Kalukuta v. Canada (Minister of Citizenship and Immigration), docket IMM-2410-98

Date: 19990422

Docket: IMM-2410-98

BETWEEN:

MARC ITAMBA KALUKUTA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

TEITELBAUM J.

INTRODUCTION

[1]      This is an application for judicial review of the decision of the Immigration and Refugee Board of Canada, Convention Refugee Determination Division, dated April 24, 1998. The applicant seeks an order quashing the decision and remitting the matter back for determination before a newly constituted panel.

FACTS

[2]      The applicant is a 28 year old male citizen of the Democratic Republic of Congo (Congo). He claimed having a well-founded fear of persecution in Congo at the hands of the Alliance of Democratic Forces for the Liberation of Congo (ADFL), based on his membership in a particular social group, as he was perceived as a Hutu supporter.

[3]      The applicant stated that in 1995, he moved to Bukavu to enroll in the University of Bukavu. He recounts that while residing in Bukavu area he lived with a Hutu family and became friends with Hutu students at the University. In his Personal Identification Form (PIF) he states that in late October 1996, at a time when Rwandan Hutu Refugees increasingly populated Bukavu, Bukavu was captured by the rebels. Local residents assisted the rebels by pointing out the homes of Hutu residents. When the situation deteriorated, the applicant left the area with a number of escaping Hutu families fleeing towards the Zambian border. The applicant recounts assisting Hutus in crossing into Zambia by selling their property and bribing Zambian guards for safe passage. The applicant believes he is known by the rebels to support Hutu Refugees and fears returning home in Kolwezi were the rebels are from.

Decision

[4]      The Board held a hearing on February 10, 1998 and determined that the applicant was not trustworthy and lacked credibility. This conclusion is based on inconsistencies, implausibilities and contradictions in the evidence. The Board found that there was insufficient evidence to conclude that the applicant would be of any more interest to Kaliba"s forces or Tutsi extremists as a perceived Hutu supporter. Further, the Board found that it would not be unreasonable for the applicant to relocate to other areas of the country, outside the Bukavu region which appears to be the epicentre of the Hutu-Tutsi rivalry in Congo.

ISSUES

[5]      The applicant raises the following issues:

1) Whether the Board erred in determining that the applicant"s claim was based on membership in a particular social group when it should have considered whether the applicant"s actions amount to perceived political opinions.

2) Whether the Board erred in determining that the applicant lacked credibility and did not risk persecution in Congo.

3) Whether the Board erred in finding that the applicant had an internal flight alternative in other part of Congo.

PARTIES SUBMISSIONS

Applicant"s submissions

[6]      The applicant submits that the Board failed to consider whether he had a well-founded fear based on perceived political opinions. It is also submitted that despite the applicant"s testimony that he had been politically active under the Mobutu regime, the Board erroneously concluded that the applicant had not been politically active and further concluded that the applicant " does not strike the panel as a person who would engage in a political struggle against the Kaliba regime".

[7]      The applicant argues that the Board also erred in finding that there was "insufficient evidence" to show that the applicant would be at risk. By merely stating that there is insufficient evidence the Board fails to provide clear reasons to disregard the applicant"s evidence and to support its finding.

[8]      The applicant argues that the Board misapprehended the evidence and erred in concluding that he is not trustworthy and lacks credibility. The Board noted a contradiction between the residence shown on the applicant"s national identity card, Lumumbashi, and his testimony that he lived in Bukavu, and erred in rejecting the applicant"s explanation as to when the card was issued. The applicant explained that the address shown on the card is where he resided at the time the card was issued before moving to Bukavu to attend university. The Board also erred in concluding that the month and a half he spent at the border and the raid of food caches of the ADFL forces reflected negatively on his credibility and his alleged fear. The Board erred in dismissing his explanation that he needed money to cross the border and that the main ADFL forces were no longer in the region as they had moved inland. Also, the Board erred in finding that the applicant was probably "actively tolerated" by the ADFL as there was no evidence supporting this finding. Also, the Board erred in making an adverse finding of credibility based on an alleged omission in the applicant"s PIF to specify the name of a certain Colonel who would know of him. It is submitted that there is no omission in the applicant"s PIF as the name of the certain Colonel, among other officers, was provided in response to a specific question at the hearing. Again, the Board erred in disregarding the applicant"s explanation as to why the officers would know him.

[9]      The applicant submits that the Board erred in finding that the documentary evidence did not support the conclusion that Hutu supporters would be at risk of reprisal throughout Congo given that Amnesty International"s report dated December 1997 clearly supports the applicant"s position. It is contended that the Board failed to consider this evidence.

[10]      The applicant also alleges that the Board erred in finding that there was no evidence that "perceived Hutu sympathisers" are systematically identified and persecuted as the Board should have asked itself whether the applicant would be persecuted if it came to the attention of the authorities that he was a Hutu sympathiser. The applicant further submits that the Board erred in failing to assess his claim based on perceived political opinions as this was the true nature of his claim.

[11]      The applicant alleges that the Board erred in finding that he had an internal flight alternative in other parts of the country as there is no evidence to suggest that Hutus or Hutu supporters are not at risk in Kinshasa or anywhere in the country except in the East. The other parts of the country are also controlled by the ADFL forces and it is not reasonable to expect the applicant to seek refuge in parts of the country that are controlled by his persecutors: Sharbdeen v. MEI, (1994) 23 Imm. L.R. (2d) 300 (FCA); Soopramanien v. Canada (Solicitor General) (A-1572-92, October 5, 1993).

Respondent"s submissions

[12]      The respondent Minister submits that the Board did not err in finding that the applicant was not a Convention refugee: he lacked credibility; his fear of persecution was not well-founded given the circumstances in Congo; and he had an internal flight alternative.

[13]      The Board did not err in assessing the evidence regarding the identity card as the applicant admits himself that the card provided had significant defects. The Board cannot be faulted for relying in this evidence. However, the applicant"s demeanor while testifying about the card justifies the Board"s adverse finding of credibility.

[14]      Also, it is submitted that it was open for the Board to make an adverse finding of credibility when the applicant remained voluntarily in the country for a month and a half without any repercussions. The respondent further submits that the Board"s inference that the applicant was actively tolerated was a logical inference given that the evidence provided by the applicant was to the effect that the region was ethnically cleansed.

[15]      With respect to the applicant"s omission to mention a certain Colonel in his PIF, the respondent submits that it was open to the Board to make an adverse finding of credibility based on the late disclosure of evidence central to the Applicant"s claim in light of his testimony and his hesitant and evasive demeanor. The Board found that the evidence was a mere fabrication concocted to bolster his claim.

[16]      The respondent further submits that the Board did not err in assessing and weighing the evidence relating to the incidents and the circumstances alleged by the applicant and that it was open to the Board to conclude that it was not likely to lead to persecution on any ground enumerated in the Convention. The passage relied upon by the applicant was part of the total evidence which the Refugee Division was entitled to weigh as to reliability and cogency.

ANALYSIS

[17]      The Board's decision is based on an adverse finding of credibility, on a conclusion that the applicant would not be at risk in the Congo and that, in the alternative, that he has an internal flight alternative.

[18]      I can see no error in the conclusion of the Board. I am satisfied that the Board considered the fact relating to the applicant's claim based on political opinion. The applicant mentioned in his evidence, although not in his Personal Information Form (PIF) a possible fear on the ground of his political opinion.

[19]      The Board refused to give any credibility to this assertion on the basis that no mention of this was made in the applicant's PIF. The applicant testified at the hearing that he had been involved in politics under the Mobutu régime and that a certain Colonel would know of him because of his past involvement in politics. The Board did not accord any weight to this evidence because, as I have said, it had not been disclosed in the applicant's PIF, and, consequently lacked credibility.

[20]      It was reasonable for the Board to have so concluded. The Board also concluded that it is inconsistent with the applicant's alleged fear for the applicant to have remained at the Zambian border assisting Hutus to escape while he himself remained in the Congo for a period of one and a half months during which time he, with others, on at least 20 occasions, "raided" food storage depots and which food the applicant later sold, I assume, for profit.

[21]      I am satisfied that it was reasonable for the Board to so conclude.

[22]      I am satisfied that the Board must exercise its jurisdiction to ascertain the applicant's credibility and to weigh the evidence based on the whole of the evidence including the applicant's explanations.

[23]      In my opinion, after reviewing the transcript of the hearing, the Board took into consideration all of the explanations given by the applicant and decided that the applicant failed to address the inconsistencies and implausibilities.

[24]      For the foregoing reasons I am satisfied the application for judicial review is dismissed.

[25]      I need not address the issue of an Internal Flight Alternative other than to say that had I concluded that the Board's decision on the issue of credibility was erred, I would have concluded the Board erred in finding the an IFA exists in the circumstances of this case.

[26]      No question was submitted for certification.

                         "Max M. Teitelbaum"

                             Judge

TORONTO, ONTARIO

April 22, 1999

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-2410-98

STYLE OF CAUSE:                      MARC ITAMBA KALUKUTA

                             and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

DATE OF HEARING:                  WEDNESDAY, APRIL 21, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER BY:              TEITELBAUM J.

DATED:                          THURSDAY, APRIL 22, 1999

APPEARANCES:                      Mr. Micheal Crane

                            

                                 For the Applicant

                            

                             Mr. Stephen H. Gold

                                 For the Respondent

SOLICITORS OF RECORD:              Micheal T. Crane

                             Barrister & Solicitor

                             200-166 Pearl St.,

                             Toronto, Ontario

                             M5H 1L3

                                 For the Applicant

                             Morris Rosenberg

                             Deputy Attorney General

                             of Canada

                                 For the Respondent

                    

                              FEDERAL COURT OF CANADA

                                 Date: 19990422

                        

         Docket: IMM-2410-98

                             Between:

MARC ITAMBA KALUKUTA

                            

Applicant

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                        

     Respondent

                    

                            

            

                             REASONS FOR ORDER