Date: 20031107
Docket: IMM-5013-02
Citation: 2003 FC 1289
Between:
Kally KALAMBAY ILUNGA
Applicant
- and -
The Minister of Citizenship
and Immigration
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated September 20, 2002, that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The applicant is a citizen of the Democratic Republic of Congo (the DRC). He alleges that he has a well-founded fear of persecution should he return to his country of citizenship because of his perceived political opinion and his nationality. The applicant also alleges that he is in need of protection because he risks torture, a threat to his life or cruel and unusual treatment or punishment if he returns to the DRC.
[3] The IRB found that the applicant was not a Convention refugee or a person in need of protection because the applicant's testimony was not credible. The IRB gave the following reasons in support of its decision:
- the notes at the point of entry and the handwritten statement by the applicant did not mention that he had been sentenced to death. However, the death sentence is clearly detailed in the applicant's Personal Information Form (PIF). This contradiction indicates an exaggeration that causes irreparable prejudice to the applicant's credibility;
- the applicant alleges that, after the first arrest on January 8, his boss obtained the release of the seized truck. According to the IRB, it is unlikely that the truck would have been returned to the boss when it is known that the army was in great need of trucks and that this seizure was supported by a constitutional decree;
- until March 15, 2001, the applicant was able to live in complete freedom and to work without being inconvenienced because of his Rwandan appearance, despite the fact that President Kabila had been calling upon the Congolese population to drive Rwandans from the country since August 1998;
- the applicant's escape from Dilala prison in Kolwezi 21 and from the country with the help of this "famous white" is unlikely. It is also unlikely that this man took the necessary steps to renew the applicant's driver's licence;
- the applicant did not produce any real evidence that would confirm his journey and the accuracy of his claims. According to the IRB, the absence of such evidence "had an impact on his already seriously undermined credibility";
- the IRB does not lend any credence to the claim that there was a wanted notice for the applicant, because this document would have been served on his family, prompting them to warn him that he was being sought.
[4] To the extent that the applicant's arguments are based on the panel's assessment of the facts and of his credibility, it is important to note that this Court cannot substitute its own opinion for that of the IRB when - as in this case - the refugee claimant fails to establish that the decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. Here, the panel relied on a major omission in the applicant's statement at the point of entry, observed significant implausibilities and noted a lack of relevant real evidence. In my opinion, this specialized tribunal could, in these circumstances, reasonably make the finding it did (see Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315 (F.C.A.)).
[5] As for the applicant's argument alleging the bias of the panel, it is not valid for the following reasons:
a) a careful review of the transcript of the hearing before the panel does not at all show that the panel intended to avenge the behaviour of the applicant's counsel;
b) the expression "famous white" that the IRB used in its decision is not at all suggestive of a "[TRANSLATION] a racial slur" or "[TRANSLATION] a state of mind bordering on outright racism", as the panel was only using the words that the applicant himself used in his statements;
c) the applicant did not raise the issue of bias at the first reasonable opportunity, i.e. during the hearing before the IRB (see for example Nartey v. Minister of Employment and Immigration (January 20, 1994), A-83-93, [1994] F.C.J. No.120 (QL); and
d) nothing in the evidence or in the wording of the decision being challenged would allow an informed person, viewing the matter realistically and practically - and having thought the matter through - to conclude that the panel was biased (see Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369, at page 394, de Grandpré J.).
[6] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
November 7, 2003
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5013-02
STYLE OF CAUSE: Kally KALAMBAY ILUNGA v. The Minister of
Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 7, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: November 7, 2003
APPEARANCES:
Martin Forget FOR THE APPLICANT
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Martin Forget FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario