Asu v. Canada (Minister of Citizenship and Immigration), 2005 FC 1693

Date: 20051214

Docket: IMM-682-05

Citation: 2005 FC 1693

Ottawa, Ontario, this 14^th day of December, 2005

Present:                       THE HONOURABLE MR. JUSTICE von FINCKENSTEIN       

BETWEEN:

                                                                     JUDE ASU

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                 The claimant, Jude Asu, is a 23-year-old citizen of Cameroon (the "Applicant"). After his brother's death, he refused to marry his widow as is allegedly customary in his region of Cameroon. As a result, the local elders condemned him to death, but with the help of a neighbour he managed to escape and headed towards Douala. On his way there, he was arrested by the police for being on the road on the day of October 1^st, when the Anglophone Cameroonians traditionally demonstrate to celebrate their independence. He was arrested and taken to prison in Douala. While in detention, he was allegedly tortured.

[2]                The Applicant managed to escape from the prison while working in the fields, and he took a boat to a nearby village. There, he ran into a woman who used to visit the prison. She took pity on him and arranged for his departure from Cameroon to Canada.

[3]                The Refugee Protection Division of the Immigration and Refugee Board (the "Board") denied the Applicant's claim finding him not to be credible and plausible because:

i)          the was no documentary evidence of males being forced to marry their sibling's widow in Cameroon. On the contrary, all the documentary evidence pointed towards a very patriarchal society in which women had no rights;

ii)                    it was improbable, based on documentary evidence, that as a non-active Anglophone he would be arrested; and

iii)         the story of the Good Samaritan was wholly improbable and not believable.

[4]                The Applicant is seeking judicial review arguing:

            i)          all three plausibility findings were defective; and

ii)         that the Board failed to do a s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") analysis notwithstanding that it found that the Applicant was a victim of torture.

[5]                Credibility findings are reviewed on the standard of patent unreasonableness. (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315) The Court can readily intervene with plausibility findings such as where it can be shown that the finding is based on an incorrect legal principle, a perverse or irrational assumption, or where the finding or assumption is contrary to or unsupported by the documentary evidence. (See Divsalar v. Canada (Minister of Citizenship and Immigration) 2002 FCT 653; Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (FCA))

[6]                I will address the two issues raised by the Applicant in reverse order.

The Board's Failure to do a s. 97 analysis

[7]                The Board made the following observation regarding the applicant's scars.

The claimant alleges that they arrested him and that he was severely beaten and tortured. He supported his allegation by submitting both a physician's report, as well as one from a psychiatrist. While the panel accepts the physician's report that the scars the claimant exhibits concur with the type of aggression he may have suffered, the panel, however, concludes based on the claimant's testimony that he may have sustained these injuries in totally different circumstances.

(Applicant's Application Record at pp. 9-10)

[8]                Notwithstanding that the Board accepted the medical report for what it stated, it made the following statement regarding s. 97:

In addition, given these credibility findings, the panel finds that the claimant is not a person in need of protection in that his removal to Cameroon would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment, and in that there are no substantial grounds to believe that his removal to Cameroon would subject him personally to a danger of torture.

[9]                Section 97 has nothing to do with refugee protection but concerns the risk of facing torture or cruel punishment. If the Board decides that the applicant is not a refugee under Section 96 (as it did in this case), then the Board should determine if the facts it has accepted form a basis for concern that the person is at risk of torture or faces a risk to life or a risk to cruel and unusual treatment or punishment under section 97. Finding that the applicant is not credible and has no political profile does not mean that the applicant does not have grounds for a claim for protection under s.97. (seeBrovina v. Canada (Minister of Citizenship and Immigration), 2004 FC 635)

[10]            The Board has misapprehended the nature of its legal obligation under section 97. I note that the Board never stated that the violent abuse allegedly suffered by the applicant and the cause of his scars could have been "obtained accidentally". The Board could not make this conclusion as the medical report was specific and factually based . The scarring was documented for the record as follows:

I examined your client on June 29, 2004 for purposes of verifying his injuries sustained as a result of this detention and torture in Cameroon. He speaks English well and I obtained his history without the aid of a translator.

In October 2003 he was arrested where he was taken to Prison de Bonajo. While he was in prison he was beaten on the head with a hard plastic police baton at the left posterior scalp. He sustained a laceration. He did not have any treatment to this wound. He said he lost consciousness for several hours. On examination he has two irregular scars at the left posterior scalp of 2.2 cm and 1.5 cm respectively consistent with his history of traumatic laceration.

During this detention he was also struck at the right arm with electrical cables. He sustained two lacerations at the right elbow. On examination he has two thick linear scars at the right elbow. The lower scar is 1 cm by 6 cm and runs more or less across the lateral aspect of the right elbow. There is a smaller 1.5 cm thick scar above the former scar.

In summary, he has scars at the posterior scalp, and right arm consistent with his history as outlined above.

[11]            The documentary record shows that Anglophone Cameroonians, such as the Applicant, are persecuted, imprisoned, and that torture is not uncommon. In light of the Applicant's injuries and the documentary evidence regarding torture, it behooved the Board to conduct a s. 97 analysis notwithstanding that it found the Applicant's story not credible.

[12]            Failure to conduct such an analysis constitutes a reversible error.

[13]            In light of this determination, there is no need for me to examine the plausibility findings of the Board.

                                               ORDER

THIS COURT ORDERS that the decision of January 11, 2005 is set aside and the matter referred back to the Board to be reheard by a differently constituted panel.

A Konrad W. von Finckenstein @

Judge

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-682-05

STYLE OF CAUSE:                         JUDE ASU

                                                                                                                        Applicant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

            Respondent

PLACE OF HEARING:                    TORONTO, ONTARIO

DATES OF HEARING:                    DECEMBER 7, 2005

REASONS FOR ORDER

AND ORDER BY:                             VON FINCKENSTEIN J.

DATED:                                              December 14, 2005

APPEARANCES BY: