Date: 20010419
Docket: IMM-3691-00
Neutral citation 2001 FCT 352
BETWEEN:
GILBERTHE UWAJENEZA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
A. INTRODUCTION
[1] Gilberthe Uwajeneza (the "applicant") is a twenty-one year old citizen of Rwanda and a Tutsi by ethnicity. She fled Rwanda on December 26, 1999, was in Uganda until January 14, 2000, stayed in Kenya for three days, flew to Belgium and the United States where she arrived on January 18, 2000.
[2] She came to Canada on January 22, 2000 and made a refugee claim based on her ethnicity and membership in a particular social group, namely, a bank teller who witnessed three attacks by Hutus on the bank where she worked.
[3] The Refugee Division of the Immigration and Refugee Board (the "tribunal") dismissed her claim on June 21, 2000. The applicant was granted leave to seek judicial review.
B. THE TRIBUNAL'S DECISION
[4] The tribunal stated the principal question in this case Is whether the applicant had established there was a reasonable possibility she would be persecuted because she was a Tutsi and had witnessed the attacks on the bank.
[5] The tribunal relied on the Federal Court of Appeal's decision in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, as the basis for this criteria. I add that Adjei, supra, was endorsed by the Supreme Court of Canada in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at 659, with Justice Major equating "reasonable possibility" to "serious possibility".
[6] The tribunal concluded no such reasonable or serious possibility existed.
[7] It relied on:
(1) documentary evidence (U.S. DOS, February 25, 2000 and Human Rights Watch Reports) for a finding that, in 1999, the Rwandan Army was controlling the Interahamwes (the Hutu militants) in the country's northwest where the applicant had worked in the bank;
(2) an I.R.B. request for information in this case which mentioned a December 23, 1999 attack in Matura but not on a bank which raised doubts as to the applicant's credibility;
(3) her testimony her immediate family was residing in the country's capital of Kigali where they were working and studying;
(4) while Tutsis are a minority in Rwanda, the evidence does not show wholesale persecution generally, nor the specific targeting of her family by Hutus. The tribunal found her immediate family had survived unscathed the ravages of the 1994 genocide, albeit by the payment of bribes.
[8] The tribunal invoked a second ground for rejecting her claim. The tribunal pointed to the fact she had not claimed refugee status when in Uganda, Kenya, Belgium or the United States and this failure affected significantly its evaluation of these objective elements of her well-founded fear of persecution.
C. THE GROUNDS ADVANCED BY THE APPLICANT
[9] The applicant advances three grounds justifying this court's intervention:
(1) the tribunal did not address the applicant's post-hearing submissions;
(2) the tribunal's findings that the family was not targeted was clearly wrong; and
(3) the tribunal's finding of failure to make a refugee claim in the various countries she was in before coming to Canada was a major reason for refusing the claim and was not consistent with the case law.
D. ANALYSIS
[10] On June 8, 2000, the applicant's solicitor, Anthony Kako, wrote the following letter to the tribunal:
In addition to the submissions I made at the conclusion of the hearing on May 29, 2000, I wish to add some additional comments at this time. It has just come to my attention that the Board's policy with respect to Rwandan refugee claims is the following:
"La preuve documentaire indique que les survivants des familles du génocide de 1994, risquent d'être ciblés par la milice Hutu parce que ces derniers craignent qu'on les dénonce. À la lumière de la preuve documentaire, le tribunal est d'avis que particulièrement ceux ou celles qui habitaient le Rwanda avec leur famille et qui ont survécu le génocide de 1994 risquent la persécution ethnique.
Ms. Uwajeneza clearly satisfies this condition. She was present, with her family, during the April 1994 genocide in Rwanda. Indeed, she has documents ("bulletins scolaires" - annexed to her PIF), to prove this fact.
As such, you must find that there is a reasonable chance that she will be persecuted as a member of the particular social group that you have defined. You must determine her to be a Convention refugee, based on this ground alone. [emphasis mine]
[11] Mr. Kako in an affidavit in support of this application for judicial review said the quote he referred to in his June 8, 2000 submission was an extract from a recent decision of the Refugee Division concerning a Tutsi from Rwanda, a decision rendered by a panel member who also sat on the applicant's case.
[12] The decision referred to in Mr. Kako's letter states the documentary evidence indicates survivors of families of the 1994 genocide risk being targeted by Hutu militia because the latter fear that they will be denounced.
[13] An appreciation of the factual foundation for the applicant's first point is linked to her second point where she challenges a tribunal finding of fact to the following effect:
La preuve de la revendicatrice n'indique pas que sa famille (qui est de l'ethnie Tutsi) a été ciblée par les interahamwes.
[14] The sentence which the applicant says is clearly wrong is found in the following paragraph at page 3 of the tribunal's decision:
À la lumière de la preuve documentaire et de la preuve de la revendicatrice, le tribunal est d'avis qu'il n'existe pas de possibilité raisonnable que la revendicatrice soit persécutée au Rwanda en raison de son ethnie, particulièrement à Kigali où sa famille réside, étudie et travaille. La preuve de la revendicatrice n'indique pas que sa famille (qui est de l'ethnie Tutsi) a été ciblée par les interahamwes. Sa famille réside la capitale, travaille et sont aux études sans difficulté. Le tribunal est d'avis que sa crainte de persécution à l'égard des interahamwes n'est pas bien fondée. Si ces attaques sont survenues, le tribunal est d'avis que la preuve n'indique pas que les assaillants sont intéressés à la revendicatrice. Il est exact que les Rwandais de l'ethnie Tutsi sont minoritaires au Rwanda, cependant la preuve n'établit pas que tous les Rwandais de l'ethnie Tutsi ont une crainte bien fondée en raison de leur ethnie. Des milliers de l'ethnie Tutsi vivent, particulièrement à Kigali, et ne sont pas persécutés uniquement en raison de leur ethnie.
Considérant que la famille de la revendicatrice réside à Kigali et qu'aucun élément de la preuve indique qu'ils ont des difficultés soit en raison de leur ethnie (Tutsi), le tribunal est d'avis qu'il est raisonnable de dire que la revendicatrice peut vivre sans crainte de persécution par les interahamwes, et ceci même si elle avait déjà travaillé dans une banque où des interahamwes auraient dévalisé. La crainte n'est pas bien fondée. [emphasis mine]
[15] In her PIF, the applicant states her mother and father reside in Kigali as do her two sisters and one brother; the other brother is in France.
[16] She also indicated that in 1990, her father had been transferred to Kigali by the Department of Education. She recites after the Rwandan President's death in 1994, the Interahamwes frequently came to their house but always went away without harming them after her father gave them bribes which he continued to do until the Tutsi Army, which had invaded the country successfully, gained control of the country.
[17] She also recites in her PIF that after the Hutu militants had attacked three times the bank in Gisenyi where she worked which is located in the north of Rwanda near the border of the Republic of Congo ex Zaire, the militants invaded the country from there and killed 30 people leaving leaflets saying they would attack south of Kigali during the Christmas holidays. That is when she left Rwanda.
[18] The transcript of her hearing corroborates what she had written in her PIF.
[19] I see no merits in the first two points raised by the applicant which are linked, as noted. In my view, there is no factual foundation for the applicant's first ground of attack, namely, the failure of the tribunal to deal with her post-hearing submission and specifically to address a previous panel member decision which the applicant says is inconsistent with the result in her case.
[20] Even assuming the applicant was correct in stating the tribunal had a legal obligation to deal with inconsistent decisions, I find no inconsistency between the decision referred in Mr. Kako's June 8, 2000, post-hearing submission and the decision rendered in this case. The Refugee Division's decision referred to in Mr. Kako's submission spoke about survivors of the 1994 genocide; the applicant led no evidence her family were survivors of the 1994 genocide. None were killed, injured or tortured.
[21] In the decision Mr. Kako referred to, the Refugee Division panel pointed to a reasonable possibility of persecution by being targeted by Hutu militants because they feared they would be identified by the witnesses of the atrocities. In the decision which is subject to these judicial review proceedings, on the contrary, the tribunal made a finding of fact the family had not been targeted in the past and now, a finding which was reasonably open to it.
[22] As to the third point raised by the applicant, a reading of the tribunal's decision indicates, in my view, it was a separate alternative finding which I need not deal with given the tribunal's main finding cannot be disturbed.
E. CONCLUSIONS
[23] For all of these reasons, this judicial review application is dismissed.
[24] The applicant proposed two questions for certification. I decline to certify those questions as they do not fairly arise from these reasons.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 19, 2001