Ottawa, Ontario, April 5, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), dated March 23, 2006, finding that Nadia Iteka (Applicant) is neither a Convention refugee, pursuant to section 96 of IRPA, nor a person in need of protection, pursuant to section 97 of IRPA.
I. Facts
[2] The Applicant is from Burundi and is of Tutsi origin. In Burundi, she lived in Bujumbura in the Musaga zone until July 2002 when she moved to the Kinindo zone of the city. In November 2002, the Applicant once again moved, this time to the Rohero zone of Bujumbura.
[3] On July 31, 2002, the Forces nationales de libération Palipehutu (FLN) attacked the Musaga zone of Bujumbura. The Applicant, her mother and her sisters had escaped to an aunt’s house prior to the attack, while the Applicant’s father had stayed in the family home to protect their goods. During the attack the Applicant’s father was killed.
[4] Between the months of July 2002 and November 2002, Bigirimana, a soldier in the FLN, began to visit the Applicant while she was living with her aunt in the Kinindo zone of Musaga. During these visits Bigirimana proclaimed his love to the Applicant and told her repeatedly that he would marry her. The Applicant rejected Bigirimana’s advances.
[5] Birigimana did not visit the Applicant between November 2002 and June 2004, but continued to harass her by telephone.
[6] In June 2004, after Bigirimana was named “commander” in the FLN he sent soldiers to the Applicant’s residence, so as to kidnap the Applicant and bring her to him. The soldiers were unable to enter the Applicant’s residence.
[7] As a result of the failed kidnapping, the Applicant took steps to obtain a visa so she could leave the country. On March 25, 2005, she left Burundi.
[8] The Applicant arrived in Canada on April 1, 2005 and claimed refugee status this same day.
II. Issues
(1) What is the standard of review applicable to adverse credibility determinations made by the RPD?
(2) Did the RPD err in concluding that the Applicant was not credible?
III. Analysis
(1) What is the standard of review applicable to adverse credibility determinations made by the RPD?
[9] The case law of this Court is clear; the Court will not interfere with findings of the RPD relating to credibility unless they are patently unreasonable. The Court has stated repeatedly that the RPD is in a better position than the Court to make credibility determinations as it is a tribunal with specialized jurisdiction and it has the opportunity to observe first hand the testimony given by refugee claimants (Aguebor v. Canada (Minister of Employment and Immigration), (1993), 140 N.R. 315 (FCA); Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.); Tekin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357).
(2) Did the RPD err in concluding that the Applicant was not credible?
[10] The RPD found the Applicant’s narrative and submissions not credible. The RPD took particular issue with the following :
(a) The Applicant stated that the FLN attacked her family home on July 31, 2002. The Applicant alleges that she escaped, as did her mother and her sisters, but that during the attack her father was killed. Yet, the Applicant did not provide details or evidence of the attack;
(b) The Applicant claims that her agent of persecution was a FLN rebel named Bigirimana, who wanted to marry her. Yet, the Applicant did not name her agent of persecution or the organisation to which he belonged in her Port of Entry (POE) statement;
(c) The Applicant stated that she and her family moved in with an aunt after the July 31, 2002 attack. For a period of approximately two years, the Applicant stated that Bigirimana did not visit her or her family. However, the Applicant claimed that during this two year timeframe, Bigirimana telephoned her five times. The dates of these phone calls could not be recollected by the Applicant, except for one phone call which she claims was made on her sister’s birthday. In addition, the alleged telephone calls contradict evidence that the Applicant was hiding at her aunt’s home where she could not be found;
(d) It was implausible that the rebels sent by Bigirimana to kidnap the Applicant would have retreated after neighbours shot at them.
[11] Having reviewed the submissions of the parties and the RPD’s reasons for finding the Applicant not credible, I find the RPD’s conclusion as to the Applicant’s credibility patently unreasonable on the basis that the RPD made errors of importance.
[12] First, the RPD, in its decision, stated the following in what concerns the July 31, 2002 attack (RPD Decision, Tribunal Record, page 10):
Le tribunal n’a pas trouvé non plus digne de foi le témoignage oral de la demanderesse concernant l’attaque et l’invasion de sa maison familiale par des soldats du FLN, le 31 juillet 2002. Elle a témoigné que son père était médecin et que toute la famille était dans la maison quand des soldats sont arrivés.
Son père a été tué en voulant leur résister. La demanderesse n’a pu expliquer comment elle, ses deux sœurs et sa mère ont sauvé leur vie en fuyant. Le tribunal estime que malgré les circonstances chaotiques entourant cette invasion, elle aurait du pouvoir fournir au tribunal un minimum de détails concernant sa fuite. Elle s’est contentée de répondre aux questions sur ce point en mentionnant simplement qu’elles se sont réfugiées chez une tante paternelle. Le tribunal trouve étrange que la demanderesse n’ait pas pu fournir des preuves documentaires pour confirmer soit l’attaque du 31 juillet 2002, soit le décès de son père ou la confirmation des circonstances entourant la mort de son père. Il est raisonnable de croire qu’elle aurait pur fournir ces preuves pour confirmer que le décès de son père fut un événement violent. Voyant que son père était médecin, il est raisonnable de croire que ce sujet aurait obtenu reportage dans la presse. La demanderesse n’avait pas fait effort pour obtenir ce genre de preuve.
[Emphasis added]
The RPD’s finding that the Applicant did not provide details or evidence of the July 31, 2002 attack is wrong. The Applicant provided the RPD with her father’s death certificate (Tribunal’s Record, page 85). The death certificate provides what appears to be corroboration for the attack and the death of the Applicant’s father as it is dated July 31, 2002 and lists the cause of death as “tuerie”. In my view, the death certificate speaks for itself, especially when one considers the definition of “tuerie”. Le Petit Robert defines “tuerie” as:
1. Abattoir particulier d’un boucher de village. 2. Action de tuer en masse, sauvagement. V. Boucherie, carnage, hécatombe, massacre.
and the Le Robert & Collins translates the word as: “slaughter, carnage”. As the July 31, 2002 attack is the trigger of the Applicant’s fear of persecution and is at the core of the Applicant’s narrative, the fact that the RPD overlooked the Applicant’s father’s death certificate and made an adverse determination as to credibility, on the basis of lack of collaborating evidence of the attack, is patently unreasonable.
[13] Second, the RPD in its decision suggested that the Applicant, her mother and her sisters were at home during the July 31, 2002 but were able to escape unlike the Applicant’s father (Tribunal Record, RPD Decision, page 10). This is not supported by the evidence presented during the hearing or in the Applicant’s PIF. The Applicant stated that she, her mother and her sisters had escaped to her aunt’s house prior to the attack and only her father remained at the residence when the attack occurred (Tribunal Record, Applicant’s PIF, page 28).
[14] Another error relating to the Applicant’s stay at her aunt’s residence is that the RPD stated that the Applicant went to live with her aunt while her two brothers moved in with her mother (Tribunal Record, RPD Decision, page 5). The PIF is clear; the Applicant has two sisters and no brothers. Moreover, the Applicant clearly states in her PIF that she went to live with a paternal aunt with her mother and her sisters, and that her two uncles also moved in to provide them with extra security (Tribunal Record, Applicant’s PIF, page 29).
[15] Fourth, the RPD found it not credible that the FLN rebels would retreat from their kidnapping attempt due to neighbours shooting at them (Tribunal Record, RPD Decision, page 12). In what concerns this finding, the RPD once again conflated the evidence. The Applicant clearly states that it was the neighbours’ guards that shot at the FLN and not the neighbours themselves (Tribunal Record, Applicant’s PIF, page 29). This detail, combined with the statement by the Applicant that the rebels were unarmed (Tribunal Record, Transcript of the RPD Hearing, page 108), may be important for understanding why the rebels would retreat after being shot at.
[16] The case law of this Court is clear; where a tribunal misconstrues or ignores evidence before it, and relies on these errors to make an adverse determination as to credibility, the decision will be quashed (Lai v. Canada (Minister of Employment & Immigration), 1992 FCJ No. 906 (CA); Uddin v. Canada (Minister of Employment & Immigration), 1992 FCJ No. 445 (CA)), unless the Court determines that notwithstanding the misconstrued or ignored evidence there was sufficient basis for an adverse finding of credibility (Luckner v. Canada (Minister of Employment & Immigration), 1992 FCJ No. 363 (CA); Kathiripillai v. Canada (Minister of Employment & Immigration), 1992 F.C.J. No. 889 (CA)). In the case at hand, the tribunal ignored evidence relating to the triggering event for the claim, in addition to misconstruing a number of other parts of the Applicant’s narrative. Given the number of errors made by the RPD, especially its failure to consider the Applicant’s father death certificate, I find the RPD’s decision rejecting the claimant’s asylum claim patently unreasonable. In my opinion, it would be unsafe to let the decision stand given the errors made. Consequently, the matter must be sent back for re-determination by a newly constituted panel of the RPD.
V. Conclusion
[17] For the reasons stated above, this application for judicial review is allowed.
[18] The parties were invited to submit a question for certification, but no such question was submitted.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is allowed and the matter is sent back for re-determination by a newly constituted panel;
- No question is certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2037-06
STYLE OF CAUSE: NADIA ITEKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, MARCH 26, 2007
REASONS FOR JUDGMENT BY: Noël J.
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: MICHEAL CRANE
Barrister & Solicitor
Toronto, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent