Date: 20000824
Docket: IMM-3522-99
Ottawa, Ontario, August 24, 2000
Before: Pinard J.
Between:
MBUYI WILFRIED KABEYA
MANGABU CLARIS KADIMA
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review of the decision rendered by the Refugee Division of the Immigration and Refugee Board on February 5, 1999, that the plaintiffs are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000824
Docket: IMM-3522-99
Between:
MBUYI WILFRIED KABEYA
MANGABU CLARIS KADIMA
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision rendered by the Refugee Division of the Immigration and Refugee Board on February 5, 1999, that the plaintiffs Mbuyi Wilfried Kabeya and his minor sister Mangabu Claris Kadima are not Convention refugees, as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The plaintiffs, citizens of the Democratic Republic of the Congo (DRC), are Mr. Kabeya (the principal plaintiff) and his minor sister Miss Kadima. The latter based her claim on that of her brother.
[3] The subject decision was based on the fact that the principal plaintiff lacked credibility:
[TRANSLATION]
| After analysing the evidence as a whole the panel concluded that the claimants were not "Convention refugees". The testimony of the principal claimant was riddled with significant omissions and unexplained, and unexplainable, improbabilities. His testimony was found not credible by the panel. |
[4] The panel in fact noted the following omissions and improbabilities:
| - the extracts from the plaintiffs' birth certificates bear the issue date of June 6, 1998, when they were living in hiding and sought by the DRC authorities: the principal plaintiff was unable to explain how the priests obtained the said documents; |
| - the plaintiff's mother mentioned a larger number of children in her Personal Information Form (PIF) than the principal plaintiff listed in his: at the hearing, the principal plaintiff prepared a new list of his brothers and sisters, but the latter did not correspond to that contained in his mother's PIF; |
| - it is not likely that the plaintiffs did not know the names under which they travelled and that they travelled with the passports of a country unknown to them; |
| - the principal plaintiff could not tell the panel about the cities or countries through which he travelled; |
| - the panel thought that the addendum filed by the principal plaintiff to correct his years of study was necessary in order to be consistent with Exhibit P-2, P-3 and P-4; despite this addendum, he omitted university years; |
| - it is not likely that the principal plaintiff did not know about any significant problems regarding his participation in the Union pour la démocratie et le progrès social (UDPS) in Mobutu's time: when questioned about this, the principal plaintiff added two events in 1992 and 1994; he said he omitted these incidents on his counsel's advice; |
| - some points were mentioned in the principal plaintiff's PIF and omitted from his mother's PIF: the principal plaintiff maintained that he thought it was necessary to describe only what he had personally experienced, but according to the panel when an incident involves a child or his mother, as the case may be, it is mentioned; |
| - the principal plaintiff failed to mention in his PIF that his brother died in 1996 as the result of torture inflicted on him by the Mobutu police; |
| - according to the allegations of the principal plaintiff, his father was a co-founding member of the UDPS, but the UDPS statements filed by the principal plaintiff did not mention this. |
[5] Despite the painstaking submission by Mr. Blanchard, the Court is not persuaded in view of the evidence in the record that the panel made a decision based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before it. In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, Décary J.A. for the Federal Court of Appeal said the following:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[6] In the case at bar the assessment of the facts by the Refugee Division, as a specialized tribunal, and the inferences drawn by it seem entirely reasonable to the Court.
[7] As to the principal plaintiff's argument that the neglect of his ex-counsel, Brigitte Objois, was a sufficient ground for allowing his application for judicial review, I find this to be without merit in view of the many contradictions and improbabilities which are not necessarily related to Ms. Objois' alleged incompetence. Although she should not have advised him to pass over the important incidents occurring in Mobutu's time in silence, I consider that this bad advice does not excuse the many other discrepancies in the principal plaintiff's version of the facts. Further, I am not persuaded that it was patently unreasonable for the panel, in view of the two events that occurred under the Mobutu regime, those in 1992 and 1994, to conclude:
[TRANSLATION]
| The claimant should at least have mentioned them briefly. |
[8] The application for judicial review is accordingly dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 24, 2000
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-3522-99
STYLE OF CAUSE: MBUYI WILFRIED KABEYA et al.
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 5, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: AUGUST 24, 2000
APPEARANCES:
MARIO BLANCHARD FOR THE APPLICANT
SYLVIANE ROY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIO BLANCHARD FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada