Date:
20120924
Docket:
IMM-9676-11
Citation:
2012 FC 1113
Ottawa, Ontario,
September 24, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
EDOUARD EPAMPIA MBO WATO
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 November
17, 2011, finding that the applicant was not a Convention 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, Edouard Epampia Mbo Wato, is a citizen of the Democratic Republic of
the Congo (DRC). He worked for several years as a French language professor
and also worked with the Mennonite Central Committee before starting his own
business in the Equateur Province in 2006. In the course of running his
business he obtained foreign currency from a lender named Hugo Tanzambi. Mr.
Tanzambi, unbeknownst to the applicant, had ties to Jean-Pierre Bemba, leader
of the Mouvement de Liberation du Congo (MLC), the opposition to the ruling
People’s Party for Reconstruction and Democracy (PPRD). Mr. Tanzambi was
assassinated in March 2007 after which people associated with the Equateur Province and with Mr. Tanzambi were suspected of supporting Mr. Bemba.
[3]
The
applicant alleges that he was perceived to be opposed to the ruling regime in
the DRC for the following reasons: he had links to the Equateur region, which
is home to Bemba sympathizers; he belonged to a tribe perceived to align itself
with Bemba supporters; and he had had business dealings with Mr. Tanzambi. He
received threatening phone calls; he was stopped on the street and beaten by
unknown individuals threatening him for his activities. He tried to relocate
but the Special Services found him, keeping him under close surveillance.
[4]
In
late 2009, fearing for his safety, the applicant asked his friends to help him
flee the country. He obtained a new passport in November 2009 and a US visa in December. He fled the DRC on January 21, 2010, transiting through Belgium to the United States. After he left, he learned that he was the subject of a summons from
the National Intelligence Agency, which was notorious for killing those
it detains. The applicant arrived in Canada on April 9, 2010 and claimed
refugee protection.
Decision Under Review
[5]
In
the reasons for its decision, dated November 17, 2011, the Board found that the
determinative issue was credibility, including subjective fear. The Board did
not find the applicant’s allegations credible.
[6]
The
Board found it implausible that the applicant would indebt himself to a man
like Mr. Tanzambi without researching his background and his political ties
given the applicant’s educational background.
[7]
The
Board rejected the applicant’s allegation that he faced a risk due to his
affiliation with the Mennonite church since it was not supported by any
evidence, and if he were targeted for that reason, he would have been targeted
long before the first incident the applicant reported.
[8]
The
Board acknowledged that the applicant belonged to the Inongo tribe,
which is perceived as affiliated with Mongo, one of the tribes considered to be
aligned with Bemba. The Board also acknowledged evidence that perceived Bemba
sympathizers had been brutally attacked and indiscriminately killed in
2006-2008. The Board found based on the latest evidence that, while there was
some harassment, arbitrary arrest and threats against tribes from the Equateur Province in Kinshasa, beyond that there were only isolated reports about persecution
of people from that region.
[9]
The
Board noted discrepancies in the applicant’s recounting of the number of times
he relocated within the DRC, and the dates on which he moved. The Board found
that whichever of those dates were accurate, he clearly did not move because of
the June 2008 beating incident, which the Board further found had not been
shown to be related to political opinion or to have created a subjective fear
of persecution.
[10]
The
Board rejected the two summonses submitted by the applicant on the grounds that
he claimed they were left with his brother, which conflicted with the
documentary evidence that only a subpoena would be left with the person
charged, and also because it was suspicious that the applicant had lived in the
same place for a long period of time, but the authorities did not come to his
house until after he fled the country.
[11]
The
Board also noted that a letter of support from Colonel Bolabolo indicated that
he was the applicant’s brother-in-law, which the applicant had not mentioned at
any point during his testimony. The Board found it highly implausible that the
applicant would not ask for Bolabolo’s help in protecting his family,
especially since they were related.
[12]
The
Board further found that the applicant’s failure to investigate claiming asylum
in the United States undermined his subjective fear, and he did not provide a
reasonable explanation for that failure. The Board concluded at paragraph 47:
In
assessing the totality of the evidence, on a balance of probabilities, I do not
find the claimant’s allegations of persecution based on imputed political
opinion to be credible. As such, his claim fails under sections 96 of the
Act. My credibility findings also extend to Section 97. While I accept that
he was aggressed in June 2008, as I have not found there to be a link to
Tanzambi or Bemba, and given that he remained in that location until at least
mid-2009 without further attacks, on a balance of probabilities, I find that he
does not face a personalized risk of harm in accordance with Section 97. And as
I do not find credible that he is being sought by the state authorities, on a
balance of probabilities, I find he does not face a risk of torture if he
return [sic] to the DRC.
[13]
The
applicant’s claim was therefore refused.
Standard of Review and Issue
[14]
The
only issue raised by the applicant is whether the Board’s decision was
reasonable: Dunsmuir v New Brunswick, 2008 SCC 9.
Analysis
[15]
The
applicant acknowledges that credibility findings are accorded significant deference
upon judicial review and therefore the applicant does not directly impugn the
Board’s credibility findings. The applicant argues, however, that even
accepting the Board’s credibility findings, the Board should have found the
applicant to meet the Convention refugee definition on the basis of his
ethnicity or tribe.
[16]
As
the applicant argues, the Board must consider all grounds for a claim raised by
the evidence: Canada (Attorney General) v Ward, [1993] 2 SCR
689, pp 745-746. The applicant submits that the following findings led
necessarily to the conclusion that he had a well-founded fear of persecution:
- The applicant is perceived as a
member of a tribe from the Equateur Province;
- People from the Equateur Province were the victims of atrocities from 2006-2008, including arbitrary arrest,
indiscriminate killing, and torture; and
- The latest documentary evidence
indicated: “State security forces in Kinshasa sometimes harassed,
arbitrarily arrested, or threatened members of ethnic groups from
Equateur, according to the UNJHRO.”
[17]
Thus,
the applicant argues the Board erred by failing to consider the applicant’s
risk based on his ethnicity or perceived origin from the Equateur Province.
[18]
The
respondent argues that the Board committed no error in this regard, because the
Convention refugee definition is forward-looking, and just because there was
evidence of persecution of people from the Equateur Province from 2006-2008 did
not establish a prospective risk for the applicant. The respondent submits
that the Board considered the most recent evidence and found that despite the
presence of the evidence quoted above regarding Kinshasa, there was no evidence
of targeting of people originating from the Equateur Province.
[19]
In
what is otherwise a thorough and detailed decision, the Board does not, in my
view, rationalize its findings that people from Equateur province are perceived
as members of tribes from that Province, were the victims of atrocities from
2006-2008, including arbitrary arrest, indiscriminate killing, and torture or
the latest documentary evidence indicating that “State security forces in
Kinshasa sometimes harassed, arbitrarily arrested, or threatened members of
ethnic groups from Equateur, according to the UNJHRO.” with its conclusion that
the applicant was not at risk. The reason given, namely “apart from this
evidence” there are only isolated incidents of persecution of persons from
Equateur, does not explain or support the conclusion.
[20]
The
reasons do not explain why the prior findings were set aside or discounted and
as such fail to meet the standard set forth in Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
There is a gap in the reasoning, at a critical juncture, such that it is
unclear as to how and why the conclusion was reached.
[21]
While
this is insufficient to dispose of the application, I note as well that the Board
did not consider or apply the criteria for assessment of whether mistreatment
equates to persecutory conduct under the Convention; it must be serious and it
must be repetitive or systemic: Maksoudian v Canada (Citizenship and
Immigration), 2009 FC 285. Thus, even accepting the evidence was confined
to isolated events, those events need to be assessed through the criteria of
their nature, or severity and frequency.
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. There is no question for certification.
"Donald J.
Rennie"
Email this Content