Date: 20091223
Docket: IMM-3236-09
Citation:
2009 FC 1309
Ottawa, Ontario, December 23, 2009
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
MARGUERITE MANIRAKIZA
MARCEL GAHUNGU
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C., 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the panel) dated May 25, 2009, determining that the applicants are
not Convention refugees or persons in need of protection.
Issue
[2]
The only
issue in this case is whether the panel erred when it found that the applicants
were not credible.
[3]
For the
following reasons, the application for judicial review will be dismissed.
Factual Background
[4]
The
applicants, Marguerite Manirakiza and Marcel Gahungu, are spouses and
are citizens of Burundi. They allege that they have a
well-founded fear of persecution by the government of Burundi by reason, in the case of Marguerite Manirakiza,
of her nationality and membership in a particular social group, and, in the
case of Marcel Gahungu, of his membership in a particular social group.
The applicants are also claiming Canada’s
protection because of a danger of torture and a risk to their life or a risk of
cruel and unusual treatment.
[5]
The
applicant Marcel Gahungu, who is of Hutu ethnicity, stated that in 2007
members of the Front National de Libération (FNL) proposed to levy
contributions from him, but he refused. In retribution, his house was burned.
He then went to the Democratic Republic of Congo with his children, on
May 2, 2007.
[6]
On
April 9, 2008, the male applicant obtained a visa at the American consulate
in Bujumbura and on April 15, 2008, he
left Burundi and went to Rwanda to travel to the United States, with his Burundian passport
and his national identity card. The male applicant arrived in Canada on April 21, 2008, and
made his claim for refugee protection on the same day.
[7]
The female
applicant, the wife of the male applicant, is of Tutsi ethnicity. She was
formerly married to Emmanuel Mifiendegeri, who was murdered. Her former
husband’s brother, who is of Hutu ethnicity, accused her of killing his brother
and tried to kill her. She escaped from the house she occupied with her
children and went to Bwenzi. That was where she met her present husband, the
male applicant in this case, and they were married in 2004. She stated that her
former husband’s brother went to visit them in May 2007 and their house was
burned on the same day. A neighbour named Sylvestre Manirakiza gave the
female applicant protection for three months, during which she had no further
news of her husband and children. He then obtained a visa for her to go to the United States. The female applicant left
Burundi on September 23, 2007, and arrived in Canada via the United States, with her Burundian passport, on
September 27, 2007. The female applicant made her claim for refugee
protection on September 28, 2007.
[8]
At the
hearing, a designated representative was appointed to assist the female
applicant.
Impugned Decision
[9]
After
noting a number of contradictions, inconsistencies and omissions in the
applicants’ evidence, the panel concluded that they were not credible and their
claim for refugee protection was rejected. The panel noted that the applicants
each had a different perception of the cause of the fire of which they were
allegedly victims and they based them on speculation.
Standard of Review
[10]
Where the
issue is credibility and assessment of the evidence, the Court will intervene
only if the decision is based on an erroneous finding of fact made in a
perverse or capricious manner or without regard for the evidence (Aguebor v.
Canada (Minister of Employment and Immigration), (1993), 160 N.R. 315, 42
A.C.W.S. (3d) 886 (F.C.A.)).
[11]
Assessing
credibility and assessing the evidence are matters within the authority of the
administrative tribunal, which must assess a refugee claimant’s allegation of
subjective fear (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 at para. 14).
Since Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review that has applied in
circumstances like these is reasonableness.
Analysis
[12]
After
analyzing and considering the transcript, the documents in the record, the
written and oral submissions by the parties and the case law submitted, the
Court is of the opinion that the panel’s conclusion is reasonable.
[13]
First, the
panel demonstrated diligence by taking the female applicant’s problems into
account. The panel also had regard to the Guidelines on Procedures with Respect
to Vulnerable Persons appearing before it. When it assessed the applicants’
credibility, the panel took into account the explanations provided by the two
spouses concerning the implausibilities and inconsistencies in their accounts,
but it did not consider them satisfactory.
[14]
Although counsel
for the applicants argued that the explanations given by the female applicant
and the male applicant were not two different perceptions of the same event,
but rather two different hypotheses about the person who committed the crime,
the Court cannot accept that argument, on reading the record. The panel
identified a large number of contradictions and inconsistencies in the
applicants’ evidence. For example, the panel noted that the applicants gave two
different versions of a single incident. The male applicant alleged that their
home was burned by members of the FNL, while the female applicant claimed that
the fire was set by her former brother-in-law. The panel also noted that at the
port of entry the male applicant said that he feared the members of the FNL
alone. The male applicant explained his failure to talk about his wife’s former
brother-in-law by noting that he had talked about him but the border services
officer had failed to write it down in his notes. The panel found that
explanation not to be credible, and this undermined the male applicant’s
credibility. This shows that the applicants are incapable of identifying whom
they fear if they return to their country.
[15]
In
addition, the female applicant gave a precise description of the method used to
start the fire, although she had said that when the fire at their house
occurred, she had lost consciousness and did not know how she got out of the
building. The female applicant then replied that it was her husband who had
described to her the events she recounted at the hearing. The panel noted that
this explanation contradicted the applicants’ narrative, in that the female
applicant alleged that she had next seen her husband only in Canada. It is important to note that
the female applicant arrived in Canada
before the male applicant, and she completed her Personal Information Form
(PIF) before she saw her husband again. It is impossible for the male applicant
to have described the events surrounding the fire to her because she had not
yet seen him. When the female applicant was confronted with this contradiction,
she changed her account and stated that she had learned the details of the
event from her neighbours. In this case, this is one example among others noted
by the Court of the applicants adjusting their testimony when they were
confronted by the panel.
[16]
With
respect to the male applicant’s employment, the PIF shows that he stated that
the only employment he held was as a pastor, while the male applicant’s
marriage certificate, dating from 2004, shows that he was warehouse worker.
Apart from a reference provided by the Église de réveil de Galilée for a visa
application, there are no other documents attesting to his being a pastor.
[17]
Having
found that the applicants were not credible, the panel considered whether their
subjective fear of persecution was well-founded. The male applicant stated that
he went to the Democratic Republic of Congo after the fire, to protect himself.
He stated that he returned to his country of origin several times from his
hiding place to obtain a passport and to apply for and obtain a visa.
[18]
As the
respondent correctly pointed out, it is settled law that returning to the
country of persecution, delay in leaving the country of persecution or failure
to claim protection in countries that are signatories to the 1951 Geneva
Convention or the 1967 Protocol Relating to the Status of Refugees
can seriously undermine a claimant’s credibility (Lopez v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1318, 136 A.C.W.S. (3d) 894 at para. 5;
Prayogo v. Canada (Minister of Citizenship and Immigration), 2005 FC 1508,
143 A.C.W.S. (3d) 1087 at para. 26; Ilie v. Canada (Minister of
Citizenship and Immigration), (1994), 88 F.T.R. 220, 51 A.C.W.S. (3d) 1349;
Saez v. Canada (Minister of Employment and Immigration), (1993), 65
F.T.R. 317, 41 A.C.W.S. (3d) 719 (F.C.A.); Nguyen v. Canada (Minister of
Citizenship and Immigration), (1998), 79 A.C.W.S. (3d) 136, [1998] F.C.J.
No. 420 (QL); Sokolov v. Canada (Minister of Citizenship and Immigration),
(1998), 87 A.C.W.S. (3d) 1193, [1998] F.C.J. No. 1321 (QL)).
[19]
It was
reasonable for the panel to conclude that the applicants were not able to prove
that there is a serious possibility they would be subjected personally to a
danger or a risk of persecution in Burundi and that they did not discharge
their burden of proving on a balance of probabilities that there is a serious
possibility they would be persecuted on the basis of one of the grounds in the Convention.
[20]
For all
these reasons, intervention by the Court is not warranted. This application
raises no serious question of general importance.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed. No
question will be certified.
“Richard Boivin”
Certified
true translation
Brian
McCordick, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3236-09
STYLE OF CAUSE: Marguerite
MANIRAKIZA, Marcel GAHUNGU v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 17, 2009
REASONS FOR
JUDGMENT: BOIVIN J.
DATED: December 23, 2009
APPEARANCES:
|
Claudette Menghile
|
FOR THE APPLICANTS
|
|
Alexandre Tavadian
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Claudette Menghile
Attorney
|
FOR THE APPLICANTS
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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