Date: 20040128
Docket: IMM-1067-03
Citation: 2004 FC 131
OTTAWA, ONTARIO, WEDNESDAY, JANUARY 28, 2004
PRESENT: THE HONOURABLE MR. JUSTICE FRANÇOIS LEMIEUX
BETWEEN:
JAMES RUKUNDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] James Rukundo (the "applicant"), a twenty-one year old citizen of Uganda, seeks to quash the February 3, 2003 decision of the Refugee Protection Division of the Immigration and Refugee Board (the "tribunal") which denied him refugee status.
[2] The applicant claimed as his agent of persecution the Ugandan authorities who want him because of his activities in the youth wing of the Reform Agenda, a political party opposed to the present government, in which his parents were prominent activitists: his father, a campaign manager, and his mother, the campaign agent for a candidate in the Parliamentary Elections set for June 2001.
[3] The tribunal did not believe the applicant's story which may be summarized as follows:
(1) In January 2001, his father was detained by government security agents;
(2) He and his mother continued their campaign activities;
(3) They were picked up by the authorities and along with others, blindfolded and gagged, driven to a spot out of town, dumped on the ground and beaten with the butt of guns;
(4) The unit commander ordered the applicant be left alone but his mother was taken away and has not been found since;
(5) He made his way to his home which he found ransacked and sought help from the campaign manager for his area, Anne Mugisha, where he remained for some time before going to his aunt's house where he learned that his father's body had been found;
(6) On the advice of Anne Mugisha he decided to flee; she and his aunt helped him change his identity from Jimmy Rukundo to James Rukundo obtaining a Ugandan passport in that name;
(7) He left Uganda on July 15, 2002 armed with a CVV enabling him to attend World Youth Day in Toronto. He made a refugee claim four days later in Ottawa.
[4] The tribunal based its credibility findings on three grounds. First, it did not believe the applicant had changed his name from Jimmy Rukundo to James Rukundo in order to slip by the Ugandan authorities at the airport. The tribunal came to this conclusion by examining the personal documentary evidence the applicant had submitted.
[5] Second, Anne Mugisha, who was also a candidate for election in June 2001, filed an affidavit which was entered into evidence before the tribunal. That affidavit referred to the applicant as James Rukundo. The tribunal found this affidavit wanting because of the lack of its specificity in that there was no mention of the death of the applicant's father, no mention of the disappearance of his mother and no reference to the applicant's abduction. The applicant, while recognizing the Mugisha affidavit was sparse, did not obtain a more detailed one from her because he felt she was too busy.
[6] Third, examining the documentary evidence emanating from human rights groups and noting the high profiles of the applicant's mother and father, the tribunal found it unreasonable that there be no mention of the father's death nor the mother's disappearance which lead it to conclude neither event happened.
[7] The tribunal's overall conclusion was the insufficiency of credible evidence to establish that on a balance of probabilities the applicant had a well-founded fear of persecution in Uganda based on his political opinion.
[8] The tribunal invoked another ground for denying him refugee status. It mentioned his delay in making a refugee claim. Counsel for the respondent agreed the tribunal erred in invoking this ground as valid reason for denying him refugee status.
[9] The case law of this court clearly establishes that credibility findings are findings of fact which can only be set aside by this court on the basis of section 18.1(4)(d) of the Federal Court Act which is a standard equivalent to the patently unreasonable standard.
[10] In terms of inferences, I need only refer to the Federal Court of Appeal's decision in Aguebor v. Minister of Employment and Immigration [1993] F.C.J. No. 732 at paragraph 4 where Justice Décary wrote:
¶ 4 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. In this case, the appellant has not discharged this burden.
[11] I also find it useful to state what the required approach to judicial review of findings of fact is as expressed by Justice L'Heureux-Dubé in Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997] 1 S.C.R. 793 at paragraph 85:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[12] The heart of the tribunal's decision is in its finding of insufficiency of credible evidence from the applicant to establish his well-founded fear of persecution at the hands of the Ugandan authorities and, in particular, the presidential guard.
[13] I reviewed the tribunal's findings against the certified tribunal record which contains the transcript, the applicant's personal identification exhibits and the country reports.
[14] That review leads me to conclude the evidence before the tribunal reasonably supported its credibility findings and the inferences it drew on the basis of that evidence.
[15] Notwithstanding the argument at the hearing before the tribunal the applicant testified the name Jimmy was on his ineligible birth certificate and counsel's submission his aunt had bribed the passport officer proves his real name was Jimmy, in my view, the evidence before the tribunal, was sufficient to enable it to conclude the applicant was known as James, that Jimmy and James are similar (which the applicant himself acknowledged, see Certified Transcript, page 369) and that the Ugandan security was not looking for him, a conclusion which is supported by other evidence such as the name James used when registering in May 2002 at his day school. (Certified Transcript, 369 ff.)
[16] No criticism can, in my view, be levelled at the tribunal's finding concerning the lack of specificity in Anne Mugisha's affidavit. The applicant himself appreciated that evidence was "thin" in detail (Certified Transcript, page 325).
[17] Counsel quoted parts of that affidavit and, in particular, the statement the applicant had been the subject of "personal attacks and harassment" and "anonymous threats". The tribunal found the affidavit did not corroborate the applicant's story. That finding, despite counsel's efforts to convince me otherwise, was open to the tribunal to make. I cannot interfere.
[18] The human rights reports filed in evidence are also sufficient to support the tribunal's finding that reference would have been made in these reports to the fact of his father's death and his mother's disappearance.
ORDER
This judicial review application is dismissed. No certified question was proposed.
« François Lemieux »
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1067-03
STYLE OF CAUSE: JAMES RUKUNDO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA
DATE OF HEARING: JANUARY 14, 2003
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: JANUARY 28, 2003
APPEARANCES:
Mr. Rezaur Rahman FOR APPLICANT
Ms. Catherine A. Lawrence FOR RESPONDENT
SOLICITORS OF RECORD:
REZAUR RAHMAN FOR APPLICANT
Barrister and Solicitor
Ottawa, Ontario
MORRIS ROSENBERG FOR RESPONDENT
Deputy Attorney General of Canada