Date:
20060214
Docket:
IMM-7236-04
Citation:
2006 FC 170
BETWEEN:
CONSTANTIN
MARANGO
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial
review of a decision by the Refugee Protection Division of the Immigration and
Refugee Board, dated June 14, 2004, ruling that the applicant was not a
“Convention refugee” or a “person in need of protection” within the meaning of
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
[2] Although duly notified, the
respondent was neither present nor represented at the hearing before me. The
decision supported by these reasons is therefore delivered on the basis of the
oral submissions heard ex parte from the applicant’s counsel and also on
the basis of the written memoranda of both parties.
[3] Constantin Marango, the applicant,
is a citizen of Burundi, 34 years of age, a member of the Tutsi ethnic group.
He alleges that he has a fear of being persecuted by a former employee from the
Hutu ethnic group, named Félix Ndayishimiye.
[4] The panel accepted the applicant’s
identity and the fact that he was a Tutsi, but found that his story lacked
credibility and that he was therefore not a Convention refugee. The panel gave
the following reasons to explain its decision:
- The panel was not satisfied by the evidence offered by the
applicant in an attempt to demonstrate that he had opened a café in the Kamenge
district. The four certificates produced by the applicant are titles for
residential properties registered in the name of his father and none refers to
the Kamenge district. Moreover, the documents presented by the applicant to
indicate that he was authorized to manage a business could not logically be
connected to the café he said he had opened. A certificate for the “El Greco”
bakery preceded by five years the opening of the café in Kamenge. Similarly, a
tax certificate in the name of the “Pâtisserie Café d’Azur” preceded by three
years the opening of the café in Kamenge. Since the applicant said the district
of Kamenge did not make him pay any taxes, the tax certificate cannot possibly
relate to the alleged business of the applicant in that district.
- The applicant brought many documents with him. His family
still lives in Bujumbura and has substantial resources. Furthermore, he
allegedly received a grant from the ministry of Repatriation, Reintegration and
Reconstruction to open his café in Kamenge. Considering these factors, the
panel found that he should have been in a position to provide more persuasive
evidence to demonstrate that he was indeed managing a café.
- In his Personal Information Form (PIF) and his Curriculum
Vitae (CV), dated 2002, the applicant stated that he had begun working as a
manager of the “Café d’Azur” from 1995, but no longer after December 2001.
However, when he spoke with the Refugee Protection Officer, the applicant
changed his story several times, saying he had worked in Kamenge until his
departure from Burundi, until February 2001 or until February 2002. He was
unable to explain why he had not included in his PIF or his CV his employment
with the café until February 2002. The panel found from this and from the
evidence referred to earlier that the applicant had never worked in Kamenge.
- The panel also rejected the applicant’s story that his sister
had been kidnapped. Since the applicant alleges that he reported this event to
the police, the army and the local authorities, and in view of the position of
his family, the panel found it suspicious that there is not a modicum of
documentation reporting this event. The panel found it implausible that the
applicant’s family would not continue their searches after his departure,
especially given the fact that one of his brothers works for a human rights
NGO. The panel accordingly found that the applicant’s sister had not been
kidnapped or at least that she had not been kidnapped by Félix Ndayishimiye.
- The panel thought it was contradictory for the applicant to
say that he was fleeing persecution but not to have sought asylum in the United
States. The fact that he does not speak English is not a sufficient excuse.
- The panel found that the applicant was not in danger of being
a victim within the meaning of the Torture Convention. It also found
that his removal to his country would not put him at risk of cruel and unusual
treatment or punishment. Although the applicant says he left his parents’ house
in 1995 to live in another neighbourhood of Bujumbura, the panel noted that his
address had not changed on his identity papers. The applicant replied
unconvincingly that he was using his parents’ house to receive his mail. The
panel found it was more probable that he still lived in Rohero, a neighbourhood
that was spared the ravages of the civil war.
[5] Now, it is settled law that, when
it comes to credibility and the assessment of the facts, it is not for this
Court to substitute its opinion for that of the Refugee Protection Division of
the Immigration and Refugee Board when, as in this case, the applicant fails to
demonstrate that this specialized tribunal made a decision based on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it (see paragraph 18.1(4)(d) of
the Federal Courts Act, R.S.C. 1985, c. F-7). From my review of the
evidence, it is apparent to me that the panel’s decision is based on solid
evidence in the record emanating from the testimony of the applicant himself
and the documentary evidence. The inferences drawn by the panel appear to me,
furthermore, to be completely reasonable (see Aguebor v. Canada (M.E.I.)
(1993), 160 N.R. 315).
[6] Therefore, the intervention of this
Court is not warranted, and the application for judicial review is dismissed.
[7] At the hearing before me, the
applicant had an opportunity to explain the question that he wished to have
certified and he formulated it as follows in his written submissions:
[translation]
22. It is respectfully submitted that
inasmuch as the respondent Minister of Immigration and Refugee Protection has
not yet established the Appeal Division of the Immigration and Refugee Board,
does the applicant, Mr. Constantin Marango, have a reasonable expectation that
the standard of review is that of “reasonableness”?
[8] The requested
certification is denied on the ground that, in this case, the proposed question
is not decisive (see Canada (M.C.I.) v. Liyanagamage (1994), 176 N.R.
4). It is clear from my reasons above that I find the panel’s assessment of the
facts and credibility completely reasonable. Thus, even applying the standard
of review suggested by the applicant, his application for judicial review
cannot be upheld.
Yvon Pinard
__________________________________
JUDGE
OTTAWA, ONTARIO
February 14, 2006
Certified true
translation
François Brunet,
LLB, BCL
Date:
20060214
Docket:
IMM-7236-04
Ottawa, Ontario, February 14, 2006
PRESENT: THE HONOURABLE MR. JUSTICE
PINARD
BETWEEN:
CONSTANTIN
MARANGO
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision by the Refugee Protection Division
of the Immigration and Refugee Board, dated June 14, 2004, ruling that the
applicant is not a “Convention refugee” or a “person in need of protection”
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, is dismissed.
Yvon Pinard
__________________________________
JUDGE
Certified true translation
François Brunet, LLB, BCL
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