Docket: IMM 5277-03
Ottawa, Ontario, this 7th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
POPOL MAYOMBO MAYOMBO
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondant
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for clarity and precision.)
[1] The Applicant is a 20 year old citizen of the Democratic Republic of Congo ("the Congo") who alleges has a well-founded fear of persecution by reason of his political opinion and that he would be subject to torture, risk to his life or risk of cruel and unusual treatment or punishment if returned to the Congo.
[2] The Applicant claims his mother is of Tutsi origin and he and his family have "faced trouble" as a result. He alleges he was kidnapped in Kitona by soldiers of Laurent Kabila, the then leader of the Congo, who forced him to work as a child soldier. In September of 1998, the soldiers took him to Kisangani where they joined with the rebels. The Applicant alleges he was released from Kabila's army because they "had no use for him".
[3] On May 14, 2002, soldiers took control of the national radio station in Kisangani and incited the population to revolt. The Applicant claims that at this point he began his escape which eventually led him to Canada.
[4] The Board dismissed his claim for refugee status finding that he had not established his identity nor that his testimony was credible.
[5] Both sides agree that the applicable standard of review is patent unreasonableness. See(Conkova v. Canada (M.C.I.), [2000]_F.C.J. No. 300; Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).
[6] The Applicant argues that the Board made a reviewable error by not considering the ground of race and membership in a particular social group. This point cannot succeed. Given that the Board was not satisfied as to his identity, it follows as a logical corollary that it could not rule on his claims as to persecution by virtue of race or membership in a particular social group.
[7] The Applicant further alleges that the Board did not give sufficient reasons for the rejection of the birth certificate that was obtained for him. The Applicant asserts that the Board should have been more specific in its reasons for finding this portion of his story implausible. The Boards finding are:
When asked to explain how he had obtained the birth certificate that had allegedly also been originally issued in 1994, he responded that the fathers had given it to him in Kisangani. However, he alleged that he had not thought to ask them how they had obtained it, which the panel finds implausible.
The claimant could not explain how he had travelled with two identity documents under two different names (passport and birth certificate), or why the birth certificate had been issued on May 7, 2002, which was one week before the claimant decided to leave the country... (underlining added)
[8] While the reasoning could be more explicit, it is obvious from the quote that the Board did not accept the birth certificate as genuine given the date of notarization and the difference with the name on the passport.
[9] The documentary evidence before the Board stated that the radio station was taken over at 6:00 a.m. but the government regained control by 8 a.m. The Board's decision states that the Applicant wrote in his Personal Identification Form ("PIF") that early in the afternoon he heard the soldiers had taken control of the radio station and that is when he fled. This finding undermines the Applicant's credibility as the situation had returned to normal by the afternoon. The Applicant asserts that he did not specify a time the radio station was taken over in his PIF and that the Board made an error when so finding. It is correct that the Board made an error but it was an error as to source not content. The tribunal record on p. 398 reveals that he testified he heard the news of the takeover (but not the subsequent reassertion by the government) in the afternoon. This error, as to source but not content, does not constitute a reversible error.
[10] Lastly, the Applicant submits that the Board had no evidence before it to claim that it was implausible that he was released by the soldiers because "they had no use for him". The documentary evidence on the file is full of tales of forced recruitment and retention of children and young adults by both the rebels and the Congolese army. The Board, although it did not refer to this record, had reasons for its plausibility findings.
[11] For the aforementioned reasons this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM- 5277-03
STYLE OF CAUSE: Popol Mayombo Mayombo v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 6, 2004
REASONS FOR ORDER AND ORDER: The Honourable
Mr. Justice von Finckenstein
DATED: October 7, 2004
APPEARANCES:
Rezaur Rahman for the Applicant
Derek Rasmussen for the Respondent
SOLICITORS OF RECORD:
Rezaur Rahman for the Applicant
Ottawa, Ontario
Mr. Morris Rosenberg for the Respondent
Deputy Attorney General of Canada