Date: 20100210
Docket: IMM-4171-09
Citation: 2010 FC 137
Ottawa, Ontario, February 10, 2010
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
BONIFACE KABURENTE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Boniface Kaburente,
a citizen of Burundi, is a member
of the Tutsi ethnic minority. He reported some wrongdoing committed by
members of the local administration in the distribution of food aid, for which he
was responsible. These members ordered him to help only the Hutus. He
refused. He immediately started to receive insults and death threats. He
claims to have been kidnapped on July 25, 2007, and he claims to have
been assaulted at his home and to have found a grenade in his garden in October
of the same year.
[2]
He
left Burundi to come to Canada in December 2007 and filed his
claim for refugee protection.
[3]
Although
the panel considered Mr. Kaburente to be credible and that he had a
subjective fear of persecution, the panel found that the applicant was not a
“Convention refugee” or a “person in need of protection”.
[4]
This
is a judicial review of that decision. The decision will be set aside only if
the Court finds that it is unreasonable (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
ANALYSIS
[5]
The
parties are of the opinion that there are two issues. The first is to determine
whether there is an objective basis for the subjective fear of persecution. The
second is to determine whether the applicant has met the burden of proving with
clear and convincing evidence that he could not obtain state protection. For
Mr. Kaburente to be successful, he must show that the decision was
unreasonable with respect to both issues.
[6]
I
have my doubts regarding the panel’s analysis of the objective basis. Although
Mr. Kaburente left his job with the food‑aid distribution program,
he did make a complaint. Although his neighbourhood was in a peaceful area, the
assailants had no difficulty going to his home.
[7]
It
seems that Mr. Kaburente, as a Tutsi, has a generalized fear of the Hutus
and of crimes in general. Following his complaints, the police nevertheless
proceeded to arrest suspects.
[8]
The
incident of November 2007 was the tipping point that made
Mr. Kaburente decide to leave his country to settle in Canada. He stated the
following on his Personal Information Form:
[TRANSLATION]
[He was] …awoken by a noise from
unknown persons who were trying to break through the front door of [his] house,
but without success. When I realized that my house was being attacked, with the
children, we called out for help, seeking assistance from the neighbourhood.
Following [their] cries for help, the culprits had to abandon their plan of
attack. However, before escaping, they threw stones at the windows and managed
to break them.
[9]
He
called the police, who came to inspect the premises. They found a grenade in
his yard. The police promised to investigate, but told him that they were
unable to offer him individual protection.
[10]
Although
the police were unable to offer him individual protection, such as a bodyguard,
this does not in any way indicate that the state is unable to offer him adequate
protection.
[11]
Another
decision‑maker could have reasonably arrived at the conclusion that there
was an objective basis for Mr. Kaburente’s fear and that he was able to
rebut the presumption of state protection. Although there can be only
one correct decision, there may be many reasonable decisions. Paragraph 47 of Dunsmuir,
above, requires a court conducting a review to “inquire[] into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes”:
Reasonableness is a deferential standard animated by the
principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may
give rise to a number of possible, reasonable conclusions. Tribunals have a
margin of appreciation within the range of acceptable and rational solutions. A
court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[12]
In
Canada (Director of Investigation and Research) v. Southam Inc., [1997]
1 S.C.R. 748, Justice Iacobucci, on behalf of the Supreme Court, gives reviewing
courts, at paragraph 80, a warning that applies upon review on a standard of
reasonableness simpliciter:
I wish to
observe, by way of concluding my discussion of this issue, that a reviewer, and
even one who has embarked upon review on a standard of reasonableness simpliciter,
will often be tempted to find some way to intervene when the reviewer him- or
herself would have come to a conclusion opposite to the tribunal’s. Appellate
courts must resist such temptations. My statement that I might not have
come to the same conclusion as the Tribunal should not be taken as an
invitation to appellate courts to intervene in cases such as this one but
rather as a caution against such intervention and a call for
restraint. Judicial restraint is needed if a cohesive, rational, and, I
believe, sensible system of judicial review is to be fashioned.
This Court has no choice
but to take such a warning into account in this case.
ORDER
FOR THESE
REASONS;
THE COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to be certified.
“Sean Harrington”
Certified
true translation
Susan
Deichert,
Reviser
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