Date: 20000816
Docket: IMM-4359-99
BETWEEN:
DEVOTE MUNYAKAYANZA
DIDIE UWILINGIYIMANA
ALAIN ISHIMWE
UWASE ALAINE IRANKUNDA
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from the decision of the Refugee Division on August 9, 1999, by which the Division found that the plaintiffs were not Convention refugees.
FACTS
[2] The plaintiff and her three children are citizens of Rwanda. She stated that she belonged to the Tutsi tribe, but the children are from the Hutu tribe since the father is a Hutu.
[3] Following the genocide, she returned to Rwanda to find that newly arrived Tutsis were occupying Hutu houses. Before finding that several members of her family had been killed she filed a complaint in 1997, after being told that her family's killers had come back from Zaire. Following that information, the plaintiff, her brother and uncle received threatening letters.
[4] On February 8, 1998 her brother and his family were killed. On July 27, 1998 she said her uncle was killed. The police did not intervene.
[5] On August 15, 1998, seeing one of the killers near her house, the plaintiff began shouting, which made him run away.
[6] The plaintiff then decided to flee with three of her children. They left Rwanda on August 23, 1998 and on September 14, 1998 arrived in Canada, where they claimed refugee status.
[7] The plaintiff's husband and eldest child are still in Rwanda.
REFUGEE DIVISION DECISION
[8] The plaintiff had made amendments before her testimony, informing the Division that her husband is a Hutu. The reference to a Hutu was then added to each of the children's PIFs.
[9] The Division described the additions to the PIF as fundamental. It concluded that the failure to mention the Hutu affiliation of the husband on the original PIF is the principal basis on which it rested its conclusion. The Division noted that the husband's Hutu affiliation entirely altered the question of fear of persecution alleged by the plaintiffs.
[10] The Division noted the plaintiff's lack of credibility, when she testified she had lost all contact with her husband, though the evidence showed the existence of letters from the husband to the plaintiff.
[11] The Division rejected all the translations filed after the interpreter, in the Division's presence, noted that a certain translated paragraph did not exist in the original version.
[12] The Division concluded that the plaintiffs were not refugees.
PLAINTIFF'S ARGUMENTS
[13] The plaintiffs submitted that as they only had a limited knowledge of French they could not be held responsible for the errors of an interpreter whose services they had not themselves engaged.
[14] The plaintiffs submitted that the Refugee Division made an error of law in concluding that the error in the translation of Exhibit P-5 cast doubt on the very content of the documents entered in evidence. The Division also erred in refusing to allow the interpreter on the spot to translate the documents. By acting in this way, the Division prevented the plaintiffs from full and complete presentation of their evidence, which is a breach of the rules of natural justice.
[15] The plaintiffs submitted that the Division made an error in drawing negative inferences based on translation of documents, when it dismissed that evidence.
[16] The plaintiffs suggested that the Refugee Division erred in failing to rule on the threatening letters. The Division also failed to mention that the plaintiff's entire family was killed and that her brother and family and her uncle were shot after receiving threatening letters. Further, the Division was in error in stating that it was Hutus who occupied the Tutsi houses, whereas the plaintiff stated that the Tutsis occupied Hutu houses.
[17] The plaintiffs argued that the Division's conclusion that the husband's tribe was the principal issue was unreasonable and did not take account of the evidence in the record.
DEFENDANT'S ARGUMENTS
[18] The defendant maintained that the plaintiffs could not discharge their personal responsibility for the evidence they submitted in support of their claim by indicating that they did not themselves select the translator.
[19] The defendant submitted that the plaintiffs had only themselves to blame if they did not submit credible evidence. They had an opportunity to translate the documents prior to the hearing and the Refugee Division is not required to give them any further opportunity to attempt to improve evidence that is not credible which they freely chose to file in support of their claim.
[20] As to the conclusion of a lack of credibility based on the evidence dismissed, the defendants maintained that the plaintiff contradicted herself in her testimony. She stated she was not in contact with her husband. She subsequently explained that telephone calls were expensive and she had the mailing address of a friend who could send letters to her husband.
[21] The defendant submitted that the Division found the amendment to the PIF fundamental and did not have to rule on certain points in the evidence, since it had already formed a general conclusion on the plaintiff's credibility based on absence of the alleged fear.
[22] The defendant submitted that the Division could refuse to attach any weight to the basis of the fear alleged by the plaintiffs, in view of the fundamental changes made by the plaintiffs at the start of the hearing. The fact that the plaintiff's husband and her children are Hutus made her fear improbable.
ANALYSIS
[23] By dismissing the claim because the plaintiff's husband is a Hutu, the Division disregarded a large part of the evidence submitted. The evidence clearly indicated that marriages between tribes were a regular practice, but that this fact did not prevent massacres or genocide of family members. The evidence further showed that Tutsis and moderate Hutus were targeted. The Refugee Division had a duty to determine whether the plaintiff had a fear of persecution: instead, the Division dismissed the plaintiff's testimony and evidence and concluded that since her husband was a Hutu it was unlikely she had been threatened. In making this conclusion, the Division failed to undertake the necessary analysis.
[24] This individual is the sole survivor, with her children, of murders that affected nearly all of her family.
[25] On her return, she learned the identity of the person who had committed these murders and reported him. She was then threatened by that individual.
[26] The fact that her husband is a Hutu did not greatly alter the situation, apart from making her life more difficult. The murderers or murderers of the members of her family who threatened her had no reason to cease such threats, since she herself had reported them.
[27] The Division had to determine whether the evidence submitted could establish a legitimate fear of persecution based essentially on these facts.
[28] In my opinion, it seems clear that the Division failed to undertake analysis of the plaintiff's reasons based on her claim.
[29] This is an error that justifies intervention by this Court.
[30] Additionally, the plaintiff had a duty to submit her evidence. Her husband's translated letters did not identify the translator. The name of the official translator of the threatening letters was typed at the bottom of the page. If the documents were not translated by a professional, it would seem that the plaintiff should bear the consequences of her actions, even though it was her counsel who hired the translator. However, if the translator was official it was not the plaintiff's fault if he proved not to be competent. She took the proper steps to present evidence to the Refugee Division by using an official translator. The Division erred in dismissing the evidence and refusing to allow the interpreter to translate the documents.
[31] It seems strange for the Division to have relied on letters which it dismissed as a basis for attacking the plaintiff's credibility. If the Division decided to dismiss the evidence because it was not credible, it could not also base its conclusions on that very evidence. This is an error of law.
[32] This application for judicial review is allowed and the matter referred back for re-hearing before a panel of different members.
[33] None of the counsel submitted a question for certification.
|
Pierre Blais Judge |
OTTAWA, ONTARIO
August 16, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4352-99
STYLE OF CAUSE: DEVOTE MUNYAKAYANZA et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 3, 2000
REASONS FOR ORDER BY: BLAIS J.
DATED: AUGUST 16, 2000
APPEARANCES:
ANNIE BÉLANGER FOR THE APPLICANT
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
ANNIE BÉLANGER FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada