Date: 20140204
Docket: IMM-1528-13
Citation: 2014 FC 122
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 4, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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JUVENAL NSENGIYUMVA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration
and Refuge Protection Act, SC 2001, c 27 (IRPA) of a decision
by Immigration Officer J. Bonin (Mr. Bonin), of
the pre-removal risk assessment unit (PRRA unit), of Citizenship and Immigration
Canada (CIC) dated January 31, 2013 (decision), to reject the applicant’s PRRA
application. The applicant is seeking to have the decision set aside and
referred back to a differently constituted panel.
I. Background
[2]
The
applicant is a Catholic priest and a Rwandan citizen of Hutu origin. He was
ordained in August 1992. In July 1994, he left Rwanda for the Democratic
Republic of the Congo (DRC).
[3]
On
August 2, 1994, in Goma, DRC, he and 28 other Rwandan priests signed and sent a
letter to Pope John Paul II. The letter accused the Rwandan Patriotic
Front (RPF), the political party of Rwanda’s current president, Paul Kagame, of
being responsible for all of the killings in Rwanda; objected to the
establishment of a tribunal to rule on acts of genocide; and denied that the
Tutsi community had been targeted, indicating that that minority holds all
rights and that only that ethnic group is listened to.
[4]
In
April 1997, he returned to Rwanda, where he continued to practise ministry in
the Diocese of Ruhengeri.
[5]
The
applicant alleges that, on July 4, 1999, he was attacked when a lieutenant of
the Rwandan army deliberately caused a car accident. The applicant therefore
decided to leave Rwanda for Canada.
[6]
He
arrived in Canada on September 12, 1999, and claimed refugee protection here on
November 5, 1999.
[7]
On
October 3, 2001, the Convention Refugee Determination Division (CRDD) of CIC rendered
a negative decision with respect to his refugee claim, stating that the
applicant had a negationist attitude towards the Rwandan genocide, and that the
account given was not trustworthy, in particular regarding the car accident
that provoked his departure from Rwanda.
[8]
The
applicant filed an application for judicial review of that decision; it was
dismissed by Justice Pinard on February 19, 2002.
[9]
On
June 10, 2001, the applicant filed an application for permanent residence on
humanitarian and compassionate grounds. On February 23, 2006, his application
for permanent residence was allowed given the humanitarian and compassionate
grounds; nevertheless, he still had to meet all of the other legislative requirements
of the IRPA.
[10]
On
August 6, 2007, the applicant was found guilty of impaired driving after he drove
his vehicle in an impaired state on two occasions in 2004 and 2005, an
indictable offence liable to imprisonment for a term not exceeding five years under
paragraph 253(1)(a) and subsection 255(1) of the Criminal Code, RSC
(1985), c C-46, and failure or refusal to take a breath test under subsections
254(5) and 255(1) of the Criminal Code.
[11]
On
August 28, 2007, CIC issued a report pursuant to subsection 44(1) of the IRPA
indicating that the applicant is inadmissible on grounds of criminality in
accordance with paragraph 36(2)(b) of the IRPA.
[12]
On
October 2, 2007, the applicant was informed that his application for permanent
residence was refused because he was inadmissible to Canada given his
criminality.
[13]
On
February 2, 2011, the applicant filed an initial PRRA application, which was
rejected by the PRRA unit on April 21, 2011.
[14]
The
applicant’s removal was scheduled for May 13, 2011. On May 12, 2011, Justice de Montigny
granted the applicant a stay of his removal order.
[15]
On
December 23, 2011, Justice Tremblay-Lamer dismissed the application for
judicial review of the decision by the PRRA unit.
[16]
In
February 2012, the National Post newspaper published an article on the
applicant in which he was identified as a negationist and an opponent of the
Rwandan government, an article that was, over the following days, picked up by
some Web sites, including sites in Rwanda.
[17]
In
March 2012, the applicant filed a second PRRA application, which was rejected
by Mr. Bonin of the PRRA unit on January 31, 2013.
[18]
On
February 27, 2013, the applicant filed an application for judicial review of the
negative PRRA decision.
[19]
The
applicant’s removal was scheduled for March 30, 2012. On March 28, 2012, Justice Gagné
allowed the applicant’s motion to stay his removal.
II. Impugned
decision
[20]
In
his decision, Mr. Bonin found that, in the applicant’s second PRRA application,
the applicant reiterated the risks raised in his initial PRRA application and
before the CRDD; that the facts raised by the applicant had been considered
before; and that the decision regarding the first PRRA decision was submitted
to the Federal Court, which upheld the decision of that assessment and
dismissed the judicial review.
[21]
Mr.
Bonin also found that the applicant’s new allegations were that the Rwandan
authorities would have been informed of his actions, the initial PRRA
application and his litigation in the Federal Court, among other things, through
the publication of the National Post article, which made it possible for
many media outlets in Rwanda to disclose that information.
[22]
In
fact, the applicant alleged that information about his case is now in the
public domain and known in Rwanda, and that that would mean that he would
suffer persecution by the Rwandan authorities in connection with his statements
and actions in Canada given his criticisms of the current Rwandan government.
[23]
Mr.
Bonin assessed the documents that constituted valid evidence, including the documents
that contained new information and the documents concerning the general
situation in Rwanda dated before the initial PRRA decision that could contain
information on the current situation in Rwanda.
[24]
First,
Mr. Bonin assessed the National Post article. Some comments from readers
of that article were joined to the application, but Mr. Bonin concluded that
those pieces of evidence were from Web sites which were not established as independent
sources and he therefore did not attach weight to those comments.
[25]
Mr.
Bonin then found that the applicant’s activities since his arrival in Canada do
not support the claim that he could be at risk if he were to return to Rwanda.
[26]
Mr.
Bonin noted that the fact that the Rwandan government became aware of articles
that were published is not at issue. However, he found that, even though those
articles may have been consulted by various people in Rwanda and that the
applicant could be exposed to some publicity, the resulting information is not
enough to establish a possibility of persecution or serious reasons to believe
that he would be at risk if he were to return to Rwanda.
[27]
The
applicant’s allegation that he must benefit from freedom of expression is not
convincing because he did not demonstrate in a probative manner that he has criticized
the Rwandan government since his arrival in Canada. Furthermore, the applicant
did not show that he reportedly made negationist remarks since his arrival in
Canada which would mean that he would be subject to the negationism legislation
in Rwanda.
[28]
Mr.
Bonin also assessed another document submitted by the applicant, a statement by
the president of the Congrès rwandais du Canada (CRC) that the
applicant’s physical and psychological integrity could be compromised if he were
deported to Rwanda, and that the applicant participated in conferences
organized by the CRC, where he denounced the violation of human rights
committed by the Rwandan government. Mr. Bonin notes that the author of the
document does not provide details on the conferences or the applicant’s remarks
at the conferences, and that the evidence is therefore too vague. Furthermore,
there is a lack of information available on the president of the CRC, which
results in the fact that the document must be given very little weight.
[29]
Mr. Bonin admits that the Rwandan government put
in place legislation that was purposefully broad and imprecise to encourage
national unity and restrict freedom of expression leading to hate speech, but
risks violating human rights and serves to settle personal scores and muzzle
the opposition. Mr. Bonin also admits that it is possible that the Rwandan
government has been informed of the applicant’s situation. Nevertheless, he
found that the fact that Web sites report that the applicant gave sermons does
not allow him to conclude that the applicant is seen as a negationist, and that
the evidence is insufficient to establish that there is more than a mere
possibility that the applicant would be persecuted based on a Convention ground.
[30]
In looking at the general documentation on the
conditions in Rwanda, Mr. Bonin found that, even though the situation there can
be difficult in some respects (limited rights for Rwandans, violence against genocide
survivors, detentions and imprisonments, irregular elections, arbitrary arrests
of members of the political opposition, limits on freedom of speech and
association, etc.), the events recounted in the objective and independent
documents on the situation in Rwanda are not connected to the applicant’s
personal situation, but rather to the general population.
[31]
Ultimately, Mr. Bonin found that the applicant is
not at risk of persecution under section 96 of the IRPA or subject to a danger
of torture, a risk to his life or to a risk of cruel and unusual treatment or
punishment within the meaning of section 97 of the IRPA.
III. Standard
of review
[32]
In Rana v Canada (Minister
of Citizenship and Immigration), 2010 FC 36 at paragraph 14, Justice
Russell noted, in analyzing a second PRRA application from an applicant, that
the standard of review for decisions by PRRA officers who have assessed
evidence from an applicant is reasonableness:
Because questions of facts and
discretion are to be reviewed on the standard of reasonableness (Dunsmuir
at paragraphs 51 and 53), reasonableness is the appropriate standard of review
for determining: a) whether the Officer erred by failing to consider all of the
section 96 risk factors asserted by the claimant; and b) whether the Officer
erred by not sufficiently considering and applying the Applicant’s evidence.
[33]
See also Perez Arias v Canada (Minister of Citizenship and
Immigration), 2011 FC 757 at paragraph 8.
[34]
Therefore, I find that the applicable standard is
reasonableness.
IV. Issue
1.
Is the panel’s decision reasonable?
V. Applicant’s submissions
[35]
The
applicant submits that Mr. Bonin erred by departing from the document in
evidence that includes a study by Evode Uwizeyimana, a Rwandan judge who worked
as an expert on the Rwandan legal system for the BBC. The document includes the
author’s curriculum vitae and expert testimony, and discusses the legislation
used in Rwanda to repress political opponents. The applicant maintains that Mr.
Bonin should have included that document in his assessment because it is an
objective document on the general situation in Rwanda regarding the legislation
against negationism and sectarianism. That is supported by an excerpt from
Justice de Montigny’s order granting the stay motion, where the judge finds
that Mr. Bonin should have given more weight to Mr. Uwizeyimana’s expert
report because it is an objective study of a specialist.
[36]
The applicant also alleges that Mr. Bonin erred in his assessment
of the personalized risk, especially by failing to determine that he was marked
by the term negationist. The applicant quotes many Rwandan articles that cited
the National Post article mentioning his negationist past with the
comments made in Canada and the fact that he signed the letter to Pope John Paul
II. He also refers to the decision by the CRDD, which states that the letter to
the Pope clearly shows a negationist attitude towards the genocide.
[37]
Furthermore, the applicant alleges that the evidence
demonstrates that the Rwandan authorities are aware of all of the elements
surrounding him and his negationist profile, and that the evidence shows that
the authorities were unaware of his activities before the National Post article
was published. That is supported by the grounds from the first PRRA decision
and the decision by Justice Tremblay-Lamer, which states that no probative
evidence was submitted to demonstrate that the applicant’s profile was brought
to the attention of the Rwandan authorities. According to the applicant, that has
changed because of the National Post article, which was cited by the National
Commission for the Fight Against Genocide, an organization whose president is
the current president of Rwanda, Paul Kagame.
[38]
According to the applicant, making the connection between the
fact that he is perceived and described as a negationist and the fact that the
Rwandan authorities are aware of this is enough to confirm that he risks
persecution and torture if he were to return to Rwanda according to the
documentary evidence to the effect that people perceived as negationists are
the target of the legislation against negationism and sectarianism. That
connection is established by the evidence.
[39]
Furthermore, the applicant argues that the evidence shows
that anti-genocide legislation is applied in a manner so as to commit serious
human rights violations, and that that risk to the applicant is personalized.
That is supported by Justice de Montigny’s order.
[40]
According to the applicant, the truthfulness and the details
of his alleged remarks are not important; once he is perceived as a negationist
by the Rwandan authorities, a personalized risk exists. Moreover, the applicant
is a serious critic of the current government, and the Amnesty International report
notes that statements made abroad may be used by the Rwandan authorities to initiate
legal proceedings under the legislation on genocide ideology. The evidence
demonstrates that critics of the Kagame regime are likely to be victims of
torture and persecution.
VI. Analysis
[41]
It is important to start by noting the decision
by Justice Tremblay-Lamer in which the
application for judicial review of Officer Bonin’s decision regarding the
applicant’s first PRRA application was dismissed. In that decision, Justice
Tremblay-Lamer addressed the issues raised by
the applicant in the context of the first application, which includes the
signature of the letter addressed to Pope John Paul II in 1994; the
applicant’s activities since his arrival in Canada; and the report of
Mr. Uwizeyimana.
[42]
Justice Tremblay-Lamer found, at paragraph 24 of her decision, that the applicant submitted vague
evidence with respect to his activities in Canada. In the context of his second
PRRA application, the applicant made clarifications to his account with respect
to his anti-government activities, but that does not allow me to revisit
allegations that were already considered by another judge of this Court, which
is the case here.
[43]
Regarding the report of Mr. Uwizeyimana, Justice
Tremblay-Lamer found that the content of the report was not related to the
applicant’s personal situation, and that the report was therefore irrelevant
for the purpose of the PRRA application. That means that I also cannot revisit the
report of Mr. Uwizeyimana.
[44]
The only issue left is therefore whether the National
Post article has changed the applicant’s situation since Justice
Tremblay-Lamer rendered her decision such that the applicant is at risk of
persecution or a danger of torture or a risk to his life or to a risk of cruel
and unusual treatment or punishment. Officer
Bonin addressed the National Post article at page 12 of his decision and stated the
following: [translation] “it is
possible that the Rwandan government has been informed of the applicant’s
situation . . . I consider that insufficient to establish that there is more
than a mere possibility that the applicant would be persecuted based on a Convention
ground, or that there are serious reasons to believe that he would be subject
to a danger of torture or to a risk to his life or to a risk of cruel and
unusual treatment or punishment if he were to return to Rwanda.”
[45]
In his decision, Officer Bonin acknowledged the
possibility that the Rwandan government could be aware of the National Post
article and carefully assessed the article’s impact. It remains that the article’s
content is not very significant. The only significant statement in the article
is that the applicant is accused of being a negationist. The article also
mentions the letter to the Pope, but the Rwandan government has been aware of that
letter for some time, and there is no evidence that it had negative
consequences for the applicant.
[46]
I find that Officer Bonin’s assessment of the impact of the National
Post article was reasonable. Regarding the general situation in Rwanda, Officer
Bonin found that there was simply not enough evidence of a connection between
the situation in the country and the personal situation of the applicant. That
finding is reasonable.
[47]
In addition, Officer Bonin even considered the “Country
Report” by the US Department of State on human
rights practices in Rwanda. The report states that there were fewer politically
motivated killings or disappearances in the previous year. That further demonstrates
the rigour and reasonableness of Officer Bonin’s assessment.
[48]
The
application for judicial review is therefore dismissed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application is dismissed.
“Peter Annis”
_____________________________
Judge
Certified true
translation
Janine Anderson, Translator
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