Docket: IMM-2903-15
Citation:
2016 FC 46
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, January 15, 2016
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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SALVATOR
KANYARUGANO
ANGE ORNELLA
KANEZA
JESSIE MICAL
KEZA
MIKE KANYARUGANO
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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.
Nature of the matter
[1]
This is an application for judicial review. The
applicants are challenging a decision by the Refugee Protection Division [RPD]
of the Immigration and Refugee Board, dated May 4, 2015, which found that
the applicants were neither Convention refugees nor persons in need of
protection.
II.
Facts
[2]
The applicants are Tutsi citizens of Burundi,
who lived in Bujumbura. The principal applicant, Salvator Kanyarugano, is the
father of the three other applicants. His wife, Domitille Nsengiyumva, was a
party at the RPD hearing, but is not included in this application for judicial
review.
[3]
The applicants are claiming a fear of General
Alain Guillaume Bunyoni, his employee Moïse and the Imbonerakure militia. In
December 2013, General Bunyoni allegedly refused to pay the principal applicant
for a construction contract because he twice refused to join the CNDD-FDD, a
political party. The principal applicant alleges that he instituted legal
proceedings against the general, who threatened him when he heard about the
suit.
[4]
On January 4, 2014, strangers allegedly
followed the principal applicant and his wife by car. On March 10, 2014,
some Imbonerakure allegedly kidnapped the female applicant (and principal
applicant’s daughter), Ange Ornella Kaneza, and later the principal applicant
when he went to meet them. They were released on March 11, 2014, in
exchange for 10 million Burundian francs and were ordered to disappear.
[5]
The applicants allege that they immediately fled
to a friend’s home in Makamba (Dominique Niyondiko). On May 23, 2014, the
applicants received their US visas, and, on August 3, 2014, they flew to
the United States, eventually claiming refugee protection at the Canadian
border. In the meantime, Ms. Nsengiyumva took refuge in the Democratic Republic
of the Congo until December 2014, when she returned to Bujumbura to fly to
Canada to join her family. She had obtained a Canadian visa on July 23,
2014.
III.
Decision
[6]
The RPD found that the applicants’ fear of
persecution was not credible. Their account contained inconsistencies and
omissions, and, at the hearing, they did not provide a reasonable explanation
or documentary evidence that could corroborate their story.
[7]
Among other things, the RPD relied on the lack
of documentary evidence for the suit against General Bunyoni and the withdrawal
of 10 million Burundian francs, and on the contradictions surrounding the
applicants’ activities between the time of their release by their kidnappers
and their arrival in Makamba. The RPD also focussed on the time it took them to
leave Burundi. Lastly, the RPD noted several instances where the applicants’
testimony was vague and hesitant.
IV.
Issue
[8]
Did the RPD err in its assessment of the
applicants’ credibility?
V.
Standard of review
[9]
The parties agree, and I concur, that the RPD’s
decision is reviewable against a standard of reasonableness (Elmi v Canada
(Citizenship and Immigration), 2008 FC 773 at para 21).
VI.
Analysis
[10]
Since the RPD’s decision is based on several
findings of lack of credibility and lack of corroboration, the applicants
submit that these findings should be reviewed as a whole. Even though some
errors, seen individually, are not reviewable, a series of errors could lead to
the conclusion that the decision was unreasonable: Khemiri v Canada
(Solicitor General), 2005 FC 821 at para 21.
[11]
Consequently, the Court must discuss the RPD’s
more important findings. I will first look at the findings that are incorrect
or ill supported and then turn to the relevant, well-supported findings.
A.
Incorrect or ill-supported findings
[12]
The parties agree that the RPD’s decision
contains at least three errors:
- The principal
applicant never alleged that General Bunyoni received the complaint he filed
with the court in Burundi (see para 28 of the decision);
- There are no
contradictions in the principal applicant’s statements regarding the
threats he received from Moïse (see paras 34 to 36 of the decision);
and
- The principal
applicant’s wife never stated that she had trouble finding the house of Mr. Niyondiko
in Makamba (see para 72 of the decision).
[13]
I would add that there is another error: the RPD
erred in stating that the applicants did not take any preventive measures so as
not to be found by their alleged enemies when they returned to Bujumbura on two
occasions in order to obtain US visas (see para 44 of the decision). The
principal applicant testified that Mr. Niyondiko helped them with these
trips. Mr. Niyondiko drove them directly to the US embassy and took them
out of the city immediately after their appointment.
[14]
In my opinion, the RPD’s decision contains a
number of other findings that are ill supported, even though they are not
clearly wrong:
- Questions 8 and
12 of Schedule A to the principal applicant’s Basis of Claim form
(which concern his personal history and previous addresses) are not as
simple and clear as the RPD suggests. In my opinion, the applicants’
explanation of why they omitted their stay in Makamba is reasonable. The
RPD’s conclusion not to accept this explanation seems unjustified (see paras 41
to 43 of the decision);
- According to my
reading, the transcript of the RPD hearing does not confirm that the
principal applicant’s wife was vague and evasive on the subject of the
location where the principal applicant and his daughter were held. Even
though she had trouble clearly identifying the location, she explained
that it was in the Kinama neighbourhood north of Bujumbura, that she was
not very familiar with this neighbourhood and that the streets in this
neighbourhood did not have official names (see paras 65 to 67 of the
decision);
- The RPD’s
decision does not provide the basis for the finding that it is unlikely
that the kidnappers would have brought the principal applicant’s wife to their
hiding place. It may be true that kidnappers in Canada do not
generally reveal their hiding places to their victims, but the same is not
necessarily true of Burundi (see paras 68 and 69 of the decision);
and
- The RPD rejected
the principal applicant’s wife’s explanation of her decision to return
from the Congo to Burundi in order to travel to Canada without considering
that her best option would have been to cross the Congo (a notoriously
unstable country) to Kinshasa (on the other side of the country) (see para 54
of the decision).
B.
Relevant, correct and well-supported findings
[15]
Considering these incorrect, ill-supported
findings, I must examine some other findings that seem to be relevant, correct
and well supported.
- The RPD
determined that the testimony of the principal applicant’s wife regarding
the applicants’ movements immediately after the release of the principal
applicant and his daughter contradicted her written account (see paras 70
and 71 of the decision);
- The RPD noted
the absence of documentary evidence that the principal applicant filed a
complaint with the court in Burundi against General Bunyoni (see paras 29
and 45 of the decision);
- The RPD noted
the absence of documentary evidence confirming that the applicant’s wife
withdrew 10 million Burundian francs, which were paid to the
kidnappers (see paras 73 and 74 of the decision); and
- The RPD noted
that the applicants left Burundi on August 3, 2014, approximately two
and a half months after obtaining their visas and almost five months after
the principal applicant and his daughter were released by their kidnappers
(see paras 48 and 49 of the decision).
[16]
The principal applicant’s wife testified clearly
that the applicants left for the home of Mr. Niyondiko, in Makamba, at
around 12:30 p.m. on March 11, 2014, while her account
contradictorily states that, after her release, they [translation] “spent all day and all
night working out how to flee” before Mr. Niyondiko agreed to put
them up. The applicants submit that (i) the RPD did not clearly conclude that
this was a contradiction; (ii) in her account, the principal applicant’s wife
might have been referring to the night before the release rather than
the night following it; and (iii) if the principal applicant’s wife had been
confronted with the contradiction, she might have been able to explain it. I
accept none of these submissions.
[17]
In my opinion, the RPD clearly concluded at
paragraph 71 of its decision that this was a contradiction: “Her written account tells a completely different story”.
According to the evidence, this finding was reasonable. The incorrect statement
at paragraph 72 (that the principal applicant’s wife had trouble finding Mr. Niyondiko’s
house in Makamba) does not affect this finding.
[18]
I cannot accept that the principal applicant’s
wife was referring to the night before her husband and daughter’s release
because the account clearly states that the night to which she was referring
was the night following the release.
[19]
Lastly, I was not provided with another
explanation that the principal applicant’s wife could have given had she been
confronted with her contradiction.
[20]
Regarding the lack of documentary evidence for (i)
the complaint before the court in Burundi; and (ii) the bank withdrawal, it was
reasonable, in my opinion, to draw a negative conclusion regarding the
applicants’ credibility. These are clearly important documents, and they would
not have been difficult to obtain by contacting the court in Burundi and the
principal applicant’s bank.
[21]
The applicants note that the principal applicant’s
wife explained that the documentary evidence for the bank withdrawal was
originally sent to their former home in Bujumbura (to which the family has not
returned) and that the RPD seemed to accept this explanation, saying “Okay, that makes sense. That makes sense.” In light
of this statement, the applicants state that they find it hard to understand
how the RPD reached its negative conclusion. The RPD’s statement constitutes
recognition of the reason why the applicants did not have documentary evidence
for the withdrawal upon their arrival in Canada. However, I accept the
respondent’s reply that the statement does not suggest that the RPD was
satisfied with the absence of this evidence at the hearing.
[22]
Regarding the time it took the applicants to leave
Burundi after they were threatened and after they obtained their visas, I am
not satisfied that the RPD’s analysis is unreasonable. The RPD considered the
applicants’ explanations, but reasonably concluded that they were inadequate.
VII.
Conclusion
[23]
I now arrive at the stage of weighing the RPD’s
correct and well-supported findings against those that are not. I am satisfied
that the negative findings described in paragraph 14, above, are
significant enough for the RPD’s decision to be reasonable as a whole, despite
its other findings. For these reasons, I would dismiss the application for
judicial review.
[24]
Neither party submitted a serious question of
general importance for certification.
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