Date: 19981006
Docket: IMM-4587-97
OTTAWA, ONTARIO, THE 6th DAY OF OCTOBER 1998
Present: THE HONOURABLE MR. JUSTICE LUTFY
Between:
JEAN-MICHEL LUASAMBUTA TSHIMANGA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON hearing this judicial review at Toronto, Ontario, on September 18, 1998;
THE COURT ORDERS THAT:
1. The application for judicial review is allowed.
2. The Refugee Board"s decision of September 30, 1997, is quashed, and the matter is referred back to a different panel for rehearing and redetermination.
Allan Lutfy
Judge
Certified true translation
Peter Douglas
Date: 19981006
Docket: IMM-4587-97
Between:
JEAN-MICHEL LUASAMBUTA TSHIMANGA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant, a national of the former Zaire, claims refugee status by reason of his political profile as a member of the Union for Democracy and Social Progress (UDPS).
[2] The Convention Refugee Determination Division did not make any adverse findings as to the applicant"s credibility. Rather, it identified the main issue as the change of circumstances following the May 17, 1997, political takeover by the Alliance of Democratic Forces for the Liberation of Congo (AFDL) under the leadership of Laurent Kabila.
[3] The hearing before the Refugee Division was held on August 12, 1997, about three months after the change of government in Zaire, which is now the Democratic Republic of Congo.
[4] The Division found that the applicant"s political profile, which was not an active member"s profile, did not attract the attention of the new government. In referring to this change of circumstances, the Division said the following:
| [TRANSLATION] Having regard to the analysis of the documentary evidence, the panel is of the view that there is no reasonable and objectively foreseeable possibility that the claimant will be persecuted by the AFDL forces by reason of his affiliation with the UDPS political party in the event of his return there. The panel is of the view that there is insufficient evidence to show that the AFDL authorities arrest the members of political parties on the ground that they belong to, or sympathize with, a political party. The short periods of detention that took place after the AFDL"s political takeover were noted during public demonstrations not authorized by the new government. |
[5] However, the following passages are taken from the July 1997 documentary evidence:
| C [TRANSLATION] The spokesperson [for the leader of the UDPS], whose comments were aired by the Belgian broadcasting corporation (RTBF) on July 3, 1997, stated that 50 UDPS members were arrested and detained for between three and five days. (Response to Information Request, Immigration and Refugee Board, Ottawa, July 15, 1997) |
| C Some 50 UDPS activists, including the leaders of the party"s youth branch, have been in jail for at least three to five days. Some are being held at Kokolo camp and others at Ndolo military prison. They are being tortured and beaten. The representatives we sent to visit them came back with detailed accounts testimonies on their poor state and on the ill-treatment to which they are being subjected. (BBC Summary of World Broadcasts, July 5, 1997) |
| C Since the beginning of the armed conflict, which began in eastern Zaire in October 1996, Amnesty International has been documenting human rights abuses committed by the AFDL and their allies. These abuses have included large-scale deliberate and arbitrary killings, "disappearances", torture and arbitrary arrests. In the short time since the AFDL have taken control of the whole country and established a transitional government, many more severe violations have continued to be reported, particularly against actual and perceived supporters of former President Mobutu Sese Seko and members of opposition political parties, which have been banned. (Amnesty International, AI Index: AFR 62/20/97, July 4, 1997) |
[6] In Kalunda v. Minister of Citizenship and Immigration,1 the Division dismissed another UDPS member"s refugee claim after describing his political profile in the party as "passive". The hearing was held on July 29, 1997. The Division"s decision was based on the change of circumstances. The panel"s reasons in Kalunda were put in substantially the same terms as in the reasons for the decision under judicial review here. According to the Division, the overriding of civil rights during the change of government in the Democratic Republic of Congo does not amount to persecution. Mr. Justice Hugessen allowed the application for judicial review, saying:
| In my view, that finding is perverse. The Board had before it evidence of a great deal more than simple short periods of detention imposed on members of the UDPS. Even at the time of the Board"s hearing, there was evidence in the documents before it of killings of peaceful protesters on at least two occasions, of prolonged detention of peaceful protestors, of them being held incommunicado and being subjected to what can only be described as torture. No amount of chaos justifying a suspension of civil rights can be held to justify torture and killing of innocent protestors. In my view, as I say, the Board"s finding was perverse. I note in particular that while this evidence was before the Board, it at no time indicated that it rejected that evidence. It was of course entitled to do so if it wanted to, but it certainly could not do so by simply ignoring it. |
I fully agree with Hugessen J.
[7] In short, the documentary evidence did not support a finding by the Division that UDPS members could have openly expressed their political opinions against the new government without fear of persecution. The change of circumstances described by the Division could not justify its decision not to recognize the substantiated risk of persecution to the applicant, were he to be returned to his country of nationality.
[8] For these reasons, the application for judicial review will be allowed and the matter will be referred back to the Board for rehearing. The parties did not suggest the certification of a serious question.
Allan Lutfy
Judge
Ottawa, Ontario
October 6, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-4587-97
STYLE OF CAUSE: Jean-Michel Luasambuta Tshimanga v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 18, 1998
REASONS FOR ORDER BY: The Honourable Mr. Justice Lutfy
DATED: October 6, 1998
APPEARANCES:
Robert Néron for the applicant
David Tyndale for the respondent
SOLICITORS OF RECORD:
Robert Néron for the applicant
Toronto, Ontario
Morris Rosenberg
Deputy Attorney General of Canada for the respondent
__________________1 (September 15, 1998), IMM-4379-97 (F.C.T.D.). The Court also intervened in two other cases involving UDPS members: Okitokenge v. Minister of Citizenship and Immigration (September 15, 1998), IMM-4566-97 (F.C.T.D.), Mr. Justice Hugessen, without reasons; and Mbiya v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1001 (QL) (F.C.T.D.), Mr. Justice Décary. The Court refused to allow applications for judicial review regarding two other UDPS members, whose submissions had been received by Division panels shortly after the Kabila government came to power: Kandolo v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 810 (QL) (F.C.T.D.), Mr. Justice Heald; and Nkongolo-Beyea v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 580 (QL) (F.C.T.D.), Mr. Justice Richard.