Docket:
IMM-1566-11
Citation:
2011 FC 1141
Ottawa, Ontario,
October 14, 2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
|
|
JOSEPH GATARE, AGNES
MUKARUSINE, MADELEINE GATARE, SIMON PIERRE GATARE, ZACHARIE GATARE, SARA
GATARE, JEAN PAUL GATARE, JOLIE JOSEPHINE GATARE, BELLA-LOUISE GATARE, JORDAN
GATARE
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 26 [the Act] of the
decision rendered by an officer [the Officer]
based at the High Commission of Canada in Nairobi, Kenya. By letter dated
December 30, 2010, the Officer found that the applicants are not members of the
Convention Refugees Abroad class or the Humanitarian-Protected Persons Abroad designated
class pursuant
to the Immigration and Refugee Protection Regulations, SOR/2002-227 [the
Regulations].
[2]
For
the reasons that follow the application shall be allowed.
Facts
[3]
The
applicants, Mr. Joseph Gatare [Mr. Gatare], his wife Agnes Mukarusine [Ms.
Mukarusine] and their nine children are citizens of Rwanda. They fled to Kenya and have been residing there since 2005.
[4]
Mr.
Gatare was a member and a local organizer with the Democratic Republican
Movement [MDR] in Rwanda. He supported and worked for former Prime
Minister Faustin Twagiramungu, the MDR’s candidate in the 2003 Presidential
elections. The MDR was banned by general Kagame’s ruling government in 2003.
[5]
Mr.
Gatare was imprisoned on three occasions and beaten because of his involvement
with the MDR. Ms. Mukarusine and Madeleine Gatare were also attacked, beaten
and threatened by the Local Defence Forces.
[6]
In
2003, the applicants moved to Kigali, Rwanda and fled to Kenya in 2005.
[7]
On
June 28, 2005, while in Kenya, the applicants sought refugee status
determination with the United Nations High Commissioner for Refugees [UNHCR]. On
March 30, 2006, Mr. Gatare received notification of the UNHCR’s negative
decision “[…] based on the fact that the claim that he will be persecuted upon
return to his country of origin is not well-founded […]” (Applicant’s Record
[AR], tab 2, p 11). Appeals of the UNHCR determination proved unsuccessful (AR,
tab 2, p 11).
[8]
In
2006, the Roman Catholic Archdiocese of Vancouver, a Sponsorship Agreement
Holder approved by the respondent, filed an application to sponsor the
applicants as refugees at the High Commission of Canada [HCC] in Nairobi, Kenya. Mr. Gatare was interviewed on January 27, 2010. The applicants’ application
was refused by letter dated February 3, 2010. In his refusal letter, Officer H.
Michaud indicated not being satisfied that Mr. Gatare had a well founded fear
of persecution in Rwanda (AR, tab 2, p 19).
[9]
Leave
and judicial review of Officer H. Michaud’s refusal was sought. The respondent
consented to a reconsideration of the decision and a Notice of Discontinuation
was filed September 9, 2010. As such, Mr.
Gatare, Ms. Mukarusine, Madeleine Gatare, Simon Pierre Gatare and Zacharie Gatare were interviewed on October
22, 2010 at the HCC
in Nairobi (AR, tab 2, pp 21-28). Ms. Mukarusine and Madeleine Gatare
were interviewed once more on December 2, 2010.
Impugned
Decision
[10]
The
Officer was not satisfied that the applicants have a well-founded fear of
persecution or that they have been and continues to be seriously and personally
affected by civil war, armed conflict or massive violations of their human rights.
[11]
The
determination was based on the Officer’s finding that neither Mr. Gatare nor
his family were able to provide corroborative evidence to support that they
feared for their life while in Kigali. He drew a negative credibility finding
as the applicants lived without incident for two years – between 2003 and 2005 –
while in that city.
[12]
Based
on country conditions in Rwanda, the Officer concluded that certain opposition
political party members’ fear do not constitute reasonable grounds to fear persecution
in Rwanda. The Officer articulated that Mr. Gatare no longer has a well-founded
fear of persecution in Rwanda, as he has not been politically involved since
2003 and as the MDR was disbanded in 2003.
[13]
The
decision is also based on the fact that the applicants do not have any
connection to the MDR in Rwanda today. The Officer noted that Mr. Gatare was
unable to provide an example of any threat received since 2003 on account of
his association with the MDR, confirmed by Ms. Mukarusine and Madeleine Gatare’s
interviews.
Issues
[14]
The
Court finds that the main issue in the present case is:
- Did the
Officer ignore key pieces of documentary evidence which contradict his findings
in connection with the situation in Rwanda?
Standard of Review
[15]
The
applicants suggest that the failure to adequately assess and explain the
importance of relevant objective evidence is an error of law, subject to review
on a standard of correctness (Chavi v Canada
(Minister of Citizenship and Immigration), [2008] FCJ 63
[Chavi]).
[16]
The
respondent contends that the Officer’s decision regarding Mr. Gatare turned on
findings of fact. He urges that such findings are owed considerable deference
on judicial review, and ought only to be set aside if they are “unreasonable,”
as defined by the Supreme Court of Canada in Dunsmuir v
New-Brunswick, [2008] SCJ 9 [Dunsmuir].
[17]
In
Dunsmuir, the Supreme Court of Canada held at paragraph 62 that the
first step in conducting a standard of review analysis is to “ascertain whether
the jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question”
(confirmed by Khosa v Canada (Minister of Citizenship and Immigration),
[2009] SCC 12 at para 53).
[18]
Past
jurisprudence has determined that an officer’s decision about whether an
applicant falls within the Convention Refugee Abroad or Country of Asylum
classes is a question of fact and mixed fact and law, therefore,
reasonableness should be applied (Qarizada v Canada (Citizenship
and Immigration), [2008] FCJ 1662 para 15; confirmed by Adan v Canada
(Minister of Citizenship and Immigration), [2011] FCJ 830 para 23).
[19]
The
Court cannot agree with the applicants that the standard of
review is correctness. It was recently confirmed in Diaz v Canada
(Minister of Citizenship and Immigration), [2011] FCJ 914 para 14, that
issues concerning the analysis of evidence is a factual finding that should be
given significant deference and should be reviewed on the standard of
reasonableness. Accordingly,
the Court will not intervene unless it is shown that the “decision does
not fall within a range of acceptable outcomes that are defensible in respect
of the facts and the law” (Dunsmuir, above at para 47).
Did the Officer
ignore key pieces of documentary evidence which contradict his findings in
connection with the situation in Rwanda?
Applicants’
Arguments
[20]
The
applicants submit that the Officer failed to address important, relevant,
objective and independent documentary evidence pertaining to the conditions in
Rwanda, contradicting his findings as to whether it was safe for the applicants
to return to Rwanda (Chavi, above).
[21]
The
applicants contend that the Officer disregarded the documentary evidence in
finding that the MDR was disbanded. The applicants maintain that the MDR did
not disband voluntarily, but was forced to dissolve and banned by the
ruling government in Rwanda (AR, tab 2, pp 7, 25, 34).
[22]
The
applicants submit that the Officer erred by relying on an unsubstantiated quote
from a single, outdated source which alleges that “[t]here is no objective
evidence to show that members of political parties are at risk of mistreatment
by the state authorities.” In fact, the applicants underscore having provided a
substantial amount of important and relevant evidence of continuing persecution
of opposition party leaders, candidates, members and supporters of the MDR. As
such, they allege that the Officer ignored and misread the following filed
documentary evidence:
a. Immigration and Refugee
Board, Rwanda: Treatment by government authorities of Faustin
Twagiramugu and supporters of his candidacy during the presidential election
campaign in August 2003 (2006) (AR, tab 2, p 16);
b. United Kingdom: Home Office,
Operational Guidance Note: Rwanda (2009) (AR, tab 2, pp 16-17, 33);
c. Human Rights Watch, The
Power of Horror in Rwanda : Rwanda: Protection (2009) (AR, tab 2, p
34; tab 4, p 44 at note 13, p 45 at note 14);
d. US State Department, 2009
Human Rights Report: Rwanda (2009) (AR, tab 4, p 45 at note 18);
e. Human Rights Watch, Rwanda: A president in Crisis (2009) (AR, tab 4, p 46 at note 19);
f. Human Rights Watch, Rwanda: Protect Rights and safety of Opposition Leaders (2009) (AR, tab
2, p 34; tab 4, p 46 at note 20).
Respondent’s
Arguments
[23]
The
respondent asserts that the Computer Assisted Immigration Processing System
[CAIPS notes] reference to various country condition documents and as such, the
Officer did not fail to consider the submitted documentary evidence.
[24]
Further,
the respondent contends that the Officer was aware that Mr. Gatare “had a
relatively minor position, as a ‘sensitiser’ as he referred to himself, in the
MDR and that he was a supporter based in a rural town” (AR, tab 2, p 13).
[25]
Finally,
the respondent affirms that the fact that the applicants lived in Kigali for a
period of two years without incident prior to leaving for Kenya was considered
in both assessing the credibility of the applicants and the risk they faced if
they returned to Rwanda.
Analysis
[26]
The
Court is of the opinion that the Officer committed a reviewable error in
its treatment of evidence concerning the continuing persecution of opposition
party members and supporters. Notwithstanding the fact that the Officer’s
analysis was reasonable in some aspects, there are serious deficiencies
with his decision.
[27]
The
Officer’s treatment of evidence concerning the continuing persecution of
opposition party members and supporters is troublesome. In the refusal letter,
the Officer notes that he was not “able to find any evidence that
Twagiramungu’s supporters, or members of the opposition parties or former
political parties, are currently at risk of persecution by Rwandan government
authorities […] low – or medium-level supporters or party members such as
yourself, are not” (AR, tab 2, p 19).
[28]
First,
the CAIPS notes disclose that Mr. Gatare was almost certainly not at a “low –
or medium-level” supporter of the MDR (AR, tab 2, p 7), but had a much higher
profile as a political activist. Mr. Gatare was appointed as local leader and
recruiter for the MDR in his village, and his “[…] position was different
because the people from the HQ of the party came and appointed [him] to rally
people in [his] my village, so [his] status is different from other people. [He
is] more vulnerable” (AR, tab 2, p 14). As consequence, he is of the view that his
role was of sufficient concern to supporters of the MDR that he was
specifically targeted by Rwandan government authorities.
[29]
Second,
in the
refusal letter, the Officer states the following: “I have done extensive
research into open source information on the country conditions in Rwanda. I have also carefully examined and considered the information contained in the
reports and affidavit submitted in support of your application” (AR, tab 2, p
7). A review of the CAIPS notes indicates that the Officer relied upon the
following submitted documentary evidence in support of his conclusion:
a. Immigration and
Refugee Board, Rwanda: Treatment by government authorities of Faustin
Twagiramugu and supporters of his candidacy during the presidential election
campaign in August 2003 (2006) (AR, tab 2, p 16);
b. United Kingdom: Home Office,
Operational Guidance Note: Rwanda (2009) (AR, tab 2, pp 16-17, 33);
c. Freedom House, Freedom
in Sub-Saharan Africa 2009, (2010) (AR, tab 2, p 34);
d. Human Rights Watch, 2010
World Report for Rwanda (2010) (AR, tab 3, p 34);
e. New York Times, American
Lawyer for Opposition Figure is Arrested in Rwanda, (2010) (AR, tab 2, p
34).
[30]
A
review of the refusal letter and CAIPS makes no mention of the corroborating
information that members of the opposition parties or former political parties
are currently at risk of persecution by Rwandan government authorities. This
was critical evidence which directly contradicted the Officer’s finding that
Mr. Gartare did not have a well-founded fear of persecution.
[31]
It
was therefore evidence which the Officer had to consider and the failure
to do so constitutes the same error considered by this Court in Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), [1998] FCJ 1425 para 16 [Cepeda-Gutierrez]
and confirmed by Hinzman v Canada (Minister of Citizenship and Immigration),
[2010] FCJ 838 at para 38. In Cepeda-Gutierrez, above, it was
held that the greater the importance of the evidence not specifically
mentioned and analyzed by the decision maker, the more willing a court may be
to infer from the silence that the decision maker made an erroneous finding of
fact without regard to the evidence.
[32]
In
the case at bar, the Officer had to consider the evidence
describing the persecution of members of the opposition parties in Rwanda. The US
State Department, 2009 Human Rights Report: Rwanda, observes that
“police arbitrarily arrested opposition members […] Parties were not able to
operate freely, and parties and candidates faced legal sanctions if found
guilty of engaging in divisive acts” (AR, tab 6, p 80 para 28). Further,
Human Rights Watch, 2010 World Report for Rwanda, indicates that
“Two new political parties […] had meetings broken up by the police and party
members arrested” (AR, tab 6, p 80 at para 28). The article entitled American
Lawyer for Opposition Figure is Arrested in Rwanda featured in the
New
York Times observes that “some opposition supporters have been attacked
inside government offices; others have been jailed” (AR, tab 6, p 80 at para
28).
[33]
No
question for certification was proposed and none arise.
[34]
The
applicants are seeking costs for an amount of $3500 citing a case that its
counsel argued in 2005 and Latif v Canada (Minister of Citizenship and
Immigration), [2009] FCJ 93 (Latif). The respondent opposes such a
remedy. The applicants’ counsel conceded that the Minister agreed to pay costs
for an amount of $1500 in the case he pleaded in 2005. In Latif, Justice
Campbell granted $7000 for costs.
[35]
The
Court is of the view that the facts in the present case can be distinguished
from the ones cited by the applicants. Here, the Minister consented to a
redetermination following the first decision; accordingly, the applicants
discontinued their application for judicial review. The contested decision at
hand has been determined in a timely matter after interviews with the applicants.
[36]
The
Court does not share the applicants' view that the facts in the present case
are so special that an award for costs be granted. Therefore, the exception
provided at Rule 22 of the Federal Court Immigration and Refugee Protection
Rules, SOR/93-22 does not apply.
JUDGMENT
THIS
COURT ORDERS that:
1.
The
application for judicial review be allowed. The matter is remitted back
for redetermination by a different Officer.
2.
No
question is certified.
3.
No
costs are awarded.
“Michel
Beaudry”
Email this Content