Docket: IMM-2730-14
Citation:
2015 FC 854
Ottawa, Ontario, July 13, 2015
PRESENT: The
Honourable Madam Justice Gleason
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BETWEEN:
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DICK PATRICK MUHENDA
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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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JUDGMENT AND REASONS
[1]
In this application for judicial review, the
applicant seeks to set aside the March 31, 2014 decision of a Citizenship and
Immigration Canada [CIC] Officer dismissing the applicant’s application for
permanent residence under the Spouse or Common-Law Partner in Canada class.
I.
Background
[2]
The applicant is a citizen of Rwanda of Tutsi
ethnicity. He arrived in Canada on May 7, 2000 and upon arrival made a claim
for refugee status. His claim was denied by the Refugee Protection Division of
the Immigration and Refugee Board [the RPD] on May 2, 2001 because the RPD found
he lacked credibility as to the persecutory events he claimed to have
experienced and as to the risk he alleged he would face upon his return to
Rwanda. The RPD accepted, however, that the applicant had established his
identity as Dick Patrick Muhenda, due to the testimony offered by another
witness, who confirmed the applicant’s identity and indicated that they had
attended primary school together in Rwanda. The applicant did not seek to
judicially review the RPD’s decision.
[3]
On June 23, 2001, the applicant married a
Canadian citizen and on August 23, 2001 filed an application for permanent
residence as her spouse, requesting consideration on humanitarian and compassionate
grounds to allow his application to be made from within Canada. His application was approved in principle on February 21, 2002. Thereafter, his file was
referred for a security assessment.
[4]
The applicant was investigated by the Canadian
Security Intelligence Services [CSIS] and the War Crimes Unit of the Canada
Border Service Agency [CBSA]. He was first interviewed by CSIS in 2002. During this
interview, the applicant admitted that he had made false declarations in his
refugee claim and claim for permanent resident status in stating that he had
attended secondary school and university in Tanzania. He also admitted that he
had made these misrepresentations in order to conceal the fact that he had been
in Uganda during the period leading up to the genocide in Rwanda.
[5]
In all subsequent materials the applicant filed
in support of his claim for permanent resident status, he did not repeat the
misrepresentation about being in Tanzania and instead disclosed that he had
attended secondary school and university in Uganda, claiming to have attended
St-Leo’s College in Fort-Portal, Uganda and, thereafter, Makarere University in Kampala, Uganda.
[6]
In July 2012, CBSA completed its security review
and advised counsel for the applicant that the War Crimes Unit had determined
it would not intervene in the applicant’s file as there was insufficient
information to establish that he was guilty of a war crime and that the CBSA
had no concerns as to the applicant’s admissibility under section 34 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA]. Section 34 sets
out the various security-related grounds under which a foreign national may be
deemed to be inadmissible to Canada; one of these grounds concerns engaging in
espionage.
[7]
The War Crimes Unit of CBSA also wrote a memo to
CIC in July 2012. In it, the Unit concluded that there was insufficient
evidence to establish that the applicant had committed a war crime. The War
Crimes Unit also noted in the memorandum that the applicant had produced police
certificates, fingerprints and copies of his diplomas, that CBSA had determined
that there was no record of the applicant’s having committed a crime based on
his fingerprints, that there was no reason to doubt the police clearance
certificates from Uganda and Rwanda and that the diplomas filed by the
applicant were authentic. The diplomas showed his name to be “Patrick Agaba
Muhenda” and “Muhenda Patrick Agaba”.
[8]
Following this, CIC resumed review of the
applicant’s file and in January 2013 in connection with that review sought an
updated security clearance from CBSA.
[9]
In January of 2014, CBSA provided CIC with an
Inadmissibility Assessment, in which it indicated that the National Security
Screening Division had completed its assessment and concluded that there were
reasonable grounds to believe that the applicant was inadmissible under
paragraph 34(1)(f) of the IRPA for membership in an organisation known
to have engaged in espionage against a democratic government, institution or
process. Portions of the Inadmissibility Assessment have been redacted for
national security reasons under section 87 of the IRPA; however, the non-redacted
portions indicate that the Report was prepared based on information obtained
from CSIS and that CSIS had questioned the applicant about his potential ties
to the Rwandan government, the Rwandan Patriotic Front [the RPF] and the
Rwandan Intelligence Service. The Report also comments at length about the
subversive actions of the Rwandan Intelligence Service taken abroad, including
in Canada.
[10]
I have reviewed the redacted portions of the
Report and the other documents that were redacted under section 87 of the IRPA
in this file and do not believe that the redacted information is relevant to
the issues that arise in this application. Thus, this case may be fairly and
appropriately decided based on the Record before the Court.
[11]
In February 2014, the Officer conducted an
interview with the applicant for purposes of determining his admissibility as a
permanent resident. The applicant was accompanied by counsel during the
interview. Mid-way through the interview, the Officer requested that the
applicant’s counsel leave the room because the Officer felt that counsel was
being disruptive and the Officer believed he was signalling answers to the
applicant. For the remainder of the interview, the applicant was unaccompanied.
[12]
The interview was conducted in English as the
applicant spoke little French. The Officer’s first language is French. Although
the Officer conducted the interview in English, the bulk of her notes from the
interview and her decision were written in French. The applicant has filed an
affidavit from the lawyer who represented him at the interview. In the
affidavit, this lawyer deposes that the Officer’s English was so poor that it
was difficult to understand her questions. This is disputed by the Officer, who
filed a detailed affidavit in which she claims that her questioning of the
applicant was clear and was clearly understood by him. The applicant has also
filed an affidavit, in which he does not claim to have been unable to
understand the Officer, but does note that his lawyer raised concerns about the
Officer’s command of the English language during the interview.
[13]
During the interview, the Officer asked the
applicant if he had been part of the Rwandan army during the time of the
genocide in Rwanda and whether the applicant had acted as a spy on behalf of
the Rwandan government. The Officer’s notes show that the following exchange
occurred at the end of the interview:
20- We have received information
regarding the fact that you were part of the army in Uganda at the time of the
genocide in Rwanda.
Not true; never.
21- We also have received information
about the fact that you are working for the government in Rwanda, acting as a spy for denouncing people who don't support Kagame.
Not true; never.
22- Are you aware that a lot of Rwandese
living in Uganda were or are supporters of Rwandan Patriotic Front, the
political party of President, Paul Kagame, in 1994?
I am aware.
➢
What about your family?
Not supporters.
II.
The Decision
[14]
In her decision dated March 31, 2014, the Officer
denied the applicant’s application for permanent residence, concluding that the
applicant was inadmissible due to having committed a misrepresentation within
the meaning of section 40 of the IRPA, and also because the applicant
had not established that he was not inadmissible for having committed an act
falling within section 35 of the IRPA.
[15]
Section 40 of the IRPA provides in
relevant part (in paragraph 40(1)(a)) that a foreign national is inadmissible
if he or she directly or indirectly misrepresents or withholds a material fact “that induces or could induce an error” in the
administration of the IRPA. Section 35 of the IRPA sets out the
grounds for inadmissibility based on human and international rights violations,
which include the commission of war crimes. These provisions as well as section
34 of the IRPA are reproduced in the Appendix to these Reasons.
[16]
In terms of misrepresentation, the Officer noted
in the decision under review that the applicant had made inconsistent
statements regarding his past activities and whereabouts between 1983 and 2000.
She also found that there was no other evidence of the applicant’s activities
and whereabouts between January and July 1994, other than his claim that he was
in Uganda. The Officer concluded that it was possible that the applicant was
trying to conceal his involvement in the Rwandan genocide during that period. More
specifically, she made the following findings:
•
The applicant was inconsistent with respect to
the date his parents sent him to study in Fort Portal, Uganda, claiming in
various immigration applications or interviews to have left Rwanda in 1983,
1984 or 1986;
•
The applicant had been inconsistent with respect
to his living arrangements while he was attending St-Leo’s College in Uganda,
at one time indicating that he returned to his uncle’s house every weekend and
later stating that he stayed with his uncle on campus and they would only
occasionally return to his uncle’s house during holidays;
•
The applicant lied in his refugee claim and
initial permanent residence application about having completed his high school
and university education between 1987-1997 in Tanzania rather than Uganda;
•
An internet search revealed that the elementary
school the applicant claimed to have attended between 1976 to 1982 in Rwanda, the
Kigarama Public School, may actually be located in Uganda, approximately 22
kilometres from Fort Portal, Uganda as a school of that name was located there.
The Officer found that there was no place in Rwanda called “Kigarama”. When the
Officer pointed this out to the applicant and noted that it was unusual for a
school in Rwanda to have an English name, she says that the applicant merely said
that names of institutions changed frequently in Rwanda as the situation was
unstable at that time. The applicant, however, disputes this, and in his
affidavit says he told the Officer that the school exists in Rusumo Kigarama
district in the former eastern province of Rwanda;
•
The monthly allowance of 7,000 that the
applicant claims to have received as an allowance during his university studies
at Makarere University in Kampala, Uganda between 1990 to 1994 and to have used
to pay for frequent return trips between Kampala and his permanent residence in
Fort Portal, Uganda, a distance of approximately 296 kilometres, represented a
significant sum. The Officer found that this allowance, if received monthly,
was roughly equivalent to the median salary in Uganda at the time. She went on
to speculate that the applicant therefore had significant support from his
family, who were doubtless among the wealthiest in Uganda and therefore likely close
to those in power. In his affidavit, the applicant says he told the Officer
that the allowance was paid to all students at the university quarterly; and
•
The Officer also noted that applicant does not
speak French, which she felt was unusual for a Rwandan who attended elementary school
in Rwanda. She also stated that many high-ranking Tutsi officials with links to
the RPF, including the current President, Paul Kagame, are suspected of having
actively participated in the genocide from their base in Uganda.
[17]
The Officer concluded that the applicant’s
misrepresentations with respect to his whereabouts during the 1980s and 1990s
could have induced an error in the administration of the IRPA, as she
found that his security assessment was conducted on the basis of the
applicant’s representation that he had been living in Tanzania.
[18]
The Officer also noted that there were several
inconsistencies with regard to the applicant’s identity, as follows:
•
The applicant presented a Rwandan passport in
the name of Dick Patrick Muhenda, showing him to have been born in Rwanda in
1972;
•
However, other identity documents submitted to
CIC were under the names Patrick Agaba Muhenda and Muhenda Patrick Agaba (two
university diplomas from the University of Makerere in Uganda which ostensibly
indicate that he received a Bachelor of Science in Botany and Zoology on August
8, 1993 and January 21, 1994, respectively). Also, a certificate from St-Leo’s
College Kyegobe in Fort Portal, Uganda, dated March 1990, lists the applicant’s
name as Patrick Muhenda Agaba. The applicant, however, claimed that “Agaba” was
a nickname;
•
During the interview on February 26, 2014, the Officer
showed the applicant documents found on the internet concerning a person by the
name of Muhenda Patrick Agaba, who appears to be a university graduate who was
recently employed by the National Agricultural Advisory Services in Uganda. The
Officer asked the applicant whether he used the identity documents of this
person and the applicant said he did not know what to respond. The Officer
found that he did not deny using the documents and held that his response could
be interpreted as a tacit acquiescence; and
•
The Officer also pointed to the fact that the
applicant admitted during his interview with her to having used the alias
Gashumba Damascewe to enter the United States. He claimed that Gashumba
Damascewe is a friend who gave his identity documents to the applicant to allow
him to travel to the United States and then to Canada. Subsequently, after the
applicant’s counsel intervened and suggested that his client had not understood
properly, the Officer rephrased her questions and received a different response
from the applicant—he used his own passport to enter the United States. The Officer indicated that the applicant’s counsel became angry and disruptive at
this point and appears to have mimed tearing up the passport to his client. The
applicant then stated that he had arrived in the United States on his own
passport, having obtained an American visa as he was working for a
non-governmental organization, and that he destroyed his own passport in order
to claim refugee status in Canada. (The Officer then asked counsel to leave the
interview.)
[19]
The Officer concluded that she was not satisfied
as to the applicant’s identity and believed that several of the documents he
had submitted did not belong to him. She suggested that the applicant was
attempting to conceal his identity in tandem with his past activities in the
1980s and 1990s. She indicated that she suspected his name actually is Dick
Patrick Muhenda and that his Rwandan passport is legitimate.
[20]
The Officer also found some inconsistencies with
respect to the applicant’s family, as follows:
•
The applicant stated during his interview with
the Officer that his father’s name was Stephen Nzabakirira and that he was born
in 1942 and died during the Rwandan genocide. The applicant further indicated
that his father lived in Kigali and had one house in the Kicukiro district and
another in the Gatsa district. The Officer showed the applicant an article from
the New Times Rwanda indicating that a man by that name had died in October 2008.
That man was purportedly in charge of administering scholarships at St-Leo’s
College Kyegobe (the school that the applicant attended in Uganda), which was
linked to the Ministry of Finance and Economic Planning/Republic of Rwanda. Mr.
Nzabakirira had apparently worked at the college from the mid-1970s to the
mid-1980s, during the time that the applicant was allegedly attending the
school. The applicant suggested that the fact that the man in the article had
the same name as his father was coincidental. The Officer speculated that the
applicant was attempting to conceal the fact that his father was a Rwandan
exile living in Uganda who had strong links to the Rwandan government and
occupied an influential position amongst exiled Rwandan Tutsis living in Uganda;
•
The Officer doubted the applicant’s story with
respect to when he met Christine Mukantaganda, the mother of his son Julius
Nduwayezu, and when he met his current spouse, Illuminée Murekatete;
•
The applicant said that he met Christine
Mukantaganda in 1995 in Uganda and claimed that he only recently learned that
he had a son with her, via his friend Danson Kagire. However, Julius' Facebook
page indicates that he was born in Kigali, Rwanda, not in Uganda; and
•
The applicant says that after their childhood
acquaintance, he met his wife in Kigali, Rwanda in December 2014, while he was
living in Uganda. He stated that he took the bus to Rwanda and met her there.
The Officer noted that the security situation in Rwanda was extremely tense in
December 1993, following the ratification of the Arusha Accords. The Officer
found that it was doubtful that the applicant would travel to Rwanda from
Uganda given the security situation.
[21]
In sum, the Officer indicated that it was not
possible to determine where the applicant lived at which times and under which
identities. Accordingly, the Officer concluded that she was not satisfied as to
his identity, particularly in light of his previous false declaration that he
had studied in Tanzania, and she was consequently unable to determine his
admissibility to Canada.
[22]
The Officer indicated that she was not satisfied
that the applicant had demonstrated he was not inadmissible on grounds of
violating human or international rights, pursuant to section 35 of the IRPA.
The Officer noted that the applicant bears the burden of proving that he is not
inadmissible and speculated that the applicant was a member of a mostly
affluent and educated Rwandan Tutsi diaspora living in Uganda and that he may have taken part in the Rwandan genocide.
III.
Issues
[23]
The applicant submits the following issues arise
in this application for judicial review:
1.
Did the Officer err in law by finding that the
applicant has the burden of proof?
2.
Did the Officer violate natural justice by
failing to confront the applicant with the extrinsic evidence the Officer had
in her possession?
3.
Did the Officer speculate and otherwise act
unreasonably by making references based on generalisations and stereotypes of
Rwandans living in Uganda?
4.
Did the Officer make a perverse determination
without regard for the historical record by stating that Tutsi Rwandan exiles
living in Uganda participated in the 1994 Rwandan Tutsi genocide?
5.
Did the Officer err in law by failing to advise
the applicant of which subsection of section 35 of the IRPA he was supposed
to have transgressed?
6. Did
the conduct of the interview prejudice the outcome?
[24]
In my view, these issues can be summarised and
restated as two, namely:
1.
Did the Officer breach the applicant’s
procedural fairness rights?
2.
Was the Officer’s decision reasonable?
IV.
Did the Officer breach the applicant’s
procedural fairness rights?
[25]
The applicant argues that his procedural
fairness rights were violated principally for three reasons: first, because the
Officer made an inadequate disclosure to him regarding CBSA’s concerns flowing
from his suspected involvement in espionage and his potential ties to the
Rwandan government, the RPF and the Rwandan Intelligence Service; second,
because the Officer’s poor English language skills hampered effective
communication during the interview; and, finally, because the Officer ought not
have asked the former counsel for the applicant to leave mid-way through the
interview.
[26]
I do not believe that the applicant has
established the existence of a procedural fairness violation under any of the
foregoing three claims.
[27]
With respect to the level of disclosure
regarding CBSA’s concerns that was provided to the applicant, the Officer did
not premise her decision on section 34 of the IRPA. Had she done so, I
would agree with the applicant that his procedural fairness rights were
violated as the minimal disclosure made by the Officer at the conclusion of the
interview regarding the applicant’s suspected involvement in espionage and his
potential ties to the Rwandan government, the RPF and the Rwandan Intelligence
Service falls well short of adequately informing the applicant as to the issues
raised in CBSA’s Inadmissibility Assessment. However, because the Officer did
not premise her decision on the issues raised by CBSA under section 34 of the IRPA,
I do not believe that the applicant’s procedural fairness rights were breached.
[28]
As concerns the Officer’s command of the English
language, given the conflicting affidavit evidence before me, I find that the
applicant has not established that the Officer’s English language skills
adversely impacted the fairness of the interview. I agree with the respondent
in this regard that the fact that the applicant does not claim in his affidavit
that he did not understand what was discussed during the interview is
determinative, and, accordingly, conclude that this argument likewise fails.
[29]
Finally, as concerns the request for counsel to
leave the interview, the evidence before me on this point is likewise
conflicting. On one hand, the Officer deposes that the lawyer became disruptive
and was trying to mime answers to his client, which is why she asked him to
leave. The applicant’s former lawyer and the applicant, on the other hand,
depose that the lawyer intervened to point out the frailties in the Officer’s
English, which caused her to become angry and ask counsel to leave the room.
[30]
Under either version of events, I do not believe
that the request for the applicant’s former lawyer to leave the interview
amounted to a denial of the applicant’s procedural fairness rights as the role
of counsel during the interview was merely to act as an observer. In addition,
the ejection of counsel occurred towards the end of the interview, according to
the Officer’s notes. I thus do not believe that the exclusion of counsel from
the interview compromised the fairness of the interview or amounted to a denial
of the applicant’s procedural fairness rights.
[31]
It follows that the first ground raised by the
applicant must be dismissed.
V.
Was the Officer’s decision reasonable?
[32]
Insofar as concerns the merits of the Officer’s
decision, the standard applicable to review of the decision is reasonableness
as what is at issue are essentially factual findings: Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] at paras 51 and 53; Agraira v
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
SCR 559 at para 50; Khoja v Canada (Minister of Citizenship and
Immigration), 2010 FC 142, 362 FTR 118 at para 52; Hameed v Canada
(Minister of Citizenship and Immigration), 2008 FC 271, 324 FTR 109 at para
22.
[33]
The reasonableness standard is a deferential one
and requires that the reviewing Court not intervene if the decision-maker’s
decision is justified, transparent and intelligible and the result reached
falls within the range of acceptable outcomes in light of the facts and
applicable law (Dunsmuir at para 47; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa] at
para 59).
[34]
Insofar as concerns factual determinations,
where such determinations contradict the evidence before the decision-maker,
they are unreasonable as they cannot be justified (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No
1425 at paras 14-17; Rahal v Canada (Minister of Citizenship and
Immigration), 2012 FC 319, [2012] FCJ No 369 [Rahal] at paras
38-39). Likewise, determinations that are purely speculative or for which there
is no support in the evidence before the decision-maker are similarly subject
to being set aside as unreasonable: Khosa at para 45; Canadian Union
of Postal Workers v Healy, 2003 FCA 380, [2003] FCJ No 1517 at para 25; Rahal
at paras 37-38.
[35]
Here, I find that the Officer’s decision is
unreasonable because in one key respect it contradicts the evidence that was
before her and in other respects is purely speculative.
[36]
In this regard, the Officer’s decision primarily
turns on her finding that the applicant had made misrepresentations that
rendered him inadmissible under section 40 of the IRPA. In order to fall
within the section and give rise to an inadmissibility finding, a
misrepresentation must be both material and capable of inducing an error in the
administration of the IRPA. The Officer found that the applicant’s
misrepresentations with respect to his whereabouts during the 1980s and 1990s
could have induced an error in the administration of the IRPA because
his security assessment was conducted on the basis of the applicant’s
representation that he had been living in Tanzania. This finding, however, is
completely at odds with the evidence that was before the Officer as the
applicant revealed that he had lied about being in Tanzania during his first
interview with CSIS in 2002. Therefore, the misrepresentation as to his having
lived in Tanzania was not relevant to the security assessment as it was
corrected well before the assessment was completed. Accordingly, the misrepresentation
initially made by the applicant is not sufficient to found the inadmissibility
determination since the misrepresentation did not and could not lead to an
error in the administration of the IRPA. It follows that the Officer’s
conclusion to the opposite effect is unreasonable as it is unsupported by the
evidence.
[37]
In addition, the Officer’s conclusions regarding
the likely involvement of the applicant and his family with the RPF are based
on pure speculation, centred on nothing more than presumptions about Rwandans
of Tutsi ethnicity of apparent means that were part of the diaspora in Uganda. These speculations, moreover, are contradicted by the security assessments
conducted by CBSA’s War Crimes Unit, who found there to be insufficient
evidence to conclude that the applicant had been involved in the genocide
(which, in any event, as the applicant correctly notes, primarily involved the
slaughter of Tutsis by the Hutu). In addition, the conclusion that the
applicant’s family possessed means based merely on the amount of the allowance
he received is purely speculative.
[38]
The Officer also unreasonably drew conclusions
based on materials she found on the internet. In my view, it is improper
speculation to conclude that the applicant had lied about the school he
attended in Rwanda merely because another school of a similar name also exists
in Uganda. Likewise, the fact that the Bursar at St-Leo’s College in Kyegobe,
Uganda might have had the same name as the applicant’s father does not mean
that the applicant had lied about his parentage (especially when his parentage
was corroborated by his passport and a birth certificate he filed with CIC). In
a similar vein, the fact that the internet indicated that another individual
named Patrick Agaba Muhenda exists does not mean that the applicant’s diplomas
are necessarily false, especially in light of the fact that CBSA had confirmed
their authenticity. In addition, the Officer unreasonably discounted the applicant’s
explanation that “Agaba” was a nickname.
[39]
I also find that the Officer’s treatment of the
applicant’s version of his meetings with Christine Mukantaganda and Illuminée
Murekatete to be unreasonable. The fact that Ms. Mukantaganda’s son was born in
Rwanda is not inconsistent with his parents having met in Uganda and the mere
fact that times were troubled after the signature of the Arusha Accords does
not make it impossible for the applicant to have travelled by bus to Rwanda and
to have met Ms. Murekatete as he claims.
[40]
Given the lack of evidence for the Officer’s key
finding under section 40 of the IRPA and the multiple instances of
improper speculation that I have found contained within the decision, it
follows that the decision must be set aside as being unreasonable.
[41]
Neither party suggested a question for
certification under section 74 of the IRPA and none arises in this case.
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