Date:
20121023
Docket:
IMM-2778-12
Citation:
2012 FC 1212
Ottawa, Ontario,
this 23rd day of October 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Rachel KAYINAMURA
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
On
March 21, 2012, Rachel Kayinamura (the “applicant”) filed the present
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”). The Board held the applicant was not a Convention
refugee or a person in need of protection under sections 96 and 97 of the Act.
* * *
* * * * *
[2]
The
applicant is a citizen of Rwanda and of the Tutsi ethnicity. The applicant was
17 years old during the Rwanda genocide.
[3]
The
applicant alleges she was spending Easter vacation with her aunt when the
genocide began. The applicant claims that Hutu militants captured her, her
aunt, and her aunt’s servant.
[4]
The
applicant alleges the militants spared her life because Mr. Mparibatenda
Theodomir, who had an alcohol store frequented by the militants, decided to
keep the applicant for himself. The applicant alleges that for more than a
month she was held hostage by Mr. Theodomir. She claims he raped and beat her
many times during this period. The applicant alleges she was rescued by the Front
patriotique rwandais.
[5]
The
applicant claims she participated at the Gacaca court between 2007 and 2009,
where she accused Mr. Theodomir of rape and accused four other individuals,
Mbyariyehe Gaspard, Ngirabanzi Felicien, Ahishakiye Jean, and Nshimiyimana
Bosco, of capturing and beating her, her aunt, and her aunt’s servant, and
intending to kill them.
[6]
After
she gave her testimony, the applicant claims she received death threats from
these individuals and their families in person, as well as anonymous threats
over the telephone. She did not report these threats to the police because she
could not prove them.
[7]
The
applicant alleges that of the five individuals she testified against at the
Gacaca court, only Mr. Theodomir was given a prison sentence. The applicant
claims Mr. Theodomir appealed his sentence in early 2009 and he was liberated
in circumstances unclear to the applicant.
[8]
In
January 2009 the applicant claims she saw the liberated Mr. Theodomir. He
allegedly told her he would kill her if she dared pursue him again. Unable to
hold herself back, the applicant claims she responded that she would continue
to pursue him. She allegedly proceeded to address herself to the Attorney
General of Kigali to ask that Mr. Theodomir’s file be revisited.
[9]
In
February 2009, the applicant alleges she received two notes telling her that
her death was near. She claims she brought them to the police so they could
investigate.
[10]
On
the evening of March 2, 2009, the applicant alleges that as she left work, she
was kidnapped by two men she had never seen before. The men allegedly told her
she should die so she would stop pursuing the Hutus. One of the abductors
allegedly raped her. The applicant claims she was rescued by two of her
coworkers who had followed the kidnappers’ vehicle. The kidnappers allegedly
fled, and the applicant and her coworkers contacted the police.
[11]
The
applicant claims she spent one week in hospital following the kidnapping. She
started to have nightmares about her recent aggressors, whom the police had not
been able to find.
[12]
Afraid
for her safety, the applicant decided to take the opportunity to travel to the United States with her traditional dance group. She left Rwanda on April 21, 2009 and
arrived in the United States the following day.
[13]
The
applicant arrived at the Lacolle border crossing on July 10, 2009 to claim
refugee protection in Canada.
* * * * * * * *
[14]
The
Board found that the applicant was not credible and her testimony not reliable
regarding the essential elements of her claim for refugee protection.
[15]
In
addition, the Board found that even if the applicant was credible, her claim
would fail on the issue of state protection. The Board found that the fact the
police had not arrested the men who kidnapped her in 2009 in the six weeks
prior to the applicant’s departure from the country was not clear and
convincing proof that state protection is inadequate in Rwanda. The Board also noted documentary evidence on the availability of witness protection
in that country.
[16]
This
matter raises the following issues:
- Did the Board err in its
determination that the applicant was not credible?
- Did the Board err by determining that state protection
is adequate for the applicant in Rwanda?
* * * * * * * *
[17]
I
intend to deal first with the issue of state protection.
[18]
The
standard of review applicable to a finding of state protection, which is a
question of mixed fact and law, is ordinarily reasonableness (Ramokate v.
The Minister of Citizenship and Immigration, 2012 FC 210 at para 9; Hinzman
et al. v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171,
362 N.R. 1 at para 38).
[19]
When
reviewing a decision on the reasonableness standard, the Court must determine
whether the Board’s findings fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47). Although there may
be more than one possible outcome, as long as the Board’s decision-making
process was justified, transparent and intelligible, a reviewing court cannot
substitute its own view of a preferable outcome (Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).
[20]
The
applicant argues the Board’s finding on state protection is unreasonable
because witness protection is inadequate in Rwanda. The applicant refers to the
2010 U.S. Department of State report for Rwanda and identifies statements in
the report that show witness protection is weak.
[21]
For
his part, the respondent argues the applicant did not provide clear and
convincing proof to reverse the presumption that Rwanda is capable of
protecting its citizens. The respondent refers to Carrillo v. Canada (The Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636.
[22]
I
agree with the respondent that the applicant did not exhaust all internal
courses of action available and did not provide clear and convincing evidence
that Rwanda was not able to protect its citizens.
[23]
First,
the applicant did not file any complaints against four of the five agents of
harm. Yet, she alleges that she had received death threats from them.
[24]
Second,
when the applicant called the police after she was kidnapped and raped in 2009,
they immediately came to the crime scene and started investigating. They only
had had one month and a half to try to find the assailants before she left the
country. Since even in Canada, as pointed out by the respondent, individuals do
not always face justice so fast, I find that the inability of the police to
find the assailants in the six weeks before the applicant left Rwanda is not clear and convincing proof that witness protection is inadequate in Rwanda. Moreover, state protection does not need to be perfect (see Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J.
No. 1189 (F.C.A.), 99 D.L.R. (4th) 334 at para 7).
[25]
Third,
the Board referred to the U.S. Department of State Human Rights Report on Rwanda for 2010, which is the same report upon which the applicant relies. As noted by the
applicant, the report identifies instances of threats and violence against
genocide witnesses in Rwanda. However, as reasonably noted by the Board, there
is a task force in place that monitors genocide survivors deemed most at risk.
The documentary evidence showed that local authorities and communities were in
charge of protecting witnesses, that they were putting important efforts into
doing so, that threats and violence against genocide survivors had
significantly decreased and that there were no reports of genocide survivors or
witnesses killed during the year. Contrary to the applicant’s allegations, this
demonstrates that authorities and communities in Rwanda are making significant
efforts to protect witnesses and that it has proved to be efficient.
[26]
Therefore,
in my opinion, the Board reasonably determined that state protection is
adequate for the applicant in Rwanda. As this finding is determinative of this
application for judicial review, it will not be necessary to deal with the
other issue of credibility.
* * * * * * * *
[27]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[28]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board rendered on February 20, 2012 is dismissed.
“Yvon
Pinard”
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