Hitimana v. Canada (Minister of Citizenship and Immigration)

** Translation **

Between
Gustave Hitimana, plaintiff, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 298
2003 FCT 189
File IMM-5804-01

Federal Court of Canada – Trial Division
Montréal, Quebec
Pinard J.

Heard: January 9, 2003.
Judgment: February 21, 2003.
(10 paras.)

Aliens and immigration — Refugee protection, Convention refugees and persons in need of protection — Credible basis for claim — Appeals or judicial review, whether claim reasonable.

Application by Hitimana for judicial review of a determination by the Convention Refugee Determination Division (CRDD) that she was not a Convention refugee. Hitimana, a citizen of Rwanda, came to Canada in 2001. He claimed that he had witnessed the murder of his father and brother in the genocide of 1994. He was 14 years old at the time. He fled to Togo in 1997, where he found work. Despite Hitimana's arguments, the CRDD found that there were no compelling reasons to allow his application for refugee status. Hitimana argued that witnessing the turmoil in Rwanda in 1994 left him permanently psychologically scarred. The CRDD found that he would not have been able to successfully find and maintain employment during his years in Togo if this were the case. It found that Hitimana's fear of persecution was not well-founded.

HELD: Application dismissed. The existence of compelling reasons was an issue of fact. Here, the CRDD had considered the relevant evidence and made a determination which was supported by the evidence. It found that Hitimana had not suffered any permanent psychological damage as a result of his experience in Rwanda in 1994. The CRDD's decision was not patently unreasonable.

Statutes, Regulations and Rules Cited:

Immigration Act, R.S.C. 1985, c. I-2, s. 2(1), 2(3).

Counsel:

Eveline Fiset, for the applicant.
François Joyal, for the respondent.

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REASONS FOR ORDER
1 PINARD J.:— This is an application for judicial review from a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on November 22, 2001, that the plaintiff is not a Convention refugee, as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").

2 The plaintiff is originally from Rwanda and alleged that he had a valid fear of persecution on account of his membership in a particular social group, namely the family of a mixed couple.

3 At the time of the genocide in Rwanda in 1994 the plaintiff, who was then 12 years old, was a witness to the murder of his father and his brother and the disappearance of his mother. He then found refuge at his aunt's home. In 1995, however, she was arrested by the new Tutsi government, following a quarrel about her property. The plaintiff was being sought and was placed in a boarding school through a priest who was a friend of the family. In 1997 he had to leave for Togo, where he was looked after by a family. When the priest's financial assistance ended, he moved and rented a room somewhere else. He found work in the port of Lomé. Once the family with whom he lived in Togo learned that he could look after himself, they sent soldiers who with threats of imprisonment extracted from him money which they then shared with the family. In the meantime, the plaintiff made an application to the High Commissioner for Refugees, an application which was ruled inadmissible. During his work in the port of Lomé, the plaintiff got to know an alien smuggler with whose help he came to Canada in February 2001.

4 The plaintiff argued that the IRB made an unreasonable error in not considering the evidence and the [TRANSLATION] "compelling reasons" as a result of which he had a valid fear of persecution. The leading case on application of the relevant subsection of the Act, s. 2(3), is Canada (M.E.I.) v. Obstoj, [1992] 2 F.C. 739, in which the Federal Court of Appeal said the following, at 748:

On any reading of subsection 2(3) it must extend to anyone who has been recognized as a refugee at any time, even long after the date of the Convention. It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.

The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants.

5 This Court, per Rothstein J., considered the implications of Obstoj in Hassan v. Minister of Employment and Immigration (May 4, 1994), A-653-92, [1994] F.C.J. No. 630 (T.D.) (QL):

[10] Based on Obstoj, I do not think it is necessary for there to be a Convention refugee determination before subsection 2(3) may be applied. Subsection 2(3) may be applied, in an appropriate case, to the Convention refugee determination itself.

[11] I am satisfied, based on Obstoj, that in the case at bar, the Board erred in law by interpreting subsection 2(3) as requiring ongoing fear of persecution. Lest there be some concern that this interpretation of subsection 2(3) detracts from the normal requirement of applicants demonstrating ongoing fear of persecution, it should be recognized, as Hugessen J.A. pointed in Obstoj, that subsection 2(3) applies only to a tiny minority of present day claimants – those in a special and limited category who can demonstrate that they have suffered such appalling persecution, that their experience alone is a compelling reason not to return them to the country in which they suffered persecution. While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.

(My emphasis.)

6 Finally, in Shahid v. Minister of Citizenship and Immigration (February 15, 1995), IMM-6907-93, [1995] F.C.J. No. 251 (T.D.) (QL), Noël J., as he then was, indicated the procedure to be followed in determining whether an applicant can benefit from the protection of s. 2(3) of the Act:

[25] ... The Board, once it embarked upon the assessment of the applicant's claim under ss. 2(3), had the duty to consider the level of atrocity of the acts inflicted upon the applicant, the repercussions upon his physical and mental state, and determine whether this experience alone constituted a compelling reason not to return him to his country of origin.

7 The existence of "compelling reasons" in a given case is a question of fact (see Rasanayagam v. Minister of Citizenship and Immigration (July 25, 1995), A-816-91, A-817-91 and A-818-91 (T.D.)).

8 In the case at bar the IRB considered the fact that the plaintiff was 14 years old when his aunt was arrested in 1995, the fact that he did not see who took her away and that he was never identified by them, finding that the plaintiff had not shown that he had valid reasons to fear being persecuted if he was returned to his country. Moreover, the IRB considered that the plaintiff had shown he could stand on his own feet during his years in Togo and since he had been in Canada, and thought he had not proven that he suffered any psychological trauma as a result of his father's murder or the imprisonment of his aunt that could be a compelling reason not to return to Rwanda. Accordingly, the plaintiff did not establish that his past persecution had left any permanent psychological consequences of the level required for applying s. 2(3).

9 Although the plaintiff said he suffered a trauma as a result of the events in question, this assertion was not supported before the IRB, either by the plaintiff himself or by an expert witness. Since the plaintiff said he was adaptable and capable of functioning independently, I feel that it was not patently unreasonable to conclude that he was not suffering any psychological trauma that could be a compelling reason within the meaning of s. 2(3) of the Act (Gicu v. Minister of Citizenship and Immigration (March 5, 1999), IMM-2140-98, at para. 16).

10 For all these reasons, the application for judicial review is dismissed.

Certified true translation: Suzanne M. Gauthier, C. Tr., LL.L.