Ottawa, Ontario, June 15, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is an ethnic Tutsi who is a citizen of Burundi. He bases his claim for protection on an alleged fear of persecution by non-governmental agents by reason of membership in a social group, namely his family. In a decision dated August 23, 2006, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the Board) rejected the claim. The Applicant seeks judicial review of that decision.
[2] The basis of the Board’s decision was lack of credibility. In its reasons, the Board discussed a number of areas of the evidence, including testimony by both the Applicant and his brother. In the result, the Board made the following key determinations:
- The Board did not find credible the Applicant’s story of attacks on the Applicant’s aunt’s car and the family home in 2005.
- The Board found that the Applicant had not provided persuasive evidence to support a claim that he was of interest to rebel groups, principally on the basis of findings that: (a) between 2001 and 2005 in Cibitoke, the Applicant did not experience any harassment or intimidation; and (b) the Applicant was never a member of a peace group nor a Rastafarian.
Issues
[3] Although the Applicant raised a number of issues in his initial and responding written submissions, before me, only four issues were pursued. Those issues may be expressed as follows:
- Did the Board make a material error of fact when it stated that the Applicant was intending to go abroad to study?
- Did the Board err by impugning the Applicant’s credibility on the basis of inconsistent statements in an earlier visa application?
- Did the Board err by failing to consider how the Applicant’s profile would cause him to be perceived by the agents of persecution?
- Did the Board err by failing to explicitly reject the testimony of the Applicant’s brother, who testified as a witness in the hearing?
Analysis
[4] As noted, the foundation of the Board’s decision was an overall finding that the Applicant’s story of persecution was not credible. With respect to all of the issues raised, the Applicant is, in essence, questioning findings of fact. The standard of review is that of patent unreasonableness, meaning that the decision will only be overturned where the Board has made a finding (i) in a perverse or capricious manner, or (ii) without regard for the material before the Board. Further, any error of fact must be material to the decision (Rohm and Haas Canada Ltd. v. Canada (Anti-Dumping Tribunal), (1978) 91 D.L.R. (3d) 212, [1978] F.C.J. No. 522 (C.A.) (QL); Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] F.C.J. No. 565 (C.A.) (QL)).
[5] With this standard in mind, I turn to the specific alleged errors.
Issue #1: Did the Board make a material error of fact when it stated that the Applicant was intending to go abroad to study?
[6] In its decision, the Board stated that the testimony of the Applicant was that he was intending to study abroad. As acknowledged by the Respondent, this was incorrect; the Applicant testified that he intended to stay to help support his parents. The Board made reference to this error twice in its reasons. However, contrary to the submissions of the Applicant, I do not find this to be a material error upon which this application should be allowed. Although the error was referred to in the reasons in the context of the timing of the alleged incidents, it is not central to that determination.
Issue #2: Did the Board err by impugning the Applicant’s credibility on the basis of inconsistent statements in an earlier visa application?
[7] The Applicant, in 2005 was issued a student visa to study in the United States (Certified Tribunal Record, pg. 42). The application for that visa contained certain information that the Board assessed in its decision. In its decision, the Board commented as follows:
I accept the claimant lived with his grandmother in Cibitoke and finished his high school studies there. He presented a school certificate to this effect. However, there is nothing to confirm that the rest of the family ever left Bujumbura. The student application shows his father had a post office box and bank account in Bujumbura. The claimant testified these documents are false and were manufactured by his aunt Sophie to show he came from a stable family in a good neighbourhood in Bujumbura, to obtain the visa. The explanation is insufficient.
[8] The Applicant argues that the Board erred in relying on contradictions between the student visa and stating there was a contradiction between information in the Applicant’s visa and other evidence. Indeed, the Applicant readily admitted that he lied on his visa application. The Applicant relies on jurisprudence to support the notion that visa application information should not be used to impugn the Applicant’s credibility (Fajardo v. Canada (Minister of Employment and Immigration), (1993) 157 N.R. 392, 21 Imm. L.R. (2d) 113, [1993] F.C.J. No. 915 (F.C.A.) (QL); Quinteros v. Canada (Minister of Citizenship and Immigration), (1998) 82 A.C.W.S. (3d) 980, [1998] F.C.J. No. 1363 (QL)). This was not a case where the Board rejected the claim on the basis of omissions in the visa application. Rather the Board reviewed the information in the visa application in the context of the entire story being put forward by the Applicant. That is, the use to which the inconsistency was put is not, in this case, unreasonable or contrary to the jurisprudence.
Issue #3: Did the Board err by failing to consider how the Applicant’s profile would cause him to be perceived by the agents of persecution?
[9] The Applicant submits that the Board erred in not considering whether the Applicant would be perceived as a peace activist and Rastafarian by rebel groups, regardless of whether he is one or not. In my opinion, the Board did assess whether the Applicant was perceived as being associated with the peace activists and Rastafarians:
…the claimant lived for four years in Cibitoke, from 2001-2005, without any incident of harassment or intimidation….The absence of any threatening incidents whatsoever indicates that, during the four years of Raoul’s absence, the claimant was not “wanted” by the sans-échec.
(Certified Tribunal Record, pg. 19)
[10] If the Applicant had been perceived as being associated with peace activists and Rastafarians, it is likely that he would have been able to provide some evidence that he had been threatened or otherwise targeted. The absence of any such evidence supports the notion that he is not perceived as a person of interest. The mere existence of documentary evidence that some persons are perceived as threats to the rebel groups and that thousands of persons are in detention due to their perceived beliefs does not – absent something further – mean that any individual will be so perceived. On these facts, evidence that the Applicant had not been left alone over a four-year period supports a finding that he would not be perceived as being associated with peace activists and Rastafarians. The Board did not err.
Issue #4: Did the Board err by failing to explicitly reject the testimony of the Applicant’s brother, who testified as a witness in the hearing?
[11] The Applicant’s brother testified in the hearing. He provided evidence on what happened to the family on his return to Burundi for a visit, including reference to the alleged incidents of the car burning and house break-in in Bujumbura. The Applicant submits that the Board erred by failing to explicitly reject the evidence of the brother.
[12] As noted by the Applicant, the jurisprudence supports the notion that failure to properly consider the evidence of a witness is a reviewable error (see, for example, Lai v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 906 (C.A.) (QL); Camille v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 877 (C.A.) (QL)). However, the Board in this case, does mention the testimony given by the Applicant’s brother. In fact, the Board also made plausibility findings regarding the evidence. For example:
Further, Raoul testified that it was not until he arrived in Burundi that he learned the family’s neighbourhood in Bujumbura was safe. He testified that he first stayed with a friend, for fear of returning to his old neighbourhood. It is not plausible or reasonable that, only days later, he convinced the whole family to uproot and move back to the family home in Bujumbura.
(Certified Tribunal Record, pg. 21)
[13] The Applicant also argues that the Board erred by failing to provide clear and unmistakable reasons for rejecting the testimony of the brother (Hilo v. Canada (Minister of Employment and Immigration), (1991) 130 N.R. 236, [1991] F.C.J. No. 228 (F.C.A.) (QL)). I first note that the above passage does appear to reject the evidence of the brother as implausible, particularly when read in conjunction with the balance of the reasons on the alleged 2005 events.
[14] In any event, I think that the Applicant gives too narrow a view to the finding in Hilo. I first note that, overall, the Board is seeking to determine the credibility of the Applicant’s story; this is the central task of the Board. As the Court stated in Hilo, the Board is “under a duty to give its reasons for casting doubt upon the appellant’s credibility in clear and unmistakable terms”. In my view, this standard has been met. The Board has given reasons for casting doubt on the credibility or plausibility of the Applicant’s alleged story “in clear and unmistakable terms”. Those reasons, in my view, establish clearly what elements of the Applicant’s story of attacks in Bujumbura were rejected and why. That is sufficient to meet the standard set out in Hilo.
[15] In sum, I am not persuaded that an explicit rejection of the brother’s testimony on the two incidents in Bujumbura was necessary. When read as a whole, it is clear that the Board rejected the story of attacks at that time as implausible. The Board, without explicitly identifying who gave what evidence, provides adequate reasons for finding the story implausible. In my view, the Board, in this case, followed the jurisprudence in Camille, supra and in Hilo and did not err by failing to name the brother on this one point.
Conclusion
[16] In conclusion, when read as a whole, the decision of the Board is not patently unreasonable. In light of the number of problems identified with the Applicant’s claim, this one error does not present a sufficient basis upon which to allow this application for judicial review. I am not persuaded that the decision of the Board should be overturned and the application for judicial review will be dismissed.
[17] Neither party proposed a question for certification. I agree that the issues in this case do not raise a question of general importance and will not certify a question.
ORDER
This Court orders that:
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
“Judith A. Snider”
__________________________
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5138-06
STYLE OF CAUSE: ROBERT NSABIMANA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 12, 2007
APPEARANCES:
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Mr. Micheal Crane
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Ms. Maria Burgos |
SOLICITORS OF RECORD:
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Micheal Crane Barrister and Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |