Date:
20120920
Docket:
IMM-5203-11
Citation:
2012 FC 1103
Ottawa, Ontario,
September 20, 2012
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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JEAN CLAUDE NZAYISENGA
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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, Mr. Jean Claude Nzayisenga, applies for judicial review of the June
24, 201l decision of the Refugee Protection Division of the Immigration and
Refugee Board (RPD).
[2]
The
RPD refused the Applicant’s claim for refugee protection pursuant to section 96
and subsection 97(1) of the Act. The RPD determined that the Applicant
is not a Convention refugee and is not a person in need of protection.
[3]
I
conclude for reasons that follow that the application should be dismissed.
Background
[4]
The
Applicant, Jean Claude Nzayisenga, was born in Rwanda to a Hutu father and a
Tutsi mother. He lived with his grandparents while he attended primary school.
When the genocide in Rwanda started in 1994, a neighbour of his grandparents,
Alphonse Buregeya, came and took the Applicant’s grandparents away. The
Applicant’s grandparents were Tutsis and Seventh Day Adventists and were killed
by the men who took them away.
[5]
The
Applicant rejoined his parents in Karambi, about five kilometres away. Later in
1994, Hutu neighbours came to the home and beat him and his mother.
[6]
After
the genocide, the Applicant’s parents denounced Mr. Buregeya who was imprisoned
awaiting trial. In April, 2008, Mr. Buregeya appeared in the Gacaca court of
Rwanda. The Applicant was summoned to testify which he did on May 12 and May
19, 2008. Mr. Buregeya was sentenced to 15 years in jail for his part in the
genocide.
[7]
On
May 20, 2008, the Applicant was attacked by three men wearing masks. The
Applicant was left unconscious on the side of the road. He was in hospital for
about four days.
[8]
The
Applicant returned to the university he had been attending where he began
receiving threatening calls on his cell phone. His parents also received calls on
their home phone from unidentified men looking for the Applicant.
[9]
Later
that year the Applicant received an internship to work with RiskMetric Group in
the United States; the Applicant left Rwanda on October 8, 2008 for the United States.
[10]
On
December 27, 2008, the Applicant came to Quebec and made a refugee claim. The
Applicant claims to fear Mr. Buregeya and his family.
Decision Under
Review
[11]
The
RPD found the Applicant was not a Convention refugee because he did not have a
well founded fear of persecution in Rwanda and was not a person in need of
protection in that his removal to Rwanda would not subject him personally to
risk of harm. The RPD determinative issues were the nature of the harm the
Applicant feared and the existence of an Internal Flight Alternative (IFA).
[12]
The
RPD accepted the Applicant testified against Mr. Buregeya in the Gacaca Court and was beaten by unknown men following the trial. The RPD also accepted that
the Applicant received threatening phone calls on his cell number from unidentified
persons. The RPD also found that the last time his parents heard from anyone
looking for the Applicant was approximately eight months before the RPD
hearing.
[13]
The
RPD considered the current country conditions in Rwanda. The RPD noted the
Rwandan government follow-up to the Gacaca Courts took measures to protect and
improve the situation of the genocide survivors and witnesses.
[14]
The
RPD also found the documentary evidence did not corroborate the subjective fear
the Applicant claimed. There were no reports of organized groups targeting
genocide witnesses. The RPD found that 156 genocide survivors and witnesses
were killed between 1995 and 2008 but this percentage was very low considering
more than 1.2 million cases were heard in the Gacaca Courts. The RPD also noted
that the documentary evidence showed that there had been major improvements in
the previous year alone and that the fact that some people had been killed does
not show an absence of state protection.
[15]
The
RPD found that that the Applicant’s fear of persecution under s. 96 was not
objectively well-founded on a forward-looking assessment.
[16]
In
regards to the s. 97 claim the RPD noted that the Applicant’s parents still
lived in the same place and that, although they were initially told that they
would be harmed if they did not tell the caller about their son, this had not
occurred. The RPD found the Rwandan government had taken significant steps to
assist citizens of Rwanda after the genocide, and the Claimant’s family had not
been further contacted.
[17]
In
the alternative, the RPD also considered an internal flight alternative (IFA)
for the Applicant. It set out the test for determining the existence of an IFA
set out in Rasaratnam v Canada (Minister of Employment and Immigration),
[1992] 1 FC 706, 140 NR 138 (FCA) [Rasaratnam] and then considered Kigali as a viable IFA.
[18]
The
RPD accepted that Rwanda is a small country, but stated that Kigali has a
population of approximately one million people. The RPD decided there would be
work opportunities for the Applicant in Kigali. The RPD also noted the
Applicant is independent, well educated and does not require the assistance of
his parents or family at this point in his life.
[19]
The
RPD found that the IFA of Kigali is objectively reasonable in all the circumstances.
Relevant
Legislation
[20]
The
Immigration and Refugee Protection Act, SC 2001, c 27 provides:
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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.
…
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.
…
108.
(1) A claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
…
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
…
(4)
Paragraph (1)(e) does not apply to a person who establishes that there are
compelling reasons arising out of previous persecution, torture, treatment or
punishment for refusing to avail themselves of the protection of the country
which they left, or outside of which they remained, due to such previous
persecution, torture, treatment or punishment.
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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.
…
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.
…
108.
(1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié
ou de personne à protéger dans tel des cas suivants :
…
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
…
(4)
L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
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Issues
[21]
The
Applicant raised the following issues:
1. Did
the RPD fail to consider whether the Applicant suffered from cumulative
harassment amounting to persecution?
2. Did
the RPD err by not conducting a “compelling reasons” analysis under paragraphs
108(1)(e) and 108(4) of IRPA?
3. Does
consideration of an IFA require a prior finding of a well-founded localized
fear of persecution?
Standard of
Review
[22]
The
Supreme Court of Canada has held in Dunsmuir v New Brunswick, 2008 SCC 9
[Dunsmuir] that there are only two standards of review: correctness for
questions of law and reasonableness involving questions of mixed fact and law
and fact. The Supreme Court has also held that where the standard of review has
been previously determined, a standard of review analysis need not be repeated.
[23]
The
RPD’s determination of whether incidents of discrimination or harassment amount
to persecution is a question of mixed fact and law to be determined on a
standard of reasonableness. Liang v Canada (Minister of Citizenship &
Immigration), 2008 FC 450 at paras 12-15[Liang]
[24]
Questions
related to the application of section 108(1)(e) and 108(4) are determinations
of mixed fact and law and are to be determined on a reasonableness standard. Lewis
v Canada (Minister of Citizenship & Immigration), 2011 FC 1378 at para
8. [Lewis]
[25]
An
examination of the RPD’s determination regarding the viability of an IFA is
also a question of mixed law and fact to be determined on a standard of
reasonableness. Melvin Alonso Cruz Pineda v Canada (Minister of Citizenship
& Immigration), 2011 FC 81 at para 29 [Pineda]
Analysis
[26]
The
Applicant submits he had been persecuted since his grandparents had been
murdered, he and his mother beaten, and he was beaten and hospitalized after he
testified in the Gacaca court. The Applicant submits the RPD accepted this
testimony but did not specifically address whether the various incidents of
mistreatment cumulatively created a well-founded fear of persecution. The
Applicant also submits the RPD was required to consider section 108 of IRPA
because the preconditions for consideration of compelling reasons were present.
Finally, the Applicant submits an IFA analysis requires the RPD to find or
assume the existence of a localized well-founded fear of persecution before
conducting a proper IFA analysis.
Cumulative
Mistreatment
[27]
The
question of whether the cumulative incidents of mistreatment create a well
founded fear of persecution has been addressed by this Court in Salim v Canada (Minister of Citizenship & Immigration), 2011 FC 1283 [Salim].
… The doctrine of cumulative grounds of persecution
was summarized by Mr. Justice Nadon, speaking for the Federal Court of Appeal,
in Canada (Minister of Citizenship and Immigration) v Munderere, 2008
FCA 84, 377 N.R. 259. Where evidence establishes a series of actions
characterized to be discriminatory, and not persecutory, the cumulative effect
of that conduct must be considered. It would be an error of law for the RPD not
to consider the cumulative nature of that conduct, as directed against the
claimant. The RPD is duty bound to consider all the events which may have an
impact on a claimant’s submission that he or she has a well-founded fear of
persecution. Salim at para 30
[28]
In
the case at hand, the RPD considered all of the incidents of mistreatment
alleged by the Applicant. While the RPD did not specifically say it had
considered the cumulative effect of those incidents, it is clear that the RPD
was aware of the totality of the Applicant’s allegations.
[29]
Moreover,
the RPD was mindful of the change in circumstances in Rwanda. In my view, the RPD could proceed as it did since the Applicant’s claim of fear rests, not
on the totality of his experiences, but on the beating and threatening phone
calls following his testimony in the Gracaca Court. The RPD decided the
Applicant would not face a serious possibility of persecution in the event of
his return to Rwanda today given government measures to safeguard genocide
victims and witnesses. Sugiarto v Canada (Minister of Citizenship and
Immigration), 2010 FC 1326 [Sugiarto].
[30]
The
RPD made no error in its review of these incidents and consideration of the Rwanda government measures to support victims and witnesses. It cannot be said to have
failed to consider all the events cumulatively as reviewed all incidents and
reasonably assessed the objective basis for the Applicant’s fear in light of
the relevant circumstances.
Compelling
Reasons
[31]
Given
the RPD reasonably decided that the Applicant did not have a well founded fear
of persecution, the precursors for a compelling reasons analysis under s.
108(4) were not present. Section 108(1) will only apply when the decision maker
finds a claimant has a valid claim for refugee protection and then must find
the cause of the persecution no longer exists. Only then does the decision
maker consider s. 108(4).
[32]
This
Court has recently had the opportunity to address the application of subsection
108(4). In Lewis at para 43, Justice Scott stated:
43 Brovina v Canada (Minister of
Citizenship and Immigration), 2004 FC 635 at para 5 is the leading case. It
states that section 108(1)(e) will only apply when the decision maker has made
a determination that the person has had a valid claim for refugee protection
due to persecution. The decision maker must then find that the cause of that
persecution no longer exists. At this point, the decision maker can consider
108(4) and “…whether the nature of the claimant’s experiences in the former
country were so appalling that he or she should not be expected to return and
put himself or herself under the protection of that state”.
[33]
This
was not a case where the Applicant’s experiences in the former country were so
appalling that he should not be expected to return and put himself under the
protection of the state. The RPD did not err for not conducting such an
analysis.
Internal Flight
Alternative
[34]
In
order to qualify for protection under either section 96 or 97, a claimant must
face risk in all parts of the country he is fleeing. If there is a part of the
country, an IFA, in which the claimant does not face risk, then that claimant
does not meet the requirements for protection, irrespective of whether the
claimant faces risk in the area that he fled.
[35]
This
Court has stated that the RPD need not proceed in the manner urged by the
Applicant that the RPD must first find or assume the existence of a
well-founded fear before conducting an IFA analysis. Sarker v Canada (Minister of Citizenship & Immigration), 2005 FC 353, 137 ACWS (3d) 1196 [Sarker].
[36]
In
Sarker at para 7, Justice Snider stated that the RPD, in performing an
IFA analysis, is not required to first make a finding that the Applicant faced
a localized risk as argued by the Applicant:
When looking at the existence of an IFA, the
Board could find that the Applicant faced a risk of persecution in [the area
from which he originates], the Board could assume (without finally
determining the question) that he faced persecution or it could ignore the
whole question. As long as:
(a) The Board
applied the correct test to its IFA analysis; and
(b) Its conclusions
on the existence of an IFA was not patently unreasonable, in the sense that it
is unsupported by the evidence;
Its decision should stand.
[Emphasis added, citations omitted]
[37]
Here,
the RPD stated and applied the correct test to its IFA analysis.
[38]
The
RPD’s conclusions were supported by the evidence and fall within the range of
reasonable outcomes based on the applicable law and facts. It does not matter
that the RPD did not find or assume the existence of a well-founded fear of
persecution in the area from which the Applicant originates.
[39]
The
RPD’s IFA determination is reasonable. The Applicant has failed to establish
that the RPD has made a reviewable error.
Conclusion
[40]
The
application for judicial review does not succeed.
[41]
The
Applicant proposes questions for certification which reflect the issues
identified. These questions have already been addressed by ample jurisprudence
and I decline to certify the questions.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed.
2. No
question of general importance is certified.
“Leonard S. Mandamin”
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