Docket: IMM-1505-17
Citation:
2017 FC 1009
[ENGLISH TRANSLATION]
Montréal, Quebec, November 7, 2017
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
MARC MADRIGAL
MATORE
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
In its decision, the Refugee Protection Division
[RPD] reached the following conclusion following an analysis of the evidence on
record:
[translation]
Regarding the applicant’s ethnic origin, it
was noted that a genocide against Tutsis is being prepared in Burundi. In that
regard, the documentary evidence shows that senior officials in Burundi have
allegedly made racist statements against Tutsis. However, there is nothing
in the documentary evidence to indicate that those statements were not
unfortunate and isolated incidents, and particularly nothing to indicate
that Tutsis are currently being hunted, although ethnic discourse has resumed.
For now, the documentary evidence essentially shows that the current crisis is
political in nature. In that regard, the applicant has no political activities
and the panel did not believe that the applicant took part in the
demonstrations in April and May 2015. Moreover, the applicant did not
demonstrate a serious possibility of being persecuted because of his Tutsi
ethnicity. [Emphasis added.]
(Reasons for Decision, at para 1 following
para 24 [due to a paragraph numbering error in the decision])
The excerpt from the RPD is incorrect
because it uses the word “nothing” out of context
regarding the statements examined below, drawn from reliable sources and
clearly stating the contrary. The current moratorium on Burundi in Canada
confirms the information from those reliable sources. It must not be forgotten
that the Honourable Irwin Cotler himself, the former Minister of Justice and
Attorney General of Canada, presented the same facts and statements two weeks
ago before parliamentarians in Ottawa. In addition to having sounded the alarm
two years ago regarding the devastating events affecting the Tutsi population
in Burundi, the Honourable Irwin Cotler also warned parliamentarians that they
should not wait for the peril currently spreading against Tutsis in Burundi to
turn into a genocide.
[2]
Canada and the world were already warned of the
disaster that was spreading at the time in Rwanda, during General Roméo
Dallaire’s (now Senator Dallaire) time there with the Canadian Forces. As a
signatory of the United Nations Convention Relating to the Status of
Refugees, Canada has an obligation under that Convention to address the
peril reported by Tutsis in Burundi.
[3]
“Burundian authorities
are seeking to spread mistrust and hatred against “the common Tutsi enemy”,
using genocidal semantics somewhat reminiscent of the language used in
Rwanda in 1994 by the “Hutu Power” government calling for the systematic
elimination of the Tutsi.” (Tribunal Record, in
the National Documentation Package on Burundi from the IRB on conditions in the
country, International Federation for Human Rights – Repression and Genocidal
Dynamics in Burundi, at page 103).
[4]
The report from the United Nations Independent
Investigation on Burundi [UNIIB], prepared in accordance with resolution S-24/1
of the Human Rights Council clearly indicates that “We
are gravely concerned about the general trend of ethnically divisive rhetoric
by the Government, as well as others, which may carry a serious potential of
the situation spiralling out of control, including beyond Burundi’s borders”
(Tribunal Record, at page 90).
[5]
As well, “[s]ome Hutu political
parties have long wanted this event to be officially qualified as genocide.
However, some 1972 Tutsi survivors consider that this theory of the “double
genocide” is to obscure the plan to exterminate the Tutsi who had been standing
by the Umugambwe w’Abakozi b’Uburundi (Burundi Workers’ Party).”
(Tribunal Record, in the National Documentation Package on Burundi from the
IRB on conditions in the country, International Federation for Human Rights –
Repression and Genocidal Dynamics in Burundi, at page 105).
[6]
“The Burundian
authorities are also simultaneously speaking out against Rwanda and its Tutsi
President, Paul Kagame, in a very violent manner. This rhetoric aids to augment
the idea that Burundi is threatened by a “common external enemy” planning genocide
against Burundi’s Hutus.” (Tribunal Record, in the National Documentation Package on
Burundi from the IRB on conditions in the country, International Federation
for Human Rights – Repression and Genocidal Dynamics in Burundi, at
page 105).
[7]
The Court is satisfied that the RPD “failed to consider the evidence in light of the ‘particular
situation’ of the applicant” (Jeyachandran v Canada (Solicitor
General), [1995] F.C.J. No. 487 (QL) at paras 9–10 [Jeyachandran]).
The conditions in the country were not examined as a whole. That failure
reveals a major hole in the RPD’s understanding, as it analyzed and evaluated
the documentary evidence incorrectly. The Court notes in this regard that the
socio-political context, culture and history of the country is essential to
understanding a particular logic, which is different from what could stem from
the situation in another country (see Ye v Canada (Minister of Employment
and Immigration), [1992] F.C.J. No. 584 [Ye]).
II.
Nature of the case
[8]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] from a decision rendered on February 22, 2017, in which the RPD of
the Immigration and Refugee Board concluded that the refugee claimant was not a
Convention refugee or a person in need of protection. The RPD therefore
rejected the refugee claim under section 96 and subsection 97(1) of the IRPA,
in accordance with subsection 107(1) of the IRPA.
III.
Facts
[9]
The applicant, 36 years old, is a Tutsi citizen
of Burundi.
[10]
On April 26 and May 13, 2015, the applicant
alleges that he took part in demonstrations in Burundi against President
Nkurunziza’s third mandate. The applicant allegedly began to fear being
arrested or killed because of his participation in the demonstrations as a
young Tutsi following the attempted coup on May 13, 2015.
[11]
From June 12 to October 25, 2015 and from
December 15, 2015 to February 20, 2016, the applicant apparently left his
neighbourhood of Nyakabiga to hide at his mother’s home in the neighbourhood of
Mutanga South. The applicant then allegedly returned to Nyakabiga, believing
that the situation had calmed.
[12]
On May 6, 2016, a group of police allegedly
arrested the applicant in Nyakabiga and held him for three days in an area
known as Ndadaye. The applicant was allegedly placed in a container with other
young Tutsis. The applicant was allegedly released following a ransom paid by
his family.
[13]
On May 20, 2016, the applicant apparently hid,
this time in the Bururi province, in the Mugamba region (the village where his
mother was born).
[14]
After returning to live with his mother in
Mutanga South, the applicant was able to obtain a US tourist Visa and arrived
in the United States on December 2, 2016. That same day, the applicant went to
the Canadian border to claim refugee status in Canada.
IV.
Decision
[15]
Due to contradictions between the applicant’s
oral testimony and the immigration form (Basis of Claim), the RPD did not
believe the respondent’s entire account. The RPD dismissed the applicant’s
explanations regarding those contradictions because it deemed them to be
unsatisfactory. The panel drew a negative inference regarding the applicant’s
credibility.
[16]
The RPD also concluded that, in light of all the
evidence, the applicant did not demonstrate a serious possibility of being
persecuted for his Tutsi ethnicity. According to the RPD, the applicant was
unable to demonstrate, on a balance of probabilities, that there was a threat
to his life or a threat of torture or cruel and unusual treatment or punishment
if he were to return to his country of origin. That is why the RPD dismissed
the refugee claim under section 96 and subsection 97(1) of the IRPA on February
22, 2017. That decision is the subject of this application for judicial review.
V.
Issues
[17]
The Court formulates the issues as follows:
1.
In light of all the evidence, did the RPD err in
concluding that the applicant was not credible?
2.
Is the RPD’s conclusion that the applicant is
not a person in need of protection because of his ethnicity within the meaning of
section 97 of the IRPA reasonable?
[18]
The Court considers that the standard of review
applicable to the RPD’s conclusion regarding the applicant’s credibility is the
standard of reasonableness (Garcia Arreaga v Canada (Citizenship and
Immigration), 2013 FC 977 at para 30; Devanandan v Canada (Citizenship
and Immigration), 2016 FC 768 at para 15). Regarding the issue of whether
the applicant is a person in need of protection because of his Tutsi ethnicity,
the Court considers that to be a question of mixed law and fact subject to the
standard of reasonableness (Gutierrez v Canada (Citizenship and Immigration),
2011 FC 1055 at para 26).
VI.
Relevant provisions
[19]
The following provisions of the IRPA are
relevant in this case:
|
Convention refugee
|
Définition de réfugié
|
|
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,
|
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 :
|
|
(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
|
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;
|
|
(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.
|
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.
|
|
Person in need of protection
|
Personne à protéger
|
|
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
|
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 :
|
|
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
|
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;
|
|
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
|
b) soit à une menace à sa vie ou au risque de traitements ou
peines cruels et inusités dans le cas suivant :
|
|
(i) the person is unable or, because of that risk, unwilling to
avail themself of the protection of that country,
|
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
|
|
(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,
|
(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,
|
|
(iii) the risk is not inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards, and
|
(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,
|
|
(iv) the risk is not caused by the inability of that country to
provide adequate health or medical care.
|
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays
de fournir des soins médicaux ou de santé adéquats.
|
|
Decision on Claim for Refugee Protection
|
Décision sur la demande d’asile
|
|
107 (1)
The Refugee Protection Division shall accept a claim for refugee protection
if it determines that the claimant is a Convention refugee or person in need
of protection, and shall otherwise reject the claim.
|
107 (1) La Section de la protection
des réfugiés accepte ou rejette la demande d’asile selon que le demandeur a
ou non la qualité de réfugié ou de personne à protéger.
|
VII.
Analysis
[20]
For the following reasons, this application for
judicial review is allowed.
[21]
The Court agrees with the applicant in
concluding that the RPD decision is unreasonable. The issues are addressed as a
whole, following the statements clearly set out in the evidence before the RPD itself,
demonstrating the peril that Tutsis face in Burundi.
[22]
As no contradictions were raised by the RPD
regarding the fact that the applicant is Tutsi, that shows a lack of in-depth
evaluation by the panel regarding the ethnic group to which the applicant
belongs.
[23]
Although the RPD is presumed to have examined
all the evidence, the fact remains that that presumption is not irrefutable.
The RPD did not consider or interpret the objective documentary evidence from
internationally recognized international authorities and entities noting the
peril that Tutsis face. Although the applicant contradicted himself in his
account, without raising any doubts that he is Tutsi, that does not change the
fact that, as a Tutsi, his person is in danger. Moreover, clear, plain, and
precise information from the documentation from the panel itself regarding the
conditions in the country were submitted by the applicant and were not
contradicted by the respondent.
[24]
The Court notes that the RPD is “entitled to rely on documentary evidence in preference to
the testimony provided by a claimant”, even if the RPD concludes that
the applicant’s testimony is credible and trustworthy (Khan v Canada
(Minister of Citizenship and Immigration), 2002 CFPI 400 at para 18; Zhou
v Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087
(QL)). However, in the case at hand, the RPD improperly assessed the objective
documentary evidence before it. The RPD erred in concluding that the applicant
did not present a risk of persecution in Burundi because of his Tutsi
ethnicity.
[25]
In its decision, the RPD reached the following
conclusion, following its analysis of the evidence on record:
[translation]
Regarding the applicant’s ethnic origin, it
was noted that a genocide against Tutsis is being prepared in Burundi. In that
regard, the documentary evidence shows that senior officials in Burundi have
allegedly made racist statements against Tutsis. However, there is nothing
in the documentary evidence to indicate that those statements were not
unfortunate and isolated incidents, and particularly nothing indicates
that Tutsis are currently being hunted, although ethic discourse has resumed.
For now, the documentary evidence essentially shows that the current crisis is
political in nature. In that regard, the applicant has no political activities
and the panel did not believe that the applicant took part in the
demonstrations in April and May 2015. Moreover, the applicant did not
demonstrate a serious possibility of being persecuted because of his Tutsi
ethnicity.
(Reasons for Decision, at para 1 following
para 24 [due to a paragraph numbering error in the decision])
The excerpt from the RPD is incorrect
because it uses the word “nothing” out of
context regarding the statements examined below, drawn from reliable sources
and clearly stating the contrary. The current moratorium on Burundi in Canada
confirms the information from those reliable sources.
[26]
However, based on the objective documentary
evidence on record, “Burundian authorities are seeking to
spread mistrust and hatred against “the common Tutsi enemy”, using genocidal
semantics somewhat reminiscent of the language used in Rwanda in 1994 by
the “Hutu Power” government calling for the systematic elimination of the
Tutsi.” (Tribunal Record, in the National Documentation Package on
Burundi from the IRB on conditions in the country, International Federation
for Human Rights – Repression and Genocidal Dynamics in Burundi, at page
103).
[27]
The report from the UNIIB, prepared in
accordance with resolution S-24/1 of the Human Rights Council clearly indicates
that “We are gravely concerned about the general trend
of ethnically divisive rhetoric by the Government, as well as others, which may
carry a serious potential of the situation spiralling out of control, including
beyond Burundi’s borders” (Tribunal Record, at page 90).
[28]
As well, “[s]ome Hutu
political parties have long wanted this event to be officially qualified as
genocide. However, some 1972 Tutsi survivors consider that this theory of the “double
genocide” is to obscure the plan to exterminate the Tutsi who had been standing
by the Umugambwe w’Abakozi b’Uburundi (Burundi Workers’ Party).” (Tribunal
Record, in the National Documentation Package on Burundi from the IRB on
conditions in the country, International Federation for Human Rights –
Repression and Genocidal Dynamics in Burundi, at page 105).
[29]
“The Burundian
authorities are also simultaneously speaking out against Rwanda and its Tutsi
President, Paul Kagame, in a very violent manner. This rhetoric aids to augment
the idea that Burundi is threatened by a “common external enemy” planning
genocide against Burundi’s Hutus.” (Tribunal Record, in the National Documentation Package on Burundi
from the IRB on conditions in the country, International Federation for
Human Rights – Repression and Genocidal Dynamics in Burundi, at page 107).
[30]
The Court is satisfied that the RPD “failed to consider the evidence in light of the ‘particular
situation’ of the applicant” (Jeyachandran, above, at paras 9–10).
The conditions in the country were not examined as a whole. That failure
reveals a major hole in the RPD’s understanding, as it analyzed and evaluated
the documentary evidence incorrectly. The Court notes in this regard that the
socio-political context, culture and history of the country is essential to
understanding a particular logic, which is different from what could stem from
the situation in another country (Ye, above).
[31]
In short, the fact that it did not consider all
the objective evidence on record is a major lapse by the RPD. For these
reasons, the Court finds that the RPD decision is unreasonable and does not
fall “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.” (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47).
VIII.
Conclusion
[32]
This application for judicial review is allowed.
IX.
Obiter
[33]
As a signatory of the United Nations
Convention Relating to the Status of Refugees, Canada acknowledges with
the moratorium for Burundi that the Tutsis are in fact in peril,
particularly as the fatal international error committed in regarding Rwanda
must not be repeated in Burundi, based on the excerpts cited above (among many
others regarding Burundi).
[34]
It must also be remembered that the
international community again failed by not denouncing the current situation in
the Republic of Myanmar concerning that tragedy that has been revealed,
following rapes of Rohingya Muslims, recognized by Canada and the United
Nations as crimes against humanity.
[35]
The events that took place in Rwanda, and the
situation in the Republic of Myanmar, show that the international community
accepts the error that was committed by failing to act at the appropriate time.
The international community should not overlook the lesson of Rwanda and its
genocide.
[36]
According to the documents on record, the
situation of Tutsis in Burundi is in fact more than precarious. According to
the statements contained in the objective documentary evidence, it would be a
monumental error to not consider the convincing evidence of the danger that
Tutsis face in Burundi. Without an analysis of the documents submitted to the
Court and before the RPD, that would be an unconscious inattention, or rather
turning a blind eye.
[37]
Something must certainly be done before we see
the corpses in the media. The obligation under the United Nations Convention
Relating to the Status of Refugees is to ensure that lives are saved before
a genocide is declared. The Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees provides a roadmap of procedures to be
followed by decision-makers who process refugee claims, to ensure that the
letter and spirit of the Convention is respected to avoid fatal errors as much
as possible.
198. A person who,
because of his experiences, was in fear of the authorities in his own country
may still feel apprehensive vis-à-vis any authority. He may therefore be afraid
to speak freely and give a full and accurate account of his case.
199. While an
initial interview should normally suffice to bring an applicant’s story to
light, it may be necessary for the examiner to clarify any apparent inconsistencies
and to resolve any contradictions in a further interview, and to find an
explanation for any misrepresentation or concealment of material facts. Untrue
statements by themselves are not a reason for refusal of refugee status and it
is the examiner’s responsibility to evaluate such statements in the light of
all the circumstances of the case.
44. While refugee
status must normally be determined on an individual basis, situations have also
arisen in which entire groups have been displaced under circumstances
indicating that members of the group could be considered individually as
refugees. In such situations the need to provide assistance is often extremely
urgent and it may not be possible for purely practical reasons to carry out an
individual determination of refugee status for each member of the group.
Recourse has therefore been had to so-called “group determination” of refugee
status, whereby each member of the group is regarded prima facie (i.e. in the
absence of evidence to the contrary) as a refugee.
45. Apart from the
situations of the type referred to in the preceding paragraph, an applicant for
refugee status must normally show good reason why he individually fears
persecution. It may be assumed that a person has well-founded fear of being
persecuted if he has already been the victim of persecution for one of the
reasons enumerated in the 1951 Convention. However, the word “fear” refers not
only to persons who have actually been persecuted, but also to those who wish
to avoid a situation entailing the risk of persecution.
(Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR
1979.)
JUDGMENT in IMM-1505-17
THE COURT ORDERS that the application for judicial review be allowed, that the decision be
set aside, and the case returned to the RPD to be re-examined by a differently
constituted panel. There is no question of general importance to be certified.
OBITER
As a signatory of the United Nations
Convention Relating to the Status of Refugees, Canada acknowledges with
the moratorium for Burundi that the Tutsis are in fact in peril,
particularly as the fatal international error committed in regarding Rwanda
must not be repeated in Burundi, based on the excerpts cited above (among many
others regarding Burundi).
It must also be remembered that the
international community again failed by not denouncing the current situation in
the Republic of Myanmar concerning that tragedy that has been revealed,
following rapes of Rohingya Muslims, recognized by Canada and the United
Nations as crimes against humanity.
The events that took place in Rwanda, and
the situation in the Republic of Myanmar, show that the international community
accepts the error that was committed by failing to act at the appropriate time.
The international community should not overlook the lesson of Rwanda and its
genocide.
According to the documents on record, the
situation of Tutsis in Burundi is in fact more than precarious. According to
the statements contained in the objective documentary evidence, it would be a
monumental error to not consider the convincing evidence of the danger that
Tutsis face in Burundi. Without an analysis of the documents submitted to the
Court and before the RPD, that would be an unconscious inattention, or rather
turning a blind eye.
Something must certainly be done before
we see the corpses in the media. The obligation under the United Nations
Convention Relating to the Status of Refugees is to ensure that lives are
saved before a genocide is declared. The Handbook on Procedures and Criteria
for Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees provides a roadmap of procedures to be
followed by decision-makers who process refugee claims, to ensure that the
letter and spirit of the Convention is respected to avoid fatal errors as much
as possible.
198. A person who, because of his
experiences, was in fear of the authorities in his own country may still feel
apprehensive vis-à-vis any authority. He may therefore be afraid to speak
freely and give a full and accurate account of his case.
199. While an initial interview should
normally suffice to bring an applicant’s story to light, it may be necessary
for the examiner to clarify any apparent inconsistencies and to resolve any
contradictions in a further interview, and to find an explanation for any
misrepresentation or concealment of material facts. Untrue statements by
themselves are not a reason for refusal of refugee status and it is the
examiner’s responsibility to evaluate such statements in the light of all the
circumstances of the case.
44. While refugee status must normally be
determined on an individual basis, situations have also arisen in which entire
groups have been displaced under circumstances indicating that members of the
group could be considered individually as refugees. In such situations the need
to provide assistance is often extremely urgent and it may not be possible for
purely practical reasons to carry out an individual determination of refugee
status for each member of the group. Recourse has therefore been had to
so-called “group determination” of refugee status, whereby each member of the
group is regarded prima facie (i.e. in the absence of evidence to the contrary)
as a refugee.
45. Apart from the situations of the type
referred to in the preceding paragraph, an applicant for refugee status must
normally show good reason why he individually fears persecution. It may be assumed
that a person has well-founded fear of being persecuted if he has already been
the victim of persecution for one of the reasons enumerated in the 1951
Convention. However, the word “fear” refers not only to persons who have
actually been persecuted, but also to those who wish to avoid a situation
entailing the risk of persecution.
(Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, UNHCR 1979.)
“Michel M. J. Shore”
Email this Content