Date: 20090401
Docket: IMM-4178-08
Citation: 2009 FC 335
Toronto, Ontario, April 1, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
THIERRY
ISHIMWE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Thierry Ishimwe (the “Applicant”) seeks judicial review of the decision of the
Immigration and Refugee Board, Refugee Protection Division (the “Board”), dated
August 20, 2008. In its decision, the Board found that the Applicant is not a
Convention refugee nor a person in need of protection as defined in sections 96
and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”).
[2]
The
Applicant, a citizen of Burundi, fled his country of
birth on April 14, 2006. He arrived in Canada on April 21,
2006 via Addis Ababa, Ethiopia, and Washington and Buffalo, United
States of America. He filed his claim for refugee protection at the
Canada-U.S. border on April 21, 2006.
[3]
The
Applicant based his claim for protection upon fear of death at the hands of
persons recently released from prison who had been charged with offences during
the ten-year civil war in Burundi. These prisoners had
been released when the National Council for the Defence of Democracy-Forces for
the Defence of Democracy came to power in 2005.
[4]
The
Applicant’s parents had been killed during the civil war. The Applicant said
that the people who killed his parents were among the prisoners who were
released in February 2006. The Applicant saw one man named Delphin
approximately ten days after his release. The Applicant says that Delphin, upon
seeing him, slid his hand across his throat, threatening that he would kill
him.
[5]
The
Applicant says that the released former prisoners hold considerable power in Burundi. In his
Personal Information Form (“PIF”), he noted that Delphin’s brother is a police
commander.
[6]
The
Applicant claims that after sighting Delphin on the street, he received a
number of anonymous telephone calls, warning that he would end up like his
parents. He says that people began visiting his house at the end of February.
He did not report these events to the police due to the connection between
Delphin and others, and the police.
[7]
The
Applicant applied to an American university and was granted admission. His
application to the American authorities for a visa was granted on April 6,
2006.
[8]
The
Board’s decision was based on its negative credibility findings, including the
inconsistencies in the Applicant’s evidence concerning his intended time of
departure from Burundi, inconsistencies about the visits to his home, his
characterization of Delphin’s brother in his PIF as a police commander while
referring to this man in his evidence before the Board as the Chief of the
National Police and the lack of documentary evidence in support his claim.
[9]
In
this regard, the Board drew a negative inference from the Applicant’s
failure to produce the acceptance letter from the American university where he
had supposedly gained admission. The Board also commented on the employment
letter from a Canadian employer; this letter was unsigned and was dated March
17, 2006, prior to the Applicant’s departure for Canada.
[10]
The
Applicant argues that the Board erred in two respects in making its credibility
findings. First, he challenges the Board’s treatment of his evidence, both in
his PIF and at the hearing regarding the status of Delphin’s brother as being
both a police commander and the Chief of the National Police. He says that the
alleged contradiction here is more apparent than real.
[11]
Second,
he takes issue with the Board’s finding that American universities do not grant
admissions in the time frame that he described. The Applicant argues, as well,
that there is no evidence to support the Board’s conclusions that the American
Embassy in Burundi does not
issue student visas in the time frame indicated.
[12]
For
his part, the Minister of Citizenship and Immigration (the “Respondent”) notes
that the Applicant is challenging only two of the credibility findings made by
the Board. However, these findings are reasonable in light of the evidence
before the Board and there is no basis for judicial intervention.
[13]
Pursuant
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, administrative
decisions of statutory decisions makers are reviewable on either the standards
of reasonableness or correctness. It also noted that where existing
jurisprudence has established a standard of review, a reviewing court may adopt
that standard. In Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315,
the Federal Court of Appeal found that credibility findings should be reviewed
on the standard of patent unreasonableness. Since the decision in Dunsmuir,
that standard has merged into the standard of reasonableness. That standard
will be applied in this case.
[14]
The
Board asked the Applicant why he had initially described Delphin’s brother as a
commander and that later referred to him as the police chief. The Applicant
replied that he “explained that in French. The one who is in charge of the
police we call him the commander.”
[15]
This
answer was unsatisfactory to the Board. The answer, in my opinion, does not
explain the inconsistency. The Applicant wrote his PIF in English. It was open
for the Board to find an inconsistency in the Applicant’s evidence and to draw
a negative conclusion as to his credibility.
[16]
As
for the timing of his departure and the admission letter, the Board provided
the Applicant with the opportunity to answer its concerns. He did not do so.
The burden lay upon the Applicant to produce documentary evidence in support of
key elements of the claim. It was open to the Board to reject the Applicant’s
explanation as to why he was unable to produce a relevant document.
[17]
In
the result, there is no basis for judicial intervention. The application for
judicial review is dismissed, there is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed, no question for certification
arising.
“E.
Heneghan”
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