Date: 19990924
Docket: IMM-5219-98
OTTAWA, ONTARIO, THE 24TH DAY OF SEPTEMBER 1999
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
MARIE MUSHIYA KAZADI
Applicant
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
M. Iveson, LL.B-LL.L.
Date: 19990924
Docket: IMM-5219-98
Between:
MARIE MUSHIYA KAZADI
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board, dated September 2, 1998, which determined that the applicant is not a Convention refugee.
[2] Marie Mushiya Kazadi is a citizen of the Democratic Republic of the Congo (DRC) (former Zaire). She claimed refugee status by reason of membership in a particular social group, the family.
[3] Her husband was a militia soldier in the armed forces. In August 1996, he started to work for the division spéciale presidentielle (DPS - special presidential division) under the Mobutu regime.
[4] On May 17, 1997, her husband was at his residence when the ADFL soldiers entered Kinshasa. At approximately 11 p.m., soldiers came for him and took him to Mobutu"s camp, located about one hundred metres from his house, where he was executed at about midnight. One of the applicant"s acquaintances notified her of her husband"s death. She tried to go to the camp to see her husband"s body, was not allowed to do so. She then swore at the ADFL soldiers and called them assassins. They warned her to be quiet and threatened to kill her and her children.
[5] The applicant claims that soldiers went to her house twice that night. The second time, she was raped in front of her children.
[6] Her husband"s brother, an abbot, came to her assistance by hiding her and her children in a convent, where she stayed until she left for Canada on October 24, 1997. Her brother-in-law told her that her house had been looted and ransacked. She claimed refugee status upon arriving in Canada.
[7] The Refugee Division determined that in light of the documentary evidence which did not indicate that the present government wishes to pursue the families of DPS soldiers, the applicant had not established a well-founded fear of persecution. In my view, this finding is unreasonable.
[8] As the panel did not challenge the applicant"s credibility, the facts must be taken to be true. Nevertheless, the panel did not attach any weight to the series of events triggered by her husband"s death: the fact that she left the camp swearing at the soldiers, that they warned her to be quiet, that they went to her house twice, that they raped her and that her house was looted and ransacked after she left.
[9] These events clearly support the applicant"s claim that she had a fear of persecution, not only because her husband was a member of the DPS, but mainly because she publicly denounced the regime after his death.
[10] Moreover, the panel disregarded the applicant"s testimony that she could not remain silent about what she considered an unprovoked crime. It was this conviction which prompted her to leave and if she refuses to be silent, she could suffer the same consequences as before.
[11] The panel also indicated that a single example of mistreatment in the documentary evidence is not sufficient to establish an objective fear of persecution. However, there are many examples of persecution of the wives of soldiers in the documentary evidence which occurred long after the new regime took power. The panel therefore made its decision that the applicant did not establish a well-founded fear in a perverse manner, particularly because she clearly stated that if she were eventually to return to her country, she could not remain silent about repression by the current regime.
[12] For these reasons, the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
[13] Neither counsel recommended that a question be certified.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
September 24, 1999
Certified true translation
M. Iveson, LL.B-LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5219-98
STYLE OF CAUSE: MARIE MUSHIYA KAZADI v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: September 23, 1999
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED September 24, 1999
APPEARANCES:
Jean-Michel Montbriand FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-Michel Montbriand FOR THE APPLICANT
Doyon, Guertin, Montbriand & Plamondon
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada