2015 FC, 2015 FC 1195

Date: 20151022 Docket: IMM-1080-15 Citation: 2015 FC 1195 Ottawa, Ontario, October 22, 2015 PRESENT: The Honourable Madam Justice Mactavish BETWEEN:VANESSA ISHUNIYE MBIMBIApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] The Refugee Protection Division of the Immigration and Refugee Board rejected Vanessa Ishuniye Mbimbi’s claim forrefugee protection, finding that as she had failed to establish her identity as a citizen of the Democratic Republic of Congo, there was nocredible basis for her refugee claim. [2] Ms. Mbimbi seeks judicial review of the Board’s decision.

She submits that she was treated unfairly by the Board when itmade a finding as to the authenticity of one of her identity documents without first putting its concerns to her in order to allow her toaddress them. Ms. Mbimbi further asserts that a number of the Board’s findings regarding her identity documents were unreasonable, andthat the absence of a transcript from her refugee hearing prevents the Court from properly considering her arguments. [3] For the reasons that follow, I have concluded that the application for judicial review should be granted. I. The Fairness Argument [4] Ms.

Mbimbi’s argument that the Board was obliged to identify its concerns with respect to the signatures on two of herdocuments raises a question of procedural fairness. Where an issue of procedural fairness arises, the Court’s task is to determine whetherthe process followed by the decision-maker satisfied the level of fairness required in all of the circumstances: see Canada (Citizenshipand Immigration) v. Khosa, 2009 SCC 12 at para. 43, [2009] 1 S.C.R. 339. [5] Ms.

Mbimbi’s refugee claim was based upon her alleged fear of persecution in the DRC resulting from her membership inthe “Engagement pour la Citoyenneté et le Développement” [ECiDé] political party. The Board did not accept Ms.

Mbimbi’s ECiDémembership card as proof of her identity, in part because of the Board’s finding that the signature of the party’s Secretary General on thecard differed from the one on a letter attesting to her party membership. [6] The parties agree that there is no obligation on the Board to put an inconsistency in the evidence to an applicant where thatinconsistency is apparent on the face of the record. Having carefully reviewed the two signatures in issue here, I am satisfied that thedifferences between them are not so obvious as to relieve the Board from its obligation to put Ms.

Mbimbi on notice of its concerns. [7] The signatures in question are quite distinctive and are very similar, although, as the Board observed, the signature on theletter has two small lines above the name, while the signature on the membership card does not. However, Ms. Mbimbi points out thatthe differences in the two signatures could be explained by the fact that the space provided for the signature on the membership card wassmall, and that this may have explained the omission of the two small lines over the signature.

She was not, however, able to offer thisexplanation to the Board, as she was not aware of the Board’s concern in this regard. [8] It is not for me to decide whether this explanation should be accepted – that is the task of the Board. I am, however, satisfiedthat it was unfair of the Board to reject the documents on the basis of a perceived inconsistency in the signatures, without first givingMs. Mbimbi a chance to address its concerns. II. The Missing Transcript [9] Ms.

Mbimbi also challenges the reasonableness of findings made by the Board with respect to other documents that she hadprovided to establish her identity. She further submits that the absence of a transcript of her refugee hearing prevents the Court fromproperly considering her arguments. [10] In the absence of a transcript of a hearing, a reviewing Court must determine whether the record before it allows it to properlydispose of the application for judicial review. If it does, then the absence of a transcript will not violate the rules of natural justice:Randhawa v.

Canada (Minister of Citizenship and Immigration), 2003 FCT 418 , [2003] F.C.J. No. 595 at para. 8. The questionis whether there is a ‘serious possibility’ that the effect of the absence of the transcript would be to deny a ground of review: City ofMontreal v. Canadian Union of Public Employees, Local 301, (SCC), [1997] 1 S.C.R. 793.

[ 11 ] I am satisfied that there is indeed a serious possibility that the absence of a transcript in this case prevents the proper evaluation of Ms. Mbimbi’s argument that the Board misapprehended the evidence regarding at least some of her identity documents. [ 12 ] For example, the Board found that there was an inconsistency in Ms. Mbimbi’s evidence as to when she first saw the school transcripts that she provided to the Board to establish her identity. Ms.

Mbimbi claims in her affidavit that the Board misunderstood her evidence on this point, and that there was in fact no inconsistency in her testimony on this question. This argument cannot be evaluated without knowing what evidence was and was not before the Board on this point. [ 13 ] The Board also rejected an electoral card as proof of Ms. Mbimbi’s identity on the basis that the card did not conform to a format that was introduced in 2010. An electoral card is a key document in establishing the identity of a citizen of the DRC, as it is effectively a national identity card: J.M.T.K. v.

Canada (Minister of Citizenship and Immigration) , [2013] F.C.J. No. 1167 at para. 20 . [ 14 ] Although she admits that she told the Board that she got the card in order to vote in the 2011 election, Ms. Mbimbi also states in her affidavit that she had explained to the Board that she had actually obtained the document in 2009, before the changes to the form of the document were made. [ 15 ] While it was open to the Board to reject the explanation provided by Ms.

Mbimbi for the perceived irregularities in the form of the electoral card, it had an obligation to at least consider any explanation that she may have provided in this regard. Once again, the absence of a transcript of the hearing means that we cannot be sure what evidence was before the Board on this point, and there is thus no way to evaluate the reasonableness of its finding regarding the authenticity of the electoral card. III. Conclusion [ 16 ] As Ms. Mbimbi noted, a finding that a refugee claim has ‘no credible basis’ has serious implications for a refugee claimant.

At the end of the day, it will be for the Board to consider Ms. Mbimbi’s evidence addressing the concerns that have been identified with respect to her identity documents, and for the Board to determine whether her evidence satisfactorily addresses those concerns.

She is, however, entitled to address the perceived inconsistency in the signatures on the party documents, and to have her arguments regarding her evidence with respect to her other identity documents fully addressed – something that cannot be done in the absence of a transcript of the refugee hearing. [ 17 ] Consequently, the application for judicial review is granted. I agree with the parties that the case is fact-specific, and does not raise a question for certification.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed, and the matter is remitted to a differently constituted panel for re-determination. "Anne L. Mactavish" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1080-15 STYLE OF CAUSE: VANESSA ISHUNIYE MBIMBI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 20, 2015 JUDGMENT AND REASONS: MACTAVISH J.

DATED: October 22, 2015 APPEARANCES : Michael Crane For The Applicant Leila Jawando For The Respondent SOLICITORS OF RECORD : Michael Crane Barrister and Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent