Date: 20040621
Docket: IMM-2292-03
Ottawa, Ontario, the 21st day of June 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
JEAN PAUL MASSAMBA KAPITA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Jean Paul Massamba Kapita is a citizen of the Democratic Republic of Congo. The Refugee Protection Division of the Immigration and Refugee Board rejected his claim for refugee protection, finding that Mr. Kapita had not provided credible evidence to support his claim of persecution based upon his political opinion. Mr. Kapita now seeks to have the Board's decision set aside, asserting that the Board's credibility and plausibility findings were patently unreasonable.
Background
[2] Mr. Kapita testified that he lived with his family in the South Kivu area of Congo, where he and his father started a business selling fruits and clothing. The family also established a plantation and raised livestock. Mr. Kapita took over the business after the death of his father in February of 2000.
[3] According to Mr. Kapita, South Kivu is occupied by both Congolese Rebels (the Rassemblement congolais pour la démocratie or 'RCD'), and by Rwandans. This occupation affected Mr. Kapita in the conduct of his business. Starting in 2000, he was no longer able to purchase his merchandise in Bukavu (the largest city in Kivu), because of the presence of armed bandits in the streets.
[4] In June of 2001, members of the RCD came to Mr. Kapita's place of business. The rebels demanded money, and when Mr. Kapita refused to hand any over, he was struck on the head by one of the RCD members. Mr. Kapita then gave some money to the RCD. After this attack, Mr. Kapita spoke with other local merchants, and together they formed an association to denounce the activities of the RCD. On July 20, 2001, the secretary of this newly formed association was kidnapped and shortly thereafter, Mr. Kapita was himself kidnapped, interrogated, and tortured by the RCD.
[5] Mr. Kapita explained that on the night of July 31, 2001, he was taken from his home into the bush, where he observed a number of dead male and female bodies. The RCD was evidently using the site to conduct executions. When someone was shot dead right before his eyes, Mr. Kapita testified that he immediately ran for his life. Although he heard shots ring out as he was running into the forest, Mr. Kapita was able to escape unharmed.
[6] After spending the night in the forest, Mr. Kapita says that he left for Tanzania via canoe the next day. Once he was in Tanzania, a friend named Kassira Pierre helped him travel to the United Kingdom, and finally, to Canada.
The Decision of the Refugee Protection Division
[7] The Refugee Protection Division rejected Mr. Kapita's refugee claim, finding that several aspects of Mr. Kapita's story were implausible. Despite having been requested by the Board to do so, Mr. Kapita had not produced any documentation that would establish the existence of his business. While Mr. Kapita produced his birth certificate, and had been able to obtain a copy of his school certificate from his wife, who was evidently in Gabon at the time of the hearing, he failed to produce a copy of his business registration or any other documentation, such as invoices or receipts, that would establish the existence of the business.
[8] The Board found Mr. Kapita's story of his capture and escape from the band of RDC rebels to be implausible. Specifically, the Board referred to Mr. Kapita's claim that he had been able to run into the forest and escape after the other individual was shot in front of him. Having taken Mr. Kapita into the bush to kill him, it was implausible, the Board said, that the rebels would allow him to simply run away. Given that the rebels were supposedly standing near to Mr. Kapita when he started to run away, the Board found it incredible that he would not have been shot and killed, or at the very least injured, when he tried to escape. Mr. Kapita's story of his escape was simply "rocambolesque", the Board said, that is, too fantastic to be believed.
[9] The Board also refused to accept Mr. Kapita's story of his escape from Tanzania. According to the Board, Mr. Kapita testified that a perfect stranger offered to organize and pay for his travel to Canada. Mr. Kapita did not know how much the trip cost, nor did he know if he was expected to repay his sponsor. Such a scenario was completely implausible, in the Board's view.
Issue
[10] The sole issue on this application is whether the Board erred in finding that Mr. Kapita was not credible.
Standard of Review
[11] This Court is required to pay considerable deference to findings of fact made by the Board, and should not interfere with these findings unless they are patently unreasonable (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.)) or, to use the language of section 18.1 of the Federal Courts Act, R.S.C. 1985, c.F-7, "made in a perverse or capricious manner or without regard for the material before it".
[12] That said, where the Board finds a scenario presented by a refugee claimant to be implausible, the Court may review that finding with greater care and scrutiny. The Court is often just as capable as the Board at deciding whether a particular scenario or series of events described by the claimant might reasonably have occurred: Divsalar v. Canada (Minister of Citizenship and Immigration) 2002 FCT 653, [2002] F.C.J. No. 875 (QL) (T.D.).
Analysis
[13] The Board rejected Mr. Kapita's refugee claim, in part, because although Mr. Kapita was able to obtain a copy of his school certificate from his wife in Gabon, he failed to produce any documentation that would corroborate his ownership of the retail business in South Kivu. Mr. Kapita's counsel says that the Board's finding in this regard is patently unreasonable, given that Mr. Kapita's wife was no longer in the Congo. Further, the South Kivu region had been overrun by a number of different rebel factions, and access to the area was limited. In these circumstances, counsel says, it was patently unreasonable to expect Mr. Kapita to be able to produce documentary proof of his business interests.
[14] However, the burden is on Mr. Kapita to establish that he has a well-founded fear of persecution in Congo. Notwithstanding the turmoil in South Kivu, and the fact that she was in Gabon, Mr. Kapita's wife was able to obtain a copy of Mr. Kapita's school certificate. No explanation was provided as to why she was unable to obtain any evidence that could support Mr. Kapita's claim to have been the owner of a business in South Kivu. The Board's finding in this regard was not patently unreasonable.
[15] According to counsel for Mr. Kapita, it was irrational for the Board to reject Mr. Kapita's story of his escape from the RCD rebels. It is evident from Mr. Kapita's testimony that there were a number of prisoners, as well as a number of rebels, in the bush on the night in question. While Mr. Kapita testified to hearing shots as he started to flee, it is not clear that the shots were being fired at him. The fact that Mr. Kapita was not injured or killed is not determinative of his story's lack of plausibility, counsel says. After all, it was night-time, and the rebels may have had difficulty seeing Mr. Kapita as he ran away.
[16] Mr. Kapita did indeed testify that it was night-time when he was taken into the bush to be executed. Nevertheless, according to his own testimony, there was sufficient light available for him to observe the dead bodies in the area, and to witness someone being shot dead in front of him. It is therefore surprising that Mr. Kapita was able to escape unscathed from the midst of a group of armed rebel soldiers intent on killing him. The Board's finding of implausibility in this regard is not patently unreasonable.
[17] Counsel for the respondent concedes that the Board erred in stating that Mr. Kapita claimed that a perfect stranger facilitated his escape from Tanzania. In fact, Mr. Kapita testified that his trip to Canada was organized and paid for by a friend. Nevertheless, it is still implausible that someone would accept a trip from Africa to Canada without any discussion of whether repayment was expected.
Conclusion
[18] For these reasons, the application for judicial review is dismissed.
Certification
[19] Neither party proposed a question for certification, and none arises here.
ORDER
THIS COURT ORDERS THAT:
1. For the reasons set out above, this application is dismissed;
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2292-03
STYLE OF CAUSE: JEAN PAUL MASSAMBA KAPITA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JUNE 16, 2004
REASONS FOR ORDER BY: MACTAVISH J.
DATED: JUNE 21, 2004
Mr. Michael Crane FOR THE APPLICANT
Mr. Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor
166 Pearl Street, Suite 100
Toronto, Ontario
M5H 1L3
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040621
Docket: IMM-2292-03
BETWEEN:
JEAN PAUL MASSAMBA KAPITA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER