Date: 19980506
Docket: IMM-3865-97
OTTAWA, ONTARIO, THE 6th DAY OF MAY 1998
Present: THE HONOURABLE MR. JUSTICE RICHARD
Between:
VICKI NKONGOLO-BEYEA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON an application for judicial review of a decision of the Immigration and Refugee Board dated August 15, 1997 in which the panel determined that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act;
THE COURT HEREBY ORDERS THAT:
The application for judicial review is dismissed.
John D. Richard
Judge
Certified true translation
Peter Douglas
Date: 19980506
Docket: IMM-3865-97
Between:
VICKI NKONGOLO-BEYEA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the panel) dated August 15, 1997. In that decision, the panel determined that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
Facts
[2] The facts of the case are brief and are not in dispute.
[3] The applicant is a member of the Luba ethnic group and a citizen of the Democratic Republic of the Congo (formerly Zaire). In July 1991, he joined the youth wing of the Union for Democracy and Social Progress (U.D.P.S.) in the Lemba zone of Kinshasa.
[4] On February 16, 1992, the applicant took part in a march for democracy which was broken up by the military. He then fled. That evening, two members of the Civil Guard [Garde civile] arrested the applicant at home and he was detained at the Tshatshi camp for 48 hours.
[5] Early in 1995, the applicant was working to make young people aware of elections scheduled for the following July. In April, a friend of the applicant who was involved in the Zairian Voters" League [Ligue zaïroise des électeurs ] disappeared without explanation.
[6] On August 18, 1995, the applicant called on young people to obey the "ghost town" ordered by the U.D.P.S.
[7] On February 28, 1996, members of the Civil Guard went to the applicant"s home to arrest him. He was not there, but they beat his parents and ransacked their house. The next day, the applicant moved to the home of a U.D.P.S. member in a neighbouring zone.
[8] On May 25, 1996, fearing for his life because he was a member of the U.D.P.S. and was of Kasaian origin, the applicant fled the D.R.C. to seek refuge in Canada.
The Decision of the Refugee Division
[9] The panel accepted the chief events as related by the applicant and did not impeach his credibility.
[10] The hearing took place in Ottawa on April 22, 1997 and the decision was reserved. In May 1997, following the political takeover by the Alliance of Democratic Forces for the Liberation of Congo-Zaire (A.F.D.L.) and the departure of the Mobutu government and its supporters, the panel informed counsel for the applicant that it would be necessary to provide further argument going to the "change in circumstances" in the D.R.C.
[11] On August 15, 1997, the panel held that given the change in circumstances in the D.R.C., it was unable to believe that the applicant had an objective fear of persecution if he were to return to that country.
Issue
[12] Did the panel err in its interpretation of what constitutes a "change in circumstances"?
Change in circumstances
[13] The fact that the political situation in a claimant"s country of origin has developed to the point of removing the grounds which gave rise to his fear of persecution is a relevant fact in the determination of his Convention refugee status.1
[14] The issue of a change in circumstances is a question of fact, as the Federal Court of Appeal pointed out in Yusuf.2 There is no predefined legal test for determining whether there has been a change in circumstances in a given country. It is up to the panel to determine, in light of the documentary evidence available to it, whether there has in fact been a change in circumstances and whether the applicant"s objective fear is still well-founded.
[15] In the instant case, the panel analysed the new political situation in the D.R.C. at length. Although it acknowledged that the political situation in the D.R.C. was not yet ideal, the panel found no evidence to support the applicant"s fear of persecution with respect to the new government of Laurent Kabila.
[16] The applicant has not discharged his burden of showing that the inferences drawn by the Refugee Division, an expert tribunal, could not reasonably have been drawn.
[17] The application for judicial review is accordingly dismissed. In my view, there is no question requiring certification.
John D. Richard
Judge
Ottawa, Ontario
May 6, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3865-97
STYLE OF CAUSE: Vicki Nkongolo-Beyea v.
Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 5, 1998
REASONS FOR ORDER BY Richard J.
DATED: May 6, 1998
APPEARANCES:
Robert K. Riley FOR THE APPLICANT
Marie Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert K. Riley FOR THE APPLICANT
Ottawa, Ontario
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
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