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Date: 20050208
Docket: IMM-9938-03
Citation: 2005 FC 201
Calgary, Alberta, February 8, 2005
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NAMUUNBILEG BASAA
MUNGANSHAGI ALKHAABAATAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Basaa and Ms. Alkhaabaatar (the "Applicants") are citizens of Mongolia. The male Applicant is part of the Kazakh minority in Mongolia., and a non-practising Muslim. His wife is part of the Khalka Mongol majority, but is a Christian, rather than a member of the majority Buddhist religion. Their claim was based on two grounds: (a) persecution due to their racially
and religiously-mixed marriage; and (b) persecution due to the male Applicant's membership in a family which is the subject of a vendetta.
[2] The alleged vendetta arose because his grandfather was a Kazakh who was involved with the Communist revolution in Mongolia, and who rose to a position of prominence in the Communist government, which ruled the country until the early 1990s. As a result, the male Applicant is associated with a family that is reviled by Kazakhs in Mongolia.
[3] In a decision dated December 4, 2003, a panel of the Immigration and Refugee Board, Refugee Protection Division ("the Board") rejected the claim of the Applicants. The Applicants seek judicial review of that decision.
THE DECISION:
[4] The Board's negative decision was based on three main factors:
· The Board made an adverse credibility finding against the Applicants based on both the year's delay in leaving Mongolia and the month's delay in claiming refugee status upon arrival.
· The Board concluded that there is adequate state protection available in Mongolia, where there is:
- a functioning police force still investigating incidents related to the Applicants
- an independent judiciary
- a democratic government that has an active program of compensation towards victims of past human rights abuses under the Communist government.
· The Board found that the documentary evidence, which included consultation of outside experts, does not support the claims of persecution based on inter-ethnic and interreligious marriage.
ISSUES
[5] In my view, this application raises the following issues with respect to the Applicant's claim of persecution due to family membership:
· Did the Board misapprehend the pertinent evidence before it that demonstrated that the persecution was related to a vendetta rather than "organized crime"?
· Did the Board err by basing its credibility finding on the Applicants' delays in leaving Mongolia and making a claim in Canada?
· Did the Board err in failing to properly assess the issue of state protection?
[6] I find that the documentary evidence supports the Board's conclusion that there was no substance to the claim for protection based on the mixed marriage. Thus, there is no issue with respect to this conclusion.
ANALYSIS
[7] The parties accept that the standard of review for this decision is one of patent unreasonableness. That is, the decision will only be overturned if it was made without regard to the evidence. The Respondent argues that the Board had valid reasons that were clearly stated for finding the Applicants not to be credible (the two sets of delays), that their findings are within the Board's expertise and should not be disturbed. (Horvath v. Canada (Minister of Citizenship and Immigration), 2001 FCT 583; Hilo v. Canada (Minister of Employment and Immigration), (1991) 130 NR 236 (FCA); Huerta v. Canada (Minister of Employment and Immigration), (1993) 157 N.R. 225 (FCA)). For the reasons that follow, I do not agree with the Respondent.
1. Misapprehension of the Claim
[8] The Board begins its analysis with a discussion of organized crime in Mongolia, an issue that was never raised by the Applicants and does not appear to be relevant to their claim. The Board found that all the violent incidents against the Applicants were unsolved crimes, and stated that they could therefore not necessarily be attributed to Kazakhs. Yet the Board seems to have independently attributed them to organized crime instead, even though there is nothing in the police reports to suggest this is the case. This is an irrelevant consideration and the Board made a conclusion not based on the evidence before it.
2. Credibility and Delay
[9] While the Board had multiple grounds on which it could have impugned the Applicants' credibility, it explicitly chose two - the year's delay in leaving Mongolia and the month's delay in claiming refugee status in Canada.
[10] Although the failure to leave Mongolia for a year may go to credibility and the absence of subjective fear, the failure to claim for a month does not. The Board found that, since the Applicant was a "reasonably well-educated person", he should have known how to make a refugee claim in Canada. The Applicant states that he got his travel documents to Canada with the help of a friend and knew nothing about the process until he consulted the staff of a human rights organization in Canada, whereupon he immediately made a claim.
[11] The jurisprudence is clear that a short delay in making a claim, with a reasonable explanation for the delay, cannot be determinative of a negative decision in a refugee claim (El-Naem v. Canada (Minister of Citizenship and Immigration), (1997) 126 F.T.R.15, Diluna v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 399.
[12] The delay of a year in leaving Mongolia is another matter but, when the delay in Canada is taken out of consideration, this is the only remaining explicit ground on which the Applicants' credibility is impugned. The Board found the male Applicant's explanation that he wanted to try to finish his education as being implausible, but did not consider the cultural context, in which such an education makes a profound difference to the future a person can build for himself or herself outside their own country. The male Applicant states that he took precautions to remain safe during his final year of school, but clearly he did not think these precautions could protect him permanently, especially in light of his experiences with the police.
[13] It could be said that the Board's finding on this point is within the realm of its expertise, whether or not this Court would make the same finding. However, a finding of no subjective fear is generally based on whether or not the claimants are found to be credible, whereas in this decision, the finding of credibility and the finding of no subjective fear appear to be one and the same thing, without reference to any other factors that are substantiated by the case law.
[14] In my view, the Board's findings on credibility were not based on the evidence before it and rise to the level of patent unreasonableness. While the Board may have had before it evidence that could have supported a negative credibility finding, it did not rely on such evidence to make its credibility findings, and instead focussed on two minor matters which should not have been determinative of credibility.
3. State Protection
[15] In assessing whether state protection is available, the Board was required to complete an analysis of state protection in the manner required by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The Supreme Court of Canada in Ward, at pages 724-725 noted the following:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize.
[16] In the case before me, the Board correctly carried out the first part of that analysis by considering whether Mongolia was in effective control of its territory and had police and civil authorities in place. However, the question that follows is whether the Board addressed "the claimant's testimony of past personal incidents in which state protection did not materialize".
[17] More specifically, the male Applicant's claim is that the Kazakh community has a vendetta against all surviving members of his family. He claims that his grandfather's murder in 1954, his father's death in 1982, an aggravated assault of the male Applicant in 1997, the fire-bombing of his mother's house in 1997 and his mother's murder in 2002 (after the Applicants had left Mongolia) were all related to this vendetta against his family.
[18] The Mongolian police have never charged any persons for any of these acts of revenge. Indeed, the opposite seems to be true; it does not appear that the state was able to protect his mother from harm, despite the existence of a police investigation into her house being burnt down.
[19] The Board states at p. 7 of its decision:
Based on the foregoing documentary evidence, I accept that the male claimant's mother was murdered by criminal elements in Mongolia on November 15, 2002. However, again based upon the contents of the policy "Certification", I find that the police in Ulaanbattar city are investigating the murder and are thereby making serious efforts to find the perpetrator or perpetrators of this crime and to bring them to justice. In making this finding, I also refer to the male claimant's testimony that the Mongolian police are continuing to investigate the murder of his mother.
[20] In my view, the Board failed to assess the testimony of the Applicants. On its face, the Board's conclusion that the investigation of a murder after the fact, when combined with the as yet unresolved eight years of investigation into other matters concerning the family, constitutes adequate state protection, is not reasonable nor is it based on the documentation before it. The analysis of state protection is fatally flawed.
CONCLUSION
[21] In summary, the Applicants' claim could have been rejected either on the basis of a lack of credibility or on the basis of the availability of state protection. Since I have determined that the Board erred in both of these aspects of its decision, the decision cannot stand.
[22] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is allowed and the matter returned to a different panel of the Board for re-determination.
2. No question of general importance is certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9938-03
STYLE OF CAUSE: NAMUUNBILEG BASAA
MUNGANSHAGI ALKHAABAATAR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 7, 2005
REASONS FOR ORDER AND ORDER : SNIDER, J.
DATED: February 8, 2005
APPEARANCES:
Mr. Stephen Jenuth FOR APPLICANTS
Ms. Camille Audain FOR RESPONDENT
SOLICITORS OF RECORD:
Ho MacNeil Jenuth
Calgary, Alberta FOR APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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