Ottawa, Ontario, the 20th day of March 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
IMMIGRATION
Applicant
and
OLIVIER KABURUNDI
ALIDA KABURUNDI
MARIE-ANGE KABURUNDI
KING FLEURY KABURUNDI
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, 2001 S.C. c.27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) by Ruth Delisle, dated June 9, 2005, in which the respondents were determined to be “Convention refugees”.
ISSUE
[2] Are the reasons given by the Board for allowing the applicants’ claims for refugee protection insufficient and inadequate?
[3] For the reasons that follow, this question is answered in the negative, and this application for judicial review is dismissed.
FACTUAL BACKGROUND
[4] The principal respondent, Sophie Ndamama, is a Burundian citizen of Hutu ethnicity. She is the wife of Salvator Kaburundi, whom the Board found to be excluded from the definitions of “Convention refugee” and “person in need of protection” under paragraph 1F(a) of the Convention because there were serious grounds to believe that he was complicit in crimes against humanity and war crimes. This determination was the subject of a separate judicial review application, docket number IMM‑4281‑05, which was decided the same day.
[5] The principal respondent and Mr. Kaburundi have four children: Olivier, Alida, Marie-Ange and King Fleury, of mixed Hutu-Tutsi ethnicity.
[6] From 1979 to 1992, the husband of the principal respondent worked for the Central Committee of the governing party in Burundi, Unity for National Progress (UPRONA). He was also a member of that party.
[7] From 1988 to 1993, he studied business administration.
[8] From 1993 to 1994, the husband of the principal respondent worked in the private sector, but joined the public sector in 1996 after unsuccessful attempts to find work in the public sector.
[9] Beginning in 1996, he held various financial administration and development assistance positions with the foreign affairs department.
[10] In 1998, the husband of the principal respondent became the head of financial services. His position required him to travel extensively, and he conducted audits on the premises of approximately ten Burundian embassies abroad. During these audits, the husband of the principal respondent uncovered a large number of financial irregularities, and several public servants were reprimanded and required to reimburse the improperly spent amounts. One of the public servants was Ferdinand Nyabenda, a chargé d’affaires in Rome.
[11] In 2000, after a short posting at the Burundian Embassy in Kenya, he was appointed First Secretary of the Burundian Embassy in Belgium. He was primarily responsible for the Embassy’s financial administration and files dealing with the European Union’s development assistance to Burundi. He also worked as Chargé d’affaires between the departure of the outgoing ambassador and the arrival in 2002 of the new ambassador, Ferdinand Nyabenda.
[12] Relations between the husband of the principal respondent and the new ambassador quickly deteriorated.
[13] During a visit to Burundi in 2003, the husband of the principal respondent learned that the Ambassador had denounced him as a sympathizer of the opposition party, the National Recovery Party (PARENA). On June 11, 2003, he was summoned by the police to answer to a charge of breach of national security.
[14] Fearing for his safety, he left Burundi for Brussels the same day.
[15] Once back in Brussels, the husband of the principal respondent was informed by a colleague that the Ambassador had launched an outright smear campaign against him, calling into question his loyalty to the government and the authenticity of his claim to Tutsi ethnicity, and insinuating that the husband of the principal respondent and his family members might be spies. The applicant began to hear rumours that he would soon be recalled and dismissed.
[16] Fearing the worst if he returned to Burundi, the husband of the principal respondent, the principal respondent and their minor children left Belgium for the United States on August 30, 2003. They applied for refugee protection at the Lacolle border crossing on September 1, 2003. Their two adult children travelled the same route and applied for refugee protection on September 2, 2003.
[17] The husband of the principal respondent claims that his home in Burundi and that of his parents were sacked and looted, and that his parents had escaped death by leaving the house just in time and hiding in the bush.
[18] The respondents claim to have been contacted several times at their Montréal home by officials at the Burundian Embassy, demanding that the respondents return their diplomatic cards.
IMPUGNED DECISION
[19] The Board’s reasons respecting the respondents’ applications for refugee protection read as follows:
The spouse of the principal claimant, of Hutu origin, testified that she feared returning to Burundi because the authorities of her country were informed that her family had taken refuge in Canada. The ambassador of Burundi in Ottawa telephoned them at their Montréal residence to reclaim their diplomatic cards. The spouse of the principal claimant indicated that the Burundian authorities could go after her and her children, because they would be accused of having revealed in Canada what was happening in Burundi. She also fears the rebels and the extremists, Hutus and Tutsis, who consider her to be a secret agent. Lastly, she fears the members of her husband’s family, who have excluded her and her children from family reunions.
The oldest son of the principal claimant, King Fleury Kaburundi, added that the very reason that his father was a refugee in Canada made him a wanted person, since the current situation in Burundi caused settling of accounts between the two ethnic groups.
In light of the situation prevailing in Burundi, the panel is also of the opinion that the sole fact of the principal claimant’s defection and contravention of the order that he return to Burundi places all the members of his family in danger should they return to their country of citizenship. It follows that the panel is of the opinion that there is a reasonable possibility that the members of the principal claimant’s family would be persecuted and/or threatened should they return to the Republic of Burundi.
ANALYSIS
[20] Section 96 of the Act reads as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
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a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[21] The applicant submits that the Board’s reasons are insufficient and inadequate on the following grounds:
1. The Board simply confirmed the respondents’ allegations without providing the reasons for believing them.
2. The Board did not explain its finding that the mere fact that the husband of the principal respondent had defected and had disobeyed an order to return to Burundi put all the members of the family in danger, when the reading of this order revealed nothing threatening.
3. Regarding the principal respondent’s allegation that she feared the Hutu and Tutsi extremists as well as her husband’s family, the Board neither ruled on her credibility nor engaged in any analysis.
[22] I cannot accept the applicant’s submissions. The three paragraphs of reasons concerning the respondents cannot and must not be read in isolation from the rest of the highly detailed reasons concerning the exclusion the husband of the principal respondent.
[23] Although the principle of procedural fairness indeed requires detailed reasons and analysis when the tribunal finds that a claimant’s allegations are not credible, the same cannot necessarily be said when the allegations are found to be credible, since there is a presumption of credibility (Maldonado v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 72 (F.C.T.D.) (QL)).
[24] It is also worth recalling the comments of Evans J. in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) (QL):
… the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
[25] In the first part of its reasons, the Board engaged in a thorough analysis of the situation in Burundi, based on testimony and extensive documentary evidence. Given its findings on the seriousness of the crimes committed by the Burundian government against civilian populations, the Board could certainly find the respondents’ allegations credible without having to go into a detailed analysis of the reasons why they considered them to be true. There is nothing in the decision calling into question the respondents’ credibility.
[26] I find that the Board’s reasons concerning the respondents’ applications for refugee protection were neither insufficient nor inadequate.
[27] The parties have not submitted any questions for certification, and none are raised by this case.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed. No question is certified.
Certified true translation
Francie Gow
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3929-05
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. SOPHIE NDAMAMA, OLIVIER KABURUNDI,
ALIDA KABURUNDI, MARIE-ANGE KABURUNDI, KING FLEURY KABURUNDI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 15, 2006
APPEARANCES:
Mario Blanchard FOR THE APPLICANT
Lia Crisitnariu FOR THE RESPONDENTS
SOLICITORS OF RECORD:
John H. Sims, QC FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
Lia Crisitnariu FOR THE RESPONDENTS
Montréal, Quebec