Docket: IMM-3643-13
Citation:
2014 FC 743
Toronto, Ontario, July 24, 2014
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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BANI-XAVIER
BANGURA
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Applicant
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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
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision dated May 3, 2013 of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board of Canada [IRB]. The RPD
determined that the applicant, Bani-Xavier Bangura, was not a convention
refugee or a person in need of protection under sections 96 and 97 of the IRPA.
[2]
The applicant is a 25-year-old male citizen of
Burundi of Tutsi ethnicity. He states that he was active in a human rights
group and became a target of the ruling government after attempting to report a
kidnapping he witnessed of a member of an opposing party by a militia group
affiliated with the government. The victim was subsequently found to have been
executed.
[3]
He alleges that after attempting to involve the
local police force, an administrator of the town and the widow of the
kidnapping victim, he became a target of a series of increasingly threatening
events, including threats on his life. This led the applicant to seek the
assistance of a priest friend to hide him from the authorities and to procure
an American visa and other documents necessary to leave the country.
[4]
In a series of discrete steps between November 2
and December 26, 2012, the applicant described how the priest helped him to
remain hidden, including transporting him around to different places hidden in
a potato sack. He testified that the priest undertook all of the necessary
activities on his behalf to obtain his American student visa and a national
identity card, finally delivering him to the airport for his flight to the United States on December 26, 2012. A few days later the applicant arrived in Canada, where he claimed refugee status.
[5]
The RPD found with good cause that the applicant
was not credible. His testimony was demonstrated to be seriously untruthful in
relation to a constantly changing narrative on a wide range of issues. These
failures of credibility included:
- How the priest could have obtained his
American visa which necessitated the personal participation of the
applicant, such as attending at the American embassy for an interview.
- How the applicant obtained his national
identity card, ultimately claiming in his final version on this subject
that officials visited him at his home to take his fingerprints and then
have the priest attend at another municipality for issuance of the
documents.
- Inconsistencies regarding his very
specific testimony about his other movements to the first family’s house,
then to the second family’s house, and then to the airport, all of which
were carried out in the greatest of secrecy, only to have him travel to
the American embassy in broad daylight.
- Inconsistencies in his testimony to the
RPD that did not match his PIF narrative, such as when he stated that on
his way to the airport the priest informed him that he had obtained an
American student visa when the applicant was required to obtain it.
- Inconsistencies as to how the applicant
had obtained an attestation d’identité complète when the applicant
explained that after the priest’s friend had come to the house to take
the applicant’s fingerprints, he had gone to the municipality in order to
have the national identity card and attestation d’identité complète
issued.
- Inconsistencies in the failure by his
human rights group of 50 participants who the applicant stated supported
him, but failed to assist him in his investigation into the kidnapping or
to mention the kidnapping incident in their attestation on his behalf.
- The introduction of two letters, one
from a radio station to whom he alleges having reported the kidnapping
and the other from the priest who had helped him leave the country. Both
undated documents were handwritten on ordinary paper, not bearing an
official letterhead or otherwise attested to in some form to demonstrate
or suggest authenticity.
[6]
As a result of the numerous inconsistencies,
omissions and changes in his narrative, the RPD found it more likely that the
applicant was at liberty during that time period, and therefore able to procure
identity documents and prepare for his departure. Since the applicant did not
go into hiding, the RPD found that there were no grounds for his alleged
subjective fear. The applicant did not seriously contest the reasonableness of
these findings on credibility.
[7]
Rather, the applicant made two principal
submissions, only one of which he pursued during argument. He submitted that the RPD applied an elevated or incorrect
standard of risk, claiming that the RPD required him to prove a “particular
risk” (as translated from the reasons provided in French), at paragraphs 47 and
49:
[47] … Par conséquent, le tribunal a évalué si le
demandeur ferait l’objet de persécution ou de risque particulier en raison de
son profil comme membre de l’association.
…
[49] … Également, le demandeur n’a pas déposé des
éléments de preuves démontrant que les membres d’AC Génocide font face à un
risqué particulier.
[8]
In making these statements, I find that the RPD
was simply pointing out that the applicant’s evidence in support of his
contention that he would face risks as a member of the organization AC Génocide
Cirimoso consisted almost entirely of vague statements about the difficulties
NGOs face operating in Burundi. The Member found that the applicant provided no
evidence of any risk faced by members of the group. At paragraph 48, it is
clear that the Board did not accept the applicant’s statements that he was an
active and implicated member of the Association. He was unable to answer
questions regarding its activities, such as how it fulfilled its mandate of
sensitizing the community on genocide or other details of how the associations’
meetings were conducted, or subject matters discussed. This evidence
contradicted that provided in a letter by the group.
[9]
The term “particular” was
employed simply to emphasize a lack of evidence of any risk at all. “A
particular risk” was not intended therefore, as a substitute meaning for a
“well-founded fear” or a risk of being in need of protection. Moreover, even if I were to conclude that the Board misspoke itself
on the test, there is no basis in the evidence to support any claim by the
applicant for refugee status under sections 96 or 97 of the Act.
[10]
As a result, I can only conclude that the RPD’s
decision was justified and fell within a range of reasonable outcomes.
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