Date: 19980821
Docket: IMM-5470-97
Ottawa, Ontario, August 21, 1998
Present: The Honourable Mr. Justice Pinard
Between:
Thérèse Baninga NDEKO
Applicant
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Determination Division dated December 1, 1997, determining that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Bernard Olivier
Date: 19980821
Docket: IMM-5470-97
Between:
Thérèse Baninga NDEKO
Applicant
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Determination Division dated December 1, 1997, determining that the applicant is not a Convention refugee.
[2] The Refugee Division held that as a result of the changes that have occurred in the Democratic Republic of the Congo the applicant's fear is unfounded. The following passage from the decision in question should be noted:
[TRANSLATION] As indicated below, the panel finds that in this claim, the result of the changes in the DRC is that the claimant's fear regarding the Mobutu supporters has become an unreasonable, and accordingly an unfounded fear.4
Plainly, the Mobutu régime no longer exists.5 It is implausible that the Mobutu soldiers, which have joined Kabila's forces, would continue to follow orders from the former Mobutu régime. The documentary evidence shows that Mobutu's supporters were in a precarious situation when Kabila's forces arrived. It is clear that the soldiers who had not fled their country with Mobutu would like to distance themselves from their former activities as Mobutu's accomplices. We are not of the opinion that it is reasonable to believe that a person such as the claimant would attract the attention of Kabila's forces because of her husband's political activities during the Mobutu régime.
The panel is of the opinion that it is not reasonable to believe that the fact that the claimant's husband was a Mobutu soldier is an objective basis for a well-founded fear. The documentary evidence6 indicates that some Mobutu officials have been arrested and some officers have been charged, but there is insufficient evidence in the documentary evidence that the families of former Mobutu officials are targeted or persecuted by Kabila's government or forces.
Having regard to the persecution alleged by the claimant on the part of the Kabila government, the panel does not find her fear to be well-founded. The claimant was unable to provide evidence in that respect, and so her testimony on this point is merely speculative.
4 Cuadra v. Canada (Attorney General) (1993), 157 N.R. 390 (F.C.A. no. A-179-92) Isaac, Marceau, Linden, July 20, 1993, p. 3 (Marceau)
5 Exhibits A-1, A-2 and A-3.
6 Exhibit A-3, Supplementary Documents on Zaire: August 27, 1997, s. 12, p. 3, [TRANSLATION] "The complete list of former Mobutu officials currently in prison", Le Soft, August 7, 1997.
[3] In Yusuf v. Canada (M.E.I.) (1995), 179 N.R. 11, the Federal Court of Appeal held that change of circumstances is a question of fact. In the instant case, the decision of the Refugee Division on that point seems to me to be based on significant elements of the documentary evidence to which it referred. Furthermore, the Refugee Division had the advantage of seeing and hearing the applicant and her witness, Ms. Gizenga.
[4] On the question of assessing the facts, it is not up to this Court to substitute itself for the Refugee Division when, as in this case, the applicant fails to prove that the panel based its decision on an erroneous finding of fact, that it made in a perverse or capricious manner without regard for the evidence before it.
[5] Recently, in Nkongolo-Beyea v. Canada (M.E.I.) (May 6, 1998), IMM-3865-97, my colleague Mr. Justice Richard said the following with respect to the new political situation in the Democratic Republic of the Congo:[1]
In the instant case, the panel analysed the new political situation in the D.R.C. at length. Although it acknowledged that the political situation in the D.R.C. was not yet ideal, the panel found no evidence to support the applicant's fear of persecution with respect to the new government of Laurent Kabila.
The applicant has not discharged his burden of showing that the inferences drawn by the Refugee Division, an expert tribunal, could not reasonably have been drawn.
[6] In the instant case, after reviewing the evidence in the record, I must come to the same conclusion.
[7] Accordingly, the application for judicial review is dismissed. Since the issue in this case was essentially a question of fact, I agree with counsel for the respondent that there is no question to be certified.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 21, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-5470-97
STYLE OF CAUSE: THÉRESE BANINGA NDEKO v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 12, 1998
REASONS FOR ORDER OF PINARD J.
DATED: August 21, 1998
APPEARANCES:
Robert Néron FOR THE APPLICANT
Diane Dagenais FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert Néron FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada