Date:
20130529
Docket:
IMM-7489-12
Citation:
2013 FC 566
Ottawa, Ontario,
May 29, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
JOSEPHINE MUKAMUGANGA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated June 28, 2012, wherein the applicant was determined to be neither
a Convention refugee within the meaning of section 96 of the Act nor a person
in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a survivor of the genocide in Rwanda in 1994. Her parents, one of
her sons and husband, Tutsi like her, were killed in that genocide. In the same
attack that killed her husband, she suffered serious injury. She recognized two
of her attackers.
[4]
In
1996, when these attackers returned to Rwanda from the Congo, the applicant’s daughter and stepson made complaints against them. They were arrested and
jailed for seven years and freed in 2003.
[5]
The
applicant alleges that upon release, these two genocidaires waged a campaign of
violence on her family. Her stepson was killed in November 2003, on the same
day he received a notice to testify at the gacaca courts (a post-genocide
community justice mechanism in Rwanda) regarding the killing of the applicant’s
husband. Her daughter was attacked in 2004, resulting in a miscarriage. Her son
was killed in 2004 in a knife attack and the perpetrators were never found. Her
house was destroyed. She reported these matters to the police to no avail. In
2011, grenades exploded near her house on two occasions. The police concluded
terrorists from outside the country engaging in random acts of terror were to
blame.
[6]
Her
daughter fled Rwanda in 2005 and was accepted as a refugee in Canada. Another son fled in 2011. The applicant suffered from high blood pressure and
headaches due to the stress associated with this persecution.
[7]
The
applicant had a chance to attend a church conference in the United States and planned to use this trip to flee Rwanda. When the applicant arrived in the United States, she contacted her daughter in Canada. She arrived in Canada on July 25, 2011 and
claimed refugee protection.
Board’s Decision
[8]
The
Board heard the applicant’s claim in two days of hearings on April 26, 2012 and
June 14, 2012. The Board made its decision on June 28, 2012 and sent the decision
to the applicant on July 5, 2012.
[9]
The
Board rejected the applicant’s claim on the basis of credibility and the
existence of state protection.
[10]
The
Board described the applicant’s testimony at the first sitting as evasive and
not responsive to questions about contemporary events, as opposed to the 1994
genocide. The Board indicated it had adjourned the matter to allow the
applicant to secure medical evidence explaining her evasive testimony or make
an application for accommodation under the Guideline on Procedures with
Respect to Vulnerable Persons Appearing Before the IRB. The applicant
introduced a medical report at the second sitting, but it was largely
speculative and outside the author’s area of expertise. No application under
the Guideline was made.
[11]
The
Board noted the applicant had produced no police reports to support her claim
she had sought police protection. Given the applicant was still in touch with
her children in Rwanda, the Board concluded it was reasonable to expect her to
introduce such evidence.
[12]
The
Board concluded the agents of persecution had not caused the applicant or her
family harm since 2003 or 2006 and therefore only posed a remote threat that
did not rise to the level of serious possibility.
[13]
The
Board rejected counsel’s argument that the applicant belonged to the particular
social group of “gacaca witness” as she had been adamant she never considered
testifying. The Board acknowledged the applicant was HIV positive but noted no
one had argued persecution based on this claim.
[14]
The
Board questioned the applicant’s claim that the church conference in the United
States was a ruse to facilitate fleeing Rwanda on the basis she did in fact
attend the conference. The Board drew a negative inference against the
applicant’s credibility due to her having failed to claim refugee protection in
the United States. The Board noted her children who remained in Rwanda had not been harmed.
[15]
Finally,
the Board rejected the applicant’s allegation she had been raped as it had not
been raised in her Personal Information Form (PIF), amendments to the form, or
in her medical evidence.
[16]
The
Board then turned to state protection. The Board discussed the principles of
state protection and indicated that Rwanda was in effective control of its
territory. The Board quoted from a United States Department of State Human
Rights Report regarding Rwanda’s civilian control of security forces and the
investigation and prosecution following security force killings. The report
indicated the government investigated and prosecuted individuals accused of
threatening or harming genocide survivors. Other reports indicated varying
levels of success in protection of such witnesses. The Board concluded the
applicant had not rebutted the presumption of adequate state protection. The Board
further concluded there were no compelling reasons for the applicant not to
return to Rwanda as contemplated by subsection 108(4) of the Act.
Issues
[17]
The
applicant submits the following points at issue:
1. Did the Board err
in law in determining that the applicant is not a Convention refugee or person
in need of protection?
2. Did the Board act
without jurisdiction, act beyond its jurisdiction or refuse to exercise its
jurisdiction?
3. Did the Board fail
to observe a principal of natural justice, procedural fairness or other
procedure it was required by law to observe?
4. Did the Board err
in law making its decision or order whether or not the error appears on the
face of the record?
5. Did the Board base
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard to the material before it?
6. Did the Board act
in any way that was contrary to law?
[18]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board violate
procedural fairness?
3. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[19]
The
applicant argues the Board failed to analyze whether she was at risk based on
those parts of her profile that had been accepted by the Board.
[20]
The
applicant argues she was denied a full and fair hearing on the basis of poor
translation. The Board engaged in microscopic analysis of details concerning
the dates she moved from one house to another and both the applicant and the
interpreter were confused. The Board was chiefly concerned with the length of
the hearing and it is not known what was lost in translation. The applicant
also argues that a portion of her testimony is missing from the recording of
the hearing.
[21]
The
applicant argues the Board was wrong to characterize her as an uncooperative
witness given the language barrier that resulted in her not having a proper
understanding of what was being asked. She argues the Board was right to
adjourn the hearing but should have also disregarded her testimony up to that
point, given her difficulty in testifying. The Board should have considered
that the letter from a physician indicated an evaluation of her mental state
would have been possible. The stress and stigma of being HIV positive along
with the language barrier resulted in her inability to give a perfect
accounting of the facts of her claim.
[22]
The
applicant argues the Board was wrong to draw a negative credibility inference
from the failure to provide police reports. A failure to produce supporting
documentation cannot reflect adversely on a claimant’s credibility in the
absence of evidence which contradicts her testimony. The applicant’s daughter’s
narrative corroborates her version of events. The Board concluded the
applicant’s children could have helped her obtain documentary evidence, but
only because the Board refused to admit emails from them indicating they fear
leaving their house.
[23]
The
applicant submits the standard for the refugee definition is not certainty of
death but rather persecution. The applicant argues she suffered persecution
based on the threats and violence described above.
[24]
The
applicant argues the Board should not have rejected her claim based on being a
gacaca witness on the basis that she never testified, since she is still a
gacaca witness in the eyes of her persecutors. The Board did not question the
fact that the applicant had been called to testify.
[25]
The
applicant further argues the Board should not have concluded her failure to claim
in the United States reflected negatively on her credibility. Her evidence was
that she contacted her daughter immediately upon coming to the United States. Staying in accommodations paid for by her church while she waited for her
daughter was reasonable. The Board was required to assess why there was a delay
in the application and failed to do so.
[26]
The
applicant argues the Board’s state protection analysis was dependent on its
credibility finding, because it did not consider the applicant’s claim that she
had approached the state for protection numerous times. The applicant argues
the Board’s analysis was concerned with serious efforts at state protection
instead of the proper test of adequacy of state protection.
[27]
Finally,
the applicant argues that because her right to a fair hearing was compromised,
the Board’s decision must be quashed regardless of whether it appears that the
unfairness would have resulted in a different decision.
Respondent’s Written Submissions
[28]
The
respondent argues the relevant standard of review is reasonableness and that
the Board’s decision falls within the range of possible acceptable outcomes.
[29]
The
respondent argues the Board clearly analyzed the applicant’s risk profile as a
Tutsi genocide survivor. The Board explicitly considered the daughter’s
successful refugee claim but distinguished it from her mother’s on the basis of
being a gacaca witness. The respondent points out the applicant has submitted
no evidence that the translator misinterpreted the applicant’s testimony and
the transcript indicates the Board repeated questions and used different
wording in attempts to clarify. The applicant affirmed to the Board that she
understood the translator and counsel himself informed the Board he had no
concerns about how the hearing was being conducted in its first sitting but that
he was having difficulty communicating with his client. It was the Board who
took the initiative to adjourn the matter, while the applicant and her counsel failed
to provide the evidence suggested by the Board.
[30]
It
was reasonable for the Board to give little weight to the doctor’s letter given
its explicit uncertainty concerning the applicant’s mental state. Given the
lack of evidence presented explaining the poor testimony of the first sitting,
it was reasonable for the Board to rely on this testimony.
[31]
The
respondent argues the applicant’s argument concerning the missing transcript
portion is without merit. The transcripts appear complete. Furthermore, the
applicant’s memorandum is inconsistent with her counsel’s affidavit as to
whether the alleged missing portion is from the first or second day. Incomplete
transcripts do not in themselves warrant judicial review and the applicant has
not made out how she was prejudiced by this omission.
[32]
The
respondent argues that seeking corroborating evidence where an applicant’s
credibility is in doubt is a matter of common sense supported by case law. The Board
did not accept that she was recently threatened or require her to prove with
certainty that she would be killed. The applicant was inconsistent between her
port of entry claim and her oral testimony as to whether she had testified at
the gacaca tribunal. It was reasonable for the Board to question her failure to
seek protection in the United States.
[33]
The
respondent points out the Board’s state protection analysis is determinative in
addition to the negative credibility finding. The Board did not rely on serious
efforts analysis. It found the Rwandan state willing and able to protect
genocide survivors.
Analysis and Decision
[34]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[35]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada
(Minister of Citizenship and Immigration), 2011 FC 584 at paragraph 23,
[2011] FCJ No 786). Similarly, the weighing of evidence and the interpretation
and assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[36]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Khosa above, at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[37]
It
is trite law that no deference is warranted on matters of procedural fairness
(see Dunsmuir, above at paragraph 50).
[38]
Issue
2
Did the Board violate
procedural fairness?
The applicant argues that
faulty interpretation compromised the fairness of the hearing, but provides no
evidence of such errors. The argument offered by her counsel seems to be that
this Court must infer from the obviously difficult flow of questions and
answers that translation was the source of the problem. Unfortunately, such an
inference cannot be drawn because it is equally possible that the translation
was perfectly adequate but that the applicant was simply not answering the Board’s
questions properly. As the respondent points out, the applicant’s counsel
himself expressed difficulty interacting with his client, which did not involve
the use of the Board’s interpreter.
[39]
Given
that the onus is on the applicant to make out violations of procedural
fairness, I cannot find it was breached on the basis of poor translation.
[40]
There
may very well have been other legitimate reasons that explained the poor
communication between the applicant and the Board at the hearing. However,
since the applicant’s counsel failed to act upon the Board’s suggestion of
introducing psychological evidence or making an application for procedural
accommodations, there is simply no evidence on this point in which a finding
that the fairness of the hearing was compromised can be rooted.
[41]
The
applicant submitted that a portion of the transcript was missing. A review of
the record shows that at the beginning of the second day of hearings, the
recording device apparently was not turned on. Some of the examination by her
counsel was not recorded. It is not explained how this affects the applicant’s
claim. I am not of the view that on these facts, a breach of procedural
fairness occurred.
[42]
In
my experience, when an adjudicator suggests on his own motion a particular form
of evidence or procedural strategy, the suggestion should be acted upon, if
possible. This is particularly true where there is a suggestion of
psychological difficulties that may interfere with a party’s ability to
instruct her counsel. To this day, there is no evidence in the record as to the
applicant’s psychological state despite the concern expressed by the Board and
now endorsed by this Court and her experience as a survivor of one of the
world’s worst traumas in recent memory. Nor has there been an explanation of
why such evidence is lacking.
[43]
Issue 3
Did the
Board err in rejecting the applicant’s claim?
As the case law
cited above makes clear, this Court is loath to interfere with credibility
determinations made by the Board given the importance of oral testimony. A
review of the transcript in this case confirms the Board’s difficulty in
extracting basic information about the applicant’s claim. Subject to my
concerns described above about the paucity of evidence that might explain the
applicant’s difficulty in answering such questions, it was reasonable for the Board
to doubt her credibility based on inconsistencies between written and oral
evidence and her inability to provide any detail regarding the recent or
forward-looking threats against her. Given those doubts, it was similarly
reasonable for the Board to inquire into documentary evidence regarding the
police complaints alleged by the applicant.
[44]
Contrary
to the applicant’s submissions, the Board did accept that she was a survivor of
the 1994 genocide and analyzed her risk on that basis, as shown by the excerpts
from country conditions concerning exactly that risk. While I agree with the
applicant that the “serious efforts” test is a flawed approach to state
protection analysis, this was not the approach taken by the Board. The excerpts
relied on by the Board described the Rwandan state’s willingness and ability to
protect genocide survivors.
[45]
I
am in agreement with the Board and the respondent that the applicant is
deserving of tremendous sympathy. The grounds specified in sections 96 and 97,
however, do not assist even the most sympathetic of applicants when they do not
fall into the particular criteria of those provisions. The applicant and her
counsel were unable to persuade the Board she fell into those definitions and
have been unable to persuade this Court there was any reviewable error in that
determination.
[46]
Given
the evidence before the Board, its finding was transparent, justifiable,
intelligible and within the range of acceptable outcomes. I would therefore
dismiss the application for judicial review.
[47]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision, determination
or order made, a measure taken or a question raised — under this Act is
commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Email this Content