Date: 19990113
Docket: IMM-964-98
OTTAWA, ONTARIO, THE 13TH DAY OF JANUARY 1999
PRESENT: THE HONOURABLE MADAM JUSTICE McGILLIS
BETWEEN
MWANZA MUKOMA SAMPASSA
NGONGO ERIC SAMPASSA
MUTSHIMA SAMPASSA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT
[1] The application for judicial review is allowed. The decision of the Convention Refugee Determination Division is quashed and the matter is referred back for rehearing before a differently constituted panel.
.../2
The case does not raise any serious question of general importance.
| D. McGillis |
| JUDGE |
OTTAWA, ONTARIO
January 13, 1999
Certified true translation
M. Iveson
Date: 19990113
Docket: IMM-964-98
BETWEEN:
MWANZA MUKOMA SAMPASSA
NGONGO ERIC SAMPASSA
MUTSHIMA SAMPASSA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
[1] This application for judicial review concerns a decision dated January 28, 1998, by the Convention Refugee Determination Division (the panel) which determined that the applicants are not Convention refugees. The applicants are citizens of the Democratic Republic of Congo (former Zaire), and fear persecution by reason of their membership in a particular social group and their alleged political opinions.
[2] The applicants Mwanza and Mutshima Sampassa (adult applicants) are sisters, aged 29 and 22 years old respectively, who have lived in Canada since 1991. The father of the adult applicants held important positions under the Mobutu regime, including those of director general of the civil guard, governor of upper Zaire and minister of the federal cabinet. He has been Zaire"s ambassador to Canada since 1991.
[3] In May 1997, the Mobutu government was overthrown by Laurent-Désiré Kabila, who established a dictatorial regime. The name of the adult applicants" father was included on the list of Mobutu government leaders sought by the Kabila government. Although their father continues to act as ambassador to Canada, the adult applicants fear they would be arrested and persecuted in their country. The applicant Ngongo is the minor child of Mwanza and was represented by his mother.
[4] In its decision, the panel found the testimony of the adult applicants credible, however, it concluded that their fear of persecution was not well-founded.
[5] Counsel for the applicants claimed, inter alia, that the panel erred in its analysis of the issue of persecution based on family ties. The panel"s analysis of this issue was as follows:
| [TRANSLATION] The applicants also stated that several members of their mother"s and father"s families lived in Lubumbashi and Likasi. The property and personal effects belonging to most of them were seized by the soldiers and by representatives of the Kabila government. One of their aunts was beaten by soldiers for refusing to surrender her property, and she later died of her injuries. Property belonging to their father was also seized by the Kabila government. This information is consistent with what is found in exhibit A-1, T-8, which indicates that the present government confiscates the property of the families of former senior officials of the Mobutu government. The three applicants have no property themselves, and in any case, the seizures should not necessarily be considered persecution, in light of the extensive corruption of the Mobutu regime. |
[6] In my view, the panel erred in law in analysing the applicants" fear of persecution on returning to the Democratic Republic of Congo too narrowly, considering the credible testimony of the adult applicants and the corroborating documentary evidence. More precisely, in analysing the applicants" risk of persecution in the event of returning to their country, the panel should have considered the total destitution of the members of their family, due to the confiscation of their property by the government. The fact that the applicants themselves do not have any property which could be seized is only one factor relevant to the analysis of this issue. The panel accordingly erred in failing to consider the persecution suffered in the past by the members of the applicants" family, in its analysis of their risk of persecution.
[7] The application for judicial review is allowed. The panel"s decision is quashed and the matter is referred back for rehearing before a differently constituted panel. The case does not raise a serious question of general importance.
| D. McGillis |
| _____________________ |
| Judge |
OTTAWA
January 13, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-964-98
| STYLE OF CAUSE: MWANZA MUKOMA SAMPASSA et al. v. MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 11, 1999
REASONS FOR ORDER BY MCGILLIS J.
DATED January 13, 1999
APPEARANCES:
Nicole Goulet FOR THE APPLICANTS
Jan Brongers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nicole Goulet FOR THE APPLICANTS
Hull, Québec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada