Date: 20000816
Docket: IMM-3777-99
BETWEEN:
PAUL ILUNGA KASONGA
BÉATRICE ILUNGA KASONGA
IRENE ILUNGA NGONDO
NTUMBA ILUNGA
KASONGO ILUNGA
KAYINDA ILUNGA
Plaintiffs
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision by the Refugee Division on July 12, 1999 in which the Division concluded that the plaintiffs were not Convention refugees.
FACTS
[2] The plaintiffs are nationals of the Democratic Republic of the Congo.
[3] The principal plaintiff, Paul Ilunga-Kasonga, was a diamond dealer. He was also a member of the Union pour la Démocratie et le Progrès Social ("UDPS") and contributed financially to the party.
[4] He alleged that he was kidnapped on the night of February 28 to March 1, 1993 by soldiers who wanted to extort money from him. In 1997, he said he was summoned by the ANR and detained for 16 hours as punishment for his political activities.
[5] A meeting planned following the arrest of Mr. Tshisékédi, which was to be attended by the plaintiff, was cancelled on February 24, 1998 because of suspect individuals being at the agreed location. The same night, at about 11 p.m., furious assailants broke into the family home looking for the plaintiff. As they did not find the plaintiff they abused his wife, the female plaintiff Béatrice Ilunga-Kasonga, whom they left for dead. After three days in hospital, the latter reached Brazzaville with the children, with no news of her husband, who for his part had fled to Angola.
[6] The female plaintiff and her four minor children arrived in Canada on July 26, 1998, and claimed refugee status the same day. The male plaintiff arrived in Canada on September 13, 1998 and also claimed refugee status two days later.
[7] The male plaintiff participated in the conference for a lasting peace in the DRC held in Montréal in February 1999 and as a result claimed refugee status on the spot.
DECISION
[8] The Division did not believe that the plaintiffs had a valid fear of persecution in the DRC for their political opinions, in the case of the parents, or their membership in a particular social group (the family), in the case of the children.
[9] The Division noted inconsistencies, omissions, discrepancies, improbabilities and contradictions throughout the plaintiff's testimony for which no satisfactory explanation was given.
[10] The Division noted that the event which led to the flight of the male plaintiff took place on February 24, 1998 when the two letters from the UDPS (Exhibits P-15 and P-17-a), written on February 13, 1998, already mentioned [TRANSLATION] "the plaintiff's departure because of dramatic circumstances".
[11] The Division noted that the female plaintiff's Exhibits P-22 and P-23 were the equivalent of P-15 and P-17-a, except that they were dated February 27 and 28, 1998.
[12] The Division had doubts concerning the exhibits submitted (for the male plaintiff, P-15 and P-17-b and, for the female plaintiff, P-22 and P-23). It noted that all the exhibits were signed by the same person, Mr. Kimpakala.
[13] The Division was unable to reconcile the fact that the plaintiffs alleged that they intended to come to Canada following their arrival in Brazzaville, while letters recommending to the UDPS/Canada representative that they be given refugee status, dated previously, were in their possession. When these points were raised, the male plaintiff maintained that he began preparations to come to Canada the day after Mr. Tshisékédi was arrested. The Division did not accept this explanation because first it was not mentioned in the PIF, and second because the reply was not consistent with the contents of Exhibits P-15 and P-17-a: the latter indicated that he had to leave the country hurriedly because of threats made against him by the militia of the dictator then in power.
[14] The Division noted the explanation of the male plaintiff, who was mistaken as to the date of the arrest, since it took place on the night of February 12, 1998, not the 13th as indicated in the PIF. However, it had difficulty understanding why nine months later the plaintiff was still putting the 13th instead of the 12th, although the documentary evidence clearly established that the arrest was on February 12, 1998.
[15] The Division did not understand the relevance of the decision to leave the DRC when the male plaintiff was only an honorary member of the UDPS because of the financial aid he gave the party. He had no special role in the party and did not attend demonstrations. He only attended about ten meetings a year. The Division noted that the chief leaders of the UDPS were still at liberty.
[16] The Division noted that the plaintiff changed the details of his kidnapping. He first stated he was kidnapped on the night of February 28 to March 1, 1993, but subsequently testified that money was extorted from him on February 28, 1993, and that a second time, on the night of May 1 to 2, 1993, soldiers took him to a cemetery to execute him, and finally released him and suggested he leave the country.
[17] He said he subsequently sold his land at Nbinza and moved to another more populated area.
[18] The Division found it inconsistent that the plaintiff changed his residence after a personal and direct threat of execution in May 1993 but fled the country after the arrest of Tshisékédi in February 1998. The Division rejected his explanation that it was easy to buy off soldiers in Mobutu's time.
[19] The Division noted that the male plaintiff offered three separate versions about the sale of the land at Nbinza. First, he indicated that it was sold in 1998, then withdrew this statement and said it was sold in 1993. In his testimony he stated that it was sold in 1993. When the tribunal pointed out that he had said 1993 earlier, he said he had been mistaken and in fact the land was sold in 1994 and the incidents with the soldiers also occurred in 1994.
[20] The Division considered that the plaintiff was adjusting his testimony as the hearing proceeded.
[21] The Refugee Division concluded that the male plaintiff was still in Kinshasa on June 11, 1998 when he applied for birth certificates for his twins, contrary to his testimony that he left the country on February 28, 1998.
[22] The Division noted other contradictions: the female plaintiff indicated that her husband fled on January 1, 1998, in flagrant contradiction of the written and oral testimony.
[23] She indicated that she fled because of the massacre and arrest of UDPS fighters after the arrest and imprisonment of Tshisékédi. She nowhere mentioned that she had been abused and left for dead. When these major discrepancies were put to her, she explained that she had not understood the question because the children were crying and she did not have the services of an interpreter. The Division did not believe the explanations for these gross discrepancies.
[24] Relying on Sheikh v. M.E.I., [1990] 3 F.C. 238, the Division concluded that the plaintiffs were not credible.
[25] The Division then examined whether participating in the conference for lasting peace in the DRC justified a fear of persecution if they returned. It concluded that the male plaintiff had not played a leading part.
[26] The Division examined newspaper articles dealing with detentions following participation in the conference. However, it considered that the articles dealt with opinion leaders in the DRC, not mere participants.
[27] The Refugee Division concluded that the plaintiffs were not Convention refugees.
PLAINTIFFS' ARGUMENTS
[28] The plaintiffs argued that the conclusion that they lacked credibility was without foundation in law. They alleged that the fact that the letters were signed by the same person did not justify a finding of a lack of credibility. Additionally, the plaintiffs indicated that they drew the Division's attention to the fact that they were trying to leave the DRC following Mr. Tshisékédi's arrest on February 12, 1998.
[29] The plaintiffs alleged that the Division made an error of fact when it misunderstood the event that resulted in their flight. The male plaintiff clearly indicated in his testimony that he was expecting to leave after the arrest, not when suspect persons came to his residence. He indicated in his argument that he did not include everything in his PIF since he expected to do this at the hearing.
[30] The plaintiffs submitted that the Division erred in attaching so much importance to the actual date of the arrest and that the principal plaintiff's explanation was reasonable.
[31] The plaintiffs alleged that the Division's interpretation and assessment of the facts prior to the arrest was unreasonable and that this affected the credibility of the principal plaintiff.
[32] The plaintiffs argued that the Division made a serious error in assessing the plaintiff's testimony about the sale of the parcel of land in Nbinza.
[33] The male plaintiff, answering a question from his counsel, said first that he had sold a parcel in Nbinza without saying in what year. He mentioned the parcel a second time, indicating that it was sold in 1993. He made an error: it was sold in 1994. The principal plaintiff alleged that there were not three different versions, but a factual error on his part.
[34] The plaintiffs submitted that the Division erred in concluding that the principal plaintiff was still in Kinshasa in June 1998. They alleged that the Division used irrelevant evidence, the entry of the plaintiff's name on the said certificates, to assess the plaintiff's credibility. The plaintiff did not sign anywhere.
[35] Finally, the plaintiffs alleged that the Division made an error of law regarding the concept of an internal refugee.
PLAINTIFF'S ARGUMENTS
[36] The plaintiff argued that the Refugee Division's decision was correct in fact and in law. Further, the decision was amply substantiated and based on a thorough and exhaustive review of the evidence put before the tribunal.
[37] The defendant argued that certain findings of fact, such as the events surrounding the prior visits by the soldiers, contained a host of contradictions but these were not challenged by the plaintiffs.
[38] The plaintiff submitted that the Division had good reason to doubt the veracity of the testimony and their credibility and did not have to apply the theory of the benefit of the doubt or the presumption that the testimony was accurate.
[39] The defendant noted that the factual interpretations suggested by the plaintiffs might have been reasonable, but they did not establish that the Refugee Division's conclusions on credibility were unreasonable.
[40] The defendant submitted that it could be seen simply from looking at the official seals on the birth certificate on pages 23 and 24 of the plaintiffs' file that they were made by hand, thus confirming the general conclusion that the plaintiffs lacked credibility.
[41] As to the question of internal refuge, the defendant submitted that the Division concluded he was only an observer. He noted that the male plaintiff contradicted himself regarding the arrests following participation in these conferences and finally admitted that the persons arrested were two political leaders, not mere participants.
[42] The defendant submitted that even if the plaintiffs established that one of the findings of fact was not valid, which the defendant completely disputed, it was true that the tribunal's decision contained sufficient evidence to support the dismissal of the claim for lack of credibility.
ANALYSIS
Did Refugee Division err in refusing to grant the plaintiffs refugee status?
[43] In Aguebor v. M.C.I. (1993), 160 N.R. 315, the Federal Court of Appeal explained:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[44] In Boye v. Canada (M.E.I.), September 13, 1994, A-1-93 (F.C.T.D.), this Court indicated that the credibility of a claimant was a matter for the Refugee Division:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[45] The reasons that prompted the plaintiffs to flee is of crucial importance in explaining their fear of persecution. In his PIF the male plaintiff indicated that he decided to leave the country before the arrest. Before the tribunal, he said first that he fled following Mr. Tshisékédi's arrest, then following the visit of suspect persons to his home. To support this, he submitted letters dating from before his flight and referring to the plaintiffs' departure. These reasons cannot be reconciled with each other. I cannot accept the plaintiffs' argument suggesting that they did not have to mention in the PIF all the exhibits they intended to submit. The major points in the male plaintiff's story, such as the reasons that prompted him to flee, should have been disclosed on entry into Canada.
[46] The Division mentioned two reasons why it dismissed the principal plaintiff's explanations about the pre-dated letters, and I am not persuaded that the conclusion was unreasonable.
[47] The principal female plaintiff did not even mention when she arrived that she had been attacked and left for dead. Instead, she cited the massacre and arrest of UDPS members. The Division was right to conclude that this was a contradiction, especially as the plaintiffs did not challenge this point.
[48] Further, the principal male plaintiff did not dispute the Division's finding that he was simply a member and that it was not credible that he should be subject of persecution when other more important members than himself were still in the DRC.
[49] The principal male plaintiff also did not challenge the non-credibility conclusion in respect of the prior visits by soldiers.
[50] The plaintiff mentioned the sale of the parcel of land on three different occasions: the Division drew a negative conclusion, concluding that the plaintiff was adjusting his testimony as he went. As the judge of fact, the plaintiffs' credibility was within the Division's jurisdiction.
[51] The Appeal Division, after examining the birth certificates submitted by the plaintiffs, concluded that the principal plaintiff was still in Kinshasa when he claimed he was elsewhere.
[52] In view of the finding that the principal points establishing his fear lacked credibility, the Division relied on Sheik v. M.E.I., [1990] 3 F.C. 238, where the Federal Court of Appeal concluded:
I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.
[53] The plaintiffs did not establish that the Refugee Division erred.
[54] On the Division's conclusion that he was not an internal refugee, the persons arrested because of participating in a conference were political leaders. The plaintiff was merely a participant. These are findings of fact which are within the Refugee Division's jurisdiction and this Court will not intervene unless they are unreasonable, which in my opinion is not the case here.
[55] The application for judicial review is dismissed.
[56] The parties submitted no question for certification.
OTTAWA, ONTARIO
August 16, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3777-99
STYLE OF CAUSE: PAUL ILUNGA KASONGA et al.
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 2, 2000
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: AUGUST 16, 2000
APPEARANCES:
MARIO BLANCHARD FOR THE APPLICANT
FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIO BLANCHARD FOR THE APPLICANT
Saint-Laurent, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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