Munderere et al. v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Décary, Létourneau and Nadon, JJ.A.
• Citation: (2008), 377 N.R. 259 (FCA),2008 FCA 84
• Date: 10 January 2008
• Subject Matter: IMMIGRATION AND REFUGEE

Munderere v. Can. (M.C.I.) (2008), 377 N.R. 259 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. MY.013

The Minister of Citizenship and Immigration (appellant) v. Bagambake Eugene Munderere, Judith Rango, Cynthia Munderere Merekatete, Eunice Munderere Ingabire, Sarah Munderere Mugeni (respondents)

(A-211-07; 2008 FCA 84)

Indexed As: Munderere et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Décary, Létourneau and Nadon, JJ.A.

March 5, 2008.

Summary:

Munderere, his wife and family (the applicants), claimed refugee status, alleging that by reason of their Tutsi ethnicity, they would be at risk of persecution in both the Democratic Republic of Congo (DRC) and in Rwanda, countries of which they were citizens. The Immigration and Refugee Board, Refugee Protection Division (board), held that they would face persecution in the DRC, but not in Rwanda, therefore their refugee claim was dismissed. The applicants applied for judicial review.

The Federal Court, in a decision reported [2007] F.T.R. Uned. 204, allowed the application. While acknowledging that in normal circumstances the board did not have an obligation to consider the cumulative effect of fear of persecution arising from incidents occurring in two different countries, the court, relying in part on s. 53 of the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), concluded that in the exceptional circumstances of this case, the board ought to have considered the cumulative impact of events of persecution which had occurred in both countries. The Minister of Citizenship and Immigration appealed. The following question was certified:

"Considering section 53 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, and in particular the last sentence of that paragraph, 'This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context', is it an error in law to limit the analysis of the cumulative grounds to the events that occurred within one country of nationality or habitual residence, when the claimant alleges persecution on the basis of the same Convention ground in the two (or more) countries, and where the claimant's subject fear is related to events that occurred in more than one country?"

The Federal Court of Appeal allowed the appeal, set aside the decision of the Federal Court and dismissed the judicial review application. The court answered the certified question as follows:

"NO, except where the events which occur in a country other than that in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution."

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Cumulative effect of incidents doctrine - Munderere and his family (the applicants), claimed refugee status, alleging that because of their Tutsi ethnicity, they would be at risk of persecution in both the Democratic Republic of Congo (DRC) and in Rwanda, countries of which they were citizens - The Immigration and Refugee Board, Immigration and Refugee Protection Division (board), held that they would face persecution in the DRC, but not in Rwanda, therefore their refugee claim was dismissed - The applicants applied for judicial review - The Federal Court allowed the application, holding that the board should have considered the cumulative effect of incidents that occurred both in DRC and Rwanda, when examining the applicants' claim for refugee protection with respect to Rwanda - The Minister of Citizenship and Immigration appealed - The Federal Court of Appeal allowed the appeal - The court held that the question of whether the board was required to consider the cumulative effect of incidents that occurred both in the DRC and in Rwanda was a question of law, to be determined on a standard of correctness - The court held that the Federal Court judge erred in his application of the cumulative grounds of persecution principle - His conclusion was inconsistent with the general legal principles governing the interpretation and application of the definition of "Convention refugee" - There was no basis whatsoever for the conclusion that the events which occurred in the DRC ought to have been considered by the board in regard to the applicants' claim of a well-founded fear of persecution should they return to Rwanda - See paragraphs 32 to 52.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Cumulative effect of incidents doctrine - The following question was certified for appellate consideration: "Considering section 53 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, and in particular the last sentence of that paragraph, 'This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context', is it an error in law to limit the analysis of the cumulative grounds to the events that occurred within one country of nationality or habitual residence, when the claimant alleges persecution on the basis of the same Convention ground in the two (or more) countries, and where the claimant's subject fear is related to events that occurred in more than one country?" - The Federal Court of Appeal answered the question as follows: "NO, except where the events which occur in a country other than that in respect of which a claimant seeks refugee status are relevant to the determination of whether the country where a claimant seeks refugee status can protect him or her from persecution." - See paragraph 52.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - [See first Aliens - Topic 1334 ].

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - Munderere and his family (the applicants), claimed refugee status, alleging that by reason of their Tutsi ethnicity, they would be at risk of persecution in both the Democratic Republic of Congo (DRC) and in Rwanda, countries of which they were citizens - The Immigration and Refugee Board, Refugee Protection Division (board), held that they would face persecution in the DRC, but not in Rwanda, therefore their refugee claim was dismissed - The board noted that there was a grenade incident in Rwanda, but that it was an isolated incident and Munderere was not being personally targeted - The applicants applied for judicial review - The Federal Court allowed the application - The Minister of Citizenship and Immigration appealed, arguing that the Federal Court judge erred in law in intervening with respect to the board's factual determination respecting the grenade incident and the applicants' alleged fear of being forced to return to DRC by the President of Rwanda - The Federal Court of Appeal held that the judge erred in law in intervening in the board's factual determinations where the board's findings were not patently unreasonable - See paragraphs 23 to 31.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See first Aliens - Topic 1322 ].

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - [See first Aliens - Topic 1322 and first Aliens - Topic 1334 ].

Cases Noticed:

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 34].

Retnem and Rajkumaar v. Minister of Employment and Immigration (1991), 132 N.R. 53; 13 Imm. L.R.(2d) 317 (F.C.A.), refd to. [para. 40].

Mete v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 515; 46 Imm. L.R.(3d) 232; 2005 FC 840, refd to. [para. 41].

Oyarzo v. Minister of Employment and Immigration, [1982] 2 F.C. 779 (F.C.A.), refd to. [para. 43].

Madelat v. Minister of Employment and Immigration (1991), 179 N.R. 94 (F.C.A.), refd to. [para. 43].

Bursuc v. Canada (Minister of Citizenship and Immigration) (2002), 223 F.T.R. 155; 2002 FCT 957 (T.D.), refd to. [para. 43].

Toli v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 205; 2002 FCT 334, refd to. [para. 43].

Canagasuriam v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 285 (T.D.), refd to. [para. 43].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96, sect. 97 [para. 33].

Authors and Works Noticed:

Amnesty International, Report on Democratic Republic of Congo, North-Kivu: Civilians pay the price for political and military rivalry (2005), generally [para. 9 et seq.].

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1979), s. 53 [para. 11].

Counsel:

François Joyal, for the appellant;

Jared Will, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Jared Will, Montreal, Quebec, for the respondent.

This appeal was heard in Montreal, Quebec, on January 10, 2008, before Décary, Létourneau and Nadon, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court, by Nadon, J.A., in Ottawa, Ontario, on March 5, 2008.