Date: 19990610
Docket: IMM-3915-98
OTTAWA, Ontario, the 10th day of June 1999
PRESENT: The Honourable Mr. Justice Rouleau
Between:
PITA TSHIMANGA
Applicant
And:
THE MINISTER
Respondent
ORDER
ROULEAU J.
[1] The application for judicial review is dismissed.
P. ROULEAU
JUDGE
Certified true translation
M. Iveson
Date: 19990610
Docket: IMM-3915-98
Between:
PITA TSHIMANGA
Applicant
And:
THE MINISTER
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review brought against a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated July 2, 1998, which determined that the applicant is not a Convention refugee.
[2] The application seeks an order setting aside the Board"s decision and referring the matter back to a different panel.
[3] The applicant is a citizen of the Democratic Republic of the Congo (DRC) (former Zaire). He claims refugee status by reason of political opinion.
[4] The applicant completed his secondary education in July 1996. He joined the Union pour la démocratie et le progrès social [Democratic Union for Social Progress] (UDPS) because all of the members of his family belonged. His father is very active in the party and is a personal friend of Mr. Tshisékédi, the head of the party; he organized several UDPS meetings at their house.
[5] On April 9, 1997, the applicants and other members of the UDPS accompanied Mr. Tshisékédi to the Primature after he was dismissed by Mobutu, the president of the country at the time. While the group was in Mandela square, soldiers from the DSP and the Garde civile used tear gas to break them up. They forcibly returned Mr. Tshisékédi to his house.
[6] There were patrols throughout the city. The applicant was stopped near his home while holding a banner which said "Étienne Tshisékédi in the Primature /An end to dictatorship". After assaulting him and making death threats, the soldiers ransacked the applicant"s house.
[7] The next day, rumours were circulating that Mobutu wanted to get rid of student agitators. The applicant accordingly took refuge at the home of an uncle in Malete and never returned to his house. He left the DRC on April 26, 1997. He arrived in Canada on May 5, 1997 and became a member of the UDPS in Canada.
[8] The Board was of the view that the applicant did not establish a well-founded fear of persecution. This finding was based on the applicant"s lack of credibility with respect to essential parts of his claim and the lack of an objective credible basis for the applicant"s fear of persecution.
[9] The Board doubted that the applicant had participated in the demonstration. There were no reports in the documentary evidence of a demonstration in Mandela square on that date. However, there were reports of a demonstration in front of Mr. Tshisékédi"s residence which was allegedly broken up by force.
[10] Furthermore, the way in which the applicant was questioned by the soldiers also strays from the usual pattern. These soldiers generally arrest demonstrators and detain them in jails. The applicant was never arrested or detained.
[11] The applicant could not remember the name of the UDPS cell to which he belonged in Kinshasa.
[12] The applicant adduced in evidence a statement by the UDPS dated July 18, 1997, allegedly signed by Mr. Tshisékédi, which reads as follows:
| His son, Pierre Pita Tshimanga is also an activist member whose security is constantly in danger, especially because of his father"s political activity, and has often suffered humiliation and degrading treatment to such an extent that he has been forced to live in exile. |
[13] The Board questions the authenticity of the document. The statement is an exaggeration as the applicant only reported one example of problems with the authorities.
[14] The applicant also testified that he did not live with his father, who had separated from his mother. His father"s other children were also members of the UDPS. The father and older children worked in the family business. The Board considered it implausible that the authorities would go after the applicant rather than his father who is a more active member.
[15] There was a change of regime in the DRC in May 1997. Laurent-Désiré Kabila is now the president of the country. Like the Mobutu regime, the Kabila government does not tolerate any political opposition. First, the applicant stated that he did not know whether he should fear the new regime. Then, he stated that he was afraid of being persecuted in the DRC as he intended to continue expressing his political opinions.
[16] The Board found that the applicant"s fear was not well-founded; it was implausible that the new regime would be interested in the applicant with respect to any future political involvement.
[17] The points at issue are the following: (1) Did the Board err in not challenging the applicant on its doubt with respect to the authenticity of the statement by the UDPS that the applicant filed in evidence; and (2) Did the Board err in ruling that the applicant had no reason to fear for his life if he were to return to the DRC?
[18] The applicant argued that the statement concerning his membership in the UDPS was the most important piece of evidence. It confirmed that he was a member of the UDPS in the DRC, that he had problems because of his political activity and that his father was a friend of Mr. Tshisékédi. The Board should have made the applicant aware of its doubts concerning the authenticity of the document in order to allow him to provide an explanation. Similarly, the Board could have had Mr. Tshisékédi"s signature authenticated by an expert.
[19] First, I am of the view that the panel provided sufficient valid reasons for dismissing the statement. The claims in the statement are clearly exaggerated compared to the applicant"s account. While the latter testified that he was questioned only once by soldiers following a demonstration, the statement indicates that he was assaulted on several occasions.
[20] The applicant does not account for this inconsistency in his affidavit. In addition, in his brief, he wrote:
| [TRANSLATION] |
| Even though the author appears to have overstated the facts (it was not necessarily Mr. Tshisékédi who wrote the declaration), the document may be genuine. |
[21] It would not have changed anything if the applicant had been challenged on the inconsistency. The applicant"s claims confirm that the Refugee Division was justified in finding as it did.
[22] The applicant also suggested that the Board could have had Mr. Tshisékédi"s signature authenticated. First, the Board had doubts about the statement because it was exaggerated and not because it was signed by Mr. Tshisékédi. In any event, it is not for the Board to prove that the applicant"s claim is well-founded. In Culinescu v. M.C.I. (September 17, 1997), IMM-3395-96, it was submitted that it was the Board"s duty to have a document studied by experts, if the Board doubted its authenticity. The Court responded:
| The Board had no such duty. It is enough that there be sufficient evidence before it to cast doubt on the authenticity of the order to stand trial to find that the applicants' testimony was implausible. |
[23] The Kabila government does not tolerate any political opposition. The members of the UDPS who take part in demonstrations risk arrest, detention and mistreatment. The applicant and his family were known as UDPS militants. According to the applicant, this evidence proves that he has a well-founded fear of persecution in the DRC.
[24] An applicant must prove that there is a reasonable chance or serious possibility that persecution for one of the reasons listed in the Convention would take place in his or her country of origin; see Adjei v. M.E.I., [1989] 2 F.C. 680 (F.C.A.). The applicant did not challenge the Board"s findings with respect to the credibility of his claim at all in his brief. The implausibilities noted in his testimony cast doubt on the veracity of the account of the events which led the applicant to leave the DRC and even his membership and active participation in the UDPS. There is no indication that the present authorities have threatened the members of his family, even though they are so active in the UDPS. The Board"s findings are perfectly reasonable.
[25] The application for judicial review is dismissed.
[26] The parties agreed that there was no serious question to be tried.
P. ROULEAU
JUDGE
OTTAWA, Ontario
June 10, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3915-98
STYLE OF CAUSE: PITA TSHIMANGA v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 1, 1999
REASONS FOR ORDER OF ROULEAU J.
DATED JUNE 10, 1999
APPEARANCES:
LUC DESMARAIS FOR THE APPLICANT
CAROLINE DOYON
FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUC DESMARAIS FOR THE APPLICANT
CAROLINE DOYON
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada