Docket:
IMM-6017-13
Citation:
2014 FC 395
Toronto, Ontario, April 28, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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GAUSETTE KENGE KIANGEBENI
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ADELYSE NSANGA
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KENDRY NSANGA WA NSANGA
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Applicants
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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 JUDGMENT AND JUDGMENT
[1]
Gausette Kenge Kiangebeni along with her
children, Adelyse and Kendry, seek judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board, rejecting their claim
for refugee protection on credibility grounds.
[2]
The applicants submit that a number of the
Board’s negative credibility findings were unreasonable. In particular, they
say that the Board erred in only paying “lip service”
to the presumption of credibility and to the Board’s Gender Guidelines,
without applying either of them “in spirit or in
substance”.
[3]
For the reasons that follow, I am not persuaded
that the Board erred as alleged. Consequently, the application for judicial
review will be dismissed.
I.
Background
[4]
Ms. Kenge is a 27-year old citizen of the
Democratic Republic of Congo (DRC) and the mother of the two co-applicants. She
says that she has three other children in the DRC, but that she does not currently
know their whereabouts.
[5]
Ms. Kenge says that her father, who was of
Rwandan origin, was assassinated by the Congolese government in 1998 during the
Rwandan massacre. Two months later, Congolese soldiers returned to the family’s
home and raped her sister. Ms. Kenge’s family then moved to Kimpese, in Bas-Congo,
where she remained for approximately two years.
[6]
In 2000, when Ms. Kenge was 15 years old, she
married a man who was ten years her senior. She had four children with him, and
adopted one of his daughters. Ms. Kenge subsequently moved with her aunt and
husband to Sonabata, Bas-Congo, where she attended school.
[7]
In 2003, the family moved to Kinshasa. In or
around April of 2005, Ms. Kenge’s husband was arrested by the Congolese police
and was jailed for two weeks, accused of supporting the Bundu Dia Kongo (BDK)
movement. He was eventually released for lack of evidence.
[8]
In July of 2007, Ms. Kenge’s husband moved to
Bukavu to work for an organization that helps refugees. He would then visit his
family approximately five times a year. In December of 2010, Ms. Kenge herself moved
to Bukavu with her youngest daughter, leaving her other children behind with
her aunt because they were in school.
[9]
In the meantime, Ms. Kenge’s two older brothers
were allegedly murdered for being members of the BDK movement, and for being of
Rwandan origin. Ms. Kenge alleges that she then lost contact with her mother
and the rest of her siblings.
[10]
On February 11, 2011, Ms. Kenge’s husband left
for work in the morning as usual, but he did not return home at the end of the
day. The next day, four men dressed in military apparel came to her house.
According to Ms. Kenge, they asked about her husband’s work and took away some documents.
[11]
Ms. Kenge says that while the soldiers were
still at her home, she was raped and beaten in front of her eighteen-month old
daughter. One of the men mentioned they knew her husband was involved in
activities against the government, telling Ms. Kenge that if they returned it
would be to decapitate the family members. Ms. Kenge says that she then lost
consciousness and was taken to a nurse by a neighbour.
[12]
According to Ms. Kenge, some people helped her
and her daughter fly from Kinshasa to Bukavu for her safety. When she got to
Bukavu, she was informed that her aunt and children had disappeared. After
approximately a month, Ms. Kenge says that “two white
people” helped her and her daughter travel from Kinshasa to Brazzaville by boat.
[13]
Ms. Kenge says that when she got to Brazzaville, she met a white man named Jean Lambert, who was a friend of her husband. Mr.
Lambert assisted her by putting her up in a house for four months. On August
31, 2011, Ms. Kenge and Adelyse left Brazzaville. Ms. Kenge said that she did
not know where she was being taken, and that she relied on Jean Lambert and
other altruistic strangers to make all of the travel arrangements for Ms. Kenge
and her daughter.
[14]
According to Ms. Kenge, she and her daughter
were initially accompanied on their journey by two people. However, during a
stopover in an unidentified location en route to Canada, they were met by
another white woman who then escorted them to Winnipeg, arriving there on
September 1, 2011. This woman accompanied Ms. Kenge and Adelyse to the “Welcome Place” shelter, and then promptly left.
[15]
Ms. Kenge made a refugee claim for herself and
Adelyse several weeks later, on September 28, 2011.
[16]
In December of 2011 or January of 2012, Ms.
Kenge says that she received a telephone call from a man who she thought might
have been Jean Lambert, who told her that Kendry had been located. It was not
explained how Jean Lambert would have been able to locate Ms. Kenge in Winnipeg.
[17]
On May 7, 2012, Ms. Kenge says that she received
a telephone call from an unidentified individual telling her to go to the
Winnipeg airport to pick up her son, and that a man named Gilles had brought
him to the airport. A couple of months later, Ms. Kenge made a refugee claim on
Kendry’s behalf.
II.
The Board’s Decision
[18]
The Board noted that Ms. Kenge’s testimony was
generally consistent with her PIF narrative, and that her story was consistent
with the country condition information with respect to the situation in the
DRC. The Board also noted that the applicant had “demonstrated
significant emotion in the recounting of her testimony”.
[19]
The Board was nevertheless troubled by gaps in
Ms. Kenge’s story, the “minimal corroborative documentary
evidence” that she had provided with respect to her identity, and her
unsatisfactory explanations for her failure to provide documentary evidence
corroborating her claim.
[20]
The Board also found that Ms. Kenge did not
provide reasonable explanations for PIF omissions, and that material aspects of
her story were simply not believable.
III.
Analysis
[21]
Ms. Kenge has challenged a number of the Board’s
negative credibility findings, asserting that they do not meet the Dunsmuir
standard of justification, transparency and
intelligibility: Dunsmuir v. New Brunswick, 2008 SCC 9, at para.
47, [2008] 1 S.C.R. 190.
[22]
Having read the transcript of the applicants’ refugee hearing, it is clear
that the Board faced a significant challenge in trying to make sense of the
applicants’ claim. Ms. Kenge’s testimony was often difficult to follow and was,
at times, simply incoherent.
[23]
The applicants’ counsel points out that Ms. Kenge
was testifying through an interpreter during portions of the testimony. That
may be the case, but there has been no suggestion that there were any problems
with the quality of the interpretation.
[24]
There were, moreover, aspects of Ms. Kenge’s
story that were, on their face, highly improbable. Through no effort on her
part, Ms. Kenge and her daughter were brought to Canada by a series of unknown
individuals, who, she says, were acting out of the goodness of their hearts,
because they knew her husband. Ms. Kenge was, moreover, unable to provide the
Board with any information about her route to Canada.
[25]
Eight or nine months later, Ms. Kenge says that
she got a call telling her to go to the Winnipeg airport and pick up her
five-year old son. Despite the fact that her other children were allegedly
still missing, Ms. Kenge says that she did not ask “Gilles” where Kendry had
been found, or whether he had any information as to the whereabouts of her
other children. Nor did Ms. Kenge ever ask Kendry if he knew anything about his
siblings’ whereabouts. The Board found that this was simply not credible, a
finding that was more than reasonable.
[26]
While Ms. Kenge says that she has made some
telephone calls in an attempt to locate her family members, she has not asked
any of the social agencies that she has been dealing with for assistance in
locating her family. Whether such a request for assistance would have generated
any results is not the issue: the Board did not accept the explanations offered
by Ms. Kenge for her lack of effort. This was a finding that was reasonably
open to the Board on the record before it.
[27]
Given the fact that the family’s refugee claims
were based, in part, on their Rwandan ethnicity, it was also reasonable to the
Board to be concerned by Ms. Kenge’s failure to mention persecutory actions
that she says that her family had experienced based upon their Rwandan
ethnicity in her Personal Information Form.
[28]
It was also entirely reasonable for the Board to
reject Ms. Kenge’s explanation for her failure to mention these events in her
PIF. Ms. Kenge had evidently felt secure enough with the staff of the “Welcome House” to reveal intimate details of a horrific
sexual assault, notwithstanding the enormous social stigma associated with such
an event. It thus makes no sense that she did not trust them enough and was “too scared” to tell them about an incident of
rock-throwing and school-yard fights involving her son Kendry.
[29]
One could take issue with the time spent by the
Board on the question of Ms. Kenge’s missing travel documents, and I agree with
the applicants that the Board’s finding as to how altruistic smugglers would
act in relation to travel documents was based on nothing more than speculation.
[30]
That said, when the Board’s decision is read as
a whole, it is intelligible, it accords with the evidence before it, and it is
reasonable.
IV.
The Gender Guidelines
[31]
The applicant also submits that the Board erred
in failing to properly consider the Immigration and Refugee Board’s Gender
Guidelines. While acknowledging that the Board made express reference to
having taken the Gender Guidelines into account, the applicant
nevertheless asserts that the Board only paid “lip
service” to them.
[32]
I do not accept this submission. Not only does
the Board expressly state at several points in its reasons that it has taken
the Gender Guidelines into account in assessing the applicant’s
testimony, it also demonstrated that it understood the significance of the Guidelines
as they related to individuals in the applicant’s situation: see, for example,
paragraph 15 of the Board’s decision.
[33]
The Gender Guidelines require that Board
members be sensitive to the cultural and other considerations that may affect
women seeking the protection of Canada in order that their evidence may be
properly understood and their claims fairly assessed. They are not intended to
provide a “cure-all” for major credibility
concerns of the sort that existed in this case.
V.
Conclusion
[34]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case does not raise a
question for certification.
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