Date: 20051003
Docket: IMM-1740-05
Citation: 2005 FC
1349
Ottawa, Ontario, October 3, 2005
PRESENT: MR. JUSTICE SHORE
BETWEEN:
CLAUDE
MPIA-MENA-ZAMBILI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
INTRODUCTION
Exclusion through complicity
[1] “…complicity through association…
[means that] individuals may be rendered responsible for the acts of others
because of their close association with the principal actors.”
Credibility (story and documentation)
[2] The applicant must demonstrate to
this Court that the panel’s assessment of the facts is “clearly irrational” or
“evidently not in accordance with reason”.
Exclusion
[3] This becomes a question of fact.
The Minister need not prove the respondent’s guilt. The standard of evidence he
must satisfy is “lower” than the balance of probabilities. He must prove serious
reasons for considering that the respondent is guilty.
NATURE OF THE PROCEEDINGS
[4] This application for judicial
review, brought pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act
(the Act), relates to a decision of the Refugee Protection Division of the
Immigration and Refugee Board (Board), dated February 15, 2005. The Board held
that because of his complicity in some crimes against humanity, Mr. Mpia‑Mena-Zambili
was subject to exclusion under article 1F(a) of the Convention relating to
the status of refugees (Convention) and therefore could not be declared a
“Convention refugee” (section 96 of the Act) or a “person in need of
protection” (subsection 97(1) of the Act).
FACTS
[5] Here are the alleged facts, as
described by the Board. The applicant, Mr. Claude Mpia‑Mena-Zambili, was
born on July 10, 1966 at Matadi, Democratic Republic of Congo (DRC), and has a law
degree from the University of Kinshasa. He held the position of legal advisor
in the ministries of Justice, Foreign Affairs and Internal Affairs under
Mobutu. Unemployed since the arrival of Laurent-Désiré Kabila in Kinshasa, in
May 1997, he was appointed, in March 1998, senior chef de poste
[inspector] of the migration service (DGM) for Matadi Port and a member of the
restricted security committee.
[6] In September 2000, while Mr.
Mpia-Mena-Zambili was posted in the Cataracles district, the Congolese authorities
observed a massive influx of Angolans to the DRC, following fierce bombings by
the Angolan armed forces and rebel elements of the National Union for the Total
Independence of Angola (UNITA), especially near the southern boundary of the
Cataracles district.
[7] The restricted security committee
met on September 22, 2000, to discuss the practical aspects of the execution of
a decision of the Congolese government. The central government had sent the
brigade commander of the FAC (Forces armées congolaises) an order to kill all
Angolans who ventured into border towns. This restricted security committee
consisted of five people: the district commissioner, the FAC brigade commander,
the commander of the national police, the senior chef de poste of the National
Intelligence Agency (ANR), and the senior chef de poste of the DGM, Mr.
Mpia-Mena-Zambili. Mr. Mpia-Mena-Zambili maintains he was unequivocally opposed
to this decision, as was the national police commander. They proposed instead
the creation in border towns of specific Congolese reception structures to
allow Angolans to catch their breath and return to their villages in Angola.
[8] This humanitarian proposal received
the approval of the district commissioner, but not that of the FAC brigade
commander or the head of the ANR (National Intelligence Agency). As a result,
it was not implemented in that region.
[9] On September 30, 2000, Mr.
Mpia-Mena-Zambili learned with dismay of the massacre of 767 Angolans, who had
been buried in a common grave 37 kilometres from the district of Gombe South
(Congolese territory) by soldiers of the FAC.
[10] On October 5, 2000, the commander of
the national police, Mr. Pépin Ndolu, and Mr. Mpia-Mena-Zambili were
arrested and incarcerated on the order of the minister of Interior, which was
executed by the Cataracles district commissioner. They were accused of having
opposed a government order at the meeting of the restricted security committee
of September 22, 2000. Mr. Mpia-Mena-Zambili was detained at the central prison
of Mbanza Ngungu, where he was threatened and beaten, and forced to do hard
labour.
[11] On September 30, 2000, the national
police commander died as a result of the precarious conditions of his
detention. The burial took place the same day seven kilometres from the prison
of Mbanza Ngungu, and was done by several prisoners, including Mr.
Mpia-Mena-Zambili, under the watch of drunken soldiers. Taking advantage of the
soldier’s inattention, Mr. Mpia‑Mena-Zambili fled on foot to the
village of Kimakandi, a walk of about 80 kilometres, to cross the border from
Kimpangu to the Angolan border town of Kimbata.
[12] Having served Angola extremely well
when he was municipal chef de poste on the lower river borders abutting
the enclave of Kimbata, Mr. Mpia-Mena-Zambili was placed in the protection zone
of the Angolan government for about 11 months at Kimbata.
[13] Mr. Mpia-Mena-Zambili was
repatriated to the DRC on November 24, 2001, escorted by Angolan military and
police and by immigration officials, thanks to the diplomatic contacts the
Congolese government maintained with the Angolan government, which guaranteed
the safety of Mr. Mpia-Mena-Zambili. He was placed under house arrest.
[14] On November 30, 2001, he was
received by the president of the Republic, Joseph Kabila, who was visiting
Mbanza Ngungu. The president gave him some advice and ordered the senior
administrator of the DGM to reinstate Mr. Mpia-Mena-Zambili in his duties as
senior chef de poste of Cataracles. Thus, on December 10, 2001, a new service
certificate was signed and served, and Mr. Mpia-Mena-Zambili returned to his
position that very day.
[15] On December 15, 2001, while on
assignment establishing immigration posts at Kolo Fuma, located about 50
kilometres from Mbanza Ngungu, Mr. Mpia-Mena-Zambili was attacked during the
night, in his room, by a commando, who fired two bullets. Mr. Mpia-Mena-Zambili
managed to flee to Kinshasa, where he took refuge at the home of a cousin.
Mr. Mpia‑Mena‑Zambili alleges that his return to the country
and his meeting with the president were “ruses” (sic), since the
authorities wanted to eliminate him because he was dangerous, having witnessed
the massacre of the Angolans.
[16] While Mr. Mpia-Mena-Zambili was in
hiding in Kinshasa, his wife and children were threatened by security agents
who had gone to his home looking for him. His family was therefore forced to
seek refuge in a village in Congo-Brazzaville. At the same time, on the radio,
there had been wanted notices, whereby Mr. Mpia-Mena-Zambili was prohibited
from leaving the country. Mr. Mpia-Mena-Zambili was informed of this by the
cousin with whom he was staying, who was also a Ndjili airport worker and
employed by the DGM.
[17] This same cousin found him a
passport containing an American visa, belonging to one Kemilo. In disguise, Mr.
Mpia-Mena-Zambili left his country via Ndjili airport on January 31, 2002.
After transiting through Ethiopia, Italy and the United States, he arrived at
the Lacolle border crossing on February 10, 2002, where he claimed refugee
protection.
IMPUGNED DECISION
[18] Having found that there were serious
reasons to believe that Mr. Mpia-Mena-Zambili was an accomplice in crimes
against humanity, the Board denied him status as a refugee and a person in need
of protection, under article 1F(a) of the Convention. The Board also
concluded that Mr. Mpia-Mena-Zambili’s story was not credible.
ISSUES
[19] 1. Is the applicant’s exclusion under article 1F(a)
of the Convention for complicity in crimes against humanity reasonable?
2. Is the Board’s conclusion that the applicant is not
credible patently unreasonable?
ANALYSIS
Applicable statutory provisions
[20] Section 98 of the Act provides:
|
98. A person referred to in section E or F of
Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
|
98. La personne visée aux sections
E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir
la qualité de réfugié ni de personne à protéger.
|
[21] Section F(a) of article 1 of
the Convention (appendix to the Act) provides:
|
F. The provisions of this Convention shall
not apply to any person with respect to whom there are serious reasons for
considering that:
|
F. Les dispositions de cette
Convention ne seront pas applicables aux personnes dont on aura des raisons
sérieuses de penser :
|
|
(a)
he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes;
|
a)
Qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime
contre l’humanité, au sens des instruments internationaux élaborés pour
prévoir des dispositions relatives à ces crimes;
|
|
…
|
[ …]
|
Standard of proof
[22] In relation to the application of
article 1F(a), the Federal Court of Appeal has held that the Minister need only
satisfy the standard of proof covered by the expression “serious reasons to
consider”. This standard falls well short of the standard required in the
criminal law context (“beyond a reasonable doubt”) or the civil law context
(“on a balance of probabilities” or “preponderance of proof”) (Ramirez, supra,
and Moreno v. Canada (Minister of Employment and Immigration (C.A.).
Requisite degree of participation
[23] A person may be held liable for a
crime, even as an accomplice. Consequently, it is possible to apply the
exclusion clause 1F of the Convention to a refugee claimant if he becomes
complicit in a crime mentioned therein (Sivakumar, supra).
[24] In Sivakumar, the Federal Court of Appeal
explained that “complicity through association” means that “individuals may be
rendered responsible for the acts of others because of their close association
with the principal actors.”
[25] As the Court of Appeal noted in Sivakumar,
it is the knowledge of the crimes against humanity committed by an organization
to which an individual belongs that make that individual an accomplice by
association in the commission of those crimes. The Court stated, at page 442:
To sum up, association with a person or organization
responsible for international crimes may constitute complicity if there is
personal and knowing participation or toleration of the crimes.
[26] In Ramirez, the Federal Court of Appeal
explained that “complicity rests in such cases… on the existence of a shared
common purpose and the knowledge that all of the parties in question may have
of it.”
[27] When the issue is one of a refugee
claimant’s complicity by association, it is the nature of the alleged crimes of
the organization to which he is alleged to have belonged that leads to the
claimant’s exclusion: Harb v. Canada (Minister of Citizenship and
Immigration).
[28] The case law on exclusion has never
required, as a condition for a finding of complicity, that a refugee claimant be
linked to some specific crimes as their actual perpetrator or that the crimes
committed by an organization be necessarily and directly attributable to some
specific acts or omissions of the claimant: Sumaida v. Canada (Minister of
Citizenship and Immigration) (C.A.),
Sivakumar.
[29] It is settled law that, if an asylum
seeker is to obtain refugee status, he must have dissociated himself from the
organization committing the crimes, and at the earliest opportunity, consistent
with his own safety: Sivakumar,
Moreno.
[30] Based on an analysis of the Ramirez,
Moreno and Sivakumar judgments, Madam Justice Reed, in Penate
v. Canada (Minister of Employment and Immigration), summarized the applicable case
law on complicity:
As I understand the jurisprudence, it is
that a person who is a member of the persecuting group and who has knowledge
that activities are being committed by the group and who neither takes steps to
prevent them occurring (if he has the power to do so) nor disengages himself
from the group at the earliest opportunity (consistent with safety for himself)
but who lends his active support to the group will be considered to be an
accomplice. A shared common purpose will be considered to exist. I note
that the situation envisaged by this jurisprudence is not one in which isolated
incidents of international offences have occurred but where the commission of
such offences is a continuous and regular part of the operation. [Emphasis
added]
1. Is the applicant’s exclusion under article 1F(a) of
the Convention for complicity in crimes against humanity reasonable?
[31] The Court is of the opinion that it
was reasonable, in light of the evidence and the applicable legal principles,
for the Board to hold that Mr. Mpia-Mena-Zambili should be excluded from the
possibility of being declared a refugee or a person in need of protection under
article 1F(a) of the Convention.
Crimes against humanity committed by the
Mobutu, Kabila senior and Kabila junior governments
[32] The Board began by analyzing the situation
under Kabila senior and Kabila junior. There is no doubt that numerous abuses
committed by the DRC government under Kabila senior and junior meet the
definition of crimes against humanity, as set out by the Court of Appeal in Sumaida:
Basically, the definitions of crimes against humanity refer
to serious crimes or other inhumane acts committed against “any civilian
population.”
[33] The evidence of record reveals the
numerous crimes committed by the DRC governments led successively by Kabila
senior and junior.
[34] The documentary evidence reports
that, on July 27, 1998, President Laurent-Désiré Kabila decided to end the
presence of Rwandan soldiers on DRC soil. On August 2, 1998, DRC again fell
into war, the Banyamulenge having started a rebellion against the Kabila
government from Goma and Bukavu. There ensued:
… “[a] Tutsi hunt” subsequently organized by the Congolese
authorities in Kinshasa. Several hundred ethnic Tutsis, people of Rwandan
origin or their spouses, and rebel sympathizers were arrested and detained in
Kinshasa.
In its 9 September 1998 press release, ASADHO reports that [translation] “several people of Tutsi
origin were arbitrarily arrested and detained in Camp Kokolo, Tshatshi , in
various intelligence service prisons … and in the Kin‑Mazière prison in
Kinshasa Gombe”. Sakombi Inongo, who was Kabila’s communications adviser at
that time, was reportedly quoted in the 24 August 1998 issue of Soft
International as saying that [translation]
“To the Tutsis … I announce that the time of perdition, expiation, eternel
[sic] exile, great misfortune and greatest torments has arrived”. Other sources
mention that an undetermined number of ethnic Tutsis detained in Kinshasa have
been summarily executed.
The US Department of State has expressed its concern at the
mass arrests of Tutsi Congolese and their ill-treatment at the hands of the
Kabila government. Foreign diplomats in the DRC have indicated similar
concerns, and are trying to find out the number of places of detention and get
permission to visit them.
Sources also report that DRC authorities have used the
official media to stir up hatred against ethnic Tutsis. In the eastern town of
Bunia, for example, the government-controlled radio broadcast an appeal urging
people to kill Rwandan Tutsis using any tools at their disposal, from machetes
to barbed wire.
[35] While the decree-law respecting the
creation of the DGM filed by Mr. Mpia‑Mena‑Zambili does not
say that the DGM is a security service, the facts speak otherwise, which Mr.
Mpia-Mena-Zambili claimed not to have known. Indeed, Exhibit M-5, dated March
31, 2003, states the following:
The Government’s security forces consisted of a national
police force under the Ministry of Interior, the National Intelligence Agency
(ANR), the Rapid Intervention Forces (PIR), the Special Group for Presidential
Security (GSSP), and the Congolese Armed Forces (FAC), which included an Office
for the Military Detection of Anti-Patriotic Activities (DEMIAP). The
immigration service, Direction Générale de Migration (DGM), also functioned as
a security force.
[36] Country Reports on Human Rights
Practices for DRC of 2000 reports:
Members of the security forces committed extrajudicial
killings, and the Government misused the judicial system to try, sentence, and
execute numerous persons without due process.
…
The Government’s human rights record remained poor, and it
continued to commit numerous serious abuses. Citizens do not have the right to
change their government peacefully. Security forces were responsible for
numerous extrajudicial killings, disappearances, torture, beatings, rape, and
other abuses. In general security forces committed these abuses with impunity,
although a special military tribunal tried and executed some security force
members for various human rights abuses. … Government security forces continued
to use excessive force and committed violations of international law in the
war. Government aircraft routinely bombed civilian populated areas in
rebel-held territory. Although a large number of private newspapers often
published criticism of the Government, the Government continued to restrict
freedom of individual issues of publications, as well as by increasing its
restrictions on private radio broadcasting. Harassment of journalists, human
rights activists, and opposition politicians increased during the year. The
Government severely restricted freedom of assembly and association. Government
forces committed some abuses against religious entities.
[37] Exhibit A-11 reports the case of Betsy
Pitchal and Tine Missinne:
[translation]
Members of Delegation NCOS, a Belgian NGO, on mission, apprehended at work in
Matadi and taken under escort to the DGM in Kinshasa by train, accused of
holding publications, reports of Congolese NGOs about the human rights
situation in DRC, suspected of being spies.
[38] This last item of documentary
evidence (A-11) shows collaboration between DGM services in Kinshasa and
Matadi.
[39] It is clear that the countless
abuses committed by the DRC government, under both Kabila senior and Kabila
junior, meet the definition of crimes against humanity. The DGM is a state-run
service, since it comes under the control of the Ministry of Interior Affairs.
The crimes are serious, inhumane acts committed against civilians, that have
been acknowledged by Mr. Mpia-Mena-Zambili himself.
Complicity of Mr. Mpia-Mena-Zambili
Knowledge
[40] Mr. Mpia-Mena-Zambili knew full well
of the acts of extortion committed by DGM agents, who used “verbal” threats —
since according to him these agents were not armed — to demand money from their
victims, because these victims complained to him. Asked to tell the panel what
he had done to denounce or end this illegal practice, Mr. Mpia-Mena-Zambili
said he had written a letter reporting one particular case, because the
reputation of the service was at stake. Mr. Mpia-Mena-Zambili knew of the many
human rights violations committed by the DGM in Kinshasa and of the abuses
perpetrated by DGM agents in Matadi, but according to him, he was never aware of
any at Matadi Port, which does not mean there were none. Asked to tell the
Board what the DGM’s reputation was at the time he was working for this
service, Mr. Mpia‑Mena-Zambili answered without hesitation that DGM
agents committed acts of extortion and were regarded as bullies beginning in
1999, the year the DGM officers began to do as they pleased, he said.
[41] Mr. Mpia-Mena-Zambili tried to
minimize the bullying of the DGM agents, which consisted, according to him, in
minor acts of extortion, such as the extraction of money from sailors for the
issuance of show-passes. By his account, the lives of sailors who refused to
obey a demand for money from a DGM agent were not affected. This was not the
case, however, if a police officer demanded a bribe. Mr. Mpia-Mena-Zambili
again stated that since being with the DGM, he had never seen a sailor beaten
or harmed by an agent. If a sailor refused to pay a DGM agent, he passed along
or left him alone, Mr. Mpia-Mena-Zambili said.
[42] Mr. Mpia-Mena-Zambili displayed
undeniable knowledge of the abuses committed by DGM agents. The fact that this
practice involved small amounts as opposed to large sums is irrelevant, since
there was coercion, whether by verbal threat or threat of a weapon.
Mr. Mpia‑Mena-Zambili’s testimony that there were no consequences
for a sailor who refused to pay cannot be reconciled with the documentary
evidence referred to above. Even though the Decree-Law respecting the creation
and organization of the DGM, a photocopy of which was filed by Mr.
Mpia-Mena-Zambili, does not say that the DGM is a security service, in reality,
the reliable documentary evidence states that the DGM operates like a security
service.
[43] Mr. Mpia-Mena-Zambili had knowledge
of the human rights abuses committed by DGM agents. It is implausible that
abuses committed by security forces in DRC, including the DGM, did not taint
the agents of this same service at Matadi Port, especially in a context of
endemic corruption.
Rank
[44] Furthermore, the RPD panel noted Mr.
Mpia-Mena-Zambili’s reluctance to admit the hierarchic levels of the DGM in his
career path. From the Matadi Port where, by his account, he directed nothing,
since he held purely administrative positions despite his title of senior chef
de poste, he went on to head three territories comprising nine border
crossings in the Bas-Fleuve district, to then be entrusted with the Cataracles
district, consisting of three larger territories, this time comprising thirteen
border crossings.
[45] The importance of Mr. Mpia-Mena-Zambili’s
position was such that he sat on the “restricted” security committee, on which
also sit a high-ranking official of the Ministry of Interior Affairs, the
commissioner of the FAC, also a cousin of the president of the Republic, the
commissioner of national police, and the head of the ANR; special reference is
made to the meeting of September 22, 2000, where they were to [translation] “discuss the practical
aspects” of an order of President Kabila. Mr. Mpia-Mena-Zambili even filed a
photograph showing him shaking hands with the president of DRC, Joseph Kabila
himself. Mr. Mpia‑Mena‑Zambili, according to his own
testimony, had asked to meet him, which establishes Mr. Mpia-Mena-Zambili’s
notoriety. In view of Mr. Mpia-Mena-Zambili’s important duties within the DGM,
the Board thought he could not have been unaware of the war crimes and crimes
against humanity committed by his government, and of the multiple abuses
attributed to the DGM. Moreover, Mr. Mpia-Mena-Zambili admitted that agents of
his service extorted sums of money from sailors at Matadi Port, and he himself
referred to the heads of border crossings as a “mafia.” The Board found that it
was unreasonable to think that such activities could be carried out without
violence and that the abuses committed by the DGM, reported in the documentary
evidence, were the sole work of the DGM agents posted in Kinshasa or Matadi,
and not at the Matadi Port.
Dissociation
[46] Moreover, Mr. Mpia-Mena-Zambili did
not resign from his position, and even accepted transfers within the DGM. Mr.
Mpia-Mena-Zambili, who was not destitute, since he has a law degree from the
University of Kinshasa, maintained that he was poorly paid and knew of the bad
reputation of the DGM. Nevertheless, he even apparently added insult to injury
by returning to his position within the DGM, which falls under the Ministry of
the Interior, after having allegedly been arrested on the order of that same
ministry on October 5, 2000, and taken to the central prison of Mbanza Ngungu,
where he was threatened, beaten, tortured and even raped.
[47] In view of the foregoing, the Court
believes it was reasonable for the Board to find that Mr. Mpia-Mena-Zambili had
“personal and knowing awareness” of the activities committed by the Congolese
government and the DGM, by reason of the positions he held. Accordingly, it was
reasonable for the Board to find that there were “serious reasons for
considering” that Mr. Mpia‑Mena-Zambili personally and knowingly
participated in the crimes committed by the Congolese government led by
Laurent-Désiré and Joseph Kabila, by virtue of the fact that he was
complicitous by association in serious crimes against humanity.
2. Is the Board’s conclusion that the applicant was not
credible patently unreasonable?
[48] The Board was justified in finding
that Mr. Mpia-Mena-Zambili had no credibility, particularly given the
significant contradictions and improbabilities in his testimony.
[49] It should be noted, first, that the
purely factual questions decided by the Board are subject to the patently
unreasonable decision standard of review: Harb.
[50] After a detailed, in-depth analysis
of Mr. Mpia-Mena-Zambili’s testimony, the Board found that he was not a
credible witness.
[51] It is for the Board, as a
specialized tribunal, to assess an asylum seeker’s testimony and assess the
credibility of his statements in the context of the evidence as a whole: Aguebor
v. Canada (Minister of Employment and Immigration) (F.C.A.).
[52] The Board noted a number of
inconsistencies about the meeting of September 22, 2000. Mr. Mpia-Mena-Zambili
testified that the restricted security committee met once during
Mr. Mpia-Mena-Zambili’s term as DGM chef de poste of the Matadi
Port. The meeting was about goods damaged in transit and harassment committed
by the police and FAC members. No meeting was held when Mr. Mpia-Mena-Zambili
was senior chef de poste for the Bas-Fleuve district, since meetings
were not held at pre-determined intervals. According to Mr. Mpia‑Mena‑Zambili,
this committee did not make decisions. It heard suggestions and proposed
solutions to the provincial authorities. While Mr. Mpia-Mena-Zambili was senior
chef de poste in the Cataracles district, only one meeting was held, on
September 22, 2000. At that meeting, the FAC brigade commander informed the
other members of the restricted security committee of the government’s decision
to kill all Angolan refugees who ventured past border towns on DRC soil, many
in the Cataracles district. The order came from Kabila senior, who was concerned
about the massive influx of Angolan refugees, who could destabilize the regime
since they could be infiltrated by rebels who had sparked the war in the
eastern part of the country in 1998. That was the only item on the meeting’s
agenda.
[53] Asked to tell the Board what had
transpired at that meeting, Mr. Mpia-Mena-Zambili started out by saying that he
had said this item was moot because it did not concern them, since, according
to him, the subject was a matter for the military. However, Mr. Mpia-Mena-Zambili
maintained he had opposed this order of Kabila, proposing instead that a
reception structure be set up for Angolan refugees. The district commissioner
is said to have taken note of Mr. Mpia‑Mena-Zambili’s suggestion,
pointing out that this view was relevant, and Mr. Mpia‑Mena-Zambili
also received the support of the police commissioner. The head of the ANR, and,
of course, the FAC brigade commander, also Kabila’s cousin, were not opposed to
the order emanating from the president of the Republic.
[54] Mr. Mpia-Mena-Zambili was confronted
with his written testimony, in which he stated:
[translation]
The restricted security committee met September 22, 2000, to discuss the
practical aspects of the execution of the Government’s decision.
[55] It was mentioned to Mr.
Mpia-Mena-Zambili that this text suggested that the DGM had a role to play,
since they were to discuss the practical aspects of the execution of this
order. Mr. Mpia-Mena-Zambili first evaded the question, and it was
repeated to him, specifying that his written testimony led one to believe that
he had known of Kabila’s order before the start of the meeting. Mr.
Mpia-Mena-Zambili maintained that he had been given the news the day of the
meeting, and not before. So why not write it that way? Mr. Mpia-Mena-Zambili
said that that was what he had meant to say. The Board considered Mr.
Mpia-Mena-Zambili’s oral testimony to be inconsistent with his written
testimony. In his written account, Mr. Mpia-Mena-Zambili alleged:
[translation]
The commander of the National Police and myself, we were categorically opposed
to this decision and proposed the creation in border towns of specific
(Congolese) reception structures to allow the Angolans to catch their breath
and return to their villages.
[56] In his oral testimony, Mr.
Mpia-Mena-Zambili instead maintained he had stated his opinion diplomatically
so that the FAC brigade commander would not be upset, since the head of the ANR
had pointed out that there could be no opposition to the president’s order.
Mr. Mpia‑Mena-Zambili is a lawyer, who plays with words most
eloquently and has an uncommon ability to interpret statutory enactments,
notably the decree respecting the creation of the DGM. He is inconsistent when
he states, in answer to question #37 of his Personal Information Form, that the
meeting of September 22, 2000, was [translation]
“to discuss the practical procedures for executing the Government’s decision”
if in fact they had only been told the purpose of the meeting on the spot. This
inconsistency becomes an implausibility when none of the individuals convened,
except the commander, had a role to play in executing this order, and an
incongruity if none of them had any say in the matter. The Board did not
believe Mr. Mpia-Mena-Zambili when he maintained that this order from
Kabila, conveyed by Kabila’s cousin, had nothing to do with him when he says
that they met September 22, 2000, to discuss the “modus operandi” of
Kabila’s order.
[57] The Board also noted a contradiction
and a major implausibility when Mr. Mpia‑Mena‑Zambili told of
his supposed detention in the prison at Mbanza Ngungu.
Mr. Mpia-Mena-Zambili said he was mistreated and tortured. He claimed his
ear was torn because he refused to drink water mixed with urine. He claimed he
was flogged and sodomized. Mr. Mpia-Mena-Zambili testified that he was detained
with Rwandans captured during the war at Kivu. On December 30, 2000, the police
commander, who had been arrested along with Mr. Mpia-Mena-Zambili, died.
Mr. Mpia-Mena-Zambili and three other detainees, accompanied by two armed
guards and the division chief, were ordered to bury him. Mr. Mpia-Mena-Zambili
claimed he asked for permission to go and relieve himself. He claimed he took
the opportunity to escape while his keepers were drunk. Despite the ease with
which he made off, Mr. Mpia‑Mena‑Zambili testified that he was
the only one who fled. This story makes no sense. If the guards who were
watching him were so drunk that Mr. Mpia-Mena-Zambili was able to flee without
the slightest opposition, it makes no sense, given the alleged conditions of
detention, that he alone took advantage of the situation. Conversely, the Board
considered it implausible that he was able to flee so easily, if three people
of authority, and armed, were guarding four detainees.
[58] In addition, Mr. Mpia-Mena-Zambili
was confronted with his statements made at the port of entry, where he had
answered “no” to the question [translation]
“Have you ever been imprisoned in that country (DRC)?”. Mr. Mpia-Mena-Zambili
answered that he thought it meant imprisoned for a common crime. He was asked
if he truly believed that his detention for nearly two months, in the
conditions alleged, was not imprisonment. Mr. Mpia-Mena-Zambili gave the same
answer as before. This answer makes no sense. The question on the form signed
at the Lacolle border crossing did not specify imprisonment for a common crime
or arbitrary imprisonment. The Board therefore thought it was unreasonable that
Mr. Mpia-Mena-Zambili answered a disarmingly simple question in the negative.
[59] In Nsombo v. Canada (Minister of
Citizenship and Immigration),
Mr. Justice Harrington wrote the following about the importance of the port of
entry notes:
It is important to note the nature of the information that
the applicant forgot to mention to the immigration officer. These are key
elements and central to his claim for refugee protection. For example, the fact
that he was detained for two days, June 10 and 11, 2002, by Kabila secret
services security agents and also the fact that he fled from his place of
detention and was sought by the authorities of his country, are important. How
can the applicant, who is claiming refugee status, have forgotten to mention
this important information to the immigration officer when he entered Canada?
The panel was right to question the veracity of this information.
[60] Mr. Mpia-Mena-Zambili is especially
critical of the Board’s failure to give probative value to a medical
certificate that was adduced in evidence. The Court is of the opinion that the
probative value to be given to a medical report falls within the discretionary
assessment of the Board. Concerning the probative value of a medical report,
Noël J. wrote the following in Bula v. Canada (Secretary of State):
As a tribunal specializing in the assessment of refugee
status claims, the Division must decide the merits of applications before it.
Expert testimony can be very useful in certain areas; however, it is a piece of
evidence like any other, and it is up to the Division to decide how much weight
it should given.
[61] Given Mr. Mpia-Mena-Zambili’s lack
of credibility, it was not unreasonable for the panel to give little probative
force to the report on the basis of the statements made to the expert by Mr.
Mpia-Mena-Zambili. As Madam Justice Reed wrote in Danailov v. Canada
(Minister of Employment and Immigration):
With respect to the assessment of the doctor’s evidence, to
find that that opinion evidence is only as valid as the truth of the facts on
which it is based, is always a valid way of evaluating opinion evidence. If the
panel does not believe the underlying facts it is entirely open to it to assess
the opinion evidence as it did.
[62] The findings of fact and the
inferences drawn from the evidence by the Board, which led it to conclude that
Mr. Mpia-Mena-Zambili was not credible, do not result from any patent error
that might have warped the Board’s assessment of the facts. In these
circumstances, there is no cause for the Court to intervene.
CONCLUSION
[63] For these reasons, the Court replies
in the affirmative to the first issue and in the negative to the second.
Consequently, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that
1. The application for judicial review
be dismissed.
2. No question be certified.
“Michel
M.J. Shore”
Judge
Certified true translation
François Brunet, LLB, BCL
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