Date: 19981222
Docket: IMM-865-98
OTTAWA, ONTARIO, TUESDAY DECEMBER 22, 1998
BEFORE: TEITELBAUM J.
BETWEEN:
EMMANUEL BERNARD LELO
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons stated in my Reasons for Order, the application for judicial review is allowed and the matter is referred back for re-hearing before board members other than Corinne Côté-Lévesque and Normand Longchamps.
Max M. Teitelbaum
J.F.C.C.
Certified true translation
Bernard Olivier
Date: 19981222
Docket: IMM-865-98
BETWEEN:
EMMANUEL BERNARD LELO
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
[1] The applicant submitted an application for judicial review of the decision of February 9, 1998, by which the Immigration and Refugee Board held that Mr. Lelo is not a Convention refugee. The applicant asks this Court to reverse the decision of February 9, 1998 and to refer this matter back for decision in accordance with the directions of this Court.
FACTS
[2] The applicant, a citizen of the Congo, claimed refugee status on account of his membership in a social group, the Lari tribe. He did his studies in the Ukraine and Moscow from 1988 to 1996 as part of an intergovernmental agreement between the Congo and Russia. In July 1993, he went back to the Congo for about a month on holiday and to collect statistical information for his Master's degree. The political situation at that time was unstable. The applicant stated that on July 28, 1993, four Zulus came to his uncle's home where he was living. They killed his uncle and arrested his uncle's wife, the applicant and his brother. They were held by Zulu militia connected to the party in power in a small house temporarily converted for this purpose until July 31, when a friend of their uncle helped them to escape. The applicant remained in hiding for a time and went back to Moscow to continue his studies, and had no difficulty leaving the country. In 1996, the applicant obtained a study visa to study at Laval University in Quebec. Five months after his arrival, he claimed refugee status. In the decision of February 9, 1998 the Board found that there was no objective basis for the applicant's fear of prosecution and he was not a Convention refugee.
Board's decision
[3] The Board dismissed the applicant's refugee claim for the following reasons:
| [TRANSLATION] |
| The applicant did not establish to the tribunal's satisfaction a reasonable fear of prosecution for the reason given. |
| According to the facts stated by the applicant himself, there is no objective basis for his fear. |
| The applicant told the tribunal that he was able to leave the Congo quite freely in August 1993 despite his escape and the measures taken against Laris by the government. He also had his passport renewed in May 1995 and was able to study in Moscow using grants from the Congolese government. |
| Further, he waited five months before claiming Canada's protection. That is not the behaviour of someone who fears persecution. |
| To this may be added the fact that the persecuting agent, the Lissouba government, is no longer in power. |
PARTIES' SUBMISSIONS
[4] The applicant made two arguments in support of his application for judicial review. Firstly, he alleged that the Immigration and Refugee Board had erred in law when it based its finding that there was no objective basis for the applicant's fears of persecution on findings of fact which, based on the evidence as a whole, were erroneous if not absurd. Secondly, the applicant alleged that the Board erred in failing to consider and comment upon the applicant's explanation of the delay before he claimed refugee status and to give reasons why this delay was unreasonable.
[5] The respondent noted that the Board's finding that there was no objective basis for the fears of persecution was reasonably based on the applicant's oral and documentary evidence and that the Board was right in concluding as it did. The respondent submitted that the deadline was not decisive in the Board's decision, but it was a relevant factor which the Board could take into account in assessing the credibility of a claim.
POINTS AT ISSUE
[6] This application for judicial review raises the following points:
| (A) Was the Board's decision based on unreasonable findings of fact, in light of the evidence as a whole? |
| (B) Did the Board err in failing to consider and comment on the applicant's explanations of the delay before he claimed refugee status and give reasons why this delay was unreasonable? |
ANALYSIS
Assessment of evidence
[7] The applicant argued that the Board's decision regarding the absence of an objective basis for the fear of persecution was erroneous and unreasonable in view of the oral and documentary evidence as a whole. The applicant alleged that the Board had based its decision essentially on erroneous and unreasonable findings of fact, in particular:
| (A) "the applicant told us he was able to leave the Congo freely in August 1993 despite his escape and the measures taken against Laris by the government"; |
| (B) "he renewed his passport in May 1995" despite the fact that he was being sought by the government; |
| (C) "he was able to study in Moscow using grants from the Congolese government"; |
| (D) "the persecuting agent, namely the Lissouba government, is no longer in office". |
[8] The applicant noted that the Board had completely misunderstood a point of fact essential to his claim when it found in its decision that [TRANSLATION] "the government at the time was hunting down members of the Lari tribe". The applicant argued that it was not the government but the Zulu militia who were attacking the Lari tribe, to which he belonged. The applicant explained that the militia, whether Lissouba's "Zulus", Kolélas' "Ninjas", or Nguesso's "cobras" are affiliated with political parties but should not be confused with the police or the army, just as the party in power should not be confused with the government since they were separate entities. The applicant explained that he did not fear the government in 1993 and does not fear it now. The change in government does not lessen his fears of persecution, since they are connected with the existence of Zulu militia which are armed and operating in the Congo. The applicant further submitted that he was not detained by the government in 1993 but by the Zulus, and he was able to leave the Congo by plane since he had no problems with the government. As to his studies in Russia, they were not paid for by the Congolese government but by Russia as part of an intergovernmental agreement between the two countries. The Board erred in assessing the aforementioned facts, which were the essential basis of its decision.
[9] The respondent contended that the Board's conclusion was correct and reasonable based on the documentary and oral evidence. In particular, this conclusion was based on his personal information form (PIF), in which the applicant stated inter alia that [TRANSLATION] "Bacongo was still the target of the Congolese government's army, which had organized attacks leaving hundreds of dead and injured among the Laris: I lost my father as a result" (lines 78 to 81); the attack of July 28, 1993 was perpetrated by the Zulus of UPDAS, the Union panafricaine pour la démocratie sociale (the party in power) (lines 32 to 36); and that it was not possible to obtain protection from the Congolese authorities since they commanded the militia (lines 103 to 107).
[10] It must be determined in the case at bar whether the Board's decision was based on erroneous and unreasonable findings of fact in view of the evidence as a whole. I am not required to substitute my assessment of the facts for that of the Board, but simply to determine whether the Board's findings of fact were wrongful, arbitrary or did not take the evidence into account.
[11] The evidence in the record includes the applicant's PIF, newspaper articles dealing with the political situation in the Congo and the transcript of the hearing. As the respondent pointed out, the applicant's PIF includes certain passages on which the Board's findings of fact were based. In my opinion, two of these passages may be open to a different interpretation. In particular, the applicant's account of the attack by the four UPADS Zulus and the fact that the Zulus were directed by the government also suggests that the Zulu militia are a distinct entity from the army and from the government. However, that is not sufficient to conclude that the Board's assessment of the facts was unreasonable. The Court must also examine newspaper articles and the transcript of the hearing held on December 8, 1997. The applicant referred to passages from newspaper articles, in particular at page 13 of the applicant's record, where it states in an article in the Monde Hebdomadaire that [TRANSLATION] "political parties are currently continuing to keep on their payroll militia which have created a reign of terror and are still trying to obtain weapons, although in theory the army has been directed to neutralize them". At page 14, the following passages appear:
| [TRANSLATION] |
| These well-armed militia have created a reign of terror in Brazzaville. At least two thousand people have been killed in the fighting from July 1993 to July 1994, in a civil war which has never been openly declared. |
| Tons of weapons entered the Congo during this period: officially for the army and the police, unofficially for the government and secretly for the other militias. |
. . . . .
| However, political parties secretly continue to seek weapons for their militias. It may seem all the more paradoxical that in December the Congo organized a "Forum on peace culture" in Brazzaville attented by six African heads of state. |
[12] At page 15 it states:
| [TRANSLATION] |
| Since the abandoning of a single-party regime in 1991 parties have developed on a regional basis, each with its militia. Thus, President Lissouba can rely on the Mouvance présidentielle parties, chief among whom are his Union panafricaine pour la démocratie sociale, whose sphere of influence is in Nibolek. Militarily, the Mouvance présidentielle can count on the army, the Aubevillois Militia (the name of the locality in which its members were trained by Israeli mercenaries) and on the Zulus. |
[13] At page 16, the applicant refers the Court to another article in the Monde Hebdomadaire, in which the following appears:
| [TRANSLATION] |
| What is to be done about the large number of militia that have been part of the Congolese political scene since 1993? The recent mutiny of about a hundred former militiamen close to power who were incorporated in the army has reopened the issue. The armed "Zulu" wing of the Union panafricaine pour la démocratie sociale (UPADS) of chief of state Pascal Lissouba, the "Ninjas" of the Mouvement congolais pour la démocratie et le développement intégral (MCDDI) of Bernard Kolélas, mayor of Brazzaville and leader of the opposition, and the "cobras" of the former single party, the Parti congolais du travail (PCT) of the former president, General Denis Sassou N'Guesso, still represent a potential threat to the country's stability. |
| Created following disputed legislative elections of 1993, these militia took part in bloody battles which pitted opposition supporters against part of the army, managed by the "Zulus", who were close to power. Battles for control of the southern sectors of the capital, where the opposition leader M. Kolélas was entrenched, officially resulted in two thousand deaths. Three years later, "ninjas", "Zulus" and "cobras", though no longer fighting each other, have not disappeared. Their number is estimated at about five thousand men under arms. |
[14] The hearing transcript further indicated at pages 244 and 245 of the Court record that the applicant's studies were not paid for by the Congolese government but by Russia as part of an agreement between the Congo and Russia; at page 258 that he had no difficulty returning to Russia after the incident with the Zulus since the applicant was not in conflict with the government; and at page 253 that his passport was easily renewed by a friend who went to the Congo, the reason being the same, namely that he was not in conflict with the government.
[15] It further appeared from the evidence that the Board's findings about the fact that the government was hunting down members of the Lari tribe and that the Congolese government paid for the applicant's studies in Russia were actually incorrect. Moreover, I cannot see how, based on the evidence as a whole, the Board could reasonably have relied on the fact that he could leave the Congo without difficulty and was able to get his passport renewed without difficulty as a basis for concluding that no objective fear of persecution in the Congo existed. This premise was improperly based on the fact that the government was responsible for persecuting members of the Lari tribe, whereas it appeared from the applicant's testimony that it was the Zulu mitilia who was persecuting them. The Board's decision gave no other reason to support its refusal to grant the applicant refugee status and so cannot be allowed, since it is based essentially on erroneous and unreasonable findings of fact.
Deadline for claiming refugee status
[16] The applicant noted that the Board had erred in failing to consider and comment on his explanations to justify the delay before he claimed refugee status. The respondent argued that this was not a crucial aspect of the decision and that the Board was right to take this point into account.
[17] On this point, I must observe that it is not enough to say simply, after four months' delay, [TRANSLATION] "that is not the behaviour of someone who fears persecution". If it comes to a negative conclusion, the Board must give reasons for doing so, brief though they may be.
CONCLUSION
[18] In view of the oral and documentary evidence as a whole, the Board's conclusion is based essentially on erroneous and unreasonable findings of fact. The Board's decision is based on the premise that the government of the Congo was responsible for the persecution, while the applicant maintained that he did not fear the government but the Zulu militia which was attacking the Lari tribe, and that the evidence showed that the Zulu militia, though close to power and subsidized by the government, was a separate entity. In the case at bar, the premise on which the Board's decision was based was erroneous and unreasonable.
[19] I therefore allow the application for judicial review and refer this matter back for re-hearing before Board members other than Corrine Côté-Lévesque and Normand Longchamps.
[20] The parties have submitted no questions for certification.
Max M. Teitelbaum
J.F.C.C.
Ottawa, Ontario
December 22, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-865-98
| STYLE OF CAUSE: EMMANUEL BARNARD LELO v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTREAL, QUEBEC |
| DATE OF HEARING: DECEMBER 17, 1998 |
REASONS FOR ORDER BY TEITELBAUM J.
| DATED: DECEMBER 22, 1998 |
APPEARANCES:
| DENIS BURON FOR THE APPLICANT |
| DANIEL LATULIPPE FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| DENIS BURON FOR THE APPLICANT |
MONTREAL, QUEBEC
| MORRIS ROSENBERG FOR THE RESPONDENT |
DEPUTY ATTORNEY GENERAL
OF CANADA