Date: 20011214
Docket: IMM-4948-00
Ottawa, Ontario, December 14, 2001
Before: Nadon J.
BETWEEN:
MBOKOLO BOSIAKALI
D'ALMEIDA BOSIAKALI ITSELI
MERVEILLE BASHALA
ISRAEL BOSIAKALI
SIFA GLORIA BOSIAKALI
JOSUE ANDY BOSIAKALI
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review is allowed. The decision by the Refugee Division of the Immigration and Refugee Board on August 21, 2000 is quashed and the matter is referred back to a different panel for re-consideration.
|
Marc Nadon Judge |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20011214
Docket: IMM-4948-00
Neutral citation: 2001 FCT 1381
BETWEEN:
MBOKOLO BOSIAKALI
D'ALMEIDA BOSIAKALI ITSELI
MERVEILLE BASHALA
ISRAEL BOSIAKALI
SIFA GLORIA BOSIAKALI
JOSUE ANDY BOSIAKALI
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
NADON J.
[1] The plaintiffs are challenging a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on August 21, 2000 that they are not Convention refugees.
[2] The principal plaintiff, Mbokolo Bosiakali, is a citizen of the Democratic Republic of the Congo. He claimed refugee status on account of his political opinions. The other plaintiffs are members of the principal plaintiff's family, namely his wife D'Almeida Bosiakali Itseli and their children, Merveille, Israel, Sifa Gloria and Josue Andy. Their claim is based on the principal plaintiff's political opinions and their membership in a particular social group, the family.
[3] The Refugee Division concluded that neither the principal plaintiff nor his wife were credible. Consequently, it dismissed their refugee status claims and those of their children.
[4] Mr. and Mrs. Bosiakali and their daughter Merveille testified before the Refugee Division. The Division concluded that the testimony of the principal plaintiff contained contradictions, confusion and improbabilities. Further, in the opinion of the Refugee Division the explanations given by the principal plaintiff were not satisfactory. The Refugee Division concluded that Mrs. Bosiakali's testimony was not trustworthy. Finally, on Merveille's testimony the Refugee Division concluded as follows, at p. 10 of this decision:
[TRANSLATION]
The claimant's testimony was straightforward and spontaneous. She explained the events she said she experienced in June and July 1998. She also spoke of her departure for Brazzaville on August 1, 1998 and of her journey to Canada on March 26, 1999. The tribunal has no reason to doubt the truthfulness of the claimant's testimony. The other three children were not called to testify.
[5] The relevant facts were summarized as follows at pp. 1 and 2 of the Refugee Division's decision. I set them out below:
[TRANSLATION]
Mbokolo BOSIAKALI
The claimant was allegedly a member of the Zaire Air Force from August 1955 to June 1998. He allegedly held various positions as sub-lieutenant and commander of telecommunications for the Air Force. He allegedly also held the position of manager at the Kisangani Airport from 1986 to 1991. He was allegedly suspended from his duties in 1996.
The claimant said he encountered various problems throughout his career, ranging from delayed promotion to detention and including periods of suspension. The latest suspension in 1996 was connected with his ties to one Mallants, who he said wanted to support Kabila and overthrow Mobutu.
The claimant said he had contacts with Col. Mallants in 1997 when Kabila came to power. He said he prepared a report for reorganizing the Régie des voies aériennes (RVA) and submitted everything to Col. Mallants in late July 1997.
In May 1998 Col. Mallants, at a press conference, said he wished to overthrow the Kabila government because it was similar to the Mobutu government.
On May 30, 1998 the claimant said he received a summons to appear before the military court. He said he was charged with communicating with Col. Mallants and certain former generals of the Zaire Army (Forces armées zaîroises - FAZ).
On June 24, 1998 he said he received a summons to appear before the said court the following day.
On June 25, 1998 he said he was imprisoned at once. He said he was sentenced to five years in prison for propaganda contrary to the ideals of the Alliance des Forces Démocratique pour la Libération du Congo (AFDL).
On the night of June 30 to July 1 he said he was released and taken by canoe to Brazzaville after his family had bribed two soldiers.
Three weeks later his wife joined him with travel documents. They left Brazzaville for New York on June 25, 1998. He said they arrived in Canada on August 4, 1998 and claimed refugee status the same day.
[6] The Refugee Division summarized Mrs. Bosiakali's own account as follows at pp. 2 and 3 of its decision:
[TRANSLATION]
D'Almeida Bosiakali Itseli
The claimant allegedly learned of her husband's imprisonment on June 25, 1998. She said she visited her husband every day from June 26 to 30, 1998. She said she asked her husband's family to take steps to get him released.
At 7:00 a.m. on July 1, 1998 soldiers came to the claimant's house looking for her husband. As they did not find him they took her with them and imprisoned her in the basement of the military court.
On July 2 she was the victim of a high fever and was taken to the Kinshasa hospital. The claimant's parents were notified by the hospital and took her to another hospital, where she stayed for five days.
On or about July 9, 1998 the plaintiff's brother-in-law took her to the U.S. embassy to get a visa.
The claimant said that on July 21 she joined her husband in Brazzaville. They left Congo-Brazzaville on July 25, 1998 together for New York. She said they got to Canada on August 4, 1998 and claimed refugee status immediately.
[7] In its analysis of the principal plaintiff's claim the Refugee Division noted that the latter ascribed his problems primarily to his relationship with Col. Willy Mallants, a retired senior officer of the Belgian army. After reading and re-reading the principal plaintiff's testimony, I have no doubt that this finding by the Refugee Division is valid. The Division concluded that the principal plaintiff was not credible on the following grounds:
1. the Refugee Division was not persuaded that any close relationship existed between the principal plaintiff and Col. Mallants, and therefore that that relationship was the cause of his imprisonment on June 25, 1998;
2. despite the fact that the principal plaintiff said he prepared a report on reorganization of the Régie des voies aériennes at Col. Mallants' request, he was unable to produce a copy of the report;
3. the Refugee Division did not believe the principal plaintiff's testimony that he was sentenced to five years' imprisonment in June 1998 for being in touch with Col. Mallants;
4. on arrival in Canada the principal plaintiff completed the document filed as Exhibit A-16 and in it he indicated, contrary to his testimony, that he had not been imprisoned in his country;
5. the Refugee Division found improbable the fact that after 43 years in the Zaire Air Force and after being manager of the Kisangani Airport from 1986 to 1991 the principal plaintiff testified that he had never seen armed aircraft or helicopters.
[8] The Refugee Division gave the following reasons for its finding that Mrs. Bosiakali was not credible:
1. like her husband the claimant indicated on arrival in Canada that she had not been imprisoned in her country: at the same time, in her testimony before the Refugee Division she said she was imprisoned for two days, on July 1 and 2, 1998;
2. the Refugee Division did not believe the claimant when she testified that she was taken to hospital on July 2, 1998;
3. the Refugee Division noted that the claimant's passport was issued on June 11, 1998 whereas her testimony was that the passport was prepared after her arrest in July 1998.
[9] As I indicated earlier, the Refugee Division concluded that the claimant Merveille's testimony was frank and straightforward and that it had no reason to doubt the truthfulness of the testimony. Let us therefore look at this testimony, contained in pp. 162 to 186 of the transcript of June 8, 1999 (pp. 226 to 250 of tribunal's record).
[10] When she testified before the Refugee Division Merveille, who was born on May 25, 1984, was 15 years old. She testified about Exhibit P-5, a summons issued by the military court and dated June 24, 1998. The claimant Merveille testified that she acknowledged receipt of this document on the day that it was served by a soldier. Merveille said that the day the document was served her mother and her brothers and sisters were present in the house. Her father was not there.
[11] The claimant Merveille also testified about what happened on July 1, 1998. She stated that about 7:00 a.m., when she and her sister were getting ready to go and look for their school reports, dozens of soldiers entered the house. After searching the entire house, the soldiers asked where the principal plaintiff was. The soldiers woke up Mrs. Bosiakali at once to question her about her husband. Specifically, the soldiers wanted to know where the principal plaintiff was. After this interrogation, in which Mrs. Bosiakali replied that she did not know where her husband was, the soldiers arrested Mrs. Bosiakali and took her with them.
[12] That in outline is the testimony by the claimant Merveille. This testimony, which the Refugee Division found credible, at least supported Mrs. Bosiakali's testimony, when she claimed she was arrested on July 1, 1998. Merveille's testimony also indirectly corroborated the fact that the principal plaintiff was arrested.
[13] In its decision the Refugee Division, after concluding that Merveille's testimony was credible, failed to reconcile this testimony with the testimony of the principal plaintiff and his wife. In my view, the Refugee Division could not conclude that the claimant Merveille was completely credible and at the same time dismiss the testimony of the principal plaintiff and his wife about the events of June 24 and July 1, 1998, as being not credible.
[14] If the account given by Mrs. Bosiakali about her arrest on July 1 and her hospitalization the following day was not credible, I cannot see how the Refugee Division could conclude that Merveille's testimony about the arrest on July 1 was credible. Without any question there is a serious contradiction. If Mrs. Bosiakali was not arrested on July 1, 1998 as she claimed, Merveille's account could not be true and so could not be credible. As I indicated earlier, after concluding that Merveille's testimony was credible the Refugee Division failed to consider the consequences of accepting that testimony.
[15] I accordingly conclude that the Refugee Division made an error justifying my intervention. The decision by the Refugee Division on August 21, 2000 will be quashed and the matter referred back to a different panel for reconsideration.
|
Marc Nadon Judge |
OTTAWA, Ontario,
December 14, 2001.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4948-00
STYLE OF CAUSE: MBOKOLO BOSIAKALI et al.
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 26, 2001
REASONS FOR ORDER BY: NADON J.
DATED: DECEMBER 14, 2001
APPEARANCES:
JEAN-MICHEL MONTBRIAND FOR THE APPLICANT
SYLVIANE ROY FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEAN-MICHEL MONTBRIAND FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada