Date: 20051012

Docket: IMM-2007-05

Citation: 2005 FC 1387

Montréal, Quebec, October 12, 2005

PRESENT: THE HONOURABLE MR. JUSTICE de MONTIGNY

BETWEEN:

LAURENT NDUWIMANA

Applicant

and

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

DE MONTIGNY J.

[1]               The applicant, a citizen of Burundi, applied for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the “Division”). In a decision rendered on March 4, 2005, the Division concluded that the applicant was not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act.

[2]               The applicant claimed that he had been arrested and detained for fourteen (14) months, from October 2002 to December 2003. This period of detention resulted from the conflict between the transitional government in power in Burundi and the main armed group in the country, the National Council for the Defence of Democracy – Force for the Defence of Democracy (Conseil national pour la défense de la démocratie – Force pour la défense de la démocratie , CNDD-FDD).

[3]               The applicant was suspected of being a member of this group because he had visited a professor who was a member of this political party. The applicant claimed he had been politically neutral, especially because he was of mixed Tutsi and Hutu descent.

[4]               The Division dismissed his claim because he did not meet the burden of proof. The Division concluded that his testimony was confused, contradictory and very evasive. In spite of the fact the applicant had studied for four years at two universities in Burundi, he was unable to precisely identify which persons, groups or Tutsi or Hutu political parties would want to target him. At most, he stated that they were acquaintances, without giving any details. The Division also doubted his story about not having any knowledge of the political and social machinery in his country, particularly the peace and reconciliation agreement signed in October 2003 between the CNDD‑FDD and the transitional government. Finally, he was criticized for not having claimed protection as soon as he arrived in the United States, where he had a one-day stopover before coming to Canada.

[5]               In spite of Mr. Sloan’s very able submissions, I am of the opinion that the intervention of this Court is not warranted under the circumstances. I note in passing that the complaints made by Mr. Sloan against the Division, the Board and the legislation governing the processing of refugee claims concern the soundness of policy rather than law and would accordingly be more appropriate in another forum.

[6]               Even supposing that the Division could have erred in some secondary aspects of the claim, this would not affect its conclusions about the applicant’s credibility, which are at the heart of its decision. It may well be that no unfavourable conclusion may be drawn from the fact that the applicant did not seem to be aware of the political and social situation in his country. This could simply confirm his lack of interest for this matter and his wish to remain neutral.

[7]               The same applies to the fact that he did not claim refugee status on arrival in the United States. It is true to say that the failure to claim protection from another country on the first possible opportunity is a factor to be taken into consideration in the assessment of the credibility of the claimant’s subjective fear. In this case, the applicant’s explanation was quite reasonable: Canada had always been his final destination, considering his command of the French language, and he only transited through the United States to immediately continue on to Canada.

[8]               But once again, the decision was not rendered on the basis of these two facts. What seems to have held the Division’s attention was the applicant’s inability to give clear answers to questions in connection with the very basis of his fear of persecution. Because he was unable to specify the identity of those persons who were seeking to recruit him, the Division doubted his testimony.

[9]               On this point, it is obvious that the Division has a clear advantage over this Court, in that the applicant testified before it. The Division certainly was in the best position to assess the credibility and plausibility of the applicant’s testimony, and this is why it would not be appropriate to intervene, unless the conclusions drawn by the Division were patently unreasonable (Aguebor v. Minister of Employment and Immigration, (1993) 160 N.R. 315). 

[10]           After having read the transcript of the hearing before the Division, I reached the conclusion that the Division did not commit a reviewable error in its assessment of the testimony given by the applicant.

[11]           I could not end these reasons without briefly dealing with the allegations of incompetence or negligence made by counsel for the applicant against the applicant’s legal adviser before the Division. It was alleged that the legal adviser should have filed in evidence pictures of the applicant in jail and did not properly represent the applicant by not questioning him at the hearing about his period of detention.

[12]           Such allegations are serious and must be considered with great caution. This Court’s case law is clear: such accusations must be accompanied by the lawyer’s explanation for the conduct in question or evidence of a complaint to the Bar (Nunez v. M.C.I., (2000) 189 FTR 147, at paragraph 19 (F.C.); Geza v. M.C.I., (2004) 257 F.T.R. 114 (F.C.); Sathasivam v. M.C.I., [2004] F.C.J. No. 541 (Q.L.) (F.C.T.D.); Mutinda v. M.C.I., [2004] F.C.J. No. 429 (F.C.T.D.) (Q.L.)).

[13]           For these reasons, the application for judicial review must be dismissed. The parties did not submit any question to be certified, and the Court does not consider it appropriate to refer a question to the Federal Court of Appeal.

ORDER

THE COURT ORDERS THAT the application for judicial review be dismissed. No question is certified.

                                                                                                                “Yves de Montigny”

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-2007-05

STYLE OF CAUSE:                         LAURENT NDUWIMANA V. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      October 11, 2005

REASONS FOR ORDER AND

ORDER BY:                                      The Honourable Mr. Justice de Montigny

DATED:                                             October 12, 2005

APPEARANCES:

SOLICITORS OF RECORD: