Date: 1997-12-22
Docket: IMM-472-97
OTTAWA, ONTARIO, THIS 22nd DAY OF DECEMBER 1997.
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
LUIS MARTINEZ GUZMAN,
Applicant,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The applicant's application for judicial review is allowed. The decision of the Immigration and Refugee Board dated January 7, 1997, is set aside and the matter will be referred back to a different panel for rehearing.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
Date: 1997-12-22
Docket: IMM-472-97
Between:
LUIS MARTINEZ GUZMAN,
Applicant,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
NADON J.:
[1] The applicant is seeking review of a decision of the Immigration and Refugee Board (the "tribunal") dated January 7, 1997. The substance of the decision appears at page 2 of the reasons, and reads as follows:
| [translation] The claimant has not shown, by credible and trustworthy evidence, that he has a reasonable fear of persecution on the ground alleged. |
| From our specialized knowledge, we know that in order to leave Cuba legally a citizen must obtain a number of authorizations, and that this cannot be done unless he has a clean record. By the claimant's own admission, Lieut. Martinez wiped his record clean. He therefore no longer had anything to fear from the authorities of his country. |
| On the other hand, we accept his fear of sanctions for desertion, but we base our decision on Valentin, which said: |
| Neither the international Convention nor our Act, which is based on it, ... had in mind the protection of people who, having been subject to no persecution to date, themselves created a cause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating a criminal law of general application. |
| DECISION |
| Accordingly, the Refugee Division finds that Luis MARTINEZ GUZMAN is not a "Convention refugee" as defined in subsection 2(1) of the Immigration Act. |
[2] The applicant, a citizen of Cuba, left his country on April 8, 1995, and arrived in Montreal on April 17, at which date he claimed refugee status.
[3] The applicant claims to have been persecuted in Cuba because of his membership and involvement in a human rights group. He asserts that following a demonstration which was held on December 15, 1993, he was arrested, interrogated and detained for two days, and that as a result he could no longer be employed on board a ship "destined abroad". It should be noted that the applicant states that he studied at the naval academy of the revolutionary navy from 1983 to 1988 and studied naval mechanical engineering, and that he graduated as an officer with the rank of corvette lieutenant.
[4] The applicant claims that a Lieut. Martinez, who suspected him of belonging to a human rights group, threatened to report him unless he "agreed to bring certain things back for him from his trips". In return, Lieut. Martin agreed to "intercede with state security to enable the applicant to be able to work on board ships".
[5] The applicant contends that when he refused Lieut. Martinez's proposition on August 22, 1994, Lieut. Martinez and two of his associates searched his home looking for evidence of his membership in the human rights group. The search did not turn up anything.
[6] The applicant adds that on February 13, 1995, he was arrested by Lieut. Martinez who again threatened to report him. The applicant asserts that this time, under threat, he agreed to Lieut. Martinez's proposition, and that he was then informed by Lieut. Martinez "that he had already sent a positive report and that the investigation was closed and he was fit to sail".
[7] On April 6, 1995, the applicant allegedly "paid off" a Miguel Concepcion, the captain of a ship, to be able to work on board his ship and leave Cuba. He says that the ship left Cuba on April 8, 1995, and arrived in Montréal on April 17, 1995.
[8] These are the essential facts of the applicant's claim.
[9] The applicant's first argument is that the tribunal could not take notice of generally recognized facts and information or opinions that are within its specialized knowledge unless it gave the applicant notice of its intention, as required by subsections 68(4) and (5) of the Immigration Act. Those subsections read as follows:
| (4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge. |
| (5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto. |
[10] In the applicant's view, the tribunal's failure to notify him of its intention to take notice of facts that were within its specialized knowledge is a determining error.
[11] In his memorandum, the Attorney General of Canada did not, in my view, seriously challenge the merits of the applicant's argument that the tribunal had committed an error. Rather, the Deputy Attorney General of Canada took the position that the tribunal's error is not determining, and accordingly does not justify the intervention of this Court. The reasoning of the Attorney General of Canada appears at paragraphs 21 to 25 of his memorandum, which read as follows:
[translation]
| 21. With respect to the applicant's protest in paragraph 43 of his memorandum, the respondent submits that regardless of whether or not it is correct, it has no impact on the final decision of the Refugee Division and accordingly cannot form the basis of an application for judicial review. |
| 22. Even if we admit that the Refugee Division should have warned the applicant that it intended to take judicial notice of certain facts, which the respondent denies, the failure by the Refugee Division does not vitiate a decision that is otherwise correct. |
| 23. Thus, what the Refugee Division took judicial notice of was that it is necessary for Cubans to have a clean record in order to leave their country. |
| 24. This fact was in no way essential in order for the Refugee Division to conclude as it did since the applicant himself had previously admitted that his record had been wiped clean of any negative allegations and that accordingly there was no longer any obstacle to his being able to leave Cuba. |
| 25. Whether or not the Refugee Division considered that fact, and whether or not it failed in its duty to so inform the applicant, in no way affects its decision, which needed no additional information in order for it to reach the conclusion that the applicant could not reasonably fear the authorities in his country since his record had been wiped clean of any blame. |
[12] The Deputy Attorney General's argument is as follows. Since the applicant admitted that his record had been "wiped clean" by Lieut. Martinez, he could therefore return to Cuba since he had nothing to fear. Accordingly, regardless of whether the tribunal took notice of facts of which it should not have taken notice, it does nothing to change its decision.
[13] In my opinion, the Deputy Attorney General's position is wrong. The applicant's claim is that he was persecuted, and will be persecuted if he must return to his country, because of his involvement in a human rights group. Thus, according to the applicant, even though his record was wiped clean, that record could be reactivated at the whim of Lieut. Martinez. If the account given by the applicant is truthful, I can only agree with the submissions of Mr. Saint-Pierre, his counsel.
[14] This brings me to the question of credibility. According to the Deputy Attorney General, the tribunal clearly ruled on this question. In my view, that is not the case. At the hearing, Ms. Bouchard, for the Deputy Attorney General, drew my attention to a number of contradictions in the applicant's evidence. I replied that I had noted those contradictions myself but that the tribunal had made no reference to them. The only reference to the applicant's credibility appears at page 2 of the reasons, where the tribunal states:
| [translation] The claimant has not established by credible and trustworthy evidence that he has a reasonable fear of persecution on the ground alleged. |
[15] In my view, this is not sufficient to support a conclusion respecting the credibility of the applicant. It is not up to Ms. Bouchard or to a judge hearing an application for judicial review to draw conclusions as to the applicant's credibility. That is the job of the tribunal. The tribunal made no effort to support its conclusion by reference to the evidence adduced before it. It should at least have made an effort to explain its conclusion.
[16] I therefore conclude that the error of the tribunal is determining. Accordingly, the application will be allowed. The decision of the tribunal dated January 7, 1997, will be set aside and the matter will be referred back to a different panel for rehearing.
"Marc Nadon" Judge
Ottawa, Ontario
December 22, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-472-97
STYLE OF CAUSE: LUIS MARTINEZ GUZMAN v. M.C.I.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: December 11, 1997
REASONS FOR ORDER OF NADON J.
DATED: December 22, 1997
APPEARANCES:
Noël Saint-Pierre FOR THE APPLICANT
Odette Bouchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Saint-Pierre, Grenier FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada