Date:
20121108
Docket:
IMM-3015-12
Citation:
2012 FC 1304
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, November 8, 2012
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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VENUSTE MUPENZI
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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 of the Immigration and Refugee Board (the panel) dated February 29,
2012, under subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (the Act), rejecting the applicant’s claim for refugee
protection because of the existence of serious grounds that the applicant had
been complicit in crimes against humanity between the months of April 1994
and July 1994.
Facts
[2]
The
applicant is a citizen of Rwanda from a Hutu father and a Tutsi mother. He
alleges the following facts in support of his application.
[3]
In
1991, he became a member of the Democratic Republican Movement (the DRM), a conservative
Hutu party, led by Faustin Twagiramungu. From October 1992 to April 6,
1994, he apparently also worked at Radio Rwanda as a journalist under the name
Venuste Mupenzi. He also used the name Venuste Basinyize only a few times while
on the air at Radio Rwanda when he was a sports commentator in this
institution.
[4]
During
the period from April 1994 to July 1994, the applicant had been under the
pressure of the military, who controlled the premises of Radio Rwanda. He stated
that, during this period, it was impossible for him to leave the premises
without putting his own safety at risk. It should be noted that these premises had
also been his normal place of residence provided by his employer since he was
hired. It was not until the army of the government in place left the premises
of Radio Rwanda, after the troops of the Rwandan Patriotic Front had advanced,
that he was able to leave the premises with the other employees of Radio Rwanda
under the protection of the army of the regime in place.
[5]
He
went to the Democratic Republic of Congo in July 1994. Then he went to Belgium
on August 29, 1996, and made a refugee claim. He used the name Venuste
Basinyize in Belgium and it was under that identity that he obtained refugee
status in Belgium in 1997.
[6]
On
March 10, 2008, the applicant left Belgium and requested refugee status in
Canada. After he arrived in Canada, he was detained for identification
purposes. He gave false identification at the point of entry because he had
been influenced by a person who had helped him to go to Canada. The applicant
subsequently provided proof of identity for Venuste Mupenzi, which was his real
identity.
[7]
The
applicant claimed to have a well-founded fear of persecution both in Rwanda and
in Belgium, on the one hand, because of Hutu extremists who allegedly accused
him of spying on the political leaders of the diaspora on behalf of the
government in Kigali and, on the other hand, because of Tutsi extremists who
criticized him for asking embarrassing questions to the Rwandan leaders,
including President Kagame.
Panel’s decision
[8]
For
several reasons, the panel doubted the applicant’s credibility as to whether he
had in fact been a member of the DRM political party from 1991 until he left
Rwanda in July 1994. Initially, the applicant stated in his original
Personal Information Form (PIF) that he had never been part of a political
organization and he never provided a reasonable explanation for this
discrepancy. The panel noted that the applicant made a statement that he
confirmed to be true, then stated that it was not because he was under the
negative influence of an acquaintance.
[9]
Further,
it is implausible that, if he was an important member of the DRM, he would seek
refuge on the first day of the genocide in the offices of Radio Rwanda, which
was calling for the murder of members of the DRM. It is also implausible that
he worked at Radio Rwanda without any problems and even followed the genocidal
government in exile when his colleagues knew about his involvement with the DRM.
[10]
The
panel also found that the applicant’s credibility was undermined by the
applicant’s statement that he had allegedly worked at Radio Rwanda only under
the name Venuste Mupenzi. When confronted with the fact that he had stated in
an interview on November 12, 2010, that he had used the name Venuste
Basigize on the air at Radio Rwanda, he did not provide a reasonable explanation,
stating that he was psychologically confused. Further, he did not provide a reasonable
explanation as to why a search performed in Rwanda by the Royal Canadian Mounted
Police (RCMP) revealed that no individual named Venuste Mupenzi had
contributed to the welfare fund from 1992 to 1994. However, a citizen with the
name Venuste Basinyize, born in 1971, had contributed as of November 2,
1993. The panel did not deny the fact that the applicant’s name is Venuste
Mupenzi, but it found that it was logical to infer from the information analyzed
that the applicant could have worked as a journalist at Radio Rwanda from October 1992
to July 1994 under the name Venuste Basingize.
[11]
During
the genocide, Radio Rwanda was an organization with a limited and brutal
purpose because it was impossible, during this period, to separate among its
activities those that were legal from those that were not, particularly because
they incited violence and murder. Therefore, Radio Rwanda worked closely with
the genocidal authorities in carrying out the genocide. The applicant voluntarily
worked with Radio Rwanda and, during this period, his role was to broadcast
hate messages.
[12]
In
addition, the applicant, from April to July 1994, was close to influential
people who actively assisted in carrying out the genocide. For example, the
father of his girlfriend (who subsequently became his wife) was the right hand
man of the eldest son of President Habyarimana, an extremist.
[13]
The
panel found that it was possible to infer from the evidence on file as a whole
that, under the name Venuste Basingize, the applicant personally participated,
as a journalist with Radio Rwanda, in spreading information and points of view that,
in practice, constituted assisting to commit genocide.
[14]
Given
its conclusion that there are serious reasons to believe that, from April to
July 1994 in Rwanda, the applicant was complicit in crimes against
humanity, the panel determined that the applicant could not be a Convention refugee
or a person in need of protection, because he was a person covered by Article 1F(a)
of the Convention relating to the Status of Refugees (the Convention) and section 98
of the Act.
Issues
(a)
Did
the panel err in finding that the applicant was not involved in the DRM?
(b)
Did
the panel err in finding that the applicant worked as a journalist at Radio
Rwanda under the name of Venuste Basingize?
(c)
Did
the panel err in finding that the applicant was close to influential people at
the time of the genocide?
(d)
Did
the panel ignore the materials submitted by the applicant that showed that the
Rwandan authorities recognized him as Venuste Mupenzi?
The
standards of review
[15]
The
correctness standard of review is applicable to the scope of the concept of
complicity by association for the purposes of applying Article 1F(a) of
the Convention (Ezokola v Canada (Minister of Citizenship and
Immigration), 2011 FCA 224, [2011] 3 FCR 417, leave to appeal granted April 26,
2012 (2012 CarswellNat 1173) (SCC), judgment pending, at para 39 (Ezokola);
Nsika v Canada (Minister of Citizenship and Immigration), 2012 FC
1026, [2012] FCA No 1112, at para 14).
[16]
The
question of whether the evidence in this case shows that there are serious
reasons to believe that the applicant is a person covered by Article 1F(a)
of the Convention is a question of mixed fact and law reviewable on a standard
of reasonableness (Dunsmuir v Nouveau-Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at para 53 (Dunsmuir); Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 46; Multani
v Canada (Minister of Citizenship and Immigration), 2012 FC 15, [2012] FCA
No 25, at para 7; Ezokola at para 39).
[17]
Reasonableness
is mainly concerned with the existence of justification and intelligibility
within the decision-making process as well as whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir, at para 47).
[18]
In
this case, the applicant does not dispute the panel’s finding that there are
serious reasons to believe that Radio Rwanda, as an institution, was complicit
of genocide and that, from April to July 1994, Radio Rwanda became an organization
with a limited, brutal purpose. He also does not dispute that, during
the commission of the genocide, a journalist at Radio Rwanda under the name
Venuste Basingize was complicit of crimes against humanity under Article 1F(a)
of the Convention. Therefore, these matters are not at issue. It is not
necessary to consider the principles that apply to the exclusion clause because
they are well known and are not called into question in this matter.
[19]
If
the panel’s conclusion that he is the journalist Venuste Basingize is reasonable,
it is subject to Article 1F(a) of the Convention.
Analysis
(a) Did the panel
err in finding that the applicant was not involved in the DRM?
[20]
The
applicant argued that it was unreasonable for the panel to find that he was not
credible with respect to whether he was involved with the DRM from 1991 until
he left Rwanda in July 1994 considering the letter of Mr. Twagiramungu,
President of this party at the time, who also confirmed this fact to an officer
of the Canadian Border Services Agency (CBSA), who accepted the statement as
part of his investigation into the applicant’s identity.
[21]
The
respondent argued that the panel, as a specialized tribunal, has significant
discretion in weighing and assessing evidence submitted. It is open to the
panel to reject a document if it finds that the underlying facts are not
reliable (paragraphs 170(g) and (h) of the Act; Nijjer v
Canada (Minister of Citizenship and Immigration), 2009 FC 1259, at
para 26). Be that as it may, the fact that the applicant may or may not
have been a member of the DRM is not relevant and does not avoid the
possibility that he could have participated in the genocide. It is the issue of
the applicant’s identity that is determinative as to the application of Article 1F(a)
of the Convention.
[22]
I
share this opinion. The determinative issue in this case is the applicant’s double
identity and the fact that he may or may not have been a member of the DRM does
not avoid the fact that he could have worked as a journalist at Radio Rwanda
under the name Venuste Basingize and could have participated in the genocide. The
letter of Mr. Twagiramungu does not establish that the applicant did not
use the name Venuste Basingize on the air at Radio Rwanda or that he did not
participate in the genocide.
(b) Did the panel
err in finding that the applicant worked as a journalist at Radio Rwanda under
the name of Venuste Basingize?
[23]
The
applicant argued that the evidence does not support the panel’s conclusion that
he worked as a journalist at Radio Rwanda under the name Venuste Basingize, who
was a new trainee.
To the contrary, the applicant submitted that he had been a journalist and a
sports commentator (and not a mere trainee) at Radio Rwanda since 1992 under
the name Venuste Mupenzi. However, the applicant admitted that he sometimes
used the name Basinyize, not Basingize, on the air at Radio Rwanda to attract
people’s attention.
[24]
The
respondent noted that the applicant did not file any evidence from independent
sources corroborating his allegation that he worked before and during the
genocide as a journalist at Radio Rwanda under the name Venuste Mupenzi. It is
implausible that the name Venuste Mupenzi is not mentioned anywhere in the
documentary evidence, while applicant claims to have been a long-time employee
and made several significant statements on air before and during the genocide. However,
there are several similarities between the applicant and the journalist Venuste
Basingize. Both had just finished their training at Radio Rwanda at the
beginning of the genocide. They spoke on the radio on April 7, 1994. They
stayed on the premises of Radio Rwanda during the genocide and the names of
their parents are identical.
[25]
As
for the different ways to write the name Basingize, the applicant submitted
that during the hearing before the panel on November 15, 2011, the
applicant admitted that it was the same name and that the differences in
spelling of that name could be explained by the different pronunciations of it,
in his view. Accordingly, it was reasonable for the panel to find that the
applicant had used the name Venuste Basingize when he was a journalist at Radio
Rwanda. I share this opinion.
[26]
As
the respondent pointed out, it is implausible that the name Venuste Mupenzi is
not mentioned anywhere in the documentary evidence, while applicant claims to
have been a long-time employee . Further, the RCMP’s investigation showed
that the father of an individual named Venuste Basinyize has the identical name
of that of the applicant. The investigation also showed that Basinyize’s mother’s
name is Cyibamvunya. In his PIF, his mother’s name is Marie Chibamvunya. Thus,
the mothers’ names are very similar.
[27]
Moreover,
at the hearing before the panel, the applicant did not give any reasonable
explanation for the inconsistency between his testiimony and his statement
during an interview on the topic of his use of the name Venuste Basinyize on
the air at Radio Rwanda when he was 24 years old, his age at the time of
the genocide. He was also unable to explain why his name does not appear on the
list of people who contributed to the welfare fund at the time where the
applicant allegedly worked at Radio Rwanda under the name Venuste Mupenzi,
while an individual by the name of Venuste Basinyize, born in 1971, appears on
the list.
[28]
Given
the similarities between the two people, it was reasonable for the panel to
find that it was the same person and that the applicant had used the name of
Venuste Basingize in calling several times for hatred of and violence during the
genocide.
(c) Did the panel
err in finding that the applicant was close to influential people at the time
of the genocide?
[29]
The
applicant argued that the panel erred in finding that the applicant was close
to influential people at the time of genocide, including the father of his
girlfriend, the right hand man of the eldest son of President Habyarimana. This
finding is wrong because the applicant testified that he was not close to his
father-in-law. In fact, his parents-in-law rejected him because he is a man of
mixed origins from a social class that they consider to be inferior.
[30]
As the respondent stated, the panel did not find that the
applicant was complicit because of his closeness to his father-in-law, but
because he personally participated in calling for violence and murder on Radio
Rwanda during the genocide under the name of Venuste Basingize on the side of
notorious extremists, such as Jean-Baptiste Bamwanga, recognized by the
applicant as an extremist who controlled Radio Rwanda. I can find no error on
this point that would justify the Court’s intervention.
(d) Did the panel
ignore the materials submitted by the applicant that showed that the Rwandan
authorities recognized him as Venuste Mupenzi?
[31]
The
applicant submitted that the panel ignored the evidence relating to a travel
document with the Rwandan authorities and that he obtained a Rwandan passport
issued to him on April 8, 2011, under the name Mupenzi.
[32]
The
fact of obtaining a Rwandan passport under the name Venuste Mupenzi is not
relevant to the panel’s decision, because the passport does not prove that the
applicant worked at Radio Rwanda under the name Venuste Basingize when he spoke
on the air at Radio Rwanda before and during the genocide. As such this
document has no probative value.
Conclusions
[33]
In
summary, the panel’s finding as to the applicant’s double identity is based on
the evidence and falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.
[34]
The
evidence supports the finding that Mr. Mupenzi used the name Venuste Basingize
during the genocide to made several calls for hatred and violence on the air at
Radio Rwanda and, therefore, that he contributed to the perpetration of the
Rwandan genocide and was complicit in crimes against humanity.
[35]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review be dismissed.
“Danièle
Tremblay-Lamer”
Certified true
translation
Catherine Jones,
Translator
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