Date: 20000705
Docket: IMM-3931-99
OTTAWA, ONTARIO, JULY 5, 2000
| Present: THE HONOURABLE MR. JUSTICE DENAULT |
Between:
REDEMPTA UMUNEZERO,
ARLETTE SABRINA UWERA,
MARIE LOUISE MUGABEKAZI,
CLEMENCE UMUGWANEZA,
CLEMENTINE UWASE,
Plaintiffs,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review of the decision by the Refugee Division of the Immigration and Refugee Board, dated July 19, 1999, is dismissed.
Certified true translation
Martine Brunet, LL. B.
Date: 20000705
Docket: IMM-3931-99
Between:
REDEMPTA UMUNEZERO,
ARLETTE SABRINA UWERA,
MARIE LOUISE MUGABEKAZI,
CLEMENCE UMUGWANEZA,
CLEMENTINE UWASE,
Plaintiffs,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] The plaintiffs, a mother and her four daughters, all citizens of Rwanda, applied for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division"), which held that they are not Convention refugees although they alleged they had a valid fear of persecution in their country of origin on account of their race.
[2] It appeared from the record that the principal plaintiff ("the plaintiff"), Tutsi and Hutu by origin, her husband of Tutsi origin and members of her family suffered the horrors of the civil war which has existed between these two ethnic groups since 1990. The plaintiff's husband even died in May 1993 as the result of mistreatment he received in prison.
[3] The story told by the plaintiff, both in her personal information file (PIF) and in her testimony before the Refugee Division, related more to the problems she encountered between 1995 and 1998 as owner of the family house, which a soldier, a member of the Rwanda people's army, wanted to have. According to the evidence, this soldier occupied the plaintiff's house for a certain time in 1994 when she leased it to him before fleeing for some months to her cousin's home in Burundi. The tenant, who took proceedings to recover her personal effects and the house occupied by this soldier, finally succeeded in living there until July 1995. However, in November 1996 the plaintiff learned that she was killed when she returned to work.
[4] The plaintiff, who owned a business renting and selling used cars, went to Kenya on business for about ten days in April 1998. She also, with her youngest daughter Sabrina, visited her brother, who had fled to the U.S., and friends between May 15 and July 10, 1998. She did not claim refugee status in any of those countries. When she returned to Rwanda, she left again on September 15, 1998 for the U.S., her children having gone before her on August 15, 1998. They arrived in Canada on September 21 and immediately requested refugee status.
[5] The Refugee Division dismissed the plaintiffs' claims. In the tribunal's opinion, the plaintiff did not show that the problems she encountered were connected to her race, but instead to the property desired by a soldier who had been evicted by her former tenant. The tribunal considered that her problems were not related to any of the five grounds in the Convention. The Refugee Division also objected that she had not sought protection from the authorities or at any time tried to find a solution to her problem. Finally, the tribunal regarded the two trips she made to Kenya and the U.S. as indicating an absence of subjective fear, in that in each case she left her children in the care of their aunt in the same house where she claimed she had suffered harassment.
[6] In support of the application for judicial review, counsel for the plaintiff objected first that the Refugee Division had disregarded the alleged fear of persecution on account of race without questioning her credibility on the facts that she had related and without taking into account a second ground of fear of persecution, namely her status as a single woman with children.
[7] It is for the Refugee Division to analyse the evidence and the Court cannot intervene to substitute its own opinion unless the finding of fact is erroneous, made in a perverse or capricious manner or without regard for the material before it.
[8] Despite the very able submissions of counsel for the plaintiffs, the Court considers that there is no basis for intervention in the case at bar. After reading the plaintiff's statement of claim in her PIF and her testimony at the hearing, I consider that it was not unreasonable for the Refugee Division to conclude that there was no evidence of persecution on account of her race. Of course, like most if not all Rwandans, the plaintiff has suffered the anguish of the civil war, but the tribunal did not err in concluding that the harassment by a soldier which claimed she suffered on account of her house was not within the grounds covered by the Convention. As far as the fear of persecution because of being a single woman with children is concerned, I feel that the record did not establish such a fear, apart from the plaintiff's reply to the last question by the presiding Member of the tribunal (p. 462) before the argument, which was more an appeal to the tribunal's compassion than an argument. In short, this fear was neither alleged nor proven.
[9] The Court is also quite unable to accept the plaintiff's argument as to why she did not seek protection from the authorities. It is possible that the plaintiff doubted the effectiveness of an appeal to the military to intervene against one of its members with whom she was having difficulties, but it was not unreasonable for the tribunal to conclude that she should have filed a complaint against this soldier, especially as the military has the function of protection, and she should have applied to the secretary general of Ibuka, a group of 19 associations of survivors of the genocide who are under the protection of the military.
[10] In a supplementary affidavit filed after the application for leave was granted, the plaintiff objected to the poor quality of the services of counsel representing her before the Refugee Division, but in this Court she withdrew the argument. In that affidavit, and in the one she filed in support of her application for leave, the plaintiff noted that her trip to the U.S. was for [TRANSLATION] "personal business", namely assisting her cousin who was in the terminal stages of cancer. According to the plaintiff, this fact explained why she left three of her daughters at home. The Court is far from persuaded that if this fact had been mentioned at the proper time it would have altered the tribunal's decision; additionally, the failure to mention it at the proper time was undoubtedly not the cause of any incorrect conclusion by the Refugee Division.
[11] For these reasons, the application for judicial review must be dismissed. In the case at bar, there is no basis for certifying a serious question of general importance.
Judge
OTTAWA, Ontario
July 5, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: REDEMPTA UMUNEZERO et al. v. MCI |
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: JUNE 15, 2000
REASONS FOR ORDER BY: DENAULT J.
DATED: JULY 5, 2000
APPEARANCES:
| MARIO BLANCHARD FOR THE APPLICANT |
| SHERRY RAFAI FAR FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MARIO BLANCHARD FOR THE APPLICANT |
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
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