Docket: IMM-8130-14
Citation:
2015 FC 847
Ottawa, Ontario, July 9, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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CHELSEA
IRANKUNDA
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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]
Chelsea Irankunda is the daughter of a member of
an opposition party in Burundi who claims to fear persecution at the hands of a
senior government member who had sexually assaulted her. The Refugee Protection
Division found Ms. Irankunda’s claim not to be credible and dismissed her
application for refugee protection. For the reasons that follow, I have
concluded that the Board’s decision was reasonable, and that Ms. Irankunda was
not treated unfairly in the refugee process.
I.
Background
[2]
Ms. Irankunda says that in April of 2013, when
she was 14 years old, she went to a party with a girlfriend at which a number
of older men were present. The men were mingling with young girls and were
touching them inappropriately. Ms. Irankunda claims that she was given a Coke by
one of the men, and that after she drank it she began to have stomach pains and
feel dizzy. When her girlfriend did not want to leave the party and her stomach
pains got worse, Ms. Irankunda went to the bathroom to vomit. While she was in
the bathroom, Ms. Irankunda says that she was molested by an older man.
[3]
After the assault, Ms. Irankunda went looking
for her friend at the party, but was unable to find her. The man who had
touched her in the bathroom then approached Ms. Irankunda and offered to drive
her home. Ms. Irankunda accepted his offer, and the man allegedly continued to
touch her during the car ride.
[4]
When they pulled up in front of Ms. Irankunda’s house,
the man asked her who her father was. When she told him her father’s name, the
man told her not to reveal anything that had happened that night or he would
harm her father. When Ms. Irankunda got out of the car, she noticed that it
bore a government license plate. It was then that Ms. Irankunda realized that
she had seen the man on television, and that he was a member of the governing
party.
[5]
Ms. Irankunda says that she did not tell anyone
about what had happened to her for over a year because she feared her father
would be harmed by her assailant. However, when her father failed to return
home one night in July of 2014, Ms. Irankunda became very upset, fearing that
her assailant may have harmed her father. When her father finally did come
home, Ms. Irankunda told him about the assault and the threats that had been
leveled against her father the year before.
[6]
Ms. Irankunda’s father feared for his daughter’s
safety and wanted to get her out of Burundi. On August 5, 2014, the pair left
Burundi for New York City, where Ms. Irankunda’s father had friends. A few days
later, Ms. Irankunda took a bus from New York City to Buffalo where she stayed
for a few days at Viva La Casa, a refugee shelter that provides assistance to
refugees wishing to cross over into Canada. Ms. Irankunda entered Canada on
August 19, 2014 and claimed refugee protection at the port of entry that same
day.
[7]
After her arrival, Ms. Irankunda went to live
with her aunt, Germaine Basita, who resides in Canada and who acted as Ms.
Irankunda’s Designated Representative at her refugee hearing. The Applicant
also has a brother living in Canada.
II.
The Board’s Decision
[8]
The Board rejected Ms. Irankunda’s refugee claim
on credibility grounds.
[9]
The Minister had intervened in this matter, and
provided evidence that Ms. Irankunda had applied for a study visa in mid-2012,
and that an application for permanent residence had been filed on her behalf at
the end of 2012. Only one of these prior applications had been disclosed in Ms.
Irankunda’s Basis of Claim form.
[10]
The Board noted that Ms. Irankunda could not establish
the identity or existence of the man who had allegedly molested her and that
she had not made any effort to find out who he was, even though it would have
been relatively easy to do so given that he was on television. Ms. Irankunda’s vague
and incomplete testimony led the Board to conclude that the man did not exist.
[11]
The Board found it understandable that Ms.
Irankunda might not have told her father about what had happened to her for
over a year. However, it found that Ms. Irankunda’s explanation of what
happened after she told her father about the assault not to be credible.
[12]
The Board noted that according to Ms. Irankunda,
her father was sufficiently concerned about her safety after learning of the
assault that he immediately took her to the United States so that she could get
to Canada. However, the Board found it incredible that the father did not
contact his sister and son in Canada to alert them that Ms. Irankunda was
coming, nor did he accompany her to Canada. Instead he put his fifteen-year-old
daughter on a bus destined for Buffalo all by herself.
[13]
The Board stated that Ms. Irankunda had claimed
that it was only when she talked to other Burundians on the bus that she
learned about the Viva La Casa shelter in Buffalo, and that it was when she got
to the shelter that Ms. Irankunda contacted Ms. Basita and her brother to tell
them that she was coming to Canada.
[14]
The Board was also not persuaded that Ms.
Irankunda’s father was in any danger in Burundi, given that he returned home after
putting his daughter on the bus to Buffalo. This led to an adverse inference
being drawn as to Ms. Irankunda’s credibility.
[15]
Finally, the Board also found that even if it
had believed Ms. Irankunda’s story, it still would not have found that she had
a well-founded fear of persecution in Burundi. Although the events of April
2013 were “malheureux”, the Board noted that on Ms. Irankunda’s own evidence, more than
fourteen months had passed since the assault without Ms. Irankunda encountering
any problems in Burundi. Although Ms. Irankunda stated that she was afraid that
her father would seek to avenge her should he learn the identity of the man who
assaulted her, the Board noted that this was unlikely, given that Ms. Irankunda
did not herself know the man’s identity.
III.
Adjournment
[16]
Ms. Irankunda asserts that she was denied procedural
fairness by the Board, which refused her request to adjourn her refugee hearing
in order to permit her to obtain a psychological report.
[17]
The denial of an adjournment raises a question
of procedural fairness. I must, therefore, determine whether the process
followed by the decision‑maker satisfied the level of fairness required
in all of the circumstances: see Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12 at para. 43, [2009] 1 S.C.R. 339.
[18]
The hearing was set for October 20, 2014. On October
3, 2014, Ms. Irankunda’s counsel submitted a three-line request for an
adjournment. The primary reason cited for the request was counsel’s scheduling
conflict. The letter went on to state that Ms. Irankunda’s psychologist would
not be able to prepare a report by October 20. There was no indication in the adjournment
request why a psychological report was required, nor was there any suggestion
that Ms. Irankunda suffered from a psychological condition that would have
impaired her ability to testify on her own behalf. The request for an
adjournment was denied by the Board on October 17, 2014.
[19]
The issue of the psychological report was
addressed briefly at the commencement of the hearing. Counsel did not renew her
request for an adjournment, nor was there any suggestion that Ms. Irankunda
would be prejudiced in any way by proceeding with her refugee hearing without a
psychological report.
[20]
At the end of the hearing, the Board gave Ms.
Irankunda a further week to file a report from her psychologist. No such report
was ever filed, and the affidavit of Ms. Irankunda’s aunt, which was filed in
support of the application for judicial review, does not provide any
explanation for the failure to file the report. Nor does the affidavit indicate
what the report would have said or explain how Ms. Irankunda was prejudiced as
a result of the denial of the adjournment. In the circumstances, Ms. Irankunda
has not demonstrated that the Board treated her unfairly in denying her
adjournment request.
IV.
Credibility
[21]
Ms. Irankunda submits that it was unreasonable
for the Board to have found her story not to be credible based upon her
father’s actions, given that he was not present at the hearing and could thus
not address the Board’s concerns. Ms. Irankunda further submits that she is not
accountable for her father’s actions, and that the Board speculated about why her
father acted a certain way. Finally, Ms. Irankunda submits that, in any event,
the Board’s findings regarding her father’s actions were peripheral to her own
fear of persecution.
[22]
I do not accept this argument. The role of the
Board is to consider the evidence before it, and to determine whether the story
told by an applicant for refugee protection is credible. In doing so, the Board
is entitled to use common sense.
[23]
In this case, Ms. Irankunda provided a detailed
account of the events leading up to her flight from Burundi, her transit
through the United States and her arrival in Canada. These events were central
to her claim.
[24]
The actions that Ms. Irankunda attributed to her
father were largely those of “un
bon père”, that is, a loving parent who would do
what was required to protect his daughter. At the same time, Ms. Irankunda
stated that her father took her to the Greyhound bus station in New York City
where he put her on a bus destined for Buffalo, simply telling her to go to the
Viva la Casa shelter and seek assistance there. These actions appear, on their
face, to be inconsistent with the actions of a loving father seeking to protect
his vulnerable 15-year-old French-speaking daughter.
[25]
A review of the transcript reveals that the
Board repeatedly questioned this aspect of Ms. Irankunda’s story, giving her
ample opportunity to address its concerns. Various responses were provided by
Ms. Irankunda and Ms. Batista in an attempt to address the Board’s concerns.
However, their responses only added to the confusion.
[26]
At one point, Ms. Irankunda seemed to indicate
that she had travelled to Buffalo by herself, whereas elsewhere in her
testimony, she stated that she had been accompanied by friends of her father
who the pair had met at the bus station. In contrast, Ms. Batista suggested
that there were other Burundians on the bus who were travelling to Montreal to
visit family, a suggestion that raises the obvious question of why someone
travelling from New York City to Montreal would be on a bus to Buffalo in the
first place.
[27]
Ms. Irankunda testified that the only
instructions that her father gave her were to go to the refugee shelter in
Buffalo and seek assistance there. There is no suggestion that her father told
her what she should do or who she should call if she ran in to difficulties
once she got to the shelter, and it is not at all clear from the transcript
when or if Ms. Irankunda’s aunt was notified that Ms. Irankunda was on her way
to Buffalo. In the circumstances it was entirely reasonable for the Board to
have concerns with respect to the veracity of Ms. Irankunda’s testimony.
[28]
Ms. Irankunda also argues that the Board erred
by drawing a negative inference from the fact that prior attempts had been made
to have her come to Canada, either via a study permit or an application for
permanent residence. According to Ms. Irankunda, these prior applications were
irrelevant to the question of whether she had a well-founded fear of persecution
in Burundi as a result of the events of April 2013. However, a review of the
Board’s decision does not demonstrate that any negative inference was drawn by
the Board in this regard.
[29]
As was noted earlier, the Minister intervened in
Ms. Irankunda’s refugee claim in order to adduce evidence regarding her prior
attempts to enter Canada. In its reasons, the Board recites the fact that two
visa applications had been made in 2012. These events were, however, simply
noted as part of its narrative history, and no inferences, negative or
otherwise, were drawn by the Board in relation to this evidence.
V.
Gender Guidelines
[30]
Ms. Irankunda argues that although the Board
paid lip-service to Chairperson’s Guidelines regarding gender-related
persecution and child refugee claimants, it was not sufficiently attentive to
her situation as a young female victim of a sexual assault in Burundi.
[31]
By way of example, Ms. Irankunda submits that
the Board faulted her for not immediately reporting the assault, noting that
there are many reasons why a victim may not disclose a sexual assault for some
time. The Board was, however, clear in its reasons that it did not fault
Ms. Irankunda for failing to report the assault at the time that it happened.
The Board noted at the hearing that a sexual assault was something that would
be difficult for a daughter to discuss with her father. Indeed, in observing
that Ms. Irankunda had waited more than a year to report the assault, the Board
noted at paragraph 14 of its reasons, “[c]eci en soi peut se comprendre”.
What the Board took issue with was not the delay in reporting the assault, but
rather Ms. Irankunda’s story as to what came next.
[32]
Ms. Irankunda also suggests that the Board
trivialized the assault by describing it as “une mauvaise soirée” or “des événements malheureux”. I cannot accept that the Board’s use of these terms demonstrates a
lack of sensitivity to the situation in which Ms. Irankunda allegedly found
herself in April of 2013. This is especially so when regard is had to the
transcript of the hearing, where it appears that the Board went out of its way
to put Ms. Irankunda at ease and to empathize with her.
VI.
Section 97
[33]
Finally, Ms. Irankunda argues that the Board
erred by failing to have due regard to her claim under section 97 of the Immigration
and Refugee Protection Act. While it is true that the country condition
information indicates that sexual violence and forced prostitution involving
young girls is a significant problem in Burundi, Ms. Irankunda’s allegations of
risk were entirely based upon Convention grounds and involved a story that was
found not to be credible. In the circumstances of this case, I am not persuaded
that the Board was required to go further than it did in its section 97
analysis.
VII.
Conclusion
[34]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case is fact-specific
and does not raise a question for certification.
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