Date: 20100106
Docket: IMM-5616-08
Citation: 2010 FC 16
Ottawa, Ontario,
January 6, 2010
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Djuma HABIMANA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board (the panel). The Minister of
Citizenship and Immigration (the Minister) is seeking review of the panel’s
determination that Djuma Habimana (the respondent) is a person in need of
protection in a decision dated October 3, 2008.
* * * * * * *
*
[2]
The
respondent is a Rwandan citizen of Hutu origin.
[3]
He
states that he fled Rwanda and went to Burundi in 1994, because
of the civil war and genocide. When he returned in 1996, he found his house
occupied by Tutsi soldiers. When he tried to regain possession, he was
imprisoned for no reason. However, he was released a week later, without being
charged, and eventually recovered his house.
[4]
He
states that in 2006 he was summoned by a traditional court called Gacaca to
face charges that he said resulted from a conspiracy by the Tutsi soldiers to take
his house back from him. He was acquitted, and then charged again. Following
the second charge he fled his country and came to Canada.
[5]
After
he made his refugee protection claim, members of the Royal Canadian Mounted
Police (the RCMP) traveled to Rwanda to obtain information about the charges
the respondent stated he was facing. They contacted members of the Gacaca, and
established that the court had no file on the respondent and had never summoned
him. The document that the respondent submitted in evidence showing that he had
been summoned is apparently a forgery.
[6]
However,
the respondent testified that his account of being summoned by the Gacaca was
true. The panel found the respondent’s testimony “direct and plausible”. It
took into account the ethnic tension in Rwanda and
concluded that “it
is reasonable to conclude that a tribunal primarily composed of one of the two
ethnic groups could be perceived as partial”. The respondent argued
that the Rwandan authorities had lied to the RCMP members.
[7]
However,
the panel found that “this
answer only refutes the Minister’s allegations in part and does not permit the
panel to determine the claimant’s credibility”.
* * * * * * *
*
[8]
The
panel first identified revenge by the Tutsi soldiers as the basis for the respondent’s
fear. Given that revenge is not a ground of persecution recognized in the United
Nations Convention Relating to the Status of Refugees (the Convention), the
panel concluded that section 96 of the Act did not apply to the respondent
and examined his claim on the basis of paragraph 97(1)(b).
[9]
The
panel did not make a finding as to the respondent’s credibility, and thus the
truth of his allegations, and concluded that in any event he was a “refugee sur
place”, and therefore a person in need of protection, because of the
actions of the RCMP investigators. The investigators disclosed the respondent’s
name to the Rwandan authorities and showed them the summons, the authenticity
of which they doubted, “even
though, according to the claimant, the Rwandan authorities are the persecuting
agents”.
[10] Based on the
documentary evidence concerning Rwanda, the panel noted that
human rights are not always respected in that country, that members of the
public may be arbitrarily arrested and that the government attempts to
influence the courts, in particular the Gacaca.
[11] The panel
concluded that “it
is reasonable to believe that the authorities would seek retribution against
the claimant, who had tarnished the image of their regime abroad by using
dubious documents. The claimant’s situation would be aggravated by the fact
that he is a Hutu dealing with a Tutsi regime.”
* * * * * * *
*
[12] The Minister
contends that the panel did not conduct its decision-making process properly
and thus violated the requirements of procedural fairness, by stating
inadequate reasons and issuing a decision that was incoherent, unintelligible
and not based on the evidence.
[13] I agree with
the Minister that the use of the concept of “refugee sur place” by the
panel to grant protection under section 97 of the Act was not strictly
speaking appropriate, because that concept is closely associated with the
concept of Convention refugee. This is confirmed by the reference at
paragraph 96 of the Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees to a “well-founded fear of persecution” that justifies
granting “refugee sur place” status to a claimant.
[14] However,
section 97 of the Act does not provide that the events that cause a
refugee protection claimant to fear that they would be subject to a risk to
their life or safety if they were returned to their country of origin must have
occurred before the person left that country. For that reason, in my opinion,
the discussion of the concept of “refugee sur place” has no practical
consequence in this case.
[15] If the panel
had concluded that the respondent would be subject to a risk to his life or
safety if he were returned to Rwanda, it could have granted him status as a
person in need of protection.
[16] To do that,
however, as the Minister argues, the panel would have had to consider the case
carefully and provide clear reasons for its decision. It did not do that.
[17] The panel’s
analysis of the impact of the RCMP investigation can be described as summary at
best. The only fact accepted by the panel in its reasons is that the RCMP
members disclosed the respondent’s identity to the Rwandan authorities “even though, according to [him],
the Rwandan authorities are the persecuting agents”. The panel did not
state whether the authorities were already aware of the respondent’s situation
or if the agents disclosed the fact that he had made a refugee protection claim
in Canada. An analysis
of those factors is crucial to the decision as to whether the respondent was
endangered by the actions of the RCMP (see Minister of Citizenship and Immigration
v. Mbouko, 2005 FC 126, at paragraphs 31 to 33).
[18] I am also of
the opinion that the panel could not have concluded that the respondent would
be subject to a risk to his safety or life without concluding that he would be
arbitrarily charged or that refugee protection claimants who were returned to Rwanda were more
likely to be prosecuted or threatened than ordinary Rwandan citizens. In either
case, the panel could conclude that the respondent would face a risk in Rwanda that “is not
faced generally by other individuals in or from that country”, as required by
subparagraph 97(1)(b)(ii) of the Act. The panel’s reasons in no way
establish that this statutory requirement was met in the respondent’s case.
[19] Regarding the
panel’s conclusion that the respondent was likely not to be treated fairly
because of his Hutu origin, I note, as did the Minister, that the panel did
conclude that section 96 of the Act did not apply to the respondent, and
thus that his nationality was not sufficient ground to make him a refugee.
[20] The panel’s
decision that the respondent is a person in need of protection is therefore not
transparent and intelligible. The Court therefore cannot conclude that it is
reasonable (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at paragraph 47).
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*
[21] I would
therefore, for the foregoing reasons, allow the application for judicial review
and order that the respondent’s case be completely reconsidered by a different
panel.
JUDGMENT
The
application for judicial review is allowed. The decision made by the Refugee
Protection Division of the Immigration and Refugee Board (the panel) on
October 3, 2008, is set aside and the matter is referred back to a
different panel for redetermination.
“Yvon
Pinard”
Certified
true translation
Brian
McCordick, Translator
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