Date:
20121218
Docket:
IMM-3178-12
Citation:
2012 FC 1494
Edmonton, Alberta,
December 18, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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ILHAM ABDI AHMED
HANAD BADAR ELMI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Ilham Abdi Ahmed and her son have claimed refugee protection in Canada based on her fear of her husband in Djibouti. She maintains that her husband has abused her
over the course of their 10-year marriage.
[2]
A
panel of the Immigration and Refugee Board considered Ms Ahmed’s claim and
dismissed it for a lack of credible evidence. The Board noted that Ms Ahmed had
travelled outside Djibouti on a number of occasions, in particular when each of
her four children were born. In fact, three of her children were born in Canada. Yet, on each of these occasions, she returned to her husband. The Board questioned
why she would return if she truly feared her husband.
[3]
In
addition, the Board concluded that Ms Ahmed and her husband wanted to immigrate
to Canada and were using her false refugee claim as a means to do so. Ms Ahmed
and her husband had both previously applied for permanent residence in Canada. Further, her husband bought plane tickets for her and her children, and drove them
to the airport. The Board concluded that this conduct was consistent with the
husband’s complicity in her false claim, not evidence supporting an abusive
relationship.
[4]
The
Board also found that Ms Ahmed would do anything for her husband. She agreed to
allow her daughters to undergo female genital mutilation (FGM) if her husband
let her leave the country, even though she was opposed to FGM.
[5]
Ms
Ahmed argues that the Board failed to appreciate the circumstances giving rise
to her claim. In particular, she notes that the Board failed to consider the
Chairperson’s Gender Guidelines, which counsel sensitivity on the part of the
Board when dealing with gender-based refugee claims. Ms Ahmed also argues that
the Board’s credibility findings were unreasonable. She asks me to quash the
Board’s decision and order another panel of the Board to reconsider her claim.
[6]
I
agree that the Board’s assessment of Ms Ahmed’s claim was inconsistent with the
Gender Guidelines. In addition, I believe the Board’s approach affected its
evaluation of the credibility of Ms Ahmed’s testimony. However, given my
conclusion on the first issue, I need not consider the second issue separately.
[7]
Therefore,
the sole issue is whether the Board assessed Ms Ahmed’s claim in a manner that
was consistent with the Gender Guidelines.
II. Was the Board’s
approach consistent with the Gender Guidelines?
[8]
While
the Board did not mention the Gender Guidelines, that is not enough on its own
to overturn its decision (Ayub v Canada (Minister of
Citizenship and Immigration), 2004 FC 1411 at para 19). The question is
whether it assessed the evidence in a manner that is consistent with the
approach laid down in those guidelines.
[9]
Here,
the Board found that Ms Ahmed could have claimed protection on earlier
occasions but, instead, went back to her husband. She also delayed in making a
claim. The Board concluded that this behaviour was inconsistent with a
subjective fear of abuse.
[10]
In
my view, the Board had to consider other reasons that might have motivated Ms
Ahmed’s behaviour.
[11]
The
Gender Guidelines state:
[W]omen who have been subjected
to domestic violence may exhibit a pattern of symptoms referred to as Battered
Woman Syndrome and may also be reluctant to testify. In some cases it will be
appropriate to consider whether claimants should be allowed to have the option
of providing their testimony outside the hearing room by affidavit or by
videotape, or in front of members and refugee claims officers specifically trained
in dealing with violence against women. Members should be familiar with the
UNHCR Executive Committee Guidelines on the Protection of Refugee Women.
[12]
The
footnote to this passage states:
For a discussion of the battered
woman syndrome see R. v. Lavallee, [1990] 1 S.C.R. 852. In
Lavallee, Madame Justice Wilson addressed the mythology about domestic
violence and phrased the myth as “[e]ither she was not as badly beaten as she
claims, or she would have left the man long ago. Or, if she was battered that
severely, she must have stayed out of some masochistic enjoyment of it.” The
Court further indicated that a manifestation of the victimization of battered
women is a “reluctance to disclose to others the fact or extent of the beatings”.
In Lavallee, the Court indicated that expert evidence can assist in
dispelling these myths and be used to explain why a woman would remain in a
battering relationship.
[13]
In
my view, the Board should have considered Ms Ahmed’s testimony about why she
stayed with and returned to her husband in light of these guidelines. They help
explain the predicament in which some women in abusive relationships find
themselves. Ms Ahmed testified that she went back to her husband because she
loved him, she hoped his behaviour would improve if she kept providing him with
children, she did not want to relinquish custody of the children who were left
behind when she travelled outside Djibouti, her relationship with her husband
became intolerable after he took a second wife, and her acceptance of FGM was
merely a ruse to persuade her husband to allow her to take the children to
Canada.
[14]
The
Board is obviously entitled to make adverse credibility assessments. However,
in gender-based claims it must make those findings with an appreciation of the
social context within which the claim arises. In my view, the Board failed to
show an appreciation for the circumstances in which Ms Ahmed found herself and,
therefore, its summary dismissal of her explanations for her behaviour, and of
her claim, was unreasonable.
III. Conclusion and
Disposition
[15]
The
Board failed to take into account Ms Ahmed’s personal circumstances, and the
Gender Guidelines that apply to those kinds of circumstances, when evaluating
her testimony. Accordingly, its rejection of her explanations for her conduct
was unreasonable. I must, therefore, allow this application for judicial review
and order another panel of the Board to reconsider her claim. Neither party
proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
"James W. O'Reilly"
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