Date: 19990423
Docket: IMM-1598-98
BETWEEN:
NZIUKI (JEAN-CLAUDE) SITA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated March 20, 1998 wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant is a thirty-four year old citizen of Zaïre. He was a teacher of African culture and English at the secondary school level from 1987 to 1996. In 1987, he became an active member of the UDPS, a political party which supported democracy. The applicant attended meetings and participated in demonstrations. During his lectures as well as during school reunions, he spread the word of the UDPS. As a result of these activities, the applicant claims that he was targeted.
[3] In September 1996, two military men approached the applicant on the street and demanded that he get into their vehicle; when he refused, they pulled out riffles. The applicant claims that he spent the next three days in a dark cell, without food. He was detained for nine days and was threatened that he should give up his teaching position. From then on, he was continuously harassed by people in uniform.
[4] In January 1997, the applicant was arrested when returning from a political demonstration. During this detention, one of the guards helped with his escape and he fled to Canada. He fears persecution based on his political opinions.
[5] One of the findings of the Board which is under attack is the following:
| Le tribunal est d'avis que l'ensemble de votre témoignage n'établit pas une crainte bien fondée de persécution. |
| ... |
| À la lumière de votre preuve, le tribunal ne croit pas que les autorités de l'AFDL (Alliance des forces démocratiques pour la libération du Congo) s'intéressent à vous. |
| Aussi, parce que dans le passé vous n'avez pas eu de difficulté avec les autorités de Mobutu. À cet effet, le tribunal ne croit pas que vous avez été arrêté le 3 septembre 1996, parce qu'à l'époque vous n'étiez plus un enseignant. |
[6] The applicant submits that the Board erred in law because it misconstrued evidence and its conclusions were unreasonable based on the record. He argues that the evidence before the Board supported the contention that he was a UDPS activist and that the Board's assessment of his "adhérence à un parti politique d'opposition" was understated. The Board improperly weighed the evidence because of its concerns with respect to credibility and, as a result, the conclusion was erroneous and without regard to the evidence.
[7] In their decision the Board suggested that they disbelieved that he was arrested in September of 1996, concluding erroneously that the applicant was no longer a teacher on the date of the arrest.
[8] It is argued that the documentary evidence clearly establishes a well-founded fear of persecution in Zaïre/RDC following the change of government and that the Board failed to deal with the documentary evidence which corroborated the applicant's fear of persecution.
[9] Finally, the applicant submits that his testimony must be presumed to be truthful unless there are reasons to doubt it and, in making such a finding, the Board has an obligation to point out the inconsistencies.
[10] After a careful review of the decision, the transcript and the documentary evidence, I am satisfied that because of the Board's determination that this claimant was not credible they failed to analyse the documentary evidence which did support this claimant's contention that he could encounter serious problems because of his political activism should he return to Zaïre. The members of the Board misdirected themselves in failing to particularize the inconsistencies and totally ignored the documentary evidence in light of the changed country conditions.
[11] It is apparent that they disbelieved that at the time of his arrest in early September of 1996 the applicant was still a teacher. A certificate dated October 1996 was filed from the institution where he had been employed which attests to the fact that he had been a full time teacher for the two previous academic years; the document verifies that he had been a full time teacher until the end of the spring term of 1996 (July). The applicant offered a very credible explanation as to the omission that he was not shown to be a teacher in September 1996. Since he had been arrested in early September, the certificate could not assert that he was a full time teacher commencing September of 1996; the usual contract ran from September to the end of the spring term in the following year. The document indicates that he was not under contract in September 1996, evidently he had not concluded employment for a full term, having been arrested and threatened to abandon his profession. This does not support the Board's finding that he was not a teacher at the time of his arrest. This appears to be the basis of the Board's finding that the applicant was not credible.
[12] The Board also ignored a letter from a fellow teacher dated November 1997 which supports the applicant's allegation that he was still being sought by the authorities. This letter attests to the fact that a former fellow teacher who was well aware of the applicant's political activities had now become active and powerful within the Kabila regime and was regularly enquiring about him. The letter states "Heureusement que personne ne lui a encore dit ta nouvelle résidence... Mais sache qu'il est animé de mauvaises intentions et veut profiter de sa position actuelle pour intenter à ta vie".
[13] There was a total failure on the part of the Board to examine the impact of changes of the country conditions in light of the evidence that was filed. This constitutes a reviewable error.
[14] The application for judicial review is allowed. The decision of the CRDD is set aside and the matter is referred back for redetermination and decision by a differently constituted panel.
JUDGE
OTTAWA, Ontario
April 23, 1999