Docket: IMM-4454-11
Citation: 2012 FC 68
Toronto, Ontario, January 18,
2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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FRÉDÉRIC FRANÇOIS NDONGALA MATONDO
LYDIE TOUSSOM
INES ROLLANDE TCHOKOUAHA
TOUSSOM
ARIELLE ANNICK NGANGOM
TOUSSOM
DONNA ADJANI NGAKO TOUSSOM
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Frédéric François
Ndongala Matondo is a citizen of the Democratic Republic of Congo [DRC]. Lydie
Toussom is a citizen of the Republic of Cameroon and is M. Matondo’s common-law spouse.
They seek judicial review of a decision of the Refugee Protection Division of
the Immigration and Refugee Board which rejected their claims for refugee
protection.
[2]
For the reasons that
follow, the application will be dismissed as it relates to both claimants.
M. Matondo’s Refugee Claim
[3]
M. Matondo’s refugee
claim was based upon his alleged fear of persecution in the DRC because of his
political opinion and his involvement with the Movement for the Liberation of Congo
[MLC] party.
[4]
M. Matondo claims
that he was arrested on January 19, 2009, while he was participating in a
recruitment campaign on behalf of the MLC in the Bas-Congo province of the DRC.
He alleges that he was detained and brutally tortured by Congolese authorities
over a five week period until his escape from custody on February 25, 2009.
[5]
The Board explained
why it found M. Matondo not to be a credible witness, and M. Matondo has not
seriously challenged that finding.
[6]
While it would have
been preferable for the Board to specifically address a January 24, 2009
newspaper article ostensibly reporting on M. Matondo’s activities with the MLC
as well as his arrest by government authorities and his escape from custody, it
is difficult to see how that article could have buttressed M. Matondo’s
credibility.
[7]
Not only does the
article purport to report on events that had not yet taken place, its
description of M. Matondo as having been “chargé de propagande dans son parti”
is at odds with his own description of his role within the MLC. According to M.
Matondo, he was a “simple militant” and did not occupy any position of
responsibility within the MLC.
[8]
It appears
from the Board’s reasons that the only part of M. Matondo’s story that it believed was that he was member
of the MLC. The Board explained why he would not be at risk of persecution in
the DRC merely because of his MLC membership. This finding was reasonable,
given that the MLC is the majority party in the Kinshasa
area. Indeed, M. Matondo conceded at the hearing of this application that MLC
members could live safely in Kinshasa.
[9]
M. Matondo further
submits that the Board erred by failing to address his claim to be at risk in
the DRC because of his
perceived involvement in the Bundu dia Kongo [BDK] party. He claimed that the
individuals who had arrested him during his mission in Bas-Congo province
perceived him to be a member of the BDK. The BDK is an illegal organization in
the DRC, and there was evidence before the Board of the government’s
persecution of BDK members.
[10]
Given that the Board
found that M. Matondo’s story of his mission to Bas-Congo and his subsequent arrest
and detention was not credible, there was no need for the Board to address the
perception of the individuals allegedly responsible for his arrest.
[11]
Finally, M. Matondo
argues that the Board’s finding that his failure to seek refugee protection in Cameroon indicated a lack of subjective fear on his part was
unreasonable. His counsel offers a number of explanations as to why M. Matondo might
not have wanted to claim refugee protection in Cameroon,
including the fact that the protection afforded by the Cameroonian refugee
system is only temporary. According to counsel, M. Matondo preferred instead to
try to regularize his status in Cameroon by marrying Mme Toussom.
[12]
There are two
difficulties with this argument. The first is that it relies on explanations
for M. Matondo’s behaviour that M. Matondo himself did not provide at his refugee
hearing. The second difficulty is that there is no suggestion that M. Matondo
took any steps towards marrying Mme Toussom during the time the couple spent
together in Cameroon.
[13]
M. Matondo’s failure
to take any steps towards regularizing his status in Cameroon through marriage
with Mme Toussom is particularly problematic, given the couple’s testimony
regarding the difficulties that they were allegedly encountering at the hands
of the Cameroonian authorities as a result of M. Matondo’s lack of status in
that country. I am thus not persuaded that the Board’s finding of a lack of
subjective fear on the part of M. Matondo was unreasonable.
Mme Toussom’s Refugee Claim
[14]
Mme Toussom argues
that the Board erred in failing to address her claim to be at risk of persecution
in Cameroon by reason of the political opinion
imputed to her by Cameroonian authorities because of her relationship with M.
Matondo.
[15]
The applicants say
that after M. Matondo came to Cameroon, they were arrested by Cameroonian
authorities. In her Personal Information Form, Mme Toussom alleges that the
individuals who arrested her accused her of harbouring a war criminal and being
“la filière camerounaise du Mouvement
de Libération du Congo, d’être complice de Jean-Pierre Bemba et
d’avoir participé à des crimes de guerre”.
[16]
I would start by
observing that this aspect of the claim is significantly undermined by the fact
that the Board reasonably found most of M. Matondo’s story of involvement with
the MLC and resulting persecution not to be credible.
[17]
Moreover, while Mme
Toussom did make passing reference in her testimony to the authorities having
accused her of harbouring a war criminal, most of her testimony focused her
allegation that she was arrested
and detained for harbouring
“un clandestin” or “une
personne en situation irregulière”.
[18]
This focus is also reflected
in the submissions of Mme Toussom’s counsel before the Board, which referred
only to her having attracted the attention of Cameroonian authorities for
having harboured “un clandestin”. Indeed, no argument was advanced before the
Board that Mme Toussom faced persecution in Cameroon
because of the perception that she was an MLC sympathizer.
[19]
In the circumstances,
it was reasonable for the Board to focus on the aspect of Mme Toussom’s claim
relating to the risks resulting from her having harboured a person without
status. It was also reasonable for it to conclude that any negative
consequences flowing from M. Matondo having sought refuge with Mme Toussom did
not amount to persecution, but instead constituted prosecution under a law of
general application.
[20]
Furthermore,
the Board concluded that since Mme Toussom and M. Matondo are no longer living
together, Mme Toussom would not suffer any negative consequences in the future
as a result of her association with M. Matondo. This was a conclusion that was
reasonably open to the Board. While the evidence on the status of the couple’s
relationship is not entirely clear, it should be noted that M. Matondo does not
have status in Cameroon, and thus would not be
returned there.
[21]
Finally, the failure
of the Board to refer to the newspaper article which Mme Toussom says documents her presence in the DRC is
not a material error, given that her claim is asserted against Cameroon and not the DRC.
Conclusion
[22]
For these reasons,
the application for judicial review is dismissed.
Certification
[23]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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