Date: 19981008
Docket: IMM-4580-97
BETWEEN:
FIRMIN KAHINDO MAPERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.:
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Refugee Division) which found that the applicant was not a Convention refugee.
[2] The applicant was a member of the UDPS (Union pour la démocratie et le progrès social), the main opposition party in Zaire. The applicant has participated to different demonstrations and he has also distributed tracts and was arrested and detained during the Mobutu regime.
[3] He left Zaire because the authorities of the Mobutu regime were looking for him.
[4] He came to Canada and asked for a refugee status determination because he feared persecution because of his association with the main opposition party, the UDPS.
[5] The applicant originally made his claim against the Mobutu regime.
[6] The hearing was held on October 30th, 1996 and at the request of the Board, new evidence was submitted by the refugee claim's officer on June 25th, 1997 relating to the Kabila regime, as the Mobutu government had fallen in May 1997.
[7] The applicant was also allowed to present new documentary evidence and new submissions; which he did.
[8] The decision of the Refugee Division was released on October 1st, 1997 and the applicant was denied the refugee status.
[9] The Board had learned that there had been a change of circumstances in Zaire which is now known as the Democratic Republic of Congo and that the Mobutu government was chased from power and has been replaced by a government lead by Laurent Kabila.
[10] In its decision the Board mentioned:
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Le tribunal est d'avis qu'il n'y a pas de preuve suffisante indiquant que les autorités de l'AFDL arrêtent les membres des partis politiques pour le seul motif de leur appartenance à un parti politique ou en raison de leur implication à la cause anti-Mobutu. Les courtes détentions qui sont survenues depuis la prise de pouvoir de l'AFDL ont été observées lors de manifestations publiques non autorisées par le nouveau gouvernement. Le leader de l'AFDL a interdit les manifestations publiques. Le tribunal est d'avis que la dérogation des droits civils dans une situation temporaire, dans certaines circonstances comme dans la situation de chaos qui a régné pendant la dernière période du règne de Mobutu, n'équivaut pas per se à de la persécution. (...) |
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Le tribunal est d'avis que suite aux changements de circonstances politiques dans le pays du revendicateur, il n'est pas raisonnable de croire que le revendicateur soit persécuté par l'AFDL, dans son pays de nationalité.
[11] The applicant's counsel quoted many elements that were included in the evidence filed before the Board:
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On Monday Mr. Kabila's ruling alliance announced a ban on public meetings and protests and warned that violators would be considered "enemies of the liberation of the Congolese people and be punished to the fullest extent of the law.1 |
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Soldiers broke up a peaceful demonstration today against Laurent Kabila, the rebel leader who took over this gigantic country just over a week ago, arresting and beating dozens of protesters and scattering others by firing guns in the air.2 |
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But each time the marchers set off on their route and their numbers began to swell, they were promptly dispersed by troops firing guns into the air. Some protesters were reported beaten and about 30 marchers were detained.3 |
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Since the beginning of the armed conflict, which began in eastern Zaire in October 1996, Amnesty International has been documenting human rights abuses committed by the AFDL and their allies. These abuses have included large-scale deliberate and arbitrary killings, "disappearances", torture and arbitrary arrests. In the short time since the AFDL have taken control of the whole country and established a transitional government, many more severe violations have continued to be reported, particularly against actual and perceived supporters of former President Mobutu Sese Seko and members of opposition political parties, which have been banned.4 |
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But Kabila's human rights violations have not been limited to refugees. On Saturday, the main human rights watchdog organization in the capital, Kinshasa, issued a report alleging hundreds of summary executions by Kabila's forces in the city in the month since it fell. The Association for the Defense of Human Rights said Kabila's troops have killed 647 people in Kinshasa - some of them innocent bystanders, some looters, some soldiers of the defeated Zairian army.5 |
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Monsieur Kabila a interdit les manifestations et les activités de tous les partis politiques, à l'exception du sien, l'Alliance des forces démocratiques pour la libération du Congo - Zaire (AFDL), ancienne rébellion.6 |
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He has banned all political activity except by his own Alliance of Democratic Forces.7
[12] When you look at the evidence and you look at the decision by the Board, it is obvious that there is something wrong.
[13] The Board had before it a lot of evidence that the civil rights in the new Democratic Republic of Congo were infringed.
[14] It is difficult to understand how the Board can get to the conclusion that the applicant is not a Convention refugee considering the evidence before it. As was mentioned by Hugessen J. in Kalunda v. The Minister of Citizenship and Immigration (IMM-4379-97) in his Reasons for Order delivered from the Bench at Toronto, Ontario on Tuesday, September 15, 1998:
In my view, that finding is perverse. The Board had before it evidence of a great deal more than simple short periods of detention imposed on members of the UDPS. Even at the time of the Board's hearing, there was evidence in the documents before it of killings of peaceful protesters on at least two occasions, of prolonged detention of peaceful protestors, of them being held incommunicado and being subjected to what can only be described as torture. No amount of chaos justifying a suspension of civil rights can be held to justify torture and killing of innocent protestors.
[15] It is obvious that the repression of political activities is being applied in a discriminatory way which constitutes persecution. I had the opportunity to read the Refugee Division's Decision in the Kalunda case refered above, that specific case for which the Honourable Justice Hugessen allowed a judicial review. This case is almost identical to the case that is now before me.
[16] I conclude that the failure to acknowledge the basis of the applicant's claim, and the failure to examine the impact of changes of the country's conditions in the light of the evidence that was filed, constituted a reviewable error.
[17] For those reasons, this application for judicial review will be allowed. The decision of the CRDD will be set aside and the matter will be referred back to the Immigration and Refugee Board for re-hearing and determination by a differently constituted panel.
[18] The applicant's counsel submitted a question to be certified: "Is the derogation of civil rights permissible in a temporary situation? If so, when?" Given that this question has been answered on many occasions, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 8, 1998
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1 The New York Times, Wednesday, May 28, 1997. Reference: page 0409 of the Refugee Board's Court File.
2 The New York Times, Thursday, May 29, 1997, page A13. Reference: page 0411 of the Refugee Board's Court File.
3 The Toronto Star, Thursday, May 29, 1997, page A22. Reference: page 0410 of the Refugee Board's Court File.
4 Amnesty International, 6 June 1997, AFR 62/16/97. Reference: page 0418 of the Refugee Board's Court File.
5 The Washington Post, Wednesday, June 18, 1997. Reference: page 0423 of the Refugee Board's Court File.
6 L'Agence France Presse, 27 juin 1997. Reference: page 0428 of the Refugee Board's Court File.
7 The Globe & Mail, July 17, 1997. Reference: page 0441 of the Refugee Board's Court File.
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