Date: 20130124
Docket: IMM-5172-12
Citation: 2013 FC 56
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal, Quebec, January 24, 2013
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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NIKUZE KABAKA, isaac-manzi gasana, sano gasana, umutoni
gasana, shema gasana
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Applicants
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and
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THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The principal applicant seeks judicial review of a decision
by the Refugee Protection Division (RPD) of the Immigration and Refugee Board
that she and her children are not Convention refugees under section 96 or
persons in need of protection under section 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA). The RPD premised its decision
on the applicant’s failure to rebut the presumption of state protection and on
her failure to establish, on a balance of probabilities, a link between her
assault and a group of criminals in whose arrest she had assisted.
II. Judicial
proceeding
[2]
This is an application under subsection 72(1) of the IRPA
for judicial review of the RPD decision dated April 26, 2012.
III. Background
[3]
The principal applicant, Nikuze Kabaka, is a citizen of
Rwanda born in 1976. Her children are also citizens of Rwanda and were born in
1995, 1996, 1999 and 2006.
[4]
The principal applicant claims she is a victim of
longstanding domestic violence, her wealthy husband persuaded police to ignore
her complaints and her conservative family persuaded her to remain with her
husband (domestic violence ground). She states that her husband also beat their
children and threatened to kill her if she divorced him.
[5]
On October 30, 2009, the principal applicant’s husband was
detained by police for two days after he assaulted her. On his release, he
obeyed a police order prohibiting him from visiting the family home but did
continue to make telephone death threats.
[6]
The principal applicant presented an attestation from the
Rwandan National Police outlining the October 30, 2009, assault and
previous incidents of domestic violence (Exhibit C‑11). Exhibit C-11
stated that police attempted to mediate previous incidents with good results
but that the October 30, 2009, incident had been referred to a tribunal.
[7]
The principal applicant also alleges that she was
threatened with death and attacked by three soldiers of the Rwandan Patriotic
Front (RPF soldiers) working for the Rwanda Revenue Authority (criminal
victimization ground).
[8]
In February 2009, the principal applicant and her half-sister
assisted authorities in an investigation of the RPF soldiers that resulted in
their imprisonment.
[9]
The principal applicant presented an attestation from the
Rwandan National Police confirming her role in the investigation of the RPF
soldiers (Exhibit C-10).
[10]
After the RPF soldiers were released, the principal
applicant received death threats but police refused to investigate until the
callers could be identified as the RPF soldiers.
[11]
On November 25, 2009, the principal applicant and her
half-sister were attacked by unidentified assailants outside her store and
police opened an investigation.
[12]
At the RPD hearing, the principal applicant’s half-sister
testified that, while the principal applicant was away, a person came to her
store searching for her three days before the November 25, 2009, attack
and later returned to the store with another person searching for her and
demanding money. The half-sister added that these men (the visitors) identified
themselves and left a name and phone number, which she relayed to the
Applicant.
[13]
With Canadian visas already obtained by herself and her
estranged husband for a previously-planned vacation, she and her children fled
Rwanda on December 6, 2009.
IV. Decision
under review
[14]
The RPD found that the principal applicant was not a
Convention refugee under section 96 or a person in need of protection under
section 97 of the IRPA.
[15]
The RPD found that the principal applicant did not rebut
the presumption of state protection. On the domestic violence ground, it reasoned
that Exhibit C-11 showed police were responsive to earlier incidents of
domestic violence and intervened multiple times. The principal applicant had
reconciled with her husband after incidents preceding the October 30, 2009,
incident and documentary evidence showed police intervened effectively. On the
criminal victimization ground, the RPD reasoned that police had intervened in
the November 25, 2009, attack and were investigating her unidentified
assailants.
[16]
The RPD found that the principal applicant did not, on a
balance of probabilities, demonstrate that her assailants were acting on behalf
of either her husband or the RPF soldiers.
[17]
The principal applicant’s attempt to connect the November 25,
2009, incident with the visitors did not persuade the RPD that her assailants
were acting on behalf of her husband or the RPF soldiers. It reasoned that, if
the visitors were the RPF soldiers, her half-sister would have recognized them
by the names that they gave her. The principal applicant could not explain why
she did not contact the visitors at the phone number they gave to her
half-sister. She initially explained that she did not know the visitors and
then began to refer to her role in the arrest of the RPF soldiers. Visibly
frustrated, she added that she did not remember the visitors and that her
half-sister had not spoken to her about the visit. According to the RPD, this
inconsistency and her confusion of events leading to the arrest of the RPF
soldiers and the November 25, 2009, attack arose from a desire to link the
November 25, 2009, attack with the RPF soldiers.
[18]
The RPD also found it unlikely that the assailants were the
RPF soldiers because the principal applicant and her half-sister testified that
they did not recognize their assailants. If their assailants had been the RPF
soldiers, they would have been able to recognize them.
[19]
Nor did the RPD believe that the assailants told the
principal applicant during the attack that she caused them to lose their jobs. This
was inconsistent with earlier claims that she could not identify her assailants
and that she was not sure if the attempted murder was ordered by her husband or
the RPF soldiers. The RPD was not satisfied with her explanation that the RPF
soldiers may have been in collusion with her husband.
[20]
The RPD found that it was unlikely that her assailant was
her husband because, apart from making threatening phone calls, he did not
interact with her after the October 30, 2009, assault and did not visit
the family home to claim his effects until after the principal applicant fled
Rwanda on December 6, 2009.
V. Issues
[21]
(1) Was the RPD’s state protection finding reasonable?
(2) Was the RPD’s adverse credibility finding reasonable?
(3) Was the RPD reasonable to find that the principal
applicant had not established, on a balance of probabilities, a link between
the November 25, 2009, attack and the RPF soldiers?
VI. Relevant
statutory provisions
[22]
The following legislative provisions of the IRPA are
relevant:
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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.
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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.
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VII. Analysis
[23]
The reasonableness standard applies to questions of state
protection (Csonka v Canada (Minister of Citizenship and Immigration),
2012 FC 1056), credibility (Lin v Canada (Minister of Citizenship and
Immigration), 2011 FC 1235) and findings of fact (Mugesera v Canada (Minister
of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100).
[24]
Where the reasonableness standard applies, this Court may
only intervene if the Board’s reasons are not “justified, transparent or
intelligible”. To satisfy this standard, the decision must also fall in the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
para 47).
[25]
The principal applicant argues that the RPD’s decision was
premised on a general adverse credibility finding about the November 25,
2009 attack. According to the principal applicant, the November 25, 2009
attack was the materialization of death threats by the RPF soldiers on their
release from prison. The principal applicant argues she did not confuse the
events leading to the arrest of the RPF soldiers with the November 25,
2009, attack. She contends, rather, that it was her half-sister who confused
the events.
[26]
The respondent, however, takes the position that the basis
of the RPD’s decision was the principal applicant’s failure to (i) rebut the
presumption that the Rwandan state could protect her from her husband and (ii)
demonstrate, on a balance of probabilities, that her assailants on November 25,
2009, were the RPF soldiers. Both of these findings, according to the
respondent, are reasonable. Moreover, the respondent contends that the RPD did
not make a general credibility finding on the principal applicant’s account of
the November 25, 2009, attack. Rather, the RPD did not believe the principal applicant’s
claim that she heard her assailants accusing her of causing them to lose their
jobs.
[27]
It was reasonable to conclude that the principal applicant
did not rebut the presumption of state protection. In Carrillo v Canada (Minister
of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636, the Federal
Court of Appeal held that claimants seeking to rebut the presumption “must
adduce relevant, reliable and convincing evidence which satisfies the trier of
fact on a balance of probabilities that the state protection is inadequate” (at
para 30). Perfection is not the standard on which state protection is assessed.
As Justice Donald Rennie stated in Onodi v Canada (Minister of
Citizenship and Immigration), 2012 FC 1191, “no country can offer its
citizens perfect protection. It is not sufficient for a refugee
claimant to show that the government’s efforts have not always been successful”
(at para 16). Finally, assessing state protection is always an
individualized analysis requiring the RPD to “conduct an individualized
analysis taking into account the applicant’s circumstances” (Horvath v
Canada (Minister of Citizenship and Immigration), 2011 FC 1350, at
para 57).
[28]
Given the circumstances of the principal applicant, it
would not be unreasonable to conclude that she has access to effective and
adequate state protection on her domestic violence ground. First, Exhibit C-11
shows police responded to her complaints about domestic violence in the past
and sought to mediate between her and her husband with good results. Second,
police responded to the episode of domestic violence on October 30, 2009,
by detaining her husband for two days. Third, her husband was subject to a
police order restraining him from entering the family home where she resided
with her children; he complied with the order at least until they fled Rwanda
on December 6, 2009. Since the principal applicant has previously accessed
state protection from domestic violence with success, it reasonably follows
that she did not present relevant, reliable, and convincing evidence that she
lacks adequate and effective state protection.
[29]
While the principal applicant’s husband continued to make telephone
death threats to her after his release from detention, the record does not show
that she complained to police about these threats. Under Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, claimants are obliged to seek
state protection unless the state is “unwilling or unable” to protect them. Previous
interventions by police suggest that it would be reasonable to find that the
state was not unwilling or unable to protect the principal applicant from her
husband.
[30]
Nor would it be unreasonable to find that the principal
applicant had not presented reliable, clear, and convincing evidence rebutting
the presumption that the Rwandan state would provide adequate protection on the
criminal victimization ground. It would be reasonable to infer from the
attendance of police at the scene of the November 25, 2009, attack and
their investigation of the unidentified assailants (Certified Tribunal Record
at p 27) that the Rwandan state would protect the principal applicant on
her criminal victimization ground if she were to return. This result remains
reasonable even when one considers the earlier refusal of the police to
investigate the death threats the principal applicant received from
unidentified callers after the RPF soldiers were released from prison. Police
did open an investigation after the November 25, 2009, attack. In Kashif
v Canada (Minister of Citizenship and Immigration), 2007 FC 586,
Justice Richard Mosley stated that “state protection need not be perfect so
long as the state is in effective control and makes serious efforts to protect
its citizens” (at para 25). It would be reasonable to conclude that the
investigation of the November 25, 2009, attack demonstrates serious
efforts by the Rwandan police to protect the principal applicant.
[31]
A finding of adequate state protection is fatal to claims
under section 96 and 97 of the IRPA (Samuel v Canada (Minister of
Citizenship and Immigration), 2012 FC 973, at para 40). Since the RPD’s
finding on state protection on the domestic violence ground and criminal
victimization ground was reasonable, it is not necessary to consider its
credibility finding or whether the principal applicant could establish a link
between the RPF soldiers and the November 25, 2009, assault.
VIII. Conclusion
[32]
For all of these reasons, the applicants’ application for
judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that the applicants’ application for judicial review be dismissed.
No question of general importance for certification.
“Michel
M.J. Shore”
Certified true
translation
Catherine Jones,
Translator
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