Date:
20121022
Docket:
IMM-9799-12
Citation:
2012 FC 1230
Ottawa, Ontario,
October 22, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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JEAN LEONARD TEGANYA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
This
decision is in response to an application, heard today, Monday morning, October
22, 2012, to stay the Applicant’s removal to Rwanda in less than eighteen
hours, at 3:30 a.m., Tuesday, October 23, 2012.
[2]
The
Applicant came to Canada in 1999; he was excluded from refugee protection under
Articles 1(F)(a) and 1(F)(c) of the Convention relating to the Status of
Refugees, not once, but twice (twice, due to a procedural fairness argument in
respect of the first hearing he had had before the Refugee Protection Division
[RPD] of the Immigration and Refugee Board).
[3]
The
first RPD decision was set aside by this Court due to an accepted challenge to
procedural fairness.
[4]
The
second decision, as did the first RPD decision, nevertheless, still determined
that the Applicant, as a medical intern in a Rwandan hospital where atrocities
had taken place, had lived in a context of direct knowledge of atrocities
committed; and, as a result, he was determined to have been complicit.
[5]
Upon
considering the Applicant’s case anew, the RPD decided that the Applicant is to
be excluded under the very same articles of the Convention relating to the
Status of Refugees as had been determined in the first decision of the RPD:
Article 1
F. The provisions of this
Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
( a ) He has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the international instruments
drawn up to make provision in respect of such crimes;
…
( c ) He has been guilty of acts contrary to the
purposes and principles of the United Nations.
[6]
The
second decision of the RPD specified that moderate Hutus and Tutsis had been
killed at the same hospital where the Applicant was present during a massacre.
The fact that the Applicant was left unscathed was conceived by the RPD to have
demonstrated that the Applicant had been considered to be an extremist.
[7]
Although
the information on file specifies that the Applicant’s father belonged to the
ruling party during the genocide, and, that the father of the Applicant had
been arrested, detained and sentenced to twenty two years imprisonment, does
not implicate the Applicant as having been associated with crimes his father may
have committed. To date, the Applicant was never, knowingly, charged, neither was
he accused of anything, nor was there any investigation in his regard by the
Rwandan government.
[8]
Although
pre-trial detention does exist in Rwanda for those who stand trial, the
Applicant’s evidence in that regard and country conditions, considered in a
second Pre-Removal Risk Assessment [PRRA], determined no clear and convincing
evidence of a risk to the Applicant.
[9]
Country
conditions do not support a determination of a speculative nature of
“irreparable harm” to the Applicant, even if he is, or would be, wanted for
genocide atrocities. Under the country conditions before the second PRRA
decision-maker, the second decision, itself, in that regard, clearly stated (in
view of no new evidence of significance having been provided since the first
PRRA decision), that fears of criminal prosecution in Rwanda, do not support an
argument for a finding of “irreparable harm” (second PRRA decision of March 7,
2012 at p 7 of the Motion Record).
[10]
It
is important to note that this Court has clearly stated in a June 2011 decision,
in respect of the second PRRA determination, that the determination of that
PRRA is not unreasonable even with the possibility of a prolonged detention or
of prison conditions as they were specified in the evidence before the PRRA
decision-maker.
[11]
This
Court, in regard to this application, has been made fully cognizant, through
written and oral arguments by counsel on both sides, of the decisions of the
Refugee Protection Division, two Pre-Removal Risk Assessments and one decision
in regard to humanitarian and compassionate [H&C] grounds, all of which
have been dismissed by decision-makers in the past in respect of the Applicant.
[12]
For
all of the above reasons, the tri-partite Toth v Canada (Minister of
Employment and Immigration) (1988), 86 NR 302 (FCA) decision test
is not met in any of the three conjunctive, thus, essential, criteria of that
test; therefore, the stay of removal is denied.
ORDER
THIS
COURT ORDERS that the Applicant’s application for a stay
of removal be dismissed.
“Michel M.J. Shore”
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