Date: 19990618
Docket: IMM-4296-98
BETWEEN:
AIME BUKAKA-MABIALA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated August 5, 1998, wherein it was determined that the applicant was not a Convention refugee. The applicant seeks an order setting aside the decision and remitting the matter for reconsideration.
[2] The applicant is a citizen of the Democratic Republic of Congo (RDC) (former Zaire). He is married and has a son. His family is still in Africa.
[3] He fears persecution because of his political opinions. In 1989, he became a member of the political party "Union pour la démocratie et le progrès social" (UDPS). In 1994, he joined the "Direction politique rénovée" (DPR), which was a radical branch of the UDPS. From March 1995 to July 1995, he was the secretary of the Njili section. On July 29, 1995, the applicant participated in a protest against the Mobutu government. He was arrested along with other protesters, beaten and jailed for 24 hours. Upon his release, the guard made him sign a document stating he would no longer participate in public protests.
[4] Scared by this experience, the applicant sought a more discreet mission from his party. In February 1996, he made the first of several trips to Brazzaville, Congo, where he picked up political documents which had been sent from Bruxelles by the president of the DPR, Mr. Sita Nsomizeno Joseph. Upon his return, he photocopied the documents and distributed them to DPR sections.
[5] In October 1996, he returned from Brazzaville to find that his home had been ransacked. His documents had disappeared. His family was not home at the time, so they were not hurt. Since his photocopier had not been damaged, he photocopied and distributed the documents he had brought from Brazzaville on his last trip.
[6] On the evening of November 9, 1996, the applicant met some friends on his way home. These friends told him not to go home, which was apparently surrounded by Mobutu's agents. Other DPR members had been arrested. The applicant instead went to his grandparents' house and did not return home until mid-December 1996. He found his house ransacked; the furniture was broken and the photocopier had disappeared.
[7] The applicant feared for his life. he moved to the Congo. In mid-January 1997, he borrowed his friend's car to return home. When he entered his neighbourhood, he saw a car with four people parked in front of his home. These individuals began following him but he managed to escape.
[8] The applicant hid with family members. The DPR provided him with funds and organized his escape from Zaire. On February 1, 1997, the applicant travelled to the Congo in a canoe. He was given a false Congolese passport, which he used to travel to Paris. There, he was given a French passport to travel to Canada. He arrived in Toronto on February 8, 1997.
[9] The Board found that important elements of the applicant's testimony were implausible or contradictory.
[10] The Board first found implausible the fact that the applicant continued to photocopy propaganda after the first invasion of his home; the fact that the soldiers did not destroy or take away the photocopier, which was in full view in the applicant's bedroom, was suspect. His behaviour was inconsistent with that of a person who feared the authorities.
[11] The Board found the applicant testified in a hesitant and evasive manner when describing his own activities in the DPR. He had difficulty explaining the difference between the DPR and the UDPS. He was also hesitant when asked to identify other members of the DPR, which is suspect, considering the length of his involvement with the party.
[12] The documentary evidence reports little on the DPR, which seems to have disappeared from the Zaire political scene after 1992. The lack of documentary evidence contradicts the testimony of the applicant; according to him the DPR had been very active until his departure. The applicant and the documentary evidence both indicated that the UDPS no longer recognizes the existence of the DPR. It seemed implausible that the DPR would continue to use UDPS letterhead until 1996, as affirmed by the applicant.
[13] In the December 1995 issue of the newsletter "Muinda", there is an article about the "DPR/UDPS du Peuple", a radical branch which would have distanced itself from the UDPS due to political differences. It seemed suspect to the Board that the applicant never referred to the DPR in its full name "DPR/UDPS du Peuple".
[14] Despite being aware of the Zairean dispora in Canada, the applicant never got involved in their activities. He gave reasons other than political to explain his disinterest. According to the Board, this lack of participation and interest demonstrates a lack of political conviction which belies his claim of devotion to the politics of the RDC.
[15] The testimony relating to the incidents which led to his departure from Zaire (dates and number of the searches of his home) was confused and imprecise.
[16] The alleged actions of the applicant (his return to his country and more particularly his return to his home) after his house was ransacked and the arrest of other DPR members did not conform with the behaviour of someone who fears persecution.
[17] The applicant travelled in Zaire with an authentic national identity card. He had altered his address after the November 1996 event, for his own security. The Board found that travelling with an authentic identity card with the intention of showing it to authorities, despite having been identified in the past as an opponent of the regime, contradicted his alleged fear of persecution.
[18] Finally, the applicant alleged he was summoned by the Garde civile in July 1993 because of his political activities. The Board disregarded the summons; it did not cite the reason he was being convened. Considering the other contradictions in his testimony, the Board did not believe the summons related to his political activities.
[19] As a result, the Board rejected his claim that he was a political activist in his country, or that he would become one upon his return to the RDC. The claim for refugee status was denied.
[20] The question at issue is the following: Did the Board err in determining that the applicant was not credible?
[21] First, in my opinion, the fact that the photocopier was spared in the first invasion of the applicant's home is not implausible and they offered no evidence to contradict or support the reason for this determination.
[22] The Board also found that the applicant's continued activities, in the face of the raid of his home by soldiers, was inconsistent with his fear of persecution. The applicant submits this finding is perverse and I concur.
[23] In Samani v. M.C.I. (August 18, 1998) IMM-4271-97 (F.C.T.D.), Hugessen J. held that a finding of implausibility is rarely convincing when it is based on behaviour the Board finds dangerous. Politically committed persons often take risks.
[24] According to the Board, the applicant had difficulties when talking about the DPR and identifying other members. Evasiveness is usually unreviewable. Nevertheless, considering the six months delay between the conclusion of the hearing and the issuance of the decision, the finding had to be based more on the Board members' notes than on their immediate impression of the applicant's demeanour and conduct when testifying.
[25] I find that the applicant was able to name several members of the DPR. He should not be expected to know everyone in the party and remember the names of all the persons to whom he delivered propaganda.
[26] It appears from the transcript that the applicant was able to explain the difference between the UDPS and the DPR and when asked he was able to name the president and vice-president of his section, as well as the national president and national vice-president. He also described his role in the DPR.
[27] The Board found that the applicant's assertion that the DPR was very active in 1997 contradicts the documentary evidence which holds that the party has virtually disappeared from the Zairean political scene in 1992. The applicant submits that this finding is perverse; the Board itself refers to a newsletter issued in 1995 discussing the DPR.
[28] The Board also found it implausible that the DPR would continue to use UDPS's letterhead after being expelled from the party. The applicant argues this finding is also perverse. A faction may choose to use its old name, even if it splits off.
[29] The documentary evidence at page 228 contains this passage dated February 24, 1998:
| Joint par téléphone à Bruxelles le 24 février 1998, le représentant officiel de l'Union pour la démocratie et le progrès social (UDPS) en Belgique a signalé que son parti n'a aucun lien avec la Direction politique rénovée (DPR). Le représentant de l'UDPS a affirmé également que la DPR n'existe plus en Belgique ni au Congo. |
[30] At page 225, we find:
| Au cours d'un entretien téléphonique du 20 février 1998, le secrétaire exécutif du Conseil national de ONG de développement du Congo (CNONG) a signalé à son tour que la DPR est un parti politique composé des éléments dissidents de l'UDPS. Il a ajouté cependant que le parti n'a pas plus de structure organisationelle connue dans le pays. Bien avant même l'interdiction des activités des partis politiques par Kabila en juin 1997, la DPR n'était plus présente sur la scène politique au Zaire. |
[31] At the same page, the vice-president of the "Association zairoise de défense des droits de l'homme" and the general secretary of the UDPS confirm that the DPR has basically disappeared since 1992.
[32] The December 1995 issue of the newsletter "Muinda" contains an article from the president of the DPR. It seems that, while no longer a political force in Zaire, it still exists. The applicant had testified that the DPR was not very well known when he was in Zaire.
[33] I am not prepared to disturb this finding concerning the letterhead. On the other hand, it is plausible that a radical branch may continue to use the letterhead of a former umbrella organization.
[34] The Board found it odd that the applicant never referred to the DPR as the "DPR/UDPS du Peuple". In my view, this finding is at best unconvincing.
[35] It was found that the applicant never participated to UDPS activities in Canada. Yet, he testified he attended four political meetings of the UDPS in Canada since March 1997 and participated in one protest meeting.
[36] The Board found that travelling with an authentic identity card belied his fear of persecution. It appears the Board misapprehended the applicant's testimony. He testified that he had a card which bore his pictures, but had a fictious name, not a fictious address.
[37] I find no error in the Board's finding about the summons. It does not state the reason for which he was summoned. It could be for a reason other than his political activities.
[38] The Board found that the applicant's testimony was confused and that his actions, such as returning to his home after the arrest of his colleagues, belied a fear of persecution.
[39] Though the Court should be reticent and defer to the Refugee Board particularly when dealing with questions that the testimony is found to be questionable and evasive, I am mindful of the fact that in this particular case the decision was rendered some six months after the hearing. These findings are generally difficult or almost impossible to overturn; but the Board, in this particular case, seemed from the outset to be determined that one who is politically active should refrain from so doing when faced with persecution and hostility. This appears to be the underlying philosophy or reasoning behind this entire decision.
[40] The Board members enumerate a number of areas which it finds are contradictory or lack credibility. They found, without offering any evidence, that it would be improbable or impossible that when his home had been raided the photocopier would have been left in his room. A reading of the transcript does not in any way contradict this assertion. They then allege that he was evasive when describing the activities of the DPR and the UDPS. Once again, I find this to be contrary to what the transcript reveals. They then go on to determine that he was circumspect and hesitant when testifying about the identity of other members of the DPR. He did in fact name the president and vice-president of his section as well as the national president and vice-president. They were then concerned when an article in a magazine in December 1995 described the political movement as "DPR/UDPS du Peuple". The fact that the applicant referred to to the political movement to which he was an adherent as the DPR and, now and again as a militant branch within the UDPS does not in any way support their concern that he did not continuously refer to the party as the "DPR/UDPS du Peuple" and that, as a result, his testimony was not credible. They did not confront him with this so-called contradiction.
[41] They state that he did not join the group in Canada when the evidence reveals that he did attend some meetings and even one public demonstration. They were mistaken about evading capture or moving from one country to another with an identity card which had his name but had an altered address when the evidence clearly reveals that what he had altered was the name and not the address.
[42] I am satisfied that all these errors may have impacted on the Board's appreciation of the applicant's political convictions as well as his fear of returning to his home land.
[43] The Board members suggest that the applicant is not credible based on a number of errors that they made in their recollection of the hearing when writing the reasons some six months later.
[44] I am of the view that the Board's decision contains an unusual number of inconsistencies that convince me that it is inconceivable.
[45] Surely particulars of the lack of detail and of the inconsistencies should have been provided, likewise particulars of the applicant's inability to answer questions.
[46] For the above reasons, I allow the application for judicial review and I hereby return the matter for reconsideration by a differently constituted panel.
JUDGE
OTTAWA, Ontario
June 18, 1999