Madeleine Mangabu Bukumba and Gracia Mukumba, Applicant and The Minister of Citizenship and Immigration, Respondent

Court	Federal Court, Canada
Case number	IMM-3088-03
Decision title	Application for judicial review of decision that applicant was not Convention refugee
Decision date	22 January 2004
Parties	Madeleine Mangabu Bukumba Gracia Mukumba Minister of Citizenship and Immigration
Categories	Crimes against humanity, Torture
Keywords	Refugee status (exclusion clause); persecution; crimes against humanity; torture
Links	Decision on application for judicial review of the Federal Court of Canada
Other countries involved	Congo

Summary

Madelaine Bukumba, a woman originally from the Democratic Republic of Congo (DRC), was previously employed by the Comité de Securité de l'État (CSE). Her job was to listen incognito to the conversations of individuals in public places and to report on their opinions to the CSE as well as on media coverage of the government.

After being shown on television speaking against the government’s use of child soldiers, Bukumba was put in prison for 15 days. Following her release, she attempted to quit her job but was threatened to be killed if she would quit. Thereafter, Bukumba fled to Kenya and eventually to Canada together with her minor daughter.

Bukumba claimed protection under the UN Convention relating to the Status of Refugees in order not to be returned to the DRC. The Immigration and Refugee Board of Canada held that she did not qualify for protection because she had been an accomplice to serious crimes committed by the government because she was a former governmental employee. In addition, the Immigration and Refugee Board held that there was no risk to her or her daughter’s life if returned to the DRC.

Procedural history

Madelaine Bukumba and her 10 year-old daughter feared persecution in case Canada, the country to which they fled, would send them back to the DRC, their country of origin. Bukumba therefore brought an application before the Canadian Immigration and Refugee Board and claimed refugee status under the UN Convention relating to the Status of Refugees (Refugee Convention) in order to be eligible for asylum. The Immigration and Refugee Board dismissed the claim stating that she did not fall within the scope of the Refugee Convention.

Bukumba brought an application for judicial reviewof the decision to the Federal Court. She alleged, first, that the Board erred in finding that her former employer, the Comité de Securité de l'État (CSE), was engaged in crimes against humanity or acts of torture, and that she was therefore an accomplice to the crimes committed. Second, Bukumba alleged that the Board erred in finding that it was unlikely that she or her daughter would be subjected to persecution if returned to the DRC.

Legally relevant facts

Bukumba claimed persecution on the basis of political opinion, particularly because she was shown on television in August 2000 speaking against the government's use of child soldiers. As a result, she was imprisoned for 15 days. After her release, she attempted to quit her job but was told that she would be killed if she did. Thereafter, she fled with her daughter to Kenya and eventually arrived in Canada.

Core legal questions

Did the Board err in finding that the CSE had engaged in crimes against humanity or torture? (paras. 13-17)

Did the Board err in finding that the applicant was an accomplice to any crimes which the CSE committed? (paras. 18-20)

Did the Board err in finding that she and her daughter would not be subject to more than a mere possibility of persecution if returned to the DRC? (paras. 21-22)

Specific legal rules and provisions

Crimes Against Humanity and War Crimes Act, 2000, Canada:

Section 4(3) - Definitions

Immigration and Refugee Protection Act, 2001, Canada:

Section 35(1)(a) - Human or international rights violations
Section 98 - Exclusion – Refugee Convention

Convention relating to the Status of Refugees, 1951, United Nations:

Article 1E - Applicability Convention
Article 1F - Non-applicability provisions of the Convention
Article 1F(a) - Non-applicability provisions of the Convention

Court's holding and analysis

As a starting point, the Federal Court held that it would apply the standard of “patent unreasonableness” in reviewing the decision of the Immigration and Refugee Board of Canada (para. 8).

With regard to the question of whether the CSE had indeed engaged in crimes against humanity or acts of torture, the Court held that the Immigration and Refugee Board had rightfully concluded that the CSE was involved in those crimes as there was evidence confirming its involvement (para.17).

The Court found, just like the Immigration and Refugee Board, that the applicant did not fall within the definition of refugee as defined in the Refugee Convention because Bukumba had knowingly been an accomplice to crimes against humanity and acts of torture committed during the time she was a CSE employee in the late 1990s (para. 20).

In addition, the Court also found that there was insufficient credible evidence that either Bukumba’s or her daughter’s life would be at risk, or that they would be subjected to torture or other ill-treatment if returned to the DRC (para. 21).

Accordingly, the Court decided to dismiss Bukumba’s application.