Date: 19980915
Docket: IMM-4379-97
BETWEEN:
NSEYA KALUNDA
KABANGA KAPINGA
NGOIE MPONDA
NGOIE ODIA
NGOIE BUKASA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Tuesday, September 15, 1998)
HUGESSEN, J.:
[1] This is an application for judicial review of a decision of the CRDD which found that the principal applicant and her children were not Convention refugees.
[2] The principal applicant was an active member of a political party in the country that was then known as Zaire, that party being known by its initials UDPS. Her activities involved organizing housewives in her local area and informing them of the activities of the party which was opposed to the then regime in Zaire; the regime of the notorious dictator Mobutu. She was an active member and took part in a demonstration in July 1996, which led to her being arrested and very badly treated by the authorities of the Mobutu regime. After she contrived her release from that imprisonment, she left the country and came in due course to Canada. Her eldest daughter, who is of major age and was also a participant in that demonstration and was also arrested and ill-treated, accompanied her mother to Canada. The other claimants are minors and the claims of all the daughters depend upon the claim of the mother.
[3] The crux of the Board's finding was that they were of the view that the activities of the principal claimant would not attract the attention of the authorities in the country from which she had fled. That country is now known as the Democratic Republic of Congo. The Board was of the view that there had been a change of circumstances in that country and indeed there had. The Mobutu government was chased from power and has been replaced by a government led by Laurent Kabila and his party which is known by its initials of AFBL.
[4] At the time of the hearing before the Board, the Kabila government had not been very long in power but it had already banned political activities and had taken some very serious steps to which I will return in a moment against political activists and demonstrators, particularly against members of the party to which the principal applicant belongs. The Board however took the view that because of the chaotic and unstable situation in the country, the government had the right to ban political activities and they also took the view that they were entitled to enforce that ban by what they apparently viewed as reasonable means. This is how the Board expressed itself in its decision:
| Il n'y a pas de preuve suffisante qui indique que les autorités de l'AFDL arrêtent les membres des partis politiques pour le seul motif de leur adhésion à un parti politique. La preuve documentaire indique que lors de la prise de pouvoir de l'AFDL, il y a eu certaines courtes détentions de membres de l'UDPS, cependant la preuve documentaire indique qu'elles auraient eu lieu lors de manifestations publiques non-autorisées par le gouvernement. Le leader de l'AFDL a interdit les manifestations publiques. Le tribunal est d'avis que la dérogation des droits civils dans une situation temporaire, dans certaines circonstances comme dans la situation de chaos qui a régné pendant la dernière période du règne de Mobutu, n'équivaut pas per se à de la persécution. |
[5] In my view, that finding is perverse. The Board had before it evidence of a great deal more than simple short periods of detention imposed on members of the UDPS. Even at the time of the Board's hearing, there was evidence in the documents before it of killings of peaceful protesters on at least two occasions, of prolonged detention of peaceful protestors, of them being held incommunicado and being subjected to what can only be described as torture. No amount of chaos justifying a suspension of civil rights can be held to justify torture and killing of innocent protestors. In my view, as I say, the Board's finding was perverse. I note in particular that while this evidence was before the Board, it at no time indicated that it rejected that evidence. It was of course entitled to do so if it wanted to, but it certainly could not do so by simply ignoring it.
[6] In the result, the application will be allowed. The decision of the Board will be set aside and the matter will be returned to the Board for a new hearing by a different panel. Before entering the order, I invite counsel to make any submissions they may have with respect to whether I should certify an important question.
"James K. Hugessen"
Judge
Toronto, Ontario
September 15, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4379-97
| STYLE OF CAUSE: NSEYA KALUNDA ET AL |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, SEPTEMBER 15, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HUGESSEN, J.
DATED: TUESDAY, SEPTEMBER 15, 1998
APPEARANCES:
Ms. Catherine Smee
For the Applicants
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Ms. Catherine Smee
| Barrister & Solicitor |
| 200-166 Pearl Street |
| Toronto, Ontario |
| M5H 1L3 |
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980915
Docket: IMM-4379-97
Between:
| NSEYA KALUNDA |
| KABANGA KAPINGA |
| NGOIE MPONDA |
| NGOIE ODIA |
| NGOIE BUKASA |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER