Docket: IMM-6656-13
Citation:
2014 FC 805
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, August 19, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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PIERRE ARNAUD NDABEREYE
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SAMIRA RUKARA
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RITA MICHELLE NDABEREYE INEMA
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SAMUEL HALLEY NDABEREYE MUGISHA
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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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JUDGMENT AND REASONS
I.
Preliminary remarks
[1]
Accepting a series of assumptions which, taken
together, make a narrative implausible, contradictory and full of holes, in
both time and space, would lead to an unreasonable conclusion, having regard to
the entire record, including a hearing transcript.
II.
Introduction
[2]
This is an application pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], for judicial review of decision dated September 23, 2013,
of the Refugee Protection Division of the Immigration and Refugee Board [RPD]
rejecting the applicants’ claim for protection as refugees or persons in need
of protection within the meaning of sections 96 and 97 of the IRPA.
III.
Facts
[3]
The principal applicant, Pierre Arnaud Ndabereye
(the applicant), is a citizen of Burundi, as are his spouse, Samira Rukara, and
their two children, Rita and Samuel.
[4]
The applicant states that before coming to
Canada, he worked in Burundi for a company named Bujumbura Garbage Collection
[BGC] and performed audits and provided accounting services as a self-employed
worker under a part-time contract with a company called Bureau d’ingénierie et
de faisabilité économique [BIFE]. He states that as such, he was a member of
the Observatoire de la lutte contre la corruption et les malversations
économiques, the anti-corruption and economic malpractice observatory [OLUCOME].
[5]
It is alleged that, starting in 2008, BIFE was
tasked with preparing the payrolls for non-commissioned officers and enlisted
men in the army and making sure they were paid. BIFE allegedly came across
clues that funds were possibly being diverted to fictitious police officers,
but their contract was terminated in February 2009 amid suspicions of
financial impropriety.
[6]
BIFE was allegedly contacted in mid-February by
the state’s inspector general in connection with their investigation into the Police
Nationale du Burundi, Burundi’s national police force [PNB]. BIFE was
supposedly instructed to document and calculate the amounts and value of diverted
equipment orders.
[7]
It is alleged that OLUCOME asked the applicant
to provide information regarding the fictitious police officers. The applicant
states that he told OLUCOME verbally where it could look to find the desired
information.
[8]
On April 9, 2009, OLUCOME’s vice-president,
Ernest Manirumya, was murdered at his home, and some of his files allegedly
disappeared.
[9]
The applicant explains that on May 10,
2009, some individuals in police uniforms broke into his home. He alleges that
they ransacked his house, assaulted him and threatened his spouse and his
children. When they found nothing in his house concerning the information that
OLUCOME was looking for, they supposedly fled.
[10]
The applicant says that he reported the assault
to the police the next day, but the police did not give him the protection he
asked for. The applicant explains that after this, people kept calling him and
asking about him at his place of work.
[11]
On May 16, 2009, three men allegedly
grabbed him while he was getting off a bus on his way home. They allegedly
tried to force him to get into a car, but he was able to escape. The same
night, the applicant and his family fled to the home of his uncle.
[12]
On May 22, 2009, the applicant left Burundi
for the United States to take part in a Business Initiative Direction [BID]
summit. He arrived in Canada on May 24, 2009, and claimed refugee
protection that same day.
[13]
The female applicant obtained a United States
visa for her children and herself on December 9, 2009. She arrived in
Canada on January 18, 2010, and claimed refugee protection that same day.
IV.
Decision under review
[14]
In its decision, the RPD found that the applicants
gave testimony that was not credible; their testimony contained multiple
inconsistencies, contradictions and omissions. In particular, the RPD noted the
following problems regarding the applicants’ allegations:
(a)
the applicant’s main allegation that the PNB
tracked him down using information in a file kept in the house of OLUCOME’s
murdered vice-president is purely speculative;
(b)
the applicant’s level in the organization’s
hierarchy did not warrant the assaults he claims to have suffered, since he was
providing information that in no way incriminated the PNB.
[15]
To sum up, the RPD thought that it was unlikely
that the PNB would have found the applicant and assaulted him for information
of such little value. The RPD noted that if the applicants’ allegations were to
be believed, it would have to accept a series of assumptions that, taken
together, made the story implausible.
[16]
The RPD also noted that the applicant
contradicted himself regarding the period during which he worked for BIFE,
thereby undermining his credibility with regard to his assignment to BIFE.
Moreover, despite having been specifically asked by an immigration officer for
his employment contact with BIFE and having been given four years to submit it,
the applicant never submitted his contract, despite the fact that he remained
in contact with his employer.
[17]
The RPD went on to remark that the applicant
contradicted himself regarding the date he became a member of OLUCOME. He also
contradicted himself on whether he had proof of his membership in the
organization. Initially, he declared to an immigration officer that he had
proof of his membership back in Burundi and could provide it; later, he
testified before the RPD that he could not retrieve it because there was no one
to help him. This further undermined the applicant’s credibility.
[18]
Considering that the grounds alleged by the
female applicant and her children were based on the allegations of the
applicant, which the RPD found not to be credible, the RPD found those grounds,
too, not to be credible.
V.
Issue
[19]
Did the RPD err in finding that the applicants
were not credible?
VI.
Relevant legislative provisions
[20]
Sections 96 and 97 of the IRPA apply in this
case:
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Convention refugee
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Définition de « réfugié »
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96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
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96. A qualité de réfugié au sens de la Convention — le réfugié —
la personne qui, craignant avec raison d’être persécutée du fait de sa race,
de sa religion, de sa nationalité, de son appartenance à un groupe social ou
de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays dont elle
a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer
de la protection de chacun de ces pays;
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(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
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Person in need of
protection
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Personne à protéger
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97. (1) A person in
need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
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97. (1) A qualité de personne à protéger la personne qui se trouve
au Canada et serait personnellement, par son renvoi vers tout pays dont elle
a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait
sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of that
country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
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(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
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(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
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(iv) la menace ou
le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
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Person in need of
protection
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Personne à protéger
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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VII.
Standard of review
[21]
The case law of this Court establishes that the
RPD’s findings regarding credibility are questions of fact and thus reviewable
on a standard of reasonableness (Aguebor v Canada (Minister of Employment
and Immigration) (1993), 160 NR 315 (FCA)).
VIII.
Analysis
[22]
The applicants argue that the RPD made two main
errors in this case: (1) the RPD breached the rules of natural justice in
adjourning the hearing several times; and (2) the RPD misinterpreted the
evidence.
[23]
Having reviewed the record, the Court finds that
there was no breach of natural justice or procedural fairness owing to the
adjournment of the hearing. Although the evidence shows that the RPD had to
adjourn the hearing several times in the last few years, the applicants have
not established how this breached the rules of natural justice. They explain
that some hearings were adjourned because there was no member available or the
member could not finish the hearing (due to illness), while other hearings were
adjourned because the RPD required more information regarding the children’s
identities and the genuineness of the marriage of the majority-age applicants.
The Court does not find that these are unjust or arbitrary reasons for
adjourning a hearing. They are entirely reasonable. Moreover, the applicants do
not seem to have been adversely affected by these adjournments; on the
contrary, they remained in safety in Canada for nearly four years. The fact
that these adjournments frustrated the applicant does not warrant this Court’s
intervention.
[24]
Regarding the second issue raised in this case,
the applicants clearly disagree with most of the RPD’s findings. However, instead
of establishing errors in the RPD’s decision, the applicants tried to reargue
their case, asking the Court to reassess the evidence so as to arrive at a
conclusion different from that of the RPD. They have not shown that these
conclusions, having regard to the evidence in the record, are unreasonable,
arbitrary or absurd.
[25]
This Court recently noted the following in Ayala
Sosa v Canada (Minister of Citizenship and Immigration), 2014 FC 428:
[25] Credibility findings are factual and case specific and rely on the
assessment by the decision-maker of several factors including the observation
of the witnesses and their responses to questions posed. The Board is
entitled to draw inferences based on implausibility, common sense and
rationality (Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315,
[1993] FCJ No 732 at para 4 (FCA)). Given its role as trier of fact, the
Board’s credibility findings should be given significant deference (Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329; Fatih v Canada (Minister of Citizenship and Immigration), 2012 FC 857 at para 65, 415 FTR 82).
[Emphasis
added.]
[26]
Credibility findings should therefore be given
significant deference (Sosa, above).
[27]
The Court finds that the RPD did indeed assess
the evidence before it and reasonably concluded that the applicants were not
credible because of numerous inconsistencies, contradictions and omissions in
their story that remained largely unexplained. In the Court’s opinion, the
RPD’s doubts concerning the applicants’ credibility led to a conclusion that
was within a range of possible, acceptable outcomes.
[28]
For all the above reasons, the applicants’ application
for judicial review is dismissed.
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