Date:
20120830
Docket:
IMM-92-12
Citation:
2012 FC 1037
Ottawa, Ontario,
August 30, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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GASTON KIPA NUMBI
FRANÇOISE TSHIKUDI
NDJIBU
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Applicants
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and
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LE MINISTER DE LA
CITOYENNETÉ
ET DE L’IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated December 12, 2011, which refused the
applicants’ claim to be deemed Convention refugees or persons in need of
protection under sections 96 and 97 of the Act.
I. Factual
Background
[2]
The
applicants, Mr. Gaston Kipa Numbi (the principal applicant) and his wife, Ms.
Françoise Tshikudi Ndjibu, are both citizens of the Democratic Republic of the
Congo (the DRC). They seek protection in Canada as they fear persecution by
the DRC government in light of the fact that the principal applicant denounced
the corruption and the embezzlement of funds carried out by the Congolese
president.
[3]
The
principal applicant has worked as a civil servant in the Congolese Ministry of
Finance for approximately thirty (30) years.
[4]
In
July 2006, the principal applicant alleges that he was appointed to the head of
a government body that was mandated to investigate financial impropriety,
contentious fiscal cases and recover tax or custom payments that had not been
properly paid to the government.
[5]
On
March 30, 2010, in the course of his duties, the principal applicant presented
himself at the customs and excise office in order to collect funds that were
supposed to have been paid by a company to the customs department. However, the
applicant maintains that he learned from the Receiver that the funds had been
transferred to an account managed by the President of the DRC. These funds
totalled approximately $23 million USD.
[6]
The
principal applicant alleges that he reported this irregularity and, as a
result, he affirms that he subsequently became the target of the security
forces of the Congolese president.
[7]
On
April 15, 2010, the principal applicant affirms that he received a telephone
call from one of his colleagues who warned him not to return to his office as
the presidential security forces were there to arrest him. Consequently, he
maintains that he never returned to his office.
[8]
The
principal applicant also alleges that he began to receive anonymous and threatening
telephone calls and unexpected visits from the presidential security forces at
his home. As a result, he explains that he decided to leave and hide at a
family member’s house.
[9]
Fearing
for his life, the principal applicant maintains that he requested a one-year
leave from his place of work and applied for Canadian visitors visas.
[10]
The
applicants arrived in Canada on July 5, 2010 and filed for refugee protection
on August 11, 2010.
[11]
The
applicants’ refugee claim was heard by the Board on November 14, 2011.
II. Decision under Review
[12]
The
Board rejected the applicants’ refugee claim as it found that the determinative
issue was the lack of credibility of their account.
[13]
The
Board found it to be implausible that the applicants would be persecuted by the
presidential security forces merely because the principal applicant had
reported the irregularity while carrying out his duties as a civil servant. The
Board concluded that the principal applicant had no other choice but to inform
his supervisor that the funds had been transferred to an account managed by the
Congolese president and that he was not in possession of these funds.
[14]
Rather,
the Board noted that it was likely that after a long career in the public
service, that the applicant merely wanted to retire in Canada. The Board observed that the applicants had not left the DRC in a hurry but had
taken their time to plan their trip and to obtain Canadian visas.
[15]
The
Board also acknowledged that the applicants had submitted substantial
documentation indicating the human rights abuses in the DRC. The Board affirmed
that it was aware of the country’s violations. However, the Board concluded
that, as a government employee, the applicant had not presented any evidence
which demonstrated that he had been persecuted during his long career and found
it unlikely that he would be persecuted now, at the end of his career.
III. Issue
[16]
The
sole issue in this case is the following: were the Board’s findings
reasonable?
IV. Statutory Provisions
[17]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
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.
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Notions
d’asile, de rÉfugiÉ et de personne à protÉger
Définition de « réfugié »
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.
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Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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Personne à protéger
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.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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[18]
It
is trite law that the Board’s findings on credibility and implausibility are
questions of fact
and are therefore reviewable according to the standard of reasonableness (Aguebor
v Canada (Minister of Employment and Immigration) (F.C.A.), [1993] FCJ No
732, 160 NR 315; Hafeez v Canada (Minister of Citizenship and Immigration), 2012 FC 747 at para 13, [2012] FCJ No 798; Cekim v Canada (Minister of Citizenship and Immigration), 2011
FC 177 at para 6, [2011] FCJ No 221; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[19]
Essentially,
the Court notes that the Board found it to be implausible
that the principal applicant would be persecuted by the presidential security
forces at the end of his long career merely because he had reported a financial
irregularity in the amount of $23 million while carrying out his duties as an
auditor for the Ministry of Finance. The Court recalls that the Board
is entitled to make credibility findings based on implausibility, common sense
and rationality (Cooper v Canada
(Minister of Citizenship and Immigration),
2012 FC 118, [2012] FCJ No 135; Hilo v Canada (Minister of
Employment and Immigration) (F.C.A.), [1991] FCJ No 228, 130 NR
236; RKL v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116, 228 FTR 43).
[20]
However,
the Court is of the view that, in the case at bar, this finding is not
supported by any evidence and as such, the Board could
not reasonably make the implausibility finding that it did as it is not based
on the documentation on record. More particularly, the
Court finds that the Board’s implausibility finding was not adequately
supported by the evidence and was not nourished by content. Indeed, the
applicants had drawn the Board’s attention to various documents relating to the
murders of certain individuals (civil servants, politicians, journalists and
activists with non-governmental organizations) who had denounced the
misappropriation of funds by the Congolese state (Tribunal’s Record, pp 833 and
838). Though
this evidence was provided to the Board, it was not treated and/or analysed in
its decision (Fok v Canada (Minister of Employment and Immigration) (F.C.A.),
[1993] FCJ No. 800 (available on QL); Zakhour v Canada (Minister of
Citizenship and Immigration), 2011 FC 1178, [2011] FCJ No 1449).
[21]
For
instance, the Court makes reference to civil servant Steve Nyembo, a senior
official at
the Tax Department who was murdered and had his genitals cut off for denouncing
tax funds being misappropriated by the office of the President (Applicant’s
Record, pp 102 and 103):
[22]
The Court is of the opinion that the Board could not dismiss this
evidence out of hand. It had the obligation to treat this information, as well
as the principal applicant’s testimony, in its decision. In this regard, the
Board’s decision was unreasonable.
[23]
Also, the Board erred in speculating that the principal applicant
merely wished to stay in Canada in order to enjoy his retirement. This
statement was unfounded and unsupported by the evidence. Although the Court
accepts the respondent’s argument that this issue was addressed and discussed
during the hearing (Tribunal’s Record, pp 317-320 and 826-833), it was
completely ignored by the Board in its decision.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The application is allowed.
2.
The decision is quashed and the matter is returned for
reconsideration by a differently constituted panel of the Board.
3.
There is no question for certification.
“Richard Boivin”
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