Federal Court Decisions

Date: 20050517

Docket: IMM-8673-04

Citation: 2005 FC 680

Ottawa, Ontario, May 17, 2005

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

                                                               Banza KALUMBA

                                                                                                                                              Applicant

                                                                           and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                          Respondent

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                A stay on removal orders to a country (which constitutes interim protection or a moratorium decreed by the Minister of Citizenship and Immigration) is an administrative measure taken by the government to ensure that the lives of certain individuals are not endangered in temporary and generalized circumstances.

In contrast, handing down a permanent ruling on a refugee claim is a quasi-judicial responsibility, which stems from the mandate of the Immigration and Refugee Board.

JUDICIAL PROCEDURE

[2]                This application for judicial review, made under subsection 72(1) of the Immigration and Refugee Protection Act¹ (the Act), concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), handed down on September 15, 2004. In the decision, the Board concluded that the applicant was not a Convention refugee under section 96 of the Act or a person in need of protection under subsection 97(1) of the Act.

FACTS

[3]                The applicant, Banza Kalumba, a citizen of the Democratic Republic of the Congo (DRC), belongs to the Hema ethnic group, and apparently witnessed massacres perpetrated by the Lendu ethnic group. He fled to the mountains in June 1999. Upon returning to his village, he discovered that his parents had been massacred. Following these events, he moved to Drodro. In May 2002, he was arrested and taken to a Lendu camp called Kilomoto. He was treated like a slave. A month later, he managed to escape to the village of Nyaramba. On February 24, 2004, Lendus attacked Nyaramba. Mr. Kalumba managed to flee to Uganda. He met Mr. Kiamatalé, who helped him by introducing him to Ms. Christine, a smuggler, who provided him with a false French passport.

Mr. Kalumba left Uganda on February 29, 2004, arrived in Canada on March 1, 2004, and claimed refugee protection the next day.

IMPUGNED DECISION

[4]                Although the Board had doubts about the route Mr. Kalumba took to come to Canada, it concluded that he was credible. However, after analysing all the evidence submitted and Mr. Kalumba's situation, it concluded that he had an internal flight alternative in Lubumbashi or Kinshasa. The Board therefore concluded that Mr. Kalumba was neither a Convention refugee nor a person in need of protection.

ISSUES

[5]                1. Did the Board commit a patently unreasonable error in concluding that the applicant had an internal flight alternative in the DRC?

2. Did the Board err in failing to consider subsection 108(4) of the Act, dealing with the question of whether the applicant had compelling reasons arising out of previous persecution for refusing to avail himself of the protection of his country?

ANALYSIS

1. Did the Board commit a patently unreasonable error in concluding that the applicant had an internal flight alternative in the DRC?

[6]                The question of whether an internal flight alternative exists is a question of fact. Purely factual questions decided by the Board in the course of reaching the impugned decision, including the question of whether the applicant has an internal flight alternative in his country, are reviewable according to the standard of patent unreasonableness (Mohammed v. Canada (Minister of Citizenship and Immigration)¹, Sivasamboo v. Canada (Minister of Citizenship and Immigration)², Ramachanthran v. Canada (Minister of Citizenship and Immigration)³). Moreover, the applicant has the burden of proving that it would be unreasonable for him to seek refuge in another part of the country (Ranganathan v. Canada (Minister of Citizenship and Immigration)⁴).

[7]                In this case, Mr. Kalumba did not discharge this burden. The incidents of persecution took place exclusively in the village of Bunia and the surrounding villages, and were therefore local.

[8]                When asked by the Board to explain why he left Lubumbashi (where he said he had lived from 1970 to 1997, and where he had studied and even worked as a merchant from 1993 to 1997) to return to the village of Bunia, Mr. Kalumba simply said that he wanted to find his parents again, and testified that he had never had problems in Lubumbashi. However, Mr. Kalumba testified that he could not live in Lubumbashi because he was not safe and was being emotionally persecuted. The Board asked him whether he had had problems with the authorities, and Mr. Kalumba answered in the negative.

[9]                When asked by the Board whether he could live in Kinshasa, DRC, Mr. Kalumba answered that the same regional problems made him feel less safe in a place like Kinshasa. However, he admitted that he had never tried to go there because it was too far away, approximately 2,000 km from the village of Bunia.

[10]            These reasons, invoked by the Board in support of its conclusion that there was an internal flight alternative in the DRC, are not being disputed before this Court. In fact, Mr. Kalumba does not take issue with parts of his testimony dealing with the reasons why he did not try to settle in Kinshasa and the fact that he never had problems with the authorities in his country during the 27 years he spent in Lubumbashi. Mr. Kalumba did not take steps, after he was persecuted, to move to another city where he might find a measure of safety. Accordingly, the Board did not commit an error.

[11]            Mr. Kalumba contends that applying the internal flight alternative to the DRC is not reasonable given the temporary stay on removal orders to the DRC decreed by Canada.

[12]            The Court agrees with the respondent that we are dealing with two completely distinct notions. The Act makes provisions for protection offered on an interim basis to foreign nationals by the Canadian authorities, and for obtaining asylum in Canada, which constitutes legal status.

[13]            In this case, the issue was not deciding whether Mr. Kalumba was to benefit from the temporary stay on removal orders to the DRC (which constitutes interim protection) decreed by the Minister of Citizenship and Immigration (the Minister), but determining whether Mr. Kalumba's refugee claim could be granted.

[14]            Section 230 of the Immigration and Refugee Protection Regulations⁵ (the Regulations) deals with temporary stays on removal orders to a given country, which the Minister may impose:

[15]            It is clear from subsection 230(1) of the Regulations that the Minister may impose such a stay on removal orders to a given country if the circumstances in that country place the entire civilian population at a generalized risk resulting from the specific situations described in the subsection. Section 230 makes no reference to the definition of Convention refugee or person in need of protection under sections 96 and 97 of the Act. The Board's negative decision concerning the refugee claim does not constitute a removal order under section 230 of the Regulations. The Board did not err in failing to consider the temporary stay on removal orders to the DRC as part of the refugee claim.

[16]            By means of the Act and Regulations, Mr. Kalumba, regardless of the negative decision concerning his refugee claim, will be able to benefit from the temporary stay on removal orders to the DRC decreed by the Minister owing to a generalized risk for the entire civilian population of that country decreed by the Minister for the reasons set out in subsection 230(1) of the Regulations. Subsection 230(2) of the Regulations states that the Minister may cancel the temporary stay on removal orders if the circumstances in the country concerned no longer pose a generalized risk to the entire civilian population. In such an event, the stay on removal orders to the DRC would be lifted, and the Minister could commence proceedings to issue removal orders against failed refugee claimants from this country. In such a case, a failed refugee claimant could eventually be subject to a removal order owing to the fact that he or she is not a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

2. Did the Board err in failing to consider subsection 108(4) of the Act, dealing with the question of whether the applicant had compelling reasons arising out of previous persecution for refusing to avail himself of the protection of his country?

[17]            Mr. Kalumba contends that he has compelling reasons arising out of previous persecution for refusing to avail himself of the protection of his country under subsection 108(4) of the Act, and criticizes the Board for not considering the application of this legislative provision to his case. Section 108 of the Act reads as follows:

[18]            According to the wording of the section, before considering the application of subsection 108(4) of the Act the Board must first conclude that a person would have been granted refugee status if circumstances in the country had not changed. In this case, the Board concluded that Mr. Kalumba had an internal flight alternative in his country of origin and, consequently, that Mr. Kalumba was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Act.

[19]            Moreover, the Board's reasons did not refer to any change in circumstances in the DRC that would have rendered the applicant's fear of persecution unfounded. Threfore, the Board was not obliged to proceed with an analysis of "compelling reasons" under subsection 108(4) of the Act.

[20]            This principle was set out by the Federal Court of Appeal in Hassan v. Canada (Minister of Employment and Immigration)⁶, which dealt with subsections 2(2) and 2(3) of the old Immigration Act⁷ (now section 108 of the Act):

It is clear, as the appellant suggests, that subsections 2(2) and 2(3) of the Immigration Act speak to the loss of status as a Convention refugee because of, inter alia, a change in material circumstance in a refugee's home nation. But those provisions in no way alter the test used to initially determine a claimant's status. It is trite law that to establish status as a Convention refugee within the meaning of the Immigration Act, one has to meet both a subjective and objective threshold. One must have a "well-founded fear of persecution". One cannot get to the point of possibly losing one's status as a Convention refugee, i.e. subsections 2(2) and 2(3) cannot be applicable, unless one first falls within the statutory definition contained in subsection 2(1). [Emphasis added.]

[21]            In Brovina v. Canada (Minister of Citizenship and Immigration)⁸, the Court reiterated this principle, clearly established by the case law of the Federal Court of Appeal:

The first alleged error is that the RPD erred by failing to consider the "compelling reasons" exception under section 108 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The gist of this argument is that the RPD found, in the same decision, that because Mrs. Brovina's son and daughter-in-law were accepted as refugees, they would not be going back to Albania and the reason for which Mrs. Brovina was persecuted in Albania would therefore no longer exist. Since the reasons for which Mrs. Brovina left Albania had ceased to exist - because of the board's own decision - it should have determined whether there are compelling reasons that she should not be returned to Albania.

The difficulty with this argument is that the RPD did not find that Mrs. Brovina had suffered past persecution. For the Board to embark on a compelling reasons analysis, it must first find that there was a valid refugee (or protected person) claim and that the reasons for the claim have ceased to exist (due to changed country conditions). It is only then that the Board should consider whether the nature of the claimant's experiences in the former country were so appalling that he or she should not be expected to return and put himself or herself under the protection of that state. [Emphasis added.]

[22]            Subsection 108(4) of the Act has no bearing on this matter, and the Board did not need to consider this issue.

CONCLUSION

[23]            For these reasons, the Court answers both questions in the negative. Consequently, the application for judicial review will be dismissed.

                                                                       ORDER

THE COURT ORDERS that

1.         This application for judicial review be dismissed.

2.         No question be certified.

                                                                                                                             "Michel M.J. Shore"                      

                                                                                                                                                   Judge                                 

Certified true translation

Magda Hentel

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                       IMM-8673-04

STYLE OF CAUSE:                                       BANZA KALUMBA

v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                 MONTRÉAL, QUEBEC

DATE OF HEARING:                                   MAY 10, 2005

REASONS FOR ORDER

AND ORDER BY:                                         THE HONOURABLE MR. JUSTICE SHORE

DATED:                                                          MAY 17, 2005

APPEARANCES:

Eveline Fiset                                                      FOR THE APPLICANT

Isabelle Brochu                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

EVELINE FISET                                              FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS, Q.C.                                      FOR THE RESPONDENT

Deputy Attorney General of Canada