Date: 19990811
Docket: IMM-4518-98
BETWEEN:
GEORGINE KABALA MWIKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (CRDD) rendered 17 August 1998, wherein Ms. Kabala Mwika was determined not to be a Convention Refugee.
THE FACTS
[2] Ms. Kabala Mwika is a citizen of the Democratic Republic of Congo (DRC), ex-Zaïre. She claims to have a well-founded fear of persecution based on her perceived political opinion.
[3] Ms. Kabala Mwika"s husband was an official in the regime of the ousted president Mobutu.
[4] During the tumultuous period immediately following the coming to power of the new president, Laurent Désiré Kabila, Ms. Kabala Mwika and her husband were arrested and detained by Kabila"s soldiers. Upon arrival at the prison, the couple was separated. Ms. Kabala Mwika testified that she and her husband were both told that they were to be killed, along with others who had profited from the Mobutu regime. In fact, her husband was killed during this detention.
[5] After approximately seven days, through the help of her husband"s friend, she was released from prison and went into hiding. According to her testimony, she remained in hiding until her departure from the country.
THE DECISION
[6] The CRDD determined that Ms. Kabala Mwika was not a Convention refugee, since she, herself, had no history of political involvement. Although her husband would clearly fall into the category of leading or active members of pro-Mobutu parties, the Board was not persuaded that Ms. Kabala would be so considered, since : "she neither held political or diplomatic office nor is she a Mobutu family member."
[7] The Board considered the fact that her adult children, who were also threatened at the time of the September incident, remain in Kinshasa and stated that it was not convinced her children were at risk of persecution.
[8] Further, the Board concluded that, despite the fact that the applicant was an exception to the rule that relatives of those pursued by the DRC authorities are not imprisoned, she was no longer at risk : the chaos which reigned in Zaïre on arrival of the AFDL forces has normalized.
ISSUES
[9] Did the CRDD misconstrue the applicant"s claim as being based solely on her association with a former member of the Mobutu government, namely her husband, and, thereby, incorrectly assess her claim?
[10] Was the Board"s finding that the DRC authorities made no attempt to arrest her following her release from prison perverse, based on the fact that she was in hiding?
[11] Did the CRDD apply sexist stereotypes or demonstrate bias in determining the applicant"s claim based on "profiles"?
POSITIONS OF THE PARTIES
The Applicant
[12] The applicant submits that the CRDD failed to consider her fear of persecution based on the fact that she, herself, was arrested and detained, and that threats were made on her life. Instead, the applicant alleges, the Board simply based its assessment of her claim on the fact that she was the spouse of a political official at risk of persecution.
[13] The applicant also submits that the Board"s finding that the DRC authorities did not attempt to arrest the applicant following her release from prison is perverse, since the Board accepted the fact that she was in hiding during the entire period.
[14] Finally, the applicant submits that the Board relied on gross generalizations and sexist stereotypes in arriving at its conclusion that the "wife" of a political official cannot fear persecution in her own right.
The Respondent
[15] The respondent contends that the applicant did not meet the onus of establishing a well-founded fear of persecution, since she was not a member of a political party nor a Mobutu family member. Further, Zaïre is no longer in chaos; the situation has normalized.
[16] The respondent also submits that the Board did not draw a negative inference from the fact that the DRC authorities made no attempt to arrest the applicant while she was in hiding. This was simply a statement of fact: there was no evidence of DRC authorities making any effort to discover her whereabouts.
[17] Finally, the respondent concedes that assessing the applicant"s claim based solely on her lack of a "profile" may be incorrect. However, the respondent submits that there were many other factors, considered by the Board in arriving at its decision, which justify the overall conclusion.
ANALYSIS
Misconstrued the claim
[18] In my opinion, the CRDD misconstrued the applicant"s claim. In considering the categories of people who may need protection, the Board cited a UNHCR report stating that "leading and active members of MPR and its allies of the Forces Politiques du Conclave and other pro-Mobutu parties (created at the time of the National Conference on Mobutu"s initiative and with his financial assistance) might legitimately seek political asylum."1 The Board went on to determine that the claimant"s husband would have fallen into this category, but that the claimant did not. It stated that "she neither held political or diplomatic office nor is she a Mobutu family member."2 The Board concluded, therefore, that she was not at risk of persecution.
[19] In Ward v. M.E.I., [1993] 2 S.C.R. 689, the Supreme Court of Canada stated that the issue to be determined is not whether the claimant actually participated in the activities in question, but whether the state perceives the claimant to be a participant:
| The political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. |
[20] In the present case, the Board did not make a negative credibility finding with respect to the applicant"s testimony. It accepted that she was detained and that her life was threatened. It also accepted that she was released through the help of her husband"s friend and immediately went into hiding, where she stayed until her departure.
[21] In my opinion, the Board failed to consider the well-foundedness of the applicant"s fear of persecution based on her perceived political opinion. In other words, it misconstrued her claim, supra paragraph 19. Although she was not politically active, her testimony indicates that she was detained and threatened, as was her husband. It appears that the DRC authorities perceived her as profiting from the Mobutu regime and, thus, she became a target of persecution in her own right. Although her husband was killed and she was released, her release was obtained through the assistance of a friend and she promptly went into hiding.
[22] Further, the Board finds that "following her release, there is no evidence that the authorities attempted to rearrest her" yet, it accepts that she was in hiding from the moment of her release until her departure from the DRC. In the context of the decision, the Board appears to use this finding of fact to suggest that she will not be persecuted upon her return. I find that the Board drew a negative inference from the finding that no attempts at arrest were made after her release. In light of the uncontroverted evidence that the applicant was in hiding the entire time, I am of the opinion that the Board"s finding is patently unreasonable.
[23] In my opinion, this error, when coupled with the failure to consider her fear of persecution based on perceived political opinion, warrants a new hearing.
[24] The applicant also alleges that the Board proceeded on the basis of gross generalizations, sexist stereotypes and bias. However, none of these grounds was substantiated by the record.
CONCLUSION
[25] For all the above reasons, the application for judicial review is granted and the matter shall be sent back for reconsideration before a different panel.
"Max M. Teitelbaum"
_________________________________
J.F.C.C.
Ottawa, Ontario
August 11, 1999
__________________1 Exhibit R-1, p. 468, UNHCR Guidelines for Refugees and Asylum Seekers from the Democratic Republic of Congo, 5 January 1998.