Date: 20180301

Docket: IMM-3193-17

Citation: 2018 FC 232

[ENGLISH TRANSLATION]

Ottawa, Ontario, March 1, 2018

PRESENT: The Honourable Mr. Justice Diner

JUDGMENT AND REASONS

I.  Nature of the case

[1]  This is an application for judicial review of the decision by the Immigration and Refugee Board of Canada [the Board] on June 22, 2017, rejecting the applicants’ refugee claim. For the reasons below, the application is dismissed.

[2]  The applicants—a family composed of a father (principal applicant), his spouse, and their two children—are citizens of Burundi. They allege they are “Convention refugees” and “persons in need of protection” as defined by the Immigration and Refugee Protection Act, SC 2001, c. 27 [the Act] in section 96 and subsection 97(1), due to their alleged political views and their Tutsi ethnic identities.

[3]  The principal applicant alleges that during protests held in April and May 2015 against president Nkurunziza’s third term, he made a financial contribution to help the protesters. On April 14, 2016, police officers who were accompanied by members of Imbonerakure—a militant group—reportedly searched his house and found a receipt for his contribution to the protesters from Cibitoke, the city where the family allegedly lived. The male applicant was then allegedly brought to “the dungeon” of the National Intelligence Service, where he was reportedly questioned about the protesters and tortured for fifteen days.

[4]  The male applicant alleges that a Tutsi police officer apparently became worried about what would become of him and allegedly decided to have him released from prison on the night of April 30, 2016. Since that day, the male applicant allegedly lived in hiding in his region of origin, Rumongue, until he left Burundi.

[5]  For her part, the female applicant reportedly continued living in the family home until September 15, 2016, the day the Imbonerakure apparently returned to get the male applicant. Since he was not there, the Imbonerakure apparently attacked the female applicant and allegedly raped her. Afterward, she reportedly lived in hiding [translation] “here and there”.

[6]  Following this, the applicants reportedly took steps toward leaving Burundi. With the assistance of friends, they allegedly submitted an application for an American visa on March 3, 2017, and they were reportedly interviewed on March 23, 2017, when their visa was apparently issued. With the assistance of a friend in the police who allegedly corrupted his colleagues at the airport, the applicants reportedly left Burundi for the United States on April 13, 2017. They eventually applied for refugee protection at the Canadian border on April 18, 2017, after a few days of rest in the United States.

[7]  The hearing took place before the Board on June 13, 2017. On June 22, 2017, the Board found that the applicants were not Convention refugees nor persons in need of protection as set out in section 96 and subsection 97(1) of the Act, and it rejected the refugee claim. The decision relied mainly on the applicants’ lack of credibility.

[8]  This application for judicial review raises purely factual issues: The applicants are trying to prove there are mistakes in the treatment of the evidence. Thus, this decision is reviewable on a standard of unreasonableness. A high level of deference applies to issues of credibility, and the assessment of the evidence regarding the credibility of an applicant lies within the expertise of the Board: Jeyakumar v MCI, 2018 FC 124; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir].

II.  Issues and analysis

[9]  The applicants claim that the Board misapprehended the evidence and that its findings on their credibility, including the alleged implausibilities in their account, are not intelligible or justified.

A.  Misapprehension of the evidence

(1)  The applicants’ language skills

[10]  The applicants claim that the Board seriously misapprehended the evidence of the principal applicant’s language skills by finding that he could not understand a lease contract written in French, especially a contract that contains technical language. The applicants also claim that since the principal applicant and his interpreter had difficulty understanding each other during the hearing, the Board concluded that the male applicant had not understood the contents of this document.

[11]  Even though another decision-maker could have decided differently, it was open to the Board to make an adverse finding of credibility against the principal applicant in this respect. I believe that this finding falls within a range of “possible, acceptable outcomes”. In any event, the Board never affirmed that the principal applicant did not understand French nor the lease. Rather, the Board affirmed that it was not satisfied with the male applicant’s explanations, which were adjusted as the questions were asked.

[12]  Concerning the communication difficulties between the principal applicant and the interpreter, they do not have any evidential weight in this case given the considerable number of contradictions in the applicants’ account. The applicants are focusing on isolated mistakes in interpretation, which were not the key reason for the rejection of their claim. It is rather the many contradictions and inconsistencies in the applicants’ account that were deemed conclusive by the Board.

[13]  In any event, the main purpose of the lease was to prove the applicants’ place of residence during the protests. However, the Board considered that the evidence to prove the period during which the applicants claim they lived in Cibitoke was insufficient. In short, the Board found that the applicants’ evidence was deficient and insufficient, including the alleged evidence of residence in Cibitoke. This factor is also included in the next argument raised by the applicants: “presumptions of implausibilities”.

(2)  Presumptions of implausibilities

[14]  The applicants claim that the Board misapprehended the evidence. Its apprehension was adversely affected by a presumption of implausibility regarding the following: (a) the start and end date of the lease; (b) the fact that the lease was written in French rather than in Kirundi; (c) the birth of his son, which took place outside of Burundi, namely Kigali, Rwanda, where his wife went to give birth.

[15]  However, they claim: (a) that it would have been reasonable to find that the date on which they took possession of the property corresponded to the date on which the lease was signed and that the end of the lease corresponded to the point in time when the lessee would cease paying the rent; (b) that it is not implausible that the leases or some technical or judicial documents were written in French in Burundi because French is one of the official languages there and given that digital lease agreements are not offered in Kirundi; (c) that it is also plausible—outside a North American context—that a woman may travel far from home to give birth.

[16]  The respondent, for his part, argues that: (a) the Board was entitled not to give any evidential weight to the lease given that it did not indicate a start nor end date; (b) the applicants did not submit their explanations to the Board when they were confronted with the inconsistencies in the evidence; (c) the Board merely remarked that the only filed document that mentions Cibitoke was the son’s birth certificate and that the applicants were not in Burundi when the document was written. The respondent also claims that the Board was justified in considering the entire body of evidence and all the testimony submitted by the applicants, including the implausibilities contained in the account of the refugee claimants, to reach a finding of non-credibility.

[17]  As noted above, the Board’s findings on the lease—including the findings reached due to the absence of the start and end dates of the lease—were reasonable. According to the Board, due to this absence of a date, the lease—which was the only document likely to prove the location of their residence—entirely lacked evidential weight.

[18]  With respect to the birth certificate, once again, the Board dismissed the applicants’ claims. The Board noted that the only document filed that contains a reference to Cibitoke was the birth certificate of the applicants’ son, which was written by the Burundi Embassy in Kigali, Rwanda, where their son was born. Furthermore, the other documents filed do not in any way prove the applicants lived in Cibitoke as they claimed, given that they were written by various municipalities.

B.  The applicants’ credibility

(1)  Allegations of torture and rape

[19]  The applicants claim that the Board did not thoroughly address their allegations of torture and rape.

[20]  The respondent claims that the burden of evidence is on the applicants and that they are responsible for establishing the merits of their allegations and providing the evidence that may support their claims.

[21]  Clearly, the applicants’ credibility was already undermined by contradictions and inconsistencies in their account. The Board had to determine whether the applicants have a subjective fear of persecution due to their alleged political views. However, they were unable to satisfy the Board on this point.

[22]  Concerning the alleged torture of the applicant, the Board decided that the applicants did not have a subjective fear of being persecuted. Had that been the case, they would not have waited nearly six months after the male applicant was released from prison—that is to say, from April 30, 2016, to September 2017—to take steps toward leaving the country. Once again, this finding is reasonable to me.

[23]  In addition, the panel decided that the fact that the female applicant continued to live in the residence where the authorities had already come to arrest the male applicant while her spouse escaped imprisonment and was in hiding—all of which was in the context of the political and military crisis in Burundi—was not compatible with a subjective fear. It seems to me that this finding is entirely reasonable.

[24]  With respect to the rape of the female applicant, the Board noticed an inconsistency between the fact that the alleged rape in September 2016 triggered the applicants’ decision to leave the country and the delay before taking steps toward obtaining the visa in March 2017. This finding is also reasonable to me, which is once again due to a lack of subjective fear.

(2)  Peripheral issues

[25]  The applicants claim that the Board partly relied on some findings on credibility with respect to irrelevant and peripheral issues, including the reason why the principal applicant had not physically participated in the protests held on April 30, 2015, and his career path.

[26]  The respondent claims—to the contrary—that the male applicant’s inconsistencies with respect to the circumstances surrounding his participation in the protests are directly connected to his allegations of persecution due to his political views and that the issues concerning the male applicant’s career path are directly connected to his situation at the time of the alleged facts.

[27]  Once again, I share the respondent’s opinion: The principal applicant’s inconsistencies regarding his participation in the protests and his career path were directly connected to his credibility and his subjective fear of persecution. The applicants’ refugee claim is based on the fact that they lived in the dissenting community of Cibitoke during the protests that took place in 2015. However, the male applicant was unable to credibly prove that he and his family lived or worked in Cibitoke or that he had participated in the protests. Though his career path is not connected to the protests nor to the flight from Burundi, the inconsistencies and the credibility issues found by the Board generally undermine the claim: See Tas v Canada (Citizenship and Immigration), 2017 FC 702 at para 18; Gong v Canada (Citizenship and Immigration), 2017 FC 165 at para 9.

[28]  In the end, counsel for the applicants argued before this Court that the Board was not reasonable when considering the alleged torture and rape because it did not thoroughly address these aspects nor give the applicants the opportunity to explain these vital elements of the refugee claim.

[29]  Though this argument was not put forward in the applicants’ memorandum, I reread the transcript and listened to the part of the recording that was mentioned by counsel. I cannot accept the applicants’ arguments. On the contrary, I find that it was open to the Board to reach these findings and that they were explained with transparency and justification. Furthermore, the Board did not deny the applicants the opportunity to explain themselves regarding the circumstances that led to their refugee claim and their alleged persecution in Burundi.

III.  Conclusion

[30]  Reasonableness requires that the decision be justified, transparent and intelligible within the decision-making process and that it falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. In this case, the Board’s reasons are justifiable, the result falls within the range of possible, acceptable outcomes, and the decision is reasonable. The application for judicial review is dismissed. No question has been submitted for certification; and, in my opinion, this case does not raise any.

JUDGMENT in IMM-3193-17

THE COURT ORDERS that:

• 1.The application for judicial review is dismissed.

• 2.No question is certified.

“Alan S. Diner”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: