Date: 20060320
Docket: IMM-3929-05
Citation: 2006 FC 360
Ottawa, Ontario, the 20th day of March 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Applicant
and
SOPHIE NDAMAMA
OLIVIER KABURUNDI
ALIDA KABURUNDI
MARIE-ANGE KABURUNDI
KING FLEURY KABURUNDI
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, 2001 S.C. c.27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board) by
Ruth Delisle, dated June 9, 2005, in which the respondents were
determined to be “Convention refugees”.
ISSUE
[2]
Are the
reasons given by the Board for allowing the applicants’ claims for refugee
protection insufficient and inadequate?
[3]
For the
reasons that follow, this question is answered in the negative, and this
application for judicial review is dismissed.
FACTUAL BACKGROUND
[4]
The
principal respondent, Sophie Ndamama, is a Burundian citizen of Hutu ethnicity.
She is the wife of Salvator Kaburundi, whom the Board found to be excluded from
the definitions of “Convention refugee” and “person in need of protection”
under paragraph 1F(a) of the Convention because there were serious
grounds to believe that he was complicit in crimes against humanity and war
crimes. This determination was the subject of a separate judicial review
application, docket number IMM‑4281‑05, which was decided the same
day.
[5]
The
principal respondent and Mr. Kaburundi have four children: Olivier, Alida,
Marie-Ange and King Fleury, of mixed Hutu-Tutsi ethnicity.
[6]
From 1979
to 1992, the husband of the principal respondent worked for the Central
Committee of the governing party in Burundi, Unity for National Progress
(UPRONA). He was also a member of that party.
[7]
From 1988
to 1993, he studied business administration.
[8]
From 1993
to 1994, the husband of the principal respondent worked in the private sector,
but joined the public sector in 1996 after unsuccessful attempts to find work
in the public sector.
[9]
Beginning
in 1996, he held various financial administration and development assistance
positions with the foreign affairs department.
[10]
In 1998,
the husband of the principal respondent became the head of financial services.
His position required him to travel extensively, and he conducted audits on the
premises of approximately ten Burundian embassies abroad. During these audits,
the husband of the principal respondent uncovered a large number of financial
irregularities, and several public servants were reprimanded and required to
reimburse the improperly spent amounts. One of the public servants was
Ferdinand Nyabenda, a chargé d’affaires in Rome.
[11]
In 2000,
after a short posting at the Burundian Embassy in Kenya, he was appointed First
Secretary of the Burundian Embassy in Belgium. He was primarily responsible for
the Embassy’s financial administration and files dealing with the European
Union’s development assistance to Burundi. He also worked as Chargé d’affaires
between the departure of the outgoing ambassador and the arrival in 2002 of the
new ambassador, Ferdinand Nyabenda.
[12]
Relations
between the husband of the principal respondent and the new ambassador quickly
deteriorated.
[13]
During a
visit to Burundi in 2003, the husband of the principal respondent learned that
the Ambassador had denounced him as a sympathizer of the opposition party, the
National Recovery Party (PARENA). On June 11, 2003, he was summoned by the
police to answer to a charge of breach of national security.
[14]
Fearing
for his safety, he left Burundi for Brussels the same day.
[15]
Once back
in Brussels, the husband of the principal respondent was informed by a
colleague that the Ambassador had launched an outright smear campaign against
him, calling into question his loyalty to the government and the authenticity
of his claim to Tutsi ethnicity, and insinuating that the husband of the
principal respondent and his family members might be spies. The applicant began
to hear rumours that he would soon be recalled and dismissed.
[16]
Fearing
the worst if he returned to Burundi, the husband of the principal respondent,
the principal respondent and their minor children left Belgium for the United
States on August 30, 2003. They applied for refugee protection at the
Lacolle border crossing on September 1, 2003. Their two adult children
travelled the same route and applied for refugee protection on
September 2, 2003.
[17]
The
husband of the principal respondent claims that his home in Burundi and that of
his parents were sacked and looted, and that his parents had escaped death by
leaving the house just in time and hiding in the bush.
[18]
The
respondents claim to have been contacted several times at their Montréal home
by officials at the Burundian Embassy, demanding that the respondents return
their diplomatic cards.
IMPUGNED DECISION
[19]
The
Board’s reasons respecting the respondents’ applications for refugee protection
read as follows:
The spouse of the principal claimant, of
Hutu origin, testified that she feared returning to Burundi because the
authorities of her country were informed that her family had taken refuge in
Canada. The ambassador of Burundi in Ottawa telephoned them at their Montréal
residence to reclaim their diplomatic cards. The spouse of the principal claimant
indicated that the Burundian authorities could go after her and her children,
because they would be accused of having revealed in Canada what was happening
in Burundi. She also fears the rebels and the extremists, Hutus and Tutsis, who
consider her to be a secret agent. Lastly, she fears the members of her
husband’s family, who have excluded her and her children from family reunions.
The oldest son of the principal claimant,
King Fleury Kaburundi, added that the very reason that his father was a refugee
in Canada made him a wanted person, since the current situation in Burundi
caused settling of accounts between the two ethnic groups.
In light of the situation prevailing in
Burundi, the panel is also of the opinion that the sole fact of the principal
claimant’s defection and contravention of the order that he return to Burundi
places all the members of his family in danger should they return to their
country of citizenship. It follows that the panel is of the opinion that there
is a reasonable possibility that the members of the principal claimant’s family
would be persecuted and/or threatened should they return to the Republic of
Burundi.
ANALYSIS
[20]
Section 96
of the Act reads as follows:
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
|
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
|
|
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
|
a) soit se trouve hors
de tout pays dont elle a la nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun de ces pays;
|
|
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
b) soit, si elle n’a pas
de nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
[21]
The
applicant submits that the Board’s reasons are insufficient and inadequate on
the following grounds:
1. The Board simply confirmed the respondents’ allegations
without providing the reasons for believing them.
2. The
Board did not explain its finding that the mere fact that the husband of the
principal respondent had defected and had disobeyed an order to return to
Burundi put all the members of the family in danger, when the reading of this
order revealed nothing threatening.
3. Regarding
the principal respondent’s allegation that she feared the Hutu and Tutsi
extremists as well as her husband’s family, the Board neither ruled on her
credibility nor engaged in any analysis.
[22]
I cannot
accept the applicant’s submissions. The three paragraphs of reasons concerning
the respondents cannot and must not be read in isolation from the rest of the
highly detailed reasons concerning the exclusion the husband of the principal
respondent.
[23]
Although
the principle of procedural fairness indeed requires detailed reasons and
analysis when the tribunal finds that a claimant’s allegations are not
credible, the same cannot necessarily be said when the allegations are found to
be credible, since there is a presumption of credibility (Maldonado v.
Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 72
(F.C.T.D.) (QL)).
[24]
It is also
worth recalling the comments of Evans J. in Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(F.C.T.D.) (QL):
… the reasons given by administrative
agencies are not to be read hypercritically by a court (Medina v. Canada
(Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33
(F.C.A.)), nor are agencies required to refer to every piece of evidence that
they received that is contrary to their finding, and to explain how they dealt
with it (see, for example, Hassan v. Canada (Minister of Employment and
Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a
burden to impose upon administrative decision-makers who may be struggling with
a heavy case-load and inadequate resources. A statement by the agency in its
reasons for decision that, in making its findings, it considered all the
evidence before it, will often suffice to assure the parties, and a reviewing
court, that the agency directed itself to the totality of the evidence when
making its findings of fact.
[25]
In the
first part of its reasons, the Board engaged in a thorough analysis of the
situation in Burundi, based on testimony and extensive documentary evidence.
Given its findings on the seriousness of the crimes committed by the Burundian
government against civilian populations, the Board could certainly find the
respondents’ allegations credible without having to go into a detailed analysis
of the reasons why they considered them to be true. There is nothing in the
decision calling into question the respondents’ credibility.
[26]
I find
that the Board’s reasons concerning the respondents’ applications for refugee
protection were neither insufficient nor inadequate.
[27]
The
parties have not submitted any questions for certification, and none are raised
by this case.
ORDER
THE COURT ORDERS that the application for judicial
review is dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Francie
Gow
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