Date: 19980717
Docket: IMM-300-98
BETWEEN:
FRANÇOIS KEMBI MAKALA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a December 16, 1997 decision of the Convention Refugee Division of the Immigration and Refugee Board [hereinafter "the Refugee Division"] wherein the Refugee Division found that the applicant was not a Convention Refugee.
FACTS
[2] The applicant, a citizen of Zaire (now called Congo), fears persecution because of his political opinion due to his association with the Parti Lumumbiste Unifié (PALU) party and a student group he established at the University of Kinshasa. His fear of persecution arose only after he left Congo. The applicant originally made his claim against the Mobutu regime which fell in May 1997. At the hearing, his claim was made against the Kabila regime and the A.F.D.L. party.
[3] The Refugee Division found that the applicant was a sympathizer for the PALU rather than an effective member. Moreover, they found that the applicant was not politically active since July 1995 because he was a full-time student.
[4] The Refugee Division found that the authorities would not be interested in him because there had been a change in country conditions. It was noted that the applicant was a mere participant in a November 1996 demonstration against Mobutu. Furthermore, the Refugee Division held that the applicant did not have the political convictions necessary to be politically active.
[5] Finally, the Refugee Division noted that the applicant stated that it would not be a problem for him to return to Congo because he had left due to Mobutu's dictatorship.
[6] The Refugee Division denied the applicant Convention Refugee status. The applicant seeks judicial review of that decision.
SUBMISSIONS
1. The Applicant's Submissions
[7] The applicant's first submission is that the Refugee Division erred in law, breached the principles of natural justice and fundamental justice and exceeded its jurisdiction in declining to hear a witness over the telephone. The national representative of the PALU party, Dorothée Gizenga, was allegedly supposed to attend the hearing and testify that the applicant was a member of the party since 1990. She would also testify that the demonstrations on November 5 to 7, 1996, occurred and that arbitrary arrests, detentions and assaults by authorities on PALU members began on the night of November 6, 1996 and would continue for several days. Finally, she would testify about the current situation of PALU party supporters under the AFDL regime.
[8] The applicant submits that Ms Gizenga could not attend the hearing because she had to babysit her children due to the teacher's strike in Ontario. The applicant states that she called the applicant and advised him that she could testify over the phone. At the hearing, the applicant's counsel allegedly requested that Ms Gizenga testify via telephone, but the Refugee Division refused and proceeded in the absence of her testimony. The applicant submits that the refusal to hear this witness is a breach of natural justice and fundamental justice. Moreover, the applicant submits that the Refugee Division meddled in the presentation of evidence by the applicant by declining to hear Ms Gizenga. The applicant also contends that the Refugee Division violated subsection 69.1(5) of the Immigration Act which allows an applicant a reasonable opportunity to present evidence. The applicant submits that he need not show that he has suffered prejudice due to a breach of fairness but only that there is a possibility of prejudice.
[9] The applicant's second submission is that the Refugee Division erred in fact in finding that the applicant was only a sympathizer of the PALU party but not a member. The applicant submits that he said he was a member during the hearing. The applicant argues that he explained during the hearing that the phrase "membre sympathisant" meant that he is a simple member as opposed to a member with an office or specific responsibility. The applicant submits that the Refugee Division misconstrued this evidence and erred in law. Moreover, the applicant contends that this is an important error because it relates to his political activities and the extent and genuineness of his political opinion. The Refugee Division held that the applicant would not be at risk because in the past he did not have the necessary political convictions. The applicant submits that their opinion may differ if they realized the applicant was a member and not a sympathizer.
[10] The applicant's third submission is that the Refugee Division erred in finding that the applicant was a mere participant in a demonstration in November 1996 because, in fact, he was an organizer. The applicant submits that he was a founding member of a student group called Groupe d'Étudiants Observateurs (GEO). As a member, the applicant claims that he could mobilize students to attend the demonstration. He submits that he told the Refugee Division that he organized the demonstration. Counsel for the applicant, at the hearing, agreed that the evidence does not disclose this fact.
[11] The applicant's fourth submission is that the Refugee Division misconstrued the applicant's evidence because it failed to comprehend that the applicant was arrested at a demonstration he attended in July 1995 and was only released due to party pressure. Furthermore, the applicant submits that they failed to comprehend that he was a founder and activist of the GEO. In the alternative, the applicant submits that the Refugee Division ignored this evidence and erred in that it failed to have regard to the totality of the evidence. The applicant claims that he gave detailed testimony about his activities in the GEO, but the Refugee Division fails to mention this evidence. Furthermore, the applicant stated that he had been arrested and held for a week following the July 1995 demonstration but the Refugee Division did not refer to that fact.
[12] The applicant's fifth submission is that the Refugee Division failed to provide reasons for rejecting his uncle's testimony and erred in fact concerning his uncle's evidence. The applicant's uncle, a long-standing member of PALU, testified at the hearing. The applicant submits that the Refugee Division found that his testimony did not establish an objective basis for determining that the applicant's family was being persecuted for a reason set out in the Convention. The applicant's uncle went to Congo in June 1997 and visited the applicant's family. His testimony was that the applicant's family was being targeted by the authorities. He stated that three nephews were to be executed because they were Mobutists, but his uncle was able to save them through international intervention, and that the applicant's father was in hiding. The applicant's uncle also stated that a conference on the political situation in Kinshasa was interrupted by soldiers who arrested several participants.
[13] The applicant submits that the Refugee Division erred in finding that the nephews were executed without knowing the reason. The applicant states that the nephews were not executed. Furthermore, the reason for the intended execution of the nephews was because they were Mobutists.
[14] The applicant notes that the Refugee Division found that his uncle's testimony did not indicate that his family was being persecuted for a Convention reason. However, his uncle testified that his three nephews were to be executed for political reasons. The applicant submits that it is not clear why this evidence did not support the applicant's claim. The applicant submits that the Refugee Division has an obligation to explain why his uncle's evidence was not accepted.
[15] The applicant's final submission is that the Refugee Division erred in assessing his refugee sur place claim. He submits that they erred in finding that the applicant did not have sufficient political conviction that, if he was returned to Congo, he would not express a political opinion against the current regime and thereby be persecuted. The applicant argues that he testified that he would continue to fight the Kabila regime and he had been engaged in political activity in the past. The applicant submits that the evidence about the intolerance of the Kabila regime towards those against the AFDL indicates that he would be persecuted for his activities.
2. The Respondent's Submissions
[16] The respondent submits that there is no evidence in the transcript that the Refugee Division did not allow Ms Gizenga to testify at the hearing. In the alternative, if the Refugee Division declined to hear Ms Gizenga, this is not a breach of fundamental justice because she could not have offered any more evidence than was already offered by the applicant himself.
[17] The respondent's second submission is that the Refugee Division did not err in finding that the applicant was a sympathizer but not a member of the PALU party. The respondent submits that the applicant testified that he was a sympathetic member who had no role or status in the party. Moreover, the Refugee Division found that the authorities would not be interested in the applicant because he did not have the necessary political convictions. The respondent submits that this finding was not made capriciously or without regard to the evidence, and the decision was not based on this finding. Therefore, the respondent submits that the Court should not interfere.
[18] The respondent's next submission is that the Refugee Division did not err in finding that the applicant was a mere participant in the November 1996 demonstration. The applicant testified that he attended the demonstration but he did not know who initiated it. Since there was no evidence that he organized the demonstration, the respondent submits that the Refugee Division did not err in finding that he was a mere participant.
[19] The respondent's fourth submission is that the Refugee Division did not err in failing to mention that he had been arrested in the July 1995 demonstration. The Refugee Division did mention that the applicant had been arrested and detained in November 1996 and therefore, the respondent contends, they did consider that the applicant had been arrested and detained.
[20] Moreover, the respondent submits that the Refugee Division did not err by not stating that the applicant was a member of GEO who organized students in the 1996 demonstration. The respondent notes that the Refugee Division held that the applicant was not an organizer so it did not err by not mentioning his activities in the GEO.
[21] The respondent's fifth submission is that the Refugee Division considered the applicant's uncle's testimony and concluded that it did not indicate that the applicant's family was persecuted on a Convention Refugee ground. The respondent argues that this was a reasonable finding and that they considered the evidence.
[22] The respondent's final submission is that the applicant is not a refugee sur place because he bases his claim on a hypothetical scenario and not on demonstrated facts. The respondent submits that an applicant is said to be a refugee sur place when the applicant's fear of persecution is triggered by circumstances arising in his country of origin during his absence, or as a result of his own actions while outside his country of nationality. The respondent submits that the applicant did not produce any credible evidence to show his involvement in anti-government demonstrations abroad came to the attention to the authorities in Congo. The respondent submits further that a refugee sur place claim does not arise merely because an applicant states that he will protest against the government should he return to his home country. Instead, the applicant must commit some action which comes to the attention of the home country.
DISCUSSION
[23] The first issue is whether the Refugee Division erred by failing to allow Ms Gizenga to testify via telephone at the hearing. This requires me to find that the Refugee Division actually refused to allow her to testify. There is no evidence in the transcript of this refusal. The evidence consists of an affidavit from Ms Gizenga in which she states that she was available to testify over the telephone but she was not contacted. The applicant also provides an affidavit in which he states:
| At the hearing, my counsel advised the members of the Refugee Division of the situation and requested that Ms Gizenga testify over the telephone. There was a long discussion about this. The members refused. They stated that it was not possible. My lawyer insisted on this but was again advised by the Refugee Division that it was not possible. |
[24] I find it, as I stated at the hearing before me, surprising that this exchange was not recorded on the transcript if it actually took place. I would assume that any lawyer who wished to keep his options open would insist that the refusal be on the record. Moreover, it is interesting to note that there is no affidavit from the lawyer who represented the applicant at the hearing attesting to this fact. The applicant cannot succeed on this ground without providing objective evidence of the refusal to allow Ms Gizenga to testify, and, as I state, there is no such evidence before me.
[25] The second issue is whether the Refugee Division erred in finding that the applicant was not a member of the PALU but solely a sympathizer. I have read the transcript and the first time the applicant discusses his relationship with the PALU, he states "Moi j'étais en quelque sorte -- je n'avais pas de statut -- je n'avais pas un statut spécial dans le PALU. J'étais qu'un simple membre, un membre sympathisant, parce qu'on n'avait pas grande chose à jouer." The applicant also states on several other occasions that he is a member or a sympathetic member of the PALU. Then the following exchange occurs:
| McGee: J'aimerais juste clarifier. Vous n'étiez pas membre du PALU. Est-ce que vous étiez sympathisant ou membre? |
| Demandeur: J'étais membre du PALU. |
| McGee: Vous étiez membre? |
| Demandeur: J'étais membre du PALU, mais j'avais pas des fonctions spéciales dans le PALU, pujsqu'il y a des membres qui occupent des postes officiels dans le PALU. Il y a des secrétaires du parti. Moi j'étais membre. |
| ... |
| Filion: Monsieur, auparavant vous disiez que vous étiez sympathisant, okay, avant la pause. |
| Demandeur: Sympathisant ça veut dire -- je voulais dire par là, je voulais dire que j'avais pas un rôle -- bon, une fonction. |
| ... |
| Demandeur: J'avais pas de fonction spéciale dans cette structure. Je vous ai dit tantôt là que c'est après que j'ai commencé à aider les secrétaires à établir des procès-verbaux pour -- |
| Filion: Okay. |
| Bourassa: Mme Filion, dans mes notes j'ai simplement sympathisant. |
| Filion: Sympathisant. |
| Bourassa: Je crois qu'il a mentionné qu'il était simplement -- |
| Filion: Exactement. |
| Bourassa: Et qu'il n'avait pas un rôle spécial à l'intérieur. |
| Demandeur: Oui, oui. |
| Filion: Mais maintenant il dit que je suis membre, après les questions de Mme McGee. Donc j'ai de la difficulté à comprendre. Vous parlez toujours de membre sympathisant, c'est ça? |
| Demandeur: Membre sympathisant ça veut dire -- selon ce que j'entends par là, je veux dire un membre qui n'avait pas un rôle spécial à jouer dans cette structure-là. J'étais pas chef du parti, j'étais pas -- j'étais un membre comme tout autre. Parce qu'il y a des membres qui sont membres secrétaires. Moi j'avais pas ça. |
[26] Although I understand that the Refugee Division's finding that the applicant was a sympathizer for the PALU rather than a member may be based on other considerations, it appears to me that the Refugee Division was confused about whether the applicant stated that he was a member or a sympathizer. If their confusion was solely based on the applicant's statements, then this confusion was unwarranted because the applicant never said that he was a sympathizer. It is clear from the excerpt of the transcript that the applicant meant that he was a member without any particular office within the PALU. He never said that he was a mere sympathizer. Given that the Refugee Division provided no reason for their conclusion that the applicant was not a member of the PALU, I can only surmise that they believe that the applicant changed his story during the hearing. The applicant's statements are assumed to be true (Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.)) and I can find nothing to support the Refugee Division's finding other than their misinterpretation of the evidence. Therefore, I find that the Refugee Division erred.
[27] Turning to the third issue, the question is whether the Refugee Division erred in finding that the applicant did not organize the demonstration in November 1996. I have read the transcript and although the applicant states that he is a member of GEO and discusses their activities, he does not state that he organized the demonstration in any way. Therefore, I would reject this ground of review.
[28] The fourth issue is whether the Refugee Division ignored or misconstrued the evidence by failing to mention that the applicant was arrested at the July 1995 demonstration and was only released due to party pressure and that he was a founder and activist of the GEO. The respondent stated that since the Refugee Division mentioned that the applicant had been arrested in November 1996, that means that they did consider that the applicant had been arrested and detained. The respondent also argued that since the Refugee Division held that the applicant was not an organizer of the demonstration, it did not have to mention his activities in the GEO. I am satisfied that both of the respondent's arguments are unpersuasive. I believe that the testimony of the applicant's arrest can be seen as evidence of persecution, while his activities in the GEO demonstrate the level of his political involvement. Although it is true that the Refugee Division need not refer to all of the evidence, these are highly relevant factors which should be addressed in the decision. In Owusu-Ansah v. Canada (M.E.I.) (1989), 8 Imm.L.R. (2d) 106 (F.C.A.), the court wrote (at page 113):
| Explanations which, to say the least, were not obviously implausible were offered and were simply not dealt with by the Board in its decision. The failure to take account of material evidence has been variously characterized by this Court in allowing s. 28 applications. In Toro v. M.E.I., [1981] 1 F.C. 652, my brother Heald, for the Court, said: |
| It appears therefore that the Board, in making its decision, has not had regard to the totality of the evidence properly before it. It has therefore erred in law. |
Therefore, I believe the Refugee Division has not had regard for the totality of the evidence before it and, as a result, it has erred in law.
[29] The applicant's fifth submission is that the Refugee Division erred in holding that his uncle's testimony did not establish, on an objective basis, that the applicant's family was being persecuted for a Convention reason. His uncle's testimony was that the applicant's family were being persecuted. He stated that his nephews were going to be executed because they were Mobutists and that the applicant's father was in hiding. In the applicant's affidavit, the applicant states that virtually all the members of his family were members of PALU. My opinion of this evidence is that it is ambiguous with respect to the question of whether it demonstrates that the applicant's family was being persecuted for a Convention reason. Although it appears that the applicant's cousins were being persecuted for political reasons because they were Mobutists, this does not support the applicant's position because he was against the Mobutu regime. Moreover, there is no clear explanation why the rest of the family were being targeted by the authorities. Since persecution must be for a Convention reason, I think that this evidence falls short of establishing why the applicant's family was being targeted.
[30] The final issue is whether the Refugee Division erred in its determination of the applicant's refugee sur place claim. I accept the respondent's definition that one can be a refugee sur place when one's fear of persecution is triggered by circumstances arising in one's country of origin during his absence, or as a result of one's own actions while outside one's country of nationality (see Chaudri v. Canada (M.E.I.) (1986), 69 N.R. 114 (Fed. C.A.); Chen v. Canada (Solicitor General) (1993), 68 F.T.R. 9). There is no evidence of the applicant's actions in Canada so the claim must be based on the change from the Mobutu to the Kabila regime in Congo. Thus, the issue is whether the applicant has a well-founded fear of persecution due to the Kabila regime. The applicant submitted that the Refugee Division erred by finding that he did not have sufficient political conviction that, if he was returned to Congo, he would not express a political opinion against the current regime and thereby be persecuted. He stated that he would fight the AFDL and, in support of his claim, he pointed to his political activity while in Congo.
[31] The applicant cites the "Handbook on Procedures and Criteria for Determining Refugee Status" by the Office of the United Nations High Commissioner for Refugees (Geneva, January 1988) where it is written (at page 20):
| There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can be reasonably be assumed, the applicant can be considered to have fear of persecution for reasons of political opinion. |
[32] The applicant submits that the strength of his convictions are such that he would express them and then be persecuted by the authorities. Certainly, the evidence indicates that the Kabila regime is highly intolerant of its political enemies. I agree with the respondent that the applicant cannot obtain Convention Refugee status by merely stating that he will fight the AFDL. However, the applicant is also correct that if the Refugee Division erred in finding that the applicant was not politically involved while in Congo, that would lead them to the erroneous conclusion that he did not have sufficient political conviction to commit actions against the government upon return to Congo. Given my findings that the Refugee Division erred in finding that the applicant was not a member of the PALU, that they failed to mention his arrest and detainment in July 1995 as well as his membership in the GEO, I believe that these errors may have impacted on their appreciation of the applicant's political convictions. Thus, I submit to Your Lordship that this is another reason why this case should be returned to the Refugee Division for a rehearing.
CONCLUSION
[33] For the above reasons, the judicial review application is allowed and the matter returned for a new hearing before a differently constituted panel.
[34] The applicant submitted the following questions for certification:
| 1. If the Refugee Division refuses to allow a witness to testify via telephone has the Refugee Division violated s. 69.1(5)(a) of the Immigration Act and/or has the Refugee Division violated the principles of natural justice or fundamental justice (as defined in s. 7 of the Charter of Rights and Freedoms). |
| 2. (a) Is it necessary for "some sort of actions" of the claimant to come to the attention of the authorities in his home country for the claimant to succeed in a "sur place" refugee claim? |
or
| 3. (b) Is it necessary for "some sort of actions" of the claimant to come to the attention of the authorities in his home country for the claimant to succeed in a "sur place" refugee claim based on a fear of persecution for reason of political opinion? |
Regarding question 2, there are two versions of the same question, with the underlined words being the difference.
[35] In that the present application is allowed, I do not believe it necessary to discuss the issue of whether the questions should be certified.
[36] Counsel for the respondent did not submit a question for certification.
"Max M. Teitelbaum"
Judge
Toronto, Ontario
July 17, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-300-98
| STYLE OF CAUSE: FRANÇOIS KEMBI MAKALA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 16, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: JULY 17, 1998
APPEARANCES:
Mr. Micheal Crane
For the Applicant
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor
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: 19980717
Docket: IMM-300-98
Between:
| FRANÇOIS KEMBI MAKALA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER