Date: 19990602
Docket: IMM-2660-98
Between:
GUY LESSENDJINA MOKABILA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated May 12, 1998, which determined that the applicant is not a Convention refugee.
[2] The applicant asks the Court to set aside the decision and refer his file back for rehearing by the Board.
[3] The applicant, a citizen of the Democratic Republic of the Congo (DRC) (former Zaire), claims to have a well-founded fear of persecution by reason of political opinion, namely his membership in the Union pour la Démocratie et le Progrès-Social [Democratic Union for Social Progress] (UDPS).
[4] The applicant"s problems began in 1989, during a demonstration, when he was arrested by the police loyal to the dictator Mobutu, tortured and detained for two weeks. He joined the UDPS in 1993 and received his membership card on March 12, 1994. The applicant, a counsellor who was also in charge of cultural matters in a school, decided along with the school principal and other colleagues to boycott the demonstrations organized to celebrate Mobutu"s birthday on October 14, 1994. When the Division spéciale présidentielle [special presidential police] attempted to arrest them and searched the claimant"s room, he hid and was able to flee to Congo-Brazzaville on December 23.
[5] On July 15, 1995, the applicant secretly returned to Zaire, at the suggestion of his uncle, the director of an airline, who was trying to arrange his departure from Zaire. Because of a death in his uncle"s family, the applicant"s departure for Belgium from Zaire was delayed until September 14, 1995. He spent two days at the airport before getting on a plane to Canada.
[6] The Board rejected the applicant"s claim on the ground he did not establish that his allegations were well founded and did not discharge the burden of proof, as his testimony was [TRANSLATION] "full of implausibilities and contradictions with respect to major parts of their [sic ] claim". The panel rejected the applicant"s allegation with respect to his claim that he also feared persecution by Kabila"s new regime because of his participation in demonstrations against that regime outside Zaire on the following ground: "Nowhere did we find confirmation that people were arrested simply for participating in demonstrations against the Kabila regime outside Zaire."
| [7] The implausibilities and contradictions noted by the panel are set out in the following paragraph from their decision: |
| [TRANSLATION] |
| The claimant states that his problems began in 1994, but he did not leave Zaire until 1995. Moreover, although he was safe in the home of his partner"s grandfather in Congo-Brazzaville, the claimant returned to his country despite the danger he faced. He stayed there from July to September 1995 before he left for good. We asked him about this. He said that he did not leave right away because he did not have the money to do so. He added that he returned at the request of his uncle, the director of operations for the CIBEZAÏRE airline. Fearing that the applicant would be spotted in Congo, the uncle planned his nephew"s escape from Zaire. We are surprised that in light of his position, he did not ask Congolese colleagues to organize his escape. The claimant answered that he did not trust them. Furthermore, according to his testimony, after crossing the river, the applicant learned that he would have to stay in Zaire longer than expected because of a death in the family. He added that his uncle knew of the state of that person"s health when he asked him to return. We asked the claimant why then did he not immediately cross the river again to return to Congo? He answered that he wanted to but did not have the money and that his uncle had arranged everything. These explanations seem not only very unlikely but completely implausible coming from a person claiming a subjective fear and who was also detained and tortured in 1989. |
[8] From a rereading of the applicant"s personal information form, his testimony at the hearing, and the affidavit filed in support of his application, it appears that the panel"s findings of fact are erroneous or were made in a capricious manner based on the evidence before it. Contrary to what the panel stated in the paragraph above, the evidence indicates that the applicant first left Zaire in December 1994, that far from being safe in Congo-Brazzaville, he was in hiding there and that it was only when he returned to Zaire in July 1995, when he was supposed to leave his country with the help of his uncle, that he had to hide at his partner"s grandfather"s house because a death in the family had delayed the preparations for his departure. In short, the panel misconstrued the evidence. Its finding that the applicant"s uncle, the director of operations for CIBEZAÏRE, could have asked Congolese colleagues to arrange his departure was made in a perverse manner insofar as the evidence indicated that the uncle had no colleagues he could trust in Congo-Brazzaville.
[9] In the instant case, I am accordingly of the view that this decision should be quashed and the matter referred back to the panel for rehearing and redetermination.
[10] There is another ground which justifies the intervention of the Court. The applicant, a member of the UDPS in Zaire since 1993, has protested publicly in Canada against Laurent-Désiré Kabila"s regime since he came to power in May 1997. While the panel acknowledged that the Kabila regime does not tolerate and represses any opposition, especially the leaders and demonstrators of the UDPS, it nevertheless found that the claimant did not establish that his fear was well founded if he were to return to his country, as there was no confirmation that people had been arrested simply for taking part in demonstrations against the Kabila regime outside Zaire.
| [11] I consider that this statement by the panel includes an error of law with regard to the principles established by the Federal Court of Appeal in Salibian v. Canada, [1990] 3 F.C. 250 at page 258, in which Mr. Justice Décary wrote the following: It can be said in light of earlier decisions by this Court on claims to Convention refugee status that |
| (1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future; |
| (2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged; |
| . . . |
| (4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin . . . . |
With this finding, the panel required that the applicant prove that he would himself be persecuted in the future, even though it had already acknowledged that reprehensible acts had been committed against the UDPS of which he was a member.
[12] The panel"s finding was also made without regard to the evidence before it. The evidence in this case indicates that both in his country and in Canada, the applicant is publicly identified with the UDPS, that he took part in marches against the Kabila regime in Montréal during which representatives of Laurent-Désiré Kabila"s party, the Alliance des forces démocratiques pour la libération [Alliance of Democratic Forces for Liberation] (AFDL), threatened to arrest and kill UDPS militants. It was therefore unreasonable for the panel to conclude from this that the applicant had not established his fear was well founded, especially because he had clearly stated that if he were to return to his country, he could not remain indifferent and silent in the face of repression by the present regime.
[13] For these reasons, the application for judicial review is allowed.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated April 30, 1998, and released on May 12, 1998, is set aside and the matter is referred back to the Convention Refugee Determination Division for rehearing and redetermination.
PIERRE DENAULT
Judge
Ottawa, Ontario
June 2, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2660-98
| STYLE OF CAUSE: GUY LESSENDJINA MOKABILA V. MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 18, 1999
REASONS FOR ORDER AND ORDER BY DENAULT J.
DATED JUNE 2, 1999
APPEARANCES:
NOËL SAINT-PIERRE FOR THE APPLICANT
MICHÈLE JOUBERT FOR THE RESPONDENT
SOLICITORS OF RECORD:
SAINT-PIERRE, GRENIER FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA