Date: 199990115
Docket: IMM-1567-98
OTTAWA, ONTARIO, JANUARY 15, 1999
BEFORE: TEITELBAUM J.
BETWEEN:
Marilou MALU MALU,
Warren KANYIKI,
Applicant,
AND:
DEPARTMENT OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
For the reasons stated in the Reasons for Order, I allow the application for judicial review and order that the applicant be given a re-hearing before a newly constituted Board.
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Max M. Teitelbaum
J.F.C.C.
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Certified true translation
Bernard Olivier, LL. B.
Date: 199990115
Docket: IMM-1567-98
BETWEEN:
Marilou MALU MALU,
Warren KANYIKI,
Applicant,
AND:
DEPARTMENT OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] The applicant Marilou Malu Malu and her four-year-old son, Warren Kanyiki, are applying for judicial review of a decision by the Immigration and Refugee Board ("the Board") dated March 10, 1998, concluding that they are not "Convention refugees". They are asking this Court to set aside the said decision and refer the matter back for re-hearing before a newly constituted Board.
FACTS
[2] As appears from the documents in the record, the applicant and her son, citizens of Zaïre, now the Democratic Republic of the Congo, claimed refugee status on account of their presumed political opinions and their membership in a particular social group, namely the family. They feared persecution by soldiers of the new political party in power, the AFDL, and by the population in general. The applicant testified that since 1995 her husband has had a business relationship with Mr. Kongolo, one of the sons of the dictator Mobutu who was overthrown on May 17, 1997.
[3] The facts in the record indicate that the applicant's husband and his four associates operate a company in the field of refrigerated trucks and own a cold storage room. In the course of operating his business, the applicant's husband asked Mobutu's son for protection by military bodyguards when his associates had to bring large sums of money to Zaïre. One day Kongolo Mobutu asked the applicant's husband if he could lease his trucks and suggested he would find markets for him. He had to come perhaps twice a month to the applicant's residence, which did not present any problems. In 1995, the applicant's husband was the victim of a theft; he was gagged and his watch stolen. The applicant's husband was afraid and asked Mobutu to put soldiers at his house to ensure their protection. The lifestyle of the applicant and her husband, especially their car and clothing, had occasioned some jealousy, but this was not such as to force them to leave the country.
[4] On May 17, 1997 Mobutu was overthrown. The soldiers providing protection for them left their residence after learning that the commander of the Zaïrian army was dead. On the same day, people gathered at their residence, shouting threats and throwing stones. The applicant's husband was able to disperse them by firing a few shots. Also on May 17, 1997 the applicant's husband was arrested by soldiers of the new AFDL government of Kabila to question him about Kongolo's affairs and find out why he was armed. Fearing for their safety, the applicant and her son left Zaïre with the help of soldiers of the former government and went to the Congo. The applicant's husband is allegedly still detained in a Kokolo prison in Kinshasa.
Immigration and Refugee Board analysis
[5] The Board analysed the case as follows:
| The claimant admitted that she and her husband had never been in politics. Her husband only had business relations with Kongolo, Mobutu's son. She alleged that she had a well-founded fear of prosecution because of her social group: married to a man connected to power. |
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| It appeared from the evidence that only the claimant's husband had problems. When Kabila's soldiers came to their home the claimant was not questioned or threatened by these men. If they had intended to persecute her they would have taken her away with them, and that was not the case. Further, there is no evidence that the wives and children of Kongolo's business associates were harassed and persecuted by the Kabila government. |
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| Consequently, we consider that the claimants have no well-founded fear of persecution if they were to return to their country. |
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[6] After hearing the arguments of counsel for both parties and reading the documents in the record, I told counsel that I would allow the application for judicial review since I was not satisfied with the reasons given by the Board for its conclusion.
[7] In its decision, the Board did not provide sufficient detail in support of its conclusion that [TRANSLATION] "If they had intended to persecute her they would have taken her away with them, and that was not the case".
[8] Further, I am not persuaded by the Board's statement that since the claimants were not questioned or threatened they have no well-founded fear of persecution if they were to return to their country.
[9] Moreover, I do not understand what standard of evidence the Board was looking for from the applicants when it stated [TRANSLATION] "Further, there is no evidence that the wives and children of Kongolo's business associates were harassed and persecuted by the Kabila government".
[10] For these reasons, I allow the application for judicial review and order that the applicant be given a re-hearing before a newly constituted Board.
[11] The parties did not submit questions for certification.
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Max M. Teitelbaum
J.F.C.C.
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Ottawa, Ontario,
January 15, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1567-98
| STYLE OF CAUSE: Marilou Malu Malu et al. and Department of Citizenship and Immigration |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 6, 1999
REASONS FOR ORDER BY: Teitelbaum J.
DATED: January 15, 1999
APPEARANCES:
François Milo FOR THE APPLICANT
Louise-Marie Courtemanche FOR THE RESPONDENT
SOLICITORS OF RECORD:
François Milo FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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