Date: 20000420
Docket: IMM-3593-99
BETWEEN:
| SUNGI CHANTAL LEMBAGUSALA |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] Before the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), the Applicant told a story of horrific violence against her by police and government authorities in the Congo in 1998. Thus, the Applicant's claim for refugee status is based on a well-founded fear of persecution as a result of her Catholic religion, and her political opinion as a person interested in human rights.
[2] The Applicant's story begins with taking an interest in human rights and speaking about this interest to members of her church. It then goes on to describe her arrest, beatings, rapes, the killing of her uncle, the destruction of her home, the hanging of a priest who helped her, her flight with the help of another priest, and her harassment and rape in the process of her escape by check point guards and customs officials.
[3] The CRDD did not believe her story. A central finding to the decision is the following:
| The expired passport was the only identity or travel document before the panel, and, on its own, was not satisfactory proof of her identity, given her lack of credibility and other parts of her claim. 1 |
Not only is the CRDD wrong in its statement respecting the documentary evidence tendered, as the Applicant supplied a birth registration document, no fair notice was given by the CRDD that identity would be a central issue in the case. In addition, there is a serious problem with the finding of negative credibility.
[4] Two key credibility findings are as follows:
| The panel does not find it plausible that for discussing such non-controversial topics (even in DRC) with a ladies church group of 20, the claimant would be brought before the Minister of the Interior, beaten, raped and told she was about to be killed. Although the panel recognizes the lawlessness and brutality faced by people and particularly women in DRC today, her fate is not reasonable or believable given the alleged offence. |
| It is not believable that not only was she arrested, but her home was destroyed and her uncle killed for not disclosing her whereabouts. Then, the soldiers managed to locate her in a village of 550 kilometres away, and killed a Roman Catholic priest who was helping her. This kind of retribution is simply not plausible given what she alleged she had done.2 |
[5] The Applicant is disbelieved because her story did not ring true to the members of the CRDD panel, who apparently applied their own purely subjective judgment in reaching the findings above quoted. In my opinion, there is no acceptable certainty that the members of the panel are correct in what was said respecting plausibility.
[6] Indeed, the CRDD panel members had no evidence to cite to back up their assessment of the Applicant's story. The Applicant, however, tendered ample evidence to show that during 1998, the persecution of human rights advocates was extremely active in the Congo.3 It might very well be that the Applicant's account falls squarely within what might be expected given the social and political context prevalent in the Congo at that time.
[7] Therefore, I find that the CRDD's assessment of the Applicant's evidence is based in speculation, and is, therefore, made in reviewable error.
ORDER
[8] Thus, I find that, pursuant to s. 18.1(4)(d) of the Federal Court Act, the CRDD's decision was made in a capricious manner and without regard for the evidence before it.
[9] Accordingly, I set the CRDD's decision aside and refer this matter back for reconsideration before a differently constituted panel.
"Douglas R. Campbell"
Judge
Edmonton, Alberta
April 20th, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3593-99
STYLE OF CAUSE: Sungi Chantal Lembagusala v.
| The Minister of Citizenship and |
Immigration
REASONS FOR ORDER AND ORDER: Campbell, J.
DATE: April 19, 2000
APPEARANCES:
Karen Schwartzenberger for the Applicant
Tracy King
Department of Justice for the Respondent
SOLICITORS OF RECORD:
McCuaig Desrochers
Edmonton, Alberta for the Applicant
Morris A. Rosenberg,
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
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