Date: 20020802
Docket: IMM-3956-01
Neutral citation: 2002 FCT 840
OTTAWA, ONTARIO, THIS 2nd DAY OF AUGUST 2002
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
NADINE MPEMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, wherein the applicant was declared not to be a Convention refugee. The Board found that the applicant did not have a well-founded fear of persecution in her country of origin.
Facts
[2] The applicant, a Burundi citizen, was born in 1980. She is Tutsi. The applicant has two brothers who still live in Burundi with her parents. While she was still living in Burundi, her grandparents fled Muramvya to Bujumbura after Hutu rebels attacked them on October 21, 1993. Her father and her uncle, who were present at the time of the attack, made complaints in 1994 against two of the attackers but the authorities allegedly did nothing against them.
[3] In 2000, suspects who were alleged to have participated in the genocide in Muramvya Province were brought to trial. Her uncle and father were called as witnesses. On June 22, 2000, their house was attacked again during which time her uncle was killed and her cousin was raped. The applicant alleges that the attack was carried out by the same people who perpetrated the first attack in 1993. This time, although a murder and rape were allegedly committed, no complaint was made to the police. The applicant explained to the panel that police rarely take action as a result of complaints.
[4] After this incident, the applicant's father received anonymous phone calls threatening to rape the applicant. Fearing for her safety, she went to live with her aunt. She continued, however, to attend school, as she wanted to complete her school year. Her father, mother and two brothers did not take special measures to protect themselves against attackers. Her parents continued working and her brothers continued attending school. They did not move, nor did they change their phone number.
[5] When she completed her school year, the applicant fled Burundi to the United States where she stayed briefly with her mother's cousin, who was then the Rwandan Ambassador to the United Nations. Then, the applicant made her way to Canada where she arrived on August 25, 2000. She made a refugee claim on the same day.
The Board's Reasons
[6] The Board's reasons, in the case at bar, were brief and focussed on the implausibility of the applicant's behaviour, as well as of her family's, as described by her at the hearing. First, the Board thought it illogical that nobody complained to the authorities following the events that took place in June 2000, especially since her father had in fact complained about similar events in 1994. The Board stated at page 2 of its decision that:
First, the panel considers illogical that neither the claimant nor her family complained to the authorities in June 2000 following the alleged murder of her uncle and the rape of her cousin, when the claimant's father had brought a complaint (Exhibit P-6) in1994 against the same two (2) individuals, who had inflicted material losses on them, through the family lawyer, Étienne Bitomara, and the addresses of their alleged attackers were known, and the country authorities had begun proceedings in April 2000 against certain people suspected of committing reprehensible acts in 1993 in the commune of origin of the claimant's father, according to certain press clippings (Exhibit P-4) placed on the record by the claimant explaining that the authorities did nothing.
[7] The Board went on to say that the applicant's behaviour was inconsistent with her allegations of fear. It concluded as follows at page 3 of its decision:
Moreover, both her father and her mother have continued working and her brothers have continued with their studies and they still live in the same place and, according to the claimant, have not changed their telephone number. Such behaviour is inconsistent with the alleged fear.
The claimant went to the United States to the home of a relative of her mother's and stayed there for more than a week without requesting protection from the US authorities, even though it is a signatory to the Convention, again demonstrating a lack of subjective fear: if she was fearful, she should have requested protection at the first opportunity.
[8] For these reasons, the Board concluded that the applicant is not a Convention refugee.
Issue
[9] Are the Board's findings that the applicant's allegations are implausible, and that her actions inconsistent with a well-founded fear of persecution, patently unreasonable?
Analysis
[10] It is within the Board's specialized expertise to evaluate the credibility and the subjective fear of a claimant, and the plausibility of his or her story. In addition, the Board is required to determine whether the evidence is sufficient to warrant recognition of the Convention refugee status. In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, the Federal Court of Appeal decided at para. 3 and 4 that:
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility review where it results from inferences than to have a finding of non-credibility review where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. ...
[11] With respect to findings of credibility and assessment of evidence, this Court should not substitute its decision for the Board's, unless its decision is based on an erroneous finding of fact, is perverse or otherwise capricious or unreasonable: Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 (F.C.T.D.) at para. 14.
[12] In Li v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 470 ("Li"), and Gonzalez v. Canada (M.C.I.), [1999] F.C.J. No. 805, this Court determined that the Board's decision needed to be examined in light of "her story, and the manner in which it was told and tested in the course of the hearing, against the backdrop of other evidence and its own understanding of human behaviour" (Li, supra, at para. 9). Also, in Caballero et al. v. Minister of Employment and Immigration (1993), 154 N.R. 345, the Federal Court of Appeal found that the Board could rely on inconsistencies to find a lack of subjective fear of persecution. More particularly, the Federal Court of Canada agreed with this decision in Safakhoo v. Canada (Minister of Citizenship and Immigration, [1997] F.C.J. No. 440 (F.C.T.D.) where the Court stated at para. 3 and 6 that:
It is established in the jurisprudence of this Court that conduct inconsistent with a well-founded fear of persecution may properly be relied upon by the Board in rejecting a refugee claim (see for example Caballero et al. v. M.E.I. (1993), 154 N.R. 345, at p. 346 (F.C.A.)
...
In my view, the Board's findings that both the failure of the applicants to seek protection in France, and their decision to return to Iran, were inconsistent with a well-founded fear of persecution were reasonable and open to it on the evidence. Consequently, the applicants have not discharged their burden of establishing that the inferences drawn by the Board, which is a specialized tribunal, could not reasonably have been drawn from the testimonial and documentary evidence before it (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)).
[13] In its decision, the Board fully explained its reasons for finding the applicant's evidence implausible and her actions inconsistent with a well-founded fear of persecution. The Board considered the fact that the applicant stayed in Burundi an extra month after the attack for the sole purpose of finishing the school year instead of leaving right away. Moreover, she continued to attend the same school as before which would not have discouraged attackers from possibly finding her. In her own words, the reason why she did not leave immediately was because "[i]l me restait juste une année, c'est l'année terminale. Tout le monde allait à l'école. Donc, j'ai persévéré parce qu'il me restait juste une année, j'allais pas rater toute une année à cause d'un mois." (Board's transcript, at p. 87). Hence, it was not unreasonable in the circumstances for the Board to conclude that such behaviour is inconsistent with a well-founded fear of persecution.
[14] Based on the evidence on file, it was also reasonably opened to the Board to find it implausible that the applicant's family would not have reported the June 2000 rape and murder to the authorities. Although the documentary evidence points to State discrimination by the Tutsi dominated government and army against Hutus, who constitute an estimated 85 percent of the population (US Department of State, Human Rights Report for 1999, Burundi, Section 5, record pp. 98-99), the applicant and her family are Tutsis and the attack was purportedly made by Hutus. The fact alone that it took seven years to bring to trial the suspects who were alleged to have participated in the genocide in Muramvya Province does not itself prove that the government is not ready to do anything to protect its innocent citizens, as alleged by the applicant. Furthermore, as pointed out by the Board in its decision, the applicant's family has not moved or changed their phone number. Her parents are still working in the same employment and her brothers are still going to the same school in Burundi. Therefore, I am not convinced that the Board's findings are patently unreasonable. Accordingly, this is not a proper case to review the Board's decision rendered in this case.
ORDER
The application for judicial review is dismissed. This matter does not raise a question of general importance for the purpose of certification.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3956-01
STYLE OF CAUSE: NADINE MPEMA
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JULY 11, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: AUGUST 2, 2002
APPEARANCES:
MR. ISAAC SECHERE FOR THE APPLICANT
MS. CATHERINE LAWRENCE FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ISAAC SECHERE, Barrister, Solicitor & Notary FOR THE APPLICANT
OTTAWA, ONTARIO
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA