Docket: IMM-1401-14
Citation:
2015 FC 196
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 17, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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SONIA MUKAMUSONI
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BLESSING NISHIMWE
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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.
Foreword
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Don’t go far off,
not even for a day, because --
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Ne sois pas un
seul jour loin de moi, il est long
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because -- I don’t
know how to say it: a day is long
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si long le jour,
je n’arrive pas à le dire,
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and I will be
waiting for you, as in an empty station
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ou bien je t’attendrai
comme on fait dans les gares
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when the trains
are parked off somewhere else, asleep.
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lorsque les
trains se sont endormis quelque part.
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Don’t leave me, even for an hour, because
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Ne t’en vas même pas pour une heure: en elle
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then the little
drops of anguish will all run together,
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alors s’unissent
les gouttes de l’insomnie
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the smoke that
roams looking for a home will drift
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et toute la fumée
qui cherche une maison
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into me, choking
my lost heart.
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pour tuer mon
cœur perdu viendra peut-être encore.
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Oh, may your silhouette never dissolve on the beach;
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Que ne se brise ton portrait sur le sable,
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may your eyelids
never flutter into the empty distance.
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que ne s’envolent
pas tes paupières sans moi:
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Don’t leave me
for a second, my dearest,
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ne t’en va pas
une minute, bien-aimée,
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because in that
moment you’ll have gone so far
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un instant
suffirait, tu t’en irais si loin
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I’ll wander
mazily over all the earth, asking,
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que je
traverserais la terre en demandant
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Will you come
back? Will you leave me here, dying?
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si tu vas revenir
ou me laisser mourant.
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(Pablo Neruda, Chilean Poet, 1904-1973)
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(Pablo Neruda, poète chilien, 1904-1973)
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[1]
This case revolves around a woman who is looking
for her missing husband, and entails determining the reasonableness of the
decision made by the Refugee Protection Division (RPD) regarding the applicant’s
credibility.
[2]
If the story is credible, it is difficult to
imagine any greater suffering than the one resulting from the disappearance of
someone you love. Thousands of women and men who are looking for answers about
the disappearance of their loved ones share not only the pain of silence,
inertia and anguish, but also the courage required for perseverance, patience
and hope.
[3]
Every application for protection before a court
in Canada presents its own unique and distinct anatomy, and demands that
attention be paid to cultural, historical, socio-political and socio-economic
factors.
[4]
Applicants’ testimonies are coloured not only by
the evidence, but also by human nature, which, at first glance, may sometimes
seem incomprehensible and paradoxical, as revealed by the whole file and the
person’s narrative. Careful attention must be paid to the inherent logic of
every human being, which can at times, from certain points of view, appear to
surpass the limits of reason, but which, in reality, is entirely reasonable if
one looks at all of the information flowing from the evidence.
[5]
From this perspective, determinations of fact
must be drawn with regard to the applicants’ own points of reference, while
remaining anchored in evidence. This kind of consideration for cultural
distinctions helps establish a true dialogue between the tribunal and the
parties in a case:
Bits and pieces of thread of a narrative,
together, weave a story for it to live. Separately, scrutinized, they remain
stillborn. Nevertheless, just as each ship needs, at the very least, an anchor
by which to moor, so does an individual need, at the very least, an anchor to
corroborate the inherent logic of his narrative, no matter how different the
country condition landscape, cast of characters, encyclopedia of references and
dictionary of terms, appear.
(Borate v Canada (Minister of Citizenship
and Immigration), 2005 FC 679 at para 1).
II.
Introduction
[6]
This is an application for judicial review
pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
of a decision by the RPD, dismissing the claims for protection by the applicant
and her daughter under sections 96 and 97 of the IRPA.
III.
Facts
[7]
The applicant in this case, Sonia Mukamusoni [the
applicant] and her daughter, Blessing Nishimwe, who is six years old, are
citizens of Burundi and allege a fear of persecution based on their imputed
political opinion. Blessing’s application is based on that of her mother.
[8]
The applicant’s husband, Emery Ndikumana, is a
member of the country’s opposition party, the Movement for Solidarity and
Democracy [MSD], where he was the treasurer in the commune of Ngagara. Because
of his activities in the MSD, the applicant’s husband was targeted and received
threats from the Imbonerakure militia and the National Intelligence Service [SNR].
[9]
On October 19, 2012, the applicant’s
husband was ambushed, and shots were fired. The applicant’s husband was
allegedly kidnapped, and the applicant has not seen him since.
[10]
On November 21, 2012, a member of the Imbonerakure
militia came to the applicant’s home, seeking information about her husband’s
whereabouts. He allegedly slit the throat of a duck in front of the applicant
and her daughter, while making death threats against them.
[11]
Following this incident, the applicant went into
hiding at a friend’s place, south of Bujumbura. In December 2012, the applicant
obtained visas for the United States, and passports for herself and her
daughter. However, they did not have enough money to leave immediately.
[12]
The applicant set out four times to find her
husband in Kampala, Uganda, in January, February and March 2013.
[13]
On February 23, 2013, as she was returning
to Burundi from Kampala, the applicant was detained and interrogated by the SNR
about her trips to Uganda and her husband’s activities. The applicant was
imprisoned in Bujumbura for two weeks. She was then released as a result of
pressure by the Burundi Association for the Protection of Human Rights and
Detained Persons [APRODH].
[14]
The applicant continued to receive threats from
the Imbonerakure militia, coinciding with the return from exile of the
President of the MSD in March 2013. The applicant hid at the home of a friend
in Uvira, in the Democratic Republic of the Congo [DRC], where she became the
victim of extortion, prompting her to return to Burundi.
[15]
With financial assistance from a priest, the
applicant left Burundi on May 26, 2013, and arrived in Canada through the
US border with her daughter on May 31, 2013, to seek refugee protection.
[16]
A hearing was held before the RPD on July 31,
2013.
IV.
Impugned decision
[17]
In its reasons dated January 28, 2014, the
RPD concluded that the applicant generally lacked credibility. The RPD found that
the applicant did not meet her burden of proving a reasonable chance of
persecution or risk were she to return to Burundi.
[18]
Regarding the evidence, the RPD concluded as
follows:
[The applicant’s story] is not supported by
any other document corroborating the facts about the persecution, or even the
fact that her husband disappeared or fled, other than his MSD membership card
and a statement signed by the president of the MSD communal council in Ngagara
that simply indicates that he was a member of the party and acted as treasurer
and leader within the party. This document, which does not outline any specific
problems, was signed in Bujumbura on June 20, 2013.
(Tribunal Record at p 12, RPD decision at
para 43).
V.
Issues
[19]
There are two issues raised in this application:
(i)
Are the RPD’s credibility findings reasonable;
and
(ii)
Did the RPD err in failing to conduct a separate
analysis under section 97 of the IRPA?
VI.
Statutory provisions
[20]
The following statutory provisions are relevant
to this application:
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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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(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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Exclusion – Refugee Convention
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Exclusion par application de la Convention sur les réfugiés
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98. A person referred to in section E
or F of Article 1 of the Refugee Convention is not a Convention refugee or a
person in need of protection.
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98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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VII.
Applicant’s arguments
[21]
The applicant argues that the RPD based its
findings on peripheral considerations in determining her lack of credibility,
without regard for all of the evidence.
[22]
Specifically, the applicant claims that the RPD
erred in disregarding many elements in her testimony, such as those related to
her two-week arbitrary imprisonment, her attempts to seek asylum in the DRC,
and the threats made by members of the Imbonerakure against the applicant and
her daughter. Moreover, the RPD disregarded the evidence about her husband’s involvement
in the MSD, the way members of the opposition party are treated in Burundi, and
the fact that her husband is still missing.
[23]
In addition, the applicant claims that the RPD’s
decision is based on a microscopic analysis of her application and on unreasonable
inferences (Afonso v Canada (Minister of Citizenship and Immigration),
2007 FC 51).
[24]
Finally, the applicant submits that the RPD
erred in failing to conduct a separate analysis under section 97 of the IRPA (Odetoyinbo
v Canada (Minister of Citizenship and Immigration), 2009 FC 501).
VIII.
Respondent’s arguments
[25]
The respondent bases its position on the
deference owed to the RPD.
IX.
Analysis
A.
Are the RPD’s credibility findings reasonable?
[26]
The RPD’s findings on credibility are reviewed
on a standard of reasonableness. Consequently, the Court’s owes deference to
the RPD given that the assessment of the applicant’s credibility is at the very
heart of the task Parliament has chosen to leave to the RPD (Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at paras 22, 31 and 60 [Rahal]; Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190; and Aguebor v Canada (Minister of Employment and Immigration),
[1993] FCJ No 732 at para 4 [Aguebor]).
[27]
The RPD determined that the applicant’s
testimony was tainted by omissions, inconsistencies and implausibilities that
the RPD deemed to be compounded by a lack of reasonable explanations that could
compensate for these weaknesses. The cumulative impact of the gaps in key
aspects of the applicant’s testimony, having regard to all of the evidence, led
the RPD to find a general lack of credibility on the part of the applicant.
[28]
On the one hand, it is appropriate for the RPD
to take into consideration factors such as the plausibility of the applicant’s
testimony, her hesitations and her lack of precision, and to assign a
corresponding weight to these (Rahal, above, at para 45; Hassan v
Canada (Minister of Citizenship and Immigration), 2010 FC 1136 at para 12;
A.M. v Canada (Minister of Citizenship and Immigration), 2005 FC 579 at para 19;
Aguebor, above, at para 4; Yousef v Canada (Minister of
Citizenship and Immigration), 2006 FC 864 at para 19).
[29]
On the other hand, as indicated by Justice Luc Martineau
in Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT
116 [Lubana], not every kind of inconsistency or implausibility will reasonably
support the RPD’s negative findings on an applicant’s credibility:
[11] It would not be proper for the
Board to base its findings on extensive “microscopic” examination of issues
irrelevant or peripheral to the applicant’s claim [citations omitted].
. . .
[14] Finally, the applicant’s
credibility and the plausibility of testimony should be assessed in the context
of her country’s conditions and other documentary evidence available to the
Board. Minor or peripheral inconsistencies in the applicant’s evidence should
not lead to a finding of general lack of credibility where documentary evidence
supports the plausibility of the applicant’s story [citations omitted].
(Lubana at paras 11 and 14).
[30]
All of the nuances and consequences of a story
should be analyzed:
A tribunal must be careful when rendering a
decision based on a lack of plausibility because refugee claimants come from
diverse cultures, and actions which appear implausible when judged from
Canadian standards might be plausible when considered from within the claimant’s
milieu. [Emphasis added.]
(Valtchev v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 1131 at para 7).
[T]he Board should not be quick to apply the
North American logic and reasoning to the claimant’s behaviour: consideration
should be given to the claimant’s age, cultural background and previous social
experiences. [Emphasis added.]
(R.K.L. v Canada
(Minister of Citizenship and Immigration), [2003] FCJ No 162 at para 12).
[P]lausibility findings involve a distinct
reasoning process from findings of credibility and can be influenced by
cultural assumptions or misunderstandings. Therefore, implausibility
determinations must be based on clear evidence, as well as a clear
rationalization process supporting the Board’s inferences, and should refer to
relevant evidence which could potentially refute such conclusions. [Emphasis added.]
(Santos v Canada (Minister of Citizenship
and Immigration), [2004] FCJ No 1149 at para 15).
[W]hile the sworn testimony of a claimant is
to be presumed to be true in the absence of contradiction, it may reasonably be
rejected if the RPD finds it to be implausible. However, a finding of
implausibility must be rational and must also be duly sensitive to cultural
differences. It must also be clearly expressed and the basis for the
finding must be apparent in the tribunal’s reasons [citations omitted]. [Emphasis added.]
(Rahal, above at para 44).
[I]t is accepted that a tribunal rendering a
decision based on a lack of plausibility must proceed with caution. I find it
useful to reproduce the following passage from L. Waldman, Immigration Law
and Practice (Markham: Butterworths Canada Ltd. 1992) at page 8.10,
paragraph § 8.22 which deals with plausibility findings and the impact of
documentary evidence that may be before the tribunal:
§ 8.22 Plausibility findings
should only be made in the clearest of cases – where the facts as presented
are either so far outside the realm of what could reasonably be expected that
the trier of fact can reasonably find that it could not possibly have happened,
or where the documentary evidence before the tribunal demonstrates that the
events could not have happened in the manner asserted by the claimant. Plausibility
findings should therefore be “nourished” by reference to the documentary
evidence. Moreover, a tribunal rendering a decision based on lack of
plausibility must proceed cautiously, especially when one considers that
refugee claimants come from diverse cultures, so that actions which might
appear implausible if judged by Canadian standards might be plausible when
considered within the context of the claimant’s background. [Emphasis added.]
(Divsalar v Canada (Minister of
Citizenship and Immigration), [2002] FCJ No 875 at para 24).
[31]
A deeper examination of the RPD’s reasons and of
the transcript of the hearing reveals that the RPD to a large extent relied on
the implausibility of the applicant’s travels to Uganda to find her husband.
The RPD noted that it was implausible that the applicant would have made the
trip between Bujumbura and Kampala several times without any reliable
information or certainty as to her husband’s whereabouts. The RPD also considered
it to be implausible that the applicant would have remained without information
about her husband despite the fact that she spoke to him on the phone for one
minute. Specifically, the RPD indicated as follows:
The panel is of the opinion that it is
implausible that, based on such limited information, the claimant would travel
to Kampala, a city of over one and a half million people no less, to find her
husband, with so little information. The panel considers that the claimant’s
explanation is not very reasonable, thus undermining her credibility.
(Tribunal Record at p 9, RPD decision
at para 29).
[32]
Among other things, the RPD also drew a negative
inference from the fact that the applicant did not mention that it was the APRODH
that helped get her out of prison, despite the fact that the applicant testified
that she was released thanks to the intervention of a human rights organization.
[33]
In addition, the RPD drew a negative inference
from the fact that the applicant mentioned that her husband was in Uganda,
whereas she had also testified that he was in Kampala. At the hearing, the
applicant and her counsel explained that the applicant used Kampala and Uganda
interchangeably because Kampala is the capital of Uganda, and its most
populated city. Counsel for the applicant further explained that this form of expression
is a typical style of communication in the applicant’s culture. The Court
accepts that such a negative inference is unreasonable inasmuch as the
applicant’s statements are consistent and can coexist.
[34]
Often, the oral testimonies and explanations of applicants
are the only available evidence in support of their refugee protection claims.
With this in mind, explanations given by the applicant which are not obviously
implausible must be taken into account by panels (Lubana, above at para 20;
Owusu-Ansah v Canada (Minister of Employment and Immigration), [1989] FCJ
No 442).
[35]
Moreover, the documentary evidence before the
RPD addresses the applicant’s allegations regarding her husband’s persecution
and disappearance. Specifically, the document prepared by the Research
Directorate of the Immigration and Refugee Board entitled Burundi: Movement
for Solidarity and Democracy (MSD), describes the way the party and its
members are treated by the authorities:
[I]n a telephone interview with the Research
Directorate, an independent consultant in Burundi, who has been working with
NGOs and international organizations for more than 25 years and who writes
about the political situation in the country, stated that the party in power
considers the MSD [translation] “a threat,” and that the party is “is the
government’s second target, after the FNL [National Liberation Forces]” (28
Jan. 2013).
. . .
According to the independent consultant, MSD
members are [translation] “targeted” by the regime and may be intimidated,
imprisoned and, “in extreme cases, they may even be killed” (independent
consultant 28 Jan. 2013). He added that, in particular, the association of
youths with the ruling party [translation] “operates as a sort of paramilitary
militia” on behalf of the regime (ibid.).
(Burundi: Movement for Solidarity and
Democracy (MSD), 22 February 2013, Tribunal Record at pp 248-250).
[36]
An article in Human
Rights Watch (May 2012) describes the widespread impunity regarding
violence against political party members in Burundi:
Scores of people have been killed in
political attacks in Burundi since the end of 2010, Human Rights Watch said in
a report released today. The killings, some by state agents and members of the
ruling party, others by armed opposition groups, reflect widespread impunity,
the inability of the state to protect its citizens, and an ineffective
judiciary.
. . .
The report also highlights numerous cases in
which individuals were threatened, forced into hiding, and murdered as a result
of their perceived political leanings. For example, Audace Vianney
Habonarugira, a demobilized FNL combatant, was killed in July 2011. Days before
he was killed he gave Human Rights Watch a step-by-step description of
how he was being hunted across the country by police, military, and
intelligence agents.
(Burundi: Escalation of Political
Violence in 2011, Human Rights Watch, Tribunal Record at pp 239-240).
[37]
In addition, as
described in a report published by Human Rights Watch in 2013:
Political killings diminished significantly
in 2012, but there were sporadic attacks by armed groups as well as killings of
members or former members of the opposition National Liberation Forces (FNL).
Despite repeated promises to deliver justice for these crimes, the government
failed to take effective action to do so. In the vast majority of politically
motivated killings, thorough investigations were not carried out, and there
were no arrests or prosecutions. Impunity was particularly pronounced in cases
where the perpetrators were suspected to be state agents or members of the Imbonerakure,
the youth league of the CNDD-FDD.
(Country Chapter “Burundi”, Human
Rights Watch, Tribunal Record at p 234).
[38]
At the core of the applicant’s claim are her
subjective fear and the objective basis for this fear, stemming from the
applicant’s alleged persecution on the ground of the political opinion
attributed to her by her persecutors.
[39]
The Court finds that the elements related to
this subjective and objective fear were not reasonably addressed by the RPD.
[40]
In view of the above, the Court concludes that
the RPD’s findings are unreasonable.
B.
Did the RPD err in failing to conduct a separate
analysis under section 97 of the IRPA?
[41]
The RPD concluded that the risk alleged by the
applicant had no basis under section 97 of the IRPA. It appears that the
RPD conducted an integrated analysis of the considerations in the applicant’s
claim for refugee protection status, under both sections 96 and 97 of the
IRPA.
[42]
According to the case law, a separate or
detailed analysis under section 97 is not always required, and depends on
the particular circumstances of each claim (Brovina v Canada (Minister of
Citizenship and Immigration), 2004 FC 635 at para 17).
[43]
As indicated by Chief Justice Paul S. Crampton
in Kaur v Canada (Minister of Citizenship and Immigration), 2012 FC 1379:
[50] The Board is not obliged to
conduct a separate analysis under section 97 in each case. Whether it has an
obligation to do so will depend on the particular circumstances of each case (Kandiah
v Canada (Minister of Citizenship and Immigration), 2005 FC 181 at para 16,
137 ACWS (3d) 604). Where no claims have been made or evidence adduced that
would warrant such a separate analysis, one will not be required (Brovina v
Canada (Minister of Citizenship and Immigration), 2004 FC 635 at paras 17 and
18, 254 FTR 244; Velez, above at paras 48-51.
[51] Given that the allegations made by
Ms. Kaur in support of her claims under section 97 were the same as those that
she advanced in support of her claims under section 96, the Board was under no
obligation to undertake a second analysis of those claims under section 97,
once it had found that her allegations were not credible.
(Kaur at paras 50 and 51).
[44]
In view of the Court’s conclusions on the
unreasonableness of the findings concerning the applicant’s credibility, the
question of a separate analysis under section 97 is not determinative.
X.
Conclusion
[45]
In view of the reasons set out above, the Court finds
that the RPD’s decision is unreasonable.
[46]
The Court considers that the applicant’s claim
that the RPD breached its duty of procedural fairness by issuing a decision six
months after the hearing was held is without merit.
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