Date: 19980708
Docket: IMM-5193-97
BETWEEN:
MARGUERITE MWENGA KALALA MBIYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, July 8, 1998)
DÉCARY J.
[1] In denying the applicant's claim for refugee status, the Refugee Division started with the premise that the central issue to be decided was the change of circumstances in Congo (formerly Zaïre).
[2] The applicant originally made her claim against the Mobutu regime. At the hearing, on August 12, 1997, the claim was made against the Kabila regime, as the Mobutu government had fallen in May 1997. The applicant's adoptive parents and all their children were found to be Convention refugees while Mobutu was still in power. The applicant had been left behind in Zaïre.
[3] The applicant feared that if she was compelled to return to what is now Congo, she would be persecuted on the ground that she would be forced to reveal her relationship with her "adoptive" parents, which would mean for her persecution at the hands of the authorities. The applicant feared persecution because of her association with the main opposition party, the UDPS. The applicant herself does not have any association directly with the UDPS, however, her "adoptive" father does.
[4] The Refugee Division did not question the applicant's credibility, nor did it question the applicant's relationship through adoption (going back to 1985) with her family.
[5] The Refugee Division, in my view, misapprehended the basis of the applicant's claim and thus misdirected itself in the analysis of the nature and impact of the change of circumstances. Having found that the central issue before it was that of change of circumstances, the Refugee Division, faced with documentary evidence replete with recent examples of official repression of members and supporters of the UDPS in Kabila's Congo, could simply not conclude that there was, at the time of the hearing, a change of circumstances such that the applicant would suffer no risk of persecution through association with the UDPS were she to return to Congo.
[6] The application for judicial review will be allowed, the decision of the Refugee Division dated November 17, 1997 will be set aside and the matter will be referred back to the Refugee Division for a new hearing.
[7] Counsel did not ask the Court to certify a question.
"Robert Décary"
Judge
Toronto, Ontario
July 8, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5193-97
| STYLE OF CAUSE: MARGUERITE MWENGA KALALA MBIYA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 8, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: DÉCARY, J.
DATED: JULY 8, 1998
APPEARANCES:
Mr. Micheal Crane
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor
166 Pearl Street
Suite 200
Toronto, Ontario
M5H 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980708
Docket: IMM-5193-97
Between:
| MARGUERITE MWENGA KALALA MBIYA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER