Date: 20100106
Docket: IMM-525-09
Citation: 2010 FC 17
Ottawa, Ontario,
January 6, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Applicant
and
Ibrahim HABIMANA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act) of a decision made by the
Refugee Protection Division of the Immigration and Refugee Board (the panel).
The Minister of Citizenship and Immigration (the Minister) is seeking review of
the panel’s determination that Ibrahim Habimana (the respondent) is a
person in need of protection in a decision dated December 4, 2008.
* * * * * * *
*
[2]
The
respondent is a Rwandan citizen of Hutu origin.
[3]
He
states that he reported Hutu members of the Interahamwe militia who had committed
acts of genocide to a traditional court called Gacaca. He allegedly refused to
testify when he was summoned by that court a second time, out of fear of
revenge by militia members who were released, and came to Canada. The panel
found the respondent’s testimony on that point to be “direct and plausible”.
[4]
After
the respondent made his refugee protection claim, members of the Royal Canadian
Mounted Police (the RCMP) traveled to Rwanda to obtain information
about him. They contacted members of the Gacaca and concluded that the document
proving that he had been summoned was a forgery.
[5]
The
respondent seems to have explained that the documents proving the summonses are
drawn up in advance and exchanged among the various courts when necessary, and
so the seals and signatures appearing on a document issued to a person who is
summoned do not always correspond to the person’s district of residence.
* * * * * * *
*
[6]
The
panel identified revenge by the Interahamwes as the basis for the respondent’s
fear. Because revenge is not a ground of persecution recognized in the United
Nations Convention Relating to the Status of Refugees (the Convention), the
panel concluded that section 96 of the Act did not apply to the respondent
and examined his claim on the basis of paragraph 97(1)(b).
[7]
On
the question of the respondent’s credibility, the panel stated that it was “of
the opinion that these explanations are reasonable when the local culture of
mutual suspicion between ethnic groups, as described by documentary evidence, is
taken into consideration”. Although the panel did not state it expressly, it
thus seems to have believed the respondent and rejected the submissions made by
the Minister, which were that the evidence submitted by the respondent had been
falsified.
[8]
The
panel further concluded that the respondent was a “refugee sur place”,
and therefore a person in need of protection, because of the actions by the
RCMP investigators. The investigators “spoke
about the claimant to the very same people the claimant believed were the
persecuting agents and showed them the disputed notice to appear”.
[9]
Based
on the documentary evidence concerning Rwanda, the panel
noted that human rights are not always respected in that country, that members
of the public may be arbitrarily arrested and that the government attempts to
influence the courts, in particular the Gacaca.
[10] The panel
concluded that it was “reasonable
to believe that the authorities would take revenge on the claimant, who
tarnished the regime’s reputation abroad with dubious documents. The panel
[was] of the opinion that the situation would be aggravated due to the fact
that the claimant is a Hutu dealing with a repressive Tutsi political regime.” For
that reason, “it is
not unreasonable to think that the claimant would be persecuted for what the
state alleges is his political opinion. In light of this, the panel is of the
opinion, on the balance of probabilities, that a reasonable possibility of
persecution”
of the respondent exists in Rwanda.
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*
[11] The Minister
contends that the panel did not conduct its decision-making process properly
and thus violated the requirements of procedural fairness, by stating
inadequate reasons and issuing a decision that was incoherent, unintelligible
and not based on the evidence.
[12] In my
opinion, the panel’s stated reasons for its decision are insufficient for it to
be considered reasonable, in terms of both the primary reason and the
alternative reason.
[13] On the
question of the primary reason, the fear of the Interahamwe militia, the
panel’s conclusion that the respondent’s testimony was “direct and plausible”
is not intelligible, in view of the brevity of that testimony. When the
respondent was asked what he feared in Rwanda, he simply
stated that he was [translation]
“afraid [he] might be imprisoned and killed”. He stated that he did not know
the names of people who were threatening him, but that [translation] “they were people in the Gacacas, peasants and
the people I testified against.” He then recounted the problems his wife had
experienced since the RCMP members travelled there, but those facts are not
relevant to the respondent’s claimed fear of the militia.
[14] Although the
panel has the authority to assess the respondent’s testimony, that assessment
must still be transparent and intelligible (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47). The respondent’s
testimony was so vague that he did not even know whether he had been threatened
by the militia he was going to testify against, as the panel concluded, or by [translation] “people in the Gacacas
[or] peasants”. Given this context, the panel’s statement that the respondent’s
testimony regarding his fear was “direct” seems to me to be hardly transparent
and is not intelligible.
[15] In addition,
the panel did not explain intelligibly why it rejected holus-bolus all
of the allegations in the RCMP report concerning the summons to the Gacaca
introduced by the respondent. The only explanation given by the panel is that
the respondent’s allegations that the members of the Gacaca had lied to the
Canadian officers “are reasonable” in the context of “mutual suspicion between
ethnic groups” in Rwanda. Not only should the panel have decided not
whether the allegations were “reasonable”, but whether they were true, on a
balance of probabilities, but it also failed to explain how ethnic suspicion
would motivate the Gacaca to slander the respondent. Although the respondent is
a Hutu, he was, according to him, supposed to testify against militia members
who had committed acts of genocide and who were also Hutu. It seems logical to
assume that the members of the court, who were Tutsi, would not be hostile to
him.
[16] Regarding the
alternative reason for the decision, the possibility that the respondent had
become a “refugee sur place”, I agree with the Minister that the use of
the concept of “refugee sur place” by the panel to grant protection
under section 97 of the Act was not strictly speaking appropriate, because
that concept is closely associated with the concept of Convention refugee. This
is confirmed by the reference at paragraph 96 of the Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees to a
“well-founded fear of persecution” that justifies granting “refugee sur place”
status to a claimant.
[17] However,
section 97 of the Act does not provide that the events that cause a
refugee status claimant to fear that they would be subject to a risk to their
life or safety if they were returned to their country of origin must have
occurred before the person left that country. For that reason, in my opinion,
the discussion of the concept of “refugee sur place” has no practical
consequence in this case.
[18] If the panel
had concluded that the respondent would be subject to a risk to his life or safety
if he were returned to Rwanda, it could have granted him status as a
person in need of protection.
[19] To do that,
however, as the Minister argues, the panel would have had to consider the case
carefully and provide clear reasons for its decision. It did not do that.
[20] The panel’s
analysis of the impact of the RCMP investigation was summary. The only fact
accepted by the panel in its reasons is that the RCMP members disclosed the
respondent’s identity to “the
very same people the [respondent] believed were the persecuting agents”. As the
Minister argues, the panel’s reasoning was improper, since it had stated
earlier in its reasons that the respondent feared persecution by Hutu militia,
not the Rwandan authorities.
[21] That is not
all, however. The panel did not state whether the authorities were already aware
of the respondent’s situation or if the officers disclosed the fact that he had
made a refugee protection claim in Canada. An analysis of those
factors is crucial to the decision as to whether the respondent was endangered
by the actions of the RCMP (see Minister of Citizenship and Immigration v.
Mbouko, 2005 FC 126, at paragraphs 31 to 33).
[22] The panel
also did not conclude that refugee claimants who were returned to Rwanda were more
likely to be prosecuted or threatened than ordinary Rwandan citizens. In fact,
it did not even consider the question.
[23] The panel
therefore could not have concluded that the respondent would be subject to a
risk in Rwanda that “is not
faced generally by other individuals in or from that country” as required by
subparagraph 97(1)(b)(ii) of the Act. The panel’s reasons in no way
establish that this statutory requirement was met in the respondent’s case. The
panel’s “conclusion” on that point is purely speculative.
[24] The panel’s
decision that the respondent is a person in need of protection is therefore not
transparent and intelligible. The Court therefore cannot conclude that it is
reasonable (see Dunsmuir, supra, at paragraph 47).
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*
[25] I would
therefore, for the foregoing reasons, allow the application for judicial review
and order that the respondent’s case be completely reconsidered by a different
panel.
JUDGMENT
The application for judicial review is allowed. The decision
made by the Refugee Protection Division of the Immigration and Refugee Board
(the panel) on December 4, 2008, is set aside and the matter is referred
back to a different panel for redetermination.
“Yvon
Pinard”
Certified
true translation
Brian
McCordick, Translator
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