Docket: IMM-4871-11
Citation: 2012
FC 141
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 3, 2012
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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JOSEPHINE NGOMA KHUABI
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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
[1]
This is an application to consider the lawfulness of a decision
dated May 26,
2011, by the Refugee Protection Division of the Immigration and Refugee Board (panel)
rejecting the applicant’s refugee claim. In this case, there is no basis to intervene
to reverse the panel’s findings of fact on the credibility of the applicant or
to reassess the evidence submitted in support of her refugee claim.
[2]
The
applicant is a citizen of the Democratic Republic of the Congo, originally from
the province of Bas‑Congo and a resident of Kinshasa. She is 59 years old
and is mother to five children. Before retiring in April 2006, she worked as a
nurse for the Société Nationale d’Électricité in Kinshasa. On June 30, 2006, the
applicant stated that she participated, for the first time, in a meeting of the
Bundu Dia Kongo (BDK) in Boma. The BDK is a political and religious party that
was founded in 1969 and whose mission is, according to the applicant, to
denounce inequities and injustices committed by the central government in the
provinces, to defend the interests of Bas‑Congo and to educate the residents
of that province about work, health and education.
[3]
The
applicant alleges that, after joining this movement, she participated in more
than 15 meetings held by the BDK in Bas-Congo and Kinshasa. The meetings were
three to four hours in length and attended by between 50 and 100 members. As a
retired nurse, her involvement in the BDK consisted of assisting the female
residents of Bas-Congo by counselling them on family planning and the prevention
of sexually transmitted diseases. Furthermore, as a member of the BDK, the
applicant regularly hosted other members in her home when they travelled to
Kinshasa to do business between Bas-Congo and the capital.
[4]
In
support of her refugee claim, the applicant alleged that, on March 25, 2009, judicial
police officers came to her home with a bench warrant and a provisional warrant
for her arrest. In fact, according to the applicant, people from Bas-Congo who
are affiliated with the BDK were, and are still, sought by the Congolese police
since the clashes between the police and BDK members in January 2008. Police
officers took the applicant before the judicial police and then to the
prosecutor’s office in Kinshasa, where she was allegedly questioned about the BDK
and the events of January 2008 in Bas‑Congo. The applicant alleges that
she had been denounced but does not know by whom.
[5]
According
to the applicant, on April 14, 2009, after three weeks of detention during
which she suffered all kinds of abuse, she was granted interim release on the
condition that she was forbidden to leave the city of Kinshasa and had to
report to the examining magistrate every Tuesday and Friday, which she did
until May 8, 2009. After her release, the applicant was hospitalized for five
days. Subsequently, she took refuge with her nephew until she left her country
for Great Britain on May 11, 2009. She travelled to the United States on
May 26, 2009, and then to Canada on June 12, 2006, and she sought refugee
protection here that same day.
[6]
The
applicant essentially fears persecution by the Congolese justice system because
she is now accused of belonging to an insurgent movement and endangering national
security. Unfortunately for her, the panel did not believe her story of
persecution. In this case, her testimony with respect to the BDK contained
significant omissions and contradictions that undermined her credibility, hence
this application for judicial review.
[7]
First,
it should be recalled that the panel is in a better position than the Court to
assess the credibility of a refugee claimant, especially because it had the
opportunity to observe the claimant’s demeanor at the hearing as well as the spontaneity
and consistency of the claimant’s answers. In this case, the applicant has not
demonstrated to the Court that the panel’s findings are unreasonable. The
reasons provided by the panel for doubting the credibility of the applicant are
clear and rely on the evidence in the record. I reject the applicant’s claim
that the panel was over-vigilant and that her explanations should have been
accepted by the panel.
[8]
First,
the panel found that the applicant was unable to provide sufficient detail on
the discussions that took place during the monthly BDK meetings that she said
she participated in 15 to 20 times, which suggests active participation and
some knowledge of this movement.
[9]
When
asked for examples, the applicant’s answers were rather vague with respect to
what is reasonably expected of an active member. The applicant submits that, as
a retired nurse, what captured her attention the most during these meetings were
issues related to the population’s health and well-being and that her role as a
nurse within the organization could explain the very general nature of her
answers. However, from the transcripts of the proceedings, it is clear that the
applicant was unable to provide convincing details on any of the subjects she had
referred to (including health), and thus it was reasonable for the panel to
doubt the truthfulness of the facts alleged regarding the applicant’s commitment
to the BDK.
[10]
On
this point, the following exchange is particularly telling:
[translation]
Q.:
And what did you discuss?
A.:
There were several subjects that we—about which we spoke because it always
depended on the leaders. We discussed problems concerning dues, we discussed
the presidential elections, for example, and so on.
Q.:
Could you give me other examples?
A.:
Other than what I just said, we discussed culture. We also discussed their
health, members’ health, how to stay healthy.
Q.:
Anything else?
A:
Etc. Because it depended on the leaders and the subjects that they raised.
. . .
Q.:
And what did you discuss regarding elections?
A.:
There were various leaders. Concerning elections there was one leader who spoke
to us about how to go vote. That one must vote and for whom to vote.
Q.:
Other than that, did you discuss anything else concerning elections Ms. Khuabi?
Other than who to vote for?
A.:
Well yes. We also discussed that, if there were an election, we would select one
of our members to run, with our support.
[11]
Furthermore,
the panel criticizes the applicant for not making any reference in her Personal
Information Form (PIF) or testimony to the Congolese government’s revocation of
the authorization of the BDK to operate as a social and cultural organization, effectively
making it illegal to participate in the movement as of March 21, 2008 (National
Documentation Packages on the Democratic Republic of the Congo, April 30, 2010,
tab 2.5, page 65). When questioned by the panel, the applicant stated that
she knew of this ban but did not recall this when the panel questioned her
about why she was arrested in March 2009 or why BDK supporters are still being sought
by the Congolese government.
[12]
The
applicant explains that she may not have thought to mention the fact that the
BDK had been declared illegal in March 2008, but was aware of this fact. It may
very well be that the Congolese government’s formal declaration of the
illegality of the BDK further to the incidents of January 2008 could be
perceived as more or less important by someone describing these facts, regardless
of whether that person was a member of the BDK or not. However, even though the
panel could not reasonably base its refusal exclusively on such an omission by
the applicant, I note that, in this case, it was instead her general lack of
knowledge regarding BDK meetings and activities that was determinative in the
panel’s reasoning.
[13]
It
was also open to the panel to give no probative value to the documents
submitted by the applicant regarding her participation as a member of the BDK. In
fact, the panel mentioned that, according to the documentary evidence, it is
easy for a refugee claimant from the DRC to obtain fraudulent documents in
support of his or her refugee claim. The applicant argues that the panel could
not disregard the documents submitted into evidence, which were authentic at
first glance. However, a review of the reasons reveals that the finding on the
credibility of the applicant was not based on a frivolous consideration, but on
discrepancies and contradictions identified in the testimonial evidence. Therefore,
there was nothing to prevent the panel from considering the applicant’s ability
to acquire fraudulent documents in support of her claim. Here, the
reasonability of this finding of fact should be reviewed by taking into account
other negative elements in the record.
[14]
Furthermore,
the applicant gave inconsistent answers when the panel was trying to determine
whether she had been sought by the Congolese police since her departure in
March 2009. She initially mentioned that her children had no problems after her
departure because they too had fled their family home, where the applicant had
been arrested. When further questioned on this, the applicant told the panel
that the police had tried on three occasions to find her at her home, that is,
in June 2009, in November 2009 and in December 2010. She alleged that her
nephew had obtained this information from one of her neighbours. The panel indicated
that not only did the applicant provide contradictory testimony on these events,
but she also failed to refer to them in her first PIF dated July 9, 2009, as
well as in her amended PIF submitted on March 30, 2011. Given all of these
facts, the applicant cannot criticize the panel for drawing a negative
inference with respect to her credibility.
[15]
Another
point that undermined the applicant’s credibility is the fact that she applied
for a visa for the United States while she already had a visa for Great Britain.
The applicant explained to the panel that she took advantage of her stay in the
United States and Great Britain to visit family members but that she did not
seek refugee protection there because French is not spoken there and the
applicant does not speak English. Contrary to what the applicant claims, the
panel considered her explanations but found them insufficient. The Court must
not intervene as long as the rejection by the panel was based on sound
reasoning. Furthermore, a refugee claimant’s failure to seek protection at the first
possible opportunity may be an additional factor to consider in assessing the
subjective fear of an applicant, even though it is not determinative in itself.
[16]
In light of the foregoing, the application for judicial review
will be dismissed. No question of general importance was proposed to the Court.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that this application for judicial review is
dismissed. No question is certified.
“Luc Martineau”
Certified
true translation
Janine
Anderson, Translator
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