Federal Court Decisions

Decision Information

Decision Content


Date: 19981229


Docket: IMM-688-98

OTTAWA, ONTARIO, THE 29th DAY OF DECEMBER 1998

Present:      MR. JUSTICE J.E. DUBÉ

Between:

     ESPÉRANCE KALENGA

     and GUANI KALENGA

     Applicants

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     ORDER

     The application for judicial review is dismissed.

                                         J.E. DUBÉ

    

     Judge

Certified true translation

Peter Douglas


Date: 19981229


Docket: IMM-688-98

Between:

     ESPÉRANCE KALENGA

     and GUANI KALENGA

     Applicants

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

DUBÉ J.:

[1]      This is an application under section 82.1 of the Immigration Act1 for leave to commence an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel), dated January 16, 1998, determining that both applicants are not Convention refugees.

1. Facts

[2]      The applicants are two sisters, born in Kinshasa on December 18, 1977, and January 1, 1979, respectively. They are citizens of the Democratic Republic of the Congo (DRC) (formerly Zaire). Their subjective fears of persecution are based on the risk they might be perceived as being associated with Rwandans and Hutus. Their maternal grandfather and their stepfather (their biological father died in 1980) were Hutus of Rwandan nationality. According to their testimony, everyone in their neighbourhood knew the applicants were Hutus of Rwandan nationality. In addition, one of the two applicants says she has the distinctive physical features of Rwandan Hutus.

[3]      The applicants say they lived peacefully in Kinshasa until the civil war broke out in the fall of 1996. On December 12, 1996, soldiers forced their way into their house in Kinshasa, beat their stepfather and took him with them. Their mother was also abducted on February 25, 1997, and their house was ransacked.

[4]      The applicants managed to get out of Kinshasa by small boat on March 17, 1997. They came to Canada via the Congo and France on March 26, 1997, and claimed refugee status the next day. To date, the applicants have no news of their parents.

2. Decision

[5]      The panel identified the problem in the following way:[TRANSLATION] . . . The issue in this case is whether people associated with foreigners, Rwandans or Hutus are victims of acts constituting persecution at the hands of the people of the DRC.

[6]      The panel based its decision on the documentation before it, which it summarized in the following way:[TRANSLATION] The documentation before us in this case shows that during the civil war from October 1996 to May 1997 that led to the overthrow of former President Mobutu"s regime, Rwandans had difficulties in the DRC. On one side, armed forces loyal to former President Mobutu were inclined to mistreat Tutsis, both Congolese and Rwandan, suspecting them of supporting the rebels, and on the other side, rebel troops loyal to President Kabila and supported by the Rwandan Tutsis mistreated Hutus, particularly Hutu refugees who had fled to the eastern DRC in 1994.2 We note in this regard that the claimants" stepfather and mother were arrested in Kinshasa by soldiers of the former regime during the civil war that led to the fall of that regime. Furthermore, the documentation shows that Hutus who fled Rwanda in 1994 and sought refuge in the eastern DRC are still having problems in the eastern DRC .3 Last, the documentation shows that there is currently some resentment among Congolese people toward Rwandans, particularly toward Rwandan Tutsis because of the very great influence they are considered to have on the government of the DRC.4 Moreover, the documentation does not suggest that foreigners are victims of acts constituting persecution in the DRC, nor does it show that Rwandans or Hutus are victims of acts constituting persecution elsewhere than in the eastern DRC. The documentation does not, of course, suggest that people merely associated with foreigners, Rwandans or Hutus are victims of acts constituting persecution in the DRC, except perhaps in the eastern part of the country. [Emphasis added.]

[7]      The panel accordingly found that people merely associated with foreigners, Rwandans or Hutus are not victims of acts constituting persecution in the DRC, except perhaps in the eastern part of the country.

3. Analysis

[8]      The applicants" basic argument is that the panel did not have regard to all the evidence. Their counsel reviewed many excerpts from the documentation in order to conclude that there was a definite possibility of persecution of Rwandan Hutus in Kinshasa. On the whole, the documentary evidence demonstrates that such a possibility exists mainly in the eastern Democratic Republic of the Congo at the Rwandan border, not in the Kinshasa region in the far west of the country. Accordingly, it was open to the panel to find that the applicants" subjective fear was not based on an objective fear concerning the region to which they must return.

[9]      It must be recalled that insofar as interpreting the documentation is concerned, it is not for this Court to substitute its own findings for the panel"s, unless the panel"s interpretation is patently unreasonable. That is not the case here.

[10]      Accordingly, this application for judicial review cannot be allowed.

[11]      Both parties agree that there is no question of general importance to be certified here.

OTTAWA, Ontario

December 29, 1998

                                         J.E. DUBÉ

    

     Judge

Certified true translation

Peter Douglas

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              IMM-688-98

STYLE OF CAUSE:          ESPÉRANCE KALENGA

                 and GUANI KALENGA

                 v.

                 MINISTER OF CITIZENSHIP

                 AND IMMIGRATION

PLACE OF HEARING:      OTTAWA, ONTARIO

DATE OF HEARING:      DECEMBER 16, 1998

REASONS FOR ORDER OF DUBÉ J.

DATED              DECEMBER 29, 1998

APPEARANCES:

ROBERT NÉRON                              FOR THE APPLICANTS

DIANE DAGENAIS                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

ROBERT NÉRON                              FOR THE APPLICANTS

MORRIS ROSENBERG                          FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA

__________________

1      R.S.C., 1985, c. I-2.

2      Swiss Federal Republic, Office fédéral des réfugiés, "Zaïre: Racines et acteurs du conflit civil", Givisiez, April 30, 1997, p. 12 - 13, Exhibit A1, part 4.

3      Entraide Missionnaire, "Info-Congo/Kinshasa, No. 131", Montréal, September 12, 1997, p. 2, Exhibit A1, part 3.

4      "Au nouveau Congo, les cent jours du pouvoir éclaté de Kabila, Radioscopie du régime du tombeur de Mobutu", in Libération , Paris, August 26, 1997, Exhibit A1, part 3.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.