Date: 20110311
Docket: IMM-4345-10
Citation: 2011 FC 296
Ottawa, Ontario, March 11,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
|
|
THEONEST KATO
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns a Rwandan national of Tutsi ethnic origin who was
found by the Immigration and Refugee Board (Board) to be neither a refugee nor
a person in need of protection despite his role as a witness in genocide
proceedings in the Gacaca courts.
II. BACKGROUND
[2]
Mr.
Kato, the Applicant, claimed that during the Rwandan civil war in 1994, his
parents and two of his siblings were killed by Hutus. Only he and a sister
survived.
[3]
In
2006 the Applicant testified in the Gacaca trials, presented his views and as a
community member, questioned various witnesses.
[4]
The
Applicant claimed that during his involvement in the trials, his house was attacked
and he received death threats. Having moved and being recalled to testify at
the trials, he was attacked at his new residence. The police were unable to
locate his assailants.
[5]
The
Applicant remained in Rwanda for 16 months after his testimony ended
until such time as he secured a U.S. visitor’s visa. He then
entered Canada and made his
claim.
[6]
The
Board found the Applicant to be credible despite the fact that CBSA seized a
package of documents couriered to his address which contained blank, pre-signed
and pre-stamped Gacaca summons, death certificates and genocide survivor
certificates along with completed documents to be used in evidence before the
Board.
[7]
Despite
finding that the Applicant had filled in the documents for use in the Board’s
proceedings and evidently not accepting the Applicant’s claim of ignorance
about the blank documents, the Board did not find the matter determinative of
credibility.
[8]
The
Board, however, rejected the claim because the Applicant had remained in Rwanda for 16 months
after the last assault and that during the 16 months, nothing further had
happened to him.
[9]
The
Board noted the winding down of Gacaca trials, and considered that the
Applicant continued to go to work but stayed in after 18:00. The Board also
referred to documents which showed improvement in tensions within Rwanda while also
noting some continuing difficulties in areas of police success in apprehending
those who had killed or assaulted.
III. ANALYSIS
[10]
The
Applicant argues that the Board erred in failing to consider relevant evidence
and failed to provide adequate reasons.
[11]
The
standard of review on both these issues is correctness because one is a matter
of law and the other of procedural fairness. However, the assessment of
personalized risk is principally a factual determination for which deference is
owed (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12).
[12]
The
real debate about the evidence is not that of a failure to consider but of the
weight to be given the evidence. The Board considered the relevant documents
and the evidence, both pro and con, as to stability in Rwanda and risk to
the Applicant.
[13]
It
was open to the Board to find that, considering the documentary evidence and
the 16 months that the Applicant remained in Rwanda without
incident, there was insufficient evidence to support the refugee claim or
personalized risk.
[14]
The
Applicant was fortunate that the Board found his story credible but having done
so, it did not err by not considering evidence.
[15]
The
Board’s reasons were more than adequate to explain its rationale – to inform
the Applicant of the basis for its rejection of his claim. There was no breach
of procedural fairness.
IV. CONCLUSION
[16]
Therefore,
this judicial review will be dismissed. There is no issue for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed.
“Michael
L. Phelan”
Email this Content