Date: 19981229
Docket: IMM-688-98
OTTAWA, ONTARIO, THE 29th DAY OF DECEMBER 1998
Present: MR. JUSTICE J.E. DUBÉ
Between:
ESPÉRANCE KALENGA
and GUANI KALENGA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
J.E. DUBÉ
Judge
Certified true translation
Peter Douglas
Date: 19981229
Docket: IMM-688-98
Between:
ESPÉRANCE KALENGA
and GUANI KALENGA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application under section 82.1 of the Immigration Act1 for leave to commence an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel), dated January 16, 1998, determining that both applicants are not Convention refugees.
1. Facts
[2] The applicants are two sisters, born in Kinshasa on December 18, 1977, and January 1, 1979, respectively. They are citizens of the Democratic Republic of the Congo (DRC) (formerly Zaire). Their subjective fears of persecution are based on the risk they might be perceived as being associated with Rwandans and Hutus. Their maternal grandfather and their stepfather (their biological father died in 1980) were Hutus of Rwandan nationality. According to their testimony, everyone in their neighbourhood knew the applicants were Hutus of Rwandan nationality. In addition, one of the two applicants says she has the distinctive physical features of Rwandan Hutus.
[3] The applicants say they lived peacefully in Kinshasa until the civil war broke out in the fall of 1996. On December 12, 1996, soldiers forced their way into their house in Kinshasa, beat their stepfather and took him with them. Their mother was also abducted on February 25, 1997, and their house was ransacked.
[4] The applicants managed to get out of Kinshasa by small boat on March 17, 1997. They came to Canada via the Congo and France on March 26, 1997, and claimed refugee status the next day. To date, the applicants have no news of their parents.
2. Decision
[5] The panel identified the problem in the following way:[TRANSLATION] . . . The issue in this case is whether people associated with foreigners, Rwandans or Hutus are victims of acts constituting persecution at the hands of the people of the DRC.
[6] The panel based its decision on the documentation before it, which it summarized in the following way:[TRANSLATION] The documentation before us in this case shows that during the civil war from October 1996 to May 1997 that led to the overthrow of former President Mobutu"s regime, Rwandans had difficulties in the DRC. On one side, armed forces loyal to former President Mobutu were inclined to mistreat Tutsis, both Congolese and Rwandan, suspecting them of supporting the rebels, and on the other side, rebel troops loyal to President Kabila and supported by the Rwandan Tutsis mistreated Hutus, particularly Hutu refugees who had fled to the eastern DRC in 1994.2 We note in this regard that the claimants" stepfather and mother were arrested in Kinshasa by soldiers of the former regime during the civil war that led to the fall of that regime. Furthermore, the documentation shows that Hutus who fled Rwanda in 1994 and sought refuge in the eastern DRC are still having problems in the eastern DRC .3 Last, the documentation shows that there is currently some resentment among Congolese people toward Rwandans, particularly toward Rwandan Tutsis because of the very great influence they are considered to have on the government of the DRC.4 Moreover, the documentation does not suggest that foreigners are victims of acts constituting persecution in the DRC, nor does it show that Rwandans or Hutus are victims of acts constituting persecution elsewhere than in the eastern DRC. The documentation does not, of course, suggest that people merely associated with foreigners, Rwandans or Hutus are victims of acts constituting persecution in the DRC, except perhaps in the eastern part of the country. [Emphasis added.]
[7] The panel accordingly found that people merely associated with foreigners, Rwandans or Hutus are not victims of acts constituting persecution in the DRC, except perhaps in the eastern part of the country.
3. Analysis
[8] The applicants" basic argument is that the panel did not have regard to all the evidence. Their counsel reviewed many excerpts from the documentation in order to conclude that there was a definite possibility of persecution of Rwandan Hutus in Kinshasa. On the whole, the documentary evidence demonstrates that such a possibility exists mainly in the eastern Democratic Republic of the Congo at the Rwandan border, not in the Kinshasa region in the far west of the country. Accordingly, it was open to the panel to find that the applicants" subjective fear was not based on an objective fear concerning the region to which they must return.
[9] It must be recalled that insofar as interpreting the documentation is concerned, it is not for this Court to substitute its own findings for the panel"s, unless the panel"s interpretation is patently unreasonable. That is not the case here.
[10] Accordingly, this application for judicial review cannot be allowed.
[11] Both parties agree that there is no question of general importance to be certified here.
OTTAWA, Ontario
December 29, 1998
J.E. DUBÉ
Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-688-98
STYLE OF CAUSE: ESPÉRANCE KALENGA
and GUANI KALENGA
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 16, 1998
REASONS FOR ORDER OF DUBÉ J.
DATED DECEMBER 29, 1998
APPEARANCES:
ROBERT NÉRON FOR THE APPLICANTS
DIANE DAGENAIS FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROBERT NÉRON FOR THE APPLICANTS
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________
1 R.S.C., 1985, c. I-2.
2 Swiss Federal Republic, Office fédéral des réfugiés, "Zaïre: Racines et acteurs du conflit civil", Givisiez, April 30, 1997, p. 12 - 13, Exhibit A1, part 4.
3 Entraide Missionnaire, "Info-Congo/Kinshasa, No. 131", Montréal, September 12, 1997, p. 2, Exhibit A1, part 3.
4 "Au nouveau Congo, les cent jours du pouvoir éclaté de Kabila, Radioscopie du régime du tombeur de Mobutu", in Libération , Paris, August 26, 1997, Exhibit A1, part 3.
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