Date: 20080702
Docket: IMM-5200-07
Citation: 2008 FC 826
Ottawa, Ontario, July 2, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
KAMUNDU
PIERRIN MASKINI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This case
turns on the Internal Flight Alternative. A person is not a United Nations
Convention Refugee or otherwise in need of international protection if she is
in danger of persecution in one part of the country, but not in another.
[2]
Ms.
Maskini is a citizen of the Democratic
Republic of the Congo.
She hails from Goma in North
Kivu province
and is a member of the Nande tribe. The Refugee Protection Division of the
Immigration and Refugee Board found her credible and at serious risk of
persecution in North Kivu, which is in the eastern part of the country.
However, it concluded that there was an internal flight alternative available
to her further west, in the capital of Kinshasa. This is the judicial review of that
decision.
[3]
Both at the
hearing before the Board, and in this Court, Ms. Maskini asserted that Kinshasa was not a viable alternative
for her. Although she has one brother and two sisters living there, she, unlike
them, does not speak the local language, Lingala (although she speaks French
which is used throughout the country) and unlike them, she has the appearance
of a Tutsi. This connotes a connection with Rwanda, which has been blamed for the internal
strife which plagued the country in the late 1990s and earlier this decade.
[4]
Two prime
arguments have been advanced in favour of the granting of judicial review. The first
is that the Board erred in law by not subjecting Ms. Maskini’s internal flight
alternative to the correct legal test. The second is that its finding that she would
not be at serious risk of persecution in Kinshasa was unreasonable.
[5]
The legal
test in determining if there is an internal flight alternative is two-pronged.
The first is that the claimant must show, on the balance of probabilities, that
there is a serious risk of persecution throughout the country, including the
area which is alleged to afford an alternative. The second is that this
alternative must not be unreasonable in the circumstances of the individual
claimant (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, 22 Imm.
L.R. (2d) 241). It is alleged that the Board failed to consider the second part
of the test.
[6]
In my
opinion, the Board did apply the correct legal test. Its analysis of Ms.
Maskini’s situation considered her particular situation in detail. Her
background, her morphology and the situation of her siblings were considered,
as was the general situation throughout the country. I cannot accept the
proposition that there must be two separate findings, the first being that a
particular place, i.e. Kinshasa, is safe and the second
whether it would be unduly harsh to expect Ms. Maskini who was being persecuted
in one part of the country, to move to Kinshasa before seeking refugee status abroad.
The Board’s overall analysis was well-reasoned. To hold that the second test
was not analyzed would be to emphasise form over substance. In this case, they
were analyzed together.
[7]
As to the
submission that it was unreasonable for the Board to find that Kinshasa was a safe alternative, that
is a finding of fact. In the past, deference was shown to such findings unless
they were patently unreasonable (Balakumar v. Canada (MCI), 2008 FC 20, [2008]
F.C.J. No. 30 (QL) and cases cited therein). However, in light of the recent
decision of the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, that finding is now assessed against the standard of reasonableness simpliciter.
[8]
The
applicant submits that she was at danger because she did not speak the local
language, Lingala, which the Board accepted notwithstanding that in her
Personal Information Form she said she did; that she gave the appearance of a
Tutsi; that her brother cautioned her not to speak Swahili; and on a more
general note that, at best, Tutsis could only be considered reasonably safe in Kinshasa when the country was at
peace. The record was alleged to show violence had broken out again. More
specifically, it was submitted that the Board failed to consider its own 2006 Response
to Information Request, relying only on the 2005 report. There were more recent
reports from other agencies as well.
[9]
Although
the presumption is that the Board considered all the material in the record, it
is well established that the more relevant the information is the more
important the need to specifically refer to it in its reasons. Reference was
made to the oft cited decision of Mr. Justice Evans in Cepeda-Gutierrez v.
Canada (MCI), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL), as well as Rojas
Renteria v. Canada (MCI), 2006 FC 160, [2006] F.C.J. No. 284 (QL), in which
Mr. Justice Shore, at paragraphs 31 and 32, emphasized that the Board should consider
the country conditions which it itself issued.
[10]
The
alleged failure to refer to the Board’s 2006 Response to Information Request, as
opposed to its 2005 Report, is misplaced. The 2005 Report, issued on 12
December, indicated that although other ethnic groups were distrustful of Congolese
citizens of Rwandan origins, particularly Tutsis, there was no evidence of recent
instances of such citizens being targeted by other ethnic groups. The 2006
report, issued barely a month later, on 20 January, is actually more supportive
of the internal flight alternative. Although it was said that Kivutians were
the first in Kinshasa to be suspected of conspiring with rebel groups; “…the
present situation of Kivutians living in Kinshasa is no different from the situation of
other citizens there.” There was no evidence of discrimination although they
may be looked down upon. There was also an indication that only exceptional
cases of persecution based on a person’s Tutsi appearance remained.
[11]
As to the
other reports, one was clearly referred to in a footnote. The most that can be
said is that there was some violence in Kinshasa at the beginning 2007 and that threats
of war in North and South Kivu were reoccurring.
[12]
There can
be more than one reasonable decision. As Dunsmuir, above, teaches, the
question is whether the decision falls within an acceptable range. I conclude
that it does.
[13]
The Board
also noted that there were compassionate circumstances in Ms. Maskini’s case,
but they would have to form part of a separate and distinct application to
permit her to apply for permanent resident status from within Canada on humanitarian and passionate
grounds. The Board was correct. Compassion, beyond what may be inherent in the
Internal Flight Alternative, is not at issue in a refugee claim.
ORDER
UPON the application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada, dated 20 November 2007, in its file MA7-00512,
refusing the applicant’s refuge claim;
FOR THE REASONS GIVEN ABOVE;
THIS COURT ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
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