Docket: IMM-4141-11
Citation: 2012 FC 235
Ottawa, Ontario, February 21,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ABDUL SHEMA SHAKA
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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]
The
applicant seeks an order setting aside the May 25, 2011 decision of the Refugee
Protection Division of the Immigration Refugee Board of Canada (the Board),
which found him to be neither a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). For the
reasons that follow, the application for judicial review is dismissed.
Facts
[2]
The
applicant was born in Uganda to Rwandan parents. His
mother filed a complaint before the gacaca courts in respect of persons who
allegedly committed crimes during the Rwandan genocide. The applicant claims
that he and his family received threats in an effort to intimidate them from
pursuing this complaint. The applicant thus moved to Uganda. He then obtained a
student visa to enter the United States (US).
[3]
Upon
arrival in the US the applicant neither
pursued studies nor made an asylum claim. He made his way to Canada approximately one month
later where he made a claim for refugee protection based on his Tutsi identity
and his membership in the social group of “gacaca witnesses.” The applicant’s
claim was refused by the Refugee Protection Division. While the Board had
concerns about the applicant’s credibility, the determinative issue was the
existence of state protection in Rwanda. The Board found as follows:
After
reviewing the evidence available, the panel finds that the claimant has not
rebutted the presumption of adequate state protection with clear and convincing
evidence. After considering the documentary evidence, the panel determines, in
light of the jurisprudence, that adequate state protection would be forthcoming
to the claimant, as it was in the past, in the event he were to return to
Rwanda. The claims under sections 96 and 97 of the IRPA must therefore both
fail.
Issue
[4]
The
issue in this case is whether the decision of the Board to refuse the
applicant’s refugee claim is reasonable per Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190.
Analysis
[5]
Section
18.1(4) of the Federal Courts Act (R.S.C., 1985, c. F-7) (FCA) provides this Court the
jurisdiction to grant relief if the Court determines that a federal board,
commission or other tribunal:
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a) acted without jurisdiction, acted
beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of
natural justice, procedural fairness or other procedure that it was required
by law to observe;
(c) erred in law in making a decision
or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it;
(e) acted, or failed to act, by reason
of fraud or perjured evidence; or
(f)
acted in any other way that was contrary to law.
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a) a agi sans compétence,
outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un
principe de justice naturelle ou d’équité procédurale ou toute autre
procédure qu’il était légalement tenu de respecter;
c) a rendu une décision ou
une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou
non au vu du dossier;
d) a rendu une décision ou
une ordonnance fondée sur une conclusion de fait erronée, tirée de façon
abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en
raison d’une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire
à la loi.
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[6]
The
applicant raises two issues in his memorandum which presumably are argued under
sections 18.1(4)(d) or (f). These issues are:
i.
Did
the Panel Member err in failing to consider that Rwanda is merely a fledgling democracy and, in
consequence, fail to recognize that the presumption of state protection can be
more easily overturned?
ii.
Did
the Panel Member err in failing to consider the actual operational level of
protection available to the Applicant?
[7]
The first
error, is, in essence, that the Board improperly analyzed the applicant’s
refugee claim and therefore committed an error in law. I find that the Board
committed no such reviewable error. With respect to the second error, I find
that the decision withstands review on a reasonableness standard.
[8]
The
applicant’s primary argument is that the Board was unaware, did not appreciate,
or chose not to view Rwanda as a fledgling
democracy. Had this fact been recognized, the applicant would have been
entitled to have rebutted the presumption of adequate available state
protection at a lower threshold. This argument is without merit. In Perez
Mendoza v Canada (Minister of
Citizenship & Immigration), 2010 FC 119, para 33, Justice François Lemieux
summarized some of the relevant legal principles regarding state protection:
The
kind of evidence that may be adduced to show that the state protection would
not have been reasonably forthcoming includes: testimony of similarly situated
persons, individual experience with state protection and documentary evidence (Ward).
The
standard of proof is balance of probabilities (Carillo).
The
quality of such evidence will be raised in proportion with the degree of
democracy of a state (Avila).
The
degree of democracy may be lowered if the state tolerates corruption in its
institutions (Avila).
The
evidence must be relevant, reliable, and convincing to satisfy the trier of
fact on a balance of probabilities that the state protection was inadequate (Carillo).
[9]
In Alassouli
v Canada (Minister of Citizenship & Immigration), 2011 FC 998 at paras
38-42, Justice Yves de Montigny refined the impact an analysis as to the nature
of the democracy under scrutiny by a Board will have on the presumption of
adequate and existing state protection. In that case, he held as follows:
….I
wish to take this opportunity to address a matter discussed by the parties in
their submissions, relating to the significance of the democratic nature of a
state in determining the robustness of the presumption of state protection.
Counsel for the applicant argues that Jordan is a kingdom whose "law does not
provide citizens the right to change their monarchy or government". He
goes on to submit that Jordan is therefore at the lowest end of democratic
values, and that the applicant is therefore only required to demonstrate a
minimal effort at seeking remedies to obtain state protection.
With
respect to the applicant, I cannot accept this argument. It is true that a
claimant from a country with a full complement of strong democratic
institutions must show serious efforts at obtaining protection. There is no
doubt what this Court meant when it stated in Kadenko v Canada (MCI),
[1996] F.C.J. No. 1376, 143 D.L.R.(4th) 532 that "...the more democratic
the state's institutions, the more the applicant must have done to exhaust all
the courses of action open to him or her".
But
the reverse is not necessarily true in every case. It is quite possible that
states which lack a democratic election process for choosing their leaders,
such as monarchies, may nevertheless enjoy effective mechanisms of state
protection, at least to repress common criminality and anti-social behaviour. Therefore, in assessing the
availability of state protection, it is only logical that regardless of the
manner in which a state chooses its leaders, tribunal members must examine the
actual level of state protection available in that country, having regard to
the particular circumstances of the applicant. When its authority is not
threatened, it may well be that a state will be willing and able to provide a
fair level of protection to its citizens, even if it does not conform with our
ideal of democracy.
[10]
I
see no reason to depart from Justice de Montigny’s analysis. The question
remains one of fact, in each case, as to whether the presumption has been
rebutted. The newness or the age of the democracy are not necessarily
demonstrative of whether the state is truly democratic. More scrutiny may be
required of countries that are in transition, but there is no automatic
presumption or lesser threshold as contended. The test is the same, for all
countries. What may vary is the amount of evidence required to rebut the
presumption. To adopt Justice de Montigny’s language:
…democracy
should not be used as a proxy for state protection. There is obviously a strong
relationship between the citizens’ participation in the institutions of the
state on the one hand, and the effectiveness and fairness of the state's
apparatus to protect them. There is no automatic equation between the two,
and an assessment of state protection must always rest on a more nuanced
analysis, taking into account the particular circumstances of a claimant, as
well as the state involved.
[Emphasis
added]
[11]
I
will turn next to the second branch of the applicant’s argument; that it fails
to meet the standard of reasonableness in respect of its assessment of the
evidence.
[12]
The
applicant’s argument is essentially predicated on what amounts to a
disagreement with the weight the Board gave to the evidence and, as I have
already held, not on any identifiable error of fact.
[13]
With
respect to the Rwandan authorities’ ability to provide protection to the
applicant, the Board found as follows:
The
claimant introduced a report from Human Rights Watch, dated January
2007, calling for the government of Rwanda to respond to threats against the gacaca
process. More recent evidence suggests that the Rwandan authorities have indeed
responded to the situation.
The
US Department of State Report for 2009 observes:
The
government investigated and prosecuted individuals accused of threatening,
harming or killing genocide survivors and witnesses or of espousing genocide
ideology, which the law defines as dehumanizing an individual or a group with
the same characteristics by threatening, intimidating defaming, inciting
hatred, negating the genocide, taking revenge, altering testimony or evidence,
killing, planning to kill, or attempting to kill someone. A special protection
bureau in the Office of the National Public Prosecution Authority (formerly the
Office of the Prosecutor General) investigated 473 cases, 181 of which were
filed in court (see section 1.e.)...
Most
gacaca hearings took place without incident, but violence and threats of violence--usually
perpetrated by persons accused of crimes related to genocide--against genocide
witnesses were serious problems)
The
Report further observed:
The
government held local communities responsible for protecting witnesses and
relied on the local defense, local leaders, police, and community members to
protect witnesses. A task force continued efforts to monitor those genocide
survivors deemed most at risk and genocide suspects considered most likely to
commit violent attacks. During the year it increased joint patrols in rural
areas by survivors and security personnel used preventive detention of genocide
suspects to prevent attacks deemed imminent by security officials expanded
hotlines; and expedited gacaca hearings for those cases deemed most likely to
involve the risk of violence against survivors and witnesses.
The
Amnesty International Report declared:
In
December, with several appeals and revisions pending, the deadline to end
gacaca was extended to the end of February 2010. After the closure of gacaca
new accusations were to be presented before conventional courts.
This
report suggests that the gacaca process has been terminated, rendering moot the
claimant’s fear related to this particular social group.
Finally,
the UK Operational Guidance Note concluded:
While
there have been continued reports of harassment, intimidation and even murders
of genocide survivors/witnesses testifying to the gacaca system or the ICTR.
the state authorities have demonstrated a willingness and ability to protect
the genocide survivors and witnesses.
The
panel considered the claimant’s personal circumstances. The claimant introduced
a police report prepared following the arson at his family home. According to
the report, the police are treating the incident as a criminal act, and the
investigation is ongoing. The claimant’s own evidence suggests that the police
responded to his complaint and are pursuing the matter.
While
the police may not he perfect in Rwanda, that is not the relevant test. Rather
the protection must be adequate. After reviewing the evidence available, the
panel finds that the claimant has not rebutted the presumption of adequate
state protection with clear and convincing evidence. After considering the
documentary evidence, the panel determines, in light of the jurisprudence, that
adequate state protection would be forthcoming to the claimant, as it was in
the past, in the event he were to return to Rwanda. The claims under sections
96 and 97 of the IRPA must therefore both fail.
[14]
The
applicant has simply failed to demonstrate how evidence which was before the
Board was not considered, or given unreasonable weight. Moreover, the gacaca
court procedure has ended and complaints now may be made before the regular
courts of Rwanda. The applicant’s
claimed basis for persecution has therefore evaporated. In addition to being
correct in law, the decision falls within the range of possible, acceptable
outcomes defensible in light of the facts and law and is therefore reasonable.
[15]
The
application for judicial review is dismissed.
[16]
There
is no question for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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