Date:
20120621
Docket:
IMM-8509-11
Citation:
2012 FC 794
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, June 21, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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ALINE VALENTINE
UWIMANA
LIAM YOANN UWIMANA
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Applicants
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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
I. Introduction
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision by the
Refugee Protection Division (RPD), dated October 14, 2011, that the applicants
are neither Convention refugees within the meaning of section 96 of the IRPA nor
persons in need of protection under section 97 of the IRPA.
II. Facts
[2]
The
female applicant, Aline Valentine Uwimana, is a citizen of Burundi. Her son, the
male applicant, Liam Yoann Uwimana, is a citizen of the United States.
[3]
The
female applicant, the daughter of a mixed couple (Tutsi and Hutu), alleges that,
on December 12, 1994, she witnessed the massacre of her family—that is, her
mother, her two sisters and her brother—by a group of young Tutsis.
[4]
The
female applicant apparently reported two of the assailants, who were imprisoned
and then released in 2006.
[5]
After
the massacre, the female applicant lived in several cities in Burundi.
[6]
The
female applicant alleges that she was raped by two men in January 2000. She was
rescued by her neighbours and hospitalized for two weeks.
[7]
From
2001 to 2005, the female applicant worked as a teacher. She explained that, in
2004, her family commenced long-distance marriage rituals with her future
husband, Jean De Dieu Uwimana, who was residing in the United
States.
[8]
After
she obtained a student visa, she left Burundi for the United States on
September 19, 2005, with a passport bearing her cousin’s photo.
[9]
The
female applicant’s son was born in June 2007. That same year, the female
applicant’s husband obtained his permanent residence but refused to sponsor her
because he discovered that his wife’s passport photo was false.
[10]
The
female applicant decided to leave her husband to come to Canada with her 10‑month‑old
son, for whom she submitted a fake birth certificate claiming that he was of
Burundian nationality.
[11]
On
April 12, 2008, because of identity problems, she was placed in detention with
her son.
[12]
At
the port of entry, the female applicant claimed that she had been raped on
January 23, 2008. She alleged that she fears the intelligence people.
She claimed, among other things, that her husband had stayed in Burundi (Tribunal
Record (TR) at pages 236–239).
[13]
After
learning from the American authorities that the female applicant had entered
the United States on September 19, 2005, with a Burundian passport and
that her son was an American citizen, the Canada Border Services Agency (CBSA)
was satisfied with the female applicant’s identity and she was released.
[14]
On
May 27, 2008, the female applicant, in the initial version of her Personal
Information Form (PIF), claimed that she had wanted to flee her country because
her family’s murderers had been released. Her marriage to her husband, who
lived in the United States, had allowed her to flee Burundi (TR at pages 106–107).
[15]
On
May 7, 2009, the female applicant amended her PIF and added that she had been
raped in January 2000 (TR at page 112).
[16]
In
the RPD’s decision dated March 1, 2011, the applicant was declared a vulnerable
person as defined by Guideline 8 on Procedures with Respect to Vulnerable
Persons Appearing before the Immigration and Refugee Board of Canada (Guideline
8).
III. Decision under review
[17]
The
RPD pointed out that the female applicant submitted three different versions of
her account, namely, the one given to the immigration officer at the point of
entry, the one given in her initial PIF and the one given in the amended
version of her PIF.
[18]
The
RPD rejected the refugee claim of the female applicant’s son because she did
not submit evidence against the United States.
[19]
The
RPD rendered a negative decision based on the female applicant’s lack of
credibility. The RPD noted the implausibility or contradictions relating to,
primarily, the following elements in the female applicant’s account:
a) the
identity of the agents of persecution;
b) the
presence of the female applicant’s cousin at her family’s murder;
c) the
absence of persecution of this cousin;
d) the
identity of the persons who made threatening phone calls.
[20]
The
RPD also held a lack of evidence in support of the deaths of her family members
against the female applicant.
[21]
The
RPD also analyzed the risk of persecution by reason of the female applicant’s
ethnicity and found that she was not a victim of it.
[22]
Regarding
the situation of women in Burundi, the RPD found that the female applicant does
not fit the profile of women at risk of sexual violence in Burundi. In that
regard, it pointed out that the female applicant was a teacher before leaving
Burundi.
IV. Issue
[23]
Did
the RPD commit a reviewable error?
V. Relevant statutory provisions
[24]
The
following provisions of the IRPA apply in this case:
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Convention
refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition
de « réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait personnellement,
par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas
de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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VI. Position of the parties
[25]
The
applicants criticize the RPD for failing to sufficiently consider the female
applicant’s vulnerable state. The female applicant claims that the RPD failed
to consider the impact of her psychological state on her ability to testify. Moreover,
the female applicant challenges the non‑credibility finding made by the
RPD regarding the different versions of her testimony, which she explained.
[26]
Regarding
the account’s implausibility, the female applicant maintains that she never
contradicted herself during her testimony. The female applicant also claims
that she provided a plausible explanation for her use of a fake passport and the
absence of her mother’s name in the documents submitted in support of the death
claims. The female applicant also argues that the RPD erred by finding that
there was no link between the murders of 1994 and the rape.
[27]
The
respondent contends that the objective of Guideline 8 is not to fill in the
gaps in the female applicant’s testimony. He points out that the RPD was
sensitive to the factors that could have had an impact on the female
applicant’s testimony.
[28]
Moreover,
the respondent claims that the RPD reasonably found that the female applicant
lacked credibility. The respondent refers to the discrepancies and
implausibilities that are central to the female applicant’s account, namely,
the identity of the agents of persecution and the threats against the cousin
and the female applicant. He also claims that the lack of evidence establishing
the death of the female applicant’s family members undermined her credibility.
Regarding the link between the rape of the female applicant and the murders of
1994, the respondent submits that the RPD’s finding is valid given that it did
not believe the female applicant. By this very fact, he maintains that the
RPD’s finding that the female applicant travelled with an authentic passport is
reasonable with respect to the non-credibility findings.
VIII.
Analysis
Guideline
8
[29]
First,
the issue of the application of the guideline is one of procedural fairness and
is, as a result, reviewable on the standard of correctness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[30]
The
female applicant’s argument relies mainly on her vulnerability, which the RPD failed
to consider. Guideline 8 unequivocally warns claimants and their counsel
against the idea that vulnerability is necessarily associated with credibility:
5. General Principles
5.1 A person may be identified as vulnerable,
and procedural accommodations made, so that the person is not disadvantaged in
the presentation of their case. The identification of vulnerability will
usually be made at an early stage, before the IRB has considered all the
evidence in the case and before an assessment of the person's credibility has
been made.
5.2 A person may be identified as vulnerable
based, in part, on alleged underlying facts which are also central to the
ultimate determination of their case before the IRB. An identification of
vulnerability does not indicate the IRB's acceptance of the alleged underlying
facts. It is made for the purpose of procedural accommodation only. Thus the
identification of a person as vulnerable does not predispose a member to make a
particular determination of the case on its merits. Rather, a determination of
the merits of the case will be made on the basis of an assessment of all the
evidence.
5.3
Similarly,
evidence initially used to identify a vulnerable person and to make procedural
accommodations may not have been tested through credibility assessments
or other means. If such evidence is then used to adjudicate the merits of the
case, the member should ensure that all hearing participants are given an
opportunity to address this evidence as it relates to the merits of the case.
This means that submissions may be made about the relevance of the evidence and
the evidence may be tested through such means as questioning by the parties and
the member, and other methods. The credibility and probative value of the
evidence may then be assessed by the member, even though the IRB previously
accepted the evidence for the purpose of identifying vulnerability and making
procedural accommodations. [Emphasis added.]
[31]
Certainly,
this guideline must not be minimized in importance. Its general objective is to
provide vulnerable claimants with the framework necessary for being able to
testify, despite their emotional or psychological difficulties (Mubiala v
Canada (Minister of Citizenship and Immigration), 2011 FC 1105).
[32]
That
being said, the guideline cannot help make credible a testimony that is deficient
due to implausibilities or contradictions that cannot be directly linked to the
claimant’s state of vulnerability.
[33]
After
reviewing the hearing transcript carefully, this Court cannot conclude that the
implausibility and non-credibility findings were made without consideration of
the female applicant’s vulnerable state. She benefitted from a hearing that
respected her vulnerable state. In addition, this Court is of the opinion that
the elements identified by the RPD that diminished the female applicant’s credibility
cannot be excused by her vulnerability. The RPD also explicitly noted the
following:
[51] These contradictions and this
implausibility undermine the claimant’s credibility with respect to the threats
received, and the panel does not believe that this can be attributed to the
medication she is taking, as she appeared alert during the hearing and answered
the questions spontaneously. . . .
Credibility
[34]
In
this case, it is important to note that the credibility problems are salient. The
RPD criticized, among other things, the implausibility of important parts of
the female applicant’s account, namely, the circumstances surrounding the murder
of her family, the identity of the persecutors and the threats received.
Significant deference is owed, and the appropriate standard of review is
reasonableness (Dunsmuir, above; Newfoundland and Labrador Nurses'
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR
708)).
[35]
On
this point, it is important to remember that it is up to the RPD, by virtue of
its expertise, to assess all of the evidence submitted and the value of the
refugee claimant’s testimony (Aguebor v Canada (Minister of Employment
and Immigration), [1993] FCJ No 732 (QL/Lexis)). In this case, it was not
demonstrated that the RPD did not consider the evidence. The RPD assessed the
evidence submitted, and it is not up to this Court to substitute its reasoning
for that of the RPD.
[36]
From
the same perspective, its implausibility findings are not open to judicial
review if they are consistent and supported by clearly stated reasons, as are those
of the decision under review (Santos v Canada (Minister of Citizenship and Immigration),
2004 FC 937; Valtchev v Canada (Minister of Citizenship and Immigration),
2001 FCT 776, 208 FTR 267).
[37]
Furthermore,
there are identity problems underlying the credibility finding in this case. On
this point, it is important to note that the female applicant submitted a false
birth certificate in the name of her minor son, indicating that he was born in Burundi
in an attempt to conceal her stay in the United States. Even though the RPD
accepted the female applicant’s identity, it nevertheless pointed out the
concerns that remain regarding the use of a fake passport to leave Burundi.
[38]
In
light of Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution,
the RPD analyzed the possibility that the female applicant would be persecuted because
of her gender. The RPD’s analysis refers to the documentary evidence, even if
the RPD had reservations about whether the rape alleged by the female applicant
took place. The analysis falls within the parameters of reasonableness.
[39]
Under
these circumstances, in view of all of the above-mentioned reasons, the
objective evidence is of no help to the female applicant because she did not
establish a well-founded subjective fear of persecution.
VIII. Conclusion
[40]
For
all of the above-mentioned reasons, the intervention of this Court is not
required. The application for judicial review is therefore dismissed.
JUDGMENT
THE
COURT ORDERS that the
applicants’ application for judicial review be dismissed. No question of
general importance arises for certification.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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