Docket: IMM-5915-13
Citation:
2014 FC 925
Montréal, Quebec, September 30, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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THIERRY MAKUZA
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review of
the June 18, 2013 decision (the Decision) of the Refugee Protection Division of
the Immigration and Refugee Board (the RPD) finding the Applicant to be neither
a Convention refugee nor a person in need of protection under sections 96 or 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA).
[2]
For the reasons provided below, I grant the
application and set aside the Decision.
II.
Facts
[3]
The Applicant is a 27-year-old man from Congo. He is a member of the Banyamulenge community, an ethnic minority community who
originate from Eastern Congo, near Rwanda.
[4]
Though they have lived in what is now Congo for
a considerable period of time, the Banyamulenge are often considered by other
Congolese as outsiders because they speak a language that is similar to those
spoken in Rwanda and Burundi, and because their ancestors (prior to the 19th
century) originally came from elsewhere. The Banyamulenge are sometimes called
Congolese Tutsis because many are closely related to Tutsis in Rwanda. The Banyamulenge find themselves in present-day Congo because of the way national
boundaries were drawn by colonial powers in the 19th century.
[5]
There is a history of attacks and persecution
against the Banyamulenge by the Government of the Congo and by other ethnic
groups since the 1960s.
[6]
The Applicant claims that his brother was killed
by a Hutu militia in 1996. He also claims that another brother and other family
members were killed in 2004 in other massacres.
[7]
The Applicant began attending university in Rwanda in 2005. He claims that he joined an organisation called INKINGI plate forme
(INKINGI), which advocates for the safe return to Congo of Banyamulenge
refugees in other countries.
[8]
The Applicant also claims that on a trip home to
Congo on December 24, 2007, he was arrested by Congolese police after being
identified as a Banyamulenge and then imprisoned with a number of other
Banyamulenge, then interrogated and tortured over a period of 10 days until he
was released.
[9]
After his release, the Applicant returned to
school in Rwanda and completed his education. He returned to Congo thereafter to help his mother on the family farm.
[10]
The Applicant also claims that on February 5,
2011, he was arrested again, this time by the Congolese military, while
attending a meeting of INKINGI. This time he was held for 17 days during
which he was tortured, left hungry and otherwise mistreated and subjected to
violence.
[11]
Following his release from this second arrest,
the Applicant claims he went into hiding and escaped to neighbouring Burundi. From there, he fled to Canada, arriving in Montreal on March 2, 2011. He claimed
asylum in Ottawa on March 4, 2011.
III.
Decision Under Review
[12]
The Applicant’s hearing before the RPD took
place on June 11, 2013, and, as indicated above, the RPD’s Decision was
rendered on June 18, 2013.
[13]
The RPD accepted the Applicant’s identity.
Importantly, this also appears to include an acceptance that the Applicant is
indeed a member of the Banyamulenge community.
[14]
The bulk of the Decision is devoted to noting a
series of assertions made by the Applicant which the RPD finds not credible.
For reasons provided in the Decision, the RPD does not believe that:
- The Applicant
was an active member of INKINGI;
- The Applicant
was arrested on February 5, 2011 at a meeting of INKINGI;
- The Applicant
came to Canada from Burundi as he described;
- The Applicant was arrested on December 24, 2007.
[15]
The Decision is also notable for its silence on
the relevance of the Applicant’s status as a Banyamulenge to his application
for asylum.
IV.
Issues
[16]
The Applicant challenges the reasonableness of
the findings of a lack of credibility in the Decision. He also asserts that the
RPD erred in failing to consider whether, aside from any involvement in
INKINGI, the Applicant’s status as a Banyamulenge in Congo was sufficient to
qualify him as a Convention refugee or a person in need of protection under
sections 96 or 97 of the IRPA.
[17]
Because of my findings, it is not necessary for
me to consider the reasonableness of the findings of a lack of credibility.
[18]
The issue addressed in this decision is whether
the RPD erred in failing to consider the Applicant’s status as a Banyamulenge
in Congo.
[19]
Normally, the RPD’s assessment of the evidence
before it is a matter of fact or of mixed fact and law, and therefore is
reviewable by this Court on a standard of reasonableness. To the extent that
there is evidence that is relevant but has not been considered by the RPD, this
may indicate an unreasonable conclusion by the RPD.
V.
Analysis
[20]
As indicated above, the Applicant asserts that
his status as a Banyamulenge from Congo (which does not appear to be disputed)
is sufficient, by itself, to qualify him for asylum in Canada. The Applicant refers to a number of references that speak of the persecution and
dangers faced by members of the Banyamulenge community in Congo.
[21]
Mauro de Lorenzo is an expert on the
Banyamulenge community of Eastern Congo. His Affidavit dated June 6, 2013, in
this matter indicates that the Applicant is a member of that community. The
Affidavit also sets out a history of the Banyamulenge as well as some detail of
the persecution suffered by that community since at least the 1960s.
[22]
The Applicant also refers to a 2012 publication
by UBUNTU – Initiative for Peace and Development on the “Security Situation of
the Banyamulenge in the D.R. Congo” entitled “Information note on the security
situation of the Banyamulenge and other Tutsi Congolese in the Democratic
Republic of Congo”. This publication provides a detailed account of the history
that created the current security situation for Banyamulenge in Congo. It also discusses the current security situation in some detail.
[23]
In the Decision, the RPD never refers to either
of these documents, or indeed any of the other evidence concerning the security
situation in general of Banyamulenge in Congo. In fact, it appears that the RPD
never considered this issue.
[24]
The findings of a lack of credibility in the
Decision are mainly related to the Applicant’s assertion of involvement in
INKINGI. None of these findings appears to concern the situation faced by the
Applicant as a member of the Banyamulenge community.
[25]
There may or may not be evidence suggesting that
members of the Banyamulenge community in Congo do not face persecution and are
not in need of protection, but the Applicant was certainly entitled to have all
of the evidence on the issue carefully considered, and for reasons to be
provided if the RPD determined that the evidence of persecution was insufficient
or inadequate. In my view, that consideration was not done in this case, and no
reasons for preferring other evidence was provided. The Decision is
unreasonable in that respect.
VI.
Conclusions
[26]
This application for judicial review should be
granted, and the Decision set aside.
[27]
The parties have not proposed a question for
certification. I do not find that the facts in this case warrant the
certification of a question for appeal.
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