Date: 20060207
Docket: IMM-4147-05
Citation: 2006 FC 143
Ottawa, Ontario, February 7, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
THIERNO
HABIB BALDE
Applicant
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NOËL J.
[1]
This is an
application for judicial review brought under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the
decision of the Refugee Protection Division (“RPD”) dated May 25, 2005. The RPD
dismissed the claim for refugee protection made by Thierno Habib Balde
(“applicant”).
THE FACTS
[2]
The
applicant is a citizen of Guinea and is a Muslim. He alleged the following
facts. On May 15, 1998, he married a Christian woman. He claimed that his
problems in this country really started when his daughter was born in June
2000. Being married to a Christian woman, he progressively became integrated
into this minority community of the city of Labé, which according to him is
98.5% Muslim. One Sunday in September 2003, the applicant claims he returned
home with some guests. Family members, including his uncle, who is the
patriarch of the family and very influential in the country, went to the
applicant’s home, drove the applicant’s guests from the home and then savagely
beat the applicant. After this event, the applicant lost all the contracts he
had in his local area. In June 2004, the applicant’s wife was forced to leave
the couple’s home for Conakry, and the applicant’s uncle decided that his
nephew should marry the wife of his brother who had died of AIDS. In
November 2004, the applicant went into hiding and learned that three of
his colleagues had been arrested. On December 16, 2004, the applicant left
Guinea, arriving in Canada after having spent three days in New York. He
applied for refugee protection on December 21, 2004.
IMPUGNED DECISION
[3]
The
decision rendered by the RPD was based on the applicant’s statements at the
hearing, which indicated, according to the RPD, that the applicant was not
afraid of being persecuted:
- He stated that he did not
apply for refugee status in the United States, preferring Canada for linguistic
reasons and work opportunities;
- He stated that, being a
Muslim, he would not be accepted in the United States;
- He stated that he chose Canada
because of the quality of our health care;
- He said he liked the friendly
welcome he received in Canada.
The RPD specified that it had no objection to a person
testifying in this manner, but it nevertheless had doubts about the applicant’s
testimony.
[4]
The RPD
concluded the applicant had no credibility for the following reasons:
- It was not credible that the
applicant’s problems began in 2003, as he was married in 1998 and his daughter
was born in 2000;
- The RPD considered there was a
contradiction in connection with the applicant’s Personal Information Form
(“PIF”) and the events of September 2003;
- The applicant gave
contradictory versions as to what he did after September 2004;
- Concerning this contradiction,
“[i]t was obvious that the
claimant was giving improvised responses”.
- Considering the applicant
transited through the United States before coming to Canada, he could have
applied for refugee status there instead of in Canada.
[5]
The RPD
concluded by finding that the applicant did not submit any evidence of his
marriage.
ANALYSIS
[6]
The
standard of review applicable to questions of fact decided by the RPD is that
of patent unreasonableness (Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] S.C.J. No. 39, at paragraphs 39 to 43; Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732,
at paragraph 4). After having heard the submissions of the parties, I come to
the conclusion that the RPD made errors of fact, which taken together warrant
allowing the application for judicial review.
[7]
First of
all, the RPD wrote that no evidence had been submitted to show the applicant
was married to Hélène Barry. However, the RPD had Exhibit P-4, entitled [translation] “Declaration of Intent to
Contract a Mixed Marriage” and photographs of the marriage and birth
certificates. This seems to show that the RPD did not examine all the evidence
or neglected part of it. If the evidence was dismissed or considered
unreliable, the RPD should have said so instead of saying that there was no
evidence on record. The conclusion reached by the RPD on this point seems to me
to be significant. Such a conclusion cannot do otherwise than influence the
person called upon to render a decision in the assessment of the rest of the
evidence. If there had not been a mixed marriage, it is obvious that the
analysis of the facts concerning the persecution endured because of this
marriage would have been considerably affected.
[8]
But there
is more than this mistaken conclusion. The excerpt from the RPD’s decision
concerning the applicant’s statements about the reasons for which he chose to
come to Canada seem contradictory. The RPD first of all analysed the reasons
for which it considered the applicant was not credible and ended this analysis,
which takes up half of its decision, by saying, “The panel has no objection to this testimony”. However, the RPD used the
applicant’s statements concerning Canada to decide that the applicant’s claims
for refugee protection were based on strictly economic grounds.
[9]
The fact
that a person seeks refugee status in one country rather than in another one is
not in itself inconsistent with a subjective fear of persecution. For example,
every person seeking refugee status who decides to flee his country to come to
North America, rather than to Europe, makes a choice that could be based on
several grounds, such as linguistic, cultural and economic reasons or because
of the reputation, whether warranted or not, that the immigration systems of
the receiving countries have in the minds of members of the public. The fact
that the applicant chose to come to Canada because employment opportunities
were good, because French is spoken in certain parts of the country or because
he rightly or wrongly believed that his claim would be dismissed in the United
States, does not preclude that he may actually fear persecution (see S.
Chuop v. (Minister of Citizenship and Immigration) 2006 FC 37). A
distinction must be made between this situation and one in which an applicant
candidly admits that the reason for which he left his country was economic or a
situation in which the applicant admits that the only reason he does not want
to return to his country of origin is because the unemployment rate is high.
[10]
I must
also add that a stopover of three days in the United States before coming to
Canada does not seem to me to be necessarily unacceptable or subject to
challenge as such. The RPD drew a negative inference. Such a conclusion does
not seem to me to be warranted on the basis of the decision as drafted.
[11]
In spite
of valiant efforts by counsel for the respondent, the errors of fact raised by
counsel for the applicant, which are difficult to explain upon reading the
decision, make this decision patently unreasonable. The RPD may have had good
reasons for dismissing the applicant’s claim for refugee protection, but these
reasons are not found in the decision rendered on June 16, 2005. The sum of all
the mistakes, especially the one concerning the marriage, render this decision
patently unreasonable. For these reasons, the application for judicial review
is allowed, and the case is referred to a
differently constituted panel for rehearing.
[12]
The
parties were invited to submit questions for certification, but no questions
were submitted.
ORDER
THE COURT ORDERS THAT:
- The
application for judicial review is granted, and the case is referred back to
the RPD for rehearing and redetermination by a differently constituted panel.
“Simon
Noël”
Certified true translation
Michael
Palles
Email this Content