Date: 20010330
Docket: IMM-1789-00
Ottawa, Ontario, March 30, 2001
Before: Pinard J.
Between:
Yasina NIZEYIMANA
Ime NIZEYIMANA
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on February 8, 2000 that the plaintiffs are not Convention refugees, and concluding that their claim lacked a credible basis, is dismissed.
|
YVON PINARD JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010330
Docket: IMM-1789-00
Neutral reference: 2001 FCT 259
Between:
Yasina NIZEYIMANA
Ime NIZEYIMANA
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division ("the RD") on February 8, 2000 which found that the plaintiffs Yasina Nizeyimana ("the plaintiff") and his minor son Ime Nizeyimana are not Convention refugees. Further, the RD concluded that their claim lacked a credible basis pursuant to s. 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiffs are nationals of Rwanda. The son based his claim on that of his father, who alleged he had a well-founded fear of persecution in his country because of his Hutu ethnic background and membership in the social group of the family.
[3] It appeared that the RD refused to grant the plaintiffs refugee status for two reasons: the lack of any objective basis for the plaintiff's fear and the latter's lack of credibility. It further concluded that there was no credible basis pursuant to s. 69.1(9.1) of the Act. As the son's claim was based on that of his father, it also failed.
[4] The RD first found, in particular, that the plaintiff's real fear was that resulting from threats made by the Major after his family left in August 1998, regardless of other fears mentioned, including that resulting from his association with his Tutsi wife. This was a simple question of fact which, in my view, was fully supported by the testimony of the plaintiff himself, as appears from the following passage from the hearing transcript:
[TRANSLATION]
Q. So, sir, it was on August 23 that you say you visited this relative in Uganda?
A. I was in Uganda from July 29 to August 2, 1998.
Q. July 29? Then . . . and you returned to . . . to Rwanda. Is that right?
A. Yes, I returned to Rwanda on the 2nd.
Q. Of August?
A. Yes, August 2.
Q. Why did you go back to Rwanda, sir? Because your problems had not begun at that time?
A. The problems were not very . . . very critical so as to make me leave the country, it had not got to . . . a certain breaking point.
. . . . .
Q. . . . And why . . . did you have the intention of leaving as well or not?
A. I did not . . . want to leave at that time because my wife . . . the problems we had that time were more in the nature of . . . family problems of . . . of my wife, it was connected with my wife's family rather than myself.
. . . . .
Q. At what point did you think it was necessary to leave Rwanda and . . . join your wife?
A. The officer told me that there was something going on, if his family - it goes without saying that I was the person responsible and at some point I learned that there was a . . . a bus, a taxi which was burned at . . . in the Ruhengeri prefecture and I was afraid. I took the decision to . . . to leave . . . and this minibus . . . his two children were in this minibus.
. . . . .
Q. So, sir, it was this development which . . . which led you to leave Rwanda? I would like that to be clear.
A. That was chiefly what made me . . . I fled the country because I . . . I felt threatened.
Then, based on the following considerations, the RD found the plaintiff not credible and concluded that there was no objective basis for his fear of persecution if he returned to Rwanda:
[TRANSLATION]
- The plaintiff went to the authorities, who took his complaint about eviction from his house in August 1998, and told him to await a decision at a higher level.
- The plaintiff alleged that he hid with his son at the home of some friends, but he testified he went on with his work and his son continued to attend school.
- The fact that the Major's two children died accidentally is not as such sufficient for the Major to have automatically identified the plaintiff as the perpetrator of the act. There was no objective evidence that the Major thought this and the evidence made no mention of any steps taken by the plaintiff to clarify the details of the accident and show that he had not taken part of it.
- The plaintiff waited for eight months before finally leaving his country after having decided to do so on December 8, 1998.
[5] In this connection, the plaintiffs did not satisfy the Court that the RD made a decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7); further, the Court was not persuaded that the inferences drawn by this specialized tribunal could not reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.Appeal)). In my opinion, the RD could reasonably conclude that there was no objective basis for a fear of persecution.
[6] As regards the letters sent by the plaintiff from Rwanda to his wife in Canada, I agree with the defendant in saying that they had no bearing on the plaintiff's objective fear. The RD did not question the fact that the plaintiff suffered difficulties after his wife left, as indicated in the letters. What it questioned was whether those difficulties justified the plaintiff having a fear of persecution. As the letters had no impact on the decision, the RD had no duty to comment on them (see Cepeda-Gutierrez v. M.C.I. (1998), 157 F.T.R. 35).
[7] I find the plaintiff's argument that the tribunal erred in not expressly indicating why the minor plaintiff's claim was dismissed to be without merit. Since the latter based his claim on that of his father and did not allege any specific fear of persecution, the RD was not required to deal separately and specifically with his application (see Chehar v. M.C.I. (November 27, 1997), IMM-4540-96, Seevaratnam v. M.C.I. (May 11, 1999), IMM-3728-98, Gengeswaran v. M.C.I. (May 19, 1999), IMM-4318-98 and Akhter v. M.C.I. (July 6, 2000), IMM-3750-99).
[8] Finally, in my opinion the plaintiff wrongly sought to impose on the RD a burden to give separate reasons for its conclusion on s. 69.1(9.1) of the Act, which simply provides the following:
| 69.1 (9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. |
69.1 (9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut. |
[9] This provision of the Act clearly requires that a conclusion that there is no credible basis should be part of the same decision as that dealing with the refugee status claim. If a separate decision is not required on the question of a credible basis, it follows that separate reasons are not required either. As the duty imposed on the tribunal by s. 69.1(11) of the Act to give written reasons in support of a decision against a refugee status claimant was met, all that is required is to ensure that the reasons fully support the conclusions of the decision in question, including if necessary the conclusion that a credible basis was lacking.
[10] In M.E.I. v. Mathiyabaranam (December 5, 1997), A-223-95, Linden J.A., for the Federal Court of Appeal, wrote:
[10] Any claimant is aware or should be aware of the risk of a no credible basis finding even without any additional notice being given about this potential outcome. A refugee claimant must realize that he or she must establish, as part of his or her claim, a credible basis for his or her claim. You cannot establish a claim for refugee status without first establishing a credible basis for that claim; the one is totally dependant [sic] upon and included in the other. I cannot image what a claimant, if given special notice, could possibly add to his or her case. All of the available evidence should already have been placed before the Board as part of the claim for refugee status.
[11] In Gomez v. M.C.I. (April 29, 1999), IMM-1826-98, at para. [7], I had occasion to say the following:
. . . counsel for the applicant argued for the first time that the Board erred in law "in failing to motivate its finding of no credible basis". This new argument is set aside on the ground that the Board's finding of no credible basis is supported by the same sufficient reasons given in the decision in support of its finding that the applicant is not a Convention refugee. The principle of this ground is consistent with the following comments made by Linden J.A., in Mathiayabaranam v. M.E.I. (1997), 221 N.R. 351, at page 354:
. . . a credible basis determination is inherent in the definition of Convention refugee. It does not place upon the claimant an evidentiary burden separate from or additional to the primary one imposed by the definition itself.
[12] Finally, in Barua v. M.C.I. (October 27, 2000), IMM-5146-99, I also wrote:
[7] Additionally, as the applicant's testimony was not found to be credible, the tribunal was entitled to conclude that the minimum basis for the claim was absent. In Sheikh v. M.E.I. (1990), 112 N.R. 61, the Federal Court of Appeal established that when such a tribunal finds that a claimant is not credible it may conclude that there is no credible evidence on the basis of which the claimant could be regarded as a refugee. Further, in M.E.I. v. Mathiyabaranam (December 5, 1997), A-223-95, the Federal Court of Appeal confirmed that this rule is valid for subsection 69.1(9.1) of the Act, concerning the question of the minimum basis.
[13] In Sheikh v. M.E.I., [1990] 3 C.F. 238, the Federal Court of Appeal per MacGuigan J.A., said at 244:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
(My emphasis.)
[14] The plaintiff's argument based on the lack of separate reasons for the finding that there was no credible basis is accordingly dismissed, on the ground that in the case at bar I am satisfied that this finding by the tribunal was supported by the same sufficient reasons given in the decision in support of the finding that the plaintiffs were not Convention refugees. As I said earlier, the assessment of the facts, and in particular of the plaintiff's credibility, made by the tribunal is backed up by the evidence.
[15] For all these reasons, the application for judicial review is dismissed.
|
YVON PINARD JUDGE |
OTTAWA, ONTARIO
March 30, 2001
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-1789-00
STYLE OF CAUSE: YASINA NIZEYIMANA ET AL. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 14, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: March 30, 2001
APPEARANCES:
Annie Bélanger FOR THE PLAINTIFF
Marie-Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Annie Bélanger FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada