Date: 19990127
Docket: IMM-1314-98
MONTRÉAL, QUEBEC, THE 27th DAY OF JANUARY 1999
| PRESENT: THE HONOURABLE MR. JUSTICE DENAULT |
BETWEEN:
SOPHIE NGOMA MABIALA
Applicant
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is dismissed.
Pierre Denault
Judge
Certified true translation
M. Iveson
Date: 19990127
Docket: IMM-1314-98
Between:
SOPHIE NGOMA MABIALA
Applicant
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J.
[1] The applicant, from the Democratic Republic of the Congo (former Zaire), is seeking judicial review of a decision of the Convention Refugee Determination Division, which dismissed her application for refugee status. She argues that the members erred in fact and in law in assessing the evidence as to whether her fear of persecution was well founded, in determining that the application was not based on one of the grounds set out in the Convention, and in failing to consider a major element of the evidence before it.
[2] I will immediately eliminate the last argument raised by counsel for the applicant concerning the Refugee Division"s failure to consider the possibility of political attribution resulting from the use of a counterfeit document, insofar as this is a purely theoretical question in the instant case. The applicant did not in fact refer to the use of such a counterfeit document in her statutory declaration, and this issue was not raised either during the applicant"s testimony before the Refugee Division or during her counsel"s representations.
[3] As a first argument, the applicant submits that because the Refugee Division did not question her credibility with regard to the extortion she suffered as a shopkeeper under the Mobutu regime, her testimony and the documentary evidence adduced at the hearing of her application concerning what is happening under Laurent-Désiré Kabila"s new regime should have been enough to persuade the members to grant her refugee status.
[4] Instead, after an exhaustive examination of the evidence, the Refugee Division determined that while the extortion problem certainly continued to exist [TRANSLATION] "to a certain extent", it was [TRANSLATION] ". . . much less frequent under Kabila . . .". The members also found that [TRANSLATION] ". . . measures [had been taken] against the members of his own forces who were involved in criminal activities" and that, in short, [TRANSLATION] "the documentary evidence does not support the allegations that particular groups were targeted, for example women who run businesses" (pages 2 and 3 of the decision). The Refugee Division thus found that there was [TRANSLATION] ". . . no more than a mere possibility that the claimant would be targeted, in the DRC/Z today, for the same kind of extortion she suffered in Mobutu"s Zaire".
[5] Since Yusuf v. Minister of Employment and Immigration (1995), 179 N.R. 11 (F.C.A.), it is now well established that the issue of whether there are changed circumstances in a country following the overthrow of the government or regime remains a question of fact. In the case at bar, even though the members found that extortion was still practised under the new regime, they could still conclude that, objectively and subjectively, there was only a minimal possibility that the applicant would be thus targeted. In Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680, the Court of Appeal held that in such a case the evidence had to be more conclusive.
[6] Last, the applicant submits that the Refugee Division erred in finding that her claim was not based on any of the grounds set out in the Convention. The members determined:
| [TRANSLATION] We find, based on the above-mentioned evidence, that the members of the state security forces who are engaging in criminal activities which may target the claimant are doing so as individuals attacking other individuals because of the suspected wealth of the latter. Accordingly, there is no connection with the Convention definition. |
The applicant argues that her fear of persecution was based not only on her social status as a shopkeeper"she had three shops which she was forced to close because of the extortion she suffered"but also because of the fact that she was divorced and alone. She criticizes the members for not having regard to this factor in assessing the grounds warranting her fear of persecution.
[7] I believe that this argument does not hold. First, the members were certainly not unaware that the applicant was divorced and indeed a widow because it is mentioned at the beginning of their decision. As for the fact that she was alone, the members no doubt decided to disregard it as they determined she owned shops [TRANSLATION] ". . . which she ran with the help of six employees, including three of her children" (page 1 of the decision). In refusing the claim for refugee status on the ground that the documentary evidence did not support the allegations that [TRANSLATION] "women who run businesses" were a target group, the members were therefore well aware of the applicant"s status. Accordingly, we can find no error in fact or in law on this issue in the decision, especially because in my view, the members were required in the instant case to examine the claim as it was presented to them, namely that of a woman shopkeeper, without disregarding the terms used.
[8] For these reasons, the application for judicial review is dismissed. This case does not raise any serious question of general importance.
Pierre Denault
Judge
Certified true translation
M. Iveson
Trial Division of
the Federal Court of Canada
Date: 19990127
Docket: IMM-1314-98
Between:
SOPHIE NGOMA MABIALA
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1314-98
STYLE OF CAUSE: SOPHIE NGOMA MABIALA
Applicant
AND
| MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 21, 1999
REASONS FOR ORDER OF DENAULT J.
DATED: January 27, 1999
APPEARANCES:
Nicole Goulet for the applicant
Jan Brongers for the respondent
SOLICITORS OF RECORD:
LEBLANC, DIOGUARDI
Hull, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent