Docket: IMM-1811-17
Citation:
2017 FC 1014
[ENGLISH TRANSLATION]
Montréal, Quebec, November 8, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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SERAPHINE
KANZIGA
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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
I.
Nature of the matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c. 27 [IRPA] of a decision by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board, delivered on March 27, 2017. In that decision, the RPD
concluded that the applicant was neither a Convention refugee nor a person in
need of protection under section 96 and subsection 97(1) of the IRPA. The
refugee claim was therefore denied.
II.
Facts
[2]
The applicant, 66 years old, is a citizen of
Rwanda.
[3]
The applicant allegedly lost her spouse and one
of her sons in the Rwandan genocide in 1994. She then apparently found
refuge in Zaire (now the Democratic Republic of the Congo) with her three
daughters before returning to Rwanda in 2002. When she returned to Rwanda, the
applicant apparently took her niece and nephew into her family.
[4]
The applicant alleged that she is a teacher who
was on the electoral committee responsible for the referendum on December 17
and 18, 2015. According to her, the applicant was recruited for the committee
in question for the 2017 elections to help President Kagamé win a third
presidential term.
[5]
Opposed to such a referendum, the applicant
apparently expressed her opinion to her colleagues on the electoral committee
and to her teacher colleagues. She also allegedly revealed to them her ties to
Reverend Nahimana.
[6]
Prior to her husband’s death, he and the
applicant apparently took in a young student named Thomas Nahimana, the son of some
friends. That young man would later become a well‑known political opposition
leader. Reverend Nahimana left for France in 2011. However, the applicant
apparently remained in contact with him until September 2015.
[7]
According to the applicant, one of her daughters
apparently became a member of the Kizito Mihigo Foundation, like other youth
her age who advocated for peace and social justice in Rwanda. Kizito Mihigo is
a gospel singer in Rwanda and an activist for peace and reconciliation.
[8]
On September 6, 2015, the Rwandan police
questioned the applicant not only about her ties to Reverend Nahimana, but also
about Kizito Mihigo, who was accused of conspiracy against the Rwandan State.
The police allegedly let the applicant go because she denied everything.
[9]
Following that incident, unidentified civilians
apparently came to get the applicant at her home every Friday to take her to
the police station for further questioning.
[10]
Despite these incidents, the applicant allegedly
continued to hold a position on the electoral committee until the referendum on
December 18, 2015.
[11]
Following the referendum, the applicant and her
children were apparently followed and watched by Rwandan authorities. As well,
in January 2016, authorities allegedly even accused the applicant of having
encouraged the population to vote against President Kagamé.
[12]
On July 2, 2016, the applicant was allegedly
taken to the police station again, where she was allegedly sexually assaulted
by two police officers, then released the next day.
[13]
On July 8, 2016, police officers apparently
entered the applicant’s home by force while her daughter, the two orphans and
friends were talking about Kizito Mihigo. The police allegedly took the children
and the applicant alleged that she has not seen her daughter or her niece and nephew
since then.
[14]
On July 12, 2016, the applicant allegedly left
to go to one of her daughters’ homes in Kigali and her daughter took her to the
hospital.
[15]
On September 15, 2016, the applicant was able to
obtain a visa for the United States to attend a wedding. On October 6, 2016,
the applicant arrived in the United States, but did not go to the alleged
wedding, claiming that she was exhausted from the trip.
[16]
On October 12, 2016, the applicant arrived at
the Canadian border and claimed refugee protection.
III.
Decision
[17]
In light of all the evidence on record, the
panel was not of the opinion that the applicant was wanted by the Rwandan
government. The panel also did not believe that Rwandan authorities had
arrested the applicant twice. The applicant did not indicate on her form that
she had been arrested twice. The panel considered that omission to be
important, as the applicant had alleged that she feared being arrested again by
Rwandan authorities if she returned to her country. The panel also did not give
any weight to the documents submitted by the applicant regarding her mental
health to demonstrate the truth of her allegations. The panel instead concluded
that the applicant was not credible and that her documents were based primarily
on her own testimony.
[18]
Then, after submitting a certificate of
appreciation for her work during the elections in August 2010 and after having
been questioned about it, the applicant did not convince the panel that she
worked on the electoral committee for the referendum in late 2015. The panel
also noted that the applicant had difficulty answering simple questions that
were central to her refugee claim. In the panel’s opinion, the applicant is not
politically active and there was no reference to that effect on the applicant’s
form.
[19]
For these reasons, the panel drew a negative
inference regarding the applicant’s credibility because, based on the decision
cited by the panel, the applicant did not submit “evidence
that could reasonably be available and was an important and relevant piece of
information” (Toure v Canada (Minister of Citizenship and
Immigration), 2004 FC 1388 at para 11). The refugee claim was
therefore denied. That decision is the subject of this application for judicial
review.
IV.
Issue
[20]
The Court raises the only issue as follows: Is
the RPD’s decision regarding the applicant’s credibility reasonable?
[21]
The court considers that the standard of review
applicable to findings regarding a refugee claimant’s credibility is that of
reasonableness. The RPD is a specialized tribunal and is best placed to assess
the credibility of a refugee claimant and the plausibility of his or her
account. Consequently, the Court must not re-weigh the evidence, as the panel’s
conclusions regarding credibility require significant deference (Seenivasan
v Canada (Citizenship and Immigration), 2015 FC 1410, at para 14–15; Lin
v Canada (Citizenship and Immigration), 2008 FC 1052, at para 13; Saleem
v Canada (Citizenship and Immigration), 2008 FC 389, at para 13). To assess
reasonableness, the Court must therefore determine whether the RPD decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, at
para 47 [Dunsmuir]).
V.
Relevant provisions
[22]
The following provisions of the IRPA are
relevant to this case:
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Convention refugee
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Définition de réfugié
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
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b) soit à une menace à sa vie ou au risque de traitements ou
peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling to
avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
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(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,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(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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Decision on Claim for Refugee Protection
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Décision sur la demande d’asile
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107 (1)
The Refugee Protection Division shall accept a claim for refugee protection
if it determines that the claimant is a Convention refugee or person in need
of protection, and shall otherwise reject the claim.
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107 (1) La Section de la protection
des réfugiés accepte ou rejette la demande d’asile selon que le demandeur a
ou non la qualité de réfugié ou de personne à protéger.
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VI.
Submissions of the parties
A.
Applicant’s submissions
[23]
The applicant essentially submitted that the RPD’s
conclusion is unreasonable. The RPD allegedly erred in dismissing the applicant’s
testimony, as she is presumed to be telling the truth in a refugee claim. For
example, the RPD should have believed the applicant regarding her involvement
in the 2015 elections by considering, as evidence submitted, the certificate of
appreciation for her work on the elections in August 2010.
[24]
Regarding the omissions raised by the panel on
the applicant’s Basis of Claim [BOC] form, she explained that the form does not
say to detail or clarify specific points of her refugee claim. The applicant
also mentioned that she received help from her niece in completing her BOC form
and that her niece could not help her much in filling out the immigration form.
The applicant thus indicated that it was unreasonable for the panel to give
weight to the BOC when it included errors and strike-outs.
[25]
According to the applicant, it is true that she
had difficulty answering questions at the hearing before the RPD. However, it
is important to know that the RPD nonetheless obtained a clear response from
the applicant. The applicant tried to note that her psychological condition
could explain her hesitations or problems understanding. The RPD therefore
erred in its decision because it should have considered the post-traumatic
stress syndrome and explained in its decision how the applicant’s condition was
not a valid justification for the inconsistencies in her testimony. The RPD
therefore allegedly erred in concluding that the applicant was not credible
given her account (Belahmar v Canada (Citizenship and Immigration), 2015
FC 812, at para 8).
[26]
Finally, the RPD also allegedly erred in its
decision regarding the applicant’s arrest. Even though the applicant had not
maintained contact with Reverend Nahimana since
September 2015, it was not implausible for Rwandan authorities to arrest the
applicant again on July 2, 2016. Indeed, according to the applicant, Reverend
Nahimana had plans to return to Rwanda to take part in the elections.
B.
Respondent’s submissions
[27]
First, the respondent submitted that the RPD
decision was reasonable. After analyzing all the evidence, including the
medical evidence on record, the panel concluded that there were irregularities
in key elements central to the applicant’s refugee claim. Given the significant
problems with the evidence submitted by the applicant, the panel could dismiss
the refugee claim.
[28]
The respondent then noted that the applicant bears
the burden of proving the elements on which her refugee claim is based and that
she did not discharge that burden. The respondent therefore claims that the
panel could draw a negative inference regarding the applicant’s credibility due
to contradictions and inconsistencies at the port of entry, in her testimony,
on her BOC, and in the documentary evidence on record (George v Canada
(Citizenship and Immigration), 2014 FC 535, at para 11; Yakoub v Canada
(Citizenship and Immigration), 2012 FC 1188, at para 3).
[29]
Moreover, the panel could also rely on omissions
at the port of entry because they were related to elements that were central to
the applicant’s refugee claim (Eze v Canada (Citizenship and Immigration),
2016 FC 601, at para 20). The respondent then submitted that the RPD is “is entitled to assess a claimant’s credibility based on a
single inconsistency where the impugned evidence is a significant aspect of the
claim” (Garay Moscol v Canada (Citizenship and Immigration), 2008
FC 657, at para 21).
[30]
The respondent also submitted that the panel was
justified in requiring evidence to corroborate elements that were central to
the applicant’s refugee claim. Indeed, the absence of evidence to corroborate
an element that is central to a refugee claim can affect a claimant’s
credibility if the panel has concerns in that regard (Ortiz Sosa v Canada
(Citizenship and Immigration), 2009 FC 275, at para 19).
[31]
Finally, contrary to the applicant’s
submissions, the respondent claimed that the letter submitted as evidence from
Dr. War indicated that the applicant was fit to testify. The panel actually
considered the medical evidence on record.
[translation]
As for the medical certificate, none of the
participants at the hearing could accurately read what was written on it with
any certainty. The certificate also referred to a visit to the hospital on July
11, 2016, nine days after the sexual assault allegedly suffered at the police
station on July 2, 2016. The panel also noted that the applicant alleges in her
narrative that she arrived in Kigali on
July 12, 2016, and that her daughter took her to the hospital on July 13, 2016.
Thus, the applicant could not have been admitted to hospital on July 11, 2016
and released on July 13, 2016, as is indicated on that certificate. The panel
cannot give it any probative value.
(Reasons for Decision, at para 30.)
[32]
The respondent submitted that, in any event, the
panel could first conclude that the applicant’s account was implausible before
considering the medical evidence
(R v Abbey, [1982] 2 S.C.R. 24, 1982 CanLII 25 (SCC) at p. 42). It was evidence
like any other in this case and the panel could determine the weight to be
given each piece of evidence submitted by the applicant (Diaz Serrato v
Canada (Citizenship and Immigration), 2009 FC 176, at para 21–22 [Diaz
Serrato]).
VII.
Analysis
[33]
For the following reasons, this application for
judicial review is dismissed.
A.
Was the RPD’s decision regarding the applicant’s
credibility reasonable?
[34]
“A story steeped in a
lack of credibility dissolves layer by layer into its own nothingness” (Oukacine v Canada (Minister of Citizenship and Immigration),
2006 FC 1376, at para 1).
[35]
The conclusions reached by the RPD also refer to
contradictions, inconsistencies, and implausibilities regarding the evidence on
record, in the applicant’s BOC, and in her testimony, including:
- The lack of evidence to corroborate the
allegation that the applicant worked on the electoral committee during the 2015
referendum. The applicant had only submitted a certificate of appreciation for
her work on the 2010 elections (Reasons for Decision, at para 21).
- The lack of evidence to corroborate the
allegation that the applicant was a teacher in Rwanda until July 2016.
- The lack of evidence to corroborate the
applicant’s relationship with Reverend Nahimana and her failure to obtain
confirmation of that relationship (Reasons for Decision, at para 28).
- The implausibility of the applicant’s
account that she retained her position on the electoral committee when Rwandan
authorities suspected her of opposition to the government of President Kagamé and
of ties to Reverend Nahimana, and regarding her arrests (Reasons for Decision,
at para 23).
- The implausibility of the applicant’s
account that she is still wanted by Rwandan authorities, when they did not try
to find her at her daughter’s home in Kigali or try to reach members of her
family (Reasons for Decision, at para 26).
- The applicant’s failure to mention at the
port of entry that she had been arrested twice by Rwandan authorities (Reasons
for Decision, at para 27).
- The contradiction noted between the BOC
and the medical certificate on record that [translation]
“referred to a visit to the hospital on July 11, 2016, nine days after the
sexual assault allegedly suffered at the police station on July 2, 2016.”
(Reasons for Decision, at para 30).
- The applicant’s difficulty answering
questions during her testimony that were, however, simple and related to
important elements of her refugee claim. Her responses could have been clear,
straight-forward and concise, without the possibility of divergence regarding a
very recent matter seen as being important to her claim.
For example, [translation] “the panel had to repeat the question four
times about what her exact role was with the election committee in question
before obtaining a clear answer” (Reasons for Decision, at para 24).
[36]
The RPD then considered the explanations
provided by the applicant regarding those contradictions, inconsistencies and
implausibilities. However, they were deemed unsatisfactory. Following the
applicant’s subsequent explanations regarding her account and following an
analysis of the overall case, the Court is satisfied that the panel did not err
in concluding that the applicant was not credible. The discrepancies in the
applicant’s own account showed an inherent lack of logic in her story.
[37]
As well, the RPD was entitled to give no
probative value to the medical report since it was based in part on the
applicant’s own allegations (Diaz Serrato, at para 21). After
considering the medical evidence on record regarding post-traumatic stress, the
panel concluded that the applicant’s difficulty answering questions that were
central to her refugee claim were not the result of memory problems or
difficulty understanding, but rather of inconsistencies (Diaz Serrato, at para
22). Thus, the contradictions, inconsistencies, and implausibility noted in the
applicant’s testimony were not related to the applicant’s alleged syndrome (Diaz
Serrato, at para 24).
[38]
Finally, the Court is not of the opinion that
the applicant discharged her burden related to the refugee claim. The
insufficient evidence on record and the implausibility of her own account led
the panel to conclude that the applicant was not credible. The Court notes that
“[t]he Board is an independent tribunal which has
jurisdiction to assess and determine the credibility of evidence submitted. The
Board’s jurisdiction as a first-level specialized tribunal must be respected
unless it exceeds its functions in a capricious, malicious, or inherently
illogical manner, which is not the case here” (Oukacine, at para
36).
[39]
Consequently, the Court is satisfied that the
decision by the RPD is reasonable and falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir,
above, at para 47).
VIII.
Conclusion
[40]
This application for judicial review is
dismissed.
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