Date: 19980609
Docket: IMM-3418-97
BETWEEN:
DOUDOU NYEMBO KANDOLO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD D.J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, dated July 14, 1997. By that decision, the Board concluded that the applicant was not a Convention refugee.
THE FACTS
[2] The applicant is a citizen of Zaire (New Republic of Congo). He has been living in Lubumbashi (province of Shaba) for all of his life notwithstanding that his ethnic group has been persecuted there since 1993. Because of that persecution, his family moved to another province in 1994. However, the applicant remained in Lubumbashi.
[3] In September of 1994, the applicant joined the U.D.P.S. (Union pour la démocratie et le progrès social). He was assigned to the "musical team".1 The applicant took part in a number of rallies. He was appointed leader of the musical team in August of 1995. In late 1995 or early 1996, he was arrested by the military. However, he was not seriously maltreated and was released within twenty-four hours.
[4] During a demonstration on April 16, 1996, the applicant was arrested for the second time along with twenty other protesters. He was detained and beaten by the military for three days. He believed that the military perceived him as a U.D.P.S. leader. On July 5, 1996, he was arrested again during a protest along with other members of the U.D.P.S. He was detained, beaten again and taken to a working camp.
[5] On July 14, he and twenty-five of his fellow prisoners escaped while cutting grass for their captors. The applicant hid in the bush and escaped. He went to Lubumbashi where he stayed at a friend"s house until October of 1996. In July of 1996, he learned that a cousin who was arrested by the military, had been found dead near a river. As a consequence, he began to fear for his life if he were to be arrested again. In October 1996, the U.D.P.S. arranged for him to travel from Zaire to Canada. The applicant landed in Canada on November 6, 1996 and requested refugee status at the port of entry.
THE DECISION OF THE BOARD
[6] The Board made positive findings with respect to the applicant"s credibility. The Board considered the change in circumstances in Zaire in the context of whether the applicant"s fear of persecution was unreasonable having regard to the documentary evidence adduced which established that a "real", "important" and "durable" change had occurred in the Government and in the politics of Zaire. The Board concluded that in view of the applicant"s low political profile, there was no reasonable chance of persecution if he were to return to Zaire.
ISSUES
| 1. Did the Board err in concluding that there had been a "real" "important" and "durable" change in the political situation in Zaire which precluded the applicant from being determined to be a Convention refugee? |
| 2. Did the Board overlook the evidence concerning the applicant"s participation in demonstrations and his position as a leader in the U.D.P.S.? |
ANALYSIS
1. The Change of Circumstances
[7] The decision of the Federal Court of Appeal in Yusuf v. M.E.I.2 has established that the issue of change of circumstances is a question of fact. The Board"s reasons should state in clear and precise terms the basis for its conclusion that the applicant no longer has a fear of persecution that is objectively well-founded. The Board should also support its finding by referring to the documentary evidence available to it.3
[8] On this record, I am unable to conclude that the Board"s findings constitute reviewable error. While another person might have drawn a different conclusion with respect to the durability and effectiveness of the political changes in Zaire, there was evidence on the record to support the Board"s view that changes in the political environment in Zaire were meaningful and effective in nature and, as a consequence, his fear of living in his homeland, was no longer well-founded. The Board took into consideration: the departure of Mobutu; the dissatisfaction of the military; the lack of evidence that the new Kabila regime would persecute political opponents, as well as the public support being given to the new regime.
| 2. Ignoring the Evidence as to the Applicant"s Leadership of the U.D.P.S. |
[9] I am unable to agree with this submission. The Board pointed out that there was no evidence of retribution against the U.D.P.S. members. In my view, this view was reasonably open to the Board on this record. The Board further observed, generally, that there was a lack of evidence to support the view that the new Government intended to persecute any of its political opponents.
CONCLUSION
[10] For the foregoing reasons, the within application for judicial review is dismissed.
CERTIFICATION
[11] Neither counsel suggested the certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree. Accordingly, no question wil be certified.
Darrel V. Heald
Deputy Judge
OTTAWA, ONTARIO
June 9, 1998
__________________
1 The function of the "musical team" was to motivate the crowd at rallies by chanting and dancing.
2 (1995), 179 N.R. 11 (F.C.A.).
3 Compare Cuadra v. Canada (1993), 157 N.R. 390.
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