Docket: IMM-7224-14
Citation:
2015 FC 889
Toronto, Ontario, July 21, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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EDDY WAMAHORO
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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
I.
OVERVIEW
[1]
This is an application for judicial review of an
Immigration and Refugee Board [Board, Member] decision [Decision] refusing the
Applicant’s refugee status based on a lack of credibility and subjective fear.
The Applicant argues that the Decision was flawed by procedural unfairness, in
addition to being unreasonable. I agree with the Applicant and will allow this
application for judicial review, for the reasons set out below.
II.
BACKGROUND
[2]
I begin by noting these facts are unusual, and
this decision is thus particular to its unique set of circumstances.
[3]
The Applicant, Mr. Eddy Wamahoro, is a citizen
of Burundi and a Tutsi. He has been a part of the Urucaca drum band since 1998,
including serving as its president from 2005-2008 and again from 2010 until he
claimed refugee status. He contends that the following took place, which led to
his claim.
[4]
On January 15, 2014, Mr. B [last names of third
parties kept confidential], secretary of the militia group Imbonerakure,
visited the Applicant. The group is the youth wing of Burundi’s ruling party,
the National Council for the Defence of Democracy-Forces for Defence and
Democracy, or Conseil national pour la défense de la démocratie-Forces de
défense et de la démocratie [CNDD-FDD]. Mr. B suggested members of Urucaca join
Imbonerakure, and that the Applicant assist in this recruitment. The Applicant
refused, saying that politics did not interest him, and he rather concentrate
on his studies and his music. One week later, the Applicant received a
threatening phone call.
[5]
On February 5, 2014, Mr. B returned to the
Applicant’s home to ask him if he changed his mind about joining Imbonerakure.
As he had not, Mr. B started recruiting members from Urucaca himself. The
Applicant dissuaded members of the group from joining.
[6]
On March 11, 2014, the Applicant was assaulted
by a regional leader of Imbonerakure, Mr. N, along with armed men from the
militia group. They accused him of being a part of the opposition, since he
refused to cooperate. Then, on March 24, 2014, the Applicant received a letter
convoking him to the office of the National Intelligence Service [Service] on
April 2, 2014. The notice did not contain a reason for the pending convocation,
which resulted in the Applicant’s fear of what was next. The Applicant
consequently sought refuge at a friend’s house.
[7]
On the night of April 2, 2014, the Applicant’s
family home was attacked by four armed men looking for him. The Applicant
remained in hiding at his friend’s house until May 8th, 2014 when he
left with Urucaca for the United States to participate in in the Dayton
International Festival, for which he had already obtained a U.S. visa. When he
arrived in the U.S. on May 9, 2014, the Applicant called his Canadian uncle,
who suggested he make his way to Canada.
[8]
After the music festival ended, the Applicant
travelled from Dayton, Ohio to Buffalo, New York, where he sought assistance
from Vive La Casa [Vive], a non-governmental organization which helps
individuals in the refugee claim process. Upon arriving at Vive on May 22,
2014, the Applicant was advised to obtain documents from Burundi to prove the uncle’s relationship before making his claim. Acting on this advice,
the Applicant delayed his entry into Canada.
[9]
The Board refused the claim, finding the
Applicant not to be a person in need of protection pursuant to sections 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act], because he lacked credibility and did not establish subjective fear. The
Board also found it implausible that the Imbonerakure would seek out a group of
musicians: according to the documentary evidence and the Board’s specialized
knowledge, the Imbonerakure are a group of delinquents who steal from and
harass individuals in Burundi, and intimidate political opponents. The Board
found that the Imbonerakure could have recruited Urucaca members directly
without going through the Applicant, had it so desired.
[10]
In response to the Board’s question of whether
there might be other reasons to target him, the Applicant responded that one
reason could be to recruit more Tutsi members, given that he was a Tutsi. The
Board found that this explanation based on ethnicity was speculative.
[11]
Finally, the Board found the Applicant exhibited
behaviour inconsistent with a subjective fear of persecution, and pointed to
(i) his failure to leave his home for a period of three weeks (from March 11 –
April 1, 2014), (ii) his convocation for an interview by the intelligence
service on March 24, (iii) his delay in leaving Burundi until May 2014, in
light of his U.S. visa valid since March 5, 2014, and (iv) the two months spent
in the U.S. before entering Canada.
III.
ISSUES
A.
Did the Board breach the Applicant’s right to
procedural fairness by relying on its own purported specialized knowledge?
[12]
The Applicant submits that the Board relied on
specialized knowledge regarding recruitment by Imbonerakure without giving the
Applicant an opportunity to respond to this knowledge, contrary to Rule 22 of
the Refugee Protection Division Rules, SOR/2012-256 [Rules]. This is a
breach of procedural fairness which impacted the Decision because, given the
opportunity, the Applicant could have referred to evidence to address the
concerns (Bitala v Canada (MCI), 2005 FC 470, para 19).
[13]
The Respondent counters that specialized
knowledge used by the Board was consistent with the Applicant’s description of
Imbonerakure. The Board simply disagreed with the Applicant that Imbonerakure
would pursue the Applicant and his group. Additionally, the Board notified the
Applicant of the specialized knowledge at the hearing and thus provided him
with an opportunity to address it (Munir v Canada (MCI), 2012 FC 645, at
para 17 [Munir]). In any event, this is not a sufficient basis on which
to set aside the Decision because it was not determinative (Toma v Canada
(MCI), 2014 FC 121, at paras 29-31 [Toma]). Further, given that the
Board did not find the Applicant’s allegations with regard to the
Imbonerakure’s recruitment credible, it was open to it to attribute little
weight to that evidence.
B.
Did the Board overlook or ignore evidence, and
make unreasonable implausibility and credibility findings in so doing?
[14]
The Applicant submits that the Board’s findings
that it was implausible the Imbonerakure needed the Applicant’s assistance, and
would recruit musicians, were made without regard to the documentary evidence.
The evidence shows that the Applicant had influence over members of his group
and that there was no reason why Imbonerakure would not recruit musicians.
[15]
The Respondent argues that the Board is best
placed to make implausibility and credibility findings (Aguebor v Canada
(MEI) (1993), 160 NR 315, at para 4 (FCA)). The Board reasonably found that
it would be implausible for Imbonerakure to recruit musicians and to do so
through the Applicant.
[16]
The Applicant further submits that the Board
ignored evidence that corroborated his fear of persecution should he return to
Burundi. The documentary evidence shows there is a link between Imbonerakure
and the National Intelligence Service. Where evidence is submitted by the Applicant
that is contrary to the conclusion reached, the decision-maker must refer to it
in the decision (Mahanandan v Canada (MEI), [1994] FCJ No 497 [Mahanandan];
Cepeda-Gutierrez v Canada (MEI), [1998] FCJ No 1425, para 17 [Cepeda-Gutierrez]).
[17]
The Respondent argues that the Board considered
the evidence, and need not mention every item in its reasons.
C.
Were the subjective fear findings reasonable?
[18]
The Applicant states that there were two reasons
why he remained in the U.S. for a short period before seeking refugee status in
Canada, and did not make an asylum claim in the U.S. He had family (his uncle)
in Canada and was advised to get documentation to prove the relationship.
Family aside, he perceived Canada to be a better place for refugees.
[19]
The Applicant submits that having family in
Canada alone is a valid reason for not making a claim in the U.S., and instead
waiting to make a properly documented claim in Canada (Rajadurai v Canada
(MCI), [2013] FCJ No 566, at para 65 [Rajadurai]).
[20]
The Respondent contends that that the Board
reasonably found the Applicant could have left Burundi earlier. Similarly, he
could have left the U.S. earlier if he did not intend to make a claim there. The
Board properly considered the evidence before it, and reached a reasonable
conclusion on subjective fear.
IV.
ANALYSIS
[21]
As a preliminary issue, the parties are agreed,
and I concur, that the standard of review for procedural fairness is
correctness. For other issues raised above, it is reasonableness. (Dunsmuir
v New Brunswick, 2008 SCC 9, at paras 47-51; Mission Institution v
Khela, 2014 SCC 24, para 79).
[22]
I have concerns with all three issues raised by
the Applicant, any of which are significant enough to require reconsideration
of the claim, given that each could have changed the outcome.
A.
The Board breached the Applicant’s rights to
procedural fairness by relying on “specialized knowledge”
[23]
The Board assessed the Imbonerakure as a group
of delinquents who steal from and harass individuals. The Member factored in
his “specialized knowledge” in coming to this
assessment. I do not find it clear where he came to his finding that the group
would not target musicians. Given that this specialized knowledge finding led
directly to credibility and implausibility concerns, the claimant should have
been given an opportunity to rebut it (Isakova v Canada (MCI), [2008]
FCJ No 188, para 16). The Board did not inform the Applicant of the specialized
knowledge on which it was relying; it simply asked the Applicant why the
Imbonerakure would have attempted to recruit musicians. To then rely on the
knowledge to impugn credibility was unfair to the Applicant, and breached Rule
22.
[24]
The Respondent relied on two specialized
knowledge cases, but both involve different facts. In Munir, the panel
provided applicant’s counsel with a copy of the evidence on which it relied for
its specialized knowledge on the morning of the hearing, and gave 15 minutes
for counsel to consult the applicant. In this case, the Board neither provided
Mr. Wamahoro with notice of the issue on which it would be relying, nor of any
documentary evidence on which its specialized knowledge was founded.
[25]
Similarly, in Toma, the panel itemized
documentary evidence on which it would be relying, so the applicant was put on
notice. Here, the Board did not provide the Applicant with any notice of its
knowledge of the Imbonerakure recruitment methods. The importance of giving
notice of specialized knowledge is precisely to be fair to claimants so they
know the case against them. A lawyer would have known what specialized
knowledge was, had the Board mentioned it during the hearing, and since it
failed to do so, counsel had no opportunity to respond.
[26]
In fact, the evidence on the record does not
support the findings of the Board, to the extent it employed specialized
knowledge in arriving at its conclusions. The evidence shows that the
Imbonerakure is a youth wing, numbering some 20,000, which recruits young men
throughout the country, primarily in the 18-35 age range. (AR at pages 61,
151). The evidence does not specify exactly what type of individuals
Imbonerakure recruits, other than ex-military personnel. Certainly, ex-military
do not form the totality of its members. There is no evidence that beyond
ex-military, Imbonerakure is selective. It needs members.
[27]
The evidence also shows that the Imbonerakure
members chant and sing songs (AR, page 152). The Urucaca musicians fit this
profile, both in terms of age and gender, being young men who are musically
inclined.
[28]
In short, the Member used his specialized knowledge
assumptions of who the Imbonerakure would and would not recruit, which was not
based on any evidence, and of which neither the Applicant nor counsel was put
on notice. This led directly to crucial implausibility findings. Improperly
relying on specialized knowledge without providing the Applicant an opportunity
to respond violated procedural fairness. I would note that even without the use
of specialized knowledge problem, implausibility findings should be supported
by the evidence, and only be made in the clearest of cases (Yu v Canada, 2015
FC 167, at para 10; Ansar v Canada (MCI), 2011 FC 1152, at para 17; Rahal
v Canada (MCI), 2012 FC 319, at para 44).
B.
The Board overlooked key evidence such that it
made unreasonable implausibility and credibility findings
[29]
The Board overlooked evidence when it impugned
the credibility of the Applicant fleeing Burundi on account of the National
Intelligence Service (AR at p 43). The Board never questioned the genuineness
of the summons. The summons is a centrepiece of the Applicant’s claim, which
cannot be ignored. Furthermore, the Service, according to the documentary
evidence, is linked to Imbonerakure, and can be very violent (see Certified
Tribunal Record at p. 143). The Board should have, at minimum, referenced this
evidence regarding the links between the organizations, and explained why it
gave no relevance or weight to the Applicant’s testimony, with which the
documentary evidence was consistent: Cepeda-Gutierrez at para 17; Mahanandan
at para 8.
C.
The subjective fear findings were unreasonable
[30]
The Applicant provided detailed explanations
and oral testimony regarding his subjective fear and what transpired at Vive in
Buffalo. Specifically, the Applicant testified that he arrived in Buffalo shortly
after the Dayton music festival, which appears to be reflective of his desire
to claim refugee status in Canada. As he explained, there would be no other
reason for him to have travelled from Dayton to Buffalo. While in Buffalo, the
Applicant lived at Vive.
[31]
In addition to failing to address the above
explanation of the Applicant’s time spent in the U.S., the Board did not
mention the fact that the Applicant made immediate inquiries of staff at Vive
to determine what documentation and evidence he would require in order to make
a claim in Canada, and/or that he was advised by Vive’s staff to obtain proof
of his relationship to his uncle. The Applicant immediately set about this
task, and described in testimony his efforts to obtain proof, because he had no
documentation to prove the relationship. The Applicant testified that he had to
obtain the proof via his mother in Burundi, and while she was able to supply
him with the requisite birth certificates, that process took nearly three
weeks. Upon receipt of this identity documentation, it took another two weeks
for the Applicant to get an appointment with the Canadian authorities.
[32]
This Court has accepted delays due to legitimate
efforts to claim status. The Board was obliged to at least consider the
explanation for the delay, even if it ultimately chose to reject it: Kannuthura
v Canada (Citizenship and Immigration), 2012 FC 1288, paras 5-6; Gopalarasa
v Canada (MCI), 2014 FC 1138, paras 34-35. Justice Rennie’s words in Valencia
Pena v Canada (Citizenship and Immigration), 2011 FC 326 are particularly
apt:
[4] The failure to claim elsewhere
is not, in and of itself, determinative. However, the Board must carefully
consider any explanation provided by the applicant and give reasons for
rejecting it…In this case, the explanation before the Board was consistent with
the existence of subjective fear, and its unilateral dismissal, was, without
more, in error. The Board’s rejection of this explanation informed much of
its approach to the balance of the applicant’s testimony and cannot be
considered immaterial to the outcome. (emphasis added)
[33]
In addition, the Board failed to acknowledge
that one can legitimately claim status where a family member lives. This
exception to the usual rule -- that delay or a failure to claim can give rise
to an adverse credibility finding -- is also consistent with the Safe Third
Country Agreement between Canada and the United States: see Rajadurai,
at para 65; and Ay v Canada (Citizenship and Immigration), 2010 FC 671
at paras 39-40).
V.
CONCLUSION
[34]
Given that the Board’s findings on both
credibility and subjective fear were unreasonable, the application for judicial
review is allowed. The matter will be returned to the RPD for reconsideration
by a differently constituted panel.
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