NOELLIE NGOYA MPOLI, GUSTAVINE WA YAMBA ESTHER Applicants v. THE MINISTER OF CITIZENSHIP, 2003 FCT 398

Date: 20030403 Docket: IMM-2098-02 Citation: 2003 FCT 398 Montréal, Quebec, April 3, 2003 Present: THE HONOURABLE MR.

JUSTICE SIMON NOËL BETWEEN: NOELLIE NGOYA MPOLI, GUSTAVINE WA YAMBA ESTHER Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) dated April 19, 2002, that the applicants are not Convention refugees. [ 2 ] The applicants, who are citizens of the Democratic Republic of the Congo (DRC), alleged that they had a well-founded fear of persecution because of their perceived political opinions and their membership in a social group, that of persons having links to the Lebanese. [ 3 ] Essentially, the main applicant (hereinafter the "applicant") alleged she was sought by the Congolese authorities because they thought she was associated with those responsible for the assassination of President Kabila, more particularly with some Lebanese.

In 1997, the applicant worked as a cashier in a store the owner of which was Lebanese. In 1999, she opened her own shop in Kinshasa and her former employer became her supplier. [ 4 ] The CRDD first questioned the applicants' identity, commenting to this effect on the applicants' birth certificates and noting that they did not resemble the specimen birth certificate according to exhibit A-2 of the CRDD file.

The CRDD did not make an express finding that it did not believe the applicants' identity, but the decision implies that the applicants' credibility was affected by the doubt. [ 5 ] The applicants allege that the CRDD erred in doubting their identity and the extracts from the birth certificate without consulting expert opinion. It is acknowledged that the CRDD has jurisdiction to examine the authenticity and probative value of identity documents.

However, normally, when the documents come from the government, they are presumed to be authentic unless the CRDD can rely on contradictory evidence challenging the authenticity of the identity document. In the case at bar, the CRDD did in fact rely on a specimen birth certificate contained in the appendix to a document entitled Report on the roving attaché mission to Bujumbura, Burundi and Kinshasa, Democratic Republic of the Congo, Danish Immigration Service, Jan. 2000. However, I note that the CRDD compared a specimen birth certificate with the applicants' birth certificates.

Two documents that did not have the same meaning were compared. Moreover, the CRDD did not think it appropriate to inform the applicants of the concern it had about the birth certificates so that they could reply. [ 6 ] I think this is a patently unreasonable error. The CRDD's identity analysis is essential for the purposes of the investigation and ultimate determination that is to be made.

The CRDD had some doubt about the documents and this doubt could not help but influence it when analyzing the remainder of the evidence and the other findings. [ 7 ] Having found the patent error referred to above, I do not intend to comment on the other findings by the CRDD. [ 8 ] Counsel have not suggested any questions to be certified. ORDER The application for judicial review is allowed, the decision of the CRDD is set aside and the matter will be returned to the Refugee Protection Division for rehearing before a differently constituted panel. "Simon Noël" Judge

Certified true translation Suzanne Gauthier, C. Tr., LL.L.

FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20030403 Docket: IMM-2098-02 Between: NOELLIE NGOYA MPOLI, GUSTAVINE WA YAMBA ESTHER Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET NO: IMM-2098-02 STYLE: NOELLIE NGOYA MPOLI, GUSTAVINE WA YAMBA ESTHER Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: April 2, 2003 REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR.

JUSTICE SIMON NOËL DATED: April 3, 2003 APPEARANCES : Alain Joffe FOR THE APPLICANTS

Claudia Gagnon FOR THE RESPONDENT SOLICITORS OF RECORD : Alain Joffe FOR THE APPLICANTS Montréal, Quebec Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Montréal, Quebec