Date: 20000531
Docket: IMM-6179-98
BETWEEN:
ELISE MBOYO-EYENGA
GREGORY MUANA-MPUTU
GAEL MUANA-MPUTU
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J. :
[1] This application for judicial review concerns a decision handed down on October 5, 1998 by the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Refugee Division"), according to which the applicants are not Convention refugees.
[2] The applicant, a national of the Democratic Republic of Congo ("DRC"), is also representing her two children, who are applicants in this matter. In 1994, the applicant, who was at the time a shopkeeper in the central market of Kinshasa, joined the Union of Independent Democrats ("UDI"), led by Léon Kengo Wa Dondo. In July 1994, Kengo was appointed Prime Minister in the Mobutu government. On January 19, 1996, women shopkeepers held a demonstration to protest against Kengo because he had not consulted the UDI activists before accepting his new position. The demonstration was brutally put down by the guards of the Presidential Security Division ("the DSP"), and the applicant herself was arrested, detained, raped and repeatedly threatened with death. She managed to escape and came to Canada, where she claimed refugee status on October 1, 1996.
[3] The Refugee Division dismissed her claim on the grounds that it was highly unlikely that the applicant would be persecuted if she returned to the DRC, since she had joined the AFDL in Montreal, which is the party of the current president of the country, Kabila.
[4] In its decision, the Refugee Division does not question the applicant's credibility regarding the above-mentioned events that occurred in the Congo. The Division notes that the applicant candidly admitted that she had joined the AFDL in Montreal, and that she held a membership card. It also stresses that the applicant added that she had only attended two meetings of the AFDL in Montreal, and that she declared that she had entered this movement so as not to feel alone, "as if she had joined a prayer group." The following paragraph expresses the panel's finding:
The panel finds that in these circumstances, the fear of persecution that the claimant alleges by reason of her political opinions is clearly exaggerated, because the panel has not seen, in the documentary evidence submitted, any indication that the present authorities of the DRC would attack members of the AFDL, including those who may publicly express reservations about some aspect of the party's program or had the function of a program. It also seems unlikely to us that the present authorities would attack an AFDL activist for the sole reason that she had been detained because of her participation in a demonstration against certain UDI leaders which took place more than two and a half years ago.
[5] In fact, the documentary evidence does not give any indication that the present authorities of the DRC would attack members of the AFDL. It is rather the reverse that would occur. According to the guide for refugees published by the Office of the United Nations High Commissioner for Refugees, it is the AFDL government that today is going after the soldiers of the DSP. In other words, the persecutors of the applicant are now being hunted down and are seeking international protection. In this regard, let it suffice to cit paragraph 15.1 of the guide:
15.1 The Division Spéciale Présidentielle (DSP) consisting of about 15,000 men mainly from Mobutu's tribe (N'GBANDI) or region (EQUATEUR) had most of its cadres formed in Israel. It was set up in 1986 and it acted as a praetorian guard for Mobutu's personal protection. Hence it was the best equipped of all military organisations and put under the leadership of General ZIMBI, a Mobutu brother in law. Although this unit was involved in 1991 and 1993 riots and lootings in Kinshasa which resulted in some deaths and casualties, it is obvious that the AFDL government is today looking for DSP soldiers because of their close relationship with Mobutu himself and his family. If they are arrested they will be without any doubt killed or put in jail without trial as the AFDL did in Kinshasa when it took over from Mobutu in May 1997. For those reasons, life and freedom of DSP soldiers should be considered as being in danger in the Democratic Republic of Congo if they return there. They therefore deserve international protection, unless there is an evidence that they have committed a crime which excluded them from the benefit of the 1951 UN Convention. This might be the case for DSP high ranked staff only.
[6] Even if the applicant feels subjective fear at the thought of returning to her country, she still has to prove not only the subjective component of her fear of persecution, but also that this fear is objectively well-founded (see the decision in Chan v. Canada (M.E.I.). Moreover, the validity of a fear of persecution must be assessed in terms of the risks of persecution at the time the claim is considered by the Refugee Division, not on the basis of the risks that existed when the applicant left her country (see Mileva v. M.E.I.). A change of circumstances that occurs in a country is essentially a question of fact (see Yusuf v. M.E.I.). The Court may not intervene in such an interpretation of the facts by the Refugee Division unless that interpretation is manifestly unreasonable.
[7] At the hearing, the applicant acknowledged that her former persecutors were no longer in place, but she alleged that she feared persecution from the new government of Kabila, in power since May 1997. According to her, Kabila's arrival in power has not changed things much. She would still be in danger if she returned to her country and began to express her political opinions again, against the new government in place. However, her membership in the AFDL, how minimum or even marginal it might be, can only help her to return to her country.
[8] Consequently, the Refugee Division was right to find that Kabila government would be unlikely to attack the applicant simply because she had taken part in a demonstration against another government in January 1993. Obviously, if she returns to her country to denounce the government in place and to participate in demonstrations, she may expect reprisals.
[9] Counsel for the applicant emphasized that her client had the intention and the right to defend democracy and to denounce the dictatorship in her country, and that her fear that such a right would be violated by the Kabila administration entitled her to refugee status in Canada. Were such an argument to be valid, it would open Canada's gateways to over a billion human beings who live under a dictatorial regime and might have a desire to provoke that regime publicly in order to gain certain accommodation in a better world.
[10] Consequently, the Refugee Division was justified in finding that the applicant did not have, on the day of the hearing, a well-founded fear of persecution in the event she returned to the Congo.
[11] This application for judicial review thus cannot be allowed. The two counsel and the Court agree that there is not question of general importance to be certified.
OTTAWA, Ontario
May 31, 2000
Judge
Certified true translation
Martine Brunet, LL.B.
Date: 20000531
Docket: IMM-6179-98
OTTAWA, ONTARIO, THIS 31st DAY OF MAY 2000
PRESENT: THE HONOURABLE JUSTICE J.E. DUBÉ
BETWEEN:
ELISE MBOYO EYENGA
GREGORY MUANA-MPUTU
GAEL MUANA-MPUTU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
Judge
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND OF SOLICITORS OF RECORD
COURT FILE No.: IMM-6179-98
STYLE OF CAUSE: ELISE MBOYO-EYENGA
GREGORY MUANA-MPUTU
GAEL MUANA-MPUTU
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MAY 26, 2000
REASONS FOR THE ORDER OF DUBÉ J.
DATE: MAY 31, 2000
APPEARANCES:
Ms. NICOLE GOULET FOR APPLICANT
Mr. SIMON RUEL FOR RESPONDENT
SOLICITORS OF RECORD:
LeBLANC, DIOGUARDI FOR APPLICANT
HULL, QUEBEC
Mr. MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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