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                                                                                                          Date: 19980821

                                                                                              Docket: IMM-5470-97

Ottawa, Ontario, August 21, 1998

Present: The Honourable Mr. Justice Pinard

Between:

                                            Thérèse Baninga NDEKO

                                                                                                                    Applicant

                                                              -and-

                                        MINISTER OF CITIZENSHIP

                                              AND IMMIGRATION

                                                                                                                Respondent

                                                           ORDER

The application for judicial review of the decision of the Refugee Determination Division dated December 1, 1997, determining that the applicant is not a Convention refugee, is dismissed.

              YVON PINARD              

JUDGE

Certified true translation

Bernard Olivier


                                                                                                          Date: 19980821

                                                                                              Docket: IMM-5470-97

Between:

                                            Thérèse Baninga NDEKO

                                                                                                                    Applicant

                                                              -and-

                                        MINISTER OF CITIZENSHIP

                                              AND IMMIGRATION

                                                                                                                Respondent

                                            REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of a decision of the Refugee Determination Division dated December 1, 1997, determining that the applicant is not a Convention refugee.

[2]         The Refugee Division held that as a result of the changes that have occurred in the Democratic Republic of the Congo the applicant's fear is unfounded. The following passage from the decision in question should be noted:

[TRANSLATION] As indicated below, the panel finds that in this claim, the result of the changes in the DRC is that the claimant's fear regarding the Mobutu supporters has become an unreasonable, and accordingly an unfounded fear.4

Plainly, the Mobutu régime no longer exists.5 It is implausible that the Mobutu soldiers, which have joined Kabila's forces, would continue to follow orders from the former Mobutu régime. The documentary evidence shows that Mobutu's supporters were in a precarious situation when Kabila's forces arrived. It is clear that the soldiers who had not fled their country with Mobutu would like to distance themselves from their former activities as Mobutu's accomplices. We are not of the opinion that it is reasonable to believe that a person such as the claimant would attract the attention of Kabila's forces because of her husband's political activities during the Mobutu régime.


The panel is of the opinion that it is not reasonable to believe that the fact that the claimant's husband was a Mobutu soldier is an objective basis for a well-founded fear. The documentary evidence6 indicates that some Mobutu officials have been arrested and some officers have been charged, but there is insufficient evidence in the documentary evidence that the families of former Mobutu officials are targeted or persecuted by Kabila's government or forces.

Having regard to the persecution alleged by the claimant on the part of the Kabila government, the panel does not find her fear to be well-founded. The claimant was unable to provide evidence in that respect, and so her testimony on this point is merely speculative.

4            Cuadra v. Canada (Attorney General) (1993), 157 N.R. 390 (F.C.A. no. A-179-92) Isaac, Marceau, Linden, July 20, 1993, p. 3 (Marceau)

5            Exhibits A-1, A-2 and A-3.

6            Exhibit A-3, Supplementary Documents on Zaire: August 27, 1997, s. 12, p. 3, [TRANSLATION] "The complete list of former Mobutu officials currently in prison", Le Soft, August 7, 1997.

[3]         In Yusuf v. Canada (M.E.I.) (1995), 179 N.R. 11, the Federal Court of Appeal held that change of circumstances is a question of fact. In the instant case, the decision of the Refugee Division on that point seems to me to be based on significant elements of the documentary evidence to which it referred. Furthermore, the Refugee Division had the advantage of seeing and hearing the applicant and her witness, Ms. Gizenga.

[4]         On the question of assessing the facts, it is not up to this Court to substitute itself for the Refugee Division when, as in this case, the applicant fails to prove that the panel based its decision on an erroneous finding of fact, that it made in a perverse or capricious manner without regard for the evidence before it.

[5]         Recently, in Nkongolo-Beyea v. Canada (M.E.I.) (May 6, 1998), IMM-3865-97, my colleague Mr. Justice Richard said the following with respect to the new political situation in the Democratic Republic of the Congo:[1]

In the instant case, the panel analysed the new political situation in the D.R.C. at length. Although it acknowledged that the political situation in the D.R.C. was not yet ideal, the panel found no evidence to support the applicant's fear of persecution with respect to the new government of Laurent Kabila.

The applicant has not discharged his burden of showing that the inferences drawn by the Refugee Division, an expert tribunal, could not reasonably have been drawn.


[6]         In the instant case, after reviewing the evidence in the record, I must come to the same conclusion.

[7]         Accordingly, the application for judicial review is dismissed. Since the issue in this case was essentially a question of fact, I agree with counsel for the respondent that there is no question to be certified.

              YVON PINARD              

JUDGE

OTTAWA, ONTARIO

August 21, 1998

Certified true translation

Bernard Olivier


                                     FEDERAL COURT OF CANADA

                                                    TRIAL DIVISION

                NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO:                              IMM-5470-97

STYLE OF CAUSE:                          THÉRESE BANINGA NDEKO v. MCI

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                        August 12, 1998

REASONS FOR ORDER OF PINARD J.

DATED:                                              August 21, 1998

APPEARANCES:

Robert Néron                                                                                     FOR THE APPLICANT

Diane Dagenais                                                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

Robert Néron                                                                                     FOR THE APPLICANT

Toronto, Ontario

Morris Rosenberg                                                                             FOR THE RESPONDENT

Deputy Attorney General

of Canada



     [1] See also Kandolo v. Canada (M.C.I.) (June 9, 1998), IMM-3418-97 (F.C.T.D.).

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