Date: 20070615
Docket: IMM-5138-06
Citation: 2007 FC 645
Ottawa, Ontario, June 15,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ROBERT
NSABIMANA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant
is an ethnic Tutsi who is a citizen of Burundi. He bases
his claim for protection on an alleged fear of persecution by non-governmental
agents by reason of membership in a social group, namely his family. In a
decision dated August 23, 2006, a panel of the Refugee Protection Division of
the Immigration and Refugee Board (the Board) rejected the claim. The Applicant
seeks judicial review of that decision.
[2] The basis of
the Board’s decision was lack of credibility. In its reasons, the Board
discussed a number of areas of the evidence, including testimony by both the
Applicant and his brother. In the result, the Board made the following key
determinations:
- The
Board did not find credible the Applicant’s story of attacks on the Applicant’s
aunt’s car and the family home in 2005.
- The
Board found that the Applicant had not provided persuasive evidence to
support a claim that he was of interest to rebel groups, principally on
the basis of findings that: (a) between 2001 and 2005 in Cibitoke, the
Applicant did not experience any harassment or intimidation; and (b) the
Applicant was never a member of a peace group nor a Rastafarian.
Issues
[3] Although
the Applicant raised a number of issues in his initial and responding written
submissions, before me, only four issues were pursued. Those issues may be
expressed as follows:
- Did the Board make
a material error of fact when it stated that the Applicant was intending
to go abroad to study?
- Did the Board err
by impugning the Applicant’s credibility on the basis of inconsistent
statements in an earlier visa application?
- Did the Board err
by failing to consider how the Applicant’s profile would cause him to be perceived
by the agents of persecution?
- Did the Board err
by failing to explicitly reject the testimony of the Applicant’s brother,
who testified as a witness in the hearing?
Analysis
[4] As
noted, the foundation of the Board’s decision was an overall finding that the
Applicant’s story of persecution was not credible. With respect to all of the
issues raised, the Applicant is, in essence, questioning findings of fact. The
standard of review is that of patent unreasonableness, meaning that the
decision will only be overturned where the Board has made a finding (i)
in a perverse or capricious manner, or (ii) without regard for the material
before the Board. Further, any error of fact must be material to the decision (Rohm
and Haas Canada Ltd. v. Canada (Anti-Dumping Tribunal), (1978) 91 D.L.R.
(3d) 212, [1978] F.C.J. No. 522 (C.A.) (QL); Zrig v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 178, [2003] F.C.J. No. 565 (C.A.)
(QL)).
[5] With this standard in
mind, I turn to the specific alleged errors.
Issue #1: Did the Board make a material error of
fact when it stated that the Applicant was intending to go abroad to study?
[6] In its decision, the
Board stated that the testimony of the Applicant was that he was intending to
study abroad. As acknowledged by the Respondent, this was incorrect; the
Applicant testified that he intended to stay to help support his parents. The
Board made reference to this error twice in its reasons. However, contrary to
the submissions of the Applicant, I do not find this to be a material error
upon which this application should be allowed. Although the error was referred
to in the reasons in the context of the timing of the alleged incidents, it is
not central to that determination.
Issue #2: Did the Board err by impugning the
Applicant’s credibility on the basis of inconsistent statements in an earlier
visa application?
[7] The Applicant, in 2005
was issued a student visa to study in the United States (Certified Tribunal Record, pg. 42). The
application for that visa contained certain information that the Board assessed
in its decision. In its decision, the Board commented as follows:
I
accept the claimant lived with his grandmother in Cibitoke and finished his
high school studies there. He presented a school certificate to this effect.
However, there is nothing to confirm that the rest of the family ever left Bujumbura. The student application shows his father had a post office
box and bank account in Bujumbura. The claimant testified these documents
are false and were manufactured by his aunt Sophie to show he came from a
stable family in a good neighbourhood in Bujumbura, to obtain the visa. The explanation is
insufficient.
[8] The Applicant argues
that the Board erred in relying on contradictions between the student visa and
stating there was a contradiction between information in the Applicant’s visa
and other evidence. Indeed, the Applicant readily admitted that he lied on his
visa application. The Applicant relies on jurisprudence to support the notion
that visa application information should not be used to impugn the Applicant’s
credibility (Fajardo v. Canada (Minister of Employment and Immigration), (1993) 157 N.R. 392,
21 Imm. L.R. (2d) 113, [1993] F.C.J. No. 915 (F.C.A.) (QL); Quinteros v. Canada (Minister of
Citizenship and Immigration), (1998) 82 A.C.W.S. (3d) 980, [1998]
F.C.J. No. 1363 (QL)). This was not a case where the Board rejected the claim
on the basis of omissions in the visa application. Rather the Board reviewed
the information in the visa application in the context of the entire story
being put forward by the Applicant. That is, the use to which the inconsistency
was put is not, in this case, unreasonable or contrary to the jurisprudence.
Issue #3: Did the Board err by failing to
consider how the Applicant’s profile would cause him to be perceived by the
agents of persecution?
[9] The Applicant
submits that the Board erred in not considering whether the Applicant would be
perceived as a peace activist and Rastafarian by rebel groups, regardless of
whether he is one or not. In my opinion, the Board did assess whether the
Applicant was perceived as being associated with the peace activists and
Rastafarians:
…the claimant lived for four
years in Cibitoke, from 2001-2005, without any incident of harassment or
intimidation….The absence of any threatening incidents whatsoever indicates
that, during the four years of Raoul’s absence, the claimant was not “wanted”
by the sans-échec.
(Certified Tribunal Record,
pg. 19)
[10] If the Applicant had
been perceived as being associated with peace activists and
Rastafarians, it is likely that he would have been able to provide some
evidence that he had been threatened or otherwise targeted. The absence of any
such evidence supports the notion that he is not perceived as a person of
interest. The mere existence of documentary evidence that some persons are
perceived as threats to the rebel groups and that thousands of persons are in
detention due to their perceived beliefs does not – absent something further –
mean that any individual will be so perceived. On these facts, evidence that the
Applicant had not been left alone over a four-year period supports a finding
that he would not be perceived as being associated with peace activists and
Rastafarians. The Board did not err.
Issue #4: Did the Board err by failing to
explicitly reject the testimony of the Applicant’s brother, who testified as a
witness in the hearing?
[11] The Applicant’s brother testified in the hearing. He
provided evidence on what happened to the family on his return to Burundi for a visit, including
reference to the alleged incidents of the car burning and house break-in in Bujumbura. The Applicant
submits that the Board erred by failing to explicitly reject the evidence of
the brother.
[12] As noted by
the Applicant, the jurisprudence supports the notion that failure to properly
consider the evidence of a witness is a reviewable error (see, for example, Lai
v. Canada (Minister of Employment and Immigration), [1992] F.C.J.
No. 906 (C.A.) (QL); Camille v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 877 (C.A.) (QL)). However,
the Board in this case, does mention the testimony given by the Applicant’s
brother. In fact, the Board also made plausibility findings regarding the
evidence. For example:
Further, Raoul testified that it was not
until he arrived in Burundi that he learned the family’s
neighbourhood in Bujumbura was safe. He testified that
he first stayed with a friend, for fear of returning to his old neighbourhood.
It is not plausible or reasonable that, only days later, he convinced the whole
family to uproot and move back to the family home in Bujumbura.
(Certified Tribunal Record, pg. 21)
[13] The Applicant
also argues that the Board erred by failing to provide clear and unmistakable
reasons for rejecting the testimony of the brother (Hilo v. Canada (Minister
of Employment and Immigration), (1991) 130 N.R. 236, [1991] F.C.J. No. 228
(F.C.A.) (QL)). I first note that the above passage does appear to reject the
evidence of the brother as implausible, particularly when read in conjunction with
the balance of the reasons on the alleged 2005 events.
[14] In any event,
I think that the Applicant gives too narrow a view to the finding in Hilo. I first
note that, overall, the Board is seeking to determine the credibility of the
Applicant’s story; this is the central task of the Board. As the Court stated
in Hilo, the Board
is “under a duty to give its reasons for casting doubt upon the appellant’s
credibility in clear and unmistakable terms”. In my view, this standard has
been met. The Board has given reasons for casting doubt on the credibility or
plausibility of the Applicant’s alleged story “in clear and unmistakable
terms”. Those reasons, in my view, establish clearly what elements of the
Applicant’s story of attacks in Bujumbura were rejected and why.
That is sufficient to meet the standard set out in Hilo.
[15] In sum, I am
not persuaded that an explicit rejection of the brother’s testimony on the two
incidents in Bujumbura was
necessary. When read as a whole, it is clear that the Board rejected the story
of attacks at that time as implausible. The Board, without explicitly
identifying who gave what evidence, provides adequate reasons for finding the
story implausible. In my view, the Board, in this case, followed the
jurisprudence in Camille, supra and in Hilo and did not
err by failing to name the brother on this one point.
Conclusion
[16] In conclusion, when read
as a whole, the decision of the Board is not patently unreasonable. In light of
the number of problems identified with the Applicant’s claim, this one error
does not present a sufficient basis upon which to allow this application for
judicial review. I am not persuaded that the decision of the Board should be
overturned and the application for judicial review will be dismissed.
[17] Neither party proposed a
question for certification. I agree that the issues in this case do not raise a
question of general importance and will not certify a question.
ORDER
This Court orders that:
1. The
application for judicial review is dismissed; and
2. No question
of general importance is certified.
“Judith A.
Snider”
__________________________
Judge
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