Date: 19980825
Docket: IMM-4365-97
Between: Landu Christian Bele-Binda
Applicant
And: Minister of Citizenship and Immigration
Respondent
REASONS FOR ORDER and ORDER
DENAULT J.:
[1] The applicant, who has Zairian nationality, asked Canada to grant him political refugee status because of his fear of persecution in his country of origin by agents of the Mobutu régime. In mid-May 1997, shortly after the hearing of his claim on March 11, President Mobutu was overthrown by Laurent-Désiré Kabila's Alliance des forces démocratiques de libération [Alliance of Democratic Forces for Liberation] (AFDL). As a result, the Refugee Division (the tribunal) considered the effect of this change of circumstances on the refugee claim.
[2] The tribunal concluded that because of the overthrow of the Mobutu régime, the claimant's fear of persecution by the agents of that régime was not well-founded. It also felt that, on a balance of probabilities, there was [translation] "scarcely more than a mere possibility that the claimant would be persecuted in the DRC-Z1 for one of the reasons set out in the Convention."
[3] The applicant is seeking judicial review of that decision, arguing that the tribunal interpreted the facts erroneously, in a perverse and capricious manner having regard to the evidence, and erred in law in applying the test relating to reasonable fear of persecution.
[4] I shall dispose of the question of the alleged error of law straightaway. The applicant contends that the tribunal wrongly applied the test of reasonable possibility of persecution as set out by the Federal Court of Appeal in Adjei v. M.E.I.,2 and as clarified in several other decisions3 since then, when it said there was "scarcely more than a mere possibility" of persecution. In the instant case, this is a spurious problem, which arises from the translation of the text. In fact, the error is not attributable to the author of the decision, in that the decision, which was written first in English, correctly stated the applicable test: "On a balance, of probabilities we find that there is not more than a mere possibility that the claimant would suffer persecution ...". This is the test recognized in the case law. This ground does not justify the intervention of the Court.
[5] The applicant further contends that the tribunal wrongly assessed the evidence. The applicant, an activist in the cause of democracy and a member of the Parti social démocrate chrétien [Christian Social Democrat Party] (PDSC), argues that if he were to be returned to his country, he would fight for democracy, would enlist in the opposition, and would be persecuted by the Kabila régime, which, upon taking power, banned political demonstrations and other activities by parties other than his own.
[6] After an exhaustive analysis of the evidence, the tribunal acknowledged these facts but found that the numerous reports by observers did not confirm the idea that the government was interfering in the affairs of political parties other than the Union pour la démocratie et le progrès social [Union for Democracy and Social Progress] (UDPS), the main opposition party under the Mobutu régime. The tribunal also concluded that there was no confirmation of evidence of persecution against ordinary people active in the cause of democracy.
[7] It is important to note in this case that the evidence of the activities of the new Kabila régime before the tribunal, whose decision was rendered on September 12, 1997, was limited to the period from when he took power in mid-May 1997 to mid-August. The evidence is silent as to persecution of members of the PDSC, and of individuals active in the cause of democracy. It is self-evident that the ban on political demonstrations and parties other than the party of the governing régime (AFDL) may suggest that democratic rights are being infringed, although that ban does not establish that the applicant's fear of persecution is well-founded. For one thing, that fear must be assessed having regard to the evidence submitted at the time of the claim,4 and in this case the applicant is not disputing that he was given an opportunity to present his arguments regarding the change of circumstances. For another, it is settled law5 that this Court must not intervene to change a finding of fact made by the Refugee Division where there is support for that finding in the evidence.
[8] In the instant case, if this Court had been asked to dispose of the question of fact, it might have come to a conclusion different from the tribunal's. However, this is not the test that it must apply on an application for judicial review.6 In this case, the analysis of the change of circumstances was essentially a question of fact, and the Court is not persuaded, based on the evidence in the record, that the Refugee Division erred in dismissing the applicant's refugee claim.
[9] The application for judicial review is dismissed. There is no serious question of general importance to be certified in this case.
PIERRE DENAULT
J.F.C.C.
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-4365-97
STYLE OF CAUSE: LANDU CHRISTIAN BELE-BINDA v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 13, 1998
REASONS FOR ORDER OF DENAULT J.
DATED: August 25, 1998
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon, Guertin, Montbriand & Plamondon
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
__________________1 Democratic Republic of the Congo.
3 Panniah v. M.E.I., 13 Imm.L.R. (2d) 244; Osei v. M.E.I. (1990), 12 Imm.L.R. (2d) 49; Salibian v. Canada, [1990] 3 F.C. 250.
4 Mileva v. M.E.I., [1991] 3 F.C. 398
5 See, inter alia, Toro v. Canada (M.E.I.), [1981] 1 F.C. 652; Tawfik v. Canada (M.E.I.) (1993), 26 Imm.L.R. (2d) 148