Date: 20060519
Docket: IMM-6224-05
Citation: 2006 FC 624
Ottawa, Ontario, May 19, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
PATRICK
MUHOZA MIRANDA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
It is said
that it is easier to judge a person’s mental capacity by his questions than by
his answers (G. de Lévis). In the case of the applicant Patrick Muhoza Miranda,
the Refugee Protection Division (RPD) decided that the answers to its questions
were insufficient to grant him status as either a Convention refugee or a
“person in need of protection” within the meaning of the Immigration and
Refugee Protection Act (IRPA).
[2]
According
to Mr. Miranda, the RPD committed fundamental errors of fact. The issue to be
determined is whether this Court should allow the application for judicial
review of the decision of the RPD dated September 9, 2005.
Facts
[3]
Mr.
Miranda is a citizen of Burundi. He was born there but stated having moved to
Rwanda when he was a child and studied there from 1987 to 2004. In January
2004, he was supposedly arrested by the Rwandan army and charged with being an
opponent of the existing government. The following month, he returned to
Bujumbura in Burundi, where he lived with an uncle who had a hardware store.
According to the applicant, his uncle supposedly told him that he was in danger
from Burundian military personnel who had killed his family in 1993. In
addition, young Hutus from the neighbourhood apparently approached the applicant
asking him to join the Hutu rebellion, which he refused to do. Because of this,
the applicant alleged having received death threats.
[4]
It
is important to underline that Mr. Miranda’s claim for refugee protection is
based on the fear of persecution in Burundi only. He has not made any claim
with regard to Rwanda. Because of this, an analysis of Mr. Miranda’s claim must
consider the time he spent in Burundi, that is to say, from February 2004 to
November 2004.
[5]
When
he returned to Burundi, Mr. Miranda went to live with a friend of his uncle. He
then managed to obtain a forged passport in November 2004, as well as $5000
from his uncle, to allow him to travel to Canada. The applicant allegedly left
Burundi on November 14, 2004, using an English passport in the name of
“Shelton” showing a date of birth subsequent to his own. He apparently
transited through Ethiopia and Germany before arriving at Montréal airport on
November 15, 2004. He apparently made his claim for refugee protection later
on, in town.
[6]
The
RPD rejected the claim for refugee protection because of the applicant’s lack
of credibility and because his behaviour was inconsistent with that of a person
who fears for his life. In answer to this allegation, Mr. Miranda claimed that
the Board erred in criticizing him for not having submitted any evidence about
his stay in Rwanda and, more specifically, his studies, and in determining that
the applicant’s identity card did not show any date of birth and that,
according to the applicant’s documents, he was born on either January 1, 1982
or January 1, 1984. In addition, the applicant alleged that the RPD reached a
mistaken, unfounded conclusion in doubting that the applicant’s uncle’s had the
financial means to help the applicant obtain a forged passport and pay for his
trip to Canada. Finally, the Board criticized the applicant for not having
applied for protection in Germany and for not seeking protection in Canada when
he arrived at the airport.
Issues
[7]
On the
basis of the preceding, this Court only has two issues to decide. On one hand,
what is the standard of review applicable in this case? On the other hand, is
the decision of the RPD patently unreasonable?
Analysis
[8]
As far as
the standard of review is concerned, case law has clearly established that the
standard applicable to issues of credibility is patent unreasonableness: see Mugesera
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100
(at paragraph 38), Aguebor v. Canada (Minister of Employment and
Immigration) (F.C.A.), [1993] F.C.J. No. 732).
[9]
Normally,
it is true that the lack of credibility of an applicant on an important aspect
may lead to the conclusion that there is no credible evidence on which the
claim can be based: see Obeng v. Canada (Minister of Citizenship and
Immigration), 2004 FC 636, [2004] F.C.J. No. 774 (QL) at paragraphs 4 and
5. However, it is necessary to make a distinction between important aspects and
those which are not relevant.
[10]
After
studying the decision of the RPD, it seems evident to me that it made several
errors and placed too much importance on certain facts. More specifically, the
RPD dwelt on the following points: the fact there was a mistake in his personal
information form (PIF), such as his date of birth, the fact he did not claim refugee
protection as soon as he arrived, and the fact that his uncle was allegedly
able to give him five thousand dollars. As far as the date of birth is
concerned, the applicant’s PIF showed it as being 1984. In spite of the fact
his written narrative and his birth certificate were poorly translated, it is
clear that the original specified the date of birth as being 1982. Even if the
RPD seems to have given a lot of importance to these facts, considering the
plausible explanations given by the applicant for all these events, it is not
necessary to make an exhaustive analysis to explain why these errors are not
relevant.
[11]
However,
what is relevant is that the applicant did not submit any evidence concerning
the nine months he spent in Burundi and that he did not have any passport or
boarding pass when he claimed refugee status protection. This is important
because Mr. Miranda alleged that the human smuggler accompanied him only to
Germany. He thus supposedly kept the passport and boarding pass to travel to Montréal.
Mr. Miranda alleged that he mailed the passport back to England without making
a copy of it.
[12]
Although
these factors may seem to have just as little relevance, we must not lose sight
of the fact that travel documents are very significant if the applicant has no
plausible explanation for his travels. Mr. Justice Nadon mentioned the
importance of such documents in Elazi v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 212 (QL) at paragraph 17:
17. I take this opportunity to
add that it is entirely reasonable for the Refugee Division to attach great
importance to a claimant's passport and his air ticket. In my opinion, these
documents are essential to establish the claimant's identity and his journey to
come to Canada. Unless it can be assumed that a refugee status claimant is
actually a refugee, it seems unreasonable to me to ignore the loss of these
documents without a valid explanation. In my view, it is to easy for a claimant
to simply state that he has lost these documents or the facilitator has taken
them. If the Refugee Division insists on these documents being produced, the
facilitators may have to change their methods.
In addition, as mentioned by the
respondent, section 7 of the Refugee Protection Division Rules clearly
provides as follows:
|
7.
The
claimant must provide acceptable documents establishing identity and other
elements of the claim. A claimant who does not provide acceptable documents
must explain why they were not provided and what steps were taken to obtain them.
|
7. Le demandeur d’asile
transmet à la Section des documents acceptables pour établir son identité et
les autres éléments de sa demande. S’il ne peut le faire, il en donne la
raison et indique quelles mesures il a prises pour s’en procurer.
|
[13]
To sum up,
this Court notes the opinion of Mr. Justice Joyal in Miranda v. Canada
(Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 437.
He remarked that the Supreme Court of Canada had decided in a criminal case
that, even though the trial judge made nearly eighteen errors in his
instructions, if the appeal was not based on a denial of natural or procedural
justice, it could not be allowed. In the case at bar, the Court must
counterbalance the errors stated above with the decision of the RPD as a whole.
On the basis of the evidence submitted before this Court, it does not seem
patently unreasonable that the RPD questioned the applicant’s credibility.
[14]
Therefore,
this Court dismisses the application for judicial review. Because this decision
is based on matters of credibility, there is no serious question of general
importance to be certified.
[15]
In
addition, under subsection 112(1) of the IRPA, the applicant may apply for a
pre-removal risk assessment (PRRA) if he so desires.
ORDER
THE COURT ORDERS that:
- The application for judicial review
be dismissed.
- There is no serious question of
general importance to be certified.
“Sean
Harrington”
Certified
true translation
Michael
Palles
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