Canada (Minister of Citizenship and Immigration) v. Tshienda, 2003 FCT 360

Date: 20030327

Docket: IMM-3984-01

Neutral citation: 2003 FCT 360

Ottawa, Ontario, this 27th day of March, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                       Applicant

                                                                              - and -

                                                   MULUMBA FREDDY TSHIENDA

(also known as TSHEINDA MULUMBA)

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 in respect of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board"), dated July 18, 2001, wherein it was determined that the respondent was a Convention refugee.

[2]                 The Minister of Citizenship and Immigration (the "Minister" or the "applicant") seeks an order setting aside the decision of the Board, and referring the matter back to a differently constituted panel for redetermination in accordance with such directions as this Honourable Court considers appropriate.

Background Facts

[3]                 The respondent is a citizen of the Democratic Republic of Congo (the "DRC"). He claims a well-founded fear of persecution from the state by reason of his political opinion as a member of the Union pour la Democratie et le Progres Social (the "UDPS").

[4]                 The respondent alleged that he joined the UDPS in 1993 and was active as a member and "rapporteur" of the party thereafter. He further alleged that in May or June 1998, he obtained a position as a civilian employee of the city of Bukavu. He did so in order to avoid forced military conscription and combat duty with the Congolese Armed Forces (the "FAC"). According to the respondent, his duties included:

. . . receiving reports from the public about a variety of issues, including events in general involving the civilian population; theft from civilians by the police and the military; and human rights abuses committed by the armed forces against the civilian population. These reports were then forwarded to the authorities for investigation and possible prosecution of the perpetrators. . . .

[5]                 Later in 1998, when rebel forces overran Bukavu, the respondent continued his employment with the city. However, the UDPS was forced underground. According to the respondent, in July 1999, he attended a human rights conference in Bukavu featuring representatives of European non-government organizations. As a UDPS delegate, the respondent denounced human rights violations committed by multiple parties to the ongoing conflict in the DRC. The next day he returned home from work to find his twin brother murdered and to learn that other members of his family had been taken away by troops. He took shelter with a priest until he was able to leave the country. Upon his arrival in Canada, he made a refugee claim.

Reasons of the Immigration and Refugee Board (Refugee Division)

[6]                 By reasons dated July 18, 2001, the Board determined the respondent to be a Convention refugee.

[7]                 Although the Board had certain concerns regarding the respondent's credibility, it found that there was sufficient credible evidence before it to justify finding that the respondent had a well-founded fear of persecution in the DRC by reason of his political opinion. Based on the respondent's testimony, the documents provided, and the testimony of M. Sylvain Kalala, the organization's president in Canada, the Board accepted that the respondent was an active member of the UDPS since 1993. Based on the documentary evidence, the Board also found that members of the UDPS face a serious risk of inhumane treatment in the DRC. The Board therefore concluded that the respondent has a well-founded fear of persecution if returned to the DRC.

[8]                 The Board considered the Minister's arguments that the respondent should be excluded by virtue of Article 1F(a) or (c) of the United Nations Convention Relating to the Status of Refugees (the "Convention"), Con. T.S. 1969 No. 6. The Minister argued that the respondent's identity and employment documents pointed to him being a member of the FAC, which makes him an accomplice to crimes against humanity. The Board noted that "the documents before the panel are replete with references to lamentable human rights violations committed by the Congolese Armed Forces, some of which fall within the definition of crimes against humanity or war crimes." However, the Board was "unable to conclude that it is an organization principally directed to a limited, brutal purpose such that mere membership may, by necessity, involve personal and knowing participation in persecutorial acts."

[9]                 Furthermore, the Board found credible the respondent's testimony that he had never been a member of the FAC. Accordingly, the Board found that, whatever the general nature of the FAC as an organization there were not "serious reasons for considering that the claimant was complicit in the common purpose or activities of the FAC." Therefore, the Board concluded that the respondent could not be excluded by virtue of Articles 1F(a) or (c) of the Convention, and determined the respondent to be a Convention refugee.

[10]            This is the judicial review of the Board's decision.

Applicant's Submissions

[11]            The applicant submits that the Board based its decision on erroneous findings of fact made in a perverse and capricious manner and without regard to the evidence. Such perverse and unreasonable findings, according to the Minister, include those with regard to the respondent's credibility, his membership in the UDPS, his association with the FAC, and his complicity in human rights violations.

[12]            The Minister points out the following problematic areas in the evidence and in the Board's decision:

1.          The respondent denies being a member of the FAC or of the police forces. Nevertheless, a letter issued by the FAC introduces him to the mayor of Bukavu as a "politico-military cadre" and an information officer. He is also in possession of an ID card issued by the DRC National Police. Moreover, on his Personal Information Form ("PIF") the respondent stated that he was an "agent de renseignement" employed by the FAC, and notes from the immigration officer at the port of entry state that the respondent was a member of the FAC.

2.          The respondent's testimony regarding his employer and his employment duties was "convoluted, confusing and thus inconsistent."

3.          Mr. Kalala confirmed that the respondent was a UDPS member. However, he was unable to testify about the respondent's specific activities and duties. Moreover, Mr. Kalala testified that it was incompatible with UDPS membership to work for the FAC or the security services, and that any UDPS member who did would be rejected as a UDPS member. The respondent testified that his employers knew of his UDPS membership, but Mr. Kalala stated that UDPS was underground at the time.

4.          The respondent could not provide the name of the mayor for whom he allegedly worked. His testimony was confusing and contradictory with regard to what groups were in control of various areas of his country at various times, with regard to the dates and places of UDPS meetings he allegedly attended, and with regard to other details, all of which indicated a lack of credibility.

[13]            The applicant submits that the Board "blatantly ignored all of the evidence before it that exposes large holes in the respondent's claim." The applicant submits that the Board's decision is "not just unreasonable," but perverse.

Respondent's Submissions

[14]            The respondent submits that the Board's findings were not unreasonable or perverse with regard to any aspects of the claim, and offers the following in rebuttal of the applicant's submissions:

1.          As the documentary evidence demonstrates, there is no clear separation between the military and the civil administration in the DRC. The respondent explained in his testimony that, since the city hall where he was employed was under the jurisdiction of the 3rd operational zone of the FAC and of the national police force, he was issued an employment document by the FAC and an identity document by the police. These documents confirmed his employment and allowed him safe passage when needed. The documents did not mean that he was a member of the armed forces or the police. Furthermore, the reference to the FAC in the respondent's PIF was made below his reference to his employer as the city hall of Bukavu, which is entirely consistent with his testimony that he was a civilian employee at the city hall which fell under the jurisdiction of the armed forces. The Board accepted these explanations as plausible - a finding that it was entitled to make. As for the notes of the immigration officer at the port of entry, they were not responses to any questions posed to the respondent. The Board found this aspect significant and stated that it was "unable to draw an inference that the respondent was a military member of the FAC, rather than a civilian employee of a local government office which fell under the control of the military."

2.          The respondent denies that the evidence was "convoluted, confusing and thus inconsistent," as the Minister claims. On the contrary, the respondent submits he clearly explained in his testimony that he was a civilian employee at the city hall and did not directly work for the police or the military. He described his duties with sufficient clarity. He also clearly stated that he had no military training, did not bear arms and performed no military duties.

3.          With respect to Mr. Kalala's testimony, the respondent points out that Mr. Kalala was satisfied as a result of his own inquiries that the respondent was a member of the UDPS. Mr. Kalala did indeed testify that membership in the UDPS was incompatible with direct involvement with the FAC. However, the Board accepted that the respondent never directly worked for the FAC. Mr. Kalala further testified that it was not implausible for a UDPS member, in the particular circumstances of the respondent, to hold a civilian position at a city hall falling under the FAC administration. There were, therefore, no major contradictions between the respondent's testimony and that of Mr. Kalala.

4.          With respect to the respondent's credibility in general, the respondent points out that it is not the obligation of the Board to reconcile every single possible contradiction that may have appeared in the evidence. After noting its concerns about the respondent's credibility, the Board then went on to find that among the evidence of the respondent, there was sufficient credible evidence that the respondent had a well-founded fear of persecution.

[15]            The respondent submits the Board considered all the evidence before it and made a decision that it was entitled to make. It is submitted that the decision was not perverse or unreasonable, and there are no valid grounds to allow the judicial review.

Issues

[16]            The issues as stated by the applicant are:

1.          Did the Board base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it?

2.          Did the Board make a perverse finding with respect to the respondent's credibility?

3.          Is the Board's decision as a whole perverse and unreasonable?

Relevant Statutory Provisions

[17]            The relevant sections of the Immigration Act, R.S.C. 1985, c. I-2, state as follows:

Article 1F(a) and (c) of the United Nations Convention Relating to the Status of Refugees, supra states:

Analysis and Decision

[18]            Issue 1

Did the Board base its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard to the material before it?

The applicant submits the following are perverse findings of fact:

(a)         Whether the respondent joined the FAC;

(b)         The relationship between the civilian and military roles; and

(c)         The evidence of Mr. Kalala.

[19]            Whether the respondent joined the FAC

The Board found that the respondent did not intend to join the FAC despite the presence of a letter from the FAC to the mayor and a National Police identity card. The Board accepted the respondent's explanation that the letter and card were necessary because the town in which the respondent worked was under control of the FAC. The Board considered the evidence of the respondent that he was a civilian and not a military employee, that he never bore arms and that he never received military training. Additionally, the Board considered the respondent's evidence that he worked for the city hall of Bukavu. The Board's finding with respect to the respondent's membership is a finding that was open to the Board on the basis of the evidence that the Board found to be credible.

[20]            The relationship between civilian and military roles

The Board stated at page 6 of its reasons:

. . . It finds significant that the notes are not responses to questions posed to the claimant, and in light of the apparently complex relationship between civilian and military roles in Bukavu during the period in question, is unable to draw an inference that the claimant was a military member of the FAC, rather than a civilian employee of a local government office which fell under the control of the military.

The applicant urges that the finding that the relationship between the military and civilian roles was complex was perverse. The Board came to this conclusion after assessing the respondent's evidence, which it was entitled to do. After reviewing the evidence, I am of the opinion that this conclusion was one that the Board was entitled to make.

[21]            The evidence of Mr. Kalala

The applicant submits that Mr. Kalala testified that you could not be a member of the UDPS and work for the FAC and that the Board ignored this contradiction. It should be noted that when Mr. Kalala testified, he also stated that a person who was isolated from Kinshasa as in the respondent's circumstances, could make serious personal decisions and then return to UDPS under normal circumstances. The applicant also argued that the Board ignored the fact that Mr. Kalala did not know specifically about the respondent and his employment. I do not find that the Board's findings in these areas were perverse.

[22]            Issue 2

Did the Board make a perverse finding with respect to the respondent's credibility?

The Board had certain concerns about the credibility of some of the respondent's testimony. However, it accepted as credible other testimony of the respondent. As has been stated on many occasions, decisions as to the credibility of a witness are at the heartland of a tribunal's jurisdiction and should not be disturbed by this Court unless the findings are perverse. I do not conclude that the tribunal's findings on credibility are perverse.

[23]            Issue 3

Is the Board's decision as a whole perverse and unreasonable?

The applicant submits that the Board's decision as a whole was perverse and unreasonable and should be set aside. I have reviewed the evidence before the Board and the Board's decision and I am not of the opinion that the decision as a whole was perverse or unreasonable. The decision reached by the Board need not be the decision that this Court would reach and as long as the decision was one of the decisions that the Board could reasonably have made, this Court should not intervene.

[24]            The applicant for judicial review is therefore dismissed.

[25]            Neither party wished to propose a serious question of general importance for certification.

ORDER

[26]            IT IS ORDERED that the application for judicial review is dismissed.

                                                                                    "John A. O'Keefe"           

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 27, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-3984-01

STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION

- and -

MULUMBA FREDDY TSHIENDA

(also known as TSHEINDA MULUMBA)

PLACE OF HEARING:                                   Calgary, Alberta

DATE OF HEARING:                                     Tuesday, October 8, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Thursday, March 27, 2003

APPEARANCES:

Tracy King

FOR APPLICANT

Lorna K. Gladman

FOR RESPONDENT

SOLICITORS OF RECORD:

                                     Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR APPLICANT

Lorna K. Gladman

300, 714 - 1st Street S.E.

Calgary, Alberta

T2G 2G8

FOR RESPONDENT