Date:
20130128
Docket:
IMM-3814-12
Citation:
2013 FC 84
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario,
January 28, 2013
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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GEA MUBENGAIE MALABA
RENA PRISCILLE
MUBENGAIE NSULA
KENAYA CHANAYA
MUBENGAIE MALABA
CHRISTELLE MILC MUBENGAIE
LUFIKA
OBED DLI GEORGE
MUBENGAIE KABAATSUSUIL
GLORY MUBENGAIE
KANDOPO
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Applicants
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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 legality of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the panel) rejecting
the applicants’ claim for refugee protection primarily based on the principal
applicant’s lack of subjective fear.
[2]
The
principal applicant (female applicant) is a citizen of the Democratic Republic
of Congo (DRC), originally from the Eastern province. She is married and is a
mother of five children, including twins (collectively called the applicants). The
primary basis of the refugee claim relies on their belonging to a social group,
the family, and the religious and political opinions of the female applicant
who was actively involved in the Église Armée de la Victoire (the Church) and
its political movement “Save the Congo”.
[3]
After
finishing her studies, the female applicant went to live in Kinshasa; she
became a member and singer at the Church in 1989. At the same time, she is very
active in the [Translation] “Youth
for Christ” section, and in 1999, she got married to a man that she described
in her Personal Information Form (PIF) as a “right-hand man” of Archbishop
Kutino. It will be recalled that he is the founder of the Church and its
political movement. He is an activist and a very visible opponent of the regime
in the DRC and known world-wide. The fact that he was persecuted by the
authorities is not disputed by the respondent.
[4]
From
2002, the female applicant was the announcer of a television program that is
broadcast weekly on the Canal Radio et Télévision Message de Vie (Canal RTMV)
station. The station’s studios were located in the chambers of the Church. In
fact, Canal RTMV is a private station closely associated with archbishop Kutino
and his political movement. The television station is focused on [Translation] “guiding youth in God’s way
of thinking”.
[5]
At
the beginning of June 2003, the female applicant was made responsible for
mobilizing the province of Kinshasa for activities organized by the Church at
the Tata Raphaël stadium in Kinchasa. Archbishop Kutino then publicly
criticized the political situation in his country and the Minister of the Interior
accused him of inciting the masses. On June 10, 2003, during the General Assembly
of Save the Congo, two men came out of the crowd and ordered one of the
archbishops of the Church, who was in the middle of a speech, to give them the microphone.
Then the crowd was brutally dispersed by the police. Several participants were
arrested, beaten and brought to unknown destinations. A general panic followed
during which the female applicant attempted to flee by climbing a wall, but she
fell on some bricks and seriously injured herself.
[6]
In
the wake of this incident, law enforcement officers took over the property of
the Mission Mondiale Message de Vie de l’Église and ransacked the studios of
Canal RTMV. Some time afterward, the police arrested the female applicant and
other [Translation] “members and
servants of God” of the Church to bring them to the Kasa-Vubu police station. By
chance, while in detention, the female applicant received help from the brother
of a family friend that she knew and who is a major in the police. Around the
end of the afternoon she was evacuated from the police station, under the pretext
of receiving outside treatment. Two officers, appointed by the major known by the
female applicant, drove the female applicant to her maternal uncle’s home in
Kinsuka. That same night, the female applicant and her husband crossed the
river to get to Brazzaville, the capital of the Republic of the Congo (Congo-Brazzaville).
[7]
During
six years or so, the applicants lived in safety in Congo-Brazzaville and were
left alone by the authorities. Unfortunately, the climate changed drastically
after a visit of the new president Kabila to Congo-Brazzaville. Around the end
of August and the beginning of September 2009, DRC nationals in Brazzaville
were sought out and persecuted by the authorities because they now wanted to
remove them from the DRC. The return of illegal nationals from the DRC to
Congo-Brazzaville is not disputed. The applicants’ fear of return is real. In
fact, the female applicant related that during an attack, police officers
entered her residence to arrest her while she was alone with her children; she
hid in the ceiling.
[8]
Following
this incident, the applicants went to hide in the north of Brazzaville, while waiting
to obtain visas for the United States. The female applicant was resolved to
come to Canada, since several members of her husband’s family already live in
Montréal, where French is spoken, a language that the female applicant can
understand. On February 21, 2010, the female applicant and the twins arrived
in the United States with their Congolese passports and on May 22, 2010, they
crossed the border with the help of a smuggler who took all their travel documents.
[9]
The
female applicant was afraid of being imprisoned on arriving in Canada and she
wanted to stay with her young children. That is how she explained her delay of
one month in claiming refugee status in Canada. However, on June 28, 2010,
the female applicant claimed refugee status after she obtained new
identification documents for herself and the twins. To join her and to escape
the situation in the DRC and in Congo-Brazzaville, the female applicant’s three
other children arrived in Canada two months later, on August 16, 2010. However,
the female applicant’s husband decided to stay in Congo-Brazzaville because of
his involvement with Archbishop Kutino.
[10]
The
refugee claim was rejected. In short, if I summarize the essence of the panel’s
reasoning, it first alleged that the female applicant spent around seven years
in Congo-Brazzaville without ever claiming state protection. The panel also
alleged that the female applicant did not claim the protection of the American authorities
during the three months when she stayed in the United States and that she waited
an additional month before claiming refugee status in Canada. The panel found
that the female applicant “is not credible with respect
to her subjective fear”,
while “[her] behaviour invalidates the claimant’s fear with respect to her
country of origin”. Regarding the passage, the panel did not find credible
the incident of June 10, 2003, when the female applicant said that she was
arrested, held and then driven to her uncle’s home. The panel also pointed out
the ambiguity of the version of the facts given by the female applicant with
respect to her travel documents and her long trip between New York and Montréal.
[11]
While
I agree with the respondent that the panel is generally in a better position
than the Court to determine whether a refugee claimant is compatible with the existence
of a well-founded fear of persecution, the Court must also still be satisfied
that the panel has considered all of the evidence in the record (Touré v Canada
(Citizenship and Immigration), 2012 FC 773, at para 55). Thus, the
long delay in making a claim must not be a pretext and is not in itself
sufficient to reject a refugee claim without reviewing the other facts in the
record. It should be remembered that the assessment of the fear of persecution
is always forward-looking and there may be a new risk or a personalized risk
even though the refugee claimant has not claimed state protection sooner.
[12]
At
the risk of repeating myself, it seems dangerous to base the rejection of a
claim on the fact that the refugee claimant did not claim protection as soon as
he or she had the opportunity. More recently, the following warning can be
found in Ramos v Canada (Citizenship and Immigration), 2011 FC 15,
at para 28, [2011] FCJ No 24:
In addition, the RPD’s conclusion that the
Applicants’ failure to claim asylum at the earliest opportunity (that is, in
the U.S.) indicates their lack of subjective fear is contrary to Federal Court
of Appeal jurisprudence, which says that a board may consider this factor in
assessing subjective fear, provided it is not the only evidence upon which
the board relies. See Hue v Canada (Minister of Employment and
Immigration), [1988] FCJ No. 283 (FCA) (Hue).
[Emphasis
added.]
[13]
It
should be remembered that in Hue, quoted above by the Court, following
an attempted coup in the Seychelles Islands in 1981, the refugee claimant, who
had worked for a political party for years, had been arrested and beaten by
police. He succeeded in fleeing after he was taken to the hospital. He had then
left his country in 1981 to go to Greece, where he had been hired as a seaman
on a ship. Five years later, he made a refugee claim in Canada, on the basis of
membership in a political party. His claim was rejected because he had not made
his claim in Greece in 1981 “This, for the Board, would show that the Appellant’s
fear was not real and that his contention to that effect, his having waited so
long before making it, was not credible” (at para 3).
[14]
The
application for judicial review was allowed. Paragraph 4 of the judgment of the
Federal Court of Appeal rendered by Marceau J. reads:
While we do not dispute that the delay in making a
claim for refugee status may be an important factor to take into consideration
in trying to assess the seriousness of an applicant’s contentions, we
disagree completely with the Board’s reasoning in the present case. It seems to
us obvious that the Applicant’s fear is in relation to his having to return to
the Seychelles and as long as he had his sailor’s papers and a ship to sail on,
he did not have to seek protection.
[Emphasis
added.]
[15]
Further,
before making a finding of lack of subjective fear, the panel must consider any
explanation provided by the refugee claimant about the causes of the delay in
requesting state protection and it cannot, at the same time, arbitrarily set
aside any reasonable explanation in that case (Pulido Ruiz v Canada (Minister
of Citizenship and Immigration), 2012 FC 258, at para 57, 217 ACWS
(3d) 674; Correira v Canada (Minister of Citizenship and Immigration),
2005 FC 1060, at para 28, 2005 FCJ No 1310; Hue, at para 4).
[16]
The
panel’s overall reasoning is based on an overview—a very superficial one in
fact—of certain peripheral events that occurred after the incident of June 10,
2003, i.e. after the female applicant and her family fled the DRC to go
to Congo-Brazzaville. I find that this approach is not reasonable in the circumstances,
while the panel gave undue importance to the details of the female applicant’s
trip to Canada and to the fact that she did not request protection sooner.
[17]
Further,
the panel is clearly unconcerned with the female applicant’s personalized fear,
while the departure from Congo-Brazzaville in 2009 was precisely precipitated
because the female applicant, who had always felt safe there, did not want to
be deported back to the DRC. It is unfortunate that, under the cover of the
long delay in claiming protection, the panel did not address the true elements that
form the basis of the fear of persecution and the return to DRC with respect to
the events that took place in the DRC relating to nationals that may have the female
applicant’s profile.
[18]
In
fact, the specific events that caused the female applicant’s departure from the
DRC in 2003 – the brutality of the repression directed against the supporters
of the Church and its political movement – were only mentioned once and only to
point out the panel’s scepticism with respect to her arrest: “The panel finds it odd, to say the least, that the claimant had been
arrested by the authorities of her country and that those same authorities made
the effort to drive her to a family member’s home”. However, when we
look at the female applicant’s testimony on this question of fact, the
explanations provided in great detail are much more nuanced, which warranted
the panel’s consideration if it wished to draw a negative inference. Therefore,
the gratuitous questioning of the panel appears to me to be inappropriate,
especially since the panel did not explicitly dispute the credibility of the
evidence submitted to it (Kika v Canada (Citizenship and Immigration),
2011 FC 1039, at para 14).
[19]
The
panel also did not bother to comment on the numerous pieces of evidence that
nevertheless corroborated the female applicant’s account of persecution and
fear of returning to her country, which is a reviewable error in this case (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), (1998) 157 FTR
35 (FCTD), 157 FTR 35; Miranda Ramos v Canada (Citizenship and
Immigration), 2011 FC 298, [2011] FCJ No 422; and Nyota v Canada (Citizenship
and Immigration), 2011 FC 675, 391 FTR 108).
[20]
For
example, the panel did not mention the letter dated March 9, 2011, from a close
collaborator of archbishop Kutino, which explained that the DRC’s security
services were searching for the female applicant and her husband. This same
letter explains that the members of the Church are still subjected to threats.
[21]
I
also note that the panel failed to consider another letter, dated March 11,
2011, from the General Coordinator of Canal RTMV, who characterized the female
applicant’s active role in the “Save the Congo” movement as host of the program
“Carrefour des jeunes”. This letter also provides explanations with respect to
the extra-judicial proceedings by DRC intelligence forces. This letter
corroborates the fact that the female applicant left the DRC for
Congo-Brazzaville to escape this kind of persecution.
[22]
Another
letter dated March 6, 2011, described the manhunt of DRC nationals in
Congo-Brazzaville prior to the female applicant’s departure for the United
States. The author of this letter also stated that he was responsible for the
female applicant’s three children until they left to join their mother.
[23]
Another
example of omission is in the failure to consider this letter dated April 5,
2011, which highlighted the most visible roles of the female applicant in her
involvement with “Save the Congo”. The female applicant argued that this letter
was especially important in confirming the dangers that still exist in the DRC
for her and her family.
[24]
In
its written memorandum, the respondent essentially submitted that the long
delay in filing the claim was in itself sufficient to reject the refugee claim,
and that, in any case, there is a presumption that [Translation] “the panel listened carefully to all of the
evidence before making its findings and the fact that it did not mention one
element does not indicate that it did not consider it”.
[25]
At
the hearing before this Court, the respondent’s learned counsel repeated this
rather generic argument. I say “generic” because the respondent did not
specifically respond to the applicant’s allegations. That being said, the
respondent agrees that a distinction must be made between a behaviour that is
inconsistent with a well-founded fear of persecution (which may be presumed
from a lengthy delay in making a claim) and whether the applicant’s account of
persecution is credible or not.
[26]
In
this case, on the question of the female applicant’s credibility, it seems that
the panel gave the female applicant the benefit of the doubt. And therein lies
the problem, because without a serious analysis of the evidence of personalized
persecution of the female applicant and the risks that a person with the female
applicant’s profile may encounter upon returning, the rejection of the refugee
claim does not seem to me to be an acceptable outcome in respect of the facts
and law.
[27]
For
these reasons, this application for judicial review will be granted. The decision
will be set aside and the matter will be referred back to a differently
constituted panel for reconsideration. There is no
question of general importance to be certified.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review
is allowed. The
panel’s decision is set aside and the matter is referred back to the
Immigration and Refugee Board for redetermination of the female applicant’s
refugee claim before a different member of the Refugee Protection Division. There
is no question for certification.
“Luc Martineau”
Certified true
translation
Catherine Jones,
Translator
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