Date: 20081003
Docket: IMM-987-08
Citation: 2008 FC 1113
Ottawa, Ontario, the 3rd day of October 2008
Present:
The Honourable Madam Justice Mactavish
BETWEEN:
JOËLLE
KANEZA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Joëlle
Kaneza, a citizen of Burundi and a Tutsi, claimed refugee protection in Canada
because of persecution of which she alleged to have been a victim at the hands
of a Hutu family. The Refugee Protection Division of the Immigration and
Refugee Board rejected this application because her account was found not to be
credible.
[2]
Ms. Kaneza
is now seeking judicial review of the Board’s decision, alleging that each one
of the main conclusions of the decision concerning her lack of credibility is
unreasonable and accordingly the decision should be set aside.
[3]
I will
examine the impugned conclusions. However, for the following reasons, I am not
convinced that the Board erred in its overall assessment of Ms. Kaneza's
credibility or that the Board's decision was unreasonable. Accordingly, this
application for judicial review will be dismissed.
Standard of review
[4]
The
Board's conclusions concerning credibility are subject to judicial review
according to the standard of reasonableness: Dunsmuir v. New Brunswick,
2008 SCC 9, and Khokhar
v. Canada (Minister of Citizenship and Immigration), 2008 FC 449.
[5]
In
applying the standard of reasonableness to the conclusions reached by the
Board, I must determine “. . . the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, at paragraph 47.)
Analysis
[6]
The Board
gave numerous reasons in support of its conclusion that the account given by
Ms. Kaneza is not credible. The main reason for which the Board did not believe
Ms. Kaneza’s account is the significant inconsistency between her statement
given at the point of entry and the version she gave in her personal
information form (PIF).
[7]
At the
point of entry, Ms. Kaneza based her claim on a fear of her neighbours, that is
to say, a Hutu family who threatened her because she was a Tutsi. Her
neighbours allegedly told her that they had a machete and they would not
hesitate to use it against her and that they had used sorcery to do her harm. This
made her fear for her life.
[8]
On the
other hand, in her PIF and in her testimony, Ms. Kaneza based her claim on a
fear of the family of her fiancé, Terence, whose members were Hutu extremists
involved in the massacre of Tutsis. According to Ms. Kaneza, this family
opposed their relationship and considered that she was responsible for the
disappearance of Terence.
[9]
In
addition, Ms. Kaneza stated that the family of Terence had threatened her
because she was pregnant and the family was possibly involved in the death of
Ms. Kaneza's father in an automobile accident which she described as [translation] “rather mysterious.”
[10]
Ms. Kaneza
claims that there is no inconsistency between the two versions. According to
Ms. Kaneza, she made a general statement at the point of entry and she simply
added more details concerning her relationship with Terence in her PIF and in
her testimony.
[11]
The Board
studied the explanation given by Ms. Kaneza and gave clear reasons for
rejecting it.
[12]
On this
point, the Board noted that the two statements were completely different. Ms.
Kaneza did not mention that she had been engaged to a Hutu, that his family had
threatened her, that her father had died or that she had been pregnant and
subsequently had a stillbirth.
[13]
In
addition, the Board noted that the agents of persecution were not the same in
both statements, that the story had changed and that key events, including the
very existence of Terence, on which the claim for refugee protection was based,
had not even been mentioned.
[14]
It
is not up to the Court to substitute its own opinion for that of the Board
concerning the inferences it made, except if the conclusions reached by the
Board were unreasonable. In the case at bar, I am not convinced that the
Board’s conclusion was unreasonable.
[15]
This was
the main point on which the Board based its conclusion that Ms. Kaneza’s account
was not credible. However, the Board gave some other reasons for reaching this
conclusion, which Ms. Kaneza did not contest.
[16]
For
example, the Board considered that Ms. Kaneza’s oral statement showed an
absence of subjective fear and lacked credibility. The Board noted that Ms. Kaneza could
not explain why she had not fled her place of residence to seek shelter instead
of continuing to reside at the same address in Bujumbura, and continuing her
studies in that city until she left Burundi in July 2006, if she was convinced
that her father had been killed by Terence’s family in December 2005 and that
her own life was in danger since she had received death threats in January
2006.
[17]
In
my opinion, the Board’s conclusion that the testimony given by Ms. Kaneza in
this regard was not credible is perfectly reasonable.
[18]
Likewise,
the Board underlined the fact that Ms. Kaneza had never been able to explain
why she had been held responsible for the disappearance of Terence. She also testified
at one point that she had never taken any steps to try to locate Terence
because she resented him for having abandoned her, but later on during the
hearing she said that she had tried to find out where he was.
[19]
In
addition, the Board noted that Ms. Kaneza had arrived in Canada via the
Netherlands and the United States and rejected her explanation as to why she
had not claimed refugee protection in either of those two countries as unreasonable.
According to the Board, the fact that Ms. Kaneza had not claimed refugee
protection in the Netherlands or the United States suggests that she did not
have a subjective fear of persecution.
[20]
It
is true that Ms. Kaneza filed a copy of a death certificate of her father,
confirming that he had died in an automobile accident. In my opinion, it is
clear that the Board decided that this document was of no importance because it
did not specify the cause of her father’s death and this decision was perfectly
reasonable.
[21]
Finally,
even if I were to accept Ms. Kaneza’s submission that it was not reasonable to
have concluded that a woman in her situation should have advised Terence’s
family of her stillbirth, this conclusion is not a sufficient basis to set
aside the Board's decision.
Conclusion
[22]
For
all these reasons, the application for judicial review is dismissed.
Certification
[23]
The
parties did not suggest any question for certification and no question is
raised in this case.
JUDGMENT
THE COURT ORDERS
THAT:
1. This
application for judicial review is dismissed;
2. No question of
general importance is certified.
“Anne
Mactavish”
Certified
true translation
Brian
McCordick, Translator
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