Docket: IMM-2610-11
Citation: 2012 FC 62
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, January 18, 2012
PRESENT:
The Honourable Mr.
Justice Shore
BETWEEN:
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GENEVIEVE BOKA DI MPASI
MANSONI
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Applicant
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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
I. Introduction
[1]
The
plausibility of the account and the assessment of the subjective fear are
central to this matter.
II. Judicial procedure
[2]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision by the Refugee Protection Division (RPD) of
the Immigration and Refugee Board (IRB) dated March 29, 2011, that the
applicant is neither a Convention refugee as defined in section 96 of the IRPA
nor a person in need of protection pursuant to section 97 of the IRPA.
III. Facts
[3]
The
applicant, Geneviève Boka Di Mpasi Mansoni, is a citizen of the Democratic
Republic of the Congo (DRC).
[4]
Since
2002, the applicant has apparently worked as a French teacher and was a member
of the Alliance Franco-Congolais de Kinshasa (AFCK) network, under the
leadership of Beya Kabenga, who is also an elected member for the People’s
Party for Reconstruction and Democracy (PPRD), headed by the current president
of the DRC.
[5]
Between
March 2007 and June 2008, the applicant protested with some of her colleagues
against Beya Kabenga by denouncing, among other things, his poor financial
management of the AFCK.
[6]
The
applicant, who held the position of educational consultant, was apparently
suspended as of January 2007.
[7]
Between
September 2007 and December 2007, two of her colleagues were reportedly
arrested on the orders of Beya Kabenga. Other employees allegedly managed to
avoid attempts to arrest them.
[8]
Beya
Kabenga, during a meeting with members of the AFCK, apparently justified the
arrests. Subsequently, several of the applicant’s colleagues resigned or were
dismissed. Beya Kabenga allegedly continued his campaign of intimidation and
abused his power with the help of his contacts within the country’s security
agencies to intimidate the members of the AFCK who opposed his leadership.
[9]
In
2008, the applicant began teaching again while continuing her efforts, along
with her colleagues, to denounce Beya Kabenga, calling for his resignation.
[10]
In
June 2008, the applicant allegedly obtained a Canadian visa to attend the 12th World
Congress of the Fédération internationale des professeurs de français (FIPF).
[11]
The
applicant alleges that she suffered major stress because of the risk of
arbitrary arrest she faced.
[12]
After
her arrival in Canada on July 18, 2008, the applicant chose not to return to the DRC
where she was subject to sexual violence and arbitrary arrest.
[13]
She
did not seek Canada’s protection until October 7, 2008, two and a half months
after she arrived in Canada.
[14]
While
in Canada, the applicant stayed
in touch with her former colleagues, who told her that Beya Kabenga had continued
to threaten her colleagues with arbitrary arrest.
IV. Decision under review
[15]
The
RPD found that the applicant was not a person in need of protection. It noted,
first, that the applicant had continued to work for the AFCK without being persecuted,
even though she had vigorously objected to the work of Beya Kabenga between
March 2007 and June 2008.
[16]
The
RPD believed that she was suspended in 2007 because of a work conflict and not
because of her efforts against Beya Kabenga.
[17]
The
RPD was of the opinion that the applicant had not demonstrated the reasonable conduct
of a person whose safety is at risk by not fleeing the DRC as soon as she
obtained her visa and by not taking measures to avoid a possible arrest.
[18]
The
applicant did not establish that Beya Kabenga had tried to mistreat her in her
country or after her arrival in Canada.
[19]
The
RPD found that the applicant would be subjected only to a generalized risk and
not a personalized risk if she were to return to the DRC.
V. Issue
[20]
Is the
RPD’s decision reasonable in the circumstances?
VI. Relevant legislative provisions
[21]
The
following provisions of the IRPA apply in this case:
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Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97. (1) A
person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection
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Définition de
« réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes
— sauf celles infligées au mépris des normes internationales — et inhérents à
celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne
qui se trouve au Canada et
fait partie d’une catégorie de personnes auxquelles est reconnu par règlement
le besoin de protection.
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VII. Position of the parties
[22]
The
applicant is claiming that the RPD did not refer to the evidence she had
adduced concerning the abuses of power committed by Beya
Kabenga and the human rights violations taking place in the DRC. She argues
that the RPD did not take into account the position he holds within the government
and the power he has to make arbitrary arrests, as shown in the newspaper
articles adduced into evidence. The applicant would therefore be subject to a
personal risk of persecution. In addition, the RPD erred by finding, despite
testimonial evidence, that the applicant’s colleagues had not been concerned
after her departure when one of her colleagues had been threatened with
arbitrary arrest and forced to quit his job in December 2008.
[23]
The
applicant also contends that, because of her ethnic background and her gender,
she would be more likely to suffer violence at the hands of the authorities if
she were to return to the DRC. The applicant also notes that the existence of a
moratorium on removals to the DRC should have been considered by the RPD.
[24]
The
respondent argues, first, that the RPD found that the applicant’s allegations
were not credible. The applicant would not be persecuted or even threatened by Beya
Kabenga because she had continued to work for the latter without suffering any
consequences for her criticisms of his leadership. In addition, the evidence in
the record shows that the applicant was suspended because of a work conflict concerning
wage conditions, among other things. The respondent also notes that the
applicant’s failure to leave the DRC at the first opportunity undermines her
credibility. Also, the applicant did not demonstrate that she would be subject
to a personalized risk if she were to be deported to the DRC. The documentary
evidence shows, to the contrary, that crime is widespread in the DRC.
VII. Analysis
[25]
It
is well settled that deference is owed to findings of fact made by an administrative
body. This principle is explained as follows by the Supreme Court in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62:
[13] This, I think, is the context
for understanding what the Court meant in Dunsmuir when it called for
“justification, transparency and intelligibility”. To me, it represents a
respectful appreciation that a wide range of specialized decision-makers
routinely render decisions in their respective spheres of expertise, using
concepts and language often unique to their areas and rendering decisions that
are often counter-intuitive to a generalist. That was the basis for
this Court’s new direction in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, where Dickson J.
urged restraint in assessing the decisions of specialized administrative
tribunals. This decision oriented the Court towards granting greater
deference to tribunals, shown in Dunsmuir’s conclusion that tribunals
should “have a margin of appreciation within the range of acceptable and
rational solutions” (para. 47). [Emphasis added.]
[26]
The
RPD did not believe the applicant’s allegations that the head of the AFCK would
persecute her.
[27]
The
Federal Court of Appeal, in Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (QL/Lexis), made the following cautionary
remarks about plausibility:
4 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. In Giron, the Court merely
observed that in the area of plausibility, the unreasonableness of a decision
may be more palpable, and so more easily identifiable, since the account
appears on the face of the record. In our opinion, Giron in no way reduces the
burden that rests on an appellant, of showing that the inferences drawn by the
Refugee Division could not reasonably have been drawn. In this case, the
appellant has not discharged this burden. [Emphasis added.]
(Also,
Antonippillai v Canada (Minister of Citizenship and Immigration) (1999),
157 FTR 101, [1999] FCJ No 382 (QL/Lexis)).
[28]
In
this case, the RPD drew a negative inference with regard to the applicant from
the fact that the applicant had worked for the AFCK until her departure for Canada, despite the fact
that other teachers had been prevented from carrying out their duties. The RPD
did not err by dismissing, among other things, the applicant’s explanation that
the authorities could not have taken action against her in such a short time
frame. It was open to the RPD to arrive at that conclusion.
[29]
In
addition, the RPD gave significant weight to the fact that the applicant had
obtained a visa that would have enabled her to flee her country of origin
earlier. As the Court explained in Manirazika v Canada (Minister of
Citizenship and Immigration), 2009 FC 1309:
[18] As the
respondent correctly pointed out, it is settled law that returning to the
country of persecution, delay in leaving the country of persecution or
failure to claim protection in countries that are signatories to the 1951 Geneva
Convention or the 1967 Protocol Relating to the Status of Refugees can
seriously undermine a claimant’s credibility (Lopez v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1318, 136 A.C.W.S. (3d) 894 at
para. 5; Prayogo v. Canada (Minister of Citizenship and Immigration),
2005 FC 1508, 143 A.C.W.S. (3d) 1087 at para. 26; Ilie v. Canada
(Minister of Citizenship and Immigration), (1994), 88 F.T.R. 220, 51
A.C.W.S. (3d) 1349; Saez v. Canada (Minister of Employment and Immigration),
(1993), 65 F.T.R. 317, 41 A.C.W.S. (3d) 719 (F.C.A.); Nguyen v. Canada
(Minister of Citizenship and Immigration), (1998), 79 A.C.W.S. (3d) 136,
[1998] F.C.J. No. 420 (QL); Sokolov v. Canada (Minister of Citizenship and
Immigration), (1998), 87 A.C.W.S. (3d) 1193, [1998] F.C.J. No. 1321 (QL)). [Emphasis
added.]
[30]
The
RPD also analyzed the evidence adduced by the applicant that shows that her
suspension was the result of a work conflict concerning her pay and not the
result of the denunciations of the actions taken by the head of the AFCK.
[31]
The
RPD also seems to have considered whether Beya Kabenga could be “influential”
(RPD’s decision at para 22), as the following excerpt from the RPD’s decision
also shows:
[18] …First, as mentioned, the panel is of the opinion that the claimant
failed to establish that this leader tried to mistreat her when she was living
in her country. In addition, since she left in July 2008, nearly
30 months ago, the claimant has not heard that anyone—particularly a
member of the authorities in the DRC or the leader of the AFCK—had the
least bit of interest in her. [Emphasis added.]
[32]
The
argument that the RPD did not take into account the fact that the applicant, as
a woman, was more at risk than her male colleagues of being arbitrarily
arrested, leading to sexual violence, must be addressed.
[33]
The
Court notes that the way the RPD dealt with sections 96 and 97 of the IRPA
within the same paragraphs creates confusion and that it must be determined
whether these two sections were properly analyzed based on the appropriate legal
tests (Kandiah v Canada (Minister of Citizenship and Immigration), 2005 FC
181). Even though
the country conditions indicate generalized crime, the RPD had to determine
whether there was a nexus between the applicant’s fear and one of the grounds
in section 96 of the IRPA (Luc v Canada (Minister of Citizenship and Immigration),
2010 FC 826, 374 FTR 38).
[34]
Generalized
risk is a test that is exclusively associated with section 97 of the IRPA.
However, the reasoning given in Ocean v Canada (Minister of
Citizenship and Immigration), 2011 FC 796 applies in this case:
[15]
Justice Pinard also stated the following:
[29]
This is not to say that membership in a particular social group is
sufficient to result in a finding of persecution. The evidence provided by the applicant
must still satisfy the Board that there is a risk of harm that is sufficiently
serious and whose occurrence is “more than a mere possibility”.
[16]
Justice Martineau stated the following at paragraph 36 of Josile:
. . . Had the Board accepted
that a risk of rape is grounded in the applicant’s membership in a particular
social group, then the inquiry should have resulted in a determination of
whether there is “more than a mere possibility” that the applicant risks
suffering this harm in Haiti.
If the response had been
“yes”, the next step would have been to determine whether the state was able to
protect her.
…
[18] In this case, the
panel did not err in law like those in Dezimeau and Josile. The
panel accepted the principles stated in these two judgments. More specifically,
it did not transfer its reasoning concerning section 97 to section 96. What the
panel found was that the basis or the heart of the applicant’s claim under
section 96 was not her fear of persecution because she belongs to a particular
social group, that of Haitian women returning to that country after a prolonged
absence and fearing being raped because of their gender. The basis of her fear
of return concerned a fear of a different nature. My reading of the hearing transcript
in this case confirms that the panel’s decision on this point was reasonable.
[35]
In
this case, the RPD did address the applicant’s concerns about the difference
between her situation and that of her male colleagues, but found, at paragraph
18 of its decision, that the applicant had not shown “a serious possibility of persecution”. Thus, it ruled out the
application of section 96. The Court must point out that the argument centred primarily
on the applicant’s fear of the president of the AFCK, which called for an
analysis pursuant to section 97. Despite the fact that the RPD dealt with both
sections at the same time, it did not confuse the legal tests applicable to
them.
[36]
While
it would have been preferable to undertake a more detailed analysis of gender-related
persecution, in view of the consideration given to the Guideline on Women
Refugee Claimants Fearing Gender-Related Persecution (Guideline 4), the RPD
did not err in its assessment of the applicant’s subjective fear.
[37]
Given its
credibility findings, the RPD was not required to pursue its analysis of the
objective evidence on state protection as the applicant wanted (Flores v Canada (Minister of Citizenship and Immigration), 2010 FC 503).
[38]
Thus, in applying
section 97 of the IRPA, it was open to the RPD to find that the testimonial
evidence did not show that the applicant had been personally targeted, but instead
showed that the applicant faced, according to its analysis of the documentary
evidence, a generalized risk within the meaning of the case law.
[39]
The
Court cannot find that the risk of persecution alleged by the applicant was
assessed in an arbitrary or unreasonable manner by the RPD.
[40]
For all of
the foregoing reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application for judicial review be dismissed. There is no question of general
importance to be certified.
Obiter
Nevertheless,
despite the remarks made in this decision, a moratorium is in effect concerning
the Democratic Republic of the Congo because of the precarious situation
currently prevailing in that country with respect to the human condition.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, LLB
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