Date:
20130611
Docket:
IMM-9696-12
Citation:
2013 FC 635
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, June 11, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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EDOUARD KASEREKA
KISONI
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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
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Protection Board, rendered on August 22,
2012, in which it was decided that the applicant was not a Convention refugee
or a person in need of protection within the meaning of section 96 and
subsection 97(1) respectively, of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act). The applicant claims that the RPD
erred in its assessment of the credibility of his story and in the assessment
of his fear of returning as a sur place refugee because of the political
activities that he led against the Congolese government since he was in Canada.
II. Facts
[2]
The
applicant, Edouard Kasereka Kisoni, citizen of the Democratic Republic of the
Congo (DRC), is married and has seven children, is a research officer at
the university, an economist by training, and works at the ministry of
post, telephone and telecommunications (MPTT) in DRC. He alleged that he
fears the security services and the police in DRC because of his union and
political activities.
[3]
In
fact, the applicant’s problems apparently started when he became a unionist in
1997 and then when he joined the Union for Democracy and Social Progress (UDPS)
party in 2005.
[4]
The
applicant alleged that he was arrested twice in the DRC, on June 2, 2000,
and June 25, 2003. In June 2, 2000, he had apparently been arrested
by security services for participating in creating the union of Société Telecel
where he was employed as department head. He then apparently was released under
threat of being killed if he did not cease his union demands. On June 25,
2003, the applicant was apparently arrested by the national police for
participating in a strike to protest against the massive layoff of a number of
Telecel workers. He was released because of his union’s influence with the
authorities.
[5]
Between
2004 and 2005, the applicant apparently worked for a project financed by the
international community and by the Congolese government under the supervision
of the Ministry of Planning. This project consisted in addressing poverty in the
DRC. He was sent to France in 2005 and it was thus by meeting the UDPS
sympathizers during this trip that he chose to become a member of this party.
[6]
In
March 2008, the applicant was hired on at the MPTT. His work consisted in
analyzing records and reporting directly to the ministry. The applicant alleged
that, in working at the MPTT, he lived in fear because all his colleagues [Translation] “wore the colours of the
party in power”.
[7]
In
January 2009, a protest memo from the UDPS that the applicant had kept disappeared
from a drawer in his office and was submitted to the chief of staff of the
MPTT. This memo allegedly criticized the government’s decision to form a
coalition force composed of elements of the Armed Forces of the DRC and the
National Congress for the Defence of the People to fight the Democratic Forces
for the Liberation of Rwanda, an armed group formed in DRC to defend the
interests of Rwandan refugees.
[8]
The
applicant alleged that on February 28, 2009, he was arrested by two police
officers from the Rapid Intervention Police. He alleged that he was detained,
intimidated and threatened with death and that he was then told that he was on
the black list. One of the police officers apparently then told the applicant
that he [Translation] “might die
young”. The applicant was able to escape and sought refuge in a nightclub so he
could go home the next morning.
[9]
Following
this incident, the applicant continued to work at the MPTT. It was at the same
time that he learned that a conference that interested him was being organized
in the United States from March 27 to 29, 2009. The applicant alleged that
he obtained a visa to attend the conference. He alleged that on March 27,
2009, his passport was held at the airport and that he was not able to leave
the DRC until the next day.
[10]
The
applicant alleged that when he was in the United States, his spouse informed
him that Mai Mai rebels were looking for him with respect to his grandparents’
land grants, that the rebels had threatened her and that his work colleague who
had similar duties had disappeared.
[11]
On
April 7 and 8, 2009, the applicant sought a Canadian visa. He arrived in
Canada on May 18, 2009, and immediately claimed refugee protection.
[12]
Since
he has been in Canada, the applicant apparently participated in several
protests against the Congolese president held in Montréal, Quebec and Ottawa.
III. Decision under judicial
review
[13]
On
August 22, 2012, the RPD rejected the refugee claim, finding that the
applicant’s credibility was undermined because of several gaps and
inconsistencies in his testimony.
[14]
The
RPD did not believe several aspects of the applicant’s allegations. First, the
RPD did not believe that the applicant could have left the DRC with his own
identity and passport when he claimed to fear the state security services and
the police and that, further, he was arrested at the airport the day before his
departure.
[15]
As
for the applicant’s union involvement, the RPD found that the applicant had no
fear of returning since he had had no problems for this reason since 2003. According
to the applicant, the company offshored its work and the union’s activity
decreased; which, according to the RPD, affects the applicant’s objective fear.
Further, questioned by the RPD as to why no charges had been laid against him
at the time of his arrest in June 2000, although he had been detained,
undressed, searched and placed in a cell, the applicant stated that he presumed
that he had been arrested because of his union activities. In fact, the
applicant stated that, although his employer was a private company, the state
often places its security officers in companies where it is involved as a hidden
shareholder.
Further, the RPD explained that the applicant was unable to describe in detail
the problems he had with the Congolese authorities because of his union
activities while he was working for Telecel.
[16]
As
for his political involvement as part of the UDPS, the RPD noted that the
applicant could not adequately explain what problems he encountered because of
his membership in the UDPS except to state that his work contract with the ministry
of planning was
not extended and that 10% of his salary was withheld at the source and went to
the governing party while he was working for the MPTT. Further, the RPD did not
believe that the applicant could have been so careless as to leave such a
compromising memo lying around that he described it being in his drawer when he
worked for the MPTT and supported the UDPS. The RPD rejected the applicant’s
explanation that he could not keep this memo anywhere other than in his desk,
because the documents that accompanied it were too bulky.
[17]
The
RPD found that it was not credible that the applicant could have continued to
work for the MPTT following his arrest in February 2009 since, according to
him, the Minister had not been informed of it by her chief of staff, and he
even had to continue his job as a research officer in this ministry
without ever being approached about this topic.
[18]
In
addition, the RPD found that the applicant’s behaviour was inconsistent with
the existence of a subjective fear since he did not request protection at the
first opportunity in France or in the United states before coming to Canada.
[19]
Finally,
the RPD found that the applicant had not succeeded in establishing that there
was a risk of return for him as a member of the UDPS (a party that won 48% of
the votes in the last elections), by the mere fact that he had allegedly been
active abroad.
IV. Issues
[20]
(1)
Did the RPD err in its assessment of the applicant’s credibility?
(2)
Did the RPD commit an error in its assessment of the applicant’s fear of
returning as a sur place refugee within the meaning of
subsection 97(1) of the IRPA, because of his political activities in
Canada?
V. Standard of review
[21]
These
are determinations of fact or questions of mixed fact and law, which are
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para 47; Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 59;
Earl v Canada (Minister of Citizenship and Immigration), 2011 FC
312, at para 16).
VI. Analysis
(1) Did the
RPD err in its assessment of the applicant’s credibility?
[22]
The
applicant acknowledged that his union activities date back several years and
that he did not seek to leave his country before his arrest of
February 2009 because of his political activities. However, he submits
that the RPD erred in dwelling on the details of the application rather than on
the true basis of the applicant’s fear. With respect, the Court cannot allow
this argument.
[23]
The
applicant alleges that the memo in which he had criticized the government’s
actions was given to the chief of staff, who read the document in the applicant’s
presence and then gave it back to him without making a copy or sharing it with
the Minister. The applicant claimed that the RPD rejected this allegation on
the basis of pure speculation. However, on reading the RPD reasons, it is clear
that it did not find that the applicant’s fear was objectively well-founded
because not only was the report given back to him, but also the Minister was
never informed of it and the applicant had no problem continuing to work for
the MPTT. This finding is reasonable, the determinative point being that the
incidents alleged by the applicant still had no consequence for him, either to
his job or his personal safety, until he left his country.
[24]
The
applicant submitted that the RPD did not consider his explanation that he had
been arrested at the airport when he was leaving for the United States and that
he had paid a person who worked at the airport so that he could leave the
country. It is true that the RPD did not refer to this explanation in its
reasons. However, given all of the reasons and in particular the fact that the
applicant did not succeed in establishing that his objective and subjective
fear were well-founded, a finding that the applicant had also not disputed in
his written submissions, this argument is insufficient to make the decision
under review unreasonable.
[25]
The
Court found that the RPD did not err in its assessment of the credibility of
the various aspects of the applicant’s claim.
(2) Did the RPD
commit an error in its assessment of the applicant’s fear of returning as a sur
place refugee within the meaning of subsection 97(1) of the IRPA,
because of his political activities in Canada?
[26]
The
applicant submitted that the RPD had not considered the problems that it could
be exposed to if he were to return to the DRC because of activities that he
publically led in Canada against the Kabila government. He claims that the RPD
erred in limiting itself to the documentary evidence that the applicant had
submitted to it the day of the hearing, without analyzing the objective
evidence in the package with respect to the treatment of the opposition members
and persons who oppose the Kabila government overseas.
[27]
First,
the exhibit filed by the applicant established that Étienne Tshisekedi, UDPS
president,
was arrested and detained for a few hours in the offices of the Agence
nationale de renseignement when he was getting ready to leave the DRC during
the recent elections. He was then released, but the applicant was basing
himself on this document to establish that the situation would be worse for the
party’s simple members. The RPD reasonably dismissed this argument on the
ground that the UDPS is an opposition party with 48% of the votes at the last
elections.
[28]
The
applicant referred to excerpts drawn from three documents of the evidence in
the package that did not contradict the RPD’s finding that nothing shows that a
member who is a UDPS activist would not be a sur place refugee because
of the mere fact of his membership and political activities in support of his
party outside the DRC. In sum, these documents instead indicate that the
Congolese authorities apparently systematically refused to allow opponents to
organize public protests, that the government does not authorize opposing
political parties and independent civil society organizations to hold peaceful
protests and that 30 members of the UDPS present at a meeting organized in
Kinshasa in September 2010 had allegedly been arrested and detained
arbitrarily (National Documentation Package of June 8, 2012 (CND), tab
4.6: COD103712.FE).
[29]
Another
document cited by the applicant, a report from March 2012 of the UN
Organization Stabilization Mission in the Democratic Republic of the Congo and
Office of the High Commissioner for Human Rights (CND, tab 4.17), describes the
tensions linked to the lack of transparency and the inconsistencies in the
electoral process during the last elections of 2011, by stating in an
investigation:
… documented the arrest of at least 265 civilians,
most of whom have been detained illegally and/or arbitrarily, mainly due to
their real or alleged affiliation to a political opposition party or for coming
from Mr. Etienne Tshisekedi’s home province or to other provinces where he
enjoys significant support. These human rights violations were attributed
mainly to elements of the Garde républicaine (GR), officers of the National
Congolese Police (PNC) and its specialized units, such as the Légion nationale
d’intervention (LENI), the criminal investigation brigade and the Groupe mobile
d’intervention (GMI), and to a lesser extent, to soldiers of the Armed Forces
of the Democratic Republic of the Congo (FARDC) not belonging to the GR. Moreover,
agents of the National Intelligence Agency (ANR) were also allegedly
responsible for several cases of arbitrary arrest and illegal detention.
[30]
Finally,
the applicant quoted an excerpt of the report of June 30, 2009, by the
United Kingdom’s Home Office that reported cases of arrest and imprisonment for
political reasons despite the fact that the political parties were able to
operate most of the time without restriction or outside interference (CND, tab
2.5, at para 16.05-16.06 and 18.05-18.06).
[31]
None
of these documents shows the relevance and probative value required from
evidence supposedly ignored by the RPD, to refute the presumption that the RPD
considered all of the evidence submitted to it (Ferraro v Canada (Minister
of Citizenship and Immigration), 2011 FC 801, at para 17; Florea v
Canada (Minister of Employment and Immigration), [1993] FCJ No 598
(FCA)).
VII. Conclusion
[32]
For
all the foregoing reasons, the application for judicial review is dismissed. The
Court is of the opinion that the impugned decision is not unreasonable and does
not fall outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” (Dunsmuir, above, at
para 47).
JUDGMENT
THE
COURT ORDERS that the applicant’s application for judicial
review be dismissed without any question of general importance to certify.
“Michel M.J. Shore”
Certified true
translation
Catherine Jones,
Translator
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