Date: 20020516
Docket: IMM-2472-01
OTTAWA, Ontario, the 16th day of May, 2002
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN:
IRENE IRACANYE
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
[1] The application for judicial review is dismissed.
"P. Rouleau"
Judge
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20020516
Docket: IMM-2472-01
Neutral Citation: 2002 FCT 562
BETWEEN:
IRENE IRACANYE
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for leave and for judicial review, based on section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division"), rendered by Board member Lucie Blais on April 24, 2001, according to which the applicant was not a Convention refugee. The applicant is asking the Court to overturn the decision rendered against her and to order that this matter be referred for judgment.
[2] The facts alleged by the applicant in support of her application and which, incidentally, are not disputed by the respondent, are summarized in the Refugee Division decision as well as in her written testimony filed prior to that decision with her Personal Information Form (PIF).
[3] The applicant, a citizen of Burundi, is an ethnic Tutsi by her father and mother. She states she is the eldest in a family of six children and that prior to 1993 her father worked a plot of land in Bubanza and her mother was a secretary in the Kinindo elementary school. Before her exile to Canada, she was living in Bujumbura, the capital of Burundi, in a neighbourhood with a 90-95% Tutsi majority, but one kilometre from a neighbourhood that was majority Hutu.
[4] In October 1993, the applicant says, she became aware of the scope of the civil war in Burundi between the Tutsi, a minority but holding power, and the Hutu (an 85% majority). During this period, she says she witnessed the massacre of various members of her family such as her grandfather and a paternal uncle. Her grandmother had her legs cut off and her father's fields were burned. The entire remaining family sought refuge with relatives. She says she was afraid the Hutu would come for her, and afraid of dying or directly witnessing the death of her loved ones. At the time, some guidelines were issued at home, such as to be careful to whom one spoke, to eat only in the house and to leave only in case of necessity. In 1994, her mother lost her job to an ethnic Hutu. However, the applicant was able to continue her studies.
[5] At the end of the 1995-96 school year, the applicant obtained her diploma in general humanities, scientific division. She was also among the first to perform the newly established compulsory military service, from February 1997 to October 1997, which enabled her to continue with university studies in Economics from December 1997 to November 1999, when she emerged with a certificate. She was also a reservist in the army, teaching self-defence to her neighbours. During this period, the war continued and the idea of leaving her country began to form in her mind.
[6] The applicant says that, knowing she was in danger and being singled out by her neighbours as "the girl who was going to end her family's poverty", particularly because of her academic successes and because she had served in the army, but also because she was Tutsi and was participating actively in the self-defence, she discussed the situation with the soldiers patrolling in the neighbourhood. It appears from her testimony to the Refugee Division that these soldiers replied to her that everyone was in danger and that it was necessary to show greater vigilance and organize more effectively.
[7] The applicant says that as time went on, her situation became more serious since the attacks and ambushes against former participants in the compulsory Military Service were increasing. And they were the ones who were killed first since they were presumed to be allied with the government and the Tutsi soldiers. The applicant says that two colleagues in her class were killed in August 1999, one on the road to his home, the other poisoned.
[8] In November 1999, the applicant obtained her passport and began working in a telecommunications company to save money but also to assist her family. This simply aggravated her situation, and the threats became more and more specific. She alleges that the Hutu workers in her area shouted out her name and that a former Hutu teacher proposed that she be his mistress in order to remove her name from the list of those who were to be eliminated. She refused, just as she had refused to pay any money to have her name removed.
[9] The applicant alleges that in April 2000 she attempted unsuccessfully to leave her country. She continued to work and says she resided most often with friends and avoided taking the company car. She also alleges that in the evening of August 4, 2000, a rebel male dressed in shepherd's clothing came to her father's house and asked to see her. Since the shepherd did not know her, she managed to immobilize him and disarm him with the help of a friend. The man in question then shouted out that in any event her name was on the list and that she could not flee as her sister, who is now in Canada, had done. The applicant says she was more afraid than ever, and decided to leave for good. Two days later, she contacted a forger who helped her obtain a U.S. visa, which was issued August 31, 2000 on the false ground that she was "coming to New York for UN youth conference".
[10] On September 5, 2000, the applicant left Burundi via Kenya, Egypt, Holland and the United States, where she stayed two days before arriving in Canada on September 8, 2000 as a visitor. Upon her arrival in this country, she filed her application and claimed refugee status, alleging that she had a well-founded fear of persecution in her country of origin by reason of her ethnic group and her membership in a particular social group, namely, people who had done the compulsory military service.
[11] The Refugee Division heard the applicant at the hearing of April 6, 2001. In a letter dated May 3, 2001 and received by the applicant on May 7, 2001, the Division rejected her claim and decided that she was not a Convention refugee. The Division held that the applicant's testimony was credible, but that she had not clearly and convincingly demonstrated that she could not be protected by the State in Burundi. The Division found as well that her fear had no relationship to any of the grounds in the definition of Convention refugee and that she had no subjective fear of persecution. These reasons appear in the decision dated April 24, 2001, which is appended to this letter of refusal:
[TRANSLATION]
THE REASON FOR THIS NEGATIVE DECISION IS THAT THE CLAIMANT HAS NOT PROVIDED CLEAR AND CONVINCING EVIDENCE OF THE PRESENT INCAPACITY OF THE STATE TO PROTECT HER AS REQUIRED BY THE SUPREME COURT IN THE WARD DECISION.
MS. IRACANYE SAYS SHE LIVED IN A NEIGHBOURHOOD IN WHICH 90 TO 95% OF THE POPULATION WAS TUTSI, AND THAT THERE IS A SELF-DEFENCE GROUP IN HER AREA TO PROTECT CITIZENS, AND THAT SHE HERSELF WAS A MEMBER OF THE TRAINING TEAM FOLLOWING HER MILITARY SERVICE.
MOREOVER, SHE SAYS THAT EACH FAMILY HAD A REPRESENTATIVE WITHIN THE GROUP AND WHEN SHE ALLEGES HAVING SOME PROBLEMS SHE NEVER WENT TO THE AUTHORITIES. THE EXISTING GOVERNMENT IS OF THE SAME ETHNIC GROUP AS THE CLAIMANT, THE ARMY SEEMS TO BE DOING WHAT IT CAN TO PROTECT ITS CITIZENS. THE DOCUMENTARY EVIDENCE SHOWS THERE ARE STILL SOME ETHNIC PROBLEMS BUT TRYING TO RESOLVE THEM.
EACH YEAR, CLOSE TO 3,000 YOUNG PEOPLE DO MILITARY SERVICE AND SUBSEQUENTLY BECOME RESERVISTS AS MENTIONED BY THE CLAIMANT.
IN THE PANEL'S OPINION, MS. IRACANYE'S FEAR IS UNFOUNDED. THE PANEL DOES NOT THINK THAT IF SHE RETURNED TO HER COUNTRY THERE IS A SERIOUS POSSIBILITY SHE WOULD BE PERSECUTED. HER FEAR IS GENERAL IN RELATION TO THE HUTU MAJORITY, AND GIVEN THE FACT THAT SHE CAN BE PROTECTED BY THE STATE SHE SHOULD GO TO IT BEFORE APPEALING TO INTERNATIONAL PROTECTION. ADDED TO THIS IS THE FACT THAT SHE WORKED UNTIL HER DEPARTURE, DEMONSTRATING THE ABSENCE OF A SUBJECTIVE FEAR.
[12] That is the decision that is appealed in this proceeding.
[13] The major question raised in this judicial review is whether the Refugee Division rendered a decision that erred in law or was based on erroneous findings of fact, without regard for the material before it, when it found that the applicant had not provided clear and convincing evidence of the present incapacity of the State of Burundi to protect her and, on the other hand, that she had no subjective fear of persecution.
[14] The applicant acknowledges, in the first place, that a state is presumed to be able to guarantee the protection of its nationals. This presumption may be rebutted, for example by an admission on the part of the state, but also by the testimony of persons who were not protected or the testimony of the claimant demonstrating the lack of reasonable protection. Similar considerations apply when the state loses control of the situation. For example, the civil war was recognized in Zalzali v. Canada, [1991] 3 FC. 605, at p. 614 (F.C.A.) as demonstrating the lack of state protection notwithstanding the presumption.
[15] The applicant submits that in the instant case a situation of civil war clearly exists in Burundi and she cites some documentation and reports by non-governmental humanitarian organizations in support of her claim. The applicant submits that when there are thousands of deaths in the civilian population and hundreds of thousands of displaced persons, the government clearly does not have control of the situation and is not guaranteeing effective protection. The applicant says this conclusion is confirmed by the fact that she testified before the Refugee Division that the army was mainly present on the battlefields and in the mountains and that it was unable to secure the safety of citizens since deaths were still occurring, and increasingly so.
[16] The applicant submits that in the context of the civil war that is raging in Burundi, individuals such as the applicant are clearly targeted. She notes that she testified credibly before the Refugee Division that she was identified, singled out and on two occasions told that her name was on a list, while on the last occasion she managed to disarm her assailant.
[17] The applicant submits that she proved she was personally in danger, that there is a civil war in Burundi, that thousands of civilians have died and further thousands are displaced notwithstanding the presence of the state authorities, whose control over the situation is quite tenuous. Accordingly, she submits, this is a case in which the political and military situation of the country is such that one simply cannot speak of the government having control of the territory and being in a position to provide effective protection. Consequently, she submits there are serious reasons to allow her application.
[18] The respondent, for his part, notes in the first place that the applicant testified she lived in a neighbourhood in which 90 to 95% of the population is Tutsi and there is a self-defence group to protect citizens. The Refugee Division also noted that the applicant had never gone to the authorities about her problems. Yet, she should have claimed protection from the authorities in her country before claiming Canada's protection, the respondent says. Canada's protection is only ancillary to that of the State of Burundi.
[19] The respondent relies on Department of Citizenship and Immigration v. Kadenko (1996), 143 D.L.R. (4th) 532 (F.C.A.) in submitting that the Refugee Division was entitled to find that the applicant had not exhausted all recourses in her country by taking advantage of Burundi's protection before coming to Canada. She had to establish that she had exhausted all recourses in Burundi, which was not done since she never went to the Burundi authorities before leaving her country.
[20] The respondent also relies on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 in arguing that absent a complete collapse of the state apparatus, the State of Burundi's capacity to protect is presumed. But, says the respondent, the applicant did not establish clearly and convincingly Burundi's incapacity to provide her with protection or that there is a collapse of the state apparatus in her country. So she has not rebutted this presumption. The respondent submits that on the contrary the documentary evidence discloses that the established government in Burundi is of the same ethnic group as the applicant, and that the army is doing what it can to protect its citizens, although there continue to be serious ethnic problems.
[21] In reply to the applicant's submission that there is a civil war in her country, the respondent submits that a situation of civil war does not automatically mean a collapse of the state apparatus. Rather, the evidence indicates that there is still a government in power, as well as an army to protect the citizens. Obviously there is no state collapse, since there are some structures in place to assist and protect citizens, the respondent argues. When a claimant is protected, even incompletely, by her State of origin, international protection is not a factor since that is an ancillary measure. Consequently, since the applicant has failed to demonstrate the incapacity of the State of Burundi to protect her, the Refugee Division was entitled to dismiss her claim on that ground alone.
[22] The respondent further notes that the applicant did not dispute the Refugee Division's finding in regard to the lack of a subjective fear of persecution. This finding should therefore be taken as proved. Indeed, the Refugee Division noted that the applicant continued to work until her departure, although she alleges fearing for her life. The respondent argues that the Refugee Division could take into consideration the fact that the applicant continued her activities before leaving her country in determining whether her fear of persecution was well founded. And the respondent notes that every refugee claimant must show the existence of a subjective fear and an objective fear of persecution. But given the absence of any subjective fear in the applicant, the Division was entitled to dismiss her claim on that ground alone.
[23] For all these reasons, the respondent submits that the applicant's claims are not such as to persuade this Court that there are serious grounds that would entitle it to allow the remedy she is seeking, and thus that this application for leave and for judicial review should be dismissed.
[24] There are two aspects to the decision that is under review in this case. First, the Refugee Division found that the applicant has not clearly and convincingly proved that the State of Burundi and its army could not provide her with adequate protection in the circumstances. The availability of the protection of the State of Burundi must be considered at that stage in the analysis where it is determined whether the applicant's fear is objectively justified: Ward. Second, the Refugee Division found that the applicant has not proved she had a subjective fear of persecution for any of the reasons she alleged if she were to return to Burundi.
[25] In the proceedings before me, the applicant attacked only the "protection of the state" aspect. As the respondent pertinently notes in his memorandum, the application for judicial review cites no error by the Refugee Division concerning its finding of a lack of subjective fear given the fact that the applicant had continued to work until her departure, although she alleges she feared for her life. She has therefore raised no argument in her written submissions that could certainly have been made in opposition to this finding. The respondent submits that the applicant's failure in this regard is sufficient to justify the dismissal of the claim. I agree.
[26] The failure to attack the Refugee Division's finding as to the subjective ingredient of the claim is a fatal weakness that in itself warrants the dismissal of the claim in this case by the Refugee Division since both aspects of the definition of refugee, the subjective and objective fear, must be fulfilled.
[27] Although I have some serious doubts about the merits of this finding by the Refugee Division, I am unable to intervene: Molnar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 451 (QL) (Nadon J.). Consequently, I need not go into the question of the protection by the State of Burundi that was available to the applicant.
[28] The application for judicial review is therefore dismissed.
"P. Rouleau"
Judge
OTTAWA, Ontario
May 16, 2002
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-2472-01
STYLE: Irene Iracanye
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 24, 2002
REASONS FOR ORDER OF ROULEAU J.
DATED: May 16, 2002
APPEARANCES:
Denis Buron FOR THE APPLICANT
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denis Buron FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada