Docket: IMM-5355-11
Citation: 2012 FC 313
Ottawa, Ontario, March 19,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JOHNSON MOLI TSHIBOLA
KABONGO
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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]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated July
21, 2011, finding that the applicant was neither a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee
nor a person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow, the application is granted.
Facts
[2]
The
applicant is a citizen of the Democratic Republic of Congo (DRC). He alleges
fear of persecution on the basis of political opinion. He states that his
problems began when the Alliance of Democratic Forces for the Liberation of
Congo (ADFLC) started recruiting youths to be part of the army. In 1997, the
ADFLC tried to recruit the applicant’s brother. He was killed after he refused
to join them. This incident inspired the applicant to advocate against forced
recruitment. He met with other youths from his church, speaking out against
forced recruitment.
[3]
On
December 14, 2008, the applicant states that he arranged a meeting at a bistro
with other youths. Soldiers arrived at the bistro and the applicant spoke out
against forced recruitment. Eleven days later he was arrested and imprisoned.
He was released on January 1, 2009 and he fled DRC that day (travelling to Rwanda, South
Africa, Brazil, Argentina,
and Mexico, before
arriving in Canada). He
arrived in Canada on April 26,
2009 and made a claim for refugee protection upon arrival.
[4]
In
the reasons for its decision dated July 15, 2011, the Board found the applicant
not to be credible. The Board stated that it did not believe that the applicant
would have placed himself and 15 other youths at risk by speaking out against
forced recruitment in a public place, in the presence of soldiers. The Board
noted the applicant’s testimony that he had previously been afraid to speak out
because he would be arrested or killed like his brother.
[5]
The
Board stated that because the applicant was found not to be credible it gave no
weight to the documentary evidence; a letter from a priest stating the
applicant was in danger and a warrant for the applicant’s arrest because he had
insulted the government. The applicant’s claim was therefore refused.
Standard of Review and Issue
[6]
The
issue raised by this application is whether the Board’s decision is reasonable:
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190.
Analysis
[7]
Credibility
findings attract considerable deference and the Board is entitled to make
findings of implausibility based on rationality and common sense: Shahamati
v Canada (Minister of
Citizenship and Immigration), [1994] FCJ No 415 (CA). However, where
an implausibility finding is based on inferences that could not reasonably be
drawn from the evidence the Court must intervene. In this case, the Board’s
negative decision was based on a sole finding of implausibility. This finding
was perverse and made without regard to the evidence, and therefore the
decision must be set aside.
[8]
The
Board evidently found it implausible that the applicant, an intelligent,
well-educated young man, aware of the risks of speaking out against forced
recruitment, would choose to speak out publicly in the presence of soldiers,
placing himself and his fellow youths in danger. This is not a valid foundation
upon which to base a finding of implausibility. Most refugee claims based on
political opinion involve speaking out against a persecutory regime, despite
knowledge of the risks inherent in such activity. The genuineness of political
conviction is not assessed by the degree of education or intelligence of the
claimant; nor is it to be measured against some vague standard of rationality.
Indeed, history, including recent events, teaches us that the bravest acts of
political dissent are, when rationally viewed, foolhardy. As Justice James
Hugessen stated in Samani v Canada (Minister of
Citizenship and Immigration), August 18, 1998, IMM-4271-97, at para 4:
“It is never particularly persuasive to say that an action is implausible
simple [sic] because it may be dangerous for a politically committed
person.”
[9]
The
Board asked the applicant at the hearing to explain why he would speak out in
this way despite knowing the danger. He gave the following response as
recorded in the hearing transcripts (Certified Tribunal Record, at 125):
Je suis arrivé à poser cet acte parce
que, bon, j’étais déjà à bout ou bien les idées s’agitaient en foule en-dedans
de moi. Alors je suis arrivé pour contrecarrer cette action pour que l’on ne
puisse pas procéder au recrutement des jeunes. Parce que je n’avais pas accepté
de voir mourir ces jeunes pendant que j’étais en vie et que je pouvais le voir,
assister à la mort de ces jeunes.
[10]
The
Board did not consider the applicant’s explanation. Instead, the Board simply
stated that it is implausible that he would place himself and the other youths
in danger. However, as the applicant explained, they were already in very real
danger because of the prospect of forced recruitment, which drove him to speak
out.
[11]
The
Board also failed to consider the fact that the applicant’s testimony was
corroborated by a warrant for his arrest for “insulting the government”; the
Board instead stated that it gave no weight to this document because it had
found the applicant not to be credible. The warrant was itself highly relevant
to the credibility of his testimony. The Board cannot find the applicant’s
testimony not credible without consideration of relevant corroborative
evidence, and then subsequently reject the supporting evidence because of the
credibility finding.
[12]
The
application for judicial review is granted.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted. The matter is referred back to the Immigration Refugee
Board for reconsideration before a different member of the Board’s Refugee
Protection Division. No question for certification has been proposed and the Court
finds that none arises.
"Donald
J. Rennie"
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