Date: 20070405
Docket: IMM-2037-06
Citation: 2007 FC 368
Ottawa, Ontario, April 5,
2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
NADIA
ITEKA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
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,
S.C. 2001, ch. 27 (IRPA) of a decision of the Refugee Protection Division (RPD)
of the Immigration and Refugee Board (IRB), dated March 23, 2006, finding that
Nadia Iteka (Applicant) is neither a Convention refugee, pursuant to section 96
of IRPA, nor a person in need of protection, pursuant to section 97 of IRPA.
I. Facts
[2]
The
Applicant is from Burundi and is of Tutsi origin. In Burundi, she lived
in Bujumbura in the Musaga
zone until July 2002 when she moved to the Kinindo zone of the city. In
November 2002, the Applicant once again moved, this time to the Rohero zone of
Bujumbura.
[3]
On
July 31, 2002, the Forces nationales de libération Palipehutu (FLN) attacked the
Musaga zone of Bujumbura. The Applicant, her mother and her sisters had
escaped to an aunt’s house prior to the attack, while the Applicant’s father
had stayed in the family home to protect their goods. During the attack the
Applicant’s father was killed.
[4]
Between
the months of July 2002 and November 2002, Bigirimana, a soldier in the FLN,
began to visit the Applicant while she was living with her aunt in the Kinindo
zone of Musaga. During these visits Bigirimana proclaimed his love to the
Applicant and told her repeatedly that he would marry her. The Applicant
rejected Bigirimana’s advances.
[5]
Birigimana
did not visit the Applicant between November 2002 and June 2004, but continued
to harass her by telephone.
[6]
In
June 2004, after Bigirimana was named “commander” in the FLN he sent soldiers
to the Applicant’s residence, so as to kidnap the Applicant and bring her to
him. The soldiers were unable to enter the Applicant’s residence.
[7]
As
a result of the failed kidnapping, the Applicant took steps to obtain a visa so
she could leave the country. On March 25, 2005, she left Burundi.
[8]
The
Applicant arrived in Canada on April 1, 2005 and claimed refugee
status this same day.
II. Issues
(1) What is the
standard of review applicable to adverse credibility determinations made by the
RPD?
(2) Did the RPD
err in concluding that the Applicant was not credible?
III. Analysis
(1) What is the
standard of review applicable to adverse credibility determinations made by the
RPD?
[9]
The
case law of this Court is clear; the Court will not interfere with findings of
the RPD relating to credibility unless they are patently unreasonable. The
Court has stated repeatedly that the RPD is in a better position than the Court
to make credibility determinations as it is a tribunal with specialized
jurisdiction and it has the opportunity to observe first hand the testimony
given by refugee claimants (Aguebor v. Canada (Minister of Employment and
Immigration), (1993), 140 N.R. 315 (FCA); Ahortor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.); Tekin v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 357).
(2) Did the RPD
err in concluding that the Applicant was not credible?
[10]
The
RPD found the Applicant’s narrative and submissions not credible. The RPD took
particular issue with the following :
(a) The Applicant
stated that the FLN attacked her family home on July 31, 2002. The Applicant
alleges that she escaped, as did her mother and her sisters, but that during
the attack her father was killed. Yet, the Applicant did not provide details
or evidence of the attack;
(b) The Applicant
claims that her agent of persecution was a FLN rebel named Bigirimana, who
wanted to marry her. Yet, the Applicant did not name her agent of persecution
or the organisation to which he belonged in her Port of Entry (POE) statement;
(c) The Applicant
stated that she and her family moved in with an aunt after the July 31, 2002
attack. For a period of approximately two years, the Applicant stated that
Bigirimana did not visit her or her family. However, the Applicant claimed that
during this two year timeframe, Bigirimana telephoned her five times. The
dates of these phone calls could not be recollected by the Applicant, except
for one phone call which she claims was made on her sister’s birthday. In
addition, the alleged telephone calls contradict evidence that the Applicant
was hiding at her aunt’s home where she could not be found;
(d) It was
implausible that the rebels sent by Bigirimana to kidnap the Applicant would
have retreated after neighbours shot at them.
[11]
Having
reviewed the submissions of the parties and the RPD’s reasons for finding the
Applicant not credible, I find the RPD’s conclusion as to the Applicant’s
credibility patently unreasonable on the basis that the RPD made errors of
importance.
[12]
First,
the RPD, in its decision, stated the following in what concerns the July 31,
2002 attack (RPD Decision, Tribunal Record, page 10):
Le tribunal n’a pas
trouvé non plus digne de foi le témoignage oral de la demanderesse concernant
l’attaque et l’invasion de sa maison familiale par des soldats du FLN, le 31
juillet 2002. Elle a témoigné que son père était médecin et que toute la
famille était dans la maison quand des soldats sont arrivés.
Son père a été tué en
voulant leur résister. La demanderesse n’a pu expliquer comment elle, ses deux
sœurs et sa mère ont sauvé leur vie en fuyant. Le tribunal estime que malgré
les circonstances chaotiques entourant cette invasion, elle aurait du pouvoir
fournir au tribunal un minimum de détails concernant sa fuite. Elle s’est
contentée de répondre aux questions sur ce point en mentionnant simplement
qu’elles se sont réfugiées chez une tante paternelle. Le tribunal trouve
étrange que la demanderesse n’ait pas pu fournir des preuves documentaires pour
confirmer soit l’attaque du 31 juillet 2002, soit le décès de son père ou la
confirmation des circonstances entourant la mort de son père. Il est
raisonnable de croire qu’elle aurait pur fournir ces preuves pour confirmer que
le décès de son père fut un événement violent. Voyant que son père était
médecin, il est raisonnable de croire que ce sujet aurait obtenu reportage dans
la presse. La demanderesse n’avait pas fait effort pour obtenir ce genre de
preuve.
[Emphasis added]
The RPD’s finding that the Applicant did not
provide details or evidence of the July 31, 2002 attack is wrong. The
Applicant provided the RPD with her father’s death certificate (Tribunal’s
Record, page 85). The death certificate provides what appears to be
corroboration for the attack and the death of the Applicant’s father as it is
dated July 31, 2002 and lists the cause of death as “tuerie”. In my view,
the death certificate speaks for itself, especially when one considers the
definition of “tuerie”. Le Petit Robert defines “tuerie” as:
1. Abattoir particulier d’un boucher de village.
2. Action de
tuer en masse, sauvagement. V. Boucherie, carnage, hécatombe, massacre.
and the Le Robert &
Collins translates the word as: “slaughter, carnage”. As the July 31, 2002
attack is the trigger of the Applicant’s fear of persecution and is at the core
of the Applicant’s narrative, the fact that the RPD overlooked the Applicant’s
father’s death certificate and made an adverse determination as to credibility,
on the basis of lack of collaborating evidence of the attack, is patently
unreasonable.
[13]
Second,
the RPD in its decision suggested that the Applicant, her mother and her
sisters were at home during the July 31, 2002 but were able to escape unlike
the Applicant’s father (Tribunal Record, RPD Decision, page 10). This is not
supported by the evidence presented during the hearing or in the Applicant’s
PIF. The Applicant stated that she, her mother and her sisters had escaped to
her aunt’s house prior to the attack and only her father remained at the
residence when the attack occurred (Tribunal Record, Applicant’s PIF, page 28).
[14]
Another
error relating to the Applicant’s stay at her aunt’s residence is that the RPD stated
that the Applicant went to live with her aunt while her two brothers moved in
with her mother (Tribunal Record, RPD Decision, page 5). The PIF is clear; the
Applicant has two sisters and no brothers. Moreover, the Applicant clearly
states in her PIF that she went to live with a paternal aunt with her mother
and her sisters, and that her two uncles also moved in to provide them with
extra security (Tribunal Record, Applicant’s PIF, page 29).
[15]
Fourth,
the RPD found it not credible that the FLN rebels would retreat from their
kidnapping attempt due to neighbours shooting at them (Tribunal Record, RPD
Decision, page 12). In what concerns this finding, the RPD once again conflated
the evidence. The Applicant clearly states that it was the neighbours’ guards
that shot at the FLN and not the neighbours themselves (Tribunal Record,
Applicant’s PIF, page 29). This detail, combined with the statement by the
Applicant that the rebels were unarmed (Tribunal Record, Transcript of the RPD
Hearing, page 108), may be important for understanding why the rebels would
retreat after being shot at.
[16]
The
case law of this Court is clear; where a tribunal misconstrues or ignores evidence
before it, and relies on these errors to make an adverse determination as to
credibility, the decision will be quashed (Lai v. Canada (Minister of
Employment & Immigration), 1992 FCJ No. 906 (CA); Uddin v. Canada
(Minister of Employment & Immigration), 1992 FCJ No. 445 (CA)), unless
the Court determines that notwithstanding the misconstrued or ignored evidence there
was sufficient basis for an adverse finding of credibility (Luckner v.
Canada (Minister of Employment & Immigration), 1992 FCJ No. 363 (CA); Kathiripillai
v. Canada (Minister of Employment & Immigration), 1992 F.C.J. No. 889 (CA)).
In the case at hand, the tribunal ignored evidence relating to the triggering
event for the claim, in addition to misconstruing a number of other parts of
the Applicant’s narrative. Given the number of errors made by the RPD, especially
its failure to consider the Applicant’s father death certificate, I find the
RPD’s decision rejecting the claimant’s asylum claim patently unreasonable. In
my opinion, it would be unsafe to let the decision stand given the errors
made. Consequently, the matter must be sent back for re-determination by a
newly constituted panel of the RPD.
V. Conclusion
[17]
For
the reasons stated above, this application for judicial review is allowed.
[18]
The
parties were invited to submit a question for certification, but no such question
was submitted.
JUDGMENT
THIS COURT ORDERS THAT:
-
The application for judicial review is allowed and the
matter is sent back for re-determination by a newly constituted panel;
-
No question is certified.
“Simon
Noël”
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2037-06
STYLE OF CAUSE: NADIA ITEKA
Applicant
-
and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY,
MARCH 26, 2007
REASONS FOR JUDGMENT BY: Noël J.
DATED: April 5, 2007
APPEARANCES BY: Mr. Micheal Crane
For
the Applicant
Mr.
Jamie Todd
For
the Respondent
SOLICITORS OF RECORD: MICHEAL CRANE
Barrister
& Solicitor
Toronto, Ontario
For
the Applicant
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
For
the Respondent
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