Date: 20061124
Docket: IMM-7440-05
Citation: 2006 FC 1407
Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ABDUL
MUMUNI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review
of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (the Board), dated September 30, 2005, which determined that the
applicant was neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks an order setting aside the Board’s decision and remitting the
matter for re-determination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Abdul Mumuni, is a citizen of the Ivory Coast and
long-time resident of Ghana. He alleged having a well-founded fear of
persecution for two reasons. First, the applicant alleged that he faced
persecution by unidentified persons in the Ivory Coast on the grounds of
membership in a particular social group, namely as a foreigner. The applicant
also claimed to fear persecution by the Chonbulu people in Ghana, due to his
membership in the Hausa tribe.
[4]
The
applicant’s father was a citizen of the Ivory Coast and his mother was from Ghana. The
applicant and his family lived in Napie, Ivory Coast, until his
parents divorced in 1983. At the age of seven, the applicant went to live in Ghana with his
mother. His father continued to live in Napie and later remarried.
[5]
In
the narrative section of his personal information form (PIF), the applicant
stated that in 2000 he joined his father in the Ivory Coast for a few days, and
then returned to Ghana. In October 2004, the applicant went to the Ivory Coast in order to
live with his father. His father was ninety years old when he and his wife were
killed by unidentified persons in November 2004. The applicant stated that his
father was killed because he was perceived by locals as a foreigner. The
applicant stated that he immediately fled the Ivory Coast since he was
also perceived as a foreigner and feared for his life.
[6]
The
applicant returned to Kwame Danso, Ghana and stated
that he had problems with the Chonbulu people while living in there. The
applicant explained that he was a member of the Hausa tribe and that the
Chonbulu constitute the majority of the population in Kwame Danso. The
applicant stated that the Chonbulu treated the Hausa badly and that he feared
being killed by them because of his brother’s activism. The applicant claimed
that the Chonbulu came to his house seeking to kill his family but that they
escaped. The applicant stated that the Ghanaian police support the Chonbulu and
would not protect him.
[7]
The
applicant claimed refugee protection when he arrived in Toronto on December
19, 2004. The applicant’s refugee claim was heard on August 5, 2005. By
decision dated September 30, 2005, the Board rejected the applicant’s claim on the
basis that there was no objective basis established by the documentary evidence
to support the applicant’s claim of having a well-founded fear of persecution. The
Board also found that there was insufficient evidence that the applicant would
be subjected to a danger of torture, risk to his life or cruel and unusual
treatment if returned to the Ivory Coast. The Board held that the applicant was thus
neither a Convention refugee nor a person in need of protection. This is the
judicial review of the Board’s decision.
Reasons for the Board’s
Decision
[8]
The
Board first noted the applicant’s family background. The Board was satisfied as
to the claimant’s identity and found that he was both a citizen of the Ivory
Coast and a habitual resident of Ghana. The Board found that
the primary issue to be resolved was the objective basis of the applicant’s
fear of returning to the Ivory Coast and its related
credibility concerns.
[9]
The
Board did not find it credible that the applicant’s father would have been
considered a foreigner by his fellow citizens and targeted for that reason. The
Board found it implausible that the applicant’s father was treated as a
foreigner for having married a Ghanaian national since he and his first wife
had lived in the Ivory Coast for eight years without a problem. The
applicant’s father later remarried a woman from the Ivory Coast, and the
Board inferred that their community would not have regarded them as foreigners.
The Board concluded that since the locals had not subjected the applicant’s
father to prejudice during his life, they would not have killed him in his
ninetieth year. The panel accepted that the applicant’s father died in
November 2004 but rejected the manner of death as lacking credibility.
[10]
The
Board noted that the applicant had not submitted objective evidence showing
that people in situations similar to that of his father were treated badly due
to their perception as foreigners. The Board noted that the applicant could
have obtained information about his father’s treatment from Baba; a friend of
his father’s who still resided in Napie. The Board surmised that it was
reasonable that Baba would be aware of any prejudicial treatment of the
applicant’s father.
[11]
The
applicant spent a few days in the Ivory Coast with his father in 2000 but did
not testify that he had encountered any problems there, only that he felt
conspicuous as a foreigner due to his limited ability to speak the country’s
main languages. The Board inferred that the applicant’s return to Ghana was a
personal choice motivated by the advantage of having greater control over his circumstances.
The Board found that following his return to the Ivory Coast in October
2004, the applicant had not experienced prejudicial treatment from the
community that would indicate that people perceived him as an outsider. There
was evidence that the applicant was assisted by Baba in opening his tailor shop
and had a professional card which described him as a tailor domiciled in Napie.
[12]
The
Board found it unreasonable that the applicant had not determined who killed
his father and therefore did not accept evidence related to his death as
credible. The Board found the applicant’s inability to identify the feared
agents of persecution to be consistent with the absence of documented reports
of foreigners being targeted in the Ivory Coast. The Board drew a
negative credibility inference from the lack of identification of the agents of
persecution. In addition, the Board did not find any objective evidence that
supported the applicant’s fear of being mistreated as a foreigner.
[13]
The
Board also considered documentary evidence regarding the treatment of returned
asylum seekers. The Board found that there was insufficient credible evidence
to support a finding that the applicant would face a risk of serious harm if
returned to the Ivory Coast. The Board also found insufficient evidence to
show that the applicant would face torture, a risk to life, or cruel or unusual
treatment if returned to the Ivory Coast and therefore held that
he was not a person in need of protection. In view of its findings that the
applicant was neither a Convention refugee nor a person in need of protection,
and could thus be returned to his country of citizenship, the Board found it
unnecessary to analyse the applicant’s fear of return to Ghana.
Issues
[14]
The
parties submitted the following issues for consideration:
1. Did the Board apply the wrong standard of proof
when assessing the applicant’s claim on section 96 and paragraph 97(1)(b)
grounds?
2. Did
the Board ignore evidence that foreigners in the Ivory Coast were targeted?
3. Did
the panel err in taking into account irrelevant considerations?
Applicant’s Submissions
[15]
The
applicant submitted that the Board erred in relation to the standard of proof
required to establish risk under the definition of a Convention refugee found
in section 96 of IRPA. It was submitted that the Board erred in finding that
the applicant was not a Convention refugee because he would not face a
“substantial” risk of persecution. The applicant cited Krishnapillai v. Canada
(Minister of Citizenship and Immigration), 2005 FC 244 at paragraph 10,
which stated that the proper test for determining Convention refugee status is
whether there is a reasonable chance or good grounds that persecution will
occur (see also Adjei v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 680 (F.C.A.)). The applicant submitted that an
error in the application of this test is fatal to the validity of the Board’s
decision (see Chichmanov v. Canada (Minister of Employment
and Immigration), [1992] F.C.J. No. 832 (F.C.A.) (QL)). The applicant
submitted that the Board also erred in law by requiring that the applicant show
substantial grounds for his claim under paragraph 97(1)(b) of IRPA.
[16]
The
applicant submitted that the Board erred in determining that there was no
evidence that foreigners living in the Ivory Coast were at
risk. The applicant cited documentary evidence which indicated that security
forces, native ethnic groups and pro-government forces have engaged in violence
against immigrants. The applicant submitted that the evidence described the
problems that are faced by persons perceived as non-Ivorian in the country. The
applicant also noted that the United Nations Human Rights Agency has
recommended against the return of Ivory Coast citizens.
[17]
The
applicant submitted that the Board erred in taking into account irrelevant
considerations when it analyzed the applicant’s case from the perspective of
his father’s situation. The applicant noted that while his father lived his
entire life in Napie, the applicant does not speak French and has only lived in
the Ivory
Coast
for brief periods since the age of seven. The applicant responded to the
Board’s finding that he had not experienced any problems while in the Ivory Coast by noting
that his father was killed the last time he was there.
Respondent’s Submissions
[18]
The
respondent submitted that the Board applied the correct burden of proof in
assessing the applicant’s claim under section 96 of IRPA. It was submitted that
the test, as articulated in the phrase “would face a substantial possibility of
serious harm”, only required the applicant to show that there was a real chance
that he would face persecution if returned to the Ivory Coast. The
respondent acknowledged that the Court in Adjei, above, rejected the
“would on substantial grounds” threshold because it allowed ambiguity to exist
as to the standard used. However, the respondent submitted there was no
ambiguity in the case at hand, as the “substantial possibility of serious harm”
formulation required the Board to assess whether the possibility of persecution
was so strong that it qualified as a real possibility of persecution under the Convention
refugee definition. The respondent cited Ponniah v. Canada (Minister
of Employment and Immigration), (1991), 132 N.R. 32 (F.C.A.), wherein it
was found that the Convention refugee standard for risk of persecution requires
something more than a minimal possibility but need not exceed a fifty percent
chance. The respondent submitted that the Board properly applied the standard
of proof as set out in Adjei.
[19]
The
respondent submitted that the applicant cannot rely upon Krishnapillai or
Chichmanov to demonstrate that a reviewable error was made in applying
the proper standard of proof. The visa officer in Krishnapillai required
the claimant to demonstrate that he “would” suffer persecution in Sri Lanka,
whereas in the case at hand, the Board required the applicant to describe that
he faced a substantial possibility (or good grounds) that he would be
persecuted. The Board in Chichmanov erred in requiring the claimant to “convince”
them that he faced a reasonable chance of persecution, whereas in the case at
hand, the Board required the applicant to demonstrate that there was a substantial
possibility (a reasonable chance) that he might face persecution if returned to
the Ivory
Coast.
[20]
The
respondent submitted that in Adjei, Justice MacGuigan did not say that
the term “substantive grounds” could never be used to describe the balance of
probabilities standard of proof. The respondent submitted that there is a distinction
between the “substantial grounds” term used in Adjei and the
“substantial possibility” terminology used by the Board in this case. The
applicant submitted that the combined use of the terms “substantive” and “possibility”
suggests an examination of likelihood that is inherent in the balance of
possibilities standard. The applicant submitted that it is well established
that the standard of proof involved in paragraphs 97(1)(a) and 97(1)(b) of IRPA
is the balance of probabilities. The respondent submitted that so long as the “substantial
possibility” threshold reflects the balance of probabilities standard, it may
be used to assess claims under both paragraphs.
[21]
The
respondent submitted that the Board did not ignore evidence regarding the
targeting of foreigners in the Ivory Coast. In the alternative,
the respondent submitted that had the Board ignored such evidence, no
reviewable error was committed in doing so. The respondent submitted that the
Board’s assessment of the risk faced by foreigners was secondary to its finding
that the applicant’s father was not a foreigner. It was submitted that the
Board’s finding on the targeting of foreigners would therefore only be of
consequence if the applicant and his father were considered foreigners. Since
no finding was made in this regard, the respondent submitted that the error
alleged by the applicant would be immaterial. The respondent submitted that it
was open to the Board to find that there was no evidence of foreigners being
targeted. It was submitted that the document relied upon by the applicant in
challenging the finding was never before the Board and the Board therefore did
not err in failing to consider it. The respondent also submitted there was no
evidence that native born Ivorian citizens are perceived as foreigners.
[22]
The
respondent submitted that the Board did not err in considering the risk faced
by the applicant from the perspective of his father’s situation. The applicant
represented that he was at risk because he was considered a foreigner, as was
his father. The respondent noted that the applicant’s PIF narrative and hearing
submissions indicated that he was in a similar situation as his father. The
respondent submitted that it was therefore open to the Board to assess the
applicant’s fear of persecution on the grounds of perceived ethnicity in light
of its finding that his father was not perceived as a foreigner.
Analysis and Decision
Standard of Review
[23]
The
Board’s finding that the applicant would not face persecution if returned to
the Ivory Coast is one of fact and is therefore reviewable on the standard of
patent unreasonableness (see Singh v. Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 1283 (QL), 173 F.T.R. 280 at paragraph
15).
[24]
Issue
1
Did the Board
apply the wrong standard of proof when assessing the applicant’s claim on
section 96 and paragraph 97(1)(b) grounds?
The applicant
submitted that the Board erred in relation to the standard of proof required to
establish risk under the Convention refugee definition in section 96 of IRPA by
requiring him to demonstrate that there were substantial grounds showing that he
was at risk of persecution. The respondent submitted that the Board’s statement
reflected the requirement that there be a real chance that the applicant could
face persecution.
[25]
In
order to be accorded refugee status, a claimant must satisfy the Board that
there is a reasonable chance, or more than a mere possibility, that he or she
risks facing prosecution if returned to their country of citizenship. Various
expressions of the standard of proof are acceptable, so long as the Board’s
reasons taken as a whole indicate that the claimant was not put to an unduly
onerous burden of proof (see I.F. v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1472).
[26]
The
Board, in the present case, applied the following standard of proof at page 7
of its decision:
. . . The panel is unable to find that
the claimant would face any significant risks, in light of its findings, and in
the absence of credible evidence pointing to a situation of risk if the
claimant were to return to the area where he was born and had at least spent
short periods of time. The panel does not find sufficient credible or
trustworthy evidence to support a finding that if returned to the Ivory Coast the claimant would face a
substantial possibility of serious harm.
[27]
In
essence, the Board has stated two different standards of proof in the paragraph
quoted above, namely, “a substantial possibility of serious harm” and “face any
significant risks”.
[28]
For
these reasons, the Board has made a reviewable error. From a review of the
applicant’s testimony and the documentary evidence, the error is not
immaterial.
[29]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for re-determination.
[30]
Because
of my finding on this issue, I need not deal with the other issues raised by
the applicant.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for re-determination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant statutory
provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 are as follows:
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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