Toronto, Ontario, March 29, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), wherein the Board determined that the applicant, a citizen of Burundi, was not a Convention refugee nor a person in need of protection according to sections 96 and 97 of the Act, respectively.
[2] She alleges the following facts in support of her claim.
[3] The night of January 16, 2003, Hutu rebels came into her family's home and murdered her father, a high-profile Tutsi who had worked as an advisor to the Minister of the Interior since 1997. He had previously been a colonel in the army and had served as a governor of certain regions in Burundi as well. The applicant, as well as her mother and sister, were able to escape. The three women spent three weeks with another sister in the village of Kinindo and then went to live in Musaga, a small village, after which the applicant left the country for fear of being persecuted by the same rebel group that had killed her father and her cousin Édouard and which she claims intended to murder the rest of her family.
[4] She arrived in Canada on July 8, 2004. The following day, she claimed refugee status on the basis of race - she is Tutsi - and membership in a particular social group, her family. She also claims that she is at risk of torture or faces a risk to life or a risk to cruel and unusual treatment or punishment.
[5] The Board rejected the applicant's claim on the basis that there was not enough credible evidence to support her claim for refugee status.
[6] The applicant first submits that the Board completely ignored a material aspect of her claim, namely, her fear of persecution at the hands of Tutsi extremists.
[7] However, a review of the evidence demonstrates that this was not a material aspect of her claim. When the applicant was asked directly what or who she fears in Burundi, she only referred to the Hutu extremists. She never mentioned the Tutsi extremists.
[8] The applicant further submits that the Board erred in determining that the applicant's evidence was not credible.
[9] The standard of review for credibility findings is patent unreasonableness: Aguebor v. Canada(Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), N'Sungani v. Canada(Minister of Citizenship and Immigration), 2004 FC 1759, [2004] F.C.J. No. 2142 (F.C.) (QL). This means that the decision must be "clearly irrational" or "evidently not in accordance with reason" or "so flawed that no amount of curial deference can justify letting it stand": Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 52.
[10] Considering first the Board's finding that there was a contradiction between her PIF, in which she stated that her father remained inside the house to look for his gun and was shot inside, and her oral testimony, in which she stated that he went outside, I note that the applicant testified that her father went outside ("il est allé dehors"). Thus, it was open to the Board to conclude the way it did.
[11] It was also open to the Board to take a dim view of the lack of any media coverage of the assassination of a high-profile individual, such as her father, when the deaths and disappearances of persons with lower profiles do receive such media coverage.
[12] With respect to the applicant's failure to mention in her PIF that her mother was injured and subsequently hospitalized as a result of the alleged attack on the part of the Hutu rebels, I find that these would be significant events to mention in the PIF. It was therefore open to the Board to use their omission to impugn the applicant's credibility.
[13] As for the applicant's school records, she gave confusing and inconsistent testimony. For example, she testified that she had finished all of her exams and also that she had not. The Board was entitled to reject the applicant's explanations. Overall, I am satisfied that the Board's conclusion that there was insufficient credible evidence to support the applicant's claim is not patently unreasonable.
[14] Turning to the issue of the death certificate, it is true that the Board incorrectly stated that the death certificate had not been provided by the applicant. This notwithstanding, the Board does consider, in the alternative, that even if her father was dead, the applicant had not established her allegation that he had been violently murdered by Hutu rebels. Moreover, the death certificate, while evidencing the father's death, does not state the cause of death and thus would not go towards establishing the applicant's allegations regarding the murder.
[15] As a result, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that the application for judicial review be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3850-05
STYLE OF CAUSE: MILLY CHRISTELLE GAPFASONI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 28, 2005
AND JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
| Mr. Michael Crane
|
|
| Ms. Angela Marinos
|
SOLICITORS OF RECORD:
| Michael Crane Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario |