Docket: IMM-5052-13
Citation:
2015 FC 678
Ottawa, Ontario, May 26, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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BEATRICE
NYIRAMAJYAMBERE
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Applicant
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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
[1]
The applicant’s claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). She now applies for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicant is a citizen of Rwanda. She
alleged that she was at risk from the authorities in Rwanda due to her
perceived political opinion.
[4]
In July 1998, when the applicant was seventeen
years old, she was imprisoned for two weeks by soldiers and military
intelligence in Rwanda. During that time, she was tortured and raped.
[5]
In August 1999, the applicant was sent by her
mother to live in Kenya.
[6]
In December 2003, the applicant returned to her
home in Rwanda.
[7]
In November 2009, the applicant moved to Kigali
to take computer instruction to prepare for the management of her own business.
Her instructor was her friend Chantal’s brother. He was a member of the Unified
Democratic Forces political party (UDF-Inkingi), a coalition of Rwandan
opposition parties. The applicant was sympathetic to the party, but did not
join as a member.
[8]
In February 2010, the applicant’s instructor was
detained due to suspicion of organizing a group of people responsible for
tossing grenades in Kigali. The applicant and Chantal were detained, questioned
and tortured. The applicant was released a week later upon three conditions: i)
she was not to leave Kigali before the final decision about her involvement was
rendered; ii) she was to report to the police station every Friday; and iii)
she was to provide names of members of the UDF-Inkingi. The applicant only
complied with the first two conditions.
[9]
In May 2010, the applicant fled Kigali because
she was afraid that her failure to provide names had angered the authorities.
Also, she suspected that her friend Chantal might have implicated her. Shortly
after she left, the local defence guard went to her mother’s house and her sister’s
house, looking for her.
[10]
In July 2010, the applicant relocated to Uganda,
where she stayed for approximately eight months. She was advised to seek refuge
further away from Rwanda. She remained in hiding until an agent made plans to
bring her to a safe country.
[11]
On March 20, 2011, the applicant took an
airplane to Amsterdam and then to Montreal. Next, she took a bus to Ottawa
where she claimed refugee protection on March 23, 2011.
II.
Decision Under Review
[12]
In a decision dated June 18, 2013, the Board
made a negative decision ruling that the applicant was neither a Convention
refugee nor a person in need of protection.
[13]
The Board found under subsection 97(1), “on a balance of probabilities, more likely than not, the
claimant would not be subject personally to a risk to her life or to a risk of
cruel and unusual treatment or punishment if she were to return to Rwanda.”
Under section 96, it found “on an objective basis, on a
balance of probabilities, there is no reasonable chance or serious possibility
that the claimant would be persecuted should she return to Rwanda.” The
Board determined that the country’s changed circumstances were the main issue.
It also found the applicant was credible.
[14]
The Board found the applicant’s detention during
the month of February 2010 was in the context of the run-up to the presidential
election to be held on August 9, 2010. It noted the applicant was released
because the police authorities did not consider her to be a member of UDF-Inkingi
or a person responsible for the civil unrest; otherwise, she would not have
been released.
[15]
It also noted after the month of May 2010, there
was no indication that the authorities were still looking for the applicant.
The applicant attributed the lack of information to the concern that the
telephone calls with her sister were being monitored. However, the Board was of
the view that the applicant’s sister would have advised the applicant if
authorities were still looking for her.
[16]
The Board then reviewed the documentary evidence
on Rwanda’s changed country circumstance due to the election of President Paul
Kagame to a second seven-year term and senate election being won by the ruling
party, RPF. Here, the Board was of the opinion that the applicant did not
possess the profile of a person who would be considered to be a traitor.
[17]
Therefore, the Board found the applicant was
neither a Convention refugee nor a person in need of protection.
III.
Issues
[18]
The applicant raises three issues for my
consideration in her written submissions:
1.
What is the standard of review?
2.
Did the Board err in failing to consider the “compelling reasons” exception?
3.
Did the Board err by applying the incorrect test
under section 96?
[19]
However, at the hearing of the matter, the
applicant stated that the key issue was compelling reasons and only submitted
argument on this issue. The respondent stated there was only one issue which
was compelling reasons.
[20]
I prefer the applicant’s separation of issues as
stated at the hearing and rephrase them as follows:
A.
What is the standard of review?
B.
Did the Board err in not considering the “compelling reasons” exception?
IV.
Applicant’s Written Submissions
[21]
The applicant submits that the standard of
review of the Board’s findings with respect to the reliability of evidence is
reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 [Dunsmuir]).
[22]
First, the applicant submits the Board failed to
consider the compelling reasons exception under subsection 108(4) of the Act.
She argues it has been established that she suffered horrific acts at the hands
of the Rwandan authorities as demonstrated in her detainments in 1998 and 2010.
Her psychological report showed that she continued to suffer from these past
incidents of persecution.
[23]
Here, the Board did identify the compelling
reasons exception as an issue at the outset of the hearing, but it failed to
conduct an analysis in its decision.
[24]
Further, the applicant submits an assessment
under the compelling reasons exception is mandatory in certain circumstances (see
Yamba v Canada (Minister of Citizenship and Immigration), [2000] FCJ No
457, 96 ACWS (3d) 289 [Yamba]). She sets out the test in Suleiman v
Canada (Minister of Citizenship and Immigration), 2004 FC 1125, [2005] 2
FCR 26 that “it is the state of mind of the refugee
claimant that creates the precedent” (at paragraph 19). The applicant
argues the Board was required to assess whether she, who had suffered greatly
from past incidents of persecution, ought to be forced to return. Here, the
Board failed to conduct this assessment and hence made an unreasonable
decision.
[25]
Second, the applicant submits the Board applied
an incorrect test under section 96. She argues in order to meet the definition
of a Convention refugee under section 96 of the Act, a claimant must establish
that they face “more than a mere possibility of
persecution” which has been held to be less than a balance of
probabilities. For support, she cites Adjei v Canada (Minister of Employment
and Immigration), [1989] 2 FC 680 [Adjei] and Fi v Canada
(Minister of Citizenship and Immigration), 2006 FC 1125, [2006] FCJ No
1401.
[26]
The applicant argues the standard of balance of
probabilities is only applicable to a section 97 analysis (see Li v Canada (Minister
of Citizenship and Immigration), 2003 FC 1514, [2003] FCJ No 1934).
V.
Respondent’s Written Submissions
[27]
The respondent submits the issue of whether the
Board ought to have considered the compelling reasons exception is reviewable
on a standard of reasonableness (see Decka v Canada (Minister of Citizenship
and Immigration), 2005 FC 822 at paragraph 5, [2005] FCJ No 1029; and Alharazim
v Canada (Minister of Citizenship and Immigration), 2010 FC 1044 at
paragraphs 17 to 25, [2010] FCJ No 1519).
[28]
As for the issue of the proper test for section
96, the respondent submits it is reviewable on the standard of correctness (see
Ospina v Canada (Minister of Citizenship and Immigration), 2011 FC 681
at paragraph 20, [2011] FCJ No 887) [Ospina]; Mugadza v Canada (Minister
of Citizenship and Immigration), 2008 FC 122 at paragraph 10, [2008] FCJ No
147 [Mugadza]; and Rahman v Canada (Minister of Citizenship and
Immigration), 2009 FC 768 at paragraph 36, [2009] FCJ No 945 [Rahman]).
[29]
Insofar as the issue of compelling reasons
exception is concerned, the respondent submits the Board did not have an
obligation to conduct this assessment. In order to engage in a compelling
reasons analysis, the Board must first find that an applicant was a refugee or
protected person and that they no longer have that status due to a change in
circumstances (see Luc v Canada (Minister of Citizenship and Immigration),
2010 FC 826 at paragraphs 32 and 33, [2010] FCJ No 1023 [Luc]). It
argues the present case is similar to Naivelt v Canada (Minister of
Citizenship and Immigration), 2004 FC 1261, [2004] FCJ No 1543. In that
case, this Court found despite the “horrific treatment”
that the female applicant had previously endured, it was not persuaded that the
Board had an obligation to consider the compelling reasons exception.
[30]
Here, the precursors for a compelling reasons
analysis under subsection 108(4) were not present. The respondent submits the
applicant failed to demonstrate that the Board had an obligation to conduct a
compelling reasons analysis.
[31]
Insofar as the test for section 96 is concerned,
the respondent submits the Board applied the correct test. It argues “[t]he case law is clear that the test for section 96 is
whether the Applicant has established, on a balance of probabilities, that there
is a reasonable chance or serious possibility that the Applicant faces a
prospective risk of persecution.” For support, it cites Adjei, Lopez
v Canada (Minister of Citizenship and Immigration), 2006 FC 1156 at
paragraph 20, [2006] FCJ No 1452 [Lopez]; and Ndjizera v Canada
(Minister of Citizenship and Immigration), 2013 FC 601 at paragraph 26,
[2013] FCJ No 668 [Ndjizera].
VI.
Applicant’s Written Reply
[32]
In response to the respondent’s submissions with
respect to the analysis of compelling reasons, the applicant submits the
Federal Court of Appeal in Yamba at paragraphs 4 and 5, confirmed that
the analysis of compelling reasons forms part of the determination process,
rather than being an analysis conducted after a determination of refugee
status.
[33]
She argues the cases cited by the respondent are
distinguishable. In Luc, the Board found the applicant had not
established past persecution because she had not been personally persecuted (at
paragraphs 25 to 27). In the case at bar, the Board accepted the facts establishing
past persecution from the applicant’s perceived political opinion.
VII.
Respondent’s Further Written Submissions
[34]
The respondent submits in order to make a
successful claim, an applicant must demonstrate a well-founded fear of
persecution, establishing both subjective and objective fears. Here, the
applicant’s allegations were not based on her 1998 detainment. It argues the
present case resembles the case of Henry v Canada (Minister of Citizenship
and Immigration), 2013 FC 1084 at paragraph 44, [2013] FCJ No 1222. The
onus is on the applicant to show that she has a well-founded fear of
persecution in the future to support her claim.
VIII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[35]
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 at paragraph 57).
[36]
Insofar as the issue of the consideration for
compelling reasons is concerned, this is a question of mixed fact and law, not
a pure error of law, and is therefore reviewable on the standard of
reasonableness (see IBS v Canada (Minister of Citizenship and Immigration),
2011 FC 777, [2011] FCJ No 976; and Adel v Canada (Minister of Citizenship
and Immigration), 2010 FC 344 at paragraph 22, [2010] FCJ No 398).
[37]
The standard of reasonableness means that I
should not intervene if the Board’s decision is transparent, justifiable,
intelligible and within the range of acceptable outcomes (Dunsmuir at
paragraph 47). Here, I will set aside the Board’s decision only if I cannot
understand why it reached its conclusions or how the facts and applicable law
support the outcome (see Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16,
[2011] 3 S.C.R. 708). As the Supreme Court held in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at paragraph 59 and 61, [2009] 1 S.C.R. 339,
a court reviewing for reasonableness cannot substitute its own view of a
preferable outcome, nor can it reweigh the evidence.
[38]
As for the issue of what is the proper test for
section 96, it concerns a question of law and it is reviewable on the standard
of correctness (Ospina at paragraph 20; Mugadza at paragraph 10;
and Rahman at paragraph 36).
B.
Issue 2 - Did the Board err in not considering
the “compelling reasons” exception?
[39]
Here, I find the Board did not commit a
reviewable error in not considering the compelling reasons exception.
[40]
I have previously reviewed the jurisprudence on
whether or not a Board should consider the compelling reasons exception under subsection
108(4) of the Act. In IBS, I stated at paragraphs 31 and 32:
31 The jurisprudence on subsection
108(4) is clear that the Board must first find a refugee claimant to be a
Convention refugee or person in need of protection at the time of persecution
before the compelling reasons exception applies. In Nadjat v Canada
(Minister of Citizenship and Immigration), 2006 FC 302, Mr. Justice James
Russell held at paragraph 50 that there must be “... a finding that the
claimant has at some point qualified as a refugee, but the reasons for the
claim have ceased to exist”.
32 As I held in John v Canada
(Minister of Public Safety and Emergency Preparedness), 2010 FC 1088 at
paragraph 41:
This requires a clear statement
conferring the prior existence of refugee status on the claimant, together with
an acknowledgement that the person is no longer a refugee because circumstances
have changed.
[41]
In the present case, there was no such
conferment on the applicant or an acknowledgement that the person is no longer
a refugee because circumstances have changed. Therefore, I find the Board was
reasonable to not conduct an analysis under subsection 108(4) of the Act.
[42]
I need not deal with Issue 3 because of the
parties’ statement of the issue at the hearing. However, had it been necessary
to deal with the issue, I am of the view that the Board was correct with
respect to the test it applied under section 96.
[43]
For the reasons above, I would deny this
application.
[44]
The applicant proposed that I certify as serious
questions of general importance, the questions proposed (but not certified) in Soto
v Canada (Minister of Citizenship and Immigration), 2014 FC 622, [2014] FCJ
No 683. The questions were stated at paragraph 33 of the decision:
33 Counsel for the Applicants
proposed two questions for certification:
For the compelling reasons provision in Immigration
and Refugee Protection Act section 108(1)(e) to be considered by the
Refugee Protection Division of the Immigration and Refugee Board, does the
Board have to make an express finding
a) of past persecution or is
evidence of past persecution which the Board accepts as credible sufficient?
b) that the refugee protection
claimant was at one time a Convention refugee with a well founded fear of
persecution or is either a finding of past persecution or evidence of past
persecution which the Board accepts as credible sufficient?
[45]
The respondent opposes the certification of the
questions.
[46]
I am not prepared to certify the questions as
the questions would not be determinative of the appeal.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is denied.
"John A. O'Keefe"
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