Date: 20121130
Docket: IMM-2143-12
Citation: 2012 FC 1408
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, November 30, 2012
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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FRANÇOIS SEBUCOCERO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division [“the RPD”] of the Immigration and Refugee Board dated
January 27, 2012, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [“the IRPA”]. The panel
determined that François Sebucocero was neither a Convention refugee under
section 96 nor a person in need of protection under section 97 of the
IRPA.
I. Facts
[2]
The
applicant is a citizen of Rwanda. He worked as a police officer from September 2000
to January 2009. He then became a merchant.
[3]
In
March 2009, he testified before the Court of Gacaca Jurisdiction [“Gacaca
Court”] against five people accused of genocide who were sentenced to general
work in the community.
[4]
Towards
the end of March 2009, some individuals threw stones at the applicant’s
house, and he received a written death threat. He gave a statement to the
police, who investigated the matter. No arrests were made following this
incident.
[5]
On
April 15, 2009, the applicant was attacked again because of his testimony
before the Gacaca Court. The police failed to find the two assailants, and given
that the attack occurred at night, it was hard for the applicant to identify
them. The applicant again filed a complaint with the police.
[6]
In
the night of May 10, 2009, the police rang at the applicant’s door to
inform him that his car had been set on fire. No arrests were made following
this incident. The applicant therefore decided to leave Rwanda since he felt
that the Rwandan state was unable to protect him and that his life could be in
danger. The applicant alleges that he is at an even greater risk because he
testified against people involved in the genocide and because he worked as a
police officer in the past.
[7]
On
May 26, 2009, he left Rwanda for the United States on a visa. A few days
later, he arrived in Canada and claimed refugee protection at the border.
II. Decision under review
[8]
The
RPD determined that the applicant is neither a Convention refugee nor a person
in need of protection.
[9]
The
RPD was satisfied as to the applicant’s identity and found his testimony to be
direct and clear. The applicant is therefore credible with respect to his
story.
[10]
At
the end of the hearing, the applicant expressed fear about his eventual return
to Rwanda since, in his opinion, Rwandan authorities might interpret his having
travelled abroad for a long period as proof of his opposition to them. Moreover,
given that he is abroad, he would not be available for them if ever they asked
him to do something.
[11]
The
RPD found that the applicant could not establish a well-founded fear of returning
to Rwanda. In fact, after he left his position as a police officer, he was not
subject to any travel or other restrictions. He is also not prohibited from
travelling abroad. The panel therefore found that, on a balance of
probabilities, the applicant would not be subject to a risk of persecution as a
former police officer should he have to return to Rwanda.
[12]
Regarding
the state protection available in Rwanda, in response to the threats to his
safety about which the applicant filed complaints, the RPD found this protection
to be adequate. In fact, the police investigated each of the applicant’s
complaints, even though they were unable to identify any suspects because of a
lack of information. The applicant’s efforts were not hampered by corruption. Moreover,
as a former police officer, he testified in detail about the effective
protection given by the police to the public.
[13]
Lastly,
the RPD found that it was true that, according to the documentary evidence on
Rwanda, people who have testified before a Gacaca court, Gacaca judges and
survivors are at risk of being assaulted, harassed or murdered. The panel was
nonetheless of the opinion that the evidence also stated that the Rwandan
government had adopted adequate measures to address the problem, including
preventive measures such as detaining the accused and setting up hotlines.
III. Applicant’s
submissions
[14]
The
applicant submits that the RPD erred in finding that the Rwandan State is able
to properly protect him. In its decision, the panel failed to address some of
the documentary evidence that describes the danger faced by the applicant as
someone who once testified before the Gacaca Court. In addition, the police’s
receipt of the complaint and their ensuing response are insufficient to
establish that the Rwandan State offers effective protection.
IV. Respondent’s
submissions
[15]
The
respondent alleges that the applicant did not meet his burden of establishing
that state protection in Rwanda is inadequate.
[16]
First,
the documents according to which Gacaca Court judges and witnesses and genocide
survivors are in danger are not up to date since the last reported murders date
back to before 2009. Furthermore, Rwandan authorities cannot be expected to
provide a level of protection that even the best equipped police departments
cannot aspire to, such as when, for example, the perpetrator of a crime cannot
be identified because of a lack of evidence.
V. Issue
[17]
Did
the RPD err in finding that Rwanda can provide the applicant with adequate
state protection?
VI. Standard of review
[18]
The standard of
review applicable to the RPD’s finding regarding state protection is that of
reasonableness (Carrillo v Canada (Minister of Citizenship and Immigration),
2008 FCA 94 at para 36, 69 Imm LR (3d) 309).
VII. Analysis
[19]
The
RPD mainly bases its decision to refuse to grant the applicant the status of a refugee
or of a person in need of protection on its finding that effective state protection
is available. The RPD’s determination is unreasonable, for the following
reasons.
[20]
It
is trite law that a democratic state is presumed to have the ability to protect
its citizens. Clear and persuasive evidence must be produced to establish that
a government is unable to protect. This burden rests on the applicant (Kaur
v Canada (Minister of Citizenship and Immigration), 2005 FC 1491, 2005
CarswellNat 3745).
[21]
The
applicant was attacked and threatened, and his property was damaged. He did
everything in his power to report these acts to the authorities so that they
could protect him, and he exhausted all avenues available to him. The acts were
repeated however, and it appears from the evidence that the Rwandan police were
unable to prevent the attacks against the applicant, who reported them as of
the first incident.
[22]
In
its decision, the RPD refers to a 2010 report that notes that, in the previous
year, for the first time, no murders of witnesses, judges or other participants
involved in Gacaca Court proceedings were reported. Until 2009, therefore,
persons connected to proceedings before the Gacaca Court were murdered. This is
an important factor that weighs in favour of the Rwandan state’s inability to
protect participants in proceedings of the Gacaca Court, despite the measures
implemented to protect such individuals.
[23]
Moreover,
the RPD’s decision focuses on the police forces’ efforts to arrest certain
individuals who threatened and murdered participants in Gacaca Court proceedings
and the general measures taken by the Gacaca Court to better protect citizens,
such as setting up helplines and organizing neighbourhood patrols. As stated in
the documentary evidence, most of theses witness protection measures were taken
recently.
[24]
However,
the RPD is silent on the conflicting evidence on the availability of effective
state protection. In fact, according to a relatively recent report, dated 2007,
there is a shortage of effective measures to properly protect Gacaca Court
witnesses: this is corroborated by the applicant’s testimony to the effect that
the police lack resources to provide effective protection. Even though the
documentary evidence suggests that witness protection has become more effective
in the last two years and that this improvement probably resulted, in 2009, in
the fact that, for the first time, no witness murders were reported, the
applicant’s situation is such that he continues to be the victim of criminal
acts. According to the facts of this case, the RPD did not, in its reasons,
deal with the contradictory evidence establishing the state’s inability to
protect its citizens or consider the facts particular to the applicant’s
situation. It was the RPD’s duty to do so. (See Francis v Canada (Minister
of Citizenship and Immigration), 2011 FC 1507, 2011 CarswellNat 5436).
[25]
In Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at pp 724-725, 20 Imm LR (2d) 85
[Ward], the Supreme Court explained how applicants can demonstrate their
home state’s inability to properly protect them:
50 The issue that arises, then, is how, in a practical
sense, a claimant makes proof of a state’s inability to protect its nationals
as well as the reasonable nature of the claimant’s refusal actually to seek out
this protection. On the facts of this case, proof on this point was
unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available, however,
clear and convincing confirmation of a state’s inability to protect must be
provided. For example, a claimant might advance testimony of similarly
situated individuals let down by the state protection arrangement or the
claimant’s testimony of past personal incidents in which state protection did
not materialize. . . .
[26]
The
RPD’s finding is not part of the possible, acceptable outcomes which are
defensible in respect of the facts and the law since the decision deals mainly with
the measures implemented to better protect Gacaca Court witnesses. It thus
affords little weight to the evidence reporting that witnesses were murdered
until 2009, clear and persuasive evidence establishing the state’s inability to
protect in cases similar to that of the applicant despite the measures adopted
by the government. The fact that three incidents occurred in which the applicant’s
property was damaged or his physical safety was threatened and that it was
impossible to prevent theses incidents suggests that the situation is likely to
recur. In fact, state protection following these three incidents did not materialize
for the applicant.
[27]
Lastly,
considering the fact that the police were unable to help the applicant
following his attacks or play a preventative role and the fact that some
witnesses were murdered, one can only conclude that the RPD’s decision is
unreasonable. The evidence reveals that, where state protection fails, the
risks that the applicant might face could be serious. The RPD was silent in this regard.
[28]
In
fact, Ward, above at pp 724-726, establishes that it would be
unacceptable to require applicants to put their lives in danger to demonstrate
that their home state is unable to properly protect them: “[m]oreover, it would
seem to defeat the purpose of international protection if a claimant would be
required to risk his or her life seeking ineffective protection of a state,
merely to demonstrate that ineffectiveness”.
[29]
Even though, as
pointed out by the applicant, one cannot expect Rwandan authorities to meet a
standard to which even the best equipped police forces can only aspire (Smirnov
v Canada (Secretary of State), 89 FTR 269 at para 11, 1994 CarswellNat
1453F), the facts of the present matter indicate that the Rwandan authorities
were unable to provide the applicant with an adequate level of protection.
[30]
Despite an
investigation, the attackers were not identified. Moreover, the evidence suggests
that the Rwandan police intervened after the incidents and failed to prevent
the attacks. Lastly, in its decision, the RPD failed to consider the
conflicting documentary evidence about the Rwandan government’s ability to
implement effective measures to protect witnesses. Consequently, the RPD cannot
base its decision on the fact that one cannot expect the Rwandan state to
provide a level of protection to which the best equipped police forces cannot
aspire since it failed to consider certain evidence that counters its finding
that effective state protection is available in Rwanda.
[31]
The respondent’s
representative used the documentary evidence on state protection in Rwanda to
demonstrate that the system of protection has improved since the 1990s. However,
in its decision, the RPD did not perform this exercise and, furthermore, did not
appear to take into account the situation faced by the applicant. The RPD
should have considered the documentary evidence supporting the position that
state protection is available, but also the evidence suggesting the opposite,
and then analyzed all of the evidence in light of the facts arising from the applicant’s
situation. Since it failed to do so, its decision is unreasonable. The parties
were invited to submit a question for certification, but none was submitted.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
the application for judicial review is allowed. The decision is set aside, and
a hearing before a differently constituted panel will be held for
redetermination of the applicant’s claim for refugee protection. No question
will be certified.
“Simon
Noël”
____________________________
Judge
Certified true translation
Johanna Kratz, Translator
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