Date: 20060214
Docket: IMM-7236-04
Citation: 2006 FC 170
BETWEEN:
CONSTANTIN MARANGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board, dated June 14, 2004, ruling that the applicant was not a “Convention refugee” or a “person in need of protection” within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Although duly notified, the respondent was neither present nor represented at the hearing before me. The decision supported by these reasons is therefore delivered on the basis of the oral submissions heard ex parte from the applicant’s counsel and also on the basis of the written memoranda of both parties.
[3] Constantin Marango, the applicant, is a citizen of Burundi, 34 years of age, a member of the Tutsi ethnic group. He alleges that he has a fear of being persecuted by a former employee from the Hutu ethnic group, named Félix Ndayishimiye.
[4] The panel accepted the applicant’s identity and the fact that he was a Tutsi, but found that his story lacked credibility and that he was therefore not a Convention refugee. The panel gave the following reasons to explain its decision:
- The panel was not satisfied by the evidence offered by the applicant in an attempt to demonstrate that he had opened a café in the Kamenge district. The four certificates produced by the applicant are titles for residential properties registered in the name of his father and none refers to the Kamenge district. Moreover, the documents presented by the applicant to indicate that he was authorized to manage a business could not logically be connected to the café he said he had opened. A certificate for the “El Greco” bakery preceded by five years the opening of the café in Kamenge. Similarly, a tax certificate in the name of the “Pâtisserie Café d’Azur” preceded by three years the opening of the café in Kamenge. Since the applicant said the district of Kamenge did not make him pay any taxes, the tax certificate cannot possibly relate to the alleged business of the applicant in that district.
- The applicant brought many documents with him. His family still lives in Bujumbura and has substantial resources. Furthermore, he allegedly received a grant from the ministry of Repatriation, Reintegration and Reconstruction to open his café in Kamenge. Considering these factors, the panel found that he should have been in a position to provide more persuasive evidence to demonstrate that he was indeed managing a café.
- In his Personal Information Form (PIF) and his Curriculum Vitae (CV), dated 2002, the applicant stated that he had begun working as a manager of the “Café d’Azur” from 1995, but no longer after December 2001. However, when he spoke with the Refugee Protection Officer, the applicant changed his story several times, saying he had worked in Kamenge until his departure from Burundi, until February 2001 or until February 2002. He was unable to explain why he had not included in his PIF or his CV his employment with the café until February 2002. The panel found from this and from the evidence referred to earlier that the applicant had never worked in Kamenge.
- The panel also rejected the applicant’s story that his sister had been kidnapped. Since the applicant alleges that he reported this event to the police, the army and the local authorities, and in view of the position of his family, the panel found it suspicious that there is not a modicum of documentation reporting this event. The panel found it implausible that the applicant’s family would not continue their searches after his departure, especially given the fact that one of his brothers works for a human rights NGO. The panel accordingly found that the applicant’s sister had not been kidnapped or at least that she had not been kidnapped by Félix Ndayishimiye.
- The panel thought it was contradictory for the applicant to say that he was fleeing persecution but not to have sought asylum in the United States. The fact that he does not speak English is not a sufficient excuse.
- The panel found that the applicant was not in danger of being a victim within the meaning of the Torture Convention. It also found that his removal to his country would not put him at risk of cruel and unusual treatment or punishment. Although the applicant says he left his parents’ house in 1995 to live in another neighbourhood of Bujumbura, the panel noted that his address had not changed on his identity papers. The applicant replied unconvincingly that he was using his parents’ house to receive his mail. The panel found it was more probable that he still lived in Rohero, a neighbourhood that was spared the ravages of the civil war.
[5] Now, it is settled law that, when it comes to credibility and the assessment of the facts, it is not for this Court to substitute its opinion for that of the Refugee Protection Division of the Immigration and Refugee Board when, as in this case, the applicant fails to demonstrate that this specialized tribunal made a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). From my review of the evidence, it is apparent to me that the panel’s decision is based on solid evidence in the record emanating from the testimony of the applicant himself and the documentary evidence. The inferences drawn by the panel appear to me, furthermore, to be completely reasonable (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315).
[6] Therefore, the intervention of this Court is not warranted, and the application for judicial review is dismissed.
[7] At the hearing before me, the applicant had an opportunity to explain the question that he wished to have certified and he formulated it as follows in his written submissions:
[translation]
22. It is respectfully submitted that inasmuch as the respondent Minister of Immigration and Refugee Protection has not yet established the Appeal Division of the Immigration and Refugee Board, does the applicant, Mr. Constantin Marango, have a reasonable expectation that the standard of review is that of “reasonableness”?
[8] The requested certification is denied on the ground that, in this case, the proposed question is not decisive (see Canada (M.C.I.) v. Liyanagamage (1994), 176 N.R. 4). It is clear from my reasons above that I find the panel’s assessment of the facts and credibility completely reasonable. Thus, even applying the standard of review suggested by the applicant, his application for judicial review cannot be upheld.
Yvon Pinard
__________________________________
JUDGE
OTTAWA, ONTARIO
February 14, 2006
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7236-04
STYLE OF CAUSE: CONSTANTIN MARANGO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 6, 2006
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATE OF REASONS: February 14, 2006
APPEARANCES:
|
Jacques Bahimanga
|
FOR THE APPLICANT |
|
No appearance
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Jacques J. Bahimanga Ottawa, Ontario
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada
|
FOR THE RESPONDENT |
Date: 20060214
Docket: IMM-7236-04
Ottawa, Ontario, February 14, 2006
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
CONSTANTIN MARANGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision by the Refugee Protection Division of the Immigration and Refugee Board, dated June 14, 2004, ruling that the applicant is not a “Convention refugee” or a “person in need of protection” within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
Yvon Pinard
__________________________________
JUDGE
Certified true translation
François Brunet, LLB, BCL