Date: 20010307
Docket: IMM-2702-00
Neutral citation: 2001 FCT 141
BETWEEN:
ANSELME MBALANDA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant is a citizen of the Democratic Republic of Congo who fears persecution because of his perceived political opinion. He claims to be a member of a leading opposition party, the Union for Democracy and Social Progress (Union pour la démocratie et le progrès social) ("UDPS"). The single-member panel of the Convention Refugee Determination Division made a negative finding of credibility and concluded that the applicant was not a Convention refugee.
[2] The applicant claims to have organized and participated in demonstrations on behalf of the UDPS in June, August and November 1997, after the Kabila regime came to power in May of that year. He also alleges that he and his family were attacked at their residence in Kinshasa on February 13, 1998 by government soldiers.
[3] The panel member relied on documentary evidence that political activities by opposition parties were declared illegal by Kabila in the early days of his government. Any attempt to organize a political meeting or demonstration by the UDPS was immediately suppressed by the government's security forces. On the basis of this evidence, the panel member concluded it was implausible that the claimant would have been involved in the organization of any political manifestations in 1997 and 1998.
[4] The reasoning in support of this negative finding of credibility did not take into account other documentary evidence describing a number of peaceful public demonstrations by the UDPS and other political parties in 1997 and early 1998 which were violently suppressed by government forces:
| The following is a partial list of peaceful public demonstrations that have been violently suppressed: (a) on 15 May, more than 100 student demonstrators were detained and taken to Kalolo camp; (b) on May 28, at a student demonstration demanding an end to foreign intervention, several students were injured; (c) a student demonstration on 9 June demanding the release of the Director of the National Institute of Commerce; (d) UDPS demonstrations on 20 and 30 June, at which 18 people were arrested; (e) a UDPS and PALU demonstration on 25 July, at which two people were killed and more than 48 arrested, several of whom were tortured; (f) on 15 August, at a UDPS demonstration commemorating Tshisekedi's appointment as Prime Minister in 1992, 20 people were arrested and many of them tortured; they were released two months later; (g) on 26 August, a student, Makolo, was killed at a demonstration in Kinshasa; (h) a few days later, people were prevented from attending a ceremony at the university to mourn Makolo's death; (i) many arrests were made at a UDPS demonstration which was broken up in Bandalungwa; and (j) on 17 January 1998, a UDPS gathering to commemorate the new year at the home of its leader Tshisekedi was broken up and 11 people arrested; the home of its Secretary-General Adrien Phongo was attacked (seven persons were released the next day). |
It was wrong for the panel member to have dismissed as implausible the applicant's alleged involvement in political demonstrations in 1997 without considering in her reasons for decision the several UDPS public protests during that year.
[5] The panel member provides no other reasons for not having believed the applicant. Even if the panel member meant that the claimant would not have openly distributed pamphlets and encouraged the participation of students at UDPS demonstrations, as suggested by the respondent, this is not stated in the decision in clear and unmistakable terms and, in any event, would not explain the failure to deal with the documentary evidence of manifestations in 1997.
[6] In these circumstances, there is no need to deal with the other issues raised by the applicant.
[7] Accordingly, the decision under review must be set aside for having been made without regard to the material before the tribunal. The matter will be referred for re-hearing and re-determination by a differently constituted panel. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
March 7, 2001