Date: 20000317
Docket: IMM-1528-99
Between:
STEPHANE KAMUENA
CIBANDA CRIS KAMUENA
MATINDA KAMUENA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered February 23, 1999 by the Refugee Division, which ruled that the applicants, Mr. Stéphane Kamuena and his children Cibanda Cris and Matinda Kamuena, are not Convention refugees as defined in subsection 2(1) of the Immigration Act.
[2] The Refugee Division did not believe the applicant had been a member of the Union pour la démocratie et le progrès social (the UDPS) in his country and, since this was a crucial element, did not believe the fear of persecution alleged by the applicants was justified. The reasons given by the panel for its decision in this regard read as follows:
| First, the claimant indicated on his port of entry sheet, filed as exhibit A-18, that he was a member of "the IDPS". He testified at the hearing in French, without an interpreter, and told us he had personally filled out his sheet at the port of entry. He told the hearing that this was because he was traumatized, tired from the long trip. Moreover, although he told us he had been responsible for the UDPS youth in his cell, he could not tell the hearing the name of the national secretary responsible for the Jeunesse de l'Union pour la Démocratie et le Progrès Social (JUDPS). |
| His UDPS card, produced as exhibit P-5 [Exhibit P-5, UDPS Card, dated April 15, 1994] indicates that the claimant was residing at no. 15 avenue de l'Église in Limete in 1994. But when questioned about his address at the time of his departure, the claimant told us he was living at no. 2 avenu [sic] de l'Église in Limete, and that he had lived there since 1983, before being married. Confronted with the address indicated on the UDPS card, the claimant told us there was an error and that he had never noticed it. On the other hand, we noticed a number of anomalies, visible to the naked eye, in this card. For example, the slogan "tenez bon, the UDPS vaincra" [hang in there, the UDPS will win], which usually appears diagonally on the card, is in this case located on the very bottom, horizontally. Furthermore, a number of spelling errors also appear on this card, which is not usually the case on UDPS cards. For example, on the main page, it is stated: "UNION POUE [sic] LA DÉMOCRATIE ET LE PROGRÈS SOCIAL". When the card is opened, one can read: "Art. 6: Peut devinir [sic -- devenir] membre...." Likewise, there is no written indication on his card that he is responsible for the Youth of the UDPS. |
| We asked him why he had made a correction at the commencement of the hearing as to the date on which he had become a member of the UDPS. In the original PIF, it states that he had been a member since 1990. He wanted us to alter that to say that he had been a sympathizing member since 1990 and a full member since 1994. He told us that at the time, in 1990, his work as a broker in the diamond industry did not allow him to carry a UDPS membership card. He did not want it known that he was helping the UDPS. But in 1994 he still had the same employment as in 1990, according to his PIF in the reply to question 18: working in a diamond broker's office. Yet he became a member. His reply is not plausible, therefore. |
| Faced with all these points, we do not think the claimant was a member of the UDPS in his country. We do not find his membership in the UDPS credible. We therefore do not believe the problems he says he and his family suffered on this account. |
| Since we do not believe the claimant was a member of the UDPS in his country, we attach no significance to exhibit P-6 [Exhibit P-6, Certificate of the UDPS, dated September 8, 1998], a certificate of the UDPS Canada stating that the claimant had been a member of the party since 1994. Moreover, the claimant told us in his testimony that from 1990 on he was contributing to the party's finances and attending its meetings. |
[3] The issue in this case, then, is essentially one of credibility and assessment of the facts. And in this regard, it is trite law that this Court will not substitute itself for the Refugee Division where, as in this case, refugee claimants fail to establish that the decision is based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act). From a review of the evidence, the decision at issue appears to me to be based on both the documentary evidence and the applicant's testimony.
[4] Finally, need it be recalled that the panel's perception that the applicant is not a credible witness amounts to a finding that there is no credible evidence that could serve as a basis for the claim (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at page 244 (F.C.A.)).
[5] Accordingly, the application for judicial review is dismissed.
OTTAWA, ONTARIO
March 17, 2000
Certified true translation
Martine Brunet, LL.B.
Date: 20000317
Docket: IMM-1528-99
Ottawa, Ontario, the 17th day of March, 2000
Present: The Honourable Mr. Justice Pinard
Between:
STEPHANE KAMUENA
CIBANDA CRIS KAMUENA
MATINDA KAMUENA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
ORDER
The application for judicial review of the decision rendered February 23, 1999 by the Refugee Division, which ruled that the applicants are not Convention refugees, is dismissed.
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: STEPHANE KAMUENA ET AL. v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: February 15, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: March 17, 2000
APPEARANCES:
Michel LeBrun FOR THE APPLICANTS
Caroline Doyon FOR TH E RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun FOR THE APPLICANTS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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