Date: 20060814
Docket: IMM-6877-05
Citation: 2006 FC 965
Montréal, Quebec, the
14th day of August 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
HAMIDOU THIAW and
FATY MAMADOU NDIAYE
Applicants
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act) for judicial review of the decision of the
Immigration and Refugee Board, Refugee Protection Division (the Board), dated
October 21, 2005, determining that Hamidou Thiaw and his wife Faty Mamadou
Ndiaye (the applicants) were not Convention refugees or persons in need of
protection under sections 96 and 97 of the Act.
RELEVANT
FACTS
[2]
The
applicants are citizens of the Islamic Republic of Mauritania (Mauritania). Hamidou Thiaw (the
principal applicant) claims to be a member of the Fulani ethnic group. In
1989, at the time of the political events that caused millions of black
Africans to flee to Senegal, the applicant’s wife was forced to leave the
country. The principal applicant says that he had to travel to Senegal and
then to Gambia to see his wife and children, who were born outside Mauritania.
His wife returned to Mauritania in 1992.
[3]
The
principal applicant claims that on several occasions in 1987, 1991 and 1999, he
was arbitrarily arrested and was detained and beaten by the police because he
was suspected of being a member of the illegal organization Front de Libération
des Africains de Mauritanie (FLAM). In 1999, the principal applicant says, he
worked on a committee in the village where he was born, Niakwar, whose mission
it was to make representations to the authorities to assist citizens to recover
the goods and property belonging to them that had been confiscated in their
absence. The applicant says that he was arrested at a village meeting on May
27, 1999, and detained in prison for three months, succeeding in escaping on
August 16, 1999, and that he travelled to the capital, Nouakchott, where he
began his efforts to leave the country.
[4]
After
obtaining a new passport on August 29, 1999, and an American visa on September
6, 1999, the principal applicant left Mauritania on December 20, 1999, and went
to the United States. Because his visitor visa had expired, the principal
applicant had to leave the United States voluntarily. He then claimed refugee
status, in April 2000, and his claim was rejected a second time in 2004. His
wife had joined him in the United States on November 16, 2003. They came to
Canada together on December 20, 2004, and claimed the protection of Canada,
fearing for their safety and their lives if they were to return to their
country.
ISSUES
[5]
1. Did the
Board err when it found that the applicants had been victims of discrimination?
2. Did the Board err by failing to
analyze the applicants’ imputed political membership?
3. Did the Board err by failing to
analyze the female applicant’s situation?
4. Did the Board err when it found that
circumstances in Mauritania have changed?
5. Did the Board err by failing to have
regard to subsection 108(4) of the Act?
ANALYSIS
1. Did the Board err when it found that
the applicants had been victims of discrimination?
[6]
The
applicants submit that the Board erred in law when it characterized the acts
suffered by the applicants as discrimination, those acts having been in reality
persecution. The respondent argues that it was not unreasonable for the Board
to find that the applicants had suffered discrimination and not persecution.
[7]
In Koken v. Canada
(Minister of Citizenship and Immigration), 2005 FC 882, at
paragraph 15, Madam Justice Eleanor Dawson observed that the
identification of persecution is a question of mixed law and fact and the
applicable standard of review is reasonableness simpliciter:
The line between persecution and discrimination or
harassment may be difficult to establish in a particular circumstance. However,
the identification of persecution is a question of mixed fact and law. Where
the RPD proceeds “with a careful analysis of the evidence adduced and a proper
balancing of the various elements contained therein” the intervention of the
Court is not warranted unless the conclusion reached by the RPD is
unreasonable. See: Sagharichi v. Canada
(Minister of Employment and Immigration) (1993), 182
N.R. 398 (F.C.A.) at paragraph 3. As the identification of persecution is a
mixed question of fact and law, such a finding is reviewable on the standard of
reasonableness simpliciter. An unreasonable decision on this standard is
one that, “in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion on
the reasonableness standard must look to see whether any reasons support it”.
See: Canada(Director of Investigation and Research) v. Southam Inc.,
[1997] 1 S.C.R. 748 at paragraph 56.
[8]
After
hearing the applicants’ testimony and reviewing the documentary evidence
submitted, the Board found as followed in respect of persecution and
discrimination:
[TRANSLATION]
The panel heard the claimants’
testimony. Although it was ambiguous on some points, the panel agrees that the
principal claimant was discriminated against by the authorities of his country
because he is a member of a black African ethnic group, the Fulani.
…
According to the existing documentary
evidence, black African populations are in fact discriminated against in some
aspects of everyday life in Mauritania. However, the documentary evidence does
not report any persecution of those black African ethnic groups.
[9]
In
reviewing the transcript of the hearing and the decision of the Board, I am of
the opinion that the Board’s finding is not unreasonable.
[10]
The
applicants assert that during the hearing the Board expressly acknowledged that
the principal applicant had been persecuted. The applicants quote a passage
from what was said by the Board: [TRANSLATION] “the panel is satisfied that
Mr. Thiaw experienced what he experienced; I think it is not necessary to
revisit that, but I would like to hear you on the danger of
returning … .”
[11]
In
rereading the hearing transcript, I do not agree with the applicants’
argument. Neither the transcript nor the decision says that the Board
acknowledged that the principal applicant had been persecuted.
2. Did the Board err by failing to
analyze the applicants’ imputed political membership?
[12]
The
applicants assert that the board erred by basing its analysis solely on the
applicants’ black African ethnicity. The political membership imputed to the
applicants should also have been analyzed by the Board.
[13]
I do not
agree with the applicants’ argument. On the question of political membership,
the Board said:
[TRANSLATION]
The claimant made no argument that was
credible and trustworthy, based either on his ethnic group or on imputed
sympathies with the FLAM, which has now become a party that advocates political
dialogue and not armed confrontation, to show that he would be in danger if he
were to return to his country.
[14]
The Board
plainly addressed the question of political membership. I am of the opinion
that the Board did not err in analyzing this issue.
3.
Did the Board err by failing to analyze the female applicant’s situation?
[15]
The
applicants submit that the Board erred because it failed to analyze the
experiences of the female applicant, Faty Ndiaye. The applicants state that in
its reasons, the Board made no reference to the sexual assaults and persecution
that she suffered. As well, the applicants assert that the Board had an
obligation to determine the question of the risk to which she would be subject
if she returned to her country.
[16]
The female
applicant must establish a nexus between the harm she fears and one of the
grounds set out in the Convention. In this case, the principal applicant’s
claim was based on fear of persecution based on his imputed political opinion.
The female applicant’s claim was based on her membership in a particular social
group: her husband’s family.
[17]
The Board
found that the principal applicant had suffered discrimination and not persecution
by reason of his imputed political opinion and his membership in the Fulani
group. I am of the opinion that the Board had regard to the female applicant’s
experiences when it determined the principal applicant’s claim. That is,
because the principal applicant’s claim was unfounded, the female applicant’s
claim was also unfounded. In addition, I find that the Board did in fact
examine all of the evidence. It focused on the main issue and, after assessing
the evidence, it made a decision. The Board did not refer to each of the
alleged incidents in its reasons, but I do not believe that it had to do so, as
long as it is clear that it analyzed the essential events. The fact that the
Board did not refer to the incidents relating to the sexual assaults alleged by
the female applicant and the risks to which she would have been subject if she
returned to her country does not show that the Board’s finding is arbitrary or
unreasonable.
4.
Did the Board err when it found that circumstances in Mauritania have changed?
[18]
The
applicants assert that the Board erred when it found that circumstances in
Mauritania have changed. The applicants argue that the Board had no valid
basis for finding that circumstances had changed, particularly given the fact
that the coup d’état that supposedly changed the circumstances in Mauritania
took place on August 2, 2005, and the applicants’ hearing was held on October
13, 2005, only two months later.
[19]
In Fernandopulle
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 91, at paragraphs 22 and 23, the
Court of Appeal held that the determination of changes in the circumstances in
a country is a question of fact:
The same point is made in Yusuf v. Canada (M.E.I.) (1995), 179
N.R. 11 (F.C.A.), per Hugessen J.A., speaking for the Court at paragraph 2:
We would add that the issue of so-called “changed-circumstances” seems
to be in danger of being elevated, wrongly in our view, into a question of law
when it is, at bottom, simply one of fact. A change in the political situation
in a claimant's country of origin is only relevant if it may help in
determining whether or not there is, at the date of the hearing, a reasonable
and objectively foreseeable possibility that the claimant will be persecuted in
the event of return there. That is an issue for factual determination and there
is no separate legal “test” by which any alleged change in circumstances must
be measured. The use of words such as “meaningful”, “effective” or “durable” is
only helpful if one keeps clearly in mind that the only question, and therefore
the only test, is that derived from the definition of Convention Refugee in s.
2 of the Act: does the claimant now have a well-founded fear of persecution?
Since there was in this case evidence to support the Board's negative finding
on this issue, we would not intervene.
The principle established by these cases is correctly summarized as
follows in paragraph 10 of the reasons of the judge in this case:
I agree with the Respondent that past
persecution is insufficient of itself to establish a fear of future
persecution, although such persecution is capable of forming the foundation for
present fear. With respect to the impact of changed country conditions, the Federal Court of Appeal has
indicated that there is no separate legal test to be applied when considering a
Convention refugee claim where there has been a change in country conditions in
an applicant's country of origin, and that the only issue to be determined is
the factual question of whether, at the time of the hearing of the claim, there
is a well-founded fear of persecution in the event of return (Yusuf v. Canada
(M.E.I.) (1995), 179 N.R. 111 at p. 12 (F.C.A.). ...
[20]
There
is a presumption that the panel considered all the evidence before it (Taher
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1433).
Based on the documentary evidence, the Board noted the following facts:
[TRANSLATION]
During the 1990s, under pressure from the
international community, Mauritania apparently made efforts to institute a
multi-party system and free elections. Some 15 political parties were
recognized, and three of them apparently ran candidates in the November 2003
presidential election.
…
As well, a number of political movements were
established during the 90s to challenge government policy and support the cause
of black Africans, the most representative of those movements being FLAM (Force
de Libération Africaine de Mauritanie). However, according to the documentary
evidence, that movement gradually abandoned armed struggle in favour of
achieving a peaceful political solution modeled on the Belgian, Canadian or
South African approach.
…
In August 2004, the regime of President Ould Sid
Ahmed Taya was overthrown in a bloodless coup d’état led by Ely Ould Mohamed
Vall. According to the documentary evidence filed by the claimant, despite the
fact that the new president had taken power by force, he stated that he wanted
Mauritania to have a democratically elected government in 2007. However, Mr.
Ely Vall is quoted as having declared a general amnesty, covering all
participants in the 2003 coup d’état who had been imprisoned and charged with
treason by his predecessor, Mr. Taya. Numerous political prisoners jailed by
the former regime were released “in a spirit of tolerance and reconciliation”.
…
The panel is of the opinion that despite the short
time the government has been in power, there seems to have been a significant
change in circumstances.
[21]
The Board
assessed the evidence and found that there had been a change in the political
situation in the applicants’ country of origin. The Board found that this
change showed that at the time of the hearing there was no reasonable and
objectively foreseeable possibility that the applicants would be persecuted if they
were to return to their country. In my opinion, intervention by this Court to
disturb that finding is not warranted.
5.
Did the Board err by failing to have regard to subsection 108(4) of the Act?
[22]
The
applicants assert that the Board erred by failing to have regard to subsection
108(4) of the Act and the fact that there were compelling reasons in their
case. Paragraph 108(1)(e) of the Act provides that a claim for refugee
protection shall be rejected and a person is not a Convention refugee or a person
in need of protection where the reasons for which the person sought refugee
protection have ceased to exist. Subsection 108(4) provides that paragraph
108(1)(e) does not apply, however, to a person who establishes that
there are compelling reasons arising out of previous persecution, torture,
treatment or punishment for refusing to avail themselves of the protection of
the country which they left, or outside of which they remained, due to such
previous persecution, torture, treatment or punishment (Naivelt v. Canada
(Minister of Citizenship and Immigration), 2004 FC
1261, at paragraph 35).
[23]
In Brovina v.
Canada (Minister of Citizenship and Immigration), 2004 FC 635,
at paragraph 5, Madam Justice Carolyn Layden-Stevenson stated, in reference to the compelling
reasons analysis:
For the board to embark on a compelling reasons analysis, it must first
find that there was a valid refugee (or protected person) claim and that the
reasons for the claim have ceased to exist (due to changed country conditions).
It is only then that the Board should consider whether the nature of the
claimant's experiences in the former country were so appalling that he or she
should not be expected to return and put himself or herself under the
protection of that state.
[24]
The
applicants argue that because of the appalling persecution they suffered, the
Board had to consider whether there were compelling reasons for them not to
return to Mauritania. Notwithstanding the discrimination the applicants
suffered, I am not persuaded that the Board had to consider the compelling
reasons exception. In this case, there was no finding that persecution
occurred in the past. Where there is no finding of past persecution,
subsection 108(4) cannot be triggered (Kudar v. Canada (Minister of Citizenship
and Immigration), 2004 FC 648).
[25]
For all
these reasons, I find that the applicants have not satisfied me that
intervention by this Court is warranted.
[26]
The
parties submitted no question for certification.
JUDGMENT
- The application for judicial review
is dismissed;
- No question will be certified.
“Pierre Blais”
Certified true
translation
Brian McCordick,
Translator
Email this Content