Date: 20060623
Docket: IMM-6201-05
Citation: 2006 FC 803
OTTAWA, Ontario, June 23, 2006
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
FLORIDE NYIRASUKU, LUCKY EXAUSEE DUKUZUMUREMYI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an Application for judicial review of a decision of Mr. Michel Faure, a member of the Immigration and Refugee Protection Board, Refugee Protection Division (RPD), dated September 28, 2005, wherein the RPD concluded that Ms. Floride Nyirasuku (Applicant) is not a Convention Refugee or a person in need of protection due to her negative credibility finding.
[2] The hearing in front of the RDP was held in the French language via videoconference. In this Application, the pleadings are in English and the judicial review hearing will be conducted in English. Therefore, these Reasons and Order are in English.
[3] The Applicant was born on August 25, 1978, in Gisenyi, Rwanda, and is a citizen of that country. Lucky Exausee Dukuzumuremyi is the Applicant's minor daughter, and is, as well, an Applicant.
[4] In April 1994, the genocide began in Rwanda.
[5] On May 5, 1994, the Applicant's mother was murdered by the "interahamwes".
[6] At the beginning of July 1994, authorities from the Habyarimana ordered Rwandans to leave Rwanda and go to the Democratic Republic of Congo.
[7] The Applicant lived in a Refugee Camp there for over two years with her father and brother.
[8] In November 1996, the Applicant's Refugee Camp came under attack. The Applicant and her family returned to Rwanda, where she found their house occupied by soldiers. This occupation ended in July 1999.
[9] In August 1999, the Applicant went to see a Catholic Priest about education funding opportunities. The Catholic Church paid for the Applicant's nursing studies. The Applicant completed those studies in July 2000.
[10] On January 26, 2001, the Applicant's father and brother were murdered by the Rwandan military.
[11] The Applicant's neighbour was too frightened to help her and this caused the Applicant to take a bus to Kigali, Rwanda, to live with a friend.
[12] In June 2001, the Applicant was notified that militants occupied her family home in Gisenyi, Rwanda. The militants were asking for her whereabouts.
[13] In July 2001, a friend of the Applicant told her that he would help her leave Rwanda for Canada. The Applicant applied for a Canadian Visa, but it was refused.
[14] In September 2001, the Applicant learned that militants knew that she was in Kigali. She had to leave Rwanda as she feared for her safety.
[15] On October 25, 2001, the Applicant left Rwanda for Tanzania, and ended up in Zimbabwe a few weeks later.
[16] In a Refugee Camp in Zimbabwe, the Applicant met Mr. Tharcisse Dukuzumuremyi.
[17] On February 7 2003, the couple had a baby girl, Lucky Exausée.
[18] On April 13, 2003, the couple married.
[19] On April 25, 2004, the Zimbabwe government arrested her husband and she never heard from him again.
[20] The Applicant was informed that the Zimbabwegovernment was looking for her at the Refugee Camp. She left Zimbabwe.
[21] The Applicant paid $3,000.00 to be smuggled into Canada.
[22] The Applicant came to Canada on September 10, 2004, and made a refugee claim on that same date on the basis of Convention grounds and as person in need of protection, fearing for her life if returned to Rwanda.
[23] The Applicant has been found to be a Refugee in Zimbabwe against Rwanda on May 17, 2002.
[24] The RPD made a negative credibility finding, supported by three pages of reasons regarding the credibility finding.
[25] The RPD correctly determined that the Applicant's testimony was inconsistent (oral hearing, PIF and Immigration Forms) and could not be accepted.
[26] The RPD determined that there were inconsistencies regarding the date of departure from Rwanda, occupations the Applicant held in Zimbabwe, Refugee Camp address in Zimbabwe, other address information, marriage date, and date of arrival in Zimbabwe.
[27] There is one main issue to this Application: Did the RPD make a patently unreasonable credibility finding?
[28] It is trite law that facts and credibility findings are reviewed on a standard of patently unreasonable, Chowdhury v. MCI, 2006 FC 139 (February 7, 2006, Justice Noël):
[12] The decision of the RPD as to the Applicant's entitlement to refugee
protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at para. 4).
[29] The Applicant presents three submissions.
[30] First, the RPD made a patently unreasonable error of fact when it stated that the Applicant stated "No" to the question: "si la police ou les militiares la recherchent dans quelque pays que ce soit" as the RPD ignored the Applicant's statement she made to the Immigration Officer.
[31] Second, it was patently unreasonable to conclude that it was implausible for the Applicant to survive by escaping through a window.
[32] Third, the RPD erred when it dealt with peripheral issues concerning Zimbabwe. In other words, it is a reviewable error for the RPD to reject "a claim based solely on the non-credibility of peripheral issues without evaluating the credibility of the evidence concerning the substance of the claim". The RPD decision cannot be supported by secondary points.
[33] The Respondent makes one main submission.
[34] The Respondent insists that the RPD did not make a patently unreasonable adverse credibility finding. The RPD supported this finding with numerous examples.
[35] In this application, the main issue is whether the RPD made a patently unreasonable credibility finding.
[36] The RPD lists numerous examples to support the negative credibility finding. It simply did not believe almost the entirety of the Applicant's story and determined that she does not have any reason to fear returning to Rwanda.
[37] The RPD took issue with many inconsistencies, such as inconsistencies regarding the date of departure from Rwanda, occupations the Applicant held in Zimbabwe, Refugee Camp address in Zimbabwe, other address information, marriage date, and date of arrival in Zimbabwe.
[38] Cumulatively, all these inconsistencies lead the RPD to conclude that the Applicant has no reason to fear returning to Rwanda. This conclusion was open to the RPD.
[39] The time the Applicant spent in Zimbabwe was not a peripheral consideration. Even though the Applicant fears returning to Rwanda, the analysis of credibility is an ongoing process.
[40] The Applicant states that it is "bizarre" that the Applicant was found to be a Refugee in Zimbabwe against Rwanda, yet the RPD does not even mention this in its Reasons. This is not correct as the RPD mentions this fact at page 4 of its Reasons.
[41] The jurisprudence indicates that the Applicant's credibility must be analyzed in a global fashion.
[42] In a recent decision, Abdullah Shah v. MCI, 2006 CF 627, dated May 29, 2006, Justice Noël states that:
[24] Ce n'est pas dans tous les cas que des erreurs de fait doivent donner lieu au renvoi du dossier à la SPR. Plusieurs erreurs prises ensemble peuvent cependant mener à un tel résultat, même si prises isolément, chacune des erreurs de fait ne permettrait pas d'accueillir une demande de contrôle judiciaire (Salamat c. Canada (Commission d'appel de l'Immigration), [1989] A.C.F. No. 213 (C.A.F.); Horvath c. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] A.C.F. No. 1532, au para. 7 (C.F.)). Dans l'affaire Zhuo c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2005 CF 1271 (C.F.), le juge Phelan écrit :
¶ 7 [...] Le défaut d'expliquer comment on en est arrivé à cette conclusion, une appréciation fondamentalement erronée des faits et le poids cumulatif des conclusions contestables sont des facteurs qui donnent ouverture à ce degré de contrôle judiciaire. [...]
[...]
¶ 21 Bien qu'il eût été possible de confirmer l'une ou l'autre des conclusions de la SPR au motif qu'elles sont déraisonnables sans être toutefois manifestement déraisonnables, certaines d'entre elles contredisent de toute évidence la preuve, et l'accumulation d'un nombre aussi important de conclusions déraisonnables, inexpliquées ou inexplicables justifie à elle seule la Cour de conclure que la décision de la SPR est manifestement déraisonnable.
¶ 22 Par conséquent, la décision de la SPR sera annulée et l'affaire sera renvoyée à un tribunal différemment constitué de la CISR pour que celui-ci procède à une nouvelle audition.
Cependant, les erreurs prises ensemble doivent être suffisamment importantes pour affecter les conclusions centrales de la SPR : il ne doit pas s'agir de questions de fait périphériques. Dans l'affaire Usta c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2004 CF 1525, au para. 17, le juge Phelan écrit:
Alors que le demandeur invoque un certain nombre d'erreurs dans la décision de la Commission, notamment la confusion quant aux dates, quant à certain nombre d'incidents et quant à un certain nombre d'explications soumises, aucune de ces erreurs ne touche le coeur de la décision de la Commission. Aucune de ces erreurs (dans la mesure où elles existent) ne constitue un déni de justice naturelle.
[43] The credibility finding was not based on minor or peripheral issues as the RPD pointed out the inconsistencies directly found in the Applicant's PIF and oral testimony, as they related to her claim of protection against Rwanda.
[44] In the end, the RPD concluded that the Applicant did not participate in the genocide and has no reason to fear returning to Rwanda. I am satisfied that the Board's reasoning is correct.
JUDGMENT
The application for judicial review is dismissed. No question was submitted for certification.
"Max M. Teitelbaum"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6201-05
STYLE OF CAUSE: FLORIDE NYIRASUKU, LUCKY EXAUSEE DUKUZUMUREMYI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 21, 2006
REASONS FOR JUDGMENT: TEITELBAUM J.
DATED: June 23, 2006
APPEARANCES:
| Michael Crane
|
FOR THE APPLICANTS
|
| Ms. Janet chisholm
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Michael Crane
Barrister & Solicitor
Toronto, Ontario
|
FOR THE APPLICANTS
|
| John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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