Date: 20000128
Docket: IMM-447-99
Ottawa, Ontario, January 28, 2000
| Before: LEMIEUX J. |
Between:
NDOMBA KABEYA,
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
ORDER
For the reasons stated, the application for judicial review is dismissed.
No certified question was raised by the parties.
| François Lemieux Judge |
Certified true translation
Martine Brunet, LL. B.
Date: 20000128
Docket: IMM-447-99
Between:
NDOMBA KABEYA,
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1] The plaintiff, Ndomba Kabeya, a citizen of the Democratic Republic of the Congo ("DRC"), filed an application for judicial review from a decision by the Immigration and Refugee Board ("the panel") dated December 21, 1998 concluding that he had not established a valid fear of persecution in his country for his political opinions.
PLAINTIFF"S EVIDENCE BEFORE PANEL
[2] Essentially, the plaintiff"s evidence before the panel consisted of his testimony at the hearing, his personal information form ("PIF") and personal documents.
(a) Plaintiff's PIF
[3] According to this document the plaintiff was a member of the Union pour la démocratie et le progrès social ("UDPS") and had belonged to the Jeunesse section of the party ("JUDPS") since 1995.
[4] The plaintiff indicated that he was a JUDPS organizer and with the help of other members he was responsible for young people of his age who wanted to take part in party activities and, after a political training seminar, support the principles of the party, which were the following: democratization, justice and respect for human rights.
[5] The plaintiff indicated that he had not encountered any serious problems before 1997, the year in which President Mobutu"s government was overthrowned by the forces of General Laurent Désiré Kaliba.
[6] The plaintiff wrote that his problems resulted from an event which occurred on August 15, 1997. On that day the plaintiff took part in a demonstration to commemorate the fifth anniversary of the appointment of the UDPS president, Mr. Tshisékédi, to the position of transitional prime minister at the national sovereignty conference in 1992 and to protest [TRANSLATION] "against the dictatorial practices and aberrations of the existing authorities". On that occasion he wore Mr. Tshisékédi"s sweater and picture.
[7] According to his PIF, he arrived at the headquarters of the UDPS around 12 noon to 12:15 p.m. At around 1 p.m. to 1:30 p.m. officers of the national emergency police and soldiers of the National Information Agency violently dispersed those who were present and set upon all the young people grouped in front of the UDPS building and wearing Mr. Tshisékédi"s sweater and picture.
[8] In his testimony the plaintiff related that the intervention of the soldiers and police officers created total confusion. After suffering various bodily attacks including whipping, certain demonstrators, including himself, were arrested, insulted and taken to the jails of the national information agency.
[9] After his arrest the plaintiff indicated he underwent a harsh examination and was thrown into a cell where he spent about 30 days in very unpleasant conditions.
[10] On September 18, 1997 an officer came to see him in his cell to tell him he was going to take him out of the basement because two of them were to be executed. Around 1 a.m. four soldiers came to get him in his cell. He was taken before an officer who ordered the men to get rid of him. When they got to Lumumba boulevard, the soldiers told him to get down and run as fast as he could before they changed their minds. The plaintiff ran and went directly to a friend"s house, telling him what had happened. The friend contacted his relations who explained that, with the help of an accomplice, they had managed to get him out of prison fraudulently in return for a sum of money.
[11] The plaintiff said he stayed with his friend for six weeks then went to a remote area of the capital where he lived in hiding since he was being sought by the national information agency for escaping. He indicated that he had no further news of the others who were also arrested on August 15, 1997.
[12] On April 6, 1998 the plaintiff left Kinshasa for Abidjan in the Ivory Coast, and two days later he went from there to the U.S., arriving in New York on the afternoon of April 10; on the morning of April 11 he took a bus and crossed the Canadian border to Lacolle, Quebec.
(b) Documentary evidence filed by plaintiff
[13] The plaintiff filed several pieces of personal documentation at the hearing; the most important are the following:
| (a) Exhibit P-7 " a letter of October 15, 1997 written by the deputy secretary general of the UDPS in Kinshasa; the relevant extracts are the following: |
| [TRANSLATION] |
| We hereby strongly confirm the complaint by Mr. DANY KABEYA, aged 20, and not otherwise identified, to the humanitarian organizations defending human rights and the government of the host country with a view to an application for refugee status. |
. . . . .
| The fundamental freedoms of citizens are systematically denied. The activities of other political parties are prohibited as in the heyday of the Mobutu dictatorship of unfortunate memory. The files on leaders and other activists in the UDPS in particular, formerly kept by the Mobutu secret services, have now passed into the hands of those of the new government. Accordingly, all these individuals are daily hunted, arrested or kidnapped and tortured in dungeons or simply said to be missing. This was the case with DANY KABEYA. Well known for his participation in the struggle to establish democracy and oppose the drift towards dictatorship of the AFDL, within his UDPS party, Dany KABEYA was reported missing after August 15, 1997 at the demonstration organized by the Jeunesse de l"UDPS (the JUDPS) at the headquarters on the occasion of the fifth anniversary . . . |
| [ My emphasis] |
| In light of the foregoing, the return to Congo-Kinshasa of any member of the opposition, especially of the UDPS, would put their lives in danger, and that is the situation of Dany KABEYA. In witness whereof this note is issued to him to support his application for asylum. |
| (b) Exhibit P-8 " a letter October 31, 1998 written by the federal president and federal administrative secretary for the UDPS/Canada. This is what it states: |
| [TRANSLATION] |
| We hereby wish to certify that Mr. KABEYA NDOMBA is a member of our party in Canada. |
| On investigation we are able to confirm that he has been an active member of the party since 1995 in Kinshasa in Congo-Zaire. |
| (c) Exhibit P-11 " newspaper articles, the first of which is an extract from the newspaper TAM TAM, the UDPS organ, dated Saturday, August 16, 1997. The article reports a meeting of the UDPS youth held at the party headquarters and confirms that this meeting ended in a [TRANSLATION] "stampede". The article indicated that a few minutes before the end the demonstration was broken up by the AFDL Police and that the principal speaker, the national secretary of the UDPS youth, and about ten other demonstrators were arrested. The article noted that [TRANSLATION] " the AFDL soldiers were deployed at about 1 p.m. around the UDPS headquarters . . . The AFDL forces attacked at about 2:30 p.m. . . .". |
| Exhibit P-11 contains an article from the newspaper UMOJA dated Monday, September 22, 1997. In an article headed [TRANSLATION] "S.O.S. " 37th day of arbitrary detention of 15 members of JUDPS", it states: |
| [TRANSLATION] |
| They are still being held at the DSIR on orders of the AFDL Vice-Minister for the Interior . . . today totals 37 days of arbitrary detention after they were seized in the middle of a demonstration to commemorate . . . |
| Exhibit P-11 reproduces another article dated Friday, September 26, 1997 from the newspaper OMOJA titled [TRANSLATION] "41st day of arbitrary detention of 15 members of the JUDPS", which states: |
| [TRANSLATION] |
| . . . the UDPS plans to recommence street demonstrations to protest against the prolonged detention of 15 of its members at the ANR and against so many other infringements of human rights in the Congo . . . |
. . . . .
| In fact, the anger of the UDPS has increased considerably as on a visit on September 19 inst. to its fighters held in the ANR since August 15 last, it was found that two of those fighters had disappeared from the total number of inmates. According to a protest note from the party signed by . . . these two fighters were taken from the dungeons by the government for reasons which have not yet been clarified. |
| (d) Exhibit P-12 " a letter dated August 28, 1997 written by the president of "La Voix des Sans Voix pour les Droits de l"Homme". The relevant extract is as follows: |
| [TRANSLATION] |
| La Voix des Sans Voix was informed on August 19 last by the UDPS of the disappearance of one of its supporters who was imprisoned with 15 others in the jails of the new government. |
| The individual was Dany KABEYA. However, the UDPS stated, investigations are continuing to locate traces of this individual. |
PANEL"S DECISION
[14] The panel indicated that the plaintiff"s testimony [TRANSLATION] "was muddled and confused and he gave us several stories in response to quite simple questions". The panel gave the following as examples.
(a) Name of JUDPS Secretary General
[15] The panel questioned the plaintiff about the name of the secretary general: the plaintiff indicated that he could not remember since he had not had much contact with him. The panel noted that the plaintiff had been a member of the JUDPS since 1995 and drew the following inference:
| [TRANSLATION] |
| It seems improbable to the panel that the plaintiff, if he really was a member as he said he was, could not remember the name of the secretary general simply because he had not much contact with him. |
| (b) Time soldiers attacked at demonstration of August 15, 1997 |
[16] The panel mentioned the plaintiff"s testimony that the soldiers had arrived at 1 or 1:30 p.m. and that when they arrived they attacked. The panel considered the TAM TAM article of August 16, 1997, which stated that the soldiers, first, did not attack on arrival, waiting till 1:30 p.m. before doing so, and secondly, attacked at about 2:30 p.m., not 1 p.m. or 1:30 p.m. as the plaintiff maintained. The panel"s conclusion on this point was:
| [TRANSLATION] |
| If he was present at this commemoration, it seems unlikely to the panel that the plaintiff should describe the scene in a very different way from that contained in the documentary evidence. When this was put to the plaintiff, he had no satisfactory explanation to give. |
(c) Exhibit P-7 " UDPS confirmation as member
[17] The plaintiff was questioned about the circumstances of the letter dated October 15, 1997; the panel said that the plaintiff"s explanation [TRANSLATION] "undermined his credibility" because the plaintiff gave several versions:
| (1) in his first version he testified that he asked his father in October to go and see the UDPS people so as to file a complaint about his disappearance and unlawful detention; he was asked why he had filed a complaint with the party authorities and replied [TRANSLATION] "he wanted them to know that since August 15, 1997 he had not been back to his house"; |
| (2) according to the panel, the plaintiff corrected himself and testified that it was not a complaint but a notification of disappearance, adding that his escape from prison on the night of September 18 to 19, 1997 was a secret and he was not supposed to be at large; the panel noted that at the time the plaintiff"s father met with the UDPS, in early October, the plaintiff was no longer missing but was living with a friend; the panel was surprised that the letter from the UDPS dealt with the plaintiff as still being missing, without mentioning the fact that he was at that time at liberty; |
| (3) the plaintiff was questioned about why he had asked his father to tell the UDPS he was missing when he no longer was: the plaintiff replied [TRANSLATION] "it was so the community could know about it"; he added that it was a secret, that no one was supposed to know that he was at liberty again; the panel expressed its surprise since the evidence showed that the UDPS knew that he was no longer missing at that time; the plaintiff replied that his father had not hidden from the UDPS that he had got out of prison; the plaintiff was again questioned as to the purpose of the UDPS letter and answered that he wanted his father to tell the UDPS of his disappearance; |
| (4) finally, he was questioned on what he expected the UDPS to do when he asked his father to contact them: the panel wrote that in a third version the plaintiff replied that he did not want anything, simply that the party should know; the panel questioned the plaintiff about this and considered that he offered a fourth story: he replied that he was ready to do anything to determine whether he was safe in coming out of his hiding place; he was asked why he was still regarded as missing by the UDPS in letter P-7 and whether the UDPS members knew at that time that he was free: the plaintiff said that [TRANSLATION] "perhaps it was a secret". |
| (d) Was Exhibit P-7 given to his father or to himself? |
[18] The panel noted that the UDPS letter was given to his father as the plaintiff indicated that he was hiding at his friend"s place at the time. The panel noted, however, that the letter ended by saying that it was issued to the plaintiff himself, whereas according to the latter"s own words he never went to the UDPS to get the said letter.
| (e) When plaintiff"s decision to leave DRC was taken |
[19] According to the panel, another point seemed doubtful: the plaintiff testified that he had made the decision to leave on April 4, 1998, the day on which he was given the necessary documents to leave his country and was told that he was being sought. The panel noted that in October 1997 the UDPS wrote that the said letter had been issued [TRANSLATION] "to support his application for asylum", that is nearly six months before the plaintiff decided to leave his country and apply for refugee status. The panel raised the following question:
| [TRANSLATION] |
| How could the UDPS have taken the decision before the plaintiff himself that he was applying for refugee status? In response to our questions, the plaintiff confined himself to answering that he received the letter from the UDPS two days before he left. We find this explanation unsatisfactory. |
| (f) Letter from Voix des Sans Voix |
[20] According to the panel this letter, dated August 20, 1997, disclosed that the UDPS was already aware of the plaintiff"s disappearance and there were even investigations under way to locate any trace of him. The panel then wondered why the UDPS was informed of his disappearance through his father when it already knew of this, as indicated by the letter. Also, since investigations to locate the plaintiff seemed to be under way, why did the plaintiff"s father not tell the UDPS instead that his son was free so that investigations to locate him could be halted?
[21] The panel considered that the plaintiff once again had no satisfactory reply to give, saying that in August the UDPS perhaps had noticed the absence of certain members from its lists and thereby realized his disappearance.
[22] The panel again put to him the question of why his father had contacted the UDPS in October if the latter was aware of the disappearance from the absence of names on its lists: according to the panel, the plaintiff replied [TRANSLATION] "once again that he did not know, he had received both letters (those from the UDPS and from the Voix des Sans Voix) at the same time, namely April 4, 1998". After this reply, the panel came to the following conclusion:
| [TRANSLATION] |
| Once again, this reply is unsatisfactory. |
| Consequently, for the foregoing reasons we conclude that Ndomba KABEYA is not a Convention refugee. |
ANALYSIS
[23] Briefly, I have concluded after analysing the record that the panel had sufficient evidence before it, reasonably considered, to serve as a basis for the conclusion that the plaintiff was not a Convention refugee.
[24] As my fellow judges have said many times, the standard of review of an Immigration and Refugee Board decision whose reasons are based on a lack of credibility by the claimant due to implausible and improbable statements, drawn reasonably and based on the evidence, or as a result of the confusion created by the latter"s responses, is that stated by the Federal Court of Appeal in Aguebor v. Canada1 by Décary J.A.:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
[25] This conclusion is consistent with the Supreme Court of Canada judgment in Canadian Union of Public Employees, Local 301 v. City of Montreal,2 in which L"Heureux-Dubé J. made the following observation at 844:
| We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal"s findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal"s decision: see Toronto Board of Education , supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at para. 1370. |
[26] Accordingly, from the detailed and specific reasons of the decision rendered, as I have set them out above, I conclude that the panel had an entirely reasonable basis for arriving at the conclusion that the plaintiff"s testimony was so confused and improbable that his credibility was completely vitiated.
[27] A review of the evidence as a whole indicated that the inconsistencies noted by the panel following the plaintiff"s examination were supported by the evidence and the inferences drawn from the said evidence were entirely reasonable. Further, the said inconsistencies affected essential parts of the plaintiff"s claim to refugee status such as his arrest, imprisonment and escape.
[28] In these circumstances, this Court is not authorized to intervene in the decision rendered by the panel. As L"Heureux-Dubé J. mentioned, it is not the function of courts to revisit the facts or weigh the evidence again, but that of the administrative tribunal in which this power is vested by legislation adopted by the provincial legislatures and the Parliament of Canada.
[29] However, I should like to take a few minutes to discuss an argument raised by the plaintiff at the hearing. In this Court he put forward a new reason to justify accepting this judicial review, resulting from the facts set out before the panel, namely that of a valid fear of persecution due to his membership in a particular social group, namely the UDPS, whose members were being persecuted in the DRC for their political activities.
[30] The plaintiff based this new reason on the documentary evidence about repression of the activities of the UDPS and case law3 discussing persecutions of members of this political party under the government of General Laurent-Désiré Kabila.
[31] I cannot allow the plaintiff"s new arguments for several reasons. To begin with, as the result of several major improbabilities and inconsistencies in the plaintiff"s testimony that he was a member of the JUDPS, the panel did not believe him.
[32] Secondly, the plaintiff made no reference to the documentary evidence and established no connection between it and himself. Thirdly, at the hearing the panel examined the reasons why the plaintiff feared returning to the DRC. As a result of this examination, the plaintiff admitted that UDPS or JUDPS demonstrators had been released following new demonstrations.
[33] Accordingly, I conclude that it is not open to the plaintiff to simply cite favorable case law without associating the latter with the evidence filed before the panel that considered his claim. In the case at bar I find that the plaintiff has not established this.
[34] In conclusion, I consider there is no basis for the Court to intervene in this matter.
CONCLUSION
[35] The application for judicial review is dismissed.
[36] No certified question was raised by the parties.
| François Lemieux J U D G E |
OTTAWA, ONTARIO
January 28, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-447-99 |
| STYLE OF CAUSE: NDOMBA KABEYA |
v.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 27, 1999 |
| REASONS FOR ORDER BY: LEMIEUX J. |
| DATED: JANUARY 28, 2000 |
APPEARANCES:
| JOHANNE DOYON FOR THE APPLICANT |
| MARIE NICOLE MOREAU FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| JOHANNE DOYON FOR THE APPLICANT |
| MARIE NICOLE MOREAU FOR THE RESPONDENT |
Morris Rosenberg
Deputy Attorney General of Canada
__________________1 Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
2 Canadian Union of Public Employees, Local 301 v. City of Montreal, [1997] 1 S.C.R. 793.
3 See to this effect the following decisions: Mapera v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 316 (T.D.), Kalunda v. Canada (Minister of Citizenship and Immigration), IMM-4379-97, T.D., judgment on September 15, 1998, and Mokabila v. Canada (Minister of Citizenship and Immigration), IMM-2660-98, T.D., judgment on June 2, 1999.