Date: 19980420
Docket: IMM-3580-97
BETWEEN:
WILLY LEMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board, wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 24th of July, 1997.
[2] The applicant is a citizen of the new Republic of Congo, formerly Zaïre. In December of 1994, he joined the Movement National Congolais Lumumba (the "MNCL"). He alleges that he was active in communicating information regarding the MNCL to young adherents and attended some meetings of the MNCL. In late July of 1995, he attended a large protest rally organized by another political party that was also "Lumumbist". He and many others attending the rally were arrested. The applicant alleges that he was detained, interrogated and tortured over a period of 15 months. He alleges that he was released in mid-October 1996 on payment of a bribe and that, on release, he was warned to leave the country. He left Zaïre shortly after that time and arrived in Canada on the 29th of October, 1996.
[3] The applicant's claim to Convention refugee status came on for hearing before the CRDD on the 18th of June, 1997. Almost exactly a month earlier, a rebel alliance led by Laurent Kabila assumed political power in Zaïre, deposing the Mobutu regime.
[4] The CRDD wrote:
| Le tribunal a jugé que le changement de circonstances politiques à la RDC-Zaïre et le bien-fondé de la crainte de persécution du revendicateur, considérant que l'Alliance des forces démocratiques pour la libération du Congo (AFDL) dirigée par Laurent Désiré Kabila est au pouvoir depuis mai 1997, sont les principales questions à examiner dans cette revendication. La crédibilité sera également discutée. |
[5] While the CRDD accepted most of the applicant's evidence as credible, it disbelieved certain elements. It concluded that the applicant overstated his role in the MNCL, and that he was nothing more than an ordinary member in that political party. It did not question his participation is the protest rally of late July, 1995. Nor did it question that he was arrested at that rally along with many others. But it did question the amount of time that he was held in detention and the treatment that he endured. It concluded that, as an ordinary member of the MNCL, he would have been, like many others who were arrested at the rally, released within a few days.
[6] Against the profile that it ascribed to the applicant, the CRDD went on to consider the impact on the claim of the applicant of the changed country conditions in the Congo by reason of the changed political leadership. The CRDD wrote:
| Néanmoins, le tribunal a jugé que le bien-fondé de la crainte de persécution, vu le changement de circonstances à la RDC-Zaïre, est la question centrale dans cette revendication. |
[7] The CRDD then quoted from Yusuf v. The Minister of Employment and Immigration2 to the following effect:
| ... the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act: does the claimant now have a well-founded fear of persecution? |
[8] The CRDD concluded:
| En arrivant à notre conclusion que la crainte du revendicateur n'est pas bien fondée, le tribunal a pris en considération le profil du revendicateur, un adhérent à un parti politique. Le tribunal est d'avis, suite au changement de circonstances politiques dans le pays de nationalité du revendicateur, qu'il est invraisemblable que le revendicateur, en raison de son appui au parti MNCL, attire l'attention du gouvernement de Kabila. |
| Le tribunal constate aussi que, malgré le fait que le gouvernement de Kabila ne reconnaît pas les partis d'opposition, il a, malgré tout, inclus des membres de certains parties dans son gouvernement, comme individu. La preuve documentaire démontre qu'il a l'appui d'une grande partie de la population de la RDC-Zaïre. De plus, le tribunal est d'avis qu'il n'a pas de preuve suffisante qui indique que l'AFDL, sous les ordres de M. Kabila, a l'intention de persécuter les membres des partis politiques pour l'unique raison de leur adhésion à un parti politique. |
[9] Counsel for the applicant alleged six reviewable errors in the decision of the CRDD, among them, that the CRDD relied on irrelevant considerations when it took into account that Laurent Kabila had included members of certain political parties, other than his own, in his government, as individuals, and that his government had the support of a large majority of the population. I agree that these are irrelevant considerations. However, I conclude that they are not central to the CRDD's decision.
[10] Only one other of the arguments raised on behalf of the applicant will be addressed in these reasons. It is, I conclude, determinative of this application.
[11] The CRDD, in determining that the applicant was not a Convention refugee by reason of changed country conditions, focussed exclusively on his membership in a political party, the MNCL. That simply was not the basis of the applicant's claim to Convention refugee status. Rather, his claim was based upon his earlier political activism and his commitment to renew that activism if returned to the Congo. The following exchange took place between the applicant and his counsel during the applicant's testimony before the CRDD:
| [Counsel] De quoi as-tu peur si tu retournerais au Zaïre aujourd'hui? |
| [Demandeur] Je suis premièrement un membre d'un parti politique et je suis activiste. Kabila est dictateur. Si aujourd'hui j'entrais là-bas, tout d'abord le dossier que j'ai laissé là quand j'ai fuis la prison, c'est toujours là-bas. Dès mon retour et s'il me voyait en tant que activiste, il va continuer à me persécuter. |
| [Je souligne] |
[12] Counsel for the applicant argued before the CRDD:
| Donc le requérant ne pourrait pas exprimer ses opinions au Zaïre aujourd'hui si le gouvernement ne peut pas être -- ternir compte de la (inaudible). |
| Pour avoir la possibilité de retourner à son pays en sécurité, ce n'est pas nécessaire en droit qu'il abandonne ses principes politiques. Il devrait avoir la possibilité d'être actif sans peur de persécution. |
While the CRDD did not accept the level of political activity that the applicant alleged he was involved in, it did acknowledge that he was politically active. He was not merely a member of a political party. He attended meetings of that party and he took part in a major political protest rally. Thus, the CRDD acknowledge that he was an activist, albeit of relatively low profile. In failing to acknowledge this "profile" of activist as against the "profile" of a mere political party member, the CRDD misapprehended the basis of the applicant's claim and thus misdirected itself in its analysis of whether or not the applicant would be at risk of persecution if returned to the Congo, in the light of changed country conditions.
[13] In other circumstances, this distinction between party membership and limited political activism might not be of significant consequence. But I conclude, on the facts of this matter, it is determinative. The Kabila government had been in power for a mere month when the hearing before the CRDD took place. The documentary evidence before the CRDD indicated that it had banned opposition political parties. Its human rights records and the record of the Kabila forces during the period leading up to the take over of government was an unenviable one. In those circumstances, I conclude that the failure to acknowledge the basis of the applicant's claim, and to examine the impact of changed of country conditions in the light of that basis to the claim, constituted a reviewable error.
[14] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD will be set aside, and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[15] Neither counsel recommended certification of a question. No question will be certified.
Judge
Ottawa, Ontario
April 20, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3580-97
| STYLE OF CAUSE: WILLY LEMA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: APRIL 15, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: APRIL 20, 1998
APPEARANCES:
Mr. Michael Crane
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Michael Crane
Barrister and Solicitor
Suite 200
166 Pearl Street
Toronto, Ontario
M5H 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980420
Docket: IMM-3580-97
Between:
| WILLY LEMA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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