Date: 19990331
Docket: IMM-2883"98
BETWEEN:
Mbengi LUTETE and
Bokungu LUTETE (minor child)
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board), dated April 28, 1998, in which the Board determined that the applicant and her child are not Convention refugees.
[2] The hearing was held in both official languages, partly in French and partly in English, and the parties agreed that the decision would be written in French.
FACTS
[3] The principal claimant, Mbengi Lutete, a citizen of the Democratic Republic of the Congo, 34 years of age, is claiming "Convention refugee" status by reason of her membership in a particular social group, namely as the daughter of a Zairian mother of Rwandan Hutu origin, and by reason of her former position as secretary at the Banque Nationale du Congo .
[4] Her minor daughter, Bokungu Lutete, 2 years old, is claiming refugee status for the same reasons as her mother.
[5] The principal claimant identified the authorities under Kabila, the new president of the Democratic Republic of the Congo, as the agents of persecution she fears. She also fears for her minor daughter.
[6] Kabila took power on May 17, 1997, after the claimant"s departure. The claimant says that she fears the authorities under Kabila because his government includes mainly Tutsis.
[7] She fears persecution of herself and her minor daughter by Kabila"s officials, who are predominantly Rwandan Tutsis, by reason of the ethnic origin of her mother and her physical appearance, which is similar to that of ethnic Hutus.
DECISION OF THE BOARD
[8] The panel is of the view that there is no reasonable chance that if the claimants returned to the Democratic Republic of the Congo they would be persecuted for one of the grounds set out in the definition of Convention refugee.
[9] The main issues to be considered in this claim are credibility and whether the fear of persecution is well founded in light of the documentary evidence since the change in regime on May 17, 1997.
APPLICANT"S POSITION
[10] The Board determined that the documentary evidence does not indicate that Kabila"s regime does not persecute the Hutu ethnic group in Kinshasa. This constitutes an omission rather than a contradiction in the documentary evidence.
[11] The Board did not give any reason why it preferred the documentary evidence.
[12] The Board erred in determining that the documentary evidence in no way corroborated human rights violations against Hutus in Kinshasa.
[13] The claimant submits that the documentary evidence establishes that thousands of Hutus and hundreds of people who helped or were thought to be sympathetic to them were killed from 1996 to 1997, according to the report by Amnesty International.1
[14] She submits that the Board made a gross and fundamental error as at no time did it consider the fact that Hutus continue to be murdered and to suffer hardship and ethnic cleansing since Kabila came to power.
[15] She submits that in its report of December 1997, Amnesty International stated that numerous human rights violations were still occurring even at the time of the writing of the report.
[16] She submits that the Board"s findings were necessarily biased, since it completely ignored much of the relevant evidence.
[17] She submits that the Board erred in law in determining that the claimant could not be recognized as a Hutu because Hutus are part of the Bantu ethnic group, which seems irrational considering that the AFDL appears to have no difficulty in recognizing Hutus and killing them, as substantiated by two documents, namely an article in the Sunday Times and a report by Amnesty International.2
[18] She submits that the Board erred in law in determining that the members of the claimant"s family had no problems, even though they were, in part, ethnic Hutus.
[19] She submits that, according to the case law, the evidence submitted by the claimant is presumed to be true and furthermore the Act law requires that the Board justify why it prefers the documentary evidence to the testimonial evidence submitted by the claimant.
[20] She submits that the Board erred in law by not giving a valid reason to justify why it prefers the documentary evidence instead of the claimant"s testimonial evidence.
[21] She submits that the documentary evidence does in fact corroborate the claimant"s allegations that she was persecuted in the fall of 1996, even though she was not a Tutsi but indeed a Hutu.
[22] She further submits that the Board erred in law in selectively considering the documentary evidence submitted and especially in drawing conclusions that the Hutu ethnic group was not at risk in the fall of 1996.
RESPONDENT"S POSITION
[23] The respondent submits that the Board did not err in law in determining that the claimants did not risk persecution if they returned to Kinshasa, since there was no documentary evidence which established that Hutus of Rwandan origin were persecuted in Kinshasa.
[24] She submits that the documentary evidence submitted to the Board established that the Hutus and the majority of Zairians are members of the Bantu group and their physical appearance is quite similar, which led the Board to determine that the claimants would not be persecuted by reason of their membership in an ethnic group.
[25] She submits that even if certain documents filed as documentary evidence appear contradictory, it is certainly open to the Board to evaluate that documentary evidence on its merits and give more weight to certain documents at the expense of others.
[26] She submits that the fact that the Board"s written reasons do not provide a summary of all of the evidence filed before it in no way constitutes an error in law.
[27] She submits that the Board does in fact have the power to consider that the documentary evidence is more credible than the principal claimant"s testimony.
[28] She further submits that the Board did not err in law in considering that the principal claimant was not persecuted in 1996.
[29] While it is true that the claimants submitted evidence that they had suffered discrimination, it was nonetheless open to the Board to consider that the evidence presented was insufficient to support that allegation, especially since it was Tutsis who were particularly targeted at that time and not Hutus.
[30] Last, she submits that the Board did not err in concluding that the discrimination alleged by the claimants was not credible.
[31] The Board analysed the claim by evaluating the risk of persecution by the Kabila government if the claimants were to return to the Democratic Republic of the Congo.
ISSUES
| 1. Did the Board err in law in determining there was no reasonable chance that the claimants would be persecuted if they returned to the Democratic Republic of the Congo? |
| 2. Did the Board err in determining that the claimants" testimony was not credible with respect to the persecution they allegedly suffered in 1996? |
ANALYSIS
[32] The issue of whether the Board erred in giving more weight to the documentary evidence than to the claimants" testimonial evidence has often been considered by courts in the past. Let us examine the case law on this issue:
Okyere-Akosah (April 28, 1992), A-92-91 (F.C.A.):
| Since there is a presumption as to the truth of the appellant"s testimony, the Board was bound to state in clear and unmistakable terms why it preferred the documentary evidence over the appellant"s testimonial evidence. |
Hassan v. Canada (Minister of Employment and Immigration) (October 22,
1992), A-831-90 [reported at 147 N.R. 317 (F.C.A.)]:
| The fact that some of the documentary evidence was not mentioned in the Board"s reasons is not fatal to it"s [sic ] decision. |
Rodriguez v. M.C.I. (1993), 21 Imm. L.R. (2d) 253 (F.C.T.D.). Referring to
Woolaston v. Minister of Manpower and Immigration, [1973] S.C.R. 102:
| Furthermore, because certain evidence is not mentioned in the Tribunal"s reasons, it does not mean that the Tribunal failed to consider it. |
[33] The Board explained in a clear and precise manner why it preferred the documentary evidence:
| [TRANSLATION] . . .The panel does not believe the claimant"s testimony with regard to the discrimination she and her family allegedly suffered in November 1996, because at the time, it was the Rwandans of Tutsi ethnic origin and not the Hutus who were the targets of certain discriminatory acts by the Zairian population in the capital, Kinshasa. (Exhibits A-1 and A-2) |
| . . . |
With respect to the fear of persecution by reason of her maternal ethnic origins, the panel is of the view that there is no reasonable chance that she and her daughter would be persecuted . . . The documentary evidence does not indicate that people with Hutu physical characteristics, or Rwandan Hutus who live in Kinshasa are persecuted by reason of their ethnic group or Hutu characteristics . . . The panel is of the view that it is unlikely the Kabila regime persecutes people with Hutu characteristics when the documentary evidence (exhibit A-5 received after the conclusion of the hearing) indicates that the Hutus and the majority of Zairians belong to the Bantu group and have fairly similar physical characteristics.3
[34] In turn, the parties made reference to many parts of the documentary evidence which may appear contradictory at times.
[35] I believe it is important, however, to dismiss one of the arguments presented by counsel for the applicant which suggests that the respondent should have established that Kinshasa was a safe place for people of Hutu origins, particularly the claimants, and that if the respondent did not do so, the panel could not find that only people of Tutsi origin could be considered as being at risk.
[36] It is those claiming refugee status who must establish that they meet the definition of Convention refugee. In my view, the Board did not act unreasonably in assessing the evidence before it, in preferring the documentary evidence to the testimonial evidence or in giving its reasons succinctly.
[37] The Court must not intervene as I am not satisfied that the Board erred in law in making its decision, in basing its decision on erroneous facts or in failing to have regard for the material before it.
[38] For all of these reasons, the instant application must be dismissed.
[39] No question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 31, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2883-98
STYLE OF CAUSE: Mbengi LUTETE et al. v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: March 26, 1999
REASONS FOR ORDER OF BLAIS J.
DATED March 31, 1999
APPEARANCES:
Michael Crane FOR the Applicant
Ian Hicks FOR the Respondent
SOLICITORS OF RECORD:
Michael Crane FOR the Applicant
Toronto, Ontario
Morris Rosenberg FOR the Respondent
Deputy Attorney General of Canada
__________________1 Applicant"s memorandum, p. 30.