Date: 20080314
Docket: IMM-2347-07
Citation: 2008 FC 348
Ottawa, Ontario, March 14, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
PATRICK
KADIMA WA KABONGO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Wa Kabongo is a citizen of the
Democratic Republic of Congo (DRC), born in 1981. He seeks judicial review of a
decision of the Refugee Protection Division (RPD), dated April 26, 2007.
[2]
The applicant lived with his Rwandan Tutsi mother and Congolese
father in Kinshasa from 1993 to 1998, at which point his parents fled a
worsening situation to live in Goma, a town in the North Kivu region (on the
Rwandan border). Mr. Wa Kabongo remained with his paternal uncle in Kinshasa to
finish his schooling. He claims that in 2001 he was expelled and barred from
re-
attending
university because of his participation in protests against tuition fee
increases. He went to live with his parents in Goma where they were operating a
camp to help Rwandan refugees. When rifles were found in the camp in October
2005, they were arrested, beaten and imprisoned. His uncle eventually arranged
for his release by paying a bribe. He then fled to Canada arriving
on February 3, 2006 and claimed refugee protection the same day.
The
Decision under Review:
[3]
The Panel found the applicant’s
story lacking in credibility on a great number of points. These included:
·
A lack of objective medical evidence about the injuries Mr. Wa
Kabongo claims to have sustained while imprisoned;
·
Doubts as to why Mr. Wa Kabongo would go to his parents in North
Kivu, given the chaotic political situation and the fact that a volcano was due
to erupt in the area;
·
A lack of credible explanation of a lack of evidence of attempts
to locate his parents;
·
A lack of evidence that Mr. Wa Kabongo would be subject to
persecution based on his mother’s Tutsi heritage; and
·
Mr. Wa Kabongo’s failure to claim protection in countries he
transited, including the United Kingdom and United States
[4]
As
a result the Panel found that the applicant was neither a Convention refugee
nor a person in need of protection.
Issues:
[5]
At
the hearing, the issues pressed by the applicant were whether the Panel erred
in failing to assess the objective risk which he faced upon return by reason of
his Rwandan nationality, derived from his mother, and because of the treatment
accorded returning deportees suspected of having criticized the Congolese
government while abroad. The issue of whether the Panel had properly assessed
risk under both sections 96 and 97 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) was
withdrawn during argument.
Argument and Analysis:
[6]
This
matter was heard before the recent decision of the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. 9. Prior to that decision, this Court was largely in
agreement on the standards of review applicable to decisions of the RPD. Findings of fact were reviewable on a patently
unreasonable standard; mixed fact and law attracted the reasonableness simpliciter
standard; and, pure errors of law were reviewed on the correctness standard: Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46.
[7]
The
effect of Dunsmuir is to collapse the two reasonableness standards into
one. It further allows that, where the type of decision being reviewed has been
thoroughly assessed for the applicable standard, subsequent decisions may rely
on that standard. In applying these principles, I find that decisions of the
RPD, except where they concern pure questions of law, are reviewable on the
reasonableness standard.
[8]
The
applicant submits that the Panel was required to analyse the objective risk to
a member of the group the applicant belongs to, even where she found his
specific narrative not to be credible: Seevaratnam v. Canada (Minister of
Citizenship and Immigration), (1999), 167 F.T.R. 130, [1999] F.C.J. No.
694. His identity card carried his mother’s name which was recognizable as
being of Rwandan nationality. While the Panel member considered the documentary
evidence respecting the treatment of those of Tutsi ethnicity in the DRC, she
did not expressly consider the evidence which dealt with the persecution of
those of Rwandan nationality.
[9]
In
the alternative, the applicant submits that the Panel erred in failing to
consider the objective risk to the applicant as a returned failed refugee
claimant. The documentary evidence before her showed that the risk is real. The
Panel is tasked with assessing all relevant issues to a refugee claim, even
where the specific grounds are not raised during the hearing: Viafara v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1526, [2006] F.C.J. No. 1914.
[10]
The
respondent concedes that it would have been preferable for the Panel member to
have referred to the issue of objective risk in terms of nationality as well as
ethnicity but argues that it is clear from the transcript of the hearing that
the applicant related the risk to his mother’s ethnicity and not her country of
origin. Moreover, the documentary evidence referred to both “Tutsis” and
“Rwandans” suggesting that the two terms were used interchangeably to refer to
the persecuted refugees in the DRC.
[11]
The applicant’s reliance on Seevaratnam
is misplaced, the respondent submits, as Justice Danièle Tremblay-Lamer has
recently clarified her finding in that case to exclude those situations where
the applicant’s testimony is the only evidence linking the applicant to his or
her claim: Soosaipillai v. Canada (Minister of Citizenship and Immigration),
2007 FC 1040, [2007] F.C.J. No. 1349.
[12]
Regarding
the applicant’s alternative argument, the respondent submits that the case law
shows that the Panel does not err when it fails to address an issue which was
not raised at the hearing of the claim, especially where the claimant is
represented by counsel: Ranganathan v. Canada (Minister of Citizenship and
Immigration) (C.A.), [2001] 2 F.C. 164, [2000] F.C.J. No. 2118. The
applicant should not be permitted to raise new risk allegations at the judicial
review stage, but would more appropriately raise these concerns at a
pre-removal risk assessment: Raza v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632.
[13]
The
applicant asserts that he is precluded from raising his alternative claim in a
PRRA as he did not raise it before the Panel. I disagree. PRRA officers may
assess risks to claimants on return to their countries of origin where the
claimed grounds have not previously been raised: Zenunaj v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1715, [2005] F.C.J. No. 2133. Indeed,
as the PRRA officer in that situation would be the first decision maker to
assess the newly claimed risk, he or she would be required to review all
relevant evidence, not merely that which fits the parameters set out in
paragraph 113(a) of the IRPA: Cupid v. Canada (Minister of
Citizenship and Immigration), 2007 FC 176, [2007] F.C.J. No. 244.
[14]
Turning to the issues raised on
this application, as was noted by Justice Robert L. Barnes in his recent
decision Krishnapillai v. Canada (Minister of Citizenship and Immigration), 2007 FC 563, [2007] F.C.J. No. 760, an assessment of
the generalized risk faced by a claimant is not required in every instance
where, as here, the Panel has categorically rejected the applicant’s claims.
[15]
In this instance, the Panel went
so far as to find that the applicant had not been in Goma for the three years
he claimed and that neither he nor his parents had been jailed. Given that he was found to suffer no
persecution and has not contested the Panel’s credibility findings, on the
facts of this case there was no need for an assessment of objective risk based
on his identity. If it were necessary to find that an objective assessment was
required, I am satisfied that it was adequately addressed by the Panel’s
consideration of the evidence relating to the treatment of refugees persecuted
in the DRC by reason of their Tutsi ethnicity.
[16]
Regarding the second
issue, I do not agree that the Panel
erred in omitting to assess the applicant’s risk of persecution as a failed
refugee claimant. The documentary evidence of an objective basis for this risk
in the record was scant and was linked to a perception that asylum seekers in
Europe had criticized the DRC. There was no evidence that Mr. Wa Kabongo fell
into that category. Moreover, he evidently did not think it warranted mention
during his evidence, nor did his counsel. Viafara is
distinguishable, in my view, as the Panel in that case completely overlooked a
subjective basis for the claim.
[17]
No questions of general importance
were proposed for certification and none will be certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application
is dismissed. No question is certified.
“
Richard G. Mosley ”
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