would not be required to testify about the rapes because they had been accepted as proven. The claim was then dismissed for lack of credibility. An application for judicial review was allowed inter alia on account of the fact that the tribunal should have allowed the claimant to testify about the rapes of which she was a victim.
There are several areas where the Board's decision is questionable and which support referring the matter back to the Board. The first area is with respect to the rapes suffered by the applicant. At the outset of the hearing, the Board informed the applicant that she need not testify as to the rapes because the Board was accepting them as fact from the applicant's PIF. However, the Board then found that the rapes were not connected to the applicant's involvement in the march and hence her political opinion. Since this was clearly a basis for the negative decision, she should have been given an opportunity to testify as to the rapes and the circumstances behind them (Velauthar v. M.E.I. (1992), 14 N.R. 239 (F.C.A.)).
[13] Moreover, in concentrating on events subsequent to the rapes the tribunal ignored the effects that such an experience might have on the plaintiff. The directives given by the President of the Immigration and Refugee Board are relevant:
[14] In particular, difficulty in concentrating and loss of memory are included in the list of symptoms. In the case at bar the contradictions noted deal essentially with incidents involving the escape (for example, the persons who were in the jeep at the time) and the confusion could be explained by the trauma caused by the rapes.
[15] Finally, I conclude that the tribunal also erred in ignoring the medical document regarding the miscarriage suffered by the plaintiff just after she arrived in Canada. The defendant argued that this document did not necessarily prove that there was a connection between the miscarriage and the events alleged. However, it is not up to the defendant to reach this conclusion. It is for the tribunal to weigh the evidence. I concur with Evans J. in Cepeda-Gutierrez when he says that the more relevant the document is the more important it is for the tribunal to mention it. In the case at bar I find that this document is very relevant and the tribunal had a duty to deal with it expressly.
[16] The application for judicial review is allowed and the case is referred back to the CRDD to be considered again by a panel of different members.
[17] None of the counsel recommended that a question be certified.
Danièle Tremblay-Lamer
JUDGE
MONTRÉAL, QUEBEC,
May 5, 1999.
Federal Court of Canada
Trial Division
Date: 19990505
Docket: IMM-2496-98
Between:
YAI FLORENCE FUTILA MAYEKE,
Plaintiff,
AND
THE MINISTER,
Defendant.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2496-98
STYLE OF CAUSE: YAI FLORENCE FUTILA MAYEKE,
Plaintiff,
AND
THE MINISTER,
Defendant.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: May 4, 1999
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: May 5, 1999
APPEARANCES:
Mimi Beaudry for the plaintiff
Michel Pépin for the defendant
SOLICITORS OF RECORD:
Mimi Beaudry for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Ottawa, Ontario
1 41Date: 19990505
Docket: IMM-2496-98
MONTRÉAL, QUEBEC, MAY 5, 1999
BEFORE: TREMBLAY-LAMER J.
Between:
YAI FLORENCE FUTILA MAYEKE,
Plaintiff,
- and -
THE MINISTER,
Defendant.
O R D E R
The application for judicial review is allowed and the case is referred back to the CRDD to be again considered by a panel of different members.
__________________________
JUDGE