Date: 20111223
Docket:
IMM-3007-11
Citation:
2011 FC 1518
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Montréal, Quebec,
December 23, 2011
PRESENT: The Honourable
Madam Justice Tremblay-Lamer
BETWEEN:
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JUVÉNAL NSENGIYUMVA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision of a pre-removal
risk assessment (PRRA) officer refusing the applicant’s pre-removal risk
assessment application.
[2]
The
applicant, a citizen of Rwanda of Hutu origin, is a Catholic priest, ordained
in August 1992 in the Diocese of Ruhengeri, where he worked as an educator
and a disciplinary prefect from September 1993 to July 1994. He alleges the
following facts in support of his application.
[3]
In
July 1994, he fled to Goma in the Democratic Republic of the Congo (DRC)
following the massacres of Hutu priests and bishops by the forces of the Rwandan
Patriotic Front (RPF) in his country. Even in the DRC, the applicant was not beyond the reach of RPF
militants. According to him, he was put on a hit list.
[4]
On August
2, 1994, he and 28 other Rwandan diocese priests who had sought refuge in Goma
sent a letter to Pope John Paul II in order to inform him of the situation in
Rwanda. According to that letter, the RPF was guilty of massacres during the
genocide, the International Criminal Tribunal for Rwanda (ICTR) was headed by
war criminals and the Tutsis held all the rights in Rwanda.
[5]
Not finding
anywhere else to seek refuge, the applicant returned to the Archdiocese of
Rwanda in April 1997, and remained there until his departure for Canada. During
1998 and 1999, several of his colleagues were killed by RPF forces. His father,
his two brothers and his uncle suffered the same fate.
[6]
When he
was coming back to his place of residence in the bishopric in July 1999, he was
attacked by a lieutenant of the Rwandan army and received death threats. After
that, he decided to leave for Canada.
[7]
The
applicant arrived in Canada in September 1999, and filed a refugee protection
claim in November 1999, which was rejected by the Convention Refugee
Determination Division (CRDD).
The application for leave filed with respect to that decision was dismissed in
February 2002.
[8]
In
August 2007, Citizenship and Immigration Canada issued a report under
subsection 44(1) of the IRPA stating that the applicant was inadmissible
because he had been found guilty of impaired driving.
[9]
Two
months later, his application for permanent residence on humanitarian and
compassionate grounds was also refused.
[10]
On January
31, 2011, he filed a PRRA application, indicating that he feared for his life,
safety and physical security if he were to return to Rwanda for the following
reasons:
a.
Rwanda’s recently
enacted legislation on genocide ideology and sectarianism is broad and unclear
so as to help the government to suppress all opposition to the RPF. Since he is
one of the co-authors of a letter to the Pope expressing his opposition to the RPF,
he could be imprisoned or assassinated.
b.
The Kagame
regime tries to take revenge on the Catholic Church and attacks certain
elements that could interfere. He could be one of these “elements”.
c.
Since he
is of Hutu origin, he could be persecuted if he were to return to Rwanda.
d.
The fact
that his refugee protection claim was rejected, that his narrative mentioned an
attempt on his life and that the CRDD attributed to him a negationist attitude
towards the genocide could expose him to a risk of imprisonment if he were to return
to Rwanda.
e.
His
statements against the Rwandan authorities during masses and conferences for
the Rwandan community in Montréal could put him at risk on his arrival in
Rwanda.
[11]
His PRRA
application was refused on April 21, 2011.
[12]
In
his decision, the officer examined a long list of documents submitted by the
applicant in support of his application, rejecting several because of their
bias, because of the difficulty of identifying the sources of information or
because they were not useful in establishing a link with the applicant’s
personal situation.
[13]
These
documents included an expert report on Rwandan legislation against genocide
ideology, prepared by Evode Uwizeyimana following an order received by the
applicant, which was given little weight. According to the officer, Mr.
Uwizeyimana’s conclusions show only his personal interpretation of the
legislation in question and provide no information on the applicant’s personal
situation.
[14]
With
respect to the risk related to the letter sent to the Pope in 1994, the officer
noted that the letter was written a few weeks after the end of the genocide. Nothing
shows that the Rwandan government is aware of its existence or that the other
co-writers of the letter had been imprisoned or mistreated simply because they
had signed it. The officer noted that the applicant returned to live in Rwanda
between 1997 and 1999 without having any problems.
[15]
The
officer acknowledged that the Rwandan legislation on the ideology of genocide
and sectarianism is deliberately broad and imprecise and that it could be used
to settle scores unrelated to the Rwandan genocide. The evidence shows that
journalists and political leaders have been targeted for “negationism” by the current
authorities. However, the wording of these acts and their application do not
lead to the conclusion that the applicant would personally be targeted by the authorities.
[16]
The
officer based himself on the 2010 US Country Report in rejecting the
applicant’s allegations that his Hutu ethnicity would put him at risk if he
were removed to Rwanda. Even though the Rwandan government is still
launching offensives against Hutu rebels and that several people are dead, the
applicant has not shown that he may be considered an opponent, rebel or
dissenter.
[17]
The
officer also concluded that the applicant did not show that his refugee claim
was brought to the attention of the Rwandan government or that he had made
statements against the government during masses and conferences. Although the applicant
submitted documents in which it was stated [Translation] “that a refugee claimant
removed to Rwanda was apparently found guilty of defamation since he apparently
made misrepresentations and used falsified documents” and that there had been [Translation]
“arrests and convictions of certain persons belonging to the clergy”, he did
not show that may he be considered as an opponent, rebel or dissenter and thus
be at risk if he returned to Rwanda.
[18]
Is
the PRRA officer’s decision reasonable?
[19]
In
this case, it is essentially a matter of weighing the evidence, which requires greater
deference from the Court.
[20]
In
his decision, which is very detailed and well reasoned, the officer mentioned
documents filed by the applicant as well the reasons why he rejected some of
them or attributed little weight to them. The officer raised doubts with regard
to the objectivity of the authors and the independence of the sources, which he
was entitled to do, especially since the information is related to events
closely linked to a political context.
[21]
As
for the report of Evode Uwizeyimana, first, it seems to be supporting, with
good reason, the statement that some Rwandan laws are used to [Translation] “muzzle the opposition and critics”. The author
specified that removing the applicant to Rwanda would be a highly risky
decision. However, the officer attributed little weight to it because of the absence
of any nexus between the information described in the report and the applicant’s
personal situation. In fact, Mr. Uwizeyimana cannot testify about the
applicant’s activities, about his being known to the Rwandan authorities or about
their interest in him. The weight to be attributed to this piece of evidence
was entirely up to the officer’s discretion and cannot in itself warrant the
Court’s intervention.
[22]
As
for the letter addressed to Pope John Paul II, which denies the existence of a
genocide of Tutsis in Rwanda, nothing indicates that people could be prosecuted
for merely signing a letter.
[23]
In
sum, it is apparent from reading the officer’s decision that he carefully
considered the evidence submitted by the applicant. He truly took into account
the fact that the applicant had been identified by the CRDD as having a negationist
attitude towards the genocide, but nevertheless concluded that he had not
demonstrated that the CRDD decision had been brought to the attention of the
Rwandan government. The mere fact that the Court files are open to the public
does not make it possible to conclude that Rwandan authorities have been
informed of the decision – even less so of a decision rendered 10 years ago –
and that they are interested in the applicant.
[24]
As
to his actions in Canada, the applicant did not submit any probative evidence
that participating in a demonstration five years ago and some imprecise
statements or declarations he has allegedly made could establish a personalized
risk if he were to return to Rwanda.
[25]
The
officer concluded that the applicant had simply not submitted any probative
evidence in support of the allegations in his narrative. That decision is
reasonable because it falls within “a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 CSC 9, (2008) 1 SCR 190).
[26]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation
Margarita
Gorbounova, Translator
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