Date: 20100921
Docket: IMM-5836-09
Citation: 2010 FC 940
Ottawa, Ontario, September 21, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JEAN-PIERRE
RUDAKUBANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant served in the Rwandan Patriotic Army (RPA) and subsequently in the
Rwandan Gendarmerie (Gendarmerie). By virtue of his membership in both
organizations, his status therein and his knowledge of their persecuting
activities, the Immigration and Refugee Board (Board) found him to be complicit
in crimes against humanity committed by these organizations.
[2]
The
Board concluded that the Applicant was excluded from the definition of
convention refugee under Article 1F(a) of the Refugee Convention. The
Board also concluded that the Applicant’s fears of persecution by the Rwandan
government were not credible.
[3]
The
Applicant seeks judicial review of the Board’s decision.
II. BACKGROUND
[4]
The
Applicant joined the youth wing (JPR) of the Rwandan Patriotic Front (RPF) in
1988 while in high school. In 1990 armed conflict broke out between the RPF and
the Rwandan government. He joined the RPA and was sent to Uganda for
training.
[5]
In
1991 the Applicant was seriously wounded in conflict. After recovering he was
posted at a border station on the Rwanda-Uganda border where he was responsible
for 13-15 guards. He concluded his RPA career as a lieutenant.
[6]
In
1993-94 the Applicant trained for and became a member of the Gendarmerie. He
rose in rank to Inspector and was finally Chief Inspector when he left.
[7]
The
Applicant claimed that in 2001 he became a problem for his superiors when he
refused to carry out orders to make political arrests. He also claimed that in
2002 he learned that he was to be killed while undergoing firearms training. As
a result he fled Rwanda in 2003.
[8]
The
Applicant first went to Sweden where he claimed refugee status. His claim
was that he was on a list of Rwandan officers living in Scandinavia who were
suspected of having informed the French government that the Defence Minister
was responsible for the shooting down of the President’s plane which led to the
genocide.
[9]
The
Swedish refugee process took 4½ years and the Applicant was unsuccessful at
each stage. His claim in Sweden was basically the same as his claim made in Canada.
Having
obtained a false Belgian passport, the Applicant claimed refugee protection in
January 2008.
[10]
The
Board analyzed the activities of the RPA and Gendarmerie citing the evidence of
human rights organizations as sources. While they may not have had a limited
and brutal purpose, both the RPA and Gendarmerie were involved in killings,
forced disappearances, arbitrary arrests, detention, torture and extra-judicial
executions.
[11]
The
Board concluded that the Applicant was personally and knowingly involved in the
persecutorial acts of the RPA and Gendarmerie, specifically because of the
nature of the organizations, the fact that the Applicant had joined willingly,
that he had achieved high rank, that he had served for 14 years without ever
trying to leave and that he knew of the organizations’ activities.
[12]
The
Board also found the Applicant not to be credible with respect to the claim for
refugee protection. His evidence was inconsistent with that advanced in Sweden regarding
his own detention in Rwanda, and his letter of support from a friend
fails to mention his detention altogether. His POE notes also fail to mention
his detention or that he was sought by the police.
Likewise, neither
his original PIF nor his friend’s letter made reference to the Applicant’s name
being on a list of potential informers.
[13]
The
Board, in addition to finding the Applicant to be excluded by virtue of his
crimes against humanity, also found him not to be credible (and his story
implausible) with respect to his own risk. The Board concluded that he would
not face a serious possibility of persecution if he were returned to Rwanda.
III. ANALYSIS
[14]
The
standard of review in respect of the findings of complicity is reasonableness. With
respect to credibility findings, the standard of review is also reasonableness
with considerable deference owed to the Board in this regard (Dunsmuir v. New
Brunswick,
2008 SCC 9).
[15]
There
is no basis for the Applicant’s contention that the Board’s complicity analysis
was not sufficiently detailed or thorough. The evidence supports the Board’s
findings and they are reasonable in these circumstances (Kasturiarachchi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 295).
[16]
The
Board accepted the Respondent’s evidence of the activities of the RPA and
Gendarmerie, as it was entitled to do. The Applicant’s career, set out in the
Tribunal Record at page 130, provides sufficient evidence of a nexus
between the Applicant and the wrongful acts of both organizations.
[17]
The
Applicant’s own claim was seriously flawed, a conclusion which the Board was
entitled to make. The Board’s reliance on the Swedish authorities’ decision was
reasonable particularly as to discrepancies in the Applicant’s story.
[18]
While
the findings of foreign authorities are not, except in the most unusual
circumstances, binding on the Board, it is appropriate to give recognition to
decisions by these other authorities where there is a sufficient similarity in
practices, policies and values to those in Canada. In this
instance, the Swedish decision, along with the evidence before the Board,
provided a reasonable basis for the Board’s conclusions.
IV. CONCLUSION
[19]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
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