Nduwimana v. Canada (Minister of Citizenship and Immigration), 2002 FCT 812

Date: 20020723

Docket: IMM-1077-01

Neutral citation: 2002 FCT 812

BETWEEN:

                                                           THIERIVE NDUWIMANA

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

LUTFY A.C.J.

[1]                 The applicant, now 25 years old, is a citizen of Burundi and a family member of that country's Tutsi ethnic minority. Her claim for refugee protection from the Hutu rebels was denied by the Convention Refugee Determination Division.

[2]                 The panel was unable to make a conclusive finding of fact concerning the incident of May 10, 2000, the one which finally caused the applicant to flee Burundi. In the view of the panel, however, the applicant did not establish the absence of state protection and, accordingly, it was determined that she was not a Convention refugee.

[3]                 Until June 2000, when she sought refuge in Canada, the applicant always lived in Bujumbura, the capital of Burundi, where her parents and four siblings continue to reside.

[4]                 Her father was a prominent and senior member of the military prior to his retirement in 1996. He has been one of those suspected of involvement in the assassination of the first democratically elected Hutu president of Burundi in 1993.

[5]                 Immediately after this assassination, the applicant's family was targeted by Hutu militants. Her father was injured in one incident in February 1995. Between 1993-96, the family received a number of threats by telephone and mail. In June 1998, two grenades were thrown at the family residence when they were visiting relatives. According to the evidence, the family has not received threats since late 1999.

[6]                 During 1994-95, while a student, the applicant, her brother and their classmates were subject to violent Hutu attacks.

[7]                 In August 1999, after completing her formal education, the applicant obtained an exemption from compulsory military service, apparently in recognition of the danger she might face because of her ethnicity and the suspicions concerning her father.

[8]                 In January 2000, she was employed as a journalist with Burundi's national radio and television broadcaster.

[9]                 On May 10, 2000, while returning home at night in her employer's vehicle with military escort, the group came under fire when the vehicle stopped in front of the applicant's house, just as she was about to exit. One of her colleagues was seriously injured. According to the applicant, members of the military, permanently stationed at an installation some 500 metres from her home, arrived on the scene and caused the attackers to flee. The applicant feels that she was personally targeted in this attack.

[10]            On May 20, 2000, a government ministry authorized the applicant's attendance at a conference in New York scheduled for early June. She left Burundi on June 3, 2000, arrived in New York the following day, and then immediately proceeded to Canada where she sought refugee protection.

[11]            Upon its review of the documentary evidence, the panel concluded that the applicant would not face a serious possibility of persecution as a member of the Tutsi minority living in the capital city of Bujumbura:

... Les attaques contre la capitale ont généralement frappé indistinctement la population. Nous n'avons trouvé qu'un exemple dans la documentation qui relate le fait que des Tutsis ont déjà été visés par les rebelles dans la capitale et que d'autres Tutsis l'ont été à l'extérieur de la capitale. Compte tenu de la population de Bujumbura et du nombre peu élevé de victimes relevé par la documentation, le tribunal considère que la revendicatrice ne fait pas face à une possibilité sérieuse de persécution et que par conséquent elle n'a pas rencontré le fardeau de preuve exigé concernant son allégation d'une possibilité sérieuse de persécution basée sur son appartenance au groupe ethnique des Tutsis.

(Neither party questioned the contents of the tribunal record filed in this proceeding. Portions of the documentary evidence relied upon by the panel were not part of the tribunal record.)

[12]            In considering the applicant's refugee claim as a daughter of a former leader of the Burundi military, the panel noted that threats directed at the family had ended in 1999. This apparent recent lack of interest by Hutu rebels concerning the family, according to the panel, was not consistent with a well-founded fear of persecution based on family membership.

[13]            The panel then considered the attack of May 10, 2000, the single recent incident raised by the applicant as directed against herself. The panel questioned the plausibility of rebels risking such an attack so close to the permanent military base, a short distance from the applicant's home. The panel explained its inability to draw any unequivocal conclusion concerning this incident in these terms:

... Le tribunal considère qu'il est impossible de tirer une conclusion concernant la revendicatrice en rapport avec cet événement.

De toute façon, quelles qu'en soient les raisons, et qu'il existe ou non une possibilité sérieuse de persécution, le tribunal croit que la revendicatrice a eu dans le passé et pourrait continuer à avoir dans l'avenir la protection de son pays.

In other words, without making a finding of fact concerning the incident of May 10, 2000, the panel focussed on the state protection issue. While it did not express itself in these terms, I understand the panel to have resolved the applicant's claim on the availability of state protection, regardless of the merits of her subjective fear of persecution.

[14]            In this application for judicial review, the applicant challenges the negative refugee determination on two principal grounds: (a) the panel's failure to make a clear finding of fact concerning the incident of May 10, 2000 and to give the plaintiff the benefit of the doubt with respect to the veracity of this occurrence; and (b) the panel erred concerning its analysis of state protection both in fact and in law.

[15]            It is well settled that the applicant had the burden of establishing a well-founded fear of persecution, one which can be tested both subjectively and objectively.

[16]            Concerning the incident of May 10, 2000, the panel questioned why the rebels would have launched this attack so close to a military base and whether the applicant's employer as opposed to the applicant herself was the intended target. The panel did not make a negative finding of credibility but was not persuaded by the applicant's interpretation of this attack and its motivation.

[17]            In my view, it was open to the panel to raise the issue of plausibility, to determine that the evidence did not allow it to reach a definitive conclusion concerning the incident of May 10, 2000 and to dispose of the claim on its analysis of state protection.

[18]            Similarly, the applicant's reliance on Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, in support of its argument that the panel, in the circumstances, was required to give the applicant the benefit of the doubt, is misplaced. I accept the respondent's submissions that the passages in Chan relied upon by the applicant, in particular paragraphs 137 and 142, do no more than repeat the principle that the Refugee Division can be guided by informal rules of evidence: subsection 68(3) of the Immigration Act.

[19]            Justice Major, writing for the majority in Chan, noted the absence of an explicit finding by the Refugee Division concerning the claimant's subjective fear of persecution. In his view, however, even if the claimant were given the benefit of the doubt on the question of the subjective fear, the objective component of the test must nevertheless be addressed:

133. ... It is the responsibility of the claimant at a refugee determination hearing to lay an evidentiary foundation upon which the Board can conclude not only that the fear existed in the mind of the claimant but also that it was objectively well-founded.

The panel's decision in this case to dispose of the applicant's claim on the state protection issue, regardless of whether the subjective fear was acknowledged, is not dissimilar to the analysis in Chan.

[20]            As her second issue, the applicant challenges the panel's factual findings and legal analysis concerning state protection.

[21]            The panel noted that Burundi's security apparatus is controlled by Tutsis. The applicant's family received ongoing military protection between 1993 and 1996. The only subsequent incident directed against the family was in June 1998. Both the applicant and her brother were exempted from military service. While employed as a journalist, the applicant travelled to and from work under military escort. She resided some 500 metres from a permanent military base. In my view, the panel committed no reviewable error in viewing these facts as relevant and in concluding that the applicant was the beneficiary of substantial protection given the difficult situation in Burundi.

[22]            The applicant also challenges the panel's legal analysis of the state protection issue. The panel expressed itself as follows:

... Cependant, le gouvernement est clairement en contrôle du pays dans son ensemble et définitivement en contrôle de la capitale, Bujumbura, là où la revendicatrice habite. De plus, le gouvernement en place continue de lutter contre les rebelles armés et il existe une armée et une force policière efficace. Dans le cas qui nous occupe, nous avons affaire à un pays dont les structures et les forces de sécurité sont contrôlées par la minorité ethnique du pays, soit celle de la revendicatrice. Le Tribunal considère que l'arrêt Villafranca s'applique dans les circonstances.

Earlier in its reasons, the panel referred to this passage from Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm.L.R. (2d) 130 (F.C.A.), at 133:

... where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.

[23]            Counsel for the applicant argues that in relying on Villafranca, the panel failed to consider the following statements in Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021 (QL) (C.A.):

11. ... The Board members do not appear to have considered the possibility that persons specifically targeted, who may qualify as members of a particular social group, might still have good grounds for fearing persecution when a state is capable of protecting ordinary citizens but incapable of protecting members of that particular social group. ...

...

14. ... A state of profound unrest with ineffective protection for the claimant may, however, have reversed [the presumption].

[24]            Counsel's submission must fail in the circumstances of this case. The panel specifically addressed the protection available to the applicant from the state prior to her departure from Burundi and concluded that the presumption of effective state protection, as enunciated in Villafranca, was not displaced on the basis of the evidence of the applicant's situation as a Tutsi and as the daughter of a prominent military official living in the capital city of Burundi where she benefited from military protection.

[25]            In the closing paragraphs of its decision, the panel made this statement concerning the efficacy of state protection:

Si la protection de l'État ne peut être efficace à 100 pour-cent, elle doit à tout le moins être suffisamment efficace pour ramener le risque pour le revendicateur à une simple possibilité de persécution, c'est-à-dire une norme en deça de la possibilité sérieuse de persécution, ce qui est la situation dans le cas présent.

The applicant characterizes this passage as "a novel test", one which is wrong and which warrants this Court's intervention.

[26]            In my view, the passage is merely another formulation that the ability of the state to afford protection to the refugee claimant is part of the objective component in assessing the claimant's well-founded fear of persecution as stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 712:

Thus, regardless of the category under which the claimant falls, the focus is on establishing whether the fear is "well-founded". It is at this stage that the state's inability to protect should be considered. The test is in part objective; if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded.

If the refugee claimant fails to rebut the presumption of the state's inability to afford protection through "clear and convincing" evidence (Ward at 724 and 726), it is open to the Refugee Division to conclude that there exists no serious risk of persecution.

[27]            Other commentators have used language similar to that adopted by the panel in this case. In The Law of Refugee Status (Butterworths, 1991), Professor James C. Hathaway states (at page 133): "A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin." Similarly, in Immigration Law and Practice (Markham: Butterworths, 1992), L. Waldman notes at paragraph 8.211: "If there is evidence that there is a serious possibility that the claimant will not be able to obtain protection of the state, then the granting of refugee status will be justified."

[28]            In my opinion, the panel introduced no novel test. Having concluded that the applicant had not displaced the presumption of state protection according to the principles in Villafranca, it merely noted that state protection, even where it is not "one hundred percent effective", must be such that a refugee claimant will not be exposed to a serious risk of persecution if returned to the country of origin. Again, in this obiter statement, the panel disclosed no misunderstanding of the legal principles applicable to its analysis of state protection which would warrant this Court's intervention.

[29]            Accordingly, this application for judicial review will be dismissed. Counsel may file written submissions concerning the suggested certification of a serious question within seven days of the date of these reasons.

                                                                                                                                                    "Allan Lutfy"                          

                                                                                                                                                            A.C.J.

Ottawa, Ontario

July 23, 2002