Date: 20040804
Docket: IMM-6500-03
Citation: 2004 FC 1058
Ottawa, Ontario, this 4th day of August 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JEAN-MARC NYEMBO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated August 5, 2003, in which the Board found that the Applicant was not a Convention refugee and not a person in need of protection.
BACKGROUND
[2] The Applicant, Jean-Marc Nyembo, is a 26 year old citizen of the Democratic Republic of Congo. He alleges that he was arrested on December 14, 2001, at the University of Kinshasa, where he was a student. The Applicant participated in a protest against increases in tuition costs organized by the "Union pour la Démocratie et le Progrès Social" (the "UDPS"). The Applicant, a sympathizer of this group, claims that was he was identified as an organiser of the protest and as a consequence was arrested and tortured by the police.
[3] The Applicant's claim for protection is also based on his relationship with his father, a former collaborator in the Mobutu regime who had previously been declared a fugitive and was arrested on two separate occasions in 1998 and 1999. The Applicant's father was ultimately released and now lives in Kinshasha.
IMPUGNED DECISION
[4] The Board found that the Applicant was not a Convention refugee and was not a person in need of protection. Though it accepted the Applicant's identity and that he was a student at the University of Kinshasa, the Board did not accept that he was sought by Congolese authorities, or had the profile of a UDPS militant that would be targeted by authorities. Nor did it accept that he could found a claim based on the past political involvement of his father.
[5] The Board did not accept that the Applicant had been arrested after the 2001 protest. The Board based this finding on a Belgian report dated October 2002 prepared by the "Commissariat Général Refugiés et Apatrides" and entitled, "Rapport de Mission à Kinshasa" (the "Report"). This document reported that nine student leaders were arrested on December 14, 2001, and five other students were being sought by the authorities. It is not disputed that the Applicant's name was not on the list of students arrested that day, nor was it on a separate list of UDPS student leaders. The Board determined that if the Applicant's father was such a prominent figure, it was not reasonable to believe that his name would not be on the lists and it found the Applicant's reaction and explanation of these omissions from the lists to be unconvincing.
[6] Further, the Board found that the Applicant's relationship with his father could not be a basis for his claim. The Board noted that the Applicant may have been harassed by the authorities when they were pursuing his father, but this did not amount to persecution. The Board reasoned that the Applicant's father was eventually released and is now going about his business in Kinshasha without difficulty.
ISSUES
[7] The applicant raises two issues on judicial review:
A. Did the Board err in determining that the Applicant would not be at risk by virtue of being a supporter of the UDPS?
B. Did the Board err in determining that the Applicant was not credible regarding the arrest of December 14, 2001.
STANDARD OF REVIEW
[8] The appropriate standard of review on findings of fact and credibility is patent unreasonableness. The Federal Court of Appeal has established that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony, as well as the risk of persecution. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317.
ANALYSIS
A. Did the Board err in determining that the applicant would not be at risk by virtue of being a supporter of the UDPS?
[9] The Applicant submits that the Board erred in finding that the Applicant did not have the profile of a militant and, as a consequence, would not be targeted by the authorities. The Applicant makes the following points in respect to this question. First, the Board cites no evidence to support the proposition that sympathizers of the UDPS are at any less risk than any other associates or members of the UDPS, and second, the Board found the Applicant to be a member of the UDPS in any event. In support of this contention, the Applicant points to the Board's reasons where it found, "Quant à son appartenance à l'UDPS...", and to his PIF narrative, where he wrote, "...car ils savaient que j'était membre de l'UDPS." The Applicant further argues that the Board provided no reasons for its "Profile" finding. The Applicant also points to the documentary evidence, or the Report relied on by the Board to impugn the Applicant's evidence regarding the arrests, and he argues it is also suggestive of a witch hunt against militants of the UDPS, which supports his contention that he is at risk.
[10] The Applicant also argues that the Board erred when it failed to consider the Applicant's claim from the perspective of the agent of persecution. The Applicant contends that it is not necessary for the Applicant to actually hold a political opinion so long as that opinion is imputed to him by the agent of persecution: Ward v. Canada (MEI), [1993] 2 S.C.R. 689.
[11] The Respondent submits that the Board was entitled to find that the Applicant, a self-confessed sympathizer of the UDPS and not a member, would not be targeted by the authorities for his alleged political opinion, and such a finding is within the purview of the Board and is reasonably open to it.
[12] With respect to the Applicant's involvement with the UDPS, the Board correctly stated that he was a sympathizer. In its reasons, it acknowledged that the Applicant referred to himself in this way: "Quant à son appartenance à l'UDPS, le demandeur a lui-même déclaré qu'il n'était qu'un sympathisant." The Board did not misapprehend the evidence on the Applicant's involvement with the UDPS and did not err when he was identified as a sympathizer and not a member. The documentary evidence states that "...surtout les militant de l'UDPS" need concern themselves with the hostile regime. I am therefore of the view that the Board's finding in respect to the Applicant's profile and involvement with the UDPS was reassonably open to it on the record.
[13] The Board found that merely being a student at the University was not sufficient to establish persecution for one's political opinion. The Applicant was a sympathizer of the UDPS and not a member, he was not on the list of arrested students or wanted student leaders despite being the son of prominent member of the former regime. In the circumstances, the Board's conclusion cannot be said to be patently unreasonable. The Board did not err in finding that the Applicant would not be at risk for being a supporter of the UDPS.
B. Did the Board err in determining that the applicant was not credible regarding the arrest of December 14, 2001.
[14] The Applicant submits that the Board erred when it found that he was not arrested on December 14, 2001, at his residence at the University of Kinshasa, relying essentially on country documentation from Belgium which reported on the incident. The Report referred to the list of 9 students arrested and the 5 other student leaders who were sought on December 14, 2001 and the Applicant's name was on neither of these lists. The Applicant contends that the Board misconstrued the Belgian Report, as the same document later outlined that hundreds of other students were arrested the same day. The Applicant also questioned the reliability of the Report and argued that the Board should have scrutinized the footnoted sources in the Report, which he submits were unreliable.
[15] The Applicant also argues that the Board committed a reviewable error by failing to provide a rationale for preferring the documentary evidence over the presumptively true evidence of the claimant. In support of his contention the Applicant cites Olschewski v. Canada (MEI), [1993] FCJ/ACF No. 1065 (QL), wherein the Court found that the Board must set out in clear and unmistakable terms why documentary evidence is preferred over the presumptively true evidence of the refugee claimant. The Applicant submits that even if the conclusion of the Board is correct, failure to provide reasons for preferring documentary evidence over the presumptively true evidence of the claimant is an error in law.
[16] The Respondent submits that the panel did not misconstrue the evidence before it, rather it reasonably determined that the Applicant was not sought by the authorities. The Respondent contends that it was reasonably open to the Board to find that the Applicant, as the son of a prominent member of the former regime, would have been included on the reported lists, if indeed he was sought or detained.
[17] The Respondent further submits that the panel did not prefer the documentary evidence over the testimony of the Applicant. Rather, it weighed all the evidence and concluded by finding that the Applicant was not being sought by the authorities, and the documentary evidence was only one part of this determination.
[18] I find, on the evidence, that the Board's determination that the Applicant was not arrested on December 14, 2001, at the University of Kinshasa, was not patently unreasonable. The Applicant states in his PIF narrative that he was detained for several days by the authorities after his arrest. He states that this was a consequence of being fingered by three students as an organizer of the demonstration and as being the son of a close collaborator of the late President Mobutu. He further acknowledges in his PIF that he is a member of a prominent family. In my view, this evidence serves to bolster the Board's determination that his name, in the circumstances, should have been included on the lists. The Board questioned the Applicant as to why his name was not included on either list, and did not find his answers convincing. Apart from his direct evidence, the Applicant offered no other evidence to substantiate his status as a targeted member of the UDPS. In my view, it was open to the Board to find that his answers and explanations lacked credibility. I find that the Board did not misinterpret or ignore any of the evidence. The Board's credibility findings were made following an oral hearing at which the Applicant was given an opportunity to address the Board's concerns. Unless these findings can be shown to be patently unreasonable or unsupported by the evidence, a reviewing court should not interfere. In my view, the Board's findings were not patently unreasonable and it was open to the Board to conclude as it did. No reviewable error was committed.
CONCLUSION
[19] For the reasons set out above, the application for judicial review will be dismissed.
[20] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6500-03
STYLE OF CAUSE: Jean-Marc Nyembo v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 19, 2004
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: August 4, 2004
APPEARANCES BY:
Mr. Michael Crane For the applicant
Ms. Lorne McClenaghan For the respondent
SOLICITORS OF RECORD:
Michael Crane For the applicant
Toronto, Ontario
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario
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