PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] It is said that it is easier to judge a person’s mental capacity by his questions than by his answers (G. de Lévis). In the case of the applicant Patrick Muhoza Miranda, the Refugee Protection Division (RPD) decided that the answers to its questions were insufficient to grant him status as either a Convention refugee or a “person in need of protection” within the meaning of the Immigration and Refugee Protection Act (IRPA).
[2] According to Mr. Miranda, the RPD committed fundamental errors of fact. The issue to be determined is whether this Court should allow the application for judicial review of the decision of the RPD dated September 9, 2005.
Facts
[3] Mr. Miranda is a citizen of Burundi. He was born there but stated having moved to Rwanda when he was a child and studied there from 1987 to 2004. In January 2004, he was supposedly arrested by the Rwandan army and charged with being an opponent of the existing government. The following month, he returned to Bujumbura in Burundi, where he lived with an uncle who had a hardware store. According to the applicant, his uncle supposedly told him that he was in danger from Burundian military personnel who had killed his family in 1993. In addition, young Hutus from the neighbourhood apparently approached the applicant asking him to join the Hutu rebellion, which he refused to do. Because of this, the applicant alleged having received death threats.
[4] It is important to underline that Mr. Miranda’s claim for refugee protection is based on the fear of persecution in Burundi only. He has not made any claim with regard to Rwanda. Because of this, an analysis of Mr. Miranda’s claim must consider the time he spent in Burundi, that is to say, from February 2004 to November 2004.
[5] When he returned to Burundi, Mr. Miranda went to live with a friend of his uncle. He then managed to obtain a forged passport in November 2004, as well as $5000 from his uncle, to allow him to travel to Canada. The applicant allegedly left Burundi on November 14, 2004, using an English passport in the name of “Shelton” showing a date of birth subsequent to his own. He apparently transited through Ethiopia and Germany before arriving at Montréal airport on November 15, 2004. He apparently made his claim for refugee protection later on, in town.
[6] The RPD rejected the claim for refugee protection because of the applicant’s lack of credibility and because his behaviour was inconsistent with that of a person who fears for his life. In answer to this allegation, Mr. Miranda claimed that the Board erred in criticizing him for not having submitted any evidence about his stay in Rwanda and, more specifically, his studies, and in determining that the applicant’s identity card did not show any date of birth and that, according to the applicant’s documents, he was born on either January 1, 1982 or January 1, 1984. In addition, the applicant alleged that the RPD reached a mistaken, unfounded conclusion in doubting that the applicant’s uncle’s had the financial means to help the applicant obtain a forged passport and pay for his trip to Canada. Finally, the Board criticized the applicant for not having applied for protection in Germany and for not seeking protection in Canada when he arrived at the airport.
Issues
[7] On the basis of the preceding, this Court only has two issues to decide. On one hand, what is the standard of review applicable in this case? On the other hand, is the decision of the RPD patently unreasonable?
Analysis
[8] As far as the standard of review is concerned, case law has clearly established that the standard applicable to issues of credibility is patent unreasonableness: see Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100 (at paragraph 38), Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 732).
[9] Normally, it is true that the lack of credibility of an applicant on an important aspect may lead to the conclusion that there is no credible evidence on which the claim can be based: see Obeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 636, [2004] F.C.J. No. 774 (QL) at paragraphs 4 and 5. However, it is necessary to make a distinction between important aspects and those which are not relevant.
[10] After studying the decision of the RPD, it seems evident to me that it made several errors and placed too much importance on certain facts. More specifically, the RPD dwelt on the following points: the fact there was a mistake in his personal information form (PIF), such as his date of birth, the fact he did not claim refugee protection as soon as he arrived, and the fact that his uncle was allegedly able to give him five thousand dollars. As far as the date of birth is concerned, the applicant’s PIF showed it as being 1984. In spite of the fact his written narrative and his birth certificate were poorly translated, it is clear that the original specified the date of birth as being 1982. Even if the RPD seems to have given a lot of importance to these facts, considering the plausible explanations given by the applicant for all these events, it is not necessary to make an exhaustive analysis to explain why these errors are not relevant.
[11] However, what is relevant is that the applicant did not submit any evidence concerning the nine months he spent in Burundi and that he did not have any passport or boarding pass when he claimed refugee status protection. This is important because Mr. Miranda alleged that the human smuggler accompanied him only to Germany. He thus supposedly kept the passport and boarding pass to travel to Montréal. Mr. Miranda alleged that he mailed the passport back to England without making a copy of it.
[12] Although these factors may seem to have just as little relevance, we must not lose sight of the fact that travel documents are very significant if the applicant has no plausible explanation for his travels. Mr. Justice Nadon mentioned the importance of such documents in Elazi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 212 (QL) at paragraph 17:
17. I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is to easy for a claimant to simply state that he has lost these documents or the facilitator has taken them. If the Refugee Division insists on these documents being produced, the facilitators may have to change their methods.
In addition, as mentioned by the respondent, section 7 of the Refugee Protection Division Rules clearly provides as follows:
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7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. |
7. Le demandeur d’asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S’il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s’en procurer. |
[13] To sum up, this Court notes the opinion of Mr. Justice Joyal in Miranda v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 437. He remarked that the Supreme Court of Canada had decided in a criminal case that, even though the trial judge made nearly eighteen errors in his instructions, if the appeal was not based on a denial of natural or procedural justice, it could not be allowed. In the case at bar, the Court must counterbalance the errors stated above with the decision of the RPD as a whole. On the basis of the evidence submitted before this Court, it does not seem patently unreasonable that the RPD questioned the applicant’s credibility.
[14] Therefore, this Court dismisses the application for judicial review. Because this decision is based on matters of credibility, there is no serious question of general importance to be certified.
[15] In addition, under subsection 112(1) of the IRPA, the applicant may apply for a pre-removal risk assessment (PRRA) if he so desires.
ORDER
THE COURT ORDERS that:
- The application for judicial review be dismissed.
- There is no serious question of general importance to be certified.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6224-05
STYLE OF CAUSE: PATRICK MUHOZA MIRANDA v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Harrington
APPEARANCES:
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Patrick Muhoza Miranda
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THE APPLICANT ON HIS OWN BEHALF
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Thi My Dung Tran
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Patrick Muhoza Miranda |
THE APPLICANT ON HIS OWN BEHALF
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |