Date: 20071218
Docket: IMM-508-07
Citation: 2007 FC 1332
Ottawa, Ontario, December 18th
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
EMMA
UWASE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is a citizen of Rwanda and an ethnic Tutsi, born in
1987. The Refugee Protection Division (the RPD) accepted that she is a survivor
of the Rwandan genocide of 1994, but did not believe that she was targeted by
genocide perpetrators out of fear that she may testify against them. As a
result, the RPD found that she was neither a Convention refugee nor a person in
need of protection. It is that decision, rendered on December 6, 2006, of which
the applicant now seeks judicial review.
BACKGROUND
[2]
The
applicant was only seven years old when President Habyarimana died in a plane
crash on April 6, 1994. Shortly thereafter commenced one of the darkest periods
in human history, where thousands of Rwandans (mostly Tutsis) were slaughtered
as a result of the ethnic tensions which had been simmering for years and which
were unleashed with the president’s death. Ms. Uwase was left for dead, lying
beside her parents’ and sister’s bodies, after a group of Hutus broke into
their house and massacred them with machetes, clubs, rifles and other weapons. She
was eventually rescued by soldiers of the Rwandan Patriotic Front, who took her
to a refugee camp where she found her paternal grandmother.
[3]
In
September 2004, she heard announcements that genocide survivors for her home
province were to register in order to testify before the gacaca courts
which were created to investigate and prosecute crimes committed between
October 1, 1990 and December 31, 1994. These courts, in essence, are public
tribunals whose organisation and functioning are based on traditional Rwandan
conflict resolution mechanisms. They were created to relieve the Rwandan
judicial system, as it soon became apparent that it would be incapable of
prosecuting the vast number of genocide-related crimes.
[4]
The
applicant claimed that on the day she went to register, she saw the two
individuals responsible for her family members’ deaths. After this, one evening
while she was walking in her neighbourhood with her then fiancé, she alleged
that she was warned not to testify and threatened with death by the two men. She
was again threatened on July 4 and August 26, 2005, and only managed to escape
by screaming loudly. All of these incidents were apparently reported to the
police.
[5]
A few days
after this last incident, the applicant found a note under her door saying that
she and her husband would be killed if she testified at the gacaca
trial. She gave the note to the police, who apparently told her that they could
not do much because of the large number of similarly situated persons. She
therefore decided to leave Rwanda and she arrived in Canada on December 7, 2005. She
applied for refugee protection based on her fear of being killed by her
family’s murderers.
THE IMPUGNED DECISION
[6]
The RPD
accepted the applicant’s identity, that she survived the genocide in which her
parents and sister were killed, that she is probably traumatized, and that some
genocide survivors are being targeted and killed for testifying (or registering
to testify) at the gacaca courts. However, it disbelieved the
applicant’s allegations because of many significant and material
inconsistencies and omissions in her evidence, including when and where she had
seen the killers and when they had been released, the number of times she went
to the police, the number of men who had approached her, whether she had in
fact gone to the gacaca court and whether anyone had sought her after
she left for Canada.
[7]
On this
basis, the RPD concluded that the applicant had not in fact registered with the
gacaca courts, had not seen her family’s killers and had not been
targeted by anyone. The RPD made these credibility findings after assessing the
applicant’s relative age and ability to testify at the refugee hearing.
[8]
There
being no reasonable explanation for the multiple inconsistencies in the
applicant’s account and no credible or trustworthy evidence in support of the
facts alleged, the RPD found that the applicant would not face a serious
possibility of persecution in Rwanda. It further found that the applicant’s
removal to Rwanda would not subject her
personally to a danger of torture, believed on substantial grounds to exist,
and would not subject her personally to a risk to her life, or a risk of cruel
and unusual treatment or punishment.
ISSUES
[9]
Counsel
for the applicant did not dispute the credibility findings of the RPD. At the
hearing, he also abandoned his argument that the applicant had been prejudiced
by the RPD’s failure to provide an audible recording of the hearing, as a
transcript of the hearing before the RPD had been provided to the applicant
pursuant to Rule 17 of the Federal Courts Immigration and Refugee Protection
Rules, SOR/93-22. As a result, the only question to be resolved is whether
the RPD member erred by failing to consider the totality of the evidence and by
not conducting a separate analysis of the risk faced by the applicant under
section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the IRPA).
ANALYSIS
[10]
It is by now settled
law that a negative credibility determination with respect to a refugee claim
under section 96 is not necessarily determinative of a claim under section
97(1) of the IRPA. The essential elements to be established under the latter
provision are simply not the same as those required under the former. As a
result, the RPD has an obligation to address the objective risks and dangers
stipulated in paragraphs 97(1)(a) and (b) of the IRPA where evidence has been
led that could support such a finding of risk, even if it has rejected a
section 96 claim on credibility concerns. As Justice Blanchard wrote in Bouaouni
v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1211
at para. 41:
There may well be instances where a
refugee claimant, whose identity is not disputed, is found to be not credible
with respect to his subjective fear of persecution, but the country conditions
are such that the claimant’s particular circumstances, make him/her a person in
need of protection. It follows that a negative credibility determination, which
may be determinative of a refugee claim under s. 96 of the Act, is not
necessarily determinative of a claim under subsection 97(1) of the Act. The
elements required to establish a claim under section 97 differ from those
required under section 96 of the Act where a well-founde[d] fear of persecution
to a convention ground must be established. Although the evidentiary basis may
well be the same for both claims, it is essential that both claims be
considered as separate. A claim under section 97 of the Act requires that the
Board apply a different test, namely whether a claimant’s removal would subject
him personally to the dangers and risks stipulated in paragraphs 97(1)(a) and
(b) of the Act.
See also: Nyathi v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1119 at para. 21; Kilic v. Canada (Minister of Citizenship and
Immigration),
2004 FC 84 at paras. 22-27; Ozdemir v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1008 at paras. 5-11.
[11]
After having found
that the applicant was not credible and that there was no trustworthy evidence
in support of the facts alleged, the RPD concluded that the applicant will not
face a serious possibility of persecution in Rwanda. Then,
without any further analysis or discussion, it also determined that the applicant’s
removal will not subject her personally to a danger, believed on substantial
grounds to exist, of torture, and will not subject her personally to a risk to
her life, or a risk of cruel and unusual treatment or punishment under section
97(1) of the IRPA.
[12]
The
respondent argued that the RPD was justified not to undertake a more thorough
analysis under section 97, since there was insufficient credible evidence,
objective or otherwise, to demonstrate that she would be at risk. The applicant
obviously disagrees, and submitted that the Board operated under a
misconception of the gacaca court system when asserting that the
applicant could only be at risk if she had registered to testify before that
tribunal.
[13]
The Court
must therefore look at the documentary evidence with a view to find out whether
the RPD did in fact err by failing to consider the totality of the evidence,
and whether its conclusions with regard to the modus operandi of the gacaca
courts were open to it.
[14]
A careful
reading of the RPD’s reasons indicates that it rejected the applicant’s claim
because, in its view, only witnesses who have testified or who have registered
to testify are at risk. Indeed, the focus of its enquiry was to determine
whether there was sufficient evidence to support the applicant’s claim that she
did in fact register at the gacaca courts. The RPD member opened and
closed her analysis essentially with the same finding, to the effect that some
genocide survivors are targeted and killed for testifying or registering to
testify (at pp. 2 and 8 of the Reasons). Yet nowhere do we find any discussion
of the way these community based courts operate and function. The issue for
this Court, therefore, is whether this finding is borne out by the evidence.
[15]
There is
not much in the documentary record as to the gacaca courts and their modus
operandi, beyond a 20 page report from a group called the Institute for
Security Studies (the ISS) that provides details about the gacaca
hearings. It appears that these tribunals were created in January of 2001 with
a view to eradicate the culture of impunity in Rwanda and, hopefully, to prevent the
possibility of another genocide. They are public tribunals whose organisation
and functioning are based on traditional Rwandan conflict resolution mechanisms.
First launched as a pilot project, the gacaca courts now sit throughout
the country. At the cellule level, the lowest level, meetings of the gacaca
court take place once a week. General assemblies are held every three months or
when convened by the president. The duties and abilities of the gacaca
courts of the cellule are to: conduct the information gathering phase of
the gacaca process; to receive confessions and guilty pleas, evidence
and information; to conduct investigations into such information; and, to try
those accused of the less serious crimes. There is also a gacaca court
of the sector to try the most serious crimes and to sit on appeal against
judgments passed by the gacaca court of the cellule, and a
general gacaca court of appeal.
[16]
Information
on who lived in the cellule at the time of the genocide, who was killed
and who was responsible for the killings is now compiled by one person for
every ten houses rather than in the general assembly of the cellule, as
was the case in the beginning. Participation in the gacaca court
activities is mandatory. Once a week, all inhabitants of every cellule
have to attend a gacaca session. There are even penalties (three to six
months of prison) for people who are called to testify in a particular trial and
fail to attend, or who make a slanderous denunciation at a trial. There is also
a government-initiated media awareness campaign to encourage people to testify.
Despite all this, many people choose to stay away from the gacaca courts
because they are apparently afraid of being accused or of testifying.
[17]
In his
written submissions, counsel for the applicant argued that all people in the
audience can be ordered to give testimony, or respond to accusations, which
means that Ms. Uwase could be asked at any moment if there is anyone she can
identify as a perpetrator in the mass of people in the audience that day. Accordingly,
there would be no differentiation between the general population and potential
witness, as testimony is gathered on an ongoing and spontaneous basis. It would
therefore not matter much whether a person voluntarily registered to testify or
not.
[18]
With the
greatest respect, it is not entirely clear that this is still a fair
description of the system as it now works. As a result of the amendments
introduced in June 2004, the collection of information is now done prior to the
meeting of the general assembly, and despite the mandatory participation to the
gacaca process, there does not seem to be any penalty for failing to
attend the trials. The ISS Report clearly shows that many people choose to stay
away from the gacaca courts, out of fear (either of being invited to
testify or of being denounced) or lack of interest. It is therefore far from
obvious that the applicant would have been compelled to testify or even to denounce
her family’s killers.
[19]
Having
said that, is the respondent correct in asserting that there was no need to
further analyze whether she would be objectively at risk, under either section 96
or 97 of the IRPA, since there was insufficient credible evidence to
demonstrate that she would be compelled to testify? Is there a risk only for
those who have testified or who have registered to testify? This is not what
the evidence reveals. The ISS Report itself states, at page 17 (p. 48 of the
applicant record):
There have been a number of documented
cases in which people who have either made accusations, or are expected to,
have been attacked or killed, have disappeared, or have had their homes
destroyed. Some of these incidents have been reported in the press, amplifying
the impression that witnesses, in particular genocide survivors, are easily
targeted and eliminated by those they have implicated in crimes of genocide.
[20]
We find
similar reports in the Immigration and Refugee Board’s own material. In a
Response to Information Request dated 27 August 2004 (RWA42872.E), we find the
following statement:
Various reports also indicated that
genocide survivors have been targeted for killing, intimidation and harassment
in order to prevent them from testifying before the Gacaca courts.
See also, to the same effect, another
Response dated 23 January 2003 (RWA40362.E, at p. 58 of the applicant record)
[21]
It appears,
therefore, that some genocide survivors can be at risk even though they do not
intend, or have not been called, to testify. The potential threat they
represent for the killers may even have heightened as a result of the new
procedure put in place in 2004, following which everybody is interviewed in the
confines of his or her home; as previously mentioned, this new method for
collecting the information was specifically designed to ensure that the victims
would feel more at ease to speak out than was the case in a large assembly. Of
potential significance is also the fact that the applicant is the only survivor
of her family, and presumably the only remaining witness of that fateful day
when the attack took place.
[22]
In light of these
facts, and of the documentary evidence tending to show that preventing genocide
survivors from testifying may provide those implicated in the genocide
sufficient incentive to eliminate them, can it safely be assumed that the
applicant is not at risk simply because she was not believed to have registered
as a witness? To assess the risk to her life or the risk of cruel and unusual
treatment or punishment, should not one take into consideration not only her
intention to testify, but also the perception that the murderers may have of
the threat that she represents so long as she is alive? Unfortunately, the RPD
did not undertake that analysis.
[23]
This is not to say
that every genocide survivor in Rwanda has a valid claim under section 96 or
section 97 of the IRPA. Each case must turn on its merit, and carefully be examined
on the basis of the specific facts pertaining to the claimant’s situation and
to the general situation in the country at any given time. But in foreclosing
the possibility that the applicant could be at risk solely because she was not
found credible when claiming that she registered to testify at the gacaca
court, the RPD made a reviewable error.
[24]
For that reason, I am
of the view that the decision reached by the RPD must be quashed. No question
for certification was proposed by the parties, and none will be certified.
.
ORDER
THIS COURT ORDERS that this application for judicial review is
allowed, the decision of the RPD is set aside, and the applicant’s claim that
she is a person in need of protection is remitted to a different Board for
reconsideration, in accordance with these reasons. On the re-determination of
the applicant’s claim, I direct that, as found by the RPD in the decision under
review, the panel accepts that the applicant is a genocide survivor and that
her parents and sibling were killed during the 1994 Rwandan genocide. No question
of general importance is certified.
"Yves
de Montigny"
Email this Content