Date: 20100816
Docket: IMM-5736-09
Citation: 2010 FC 817
Ottawa, Ontario, August 16, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
FRANCINE BUKURU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Background
[1]
The
Applicant is a citizen of the Democratic Republic of Congo (DRC) who is of
Tutsi ethnicity. She claims to have suffered appalling persecution, torture and
cruel and unusual treatment in four principal waves beginning in 1996, when she
was approximately 14 years old, and ending in 2007, when she left the DRC.
[2]
In
the first wave, she alleges that her village was attacked by Zairian soldiers who
accused them of being Tutsi supporters of rebel forces and of having given
refuge to those forces. She alleges that those soldiers killed her parents;
killed her sister, her sister’s husband and their two children after her sister
resisted their attempt to rape her; abducted the remainder of the family;
imprisoned, raped and tortured the women for approximately one week; and threw
the men handcuffed in the Rusizi river, where all but one of them (who was
saved downstream) drowned. She claims to still have the physical scars of that
experience. The Zairian soldiers apparently escaped when attacked by the
aforementioned rebel forces (Alliance des forces démocratiques
de libération (AFDL)).
[3]
The
second wave of alleged atrocities occurred in August 1998, when hostilities
broke out between forces loyal to President Kabila and various militia groups (the
Mai Mai, the Burundian Hutu rebels known as the Forces for National Liberation
(FNL) and the Hutu Forces for the Defense of Democracy (FDD)). At that time, Ms.
Bukuru was living with one of her uncles. She claims that she was repeatedly
raped by men from those marauding militia groups.
[4]
The
third wave occurred in 2004, when she witnessed massacres and escaped to
Rwanda.
[5]
Finally,
in 2007, she claims to have witnessed a violent massacre by troups loyal to
Colonel Mutupeke while she was staying with an aunt in a refugee camp in Kanyola.
She managed to escape death because she was in a toilette outside her aunt’s
tent at the time of the attack. When she eventually came out of the toilette,
she found her aunt and her aunt’s two children dead with their throats slit,
and was unable to find her husband, son and uncle. She then came across the
bodies of many other people in the camp, who appeared to have been killed by
machetes.
[6]
Shortly
afterwards, Ms. Bukuru managed to escape to the U.S. after
obtaining a U.S. student
visa. After spending approximately one month in the U.S., without ever having
attended school, she came to Canada by land, via Buffalo, on July 18, 2007. She
claimed refugee status approximately two weeks later. In the personal
information form (PIF) filed in support of her application, she claimed to fear
death at the hands of the warlords or militia groups that continue to
perpetuate the ethnic conflict in the DRC.
II. The
Decision Under Review
[7]
In
a decision dated November 5, 2009, the Refugee Protection Division (RPD) of the
Immigration and Refugee Board rejected Ms. Bukuru’s application on the basis
that it did not find her to be credible. After expressing doubt as to whether
Ms. Bukuru had ever experienced the atrocities she had described, the RPD
concluded that she had not discharged her burden of demonstrating a
well-founded fear of persecution in the DRC, or a risk described in s. 97 of
the Immigration and Refugee Protection Act (IRPA).
[8]
The
RPD found Ms. Bukuru to be not credible as a result of the following:
i.
There
was no mention of her claim to have been raped in the notes that were made at
the time
she entered Canada;
ii.
She
returned from Rwanda to her village
in the DRC on multiple occasions after
having
obtained refuge in Rwanda during the period 1996 to 2007;
iii.
She
testified that she left the DRC on June 27, 2007, whereas she stated in her PIF
that
she left
on May 27, 2007;
iv.
She
testified that her father was a teacher, whereas he is identified as having
been a civil
servant
(“fonctionnaire”) in her birth certificate;
v.
She
testified that her father died at the age of 42, whereas her birth certificate
states that
he was
47 when she was born;
vi.
She
did not seek a gynaecological or other physical examination after reaching the
refugee
camp where she claimed to have stayed in 1996;
vii.
She
testified that she did not know the name of the person who loaned her in excess
of
US $12,000
for her tuition, notwithstanding that this person accompanied her to the
U.S.; and
viii.
She
did not seek asylum in the U.S. during the period of approximately one
month that
she
spent there before travelling to Canada.
[9]
At
the outset of its decision, the RPD characterized Ms. Bukuru’s claim for
refugee protection as being based on (i) her membership in a social group
consisting of women, and (ii) her claim to being a person in need of
protection, as contemplated by s. 97 of the IRPA.
III. Issues
[10]
Ms.
Bukuru alleges that the RPD erred by:
i.
misunderstanding
and ignoring parts of her testimony, and thereby rejecting the
credibility
of her testimony;
ii.
failing
to consider a report written by two psychologists; and
iii.
misunderstanding
the basis for her claim for refugee protection.
IV. Standard of
review
[11]
The issues that have
been raised by the Applicant are reviewable on a standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51-56; and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paras. 45-46).
[12]
In Khosa, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
[…] Where the reasonableness standard applies,
it requires deference. Reviewing courts cannot substitute their own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within "a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as long as the process
and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
V. Analysis
A.
Did the
RPD err in misunderstanding or ignoring parts of Ms. Bukuru’s testimony, and in
thereby impugning her credibility?
[13]
Ms.
Bukuru’s explanations for the “contradictions” and other credibility issues
raised by the RPD are as follows:
i.
The
notes made at the time of her entry into Canada: Ms. Bukuru
testified that although
she had
difficulty speaking English with the officer at the border crossing where she
entered Canada, she did
mention to that officer that she had been raped, as she
subsequently
claimed in her PIF. She added that she had even shown the officer the
scars
from the wounds she allegedly suffered when she was raped and tortured in
prison. (This
latter fact was not mentioned in the RPD’s decision.)
ii.
Her
repeated returns to the DRC from Rwanda: Ms. Bukuru
testified that civil war
broke out on an episodic
basis in the DRC during the period 1996 to 2007. She stated that whenever
hostilities subsided, they were told that they were no longer welcome in Rwanda. She added
that the DRC refugees in Rwanda were not liked by the Rwandans, in part
because they (the refugees) brought insecurity to the areas of refuge. She
further explained that the refugees were threatened by the Rwandans, that the
refugees felt insecure there, and that conditions in the camps were very
difficult. With respect to the latter, she explained that people were dying
from malnutrition and it was very difficult to sleep in the camps, which were
situated on the slopes of hills, such that their feet would wind up sticking
outside of the tent and constantly getting cold.
iii.
Her
date of departure from the DRC: When asked when she left the DRC, Ms.
Bukuru
stated that it was on
June 27, 2007. However, in her PIF, she stated that she left the DRC on May 27,
2007. In its decision, the RPD took “note” of this contradiction and of the
fact that Ms. Bukuru testified that she decided to leave the DRC on June 26,
2007. A review of the hearing transcript suggests that Ms. Bukuru, whose first
language is Swahili, may not have appreciated that she may have erred when
completing her PIF and that she likely did not fully understood the distinction
that was being drawn between when she decided to leave the DRC and when she
actually left the DRC.
iv.
Her
father’s occupation: Ms. Bukuru testified that her father was a
teacher
(“enseignant”). When she
was informed that her birth certificate indicated that he was a civil servant
(“fonctionnaire”), she explained that everyone employed by the state in the DRC
is called a civil servant, and that her father was employed by the state as a
teacher.
v.
Her
father’s age when he died: Ms. Bukuru’s birth certificate states that her
father was
47 when she was born. When
asked how old her father was when he died, Ms. Bukuru initially stated that she
didn’t remember. She then guessed that he was at least 42 years old. When it
was put to her that she had stated that he was approximately 42 years old when
hostilities broke out in 1996, and that he should have been approximately 66
years old by that time, she replied that she was simply guessing, because she was
not sure of her father’s age. Earlier in her testimony, she replied that she
didn’t know when her parents were born. She also stated that she has memory
problems.
vi. Her failure
to seek a gynaecological or other physical examination: Ms. Bukuru
testified that she was
given some sedatives, Aspirin and antibiotics when she reached a refugee camp
after being imprisoned, tortured and raped for a week in 1996. She further
testified that she requested a medical test with respect to pains in her
stomach (“mal au bas ventre”) and that she was told that there was no equipment
in the camp to provide such tests. When asked why she didn’t consult a doctor
upon her return to the DRC, she replied that she had no money and couldn’t
obtain any from anyone, as the rest of her family members from the village had
been killed. The RPD observed that her failure to explain why she did not seek
a gynaecological or other physical exam “discredited her claim to have been
sexually assaulted” (translation).
vi.
Her
claim to not know the person who loaned her the money for her tuition: When
asked where she obtained
the more than $12,000 required for her tuition fees in the U.S., she replied
that the same person who helped her to obtain her student visa also took care
of paying the tuition fees. She explained that the person is a friend of her
uncle’s wife whose identity she did not know.
vii. Her failure
to claim asylum in the U.S.: Ms. Bukuru testified that
she did not claim
refugee
status in the U.S. primarily because she could not afford to go to school and
she was afraid that, as someone who had entered the U.S. on a student
visa, she would have been imprisoned for not going to school. She added that
she did not have anyone to help her there and that she decided to instead claim
asylum in Canada where she
has a sister, and where there is no racism. In her written submissions, she
further noted that she was legally in the U.S. on a
student’s visa. It appears that she believed that it was not necessary for her
to claim asylum there in order to be able to stay there indefinitely. The RPD observed
that her failure to claim asylum in the U.S. contradicted
her claim to having a subjective fear of persecution and “almost completely”
undermined her claims regarding the difficulties she encountered in the DRC.
[14]
In
my view, it was unreasonable for the RPD to have rejected Ms. Bukuru’s
application for refugee status primarily on the basis that her credibility had
been impugned by the aforementioned “contradictions” and questions that it raised
in respect of the eight matters discussed above.
[15]
In
my view, Ms. Bukuru provided explanations that did not give rise to a
contradiction or a reasonable concern about her credibility, in respect of (i)
why she returned to the DRC from Rwanda on a number of occasions, (ii) her
father’s occupation, (iii) her failure to seek a gynaecological or other
physical examination upon her arrival at the refugee camp in Rwanda in 1996 or
upon her return to the DRC, and (iv) her failure to claim asylum in the U.S.
[16]
As
to the remaining alleged contradictions and questions that the RPD identified or
raised with respect to Ms. Bukuru’s evidence, I find that, individually and
collectively, they were not such as to provide a reasonable basis for rejecting
her application under sections 96 and 97 of the IRPA.
[17]
As
to the date of Ms. Bukuru’s decision to depart from the DRC, as noted at sub-paragraph
13(iii) above, it is not clear that Ms. Bukuru understood what she was being
asked. Regarding the date that she actually left the DRC, it is entirely
possible that the inconsistency between May 27, 2007 and June 27, 2007 was an
inadvertent error. In any event, in the context of her overall testimony, that
error is very minor.
[18]
As
to her father’s age at the time he died, Ms. Bukuru was very explicit in her testimony
that she didn’t know when he was born and that she was simply guessing his age.
[19]
As
to her alleged failure to report that she had been raped when she entered
Canada, Ms. Bukuru testified that she did report this fact to the entry officer
and that she also showed him her physical scars.
[20]
In
my view, on the particular facts of this case, these three “contradictions”,
together with the fact that Ms. Bukuru was unable to or refused to identify the
person who loaned her the money for her U.S. tuition, could not reasonably
justify a conclusion that Ms. Bukuru did not have a well-founded fear of
persecution on the basis of her Tutsi ethnicity, and was not a person in need
of protection, as contemplated by sections 96 and 97 of the IRPA,
respectively.
[21]
Most
importantly, those particular facts include Ms. Bukuru’s very detailed and
unimpugned testimony regarding the appalling persecution that she and her
family suffered in the DRC and her experiences in refugee camps in Rwanda. In
my view, that testimony was so compelling that the inconsistencies or other
difficulties with Ms. Bukuru’s evidence would have had to be much more
important before the RPD could reasonably have concluded that she did not
warrant protection under sections 96 or 97 of the IRPA.
[22]
Given
my conclusion above, it is not necessary to address the remaining issues raised
by Ms. Bukuru.
VI. Conclusion
[23]
The
application for judicial review will be allowed. The decision dismissing the
Applicant’s claim to be recognized as a Convention refugee and a person in need
of protection is set aside. This matter is remitted to a differently
constituted panel of the Board.
[24]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial review is
granted. The Decision dismissing the Applicant’s claim to be recognized as a Convention
refugee and a person in need of protection is set aside. The matter is remitted
to a differently constituted panel of the Board to determine, according to law
and in light of the foregoing reasons, whether the Applicant is a Convention
refugee within the meaning of s. 96 of the IRPA and/or is a person in need of
protection within the meaning of s. 97 of the IRPA.
"Paul S. Crampton"
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