Date:
20080305
Docket: A-211-07
Citation: 2008 FCA 84
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
NADON
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
appellant
and
BAGAMBAKE EUGENE MUNDERERE,
JUDITH RANGO,
CYNTHIA MUNDERERE MEREKATETE,
EUNICE MUNDERERE INGABIRE,
SARAH MUNDERERE MUGENI
respondents
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an
appeal from a judgment of Mr. Justice Beaudry of the Federal Court, 2007 FCA
332, dated March 28, 2007, who allowed the respondents’ judicial review
application of a decision of the Immigration and Refugee Board – Refugee
Protection Division (Board), which had dismissed their refugee claim.
[2]
The appeal
comes to us by way of the following question certified by Beaudry J.:
Considering section 53
of the United Nations Handbook on Procedures and Criteria for Determining
Refugee Status, and in particular the last sentence of that paragraph,
"This will necessarily depend on all the circumstances, including the
particular geographical, historical and ethnological context", is it an
error in law to limit the analysis of the cumulative grounds to the events that
occurred within one country of nationality or habitual residence, when the
claimant alleges persecution on the basis of the same Convention ground in the
two (or more) countries, and where the claimant's subject fear is related to
events that occurred in more than one country?
THE BOARD’S DECISION
[3]
On
November 23, 2005, Mr. Munderere, his wife, Mrs. Judith Rango, and their three
children, the respondents in this appeal, made a claim for refugee protection
in Canada pursuant to sections 96 and 97(1) of the Immigration and Refugee
Protection Act, S.C. 2001 c. 27 (Act). In making their claim, they alleged
that by reason of their Tutsi ethnicity, they would be at risk of persecution
in both the Democratic Republic of Congo (DRC) and in Rwanda, countries of which they are citizens.
[4]
Mr.
Munderere and his wife were born in the DRC of Tutsi parents who had emigrated
from Rwanda. Their three children, Cynthia
Munderere Murekatete, Eunice Munderere Ingabire and Sarah Munderere Mugeni were
born in Rwanda.
[5]
Before
reaching its ultimate conclusion, the Board considered the respondents’ refugee
claim in respect of both of their countries of nationality. With respect to the
DRC, where the respondents lived for most of their lives, the Board concluded
that should they return to that country, they would face a reasonable
possibility of persecution because of their Tutsi ethnicity and their Rwandan
nationality. In concluding as it did, the Board found that there was a military
conflict in the eastern part of the DRC opposing the Congolese armed forces and
various armed inter-ethnic groups, in the course of which Congolese Tutsis had
been targeted. The Board also found that in Kinshasa, capital of the DRC, Tutsis had been
targeted either by the general population or by the authorities.
[6]
With
respect to Rwanda, the Board concluded that the
respondents did not have a valid claim for refugee protection. In its view, although
there was insecurity in the country due to the after effects of the 1994
genocide, that insecurity was faced by the entire population of Rwanda. The Board was also of the
view that the respondents’ claim that they would be forcibly returned to the DRC
by the President of Rwanda was speculative only and, in any event, not
supported by the documentary evidence. The Board further concluded that a
grenade attack near Mr. Munderere’s house on September 9, 2004, was an isolated
and gratuitous act which was not directed at him or his family in particular.
Finally, the Board dismissed the respondents’ submission that the cumulative
impact of incidents which occurred in both the DRC and Rwanda gave rise to a
well-founded fear of persecution in Rwanda.
[7]
As a result
of its finding that the respondents did not have a well-founded fear of
persecution should they return to Rwanda,
the Board dismissed their refugee claim.
THE DECISION OF THE FEDERAL COURT
[8]
Beaudry J.
allowed the application for judicial review on three grounds.
[9]
First, he
concluded that the Board had made a patently unreasonable finding when it found
that the September 2004 grenade incident was an isolated and gratuitous act. In
light of the 2005 Amnesty International Report, Democratic Republic of Congo,
North-Kivu: Civilians pay the price for political and military rivalry
(2005 Amnesty International Report), which indicated that in Gisenyi, the
Rwandan continuation of the Congolese town of Goma in North Kivu, where the
attack had occurred, there was confrontation between diverse ethnic armed
groups and targeted attacks on civilians. Beaudry J. concluded that the Board
had clearly overlooked this important piece of evidence and that, as a result,
its finding regarding the grenade attack was pure conjecture.
[10]
Second,
the Judge held that the Board had made a patently unreasonable finding in
concluding that there was no objective evidence to support the respondents’
fear of being ordered by the President of Rwanda to return to the DRC. For this
conclusion, Beaudry J. again relied on the 2005 Amnesty International Report
which, in his view, gave support to the respondents’ fear that they would be
forcibly returned to the DRC. More particularly, the Judge saw evidence in the
2005 Amnesty International Report that the President of Rwanda would attempt to
return Congolese Tutsis to the DRC in order to change the outcome of elections
in that country so as to bring North
Kivu under
Rwandan control. In Beaudry J.’s view, the Board could not have concluded as it
did on this point, had it considered the 2005 Amnesty International Report.
[11]
Third,
although he acknowledged that in normal circumstances the Board did not have an
obligation to consider the cumulative effect of fear of persecution arising
from incidents occurring in two different countries, Beaudry J., relying in
part on section 53 of the United Nations High Commission for Refugees
Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR
Handbook), concluded that in the exceptional circumstances of this case, the
Board ought to have considered the cumulative impact of events of persecution
which had occurred in both countries. At paragraph 34 of his Reasons, he stated
his view in the following terms:
[34] It
is in light of this exceptional triangular convergence of circumstances:
geographical, historical and ethnological that the Court is of the opinion that
the Tribunal should have taken into consideration the cumulative impact of
years of persecution that have followed the Banyamulenges, such as the
applicants from Goma to Gisenyi and back to Goma to give rise to a well founded
fear of persecution, even though politically, these events span the frontiers
of two separate countries.
SUBMISSIONS OF THE PARTIES
[12]
The
appellant submits that Beaudry J. erred in law when he overturned the Board’s
factual determinations with respect to the grenade attack in Rwanda and the possibility that the
respondents might be returned to the DRC by the President of Rwanda. Although
Beaudry J. determined that the standard of review applicable to the Board’s
factual determinations was patent unreasonableness, the appellant submits that
he did not in fact apply this standard of review and substituted his
appreciation of the evidence to that of the Board. As a result, the appellant
submits that this Court owes no deference to Beaudry J.’s findings.
[13]
The
appellant submits that the Board’s conclusions concerning the grenade incident
and the possibility of the respondents being returned to the DRC were not made
without regard to the evidence, in particular with respect to the 2005 Amnesty
International Report, and that the Board’s conclusions do not conflict with the
information contained in the report.
[14]
With
respect to the grenade incident, the appellant argues that the respondents had
the burden of establishing, on a balance of probabilities, that the incident
was linked to a Convention ground. Since there was no proof that the attack was
motivated by reason of Mr. Munderere’s ethnicity, it follows that it would have
been speculation on the part of the Board to conclude that the grenade incident
was linked to a Convention ground. In particular, the appellant relies on
paragraph 20 of Beaudry J.’s decision, where he states that “[t]here were other
reasonable inferences which could be drawn from the documentary evidence”, for
the proposition that the Board’s conclusion was reasonable.
[15]
With
respect to the possibility of the respondents being returned to the DRC by the
President of Rwanda, the appellant submits that the 2005 Amnesty International
Report does not, in any way, support the view that those Tutsis who had
relocated to the DRC had been forced to do so. The appellant says that the bulk
of the evidence supports the view that Rwanda did not force its citizens to return to
the DRC.
[16]
Finally,
the appellant argues that the Judge erred in concluding that the Board was
required to consider the cumulative effect of incidents that occurred both in
the DRC and in Rwanda when considering the respondents’ claim for refugee protection
with respect to Rwanda. First, the appellant says
that the Judge could not require the Board to conduct a cumulative effect
analysis, since the only incident that the respondents claimed to have
experienced in Rwanda was not linked to a
Convention ground. The appellant further submits that Beaudry J.’s conclusion
is not supported by the UNHCR Handbook and is contrary to the general
legal principles governing the interpretation and application of the definition
of Convention refugee. More particularly, the appellant argues that the
objective component of the test requires an examination of the conditions of
the country in regard to which the claim is assessed and a determination that
the authorities of the country in question are either unwilling or unable to
provide protection before a claimant can be found to have a well-founded fear
of persecution. Thus, the appellant submits that the certified question should
be answered in the negative.
[17]
The
respondents, on the other hand, argue that Beaudry J. applied the correct
standard of review and that, as a result, his findings regarding the grenade
attack in Rwanda and the possibility of the
respondents being forcibly returned to the DRC cannot be overturned unless the
Judge made a palpable and overriding error. The respondents further say that
even on a standard of correctness, the Judge’s findings are unassailable.
[18]
The
respondents submit that the Judge was bound to intervene in the present matter
since the Board failed to consider relevant evidence. With respect to the
grenade attack, the respondents submit that the Judge made two findings: that
the Board’s conclusion was pure conjecture and that it overlooked relevant
evidence that would have supported findings inconsistent with its conclusion.
[19]
With respect
to the question of whether there was a possibility that the respondents would
be returned to the DRC by the President of Rwanda, the respondents make no
specific submissions, other than to say that the 2005 Amnesty International
Report supports the Judge’s conclusion.
[20]
Turning to
the certified question, the respondents say that the answer thereto does not
dispose of the appeal, since the question of whether events that occurred in
another country must be considered depends entirely on the facts of the case.
They say that the question is one of mixed fact and law and that, as a result,
deference is owed to the Judge’s conclusion. They submit that the Judge was
correct in his view that the exceptional circumstances of this case required
the Board to undertake the cumulative grounds analysis. Thus, the respondents
submit that to determine whether a claimant has a well-founded fear of
persecution, the Board is obliged to consider the cumulative nature of all
previous incidents experienced by the claimant, combined with other adverse
factors such as generalized instability. In the respondents’ view, the Judge
correctly applied the law to the facts of this case.
[21]
The
respondents make one additional point. They say that, in any event, the Board
erred in not considering the cumulative effect of all the events that had
occurred in Rwanda, namely, the 1994 genocide, the 1996-97 period during which
Mr. Munderere experienced the return of Hutu militias and the resumption of
violence against Tutsis, including the death of his father, the generalized
instability in Rwanda and the 2004 grenade attack.
THE ISSUES
[22]
Two issues
arise in this appeal:
1.
Did the
Judge err in law in intervening with respect to the Board’s factual
determinations regarding the September 2004 grenade incident and the
respondents’ alleged fear of being forced to return to DRC by the President of
Rwanda?
2.
Did the
Judge err in law in requiring the Board to consider the cumulative effect of
incidents that occurred both in DRC and Rwanda, when examining the respondents’ claim
for refugee protection with respect to Rwanda?
ANALYSIS
A. The Board’s Factual
Determinations:
[23]
The
question of whether Beaudry J. identified the proper standard of review
applicable to the Board’s factual determinations is not at issue. However, the
appellant submits that the Judge failed to apply the standard of review of
patent unreasonableness and substituted his own assessment of the evidence to
that of the Board. I will address this question with respect to the factual
determinations of the grenade attack and the respondents’ alleged fear of being
ordered to return to DRC by the President of Rwanda independently.
(i) The grenade
incident:
[24]
With
respect to the grenade incident of September 2004, I am of the opinion that the
Judge erred in law in intervening with respect to the Board’s factual
determination. In my view, it is clear that the Board considered all relevant
evidence. The Board’s determination must not be read in isolation, but in the
context of the decision as a whole. Indeed, before concluding that the grenade
incident was an isolated and gratuitous event, the Board considered the
following evidence:
·
the
applicant's testimony that he did not know the persons who threw the grenade in
September 2004 and that he went to the police, who could not help him because
he could not identify his aggressors;
·
the fact
that the applicant and his wife continued to live and work at the same place in
Gisenyi for more than a year until their departure in November 2005, and that
during that time, they suffered no threats nor harassment;
·
the fact
that although all members of the family had passports and American visas by
December 2004 or January 2005, they only left Rwanda in November 2005;
·
the fact
that the main applicant testified that he was waiting for his daughter Cynthia
to finish school before leaving;
·
the fact
that the 2005 Amnesty International Report revealed that there was prevailing
instability in Gisenyi, where armed groups of various ethnicities continuously
confront each other with the help of Uganda, Rwanda and the DRC.
[25]
After
stating that there was “insecurity” in Rwanda, but that it was “the lot of all those who live there and are generally exposed to it,” the Board made the following
remarks at page 6 of its decision:
In view of the general instability in
Gisenyi because of the proximity of the border to Goma in the province of North
Kivu in the DRC where armed groups of various ethnicities are fighting each
other with the help of Uganda, Rwanda and the DRC, the panel concludes that the
claimant was the victim of an isolated incident and that neither he nor his
family was specifically targeted. The panel is of the view that the claimant
was in the wrong place at the wrong time, especially as he is not politically
active, is not suspected of having committed violent acts against anyone and
was not a witness before the Gagaca courts that tried cases of genocide, which
might have explained the attack on him in September, 2004.
The panel is therefore of the opinion that the
claimant was the victim of a gratuitous act by one or more individuals who were
not targeting him in particular.
[26]
It is also
clear from the Board’s decision that in concluding as it did, it gave weight to
the fact that the respondents did not leave Rwanda until November 2005, i.e. 14
months after the grenade attack and that during that period of time, “the claimant and his family received no threat, by telephone or
other means, from anyone at all and were not harassed by the authorities.” (page 6 of the Board’s decision).
[27]
It seems
clear from the Judge’s reasons that he concluded that the Board’s finding with
respect to the grenade attack was patently unreasonable because he did not
agree with the Board’s assessment of the 2005 Amnesty International Report. In
my view, Beaudry J. substituted his own appreciation of the evidence to that of
the Board. It is striking that at paragraph 20 of his Reasons, the Judge states
that “(t)here was other reasonable inferences which could be drawn from the
documentary evidence…”. Implicit in that statement is the Judge’s view that the
Board’s inference was reasonable. In my view, in the light of the evidence
before it, the Board’s finding that the grenade attack was an isolated and
gratuitous event and that the respondents had not been particularly targeted
cannot be characterized as patently unreasonable. Consequently, there was no
basis to justify the Judge’s intervention.
(ii) The respondents’
fear of being ordered to return to the DRC:
[28]
I am
satisfied that the Board did consider the relevant documentary evidence on this
point. At page 5 of its decision, the Board stated:
On the first point, namely the claim that President Paul Kagame of
Rwanda might send Congolese Tutsis back to the DRC, the panel is of the opinion
that this is pure conjecture unsupported by the documentary evidence and can
draw no conclusion from it, as it is not based on any relevant facts or
evidence.
[29]
I have
carefully reviewed the 2005 Amnesty International Report and, contrary to the
Judge’s view, I can find nothing in that report which supports the respondents’
assertion that there was a possibility that the President of Rwanda would
forcibly return thousands of Congolese Tutsis to the DRC so as to influence the
outcome of the elections in North
Kivu. The following
passages of the 2005 Amnesty International Report are relevant:
B. North-Kivu’s Banyarwanda
communities
. . . The influx had a
profoundly destabilizing effect on the region: much of the Hunde population was
displaced and almost all the Tutsi population was forced to flee to Rwanda by violence perpetrated by
elements among the Rwandan Hutu refugee and the Congolese Hutu populations. Many
Tutsi were later encouraged to return to DRC in the course of RCD-Goma rule in
the Kivus.
. . .
The
controversial role of Governor Serufuli
Appointed as Governor of the
province by Rwanda in 2000, Serufuli has been
central to the emergence of a politico-military organization, presenting itself
as a development NGO, (TPD) All for Peace and Development, which reportedly has
powerful sponsors among the Congolese Banyarwanda and Rwandan Tutsi elites.
Initially established to promote the repatriation of Hutu refugees to Rwanda, the
TPD has also allegedly been active in the clandestine repatriation to
North-Kivu of Congolese Tutsi refugees in Rwanda, in arming a largely Hutu militia in
North-Kivu, the Local Defence Forces (LDF), and more recently, in distributing
arms Banyarwanda civilians in North-Kivu.
B. Inflaming ethnic fears
. . .
In this optic, they suspect the
Banyarwanda community of hosting many "interlopers" who came from Rwanda since 1960. They fear, too, that the
elections results will be distorted by Rwandan nationals crossing the
notoriously permeable border to register to vote illegally and later to take
part in the elections.
. . .
The expected return of thousands of Banyarwanda refugees from Rwanda to
North-Kivu, could pose serious security risks during the registration and
polling stage of the process.
[Emphasis
added]
[30]
The 2005
Amnesty International Report supports the view that a number of Congolese
Tutsis have returned to the DRC, but there is no indication whatsoever that the
President of Rwanda has forced anyone to return to the DRC. During the hearing
of this appeal, we asked counsel for the respondents to direct us to those
passages of the 2005 Amnesty International Report which supported their view
that they might possibly be forcibly returned to the DRC by the President of
Rwanda, but he was unable to do so.
[31]
In my
view, the Judge substituted his appreciation of the 2005 Amnesty International
Report to that of the Board and, as a result, failed to show proper deference.
I therefore conclude on this point that the Board’s findings were not patently
unreasonable and that the Judge ought not to have intervened.
B. Cumulative Effect of
Incidents:
[32]
The
question of whether the Board was required to consider the cumulative effect of
incidents that occurred both in the DRC and in Rwanda is a question of law, to be determined
on a standard of correctness. In my view, the Judge erred in concluding as he
did. His conclusion is inconsistent with the general legal principles governing
the interpretation and application of the definition of the term “Convention
refugee”.
[33]
The
relevant provisions contained in the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 read as follows:
|
Convention refugee
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.
Person in need of protection
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.
Person in need of protection
(2)
A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
[Emphasis added]
|
Définition de « réfugié »
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.
Personne à protéger
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.
[Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
[Non souligné dans
l’original)
|
[34]
The
rationale underlying the international refugee protection regime was explained
by the Supreme Court of Canada in Canada (A.G.) v. Ward, [1993] 2 S.C.R.
689, at page 709, as follows:
At the outset, it is useful to
explore the rationale underlying the international refugee protection regime,
for this permeates the interpretation of the various terms requiring
examination. International refugee law was formulated to serve as a back-up
to the protection one expects from the state of which an individual is a
national. It was meant to come into play only in situations when that
protection is unavailable, and then only in certain situations. The
international community intended that persecuted individuals be required to
approach their home state for protection before the responsibility of other states
becomes engaged. For this reason, James Hathaway refers to the refugee scheme
as "surrogate or substitute protection", activated only upon failure
of national protection; see The Law of Refugee Status (1991), at p. 135. With
this in mind, I shall now turn to the particular elements of the definition of
"Convention refugee" that we are called upon to interpret.
[Emphasis added]
[35]
Although
the question before us was not before the Supreme Court in Ward, above,
the following passages, found at pages 712, 725, 726 and 751 to 754 of that
decision, are relevant for present purposes:
p. 712:
...The test
[of a well-founded fear of persecution] is in part objective; if a state is
able to protect the claimant, then his or her fear is not, objectively speaking,
well-founded. Beyond this point, I see nothing in the text that requires
the state to be complicit in, or be the source of, the persecution in question.
...
p. 725:
...
Absent some evidence, the [refugee] claim should fail, as nations should be
presumed capable of protecting their citizens. Security of nationals is,
after all, the essence of sovereignty. Absent a situation of complete breakdown
of state apparatus, such as that recognized in Lebanon in Zalzali,
it should be assumed that the state is capable of protecting a claimant.
…
p. 726:
Although this
presumption increases the burden on the claimant, it does not render illusory Canada’s provision
of a haven for refugees. The presumption serves to reinforce the underlying
rationale of international protection as a surrogate, coming into play where no
alternative remains to the claimant. Refugee claims were never meant to allow a
claimant to seek out better protection than that from which he or she benefits
already. [Minister of Employment and Immigration v. Satiacum (1989), 99
N.R. 171 at page 176].
…
p. 751-52:
In
considering the claim of a refugee who enjoys nationality in more than one
country, the Board must investigate whether the claimant is unable or unwilling
to avail him- or herself of the protection of each and every country of
nationality. Although never incorporated into the Immigration Act and
thus not strictly binding, paragraph 2 of Art. 1(A)(2) of the 1951 Convention
infuses suitable content into the meaning of "Convention refugee" on
the point. This paragraph of the Convention provides:
Article 1
A... .
(2) …
In the case of a person
who has more than one nationality, the term "the country of his
nationality" shall mean each of the countries of which he is a national,
and a person shall not be deemed to be lacking the protection of the country of
his nationality if, without any valid reason based on a well-founded fear, he
has not availed himself of the protection of one of the countries of which he
is a national.
As described
above, the rationale underlying international refugee protection is to serve as
"surrogate" shelter coming into play only upon failure of national
support. When available, home state protection is a claimant's sole option.
The fact that this Convention provision was not specifically copied into the
Act does not render it irrelevant. The assessment of Convention refugee
status most consistent with this theme requires consideration of the
availability of protection in all countries of citizenship.
…
p. 753:
…
The exercise of assessing the claimant's fear in each country of citizenship at
the stage of determination of "Convention refugee" status, before
conferring these rights on the claimant, accords with the principles underlying
international refugee protection. Otherwise, the claimant would benefit from
rights granted by a foreign state while home state protection had still been
available. …
…
p. 754:
As explained
above, the well-foundedness of a claimant's fear of persecution can be grounded
in the concept of "inability to protect", assessed with respect to
each and every country of nationality. …
[Emphasis
added]
[36]
Thus, in
order to succeed on his or her refugee claim, a claimant must not only have a
subjective fear of persecution, but also demonstrate that his fear is
objectively well-founded. A country’s inability to protect a claimant is a
fundamental element in the determination of whether his refugee claim is
objectively well-founded. If the state is able to protect a claimant, then the fear
of persecution is not objectively well founded (see Ward, above, pages
711-12).
[37]
The
presumption that a state can protect its citizens reinforces the principle of
international refugee protection that will be given when a claimant has no
other alternative (see Ward, pages 725-26).
[38]
When a
claimant enjoys nationality in more than one country, he must demonstrate that
he is unable or unwilling to avail himself of the protection of each country of
which he is a national (see Ward, pages 751).
[39]
Hence, the
purpose of the refugee protection system is to protect a person who has a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion in regard to a
given country and who is unable or unwilling to avail himself or herself of the
protection of that country. Consequently, paragraph 53 of the UNHCR Handbook,
which speaks to the issue of the cumulative effect of past incidents and on
which the learned Judge relied, must therefore be read in that context.
Paragraph 53 reads as follows:
In addition, an
applicant may have been subjected to various measures not in themselves
amounting to persecution (e.g. discrimination in different forms), in some
cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various elements
involved may, if taken together, produce an effect on the mind of the applicant
that can reasonably justify a claim to well-founded fear of persecution on
"cumulative grounds." Needless to say, it is not possible to lay
down a general rule as to what cumulative reasons can give rise to a valid
claim to refugee status. This will necessarily depend on all the circumstances,
including the particular geographical, historical and ethnological context.
[Emphasis
added]
[40]
The issue
discussed in paragraph 53 of the UNHCR Handbook was addressed by this Court in Retnem
v. Canada (M.E.I) (1991), 132 N.R. 53 (F.C.A.). At page 55 of his Reasons
for the Court, MacGuigan J.A. stated:
In other words, he [the
claimant] made an argument that the cumulative acts of harassment by the
authorities amounted to persecution in the sense of the Refugee Convention. This is an
argument which found favour with this Court in Mirzabeglui v. M.E.I.,
no. A-538-89, decided January 28, 1991. I would also refer to the reasons for
decision of Thurlow C.J. in Oyarzo v. M.E.I., [1982] 2 F.C. 779 at 781:
[S]ince it is
the foundation for a present fear that must be considered, such incidents in
the past are part of the whole future and cannot be discorded entirely as a
basis for fear, even though what has happened since has left them in the
background.
Hence even though the
claimant did not flee the country for some years after his two-week detention
and torture in 1984, that incident is still current as a basis for fear when
linked with all of the smaller previous and subsequent harassment he endured.
In my opinion the Board's failure to deal with the cumulative nature of the
persecution the claimant alleged is a patent error of law.
[Emphasis
added]
[41]
More
recently, in Mete v. Canada (Minister of Citizenship and
Immigration),
2005 FC 840, 46 Imm. L.R. (3d) 232 (F.C.), Madam Justice Dawson dealt with a
claimant’s argument that the Board had erred in failing to take into account,
in the determination of his refugee claim, the cumulative nature of various
acts of harassment and attacks that had been directed against him. In answering
the question before her, she enunciated at page 233 of her Reasons the
following principles, which I accept:
[4] The following
three legal principles are not controversial. First, in Rajudeen v. Canada
(Minister of Employment and Immigration) (1984), 55 N.R. 129, the Federal
Court of Appeal defined persecution in terms of: to harass or afflict with
repeated acts of cruelty or annoyance; to afflict persistently; to afflict or
punish because of particular opinions or adherence to a particular creed or
mode of worship; a particular course or period of systematic infliction of
punishment directed against those holding a particular belief; and persistent
injury or annoyance from any source.
[5] Second, in
cases where the evidence establishes a series of actions characterized to be
discriminatory, and not persecutory, there is a requirement to consider the
cumulative nature of that conduct. This requirement reflects the fact that
prior incidents are capable of forming the foundation of present fear. See: Retnem
v. Canada (Minister of
Employment and Immigration) (1991), 132 N.R. 53 (F.C.A.). This is also
expressed in the UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status ("Handbook on RefugeeStatus") in the following terms,
at paragraph 53: [Citation omitted]
[6] Third,
it is an error of law for the RPD not to consider the cumulative nature of the
conduct directed against a claimant. See: Bobrik v. Canada (Minister of
Citizenship and Immigration) (1994), 85 F.T.R. 13 (T.D.) at paragraph 22,
and the authorities there reviewed by my colleague Madam Justice
Tremblay-Lamer.
[42]
These
authorities make clear that the Board is duty bound to consider all of the
events which may have an impact on a claimant’s claim that he or she has a well
founded fear of persecution, including those events which, if taken
individually, do not amount to persecution, but if taken together, may justify
a claim to a well founded fear of persecution. However, they do not provide an
answer to the question before us, i.e. whether the Board had a duty to consider
incidents or events which took place in a country other than the one in regard
to which the claimant seeks refugee status.
[43]
The fact
that a refugee claimant must demonstrate that he is unable or unwilling to
avail himself of the protection of each country of which he is a national
explains, in my view, why the case law pertaining to the cumulative effect of
incidents doctrine has not addressed the issue before us. In all of the cases,
the question at issue concerned incidents which had occurred in the same country,
i.e. the country in regard to which the claimant was seeking refugee status
(see Retnem, above; Oyarzo v. Canada (M.E.I.), [1982] 2 F.C. 779
(F.C.A.) (QL); Madelat v. Canada (M.E.I.), [1991] F.C.J. No. 49 (F.C.A.)
(QL); Bursuc v. Canada (M.C.I.), 2002 FCT 957 (F.C.T.D.), 223 F.T.R.
155; Toli v. Canada (M.C.I.), 2002 FCT 334 (F.C.T.D.); Canagasurim v.
Canada (M.C.I.) (1999), 175 F.T.R. 285).
[44]
I cannot
accept the respondents’ submission that the Judge correctly applied the law
regarding the cumulative grounds of persecution principle and that he did not
adopt an approach that was inconsistent with the general legal principles of
refugee law. In my view, there can be no other answer but that the Judge erred
in so concluding.
[45]
The plain
fact is that whether a claimant relies on a single or a number of events taken
together, he still has the obligation to satisfy the Board that, at the time of
the hearing, he has a well founded fear of persecution in regard to the country
from which he seeks protection. He has to show that by reason of a Convention
ground, he is unable or unwilling to avail himself of the protection of that
country. Thus, in the present matter, are the respondents unable or unwilling
to avail themselves of the protection of Rwanda or, to put it in a different way, is Rwanda able to protect the
respondents should they return?
[46]
The Board
found that by reason of the events which occurred in the DRC, the respondents
had a well founded fear of persecution should they be forced to return to that
country. However, I have difficulty with the proposition that such events can
serve to ground a well founded fear of persecution in regard to Rwanda since,
in my view, the events which occurred in the DRC cannot serve to determine
whether Rwanda is unable to protect the respondents. The only issue, insofar as
the respondents’ claim is directed at Rwanda,
is whether or not that country can protect them should they return.
Consequently, I see no basis whatsoever for the conclusion that the events
which occurred in the DRC ought to have been considered by the Board in regard
to the respondents’ claim of a well founded fear of persecution should they
return to Rwanda.
[47]
The fact
that cumulative reasons based on a “particular geographical, historical and
ethnological context” (paragraph 53 of the UNHCR Handbook) can give rise to a
valid claim to refugee status does not alter the fact that each claim must be
determined in respect of a given country. As the Supreme Court stated in Ward,
supra, at pages 751-52:
In
considering the claim of a refugee who enjoys nationality in more than one
country, the Board must investigate whether the claimant is unable or
unwilling to avail him- or herself of the protection of each and every country
of nationality. Although never incorporated into the Immigration Act and
thus not strictly binding, paragraph 2 of Art. 1(A)(2) of the 1951 Convention
infuses suitable content into the meaning of "Convention refugee" on
the point. This paragraph of the Convention provides:
…
As described above, the
rationale underlying international refugee protection is to serve as
"surrogate" shelter coming into play only upon failure of national
support. When available, home state protection is a claimant's sole option. The
fact that this Convention provision was not specifically copied into the Act
does not render it irrelevant. The assessment of Convention refugee status most
consistent with this theme requires consideration of the availability of
protection in all countries of citizenship.
[Emphasis
added]
[48]
Therefore,
I agree with the appellant that it would be contrary to the whole system of
refugee protection to consider events that occurred in the DRC to determine
whether the respondents can find protection in Rwanda. Further, there is nothing in paragraph
53 of the UNHCR Handbook which could justify an expansion of the cumulative
effect of incidents doctrine to events that occurred in two different
countries.
[49]
For these
reasons, I believe that the certified question should be given a negative
answer, with the following caveat. As a matter of principle, events which occur
in a country other than that in respect of which a claimant seeks refugee
status should not be considered. However, there may be exceptional cases in
which such events would be relevant to the determination of the threshold
question, to wit whether the country where the claimant seeks refugee status
can protect him or her from persecution. I do not want to rule out such a
possibility. This case, however, is not one of those cases. In the present
matter, it is clear that the events which occurred in the DRC and which led the
Board to conclude that the respondents have a well-founded fear of persecution
in regard to that country have no bearing on Rwanda’s ability to protect them.
[50]
One final
matter. The respondents submit that irrespective of the issue giving rise to
the certified question, the Board failed to conduct a cumulative grounds
analysis of all the events and incidents that occurred in Rwanda. More particularly, they say
at paragraphs 87 to 90 of their Memorandum of Fact and Law:
[87] As
argued before the Court below, the tribunal erred in failing to take all of the
past incidents that occurred in Rwanda into
consideration, and failing to consider the cumulative impact of all of these
events on the Respondents’ fear of persecution.
[88] The
RPD accepted the following facts as proven: that Rwanda was ravaged by
genocidal violence that targeted Tutsis in 1994; that a situation of
generalized instability and insecurity continues to reign in Rwanda; and that
the male principal Applicant was subject to a grenade attack in Rwanda in 2004.
[89]
However, the principal male Applicant also described in his PIF the incidents
that he witnessed and the events that he survived during his stay in Rwanda in
1996 and 1997 and the fact that his father was violently killed during this
period when Hutu militias were returning to Rwanda and resuming
their attacks on the Tutsi civilians.
[90] The
Applications Judge did not address this issue, as it was superseded by his
broader finding that the events that occurred in both the DRC and in Rwanda had to be
considered cumulatively. However, it remains that the RPD erred in failing to
consider the cumulative impact of the past events that had occurred in Rwanda, whether or
not it was obliged to consider the DRC events.
[51]
Although
it is correct that neither the Board nor the Judge squarely addressed this
issue, I am satisfied that the Board’s silence does not constitute a reviewable
error, given that the respondents cannot show that the grenade incident was
linked to a Convention ground, that the other incidents referred to by the
respondents occurred some seven to eight years prior to the grenade incident
and the fact that the Board was fully aware and indeed pointed out that there
was a prevailing insecurity in Rwanda.
DISPOSITION
[52]
For these
reasons, I would allow the appeal with costs, set aside the judgment of the
Federal Court and I would dismiss the respondents’ application for judicial
review. Finally, I would answer the certified question as follows:
Certified
question: Considering section 53 of the United Nations Handbook on
Procedures and Criteria for Determining Refugee Status, and in particular the
last sentence of that paragraph, "This will necessarily depend on all the
circumstances, including the particular geographical, historical and
ethnological context", is it an error in law to limit the analysis of the
cumulative grounds to the events that occurred within one country of
nationality or habitual residence, when the claimant alleges persecution on the
basis of the same Convention ground in the two (or more) countries, and where
the claimant's subject fear is related to events that occurred in more than one
country?
Answer: NO,
except where the events which occur in a country other than that in respect of
which a claimant seeks refugee status are relevant to the determination of
whether the country where a claimant seeks refugee status can protect him or
her from persecution.
“M.
Nadon”
“I
agree.
Robert
Décary J.A.”
“I
agree.
Gilles
Létourneau J.A.”
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