Date: 20000315
Docket: IMM-1044-99
Ottawa, Ontario, the 15th day of March, 2000
Present: THE HONOURABLE MR. JUSTICE NADON
Between:
TSHITUMBU KABOLAMBI
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
| Marc Nadon |
| J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000315
Docket: IMM-1044-99
Between:
TSHITUMBU KABOLAMBI
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON, J.
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") rendered on January 25, 1999 that the applicant is not a Convention refugee.
Applicant"s account
[2] The applicant, a citizen of the Democratic Republic of the Congo ("DRC"), claims refugee status on the ground that he fears persecution because of his political opinions. In his Personal Information Form ("PIF"), the applicant relates the following events. He says he is a member of the Youth section of the Union pour la Démocratie et le Progrès Social ("UDPS"). As a member of this association, he fought the dictatorial Mobutu regime and was arrested several times. When Kabila took power, the same system of dictatorship continued under the Alliance des Forces Démocratiques de Libération du Congo-Kinshasa ("AFDL"); for example, the Kabila regime banned political parties other than its own, as well a free press. Concluding that the AFDL had established a new dictatorship, the UDPS organized a demonstration, held on May 20, 1997. The applicant alleges that he mobilized the students in his university to participate in this demonstration. During the demonstration, there were clashes between soldiers and students and the applicant was beaten and arrested. The soldiers then took him to a place where he was tortured and held for almost eight months, until January 3, 1998. When released, he was placed under surveillance by the AFDL, whose agents "followed [his] movements closely".
[3] One month after his release, on February 13, 1998, he learned that the leader of the UDPS, Étienne Tshisekedi, had been arrested. Consequently, the UDPS members went into the streets to demand his release. There were clashes between the students and the AFDL agents, and the applicant and his brother were arrested and beaten. The applicant was then transferred to a custodial facility where he remained until May 5, 1998. Again, the applicant claims he was tortured while being held.
[4] On May 5, 1998, the applicant was taken to the airport and placed on a plane with other inmates to be sent to Lubumbashi. When they arrived there, the applicant recognized the husband of one of his cousins, Jean Kayembe, among the AFDL agents who had jailed the inmates. Three days later, an AFDL agent allowed the applicant to escape from his place of detention. The agent in question helped the applicant climb a wall on the other side of which Jean Kayembe was awaiting him; the latter directed him to the home of the agent who had released him. The applicant stayed only two days with the AFDL agent, as the latter was afraid the applicant would be found there. The applicant then lived with Jean Kayembe until May 20, 1998. On that date, a man came to Kayembe"s place and took the applicant to Lusaka, Zambia; the applicant and this other individual then went on to London, England, where the applicant flew to Canada using a false passport.
[5] The applicant claimed refugee status upon his arrival in Canada on May 22, 1998. The applicant says he feels safe in Canada, but that he is still worried about his family and particularly his brother and his wife.
Decision of the Refugee Division
[6] The applicant"s claim was heard on December 21, 1998 by the Refugee Division, which dismissed it on January 25, 1999. The Division found that the applicant was not credible, having held that his testimony was contradictory and improbable.
[7] The Refugee Division noted that the applicant"s testimony was generally consistent with the account he had given in his PIF. However, it doubted the applicant"s credibility "[Translation ] owing to contradictions and improbabilities noticed in the course of the hearing". The Division further found that the applicant had been unable to provide a satisfactory explanation of some important points in his claim. For example, the Division noted that the applicant could not say how many students had participated in the demonstration of May 20, 1997, or even how many students were enrolled in his university. Similarly, it said, the applicant could not describe accurately the place where he had been held for almost eight months. In this regard, the Refugee Division wrote the following, at page 5 of its decision:
| [Translation] The panel is surprised that this gentleman, who remained for about seven months in this house, is unable to provide a description that is a little more detailed, especially since, upon his release on January 3, 1998, he was shown the door and required to walk to his house; at that point, he had an opportunity to see the house. |
[8] The Refugee Division also noted a discrepancy between the applicant"s testimony and his PIF concerning the reasons for the demonstration of May 20, 1997. In his PIF, the applicant explained that the purpose of the demonstration was to denounce the dictatorial regime of Kabila and demand the rights of the Congolese people by mobilizing people to act and closing the streets. In his testimony, the Division says, the applicant stated that the purpose of the demonstration was to go to the American embassy to protest the "installation of Kabila" and denounce the involvement of the United Nations, which was trying to "solve our problems".
[9] The Refugee Division also noted that in his sheet filled in when he arrived in Canada on May 22, 1998, the applicant answered "no" to the following question: "[Translation ] Are you a member of a particular religious, social, military or political organization?" According to the Division, the applicant did not mention his membership in the UDPS and stated he had no "political relations". Yet he stated in this same sheet that he had been imprisoned for the following reason: "mobilization of students in a march" and that his persecution was due to his political beliefs.
[10] Furthermore, the Refugee Division did not believe the applicant had played a major role within the UDPS since he was unaware of some significant facts about his own party. At page 4 of its decision, the Division stated:
| [Translation] The panel considers that this gentleman, who claims to play an important role within the UDPS, has no knowledge of the numerous battles conducted by his party, for example in the fall of 1996. If he was as involved as he claims, he could not be unaware that the UDPS several times demanded the resignation of Prime Minister Wango wa Dongo during some famous marches in February 1997. The panel is of the opinion that the claimant did not, in 1997, play the role he claims to have had within the UDPS, and more particularly in the organization of an alleged demonstration on June 20, 1997. |
[11] In this regard, the Refugee Division noted that there was no indication in the documentary evidence to show that a demonstration had occurred on May 20, 1997, as the applicant was claiming. It noted that the documentary record, on the contrary, referred to other demonstrations that had occurred on dates other than the one referred to by the applicant.
[12] As to the applicant"s statement that he went to the home of Étienne Tshisekedi, the UDPS leader, when he learned that Tshisekedi had been arrested, the Refugee Division expressed its surprise at this (at page 5 of the decision) in light of the applicant"s statement that the AFDL was surveilling him:
| [Translation] In the panel"s view, if the claimant was as he claims under surveillance, and his comings and goings were being closely watched, it is impossible that he could even have been able to go to the residence of the leader of the UDPS. However, if he was able to go there, it is because he has greatly exaggerated the conditions pertaining to his release. |
[13] The Refugee Division also found it improbable that Jean Kayembe, the husband of the applicant"s cousin, had recognized him after a single encounter twelve years earlier.
[14] Concerning the search notice placed by the applicant"s family in the newspaper La semaine du reporter and published in December 1997, the Refugee Division concluded, at page 6 of its decision, that "[Translation ] Given the gentleman"s general lack of credibility, the panel considers that the sole purpose of this article was to support a contrived story."
[15] Finally, the Refugee Division noted that "[Translation ] [f]aced with the general lack of credibility, we can only consider that the claimant"s testimony as a whole is not credible."
Analysis
[16] Through his application for judicial review, the applicant submits, first, that the decision of the Refugee Division is legally and factually so unjustified as to be unreasonable, and, second, that the panel members failed to consider the many documents proving that his fear was justified.
[17] Concerning the first branch of his argument, the applicant submits that the decision is based on an erroneous assessment of the evidence. First, he notes that he never said he had organized the demonstration of May 20, 1997, as the Refugee Division noted in its decision, but that he had only mobilized the students to participate in it. In support of his argument, the applicant refers to page 1, paragraph 4 of the decision, where the panel writes:
| [Translation] The gentleman alleges he was arrested several times as a result of this political involvement. As a fighter in the UDPS, he organized a demonstration for May 20, 1997.... |
The applicant adds that he testified and that he related in his PIF that he had helped to mobilize the students to urge them to participate in this demonstration.
[18] In my opinion, the applicant"s argument on this point is without foundation. In fact, at page 3 of its decision, the Refugee Division writes:
| [Translation] The gentleman, in his account, alleges he was a member of the UDPS with the youth section. In his testimony, he says he held the position of first vice-president of the Lumumba sub-cell " Salongo Limete/Kinshasa cell from 1993 on, although he had been a "combatant" since 1991. In this capacity, he says, he was contacted on the morning of May 19, 1997 by Mr. Léon Mananga, the president of the Lumumba sub-cell, who asked him to contact the "combatants" to get them to attend the demonstration scheduled for the next day. The gentleman informed his contact that he could not be active in the zone because he had to go to the university. However, he offered to mobilize the students to get them to participate in the march.... |
[19] It is clear, in my opinion, that the Refugee Division correctly understood the applicant"s testimony and did not err.
[20] Second, the applicant submits that the Refugee Division erred concerning his "release" from prison in May 1998. Although the Division states that the applicant "was released", the applicant states that he was not released but that he fled with the help of the AFDL agent and his cousin Jean Kayembe. At page 2 of its decision, the Refugee Division writes:
| [Translation] The gentleman adds that he [Jean Kayembe] also recognized him and that is why, three days later, he was released from prison with his complicity.... |
[21] In my opinion, the Refugee Division did not err in using the verb "release" [libérer in French]. The Nouveau Petit Robert: Dictionnaire de la langue française 1 (Montréal: DICOROBERT Inc., 1993) defines the word "libération" [release] as follows, at page 1278:***
| 1. Action de rendre libre (une, des personnes) ± délivrance . La libération d"un captif, des otages. Mise en liberté d"un détenu après l"expiration partielle ou totale de sa peine, ... |
[22] Thus, contrary to the applicant"s submissions, his flight from prison with the complicity of an agent and his cousin Kayembe constitutes a "release". Consequently, I am of the opinion that the Refugee Division committed no error.
[23] Third, the applicant submits that the Refugee Division erred in finding that his cousin had spent $600 to go to Kinshasa. He submits that he testified that he did not know how his cousin had gone to Kinshasa and that a plane ticket from Lubumbashi to Kinshasa cost $600. However, a review of the transcript reveals that the applicant stated that his cousin had gone to Kinshasa "[Translation ] surely by plane, because Lubumbashi to Kinshasa, you can only go by plane" and that he said such a plane ticket cost approximately $600. Consequently, I am unable to conclude that the Refugee Division erred in its finding.
[24] Similarly, it is not unreasonable, in my view, to find improbable the applicant"s theory that his cousin had taken an AFDL plane to go to Kinshasa. In this regard, the applicant testified as follows: "[Translation ] well, Jean is a soldier, he is a soldier of the AFDL, so far as I know, the military have their own planes, they can travel when they want. He just had to ask his chief, "I want to go to Kinshasa" for some reason, he could invent a reason, any particular reason." The Refugee Division did not consider this account credible, since it entailed too many risks and was "[Translation ] completely far-fetched in any event".
[25] Fourth, the applicant submits that the explanations provided in his PIF and his oral testimony concerning the purpose of the demonstration of May 20, 1997 do not conflict or even differ. In his PIF, the applicant described the goal of the demonstration as follows:
| [Translation] Having witnessed the bad start of KABILA and his men, we combatants of the UDPS had the task of ensuring that May 20, 1997 would be a day for claiming our rights, a warning to KABILA and his men by the Congolese people, to get them to see that the methods they had adopted were those we had fought under the dictatorial regime of MOBUTU. The people had to force them to comply with the democratic rules; that is, to establish a rule of law in the CONGO, to tolerate freedom of expression and freedom of the press. We young people in the UDPS had to mobilize people to act, to block the streets to all those who had to go to work and ensure that the following day, the 21st of May, was a city-wide shutdown; that way, KABILA and his men were going to understand that the Congolese people will not let them establish a new dictatorship in the CONGO. |
At the hearing, the applicant testified1 as follows:
| [Translation] |
| Q: And what did you members of the UDPS do when confronted with this attitude of the Kabila regime? |
| A: We reacted immediately. We wanted to show Mr. Kabila that he... we were fed up with dictatorship, so we couldn"t let him re-establish a new dictatorship in our country. So I, I was personally contacted by my president.... |
| " Yes. |
| A: ... who asked me to mobilize people to, well, go into the streets on the 20th of May "97, to try to, to claim our rights, to demand that Mr. Kabila establish the rule of law in the Democratic Republic of the Congo. |
Then, the applicant explained how he mobilized the students and he added the following:2
| [Translation] |
| Q: And you took the highway? |
| A: We didn"t ... because our... let"s say, our goal, our objective, I asked before going, in front of ... I mean to march, I asked the students, we were to go in front of the United States Embassy, it was downtown. I mean, in front of the American cultural centre, not the embassy of the United States, the American cultural centre. |
| Q: That was your destination? |
| A: That was our destination. |
| Q: Was there some special reason for going in front of the American cultural centre? |
| A: Yes, because, I mean, for us, let"s say.... it is the UN that was trying to settle the... the problems of the countries in... the problems of the countries in... let"s say, as it was [inaudible] as in Irak and Kuwait, it was the UN that intervened. |
| " Hm, hm. |
| A: You understand? Let"s say, to us it was the UN that was trying to settle the problems of the countries that... the mistreated country, let"s say, and so we were to go in front of the American cultural centre to show the Americans that we did not agree with the dictatorship that Mr. Kabila had just, had just established in our country. |
In my opinion, the explanations supplied by the applicant in his PIF and his oral testimony are not contradictory. The applicant clearly indicates in his PIF that the purpose of the demonstration was to claim some fundamental rights in opposition to the Kabila dictatorship. The applicant repeats the same thing in his testimony, except that he adds the destination of the march. This is not, in my opinion, a "completely different" reason from the one stated in his PIF, as the Refugee Division states. I am therefore of the opinion that the Refugee Division erred in this regard. Moreover, it erred when it noted that the planned destination was the American Embassy, although the applicant clearly states that the destination was not the embassy but the American cultural centre. However, I think these errors are not in any way decisive and accordingly do not warrant the intervention of this Court.
[26] As to the applicant"s statement in his entry record that he was not part of any organization, the applicant submits that he did not understand the question and that he unwittingly erred in failing to mention his association with the UDPS. In my opinion, this explanation is without merit. The applicant testified that he had been a member of the UDPS since 1991, and vice-president of the UDPS sub-cell since 1993. Given his position and the story he told in support of his claim, it is hard to accept the applicant"s explanation as credible. His membership in the UDPS is an essential ingredient in the story he told in support of his claim.
[27] It is true, of course, that the applicant cited "political opinions" as a ground of persecution; he stated that he had been jailed for "[Translation ] mobilization of students in a march"; and he elaborated on his association with the UDPS in his PIF.
[28] The applicant"s failure to indicate that he was a member of the UDPS is part of a whole. As the Refugee Division noted, the applicant did not know certain key facts in relation to the activities of his own party. Moreover, the applicant was unable to describe the house in which he had been held for eight months. His answers to the questions concerning this point are, without a doubt, vague and evasive.
[29] Similarly, there is nothing in the documentary record mentioning the demonstration of May 20, 1997, as the Refugee Division noted. The applicant says the media failed to report this march because it was not a big event; there were only thirty or forty persons participating in the demonstration and no one was injured or killed. However, the applicant claims that he was arrested in this demonstration and jailed. He was probably not the only one to suffer these consequences, and the media surely would have reported the violence against the students.
[30] Finally, the applicant submits that the Refugee Division erred in ignoring the documentary evidence that corroborated his testimony. More particularly, he submits that the Refugee Division erred in failing to give any weight to the search notice placed in a newspaper by his family after his disappearance. The Refugee Division stated that "[Translation ] [g]iven the gentleman"s general lack of credibility, the panel considers that the sole purpose of this article was to support a contrived story." In my opinion, in view of the decision of this Court in Sheikh v. Canada (M.E.I.) , [1990] 2 F.C. 238 (F.C.A.), the Refugee Division could "reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim...". Accordingly, it is clear that the Refugee Division could reject the applicant"s evidence.
[31] In conclusion, the applicant has failed to persuade me that the Refugee Division committed an error that would allow me to intervene. For these reasons, the application for judicial review will be dismissed.
Marc Nadon
J.
O T T A W A, Ontario
March 15, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-1044-99 |
| STYLE: TSHITUMBU KABOLAMBI v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: January 20, 2000 |
REASONS FOR ORDER OF NADON J.
DATED: March 15, 2000
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Sylviane Roy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________* Translator"s note: The Oxford English Dictionary (2nd ed.), (Oxford, 1994), defines the noun "release", in part, as follows:
6. a. The action of setting free, or the fact of being set free, from restraint or confinement; permission to go free; also, a document giving formal discharge from custody.
1 Panel record, p. 628.
2 Panel record, p. 638.