Date: 20100224
Docket: IMM-3187-09
Citation: 2010 FC 208
Ottawa, Ontario, February 24,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
KASONGO MARCEL EMAMGONGO
DJUNGA PAULINE NENDE
CEDRIC KASONGO
FABRICE LUMA
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and
Refugee Board (the RPD) dated June 2, 2009 concluding that the applicants, citizens of the Democratic Republic of Congo (the DRC), are not Convention
refugees or persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA).
FACTS
Background
[2]
The
applicants are citizens of the Democratic Republic of Congo. They are a
husband, wife, and their adult son and daughter. Forty-two (42) year old
Kasongo Marcel Emamgongo is the husband applicant, forty-five (45) year old Djunga
Pauline Nende is the wife applicant, eighteen (18) year old Cedric Kasongo is
the son applicant, and twenty-two (22) year old Fabrice Luma is the daughter
applicant.
[3]
The
applicant family entered Canada on September 25, 2006 and claimed refugee
protection at the port of entry. The applicants had been in the United
States
for 15 years before coming to Canada.
[4]
The
applicants alleged that Mr. Emamgongo has a well founded fear of persecution by
virtue of his political activities on behalf of the Union pour la démocratie
et le progrés social (the UDPS) of which he was member since 1989. Mr.
Emamgongo was a student at the University of Kinshasa until it was shut down
on May 17, 1990 following a deadly student march in which he participated. He
then took up employment in the hospital morgue. On January 7, 1991 Mr.
Emamgongo allegedly found the body of his uncle among the tortured corpses that
the Mbotu regime periodically sent to the morgue. The applicant informed the
leader of the UDPS of his discovery which led to his dismissal on January 16,
1991 and to his arrest and imprisonment. Mr. Emamgongo was beaten during his 6
month imprisonment but escaped after he was referred to the hospital for
treatment. The applicants fled to the United States on August 7, 1991, 18
years ago, and made an unsuccessful asylum claim. They came to Canada in 2006.
Decision under review
[5]
The
applicants’ refugee claim was originally heard as an expedited hearing. The
Refugee Protection Officer (the RPO) recommended that the applicants’ claim be
assessed in a full hearing as a result of the following inconsistencies which
arose:
1. Mr. Emamgongo
testified that his uncle died on January 7, 1991, but the death certificate
lists July 7, 1991 as the date of death; and
2. Mr. Emamgongo
testified that he was detained from January 17, 1991 to July 22, 1991, after
which he went to the hospital for treatment, but the hospital report states
that the Mr. Emamgongo was examined August 7, 1991 purportedly after he fled
the DRC.
[6]
At
the full hearing before the RPD panel Mr. Emamgongo provided corrected
documentation that matched his oral testimony. However, he also provided an “Act
déclarative d’évasion” dating his escape from the hospital to May 25, 1991
which contradicted his testimony where he stated that he was admitted to the
hospital on July 22, 1991. The RPD determined that the inconsistencies between
Mr. Emamgongo’s testimony and the earlier versions of the official
documentation cast doubt on the probative value of the corrected documents.
[7]
The
RPD identified an inconsistency in Mr. Emamgongo’s testimony before the RPD
and his statements at the port of entry where he stated that he found the body
of his cousin in the morgue, as opposed to his uncle’s body (as he later
claimed). The RPD determined at page 4 of its decision that the credibility of
the central elements of the applicants’ refugee claim lacked credibility:
Having considered the evidence as a
whole, the panel finds these inconsistencies affect the claimant’s credibility
that lead it to question the veracity of the central elements of his refugee
claim, particularly, his alleged problems at the hands of the government,
because he denounced wrongdoings at the hospital.
[8]
The
panel noted the risk facing UDPS members in the DRC at page 4 of its decision:
The claimant testified that he is a
member of the UDPS, testifying he has been a member since 1989. Counsel for the
claimant provided documentary evidence indicating that “historically
ill-treatment of UDPS ... members has been common” and that a “news report in
February 2005 highlights the complaint by several opposition groups, including
the UDPS, of the ‘resurgence of political violence perpetrated by the current
leadership against opposition leaders and activists.’ The report quotes the UDPS
as stating that, ‘January [2005] was marked by several incidents of harassment
against its activists.”
[9]
Mr.
Emamgongo’s lack of credibility led the RPD to determine that he has not met
the subjective fear element as a result of his membership in the UDSP. The RPD
also held that there was no evidence that Mr. Emamgongo or his family are
persons in need of protection at page 5 of its decision:
The panel, having found the claimant not
credible and having found that he has not met the subjective fear element as a
result of his membership in UDSP, concludes that the claimant is not a
convention refugee, nor is there any evidence to conclude that he is a person
in need of protection.
The applicants’ refugee claim was therefore
dismissed.
LEGISLATION
[10]
Section
96 of IRPA grants protection to Convention refugees:
|
96. A
Convention refugee is a
person who, by
reason of a
well-founded fear of
persecution for
reasons of race,
religion,
nationality,
membership in a
particular
social group or
political
opinion,
(a) is
outside each of their
countries of
nationality and is
unable or, by reason
of that
fear, unwilling to
avail
themself of the
protection of
each of those
countries; or
(b) not
having a country of
nationality, is
outside the
country of their
former habitual residence and is unable or, by reason of that fear, unwilling
to return to that country.
|
96. A qualité
de réfugié au
sens de la
Convention — le
réfugié — la
personne qui,
craignant avec
raison d’être
persécutée du fait
de sa race,
de sa religion, de
sa
nationalité, de son
appartenance à un
groupe
social ou de ses
opinions
politiques :
a) soit se
trouve hors de tout
pays dont elle a la
nationalité
et ne peut ou, du
fait de cette
crainte, ne veut se
réclamer de
la protection de
chacun de ces
pays;
b) soit,
si elle n’a pas de
nationalité et se
trouve hors du
pays dans lequel
elle avait sa
résidence
habituelle, ne peut
ni, du fait de cette
crainte, ne
veut y retourner.
|
[11]
Section
97 of IRPA grants to protection to certain categories of persons:
|
97. (1) A person in
need of
protection is a
person in
Canada whose
removal to their
country or countries
of
nationality or, if
they do not
have a country of nationality,
their country of
former
habitual residence,
would
subject them
personally
(a) to a
danger, believed on
substantial grounds
to exist, of
torture within the
meaning
of Article 1 of the
Convention
Against Torture; or
(b) to a risk
to their life or to a
risk of cruel and
unusual
treatment or
punishment if
(i) the person is
unable or,
because of that
risk, unwilling
to avail themself of
the
protection of that
country,
(ii) the risk would
be faced by
the person in every
part of that
country and is not
faced
generally by other
individuals
in or from that
country,
(iii) the risk is
not inherent or
incidental to lawful
sanctions,
unless imposed in
disregard
of accepted
international
standards, and
(iv) the risk is not
caused by
the inability of
that country to
provide adequate
health or
medical care.
|
97. (1) A qualité de
personne à
protéger la personne
qui se
trouve au Canada et
serait
personnellement, par
son
renvoi vers tout
pays dont elle
a la nationalité ou, si elle n’a
pas de nationalité,
dans lequel
elle avait sa
résidence
habituelle, exposée
:
a) soit au
risque, s’il y a des
motifs sérieux de le
croire,
d’être soumise à la
torture au
sens de l’article
premier de la
Convention contre la
torture;
b) soit à
une menace à sa vie
ou au risque de
traitements ou
peines cruels et
inusités dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la
protection de ce
pays,
(ii) elle y est
exposée en tout
lieu de ce pays
alors que
d’autres personnes
originaires
de ce pays ou qui
s’y trouvent
ne le sont
généralement pas,
(iii) la menace ou
le risque ne
résulte pas de
sanctions
légitimes — sauf
celles
infligées au mépris
des normes
internationales — et
inhérents
à celles-ci ou
occasionnés par
elles,
(iv) la menace ou le
risque ne
résulte pas de
l’incapacité du
pays de fournir des
soins
médicaux ou de santé
adéquats.
|
ISSUE:
[12]
The
applicants raise the following issue:
1.
Did the
RPD err by not providing an analysis of the Applicants’ claim under section 97
of the Immigration and Refugee Protection Act, separate and distinct
from his analysis of the claim under 96 of the said Act?
STANDARD
OF REVIEW
[13]
In Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R.
1, the Supreme Court of Canada held at paragraph 62 that the first step in conducting a
standard of review analysis is to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of (deference) to be
accorded with regard to a particular category of question”: see also Khosa
v. Canada (MCI),
2009 SCC 12, per Justice Binnie at paragraph 53.
[14]
Whether
the RPD failed to undertake a separate analysis under section 97 of IRPA touches
upon the adequacy of the decision under review and as such is reviewable under
a standard of correctness: see my decision in Jabari v. Canada (MCI), 2008 FC
225, at paragraph 12; Via Rail Canada Inc. v. Canada
(National Transportation Agency), [2001] 2 F.C. 25 (C.A.).
ANALYSIS
Issue: Did the RPD err
by not providing an analysis of the Applicants’ claim under section 97 of the Immigration
and Refugee Protection Act, separate and distinct from his analysis of the
claim under 96 of the said Act?
[15]
The
applicants submits that the RPD erred by failing to conduct a separate analysis
pursuant to section 97 of IRPA.
[16]
Justice
de Montigny addressed this very question in Ayaichia v. Canada (MCI),
2007 FC 239 at paragraphs 19-20:
¶19 This case has been
repeatedly followed by other members of this Court. While it is always better
to analyze both sections 96 and 97 where an applicant has invoked the two
grounds in support
of his or her claim, failing to do so will not always be
fatal to an otherwise sound decision. If the evidentiary basis for both claims
is the same and the applicant's story is not believed, there will be no need to
proceed to a separate 97 analysis, as there will be no evidence to ground the
applicant's claim that he or she is in need of protection: see, for example…
¶20 Of course, if the underlying facts offer a separate basis
for finding the applicant a person in need of protection, then concluding he is
not credible for the purposes of section 96 or that there is no nexus to a
Convention ground will not excuse the Board from going through a separate
section 97 analysis. This was precisely the situation in Kilic v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 84, 2004 FC 84, on
which the applicant relies. In that case, the Board did not find Mr. Kilic
credible on many points, but nevertheless accepted he had evaded the military
because he had documentary proof to support his claim. The Board rejected his
claim under section 96, finding he had no nexus to a Convention ground, and
failed to perform a section 97 analysis. Sitting on the judicial review of that
decision, Justice Richard Mosley found the Board should have analyzed whether
the Turkish applicant was at risk because of his military evasion.
[17]
A
negative credibility finding in relation to section 96 will often obviate the
need to consider section 97: Smoudi v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1139, per
Justice O’Reilly at paragraph 7. Whether the omission of a section 97 analysis
is reviewable will depend on the particular evidence before the RPD: Kandiah
v. Canada (Minister of Citizenship and
Immigration), 2005 FC 181, per Justice Martineau at paragraph 16. In Jabari,
supra, at paragraphs 25-26 I held that the RPD erred in omitting to
engage in a section 97 analysis in the case of an applicant who raised two
separate reasons for fearing return to Iraq when
the objective country condition documentation showed that inter-ethnic violence
was widespread.
[18]
The RPD surveyed the objective country condition documentation:
The claimant testified that
he is a member of the UDPS, testifying he has been a member since 1989. Counsel
for the claimant provided documentary evidence indicating that “historically
ill-treatment of UDPS ... members has been common” and that a “news report in
February 2005 highlights the complaint by several opposition groups, including
the UDPS, of the ‘resurgence of political violence perpetrated by the current
leadership against opposition leaders
and activists.’ The report quotes
the UDPS as stating that, ‘January [2005] was marked by several incidents of
harassment against its activists.”
While acknowledging the adverse
treatment some UDPS members may face, the RPD noted that the applicant did not
testify that he would be subject to persecution by virtue of his UDPS
membership alone:
The panel does not refute the claimant’s objective evidence;
nevertheless, the claimant did not testify that he has a subjective fear of
returning to the DRC because of his membership in the UDPS…
[19]
While
the principal applicant “checked-off” the two boxes in the PIF claiming a need
of protection, the applicant did not testify to this effect. He did not say
that returning to the Congo as a UDPS member will put him at risk. If
the claimant does not advance the claim at the hearing, the RPD cannot be
faulted for not dealing with it in more detail than the RPD did in this case.
[20]
Moreover,
the applicant left the Congo in 1991, which is 18 years ago. The
objective documentary evidence clearly shows that only UDPS activists are at
risk of persecution. The applicant is not in this category. For these reasons,
this ground of review cannot be accepted by the Court.
CERTIFIED QUESTION
[21]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
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