Date: 20050617
Docket: IMM-2442-04
Citation: 2005 FC 862
BETWEEN:
JEANNINE UZAMUKUNDA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review against a decision by the Refugee Protection Division (RPD), dated February 19, 2004. According to that decision, the applicant is not a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA).
[2] The applicant is a citizen of the Republic of Rwanda.
[3] She was allegedly raped by a soldier, Djamali Munyaneza, on February 22, 2003, at a friend's wedding. The applicant explained that it was the second time that she had been raped since she had been raped in 1994 during the Rwandan genocide.
[4] The applicant filed a report with the military prosecutor's office and her rapist was imprisoned. Then, the applicant claims that she received a visit from her rapist's uncle, who threatened her and advised her to withdraw her complaint. Afterwards, the applicant received telephone calls from callers who falsely identified themselves. According to the applicant, the calls came from family members of the rapist's family and co-workers.
[5] The applicant filed another report and she was asked to provide the phone numbers corresponding to those calls. After investigating, it was discovered that the calls came from public telephones, therefore the military prosecutor's office was powerless.
[6] On May 9, 2003, the applicant left her country for Canada, where she claimed refugee protection 10 days later.
[7] First of all, the RPD stated that it was satisfied with regard to the applicant's identity. However, it determined that the applicant was not credible and that "her testimony was not trustworthy with respect to the essential elements of her claim".
[8] According to the RPD, the applicant gave vague, confusing testimony regarding the report she had filed after she was attacked. Further, the applicant tried to evade the question when asked how the people at the military prosecutor's office had been dressed.
[9] The applicant submitted a letter from the doctor who saw her after her attack and who states that the applicant had been "sent by the police for a rape report". In the RPD's opinion, this report had no probative value since it looked homemade, did not determine whether there had been a rape or not, and the applicant's explanations to the effect that the police and not the military sent her to the doctor were not credible. The RPD did not accept the applicant's explanations: it is not plausible that the applicant would mix up the police with the military because she is educated and through her work she has contact with customs officers who are officers of the State.
[10] Finally, the RPD explains that the applicant had the name of at least one of the people threatening her and that she had to contact the police force of her country if she was not satisfied with the way that the military was dealing with her complaint.
[11] First, the applicant claims that the RPD erred in rejecting the medical certificate. She explains that the country does not have the technological tools of Western countries and that the document could appear homemade to a Canadian official; also, the judge should have submitted that document to the RCMP laboratory. Further, the authenticity of the document was not impugned during the hearing which amounts to a breach of the principles of natural justice.
[12] With respect to the RPD's findings regarding the alleged confusion between the military and the police, the applicant explains that the proceedings against soldiers are carried out through the military prosecutor's office, which is the military police.
[13] Also, the applicant contends that the RPD's criticism regarding her presumed knowledge of the procedures to follow cannot be accepted, and nor can the fact that the work would give her that knowledge.
[14] Moreover, in the applicant's opinion, the RPD was not at all sensitive to the fact that the applicant is a [translation] "genocide survivor".
[15] Finally, the applicant argued that her testimony was not evasive and that the RPD's inferences are based on theories that are not supported by the evidence.
[16] Essentially, the respondent states that the applicant did not meet her burden of establishing that the decision was patently unreasonable and states that nothing in the record supports her statements.
[17] As for the authenticity of the medical certificate, the respondent is of the opinion that the RPD, when it has enough evidence to doubt the credibility of a document, need not proceed to have it verified.
[18] Finally, the respondent explains that since the applicant did not dispute the RPD's determination to the effect that her behaviour was not compatible with a person fearing persecution, that finding must be assumed to be true.
[19] In his supplementary memorandum, the respondent claims that it was reasonable for the RPD to consider that the applicant adjusted her testimony when she was explaining the differences between the police and the military prosecutor. Further, the respondent added that it was reasonable to determine that the applicant should have filed a report with the police.
[20] First, it is important to point out that the standard of review to apply with regard to the assessment of credibility is the standard of patent unreasonableness. It is well established that such an assessment is the jurisdiction of the RPD. The Federal Court's decision in RKL (RKL v. Canada (MCI), [2003 F.C.J. No. 162, Trial Division) sets out the relevant principles in this respect and explains that:
Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was 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 Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
(Paragraph 8)
[21] However, that same decision points out that the RPD must not base its findings on extensive "microscopic" examination of issues irrelevant or peripheral to the claim (paragraph 11).
[22] After a careful review of the transcripts, I note that the RPD made certain inferences which could not be supported by the evidence in the record. First, the RPD described the applicant's testimony with respect to the complaint against her attacker as being vague and confused. However, nothing of the sort is apparent in the transcripts. Rather, the applicant was direct in answering the questions.
[23] The RPD states that the applicant had tried to evade the question on several occasions when being questioned about the attire of the personnel from the military prosecutor's office. According to the transcripts, the RPD seemed to have difficulty in formulating its questions more clearly, so the applicant was not evading the questions, indeed she was trying to answer them adequately (pages 118-120 of the tribunal record). In my opinion, it was unreasonable to make a negative finding regarding the applicant's credibility, with respect to evidence that was by and large accessory.
[24] The RPD dismisses the applicant's credibility and describes it "as devoid of all credibility". To support that finding, it explains that the applicant is educated and that since, through her work, she is in contact with customs officers who are officers of the State, it would not be plausible that she would confuse the military and the police. Such a finding is patently unreasonable. In fact, the applicant clearly explains that she was working for a private business, with no ties to the State and that, sometimes, she dealt with customs officers (page 132-133 of the tribunal record). The fact that she could meet customs officers through her work does not entitle the RPD to infer that she therefore knew how the State operated and the reporting procedures.
[25] In my opinion, the RPD's decision is patently unreasonable and there are no grounds for describing the applicant's testimony as lacking credibility.
[26] Accordingly, the application for judicial review is allowed and the applicant's file will be referred to the RPD for reassessment before another officer.
"Paul U.C. Rouleau"
Judge
OTTAWA, Ontario
June 17, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2442-04
STYLE OF CAUSE: JEANNINE UZAMUKUNDA v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 5, 2005
REASONS: The Honourable Mr. Justice Rouleau
DATE OF REASONS: June 17, 2005
APPEARANCES:
Adèle Mardoche FOR THE APPLICANT
Louise-Marie Courtemanche FOR THE RESPONDENT
SOLICITORS OF RECORD:
2-3557 Hutchison FOR THE APPLICANT
Montréal, Quebec
H2X 2G9
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada