Date: 19990713
Docket: IMM-4801-98
OTTAWA, ONTARIO, THE 13th DAY OF JULY 1999
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
PAULINE LUSSEVIKUENO
DANIELA POMBO KIWA
ARIANA MAZINGU KIWA
Applicants
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review is dismissed.
MARC NADON
Judge
Certified true translation
Peter Douglas
Date: 19990713
Docket: IMM-4801-98
Between:
PAULINE LUSSEVIKUENO
DANIELA POMBO KIWA
ARIANA MAZINGU KIWA
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
NADON J.:
[1] On August 26, 1998, the Convention Refugee Determination Division (the Refugee Division) held that the applicants were not Convention refugees. The applicants challenge that decision through their application for judicial review.
[2] The applicants are all citizens of Angola. The principal applicant is the mother of the other two applicants. They came to Canada on November 26, 1997, and claimed refugee status.
[3] The mother"s claim is based on events that allegedly occurred on October 31, 1997, when she was visited by four men belonging to a separatist movement called the Cabinda Enclave Liberation Front (FLEC). Suspecting she was an Angolan government informer, the men beat her. She then told them some of her cousins and other relatives were in the FLEC, fighting for Cabinda"s independence. Before releasing her, they told her they were going to keep investigating her and her statement, and that if the information provided was not accurate, they were going to kill her and her children. The next day, she fled to Luanda, the capital of Angola, and went to her brother. After telling her it was dangerous for her to stay in Luanda, her brother contacted a smuggler, who brought her to Canada.
[4] The Refugee Division dismissed the mother"s claim as well as her daughters". In the first place, the Refugee Division questioned the mother"s credibility and thus the truth of her story. The Refugee Division also found that the applicants could have taken refuge elsewhere in Angola, particularly in Luanda, where two of her brothers and her fiancé live. Based on an Agence France Presse article dated October 15, 1997, the Refugee Division noted that battles between government and FLEC forces were limited to part of the Cabinda enclave and did not reach the western part of the enclave, which includes the city of Cabinda. The "Country Report on Human Rights Practices for 1997" for Angola says the following:
Civilians reportedly were killed in the cross-fire between the Angolan National Army and the armed factions of the Cabinda Enclave Liberation Front (FLEC). Fighting is concentrated in the northern areas of Tandu-Zinze, Kuku-Zau, and Belize.
[5] I fully agree with counsel for the respondent that there was no evidence the FLEC was operative in the capital of Angola. In my view, the applicants were unable to meet the burden of proof that lay on them; they had to show a well-founded fear of persecution in all of Angola, including the capital. In Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 at 594-95 (F.C.A.), Mr. Justice Linden said the following on the burden of proof on a refugee claimant with respect to the issue of internal flight:
| In Rasaratnam, supra, this Court also addressed and settled the question of who bears the burden of proof with respect to an IFA. In Rasaratnam, it was argued unsuccessfully before this Court that the onus is not on the claimant to disprove an IFA once the claimant has shown a well-founded fear of persecution in one part of a country. Mahoney J.A. held that, since the question of whether or not there is an IFA is simply part and parcel of whether or not the claimant is a Convention refugee, the onus of proof rests on the claimant to show, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA. |
In other words, Convention refugee claimants carry the onus of establishing that they satisfy all of the components of the definition of a Convention refugee as set out in subsection 2(1) of the Act. An important component of that definition may be whether, in a particular case, there is an IFA. But it remains only a component of the final issue to be decided"namely, whether the claimant is a Convention refugee. Accordingly, I do not think it possible to conclude that, in so far as the IFA issue is concerned, the original onus carried by the refugee claimant, should, somehow, be shifted to the Minister.
[6] In my view, the applicants were unable to show that they were in danger of being persecuted in Luanda. The Refugee Division made no error in finding as it did.
[7] In view of my finding on the internal flight issue, there is no need to consider the Refugee Division"s decision regarding the principal applicant"s credibility. For these reasons, the application for judicial review will be dismissed.
[8] As I said to both counsel during the hearing, the transcript of the hearing of June 23, 1998, is "scanty". It appears that of the panel members, the refugee claims officer and counsel for the applicants, no one proposed to ask the questions that needed asking in order to bring out the facts relevant to determining whether the principal applicant"s account was true. Everyone involved seemed content with mere generalities that, in my view, were of little assistance. Unfortunately for the applicants, the burden of proof lay on them, and they failed to show that it would be unreasonable for them to take refuge in the capital of Angola. Even though the panel members and the refugee claims officer repeatedly kept counsel for the applicants from doing her job, she did have a chance to ask whatever questions she considered relevant in order to demonstrate her clients" fear.
[9] In conclusion, despite Mr. Montbriand"s very able argument, I am not convinced that the Refugee Division erred in finding that there was an internal flight alternative in Angola for the applicants. The application for judicial review is accordingly dismissed.
| Ottawa, Ontario MARC NADON |
July 13, 1999 Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4801-98
STYLE OF CAUSE: PAULINE LUSSEVIKUENO v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 7, 1999
REASONS FOR ORDER OF NADON J.
DATED JULY 13, 1999
APPEARANCES:
JEAN-MICHEL MONTBRIAND
FOR THE APPLICANTS
DANIEL LATULIPPE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEAN-MICHEL MONTBRIAND
FOR THE APPLICANTS
DANIEL LATULIPPE
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada