Date: 20100326
Docket:
IMM-2589-09
Citation:
2010 FC 338
Ottawa, Ontario,
March 26, 2009
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
MARIE-GAVRINE BAKANDASI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Marie-Gavrine
Bakandasi is the daughter of a Congolese political activist who is a member of
the Union pour la démocratie et le progrès social (UDPS), a party opposed to
the regime of President Joseph Kabila. She, along with her mother, apparently
helped her father, specifically by distributing documents that were critical of
Mr. Kabila and Mr. Bemba, the other presidential candidate in the Democratic
Republic of the Congo. The entire family was arrested twice by the
Congolese authorities. Since the second arrest, there has been no word as to
the father’s whereabouts. For their part, Ms. Bakandasi and her mother were
both imprisoned and tortured. Thanks to the help of a guard, they escaped from
prison and fled to the Republic of the Congo. They later
arrived in Canada, where they
claimed refugee protection.
[2]
Their
claims were processed at the same time by the Refugee Protection Division (RPD)
of the Immigration and Refugee Board. The RPD granted refugee protection to Ms.
Bakandasi’s mother but denied her own claim. Ms. Bakandasi is seeking judicial
review of the part of the decision denying her claim.
[3]
The
applicable standard of review is reasonableness: Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190. The Supreme Court, at paragraph 47, explains
that ‘‘reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.’’
[4]
The
RPD rendered its decision on February 27, 2009. In the mother’s case, it was of
the view that the claim was based on two factors: her activities with regard to
distributing political documents and her membership in the UDPS. The RPD had
its doubts about the credibility of the mother’s claims of having distributed
political documents, but determined that the mother was a member of the UDPS, and
as such could be targeted by the Congolese regime. It therefore accepted the
mother’s claim for refugee protection.
[5]
By
contrast, Ms. Bakandasi’s claim for refugee protection was denied by the RPD
for lack of credibility, since she was unaware of the content of the documents
she had allegedly distributed, even though in her PIF she had described the
content of the documents.
[6]
It
is important to underscore the information that the RPD failed to include in
its reasons. It reviewed the two cases separately without specifying that Ms.
Bakandasi and her mother both stated that they had been persecuted together. The
RPD also neglected to mention Ms. Bakandasi’s father, an opposition activist
presumed to be imprisoned or dead.
[7]
The
RPD’s decision is based on one single difference between Ms. Bakandasi and her
mother. According to the RPD, neither of the two actually distributed any
political documents. Yet, because the mother is a member of the UDPS, it was
thought she could be targeted by the Congolese regime. Since Ms. Bakandasi is
not a UDPS member, she apparently would not be exposed to the same risk. In
consequence, the mother is a Convention refugee but Ms. Bakandasi is not.
[8]
I
fail to understand the basis on which the RPD made this distinction, given the
fact that Ms. Bakandasi and her mother were both persecuted at the same time
and tortured in adjacent rooms by the same people. It strikes me that Ms.
Bakandasi’s claim is based, not on her fear of persecution for having
distributed documents, but on the fact that she actually has been persecuted,
mainly because she is a member of the family of an opposition activist. Regardless
of whether she really did distribute documents, or is ‘‘officially’’ a member
of the UDPS, she is at risk of being persecuted again in the Democratic
Republic of the Congo simply because she is the daughter of a UDPS
activist.
[9]
The
RPD’s reasons provide no explanation as to why it failed to consider this
aspect of Ms. Bakandasi’s claim.
[10]
In
the absence of such an explanation, the decision is unreasonable. Therefore,
the application for judicial review will be allowed.
ORDER
THE COURT
ORDERS that:
1.
The
application for judicial review is allowed.
2.
The
decision of the Refugee Protection Division of the Immigration and Refugee
Board with regard to Ms. Bakandasi is set aside.
3.
The
matter is referred back to the Refugee Protection Division of the Immigration
and Refugee Board for rehearing before a differently constituted panel.
4.
No
serious question of general importance is certified.
‘‘Sean Harrington’’
Certified
true translation
Sebastian
Desbarats, Translator
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