Date: 20051012
Docket: IMM-2007-05
Citation: 2005 FC 1387
Montréal, Quebec, October 12, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE de MONTIGNY
BETWEEN:
LAURENT NDUWIMANA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DE MONTIGNY J.
[1]
The
applicant, a citizen of Burundi, applied for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
“Division”). In a decision rendered on March 4, 2005, the Division concluded
that the applicant was not a Convention refugee or a person in need of
protection within the meaning of sections 96 and 97 of the Immigration and
Refugee Protection Act.
[2]
The
applicant claimed that he had been arrested and detained for fourteen (14) months,
from October 2002 to December 2003. This period of detention resulted from the
conflict between the transitional government in power in Burundi and the main
armed group in the country, the National Council for the Defence of Democracy –
Force for the Defence of Democracy (Conseil national pour la défense de la
démocratie – Force pour la défense de la démocratie , CNDD-FDD).
[3]
The
applicant was suspected of being a member of this group because he had visited
a professor who was a member of this political party. The applicant claimed he
had been politically neutral, especially because he was of mixed Tutsi and Hutu
descent.
[4]
The
Division dismissed his claim because he did not meet the burden of proof. The
Division concluded that his testimony was confused, contradictory and very
evasive. In spite of the fact the applicant had studied for four years at two
universities in Burundi, he was unable to precisely identify which persons,
groups or Tutsi or Hutu political parties would want to target him. At most, he
stated that they were acquaintances, without giving any details. The Division
also doubted his story about not having any knowledge of the political and
social machinery in his country, particularly the peace and reconciliation
agreement signed in October 2003 between the CNDD‑FDD and the
transitional government. Finally, he was criticized for not having claimed
protection as soon as he arrived in the United States, where he had a one-day
stopover before coming to Canada.
[5]
In spite
of Mr. Sloan’s very able submissions, I am of the opinion that the intervention
of this Court is not warranted under the circumstances. I note in passing that
the complaints made by Mr. Sloan against the Division, the Board and the
legislation governing the processing of refugee claims concern the soundness of
policy rather than law and would accordingly be more appropriate in another
forum.
[6]
Even
supposing that the Division could have erred in some secondary aspects of the
claim, this would not affect its conclusions about the applicant’s credibility,
which are at the heart of its decision. It may well be that no unfavourable
conclusion may be drawn from the fact that the applicant did not seem to be
aware of the political and social situation in his country. This could simply
confirm his lack of interest for this matter and his wish to remain neutral.
[7]
The same
applies to the fact that he did not claim refugee status on arrival in the
United States. It is true to say that the failure to claim protection from
another country on the first possible opportunity is a factor to be taken into
consideration in the assessment of the credibility of the claimant’s subjective
fear. In this case, the applicant’s explanation was quite reasonable: Canada
had always been his final destination, considering his command of the French
language, and he only transited through the United States to immediately
continue on to Canada.
[8]
But once
again, the decision was not rendered on the basis of these two facts. What
seems to have held the Division’s attention was the applicant’s inability to
give clear answers to questions in connection with the very basis of his fear
of persecution. Because he was unable to specify the identity of those persons
who were seeking to recruit him, the Division doubted his testimony.
[9]
On this
point, it is obvious that the Division has a clear advantage over this Court,
in that the applicant testified before it. The Division certainly was in the
best position to assess the credibility and plausibility of the applicant’s
testimony, and this is why it would not be appropriate to intervene, unless the
conclusions drawn by the Division were patently unreasonable (Aguebor v.
Minister of Employment and Immigration, (1993) 160 N.R. 315).
[10]
After
having read the transcript of the hearing before the Division, I reached the
conclusion that the Division did not commit a reviewable error in its
assessment of the testimony given by the applicant.
[11]
I could
not end these reasons without briefly dealing with the allegations of incompetence
or negligence made by counsel for the applicant against the applicant’s legal
adviser before the Division. It was alleged that the legal adviser should have
filed in evidence pictures of the applicant in jail and did not properly
represent the applicant by not questioning him at the hearing about his period
of detention.
[12]
Such
allegations are serious and must be considered with great caution. This Court’s
case law is clear: such accusations must be accompanied by the lawyer’s
explanation for the conduct in question or evidence of a complaint to the Bar (Nunez
v. M.C.I., (2000) 189 FTR 147, at paragraph 19 (F.C.); Geza v. M.C.I.,
(2004) 257 F.T.R. 114 (F.C.); Sathasivam v. M.C.I., [2004] F.C.J.
No. 541 (Q.L.) (F.C.T.D.); Mutinda v. M.C.I., [2004] F.C.J. No.
429 (F.C.T.D.) (Q.L.)).
[13]
For these
reasons, the application for judicial review must be dismissed. The parties did
not submit any question to be certified, and the Court does not consider it
appropriate to refer a question to the Federal Court of Appeal.
ORDER
THE COURT ORDERS THAT the application for
judicial review be dismissed. No question is certified.
“Yves
de Montigny”
Certified
true translation
Michael
Palles
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