Date:
20120926
Docket:
IMM-5531-11
Citation:
2012 FC 1137
Ottawa, Ontario,
September 26, 2012
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
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PASCAL ERIC PATCHELLI GATALI
BOUKAKA
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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
and background facts
[1]
The
applicant, Pascal Boukaka, is a citizen of the Democratic Republic of the
Congo (DROC) whose refugee claim was refused on July 21, 2011 by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the RPD or
the Tribunal).
[2]
This
judicial review challenges that decision. The Tribunal found the applicant had
largely provided credible evidence but because of developments subsequent to
his fleeing the DROC on July 18, 2008 and arriving in Canada, a month later, his agent of persecution, the Government of the DROC would no longer have any
interest in persecuting him because of his political opinions.
[3]
The
central question in this judicial review is whether the RPD ignored or
misrepresented the evidence he advanced. That evidence was since he had
escaped from detention, the December 2008 declaration by the Minister of
Justice of the DROC that all individuals who had been arrested following the July
7, 2008 demonstration would be set free without undergoing a trial. The
document evidence shows that on December 18, 2008 at least 35 detainees
were so freed.
II. The facts
[4]
On
July 7, 2008 the applicant was one of several youths arrested during a
spontaneous anti-government manifestation which ignited at the funeral of the
founder of the political party known as Le Rassemblement pour la démocratie et
le progrès social (RDPS).
[5]
He
told the Tribunal he had not participated in politics in the DROC before that
demonstration. He testified he was interrogated and abused by the police but
was set free on July 18, 2008 after his uncle bribed a police officer
who told Mr. Boukaka his life was in danger as some 30 detainees had been taken
away and had been executed. Financed by his uncle, he fled the next day
arriving in Canada on August 5, 2008 having travelled through Angola, South Africa and the UK.
III. The
Tribunal’s decision
[6]
Based
on a report from Amnesty International, the Tribunal was satisfied the
demonstration had occurred and the applicant had been arrested. In terms of
the number of young people arrested, their treatment upon incarceration and the
number of persons killed, the Tribunal preferred the Amnesty report over the
testimony of the applicant.
[7]
The
determining factor in the Tribunal’s decision is the fact Amnesty International
reported all rioters were freed in December 2008 as a result of protests from
opposition parties and human rights activists. The Minister of Justice also
stated the persons freed would not be prosecuted.
[8]
According
to the Tribunal the objective evidence confirms the applicant would not be
accused and charged should he return to DROC and that the applicant had failed
to establish the existence of a serious possibility of his being persecuted for
any reason set out in section 96 of the Immigration and Refugee Protection
Act, SC 2001,
c 27
(IRPA),
nor would he be exposed to any of the dangers set out in section 97 of that
Act.
IV. The
position of the parties
[9]
Counsel
for the applicant submits the Tribunal ignored crucial evidence advanced by the
applicant.
[10]
First,
the Tribunal ignored the following evidence in the applicant’s testimony
(Transcript p. 33):
Donc, ce que vous me dites c’est que vous ne savez
pas si la police vous rechercher toujours.
Mais, la police me recherche toujours parce que
d’abord 1), moi je me suis sauvé; et de 2), le problème n’est pas encore fini.
Donc, je me dis que si je repartais aujourd’hui, mais je serais arrêté, vous
voyez?
Donc, c’est la raison pour laquelle que j’étais
parti de là parce que j’ai fui de la prison et pour eux, une personne qui est
en prison, vu les tortures, vu tout ce que j’ai vécu, je suis parti de là mais
je suis un élément dangereux. Je peux aller n’importe où et publié. Dans un
plan, vous avez lu les lettres que le ONG on écrit. Moi aussi, je pouvais
aller voir un ONG pour dire la vérité, ce que moi j’avais vécu.
[Emphasis added]
[11]
Secondly,
the Tribunal ignored two letters which were entered in the record : one
from the applicant’s wife and the other from the applicant’s uncle. Both
report that after the applicant had escaped from prison the police, over a
period of several weeks, came to their homes (located in different cities) in
search of the applicant’s whereabouts.
[12]
Third,
the applicant also testified about the police visiting his home in search of
him (Transcript pp. 139 – 142) and in particular, the fact his wife fled the
capital of Brazzaville where they lived to go into hiding at her uncle’s home.
[13]
Fourth,
the applicant’s fear must be analyzed against the human rights record of the
DROC (see UNHCR’s 2009 Country Report on Human Rights Practices – Republic of
the Congo, Applicant’s Record, pp. 28-43).
[14]
Counsel
for the respondent argues the following points:
a. The record does
not indicate there was evidence to support the allegation he would be
persecuted as an “escapee” if he returns to the DROC.
b. The record does
not indicate the applicant argued before the Tribunal he would be persecuted
for this reason.
V. Conclusions
[15]
This
judicial review application must be allowed for the following reasons.
[16]
First,
while not argued by the parties, the standard of review of correctness in the
light of section 18.1.4(d) which provides that a ground for intervention is if
a tribunal decision is based on a finding reached without regard to the
material before it. In my view this is the case before me. There was evidence
before the Tribunal the applicant escaped from custody with the payment of a
bribe by his uncle; the interest of the police in him was supported by the
letters from his wife and his uncle; and the matter was argued before the
Tribunal.
[17]
It
is clear the Tribunal did not consider relevant evidence which, if believed,
would have a material impact on the decision.
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.
“François Lemieux”
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