Date: 20010305
Docket: IMM-4250-09
Citation:
2010 FC 257
Ottawa, Ontario, March 5, 2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
YVES
KAMBALE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is challenging the legality of a decision rendered by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board),
dated August 12, 2009, rejecting his application for refugee protection by
reason of his lack of credibility. For the following reasons, this application
cannot succeed.
[2]
The
applicant states that he was persecuted in Rwanda because of his ethnicity. Let us begin
by noting that the applicant was born on May 6, 1983, and that he is a citizen
of Rwanda. His father is Congolese and
his mother was a Rwandan citizen of Hutu ethnicity. His mother died on August
10, 1998. Even though his father is Congolese and he himself had lived in the
Democratic Republic of the Congo (DRC) for most of his life, the applicant is
not a citizen of the Congo and cannot become one.
[3]
The
applicant’s principal allegations can be summarized as follows.
[4]
The
applicant’s mother had owned two houses in Kigali in Rwanda, and the applicant inherited both of
them. When he returned to Rwanda, the applicant tried to
collect rent from the tenants. It was at this time that his problems started.
Tutsi officers from the Front Patriotique Rwandais (FPR) had been living in the
houses in question. Up until 2007, they had allegedly paid their rent. However,
in March 2007, it appears that the officers refused to pay him the rent they
owed him, telling him that [translation] ‘‘[the Hutu] reign was over
and that it was now [the reign of the Tutsis]’’.
[5]
According
to the applicant, the officers in question threatened him. When the applicant
appeared before a judge, he reportedly learned that his late mother had a case
pending before the Gacaca courts and that it would be to his advantage to calm
down; otherwise, he himself could be brought before those courts. After having
consulted two lawyers who did not wish to take on his complaint concerning the FPR
officers, the applicant purportedly returned to the university located in the
city of Butare. At the beginning of July
2007, he was apparently informed that his scholarship would be cancelled as of
August 2007. He suspected that the cancellation of his scholarship was directly
linked to his complaint against the FPR officers. It was at that time that the
applicant understood that his life would be in danger if he were to remain in Rwanda. Towards the end of July, he
returned to Kigali to obtain a visa for entry to the United States. On August 16, 2007, the applicant
arrived in Canada.
[6]
In
determining that the applicant was not credible, the Board noted the following:
…the claimant provided evidence that was
marked by a certain number of inconsistencies and misrepresentations, which
undermined his credibility.
…
The panel asked the claimant whether he
had evidence of the charges against his late mother. The claimant stated that
he had no proof, but based himself on remarks that a judge examining his claim
concerning the rent owed had apparently made. He did not see a copy of the
indictment against his late mother and received no summons or notice to appear
in connection with this case which allegedly concerned his mother who had been
dead more than eight years.
The panel finds it implausible that the
claimant could be prosecuted for events of which he is totally unaware, which
unquestionably do not concern him, and which allegedly concern an individual
who has been dead more than eight (8) years when the supposed recriminations
were made against him, the son. When asked to explain, the claimant testified
that he himself did not understand the scheme whose sole purpose was allegedly
to create the conditions needed to imprison him and cause his death, as he was
directly threatened, according to him... .
…
…The panel asked him whether he would
have continued to study if his scholarship had been renewed as it was. The
claimant replied that he would have continued to attend the same university if
his scholarship had been renewed. The panel also asked him why he decided to
leave his country. The claimant replied that he left because his scholarship
was not renewed and because of the alleged threats against him, threats which,
in the panel’s opinion, did not prevent him, providing that his story is true,
from continuing his studies at the same university and leaving only when he no
longer had the means to pursue his studies and when he had satisfied the
requirements to come to Canada.
The panel finds that the claimant is
basing himself on personal assumptions throughout his testimony. He makes
deductions based on his personal analysis of the situation, both in terms of
the statement allegedly heard by him concerning the case of his late mother
before the GACACA and in terms of the reasons behind the alleged cancellation
of his scholarship. He also drew conclusions from the alleged visit of his
friend, with whom he played soccer. According to the claimant, the fact that
his friend came to inquire about him apparently implied that there was
something not quite right.
Furthermore, given the claimant’s
testimony, his behaviour clearly indicates a lack of a fear of persecution. He
acknowledged that he continued to attend his university and that he would have
continued to do so if his scholarship had not been cancelled. He did not leave
his country of citizenship because he allegedly lost his bursary, but because
he personally drew conclusions from the facts, facts that do not withstand
scrutiny because of their improbability.
…
[7]
After the
hearing held on July l6, 2009, counsel for the applicant sent a letter to the
Board along with a supplementary affidavit. The people with whom the applicant
had lived in Rwanda had telephoned to warn him
that, on August 3, 2007, someone had tried to serve on him a notice to appear
before the Gacaca court. The Board received the affidavit but refused to reopen
the hearing, because the affidavit was in relation to [translation] ‘‘a question that did [not]
seem relevant’’.
[8]
The
applicant raises two arguments against the impugned decision:
a) the
Board erred when it failed to consider the evidence in the applicant’s
supplementary affidavit; and
b) the
Board erred when it concluded that it was implausible that the applicant was
targeted by the Rwandan authorities for actions attributed to his late mother.
[9]
It is the
view of the Court that none of these arguments can succeed.
[10]
First of
all, the applicant submits that the supplementary affidavit corroborates the
fact that he left Rwanda after having learned that the
authorities had tried to serve on him a notice to appear on August 3, 2007,
specifying that he was to appear before a Gacaca court. According to the
applicant, the Board should have taken this important piece of evidence into
consideration and explained in its decision why it dismissed this relevant
evidence, which it did not do in this case.
[11]
However,
the Board has exclusive jurisdiction to assess the relevance and the probative
value of the applicant’s supplementary affidavit. It must be noted here that
the supplementary affidavit comes from the applicant himself and that it is not
supported by extrinsic evidence. At any rate, the affidavit adds nothing new, other
than a date that the Board should have considered. In the case at bar, the
applicant had already testified that the Rwandan authorities had officially
sent him a notice to appear but that he had not been at home to receive it. The
Board did not believe the applicant’s narrative because of the implausibility
it cited in its decision. In this respect, the applicant has not been able to
explain why he would be personally targeted today for an accusation made
against his mother, who has been deceased for eight years now, which leads me
to examine the applicant’s second argument.
[12]
The
applicant further submits that the Board erred by failing to consider the
context of post-genocide Rwanda and the applicant’s Hutu
ethnicity. The applicant’s story is not implausible. To this effect, the
applicant notes that ‘‘plausibility findings should be made only in the
clearest of cases, i.e., if the facts as presented are outside the realm of
what could reasonably be expected, or where the documentary evidence
demonstrates that the events could not have happened in the manner asserted by
the claimant’’ (Valtchev v. Canada (Minister of Citizenship and Immigration),
2001 FCT 776 at paragraph 7).
[13]
Nevertheless,
in the matter under review, the Court cannot conclude that the implausibility
finding is unreasonable in the case at bar. The Board is in a better position
than the Court to determine whether the applicant’s allegations are supported
by the evidence or whether they are plausible under the circumstances. Since Dunsmuir
v. New Brunswick, 2008 SCC 9 (Dunsmuir),
reasonableness is the applicable standard of review for questions of fact and
questions of credibility (Sukhu v. Canada (Minister of Citizenship and Immigration),
2008 FC 427 at paragraph 15; Khokhar v. Canada (Minister of Citizenship and Immigration), 2008 FC 449 at paragraph
22). Reasonableness ‘‘is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law’’ (Dunsmuir,
above, at paragraph 47).
[14]
In this
case, the Board’s finding that the applicant is not credible on a fundamental
element of his claim in fact amounts to a finding that there is no credible
evidence sufficient to justify the refugee claim in question (Tsafack v.
Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 506 at
paragraph 3 (T.D.) (QL)). Furthermore, it is well established that the Board is
entitled to consider the claimant’s behaviour when assessing his or her
credibility (Sainnéus v. Canada (Minister of Citizenship and Immigration),
2007 FC 249 at paragraph 12; Sanchez v. Canada (Minister of Citizenship
and Immigration), 2006 FC 648 at paragraph 11) and that ‘‘[t]his assessment
of personal demeanour ought not to be interfered with by this Court which lacks
the advantages available to the triers of fact’’ (Wen v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 907 at paragraph 3 (QL)).
[15]
In the
case at bar, the Board specifically noted in its decision that the narrative
was inconsistent and that the applicant’s testimony was characterized by
prevarications which contributed to the negative credibility finding. The
applicant was unable to provide any details or tangible evidence with regard to
the accusations levelled against his late mother. According to the Board, the fear
of persecution raised by the applicant is based solely on his own personal
assumptions. Furthermore, after having been asked whether he would have
remained in Rwanda had he not lost his
scholarship, the applicant answered in the affirmative. The Board therefore
noted that the applicant’s behaviour ‘‘clearly indicates a lack of fear of
persecution ... [because] he acknowledged that he continued to attend his
university and that he would have continued to do so if his scholarship had not
been cancelled’’.
[16]
All things
considered, the Board’s decision is reasonable in the sense that the impugned
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[17]
The
application for judicial review must therefore be dismissed. No question of
general importance was raised by the parties and none arises in the case at bar.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
‘‘Luc
Martineau’’
Certified
true translation
Sebastian
Desbarats, Translator
Email this Content