Date: 19990429
Docket: IMM-2527-98
Ottawa, Ontario, the 29th day of April 1999
Present: The Honourable Mr. Justice Pinard
Between:
KAMMO-NDO SEKO
Applicant
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review of the decision by the Convention Refugee Determination Division dated May 7, 1998, which determined that the applicant is not a Convention refugee, is allowed, the decision is quashed and the matter is referred back for rehearing before a differently constituted panel.
JUDGE
Certified true translation
M. Iveson
Date: 19990429
Docket: IMM-2527-98
Between:
KAMMO-NDO SEKO
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated May 7, 1998, by the Convention Refugee Determination Division (the Refugee Division), which determined that the applicant was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The applicant is a citizen of the Democratic Republic of the Congo. According to the facts reported in his Personal Information Form, he states that he has been a preacher for the Église de Jésus-Christ de l"Esprit de Vérité [Church of Jesus Christ of the Spirit of Truth] for six years. He claims to have been attacked by soldiers loyal to Kabila on May 25, 1997, when they entered his office after the church service. He alleges they humiliated him and threatened to kill him because they suspected he was hiding soldiers loyal to Mobutu (Mouvanciers). The next Tuesday, while he was at his neighbour"s house, soldiers allegedly entered his house to kill him. When he was told of this threat, he immediately fled to Brazzaville and then to America.
[3] The panel simply rejected the applicant"s claim as it found the circumstances of the appellant"s escape as he described them implausible and lacking a credible basis.
[4] Although it is rarely appropriate to intervene in issues of credibility, this is a case in which I feel justified in doing so in light of the applicable principles in this regard. The panel found only one very specific aspect of the applicant"s story implausible, namely the way in which he fled. It did not rule at all on the facts related by the applicant with respect to the persecution he experienced, his fear of which he says is well founded. The panel referred to [TRANSLATION] "the documentary evidence" without further particulars, with the very limited object of supporting its contention that the border between Kinshasa and Brazzaville was closed at the time of the applicant"s flight. Furthermore, the panel does not make any reference to the ample written evidence which supports the soundness of the fear of persecution expressed by the applicant, in light of the catastrophic situation in the Congo described therein. The systematic violation of rights and freedoms in that country appears, inter alia , at pages 238, 248, 257, 272, 275, 288, 307, 321 and 339 of the panel"s record. Accordingly, under the circumstances, it appears that the members of the panel, whose decision was issued at the hearing, erred in failing to consider all the evidence, which therefore justifies my decision to allow the application for judicial review, quash the panel"s decision and refer the matter back for rehearing before a differently constituted panel of the Refugee Division.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
April 29, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2527-98
STYLE OF CAUSE: KAMMO-NDO SEKO
-and- THE MINISTER
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 19, 1999
REASONS FOR ORDER OF PINARD J.
DATED: APRIL 29, 1999
APPEARANCES:
Stewart Istvanffy
FOR THE APPLICANT
Marie-Nicole Moreau
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General Of Canada