Pambu v. Canada (Public Safety and Emergency Preparedness)

Pambu v. Canada (Public Safety and Emergency Preparedness) Court (s) Database Federal Court Decisions Date 2025-06-02 Neutral citation 2025 FC 984 File numbers IMM-11188-22 Decision Content Date: 20250602 Docket: IMM‑11188‑22 Citation: 2025 FC 984 [ENGLISH TRANSLATION] Ottawa, Ontario, June 2, 2025 PRESENT: The Honourable Madam Justice Saint-Fleur BETWEEN:

LATO LANDU PAMBU PAMBU Applicant and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent

JUDGMENT AND REASONS I. Overview [1] The applicant, Lato Landu Pambu Pambu [applicant], seeks judicial review of a decision of the Immigration Division [ID] dated October 20, 2022, finding him inadmissible on security grounds under paragraphs 34(1)(f) and (b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. He is the subject of a removal order. [2] For the reasons that follow, the application for judicial review is dismissed. II. Background [3] The applicant is a citizen of the Democratic Republic of the Congo [DRC]. He was a member of the Bundu dia Kongo [BDK] from 2005 to about 2009 and of the Bundu dia Mayala [BDM], a secessionist, separatist politico‑religious organization founded in 1969 by Ne Muanda Nsemi. As a member, the applicant helped raise awareness of the group’s ideology. [4] In support of his claim for refugee protection, the applicant stated that his former membership in the BDK had caused him to be hunted down by the Congolese authorities, arbitrarily arrested, and tortured by Congolese forces in September 2018. The goal had been to extract information from him on the whereabouts of the leader of the BDK. The applicant also submitted that his family had experienced violence. He alleged that the Congolese authorities seek to eliminate opponents of the government and that he had to flee his country because he was wanted by the authorities. [5]

The applicant left the DRC on October 14, 2018, and moved to the United States. He stayed there for three months, because he was having trouble adjusting and was still living in fear. The applicant filed a claim for refugee protection in Canada in December 2018. [6] An immigration officer issued a report under section 44 of the IRPA. The report stated that the applicant is inadmissible to Canada under paragraphs 34(1)(f), (b) and (b.1) of the IRPA because there are reasonable grounds to believe that the applicant is or has been a member of an organization that there are reasonable grounds to believe engaged in the subversion by force of any government and in an act of subversion against a democratic government, institution or process as they are understood in Canada. [7] Following an investigation, the ID found that the evidence presented by the Minister was sufficiently credible and trustworthy to provide grounds for the decision finding the applicant inadmissible under paragraphs 34(1)(f) and (b) of the IRPA. III. Decision under judicial review [8] The ID had to decide the following two issues: Are there reasonable grounds to believe that the applicant is or has been a member of an organization engaging in or instigating the subversion by force of any government? Are there reasonable grounds to believe that the applicant is or has been a member of an organization engaging in

an act of subversion against a democratic government, institution or process as they are understood in Canada? A. Membership in an organization as defined in paragraph 34(1)(f) [9] The ID found that there are reasonable grounds to believe that the individual was a member of the BDK/BDM from 1993 to at least 2009. It reached this conclusion on the basis of the documentary evidence in the record, including the applicant’s testimony admitting to having been a member of the BDK. The ID considered that during his interview with an officer of the Canada Border Services Agency [CBSA] on October 15, 2019, the applicant not only confirmed that he had been a member of the BDK but also specified that he had been a member in name only from 1993 to 2005 and had become an official member in 2005. In the same interview, the applicant stated that he left the party around 2009–2010. B. Organization within the meaning of paragraph 34(1)(f) [10] The ID found that there are reasonable grounds to believe that the BDK and the BDM are one and the same and that they meet the criteria to be considered an organization within the meaning of paragraph 34(1)(f) of the IRPA. The ID reached this conclusion based on the documentary evidence in the record setting out the objectives, structures and means of communication of the BDK and BDM. This documentary evidence indicates that the BDK/BDM campaigns for the

redrawing of the geographical and political boundaries of African states to abolish colonial borders. It shows that the BDK/BDM is often identified as an extremist, fundamentalist and subversive movement; that it is remarkable for its insurrectionary approach and methods; and that it seeks to expel Rwandans from the DRC and its leader incites violence against them. The evidence also indicates that the BDK/BDM has managed to overthrow the Congolese government on part of its territory and that its members commit numerous acts of violence against civilian representatives of the state. [11] The ID also concluded from the documentary evidence in the record that the BDK’s acts of resistance constituted acts of subversion by force against the government. In reaching this conclusion, it cited the applicable case law for interpreting the terms “subversion” and “by force” (Oremade v Canada (Minister of Citizenship and Immigration), 2005 FC 1077 at paras 25–‍28 [Oremade]; Canada (Citizenship and Immigration) v USA, 2014 FC 416 at para 36; Najafi v Canada (Public Safety and Emergency Preparedness), 2014 FCA 262 at para 65 [Najafi]; MCI v Yong Jie Qu, 2001 FCA 399 [Qu]). [12] The ID concluded that the Kabila government, which the BDK/BDM sought to overthrow, could not be recognized as democratic as the term is understood in Canada, and that, as a result, the Minister had not met his

evidentiary burden to establish that there are reasonable grounds to believe that the BDK/BDM is an organization within the meaning of paragraph 34(1)(b.1) of the IRPA, namely, that it has engaged or is engaging in an act of subversion against a democratic government, institution or process. It reached this conclusion in light of the documentary evidence. The ID referred to the applicable case law in interpreting the term “democratic government, institution or process” (Qu at para 50; Singh v Canada (Citizenship and Immigration), 2014 FC 377). IV. Issues [13] I regard the application for judicial review as raising the following issues: Was the ID’s decision reasonable? Did the ID breach procedural fairness? V. Standard of review [14] The parties agree that the standard of review is reasonableness, as established in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paragraphs 23, 25, 86 and 99 [Vavilov]. I agree. It has also been established that the interpretation of the term “member” in paragraph 34(1)(f) of the IRPA is reviewable on a standard of reasonableness (Poshteh v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at para 23). [15] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker (Vavilov at

para 85). The reasonableness standard requires that a reviewing court defer to such a decision (Vavilov at para 85). [16] Moreover, the burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency (Vavilov at para 100). [17] In his memorandum, the applicant briefly mentions that the tribunal breached procedural fairness. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances (Vavilov at paras 23, 76 and 77). VI. Relevant statutory provisions [18] The relevant provisions in this case are sections 33 and 34 of the IRPA, which provide as follows: Rules of interpretation 33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. Interprétation 33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire,

appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir. Security 34 (1) A permanent resident or a foreign national is inadmissible on security grounds for … (b) engaging in or instigating the subversion by force of any government; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; … (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). Sécurité 34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : … b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; b.1) se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; … f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). VII. Parties’ submissions A. Applicant’s submissions [19] The applicant submits that the ID did not correctly apply the standard of proof. He asserts that the ID failed to take his explanations into account, misapprehended the facts on which it based its decision, and simply followed the approach taken by counsel for the

Minister without analyzing the objective evidence available on the Immigration and Refugee Board of Canada’s website. [20] The applicant considers that it is unreasonable to conclude that the BDK engaged in subversion by force of a government, since its members were nonviolent and the BDK’s goal was to defend the homeland against oppression. He argues that the fact that the BDK was temporarily banned in the DRC does not mean that the BDK was a terrorist organization whose goal was to overthrow President Kabila. [21] The applicant also submits that the BDK’s actions aimed at expelling Rwandans were legitimate because the goal was to expel foreigners living on Congolese territory. [22] Furthermore, the applicant argues that the ID erred in finding that the BDK and the BDM are the same and claims that this issue was irrelevant given that he was no longer a member of the BDK after 2009. [23] The applicant contends that the ID breached procedural fairness by ignoring his explanations, not believing his assertions as to when he left the BDK, and finding that the BDK and the BDM are the same. B. Respondent’s argument [24] The respondent submits that the ID’s decision is reasonable and that the ID applied the correct burden of proof. He argues that the evidentiary standard applicable to the facts of paragraph 34(1)(f) of the IRPA is that there be “reasonable grounds to believe”, as set

out in section 33 of the IRPA. The respondent notes that the Federal Court of Appeal has found that this standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information (Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114 [Mugesera]; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 39). [25] The respondent asserts that the applicant is a member of the BDK and BDM. He notes that the applicant stated that he was a member in name only from 1993 to 2005 and became an official member in 2005. As a member, the applicant supported the BDK by raising awareness to promote the party and its goals. He said that he never participated in any meetings or protests organized by the party and that he had never intended to belong to or act in support of a terrorist organization or subversive group. The respondent notes that at the hearing, the applicant argued that he stopped being a member of the party in 2008, whereas during the interview with the border services officer, he explained that he left the party around 2009–‍2010. Given the discrepancy, the tribunal accepted the version that was spontaneously provided

during the interview. [26] According to the respondent, the applicant admitted to having been a member of the BDK. He notes that the case law has established that “member” is to be given an unrestricted and broad interpretation (Diakenda v Canada (Public Safety and Emergency Preparedness), 2023 FC 447 at para 19 [Diakenda]). There is no requirement for active participation in subversive activities (Opu v Canada (Public Safety and Emergency Preparedness), 2022 FC 650 at para 100). Furthermore, when membership is admitted, any necessity for an institutional link is established and there is no need for a more detailed analysis (Diakenda at para 20). Admitted membership is valid in every respect (Shohan v Canada (Citizenship and Immigration), 2023 FC 515 at para 39). [27] The respondent submits that the documentary evidence demonstrates that the BDK and the BDM are organizations that seek to subvert the government by force. In his view, the evidence shows that the BDK is a secessionist or separatist politico-religious organization founded in 1969 by Ne Muanda Nsemi. The respondent indicates that after BDK activities were banned in March 2008, the organization established its political wing, the BDM. Although the two organizations are run by two different bodies, Ne Muanda Nsemi is the leader of both, and it is difficult to distinguish one from the other. The BDK/BDM campaigns for a

redrawing of the geographical and political borders of African states and is often identified as an extremist, fundamentalist and subversive movement that uses insurrectionary methods. The organization also wants to expel Rwandans from the DRC, and its leader incites violence against them. Furthermore, the BDK has managed to overthrow the Congolese government on part of its territory and opposes President Kabila’s continued rule. Its leader also encourages its supporters to protest. [28] According to the respondent, the BDK’s actions and activities meet the definition of subversion by force of a government (Najafi at para 84). Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) of the IRPA to have a broad application (Najafi at para 78). [29] Finally, the respondent argues that it was open to the ID to prefer the general documentary evidence over the applicant’s testimony and submission that the BDK was peaceful and did not advocate violence. He submits that this falls within the expertise of the ID (Wardak v Canada (Citizenship and Immigration), 2023 FC 422 at para 43). Furthermore, the intent to subvert by force is not to be measured solely from the subjective perspective of the applicant (Oremade at para 26). [30] The respondent submits that the case law has also held that paragraph 34(1)(b) of the IRPA prohibits the subversion by

force of any government, regardless of the type of government at issue (Zahw v Canada (Public Safety and Emergency Preparedness), 2019 FC 934 at para 39). VIII. Analysis A. Preliminary issues [31] First, with the affidavit he submits in support of his application for judicial review, the applicant is attempting to introduce several exhibits that were not considered by the ID in respect of the threats he claims to have been subject to in the DRC. These exhibits include a death certificate for one brother, a forensic report, his brother’s testimony, a mortuary photo of another brother, and letters of testimony from two individuals. However, this evidence is not admissible on judicial review because it was not before the decision maker at the time the decision was made (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19). [32] Second, the respondent asks that the style of cause be amended to replace the Minister of Immigration and Citizenship with the Minister of Public Safety and Emergency Preparedness, as it is the latter who is responsible for enforcing the IRPA in matters of inadmissibility on grounds of security. In light of paragraph 5(2)(b) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93‑22, and subsection 4(2) of the IRPA, I agree with the respondent.

Consequently, the name of the respondent will be amended to “the Minister of Public Safety and Emergency Preparedness”. B. The ID did not breach procedural fairness [33] The applicant submits that the ID breached procedural fairness by ignoring his explanations, not believing his assertions as to when he left the BDK, and finding that the BDK and the BDM are the same. In my view, this criticism is unfounded. The ID carefully explained its reasoning. It states that, although the applicant claimed at the hearing that he had left the BDK in 2008, he told the CBSA officer that he had left the organization around 2009–‍2010, and the letter from the Kinshasa law firm that the applicant himself submitted indicates that he was a BDK activist and a member of the BDM, which was created in 2009. A reading of the ID’s detailed reasoning shows that it considered the applicant’s explanations but simply chose to give more weight to the documentary evidence and to the spontaneous testimony he gave during his interview with a CBSA officer, which is corroborated by a letter from a Kinshasa law firm. Thus, it was reasonable for the ID to find that the applicant was a member of the BDK/BDM until at least 2009 and, therefore, there was no breach of procedural fairness. [34] In reaching its conclusion that the BDK and the BDM are but one entity, the ID relied on a lengthy analysis of the documentary

evidence in the record. I note that this evidence states that the BDK is the religious wing of the BDM; that the BDK simply decided to set up its political wing as a political party; that the BDM became a political party within the BDK’s structure; and that, in practice, it is difficult to distinguish one from the other. According to the evidence considered by the ID, Ne Muanda Nsemi guides actions and is both the president of the BDM and the spiritual leader of the BDK, making it impossible to distinguish when he is acting as party leader from when he is acting as spiritual leader. The ID’s conclusion is therefore reasonable and demonstrates no breach of procedural fairness. C. The ID’s decision is reasonable [35] The ID’s decision is reasonable and applied the correct burden of proof. [36] First, under section 33 of the IRPA, the standard of proof applicable to the facts of paragraph 34(1)(f) of the IRPA is “reasonable grounds to believe”. The Federal Court of Appeal has found that this standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information (Mugesera at para 114). This is the standard of proof that the ID applied. It assessed the facts of

subsection 34(1) of the IRPA on the basis of reasonable grounds to believe that they have occurred, are occurring or may occur. I agree with the respondent that the evidence considered by the ID meets this standard of proof, as it comprised conclusive and credible information providing an objective basis to make its findings of fact under subsection 34(1). [37] Second, with respect to the applicant’s assertions that it was unreasonable for the ID to conclude that the BDK was engaging in the subversion by force of any government, I note that the ID extensively analyzed the documentary evidence in the record about this organization, its goals, and its actions. The documentary evidence shows, among other things, that it violently attacked everything that the Congolese government stood for, that it overthrew part of the Congolese government on some of its territory, and that it declared itself responsible for the local government in certain places. It was reasonable for the ID to conclude that this organization’s actions amounted to subversion by force of a government. [38] In my view, the certified material demonstrates that there are sufficient grounds to support the ID’s decision. Even if the applicant disagrees with the ID’s analysis of the evidence, it is not for this Court to substitute its own assessment. It was up to the ID, as the decision maker, to determine the weight to

be given to the applicant’s evidence (Nathaniel v Canada (Public Safety and Emergency Preparedness), 2020 FC 32 at para 35; Vavilov at para 125). [39] The applicant has failed to discharge his burden of demonstrating that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, transparency and intelligibility (Vavilov at para 100). IX. Conclusion [40] The application for judicial review is dismissed. The applicant has not demonstrated that the ID’s decision was unreasonable or that the ID breached procedural fairness, given the evidence in the record and the applicable legislation. [41] No question of general importance for certification was proposed. I agree that none arises. JUDGMENT in IMM-11188-22 THIS COURT’S JUDGMENT is as follows: This application for judicial review is dismissed. No question is certified. “L. Saint-Fleur” Judge Certified true translation Vera Roy, Senior Jurilinguist

FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM‑11188‑22 STYLE OF CAUSE: LATO LANDU PAMBU PAMBU v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: MONTRÉAL, QUEBEC DATE OF HEARING: MAY 27, 2025 JUDGMENT AND REASONS BY: SAINT‑FLEUR J DATED: June 2, 2025 APPEARANCES: Gracia Mouboli Bakonga

FOR THE APPLICANT Sherry Rafai Far

FOR THE RESPONDENT SOLICITORS OF RECORD: Gracia Mouboli Bakonga Lawyer Montréal, Quebec

FOR THE APPLICANT Attorney General of Canada Montréal, Quebec

FOR THE RESPONDENT