Docket: IMM-3218-11
Citation: 2012 FC 72
Ottawa, Ontario, January 19,
2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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OMAIMA MAKDESI ABBOUD
MARIO
ABBOUD
MAYA
ABBOUD
MARINA
aBBOUD
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application put forward by the Minister of Citizenship and Immigration
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) for judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) rendered
on April 19, 2011, wherein the Board held that the respondents were entitled to
refugee protection in Canada.
[2]
The applicant seeks an order setting aside the decision and
remitting the matter for redetermination by a differently constituted panel of
the Board.
Factual Background
[3]
Ms.
Omaima Makdesi Abboud (the principal respondent) and her three children, Mario
Abboud, Maya Abboud and Marina Abboud, are citizens of France and Syria.
[4]
The
principal respondent, a civil engineer in Syria, married her husband in Syria in 1991.
Together they had three children.
[5]
The
principal respondent claims that she was physically, psychologically and
verbally abused by her husband shortly after their marriage began. As well, the
principal respondent alleges that her husband was also abusive to their
children.
[6]
In
2001, upon her husband’s insistence, the principal respondent and her three
children moved from Syria to the French overseas territory of
Martinique where her husband had been living since 1997. She maintains that her
husband’s abusive behaviour continued after they relocated to Martinique.
[7]
In
2004, the principal respondent alleges that she was the victim of an episode of
severe abuse, after which she decided to leave home and report the incident to
the local police. She explains that the police arranged for a mediation session
between herself and her husband. She also advances that due to her limited
abilities in the French language, her husband acted as interpreter during the
mediation session.
[8]
The
principal respondent claims that her husband continued to abuse her and her
children between 2004 and 2008.
[9]
As
her husband’s behaviour continued to worsen, the principal respondent made
arrangements to fly to Canada with her children on December 27, 2008.
The family claimed refugee protection upon their arrival in Montreal.
[10]
The
applicant’s claim was heard by the Refugee Protection Division of the
Immigration and Refugee Board on April 19, 2011 and its decision and oral
reasons were issued the same day.
Decision under Review
[11]
In
a brief decision, the Board determined that the central issues of the claim
were the respondents’ identity, their credibility, the existence of an internal
flight alternative (IFA) and the availability of state protection. On the
issues of identity and credibility, the Board determined that these two
elements had been satisfactorily established.
[12]
On
the issue of an IFA, the Board concluded that it was “not obvious” that an IFA
existed. The Board made the following comments on this issue in paragraph 6 of
its decision:
… the claimant, as I
understood the testimony, is not a rich person, her parents are not rich. If
they were to deploy funds to hop around the world in Tahiti, in France and in
the Caribbean using an insurmountable fund
of money, of course they could keep ahead of their fractious husband and
father, but that is not the situation. I don’t believe that there is a
practical IFA available in part for the same reason that there many not be State
protection.
[13]
Moreover,
while the Board acknowledged the fact that France was a democratically
developed country, the Board found that the principal respondent and her
children could not obtain protection from the French State.
Essentially, the Board stated the following in paragraph 7 of the decision:
What I do find, in this case,
is that in practice for this principal claimant, for this woman, the normal
State protection that a French woman could obtain in France disappeared, was simply not there. That
is a function of two things that came out during the examination of the
Tribunal Officer. There was the fact that, at the first mediation, there was no
independent interpreter for the claimant. The other participant, her husband, a
very cunning individual it seems to me, acted as the interpreter and the
claimant was unable to say what the mediator said to him or, vice-versa, what
he said to the mediator. The only thing that she understood was the words
spoken to her in Arabic by her husband.
[14]
Furthermore,
aside from the unfair mediation due to the lack of an independent interpreter,
the Board also noted that the principal respondent was free to pursue other
recourses against her husband but she was unaware of them, or did not
understand them based on her lack of understanding of the French language (in
paragraph 8 of the decision). Consequently, the Board found that the principal
respondent could not benefit from state protection in France:
Normally, the availability of
State protection, which is presumed, would prevent that recourse. Here I find
that there is no prevention to that recourse for the reasons that I have
expressed, which I repeat, which is that although this country is a country
from which normally we would expect the offering of State protection to its
citizens, in this particular case, in view of how the participants were
linguistically capable […] produced a situation where there was no State
protection with respect to France, available at that particular moment
(paragraph 9 of the decision).
[15]
Finally,
the Board treated the possibility of state protection in Syria in the
following manner in paragraph 10 of the decision:
With respect to Syria, I have
already indicated that this being an Arabic-dominated society, there is little
room for women to express themselves and to claim their rights, and the police,
as can be found in the articles that are indexed under the Index for the
National Documentation Package, it can be seen that notwithstanding recent
legislative changes in most of those countries, the police continues to believe
that domestic problems are to be settled within the home by the normal
standards, and that means that in the end, the husband is going to decide.
[16]
Thus,
the Board ultimately concluded that the respondents were indeed members of a
particular social group – that of the abused spouse – under section 96 of the
Act and granted them refugee protection in Canada.
Issues
[17]
The
issues put forward by the applicant can be synthesized as to whether the Board
failed to apply the appropriate legal test for state protection and an internal
flight alternative (IFA).
Statutory Provisions
[18]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee Protection, Convention Refugees and Persons
in Need of Protection
Conferral
of refugee protection
95.
(1) Refugee
protection is conferred on a person when
(a) the person has been determined to be a
Convention refugee or a person in similar circumstances under a visa
application and becomes a permanent resident under the visa or a temporary
resident under a temporary resident permit for protection reasons;
(b) the Board determines the person to be a
Convention refugee or a person in need of protection; or
(c) except in the case of a person described in
subsection 112(3), the Minister allows an application for protection.
Protected
person
(2) A
protected person is a person on whom refugee protection is conferred under
subsection (1), and whose claim or application has not subsequently been
deemed to be rejected under subsection 108(3), 109(3) or 114(4).
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Notions d’asile, de réfugié et
de personne à protéger
Asile
95.
(1) L’asile
est la protection conférée à toute personne dès lors que, selon le cas :
a) sur constat qu’elle est, à la
suite d’une demande de visa, un réfugié ou une personne en situation
semblable, elle devient soit un résident permanent au titre du visa, soit un
résident temporaire au titre d’un permis de séjour délivré en vue de sa
protection;
b) la Commission lui reconnaît la
qualité de réfugié ou celle de personne à protéger;
c) le ministre accorde la demande de
protection, sauf si la personne est visée au paragraphe 112(3).
Personne
protégée
(2) Est
appelée personne protégée la personne à qui l’asile est conféré et dont la
demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3),
109(3) ou 114(4).
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Convention refugee
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.
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Définition de « réfugié »
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.
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Person in need of protection
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.
Person in
need of protection
(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.
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Personne à protéger
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.
Personne à
protéger
(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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Standard of Review
[19]
The
applicant submits that the issues it has raised concerning the correct legal
test to be applied in the determination of the existence of an IFA and the
appropriate test for state protection are both questions of law which are
reviewable according to the standard of correctness as per the established case
law (Farias v Canada (Minister of Citizenship and Immigration),
2008 FC 1035, [2008] FCJ No 1292 at paras 30-31 [Farias];
Cosgun v Canada (Minister of Citizenship and Immigration),
2010 FC 400, [2010] FCJ No 458 at para 30; Canada (Citizenship and
Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339). The Court
agrees.
[20]
As
well, the Board’s application of the legal tests mentioned above to the facts
at hand involves determinations of fact or mixed fact and law. Thus, in
accordance with Dunsmuir v New Brunswick, 2008 SCC 9, 372 NR 1, Hinzman v Canada (Minister of Citizenship and Immigration),
2007 FCA 171, 362 NR 1 [Hinzman]; and Navarro v Canada
(Minister of Citizenship and Immigration), 2008 FC 358, 169
ACWS (3d) 626,
these questions must be reviewed according to the reasonableness standard.
Arguments
Position of
the Applicant
[21]
The
applicant maintains that the Board erred in fact and law by determining that
the respondents did not have access to state protection or an internal flight
alternative in either of their countries of citizenship.
Position of
the Respondents
[22]
For
their part, the respondents contend that the Board’s findings were entirely
reasonable in the case at hand. The respondents are of the view that the
applicant has only submitted a selective and minute portion of the total
evidence that was before the Board in their application. The respondents further
argue that the documentary evidence before the Board indicated (i) that women
in France are abused, (ii) how the principal respondent and her children were
treated and, (iii) that the police in Martinique did not charge the
principal respondent’s husband after he severely abused her. Rather, the
respondents note that the police organized a mediation session between the
principal respondent and her husband.
[23]
The
respondents also maintain that the Board correctly applied the IFA legal test
and the correct legal test for state protection.
[24]
The
respondents allege that the Board based its findings on the respondents’ testimony
and the evidentiary record and avoided technicalities and academic
discussions. The respondents submit that the applicant is asking the Court to
reweigh the evidence in order to arrive at another conclusion and that the Court must show deference to the Board’s
findings.
Analysis
[25]
At
the outset, the Court recalls that refugee protection is a form of “surrogate
protection” which is intended only in situations where protections from the home
state are unavailable (Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689,
153 NR 321 and Farias, above, at para 15). Moreover,
this Court constantly has held that a general presumption of state protection
exists except in situations where it is clear that a complete breakdown of the
state apparatus has occurred.
[26]
In
the present case, the Court finds that the Board committed reviewable errors
for the reasons that follow.
[27]
Firstly,
the Board failed to apply the correct legal test as to the existence of an IFA.
The Court cannot agree with the respondents that the failure to correctly address
the IFA test is a mere technicality. As argued by the applicant, the law on
internal flight alternatives outlines that an individual cannot be granted the
status of a Convention refugee if an IFA exists. It is trite law that refugee
claimants must first seek safety in another part of their country (or
countries) of citizenship before claiming refugee protection in Canada. If they
fail to do so, the refugee claimants have the heavy burden of establishing that
there is no IFA available and that seeking safety in another part of their
country would be objectively unreasonable in the circumstances at hand (see Thirunavukkarasu v
Canada (Minister of Employment and Immigration) (CA), [1994] 1 FC 589, [1993] FCJ No 1172 [Thirunavukkarasu];
Ranganathan v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 164, [2000] FCJ No 2118 [Ranganathan];
Canada (Minister of Citizenship and Immigration) v Kaaib, 2006 FC 870, [2006]
FCJ No 1106).
[28]
More
particularly, the Board failed
to address either of the two prongs of the legal test as outlined in Thirunavukkarasu,
above, and Rasaratnam v Canada (Minister of Employment and
Immigration) [1992] 1 FC 706, [1991] FCJ No 1256 [Rasaratnam].
The legal test provides that the Board must be satisfied on a balance of
probabilities that: i) there
was no serious possibility of the refugee claimant being persecuted or
subjected to
a danger of torture or to a risk to life or of cruel and unusual treatment or
punishment in the proposed IFA area; and ii) that the refugee claimant cannot
reasonably, without undue hardship, seek refuge in the proposed IFA area.
[29]
In
its decision, the Board did not attempt to determine whether an IFA existed in
Martinique, in continental France or in Syria. Rather, the
Board solely based its IFA analysis on financial considerations. It found that the existence
of an IFA was “not obvious” because the respondents did not have unlimited
resources “to
hop around the world in Tahiti and in France and in the Caribbean”. Although
the Board concludes that it would be difficult for the respondents to travel to
France, it ignores
the fact that they travelled to Canada. Further, given France’s large
territory, its strong democratic and legal systems and its diverse population,
the Board’s factual findings were insufficient.
[30]
Secondly,
the Court notes that the Board failed to apply the appropriate test for state
protection in the present case. It is also trite law that a general presumption
of state protection exists; this presumption can only be rebutted if the
refugee claimant provides “clear and convincing” evidence that their country
(or countries) of citizenship are unable to provide protection or that the
protection provided is “ineffective” (Ward and Hinzman, above).
[31]
In
the present case, the principal respondent explained that her reason for not
seeking help from the police in 2008, after experiencing abuse from her
husband, was that she had lost trust and confidence in the police due to her
negative experience with them in 2004. The Court agrees with the applicant that
the Board incorrectly applied the legal test for state protection as it
concluded that, while state protection would normally be available in France,
no state protection was “available at that particular moment” – that moment
being the episode in 2004 when the principal respondent sought help from the
police. The Board only examined the single attempt of the respondents to seek
assistance from state authorities and failed to include this attempt in the broader
context of the analysis of state protection.
[32]
Again,
there is no indication in the Board’s decision that this test was considered in
the Board’s analysis of the existence of state protection. Moreover, the Court
notes that the Board did not question whether the respondents made any
“reasonable efforts” at seeking out state protection before leaving for Canada. Pursuant to
the case of Kadenko v Canada
(Solicitor General) [1996] FCJ No 1376, 206 NR 272 (FCA), the refugee
claimant’s burden increases where the state in
question is deemed democratic. The Court has found that “the more democratic
the state's institutions, the more the claimant must have done to exhaust all
the courses of action open to him or her” (Kadenko, above,
at para 5).
[33]
Also,
the Board failed to consider the evidence before it. Despite counsel for the
respondents’ able arguments, the Court cannot agree, based on the evidence,
that state protection was not available in France for the
following reasons. The evidence demonstrates that France takes
domestic violence seriously, violence against women is illegal and, the French
government generally enforces the law (Applicant’s Record, pp 45-47). Further, French
citizens located in its overseas territories benefit from the same rights as
its citizens located in continental France (Applicant’s Record, p
58).
[34]
The
applicant also contends that the Board erred in determining that state
protection was unavailable to the respondents as independent interpretive
services were not accessible to them during the mediation session of 2004. The
applicant reminds that the respondents’ abilities in the French language and
the limited availability of legal aid are both irrelevant considerations to the
objective test of the existence of state protection. On this point the Court
also agrees with the applicant, and observes that the principal respondent’s
PIF was completed in French, it contained no attestation of an interpreter and
it included a declaration that the principal respondent understood sufficient
French to understand the content of the form. The Board did not consider the
principal respondent’s current abilities in French or her ability to access
state protection in France. The Board relied solely on the respondents’
disillusionment with the Martinique police department subsequent to the
mediation session of 2004 and her linguistic limitations in order to rule out
state protection. The Court concludes that the incident of 2004 is not
sufficient in and of itself to rebut the general presumption of state protection.
The Court also recalls that state protection need not be perfect but adequate
(see Canada (Minister of Employment and Immigration) v
Villafranca (FCA), [1992] FCJ No 1189, 99 DLR (4th) 334, at para 7; Baku
v Canada (Minister of Citizenship and Immigration), 2010 FC 1163, [2010]
FCJ No 1507, at para 15; Emile v Canada (Minister of Citizenship and
Immigration), 2011 FC 1321, [2011] FCJ No 1614, at para 36.)
[35]
Hence,
the Court is of the opinion that the Board’s factual findings on state
protection in France were
unreasonable, were based on irrelevant considerations, and, were made without
regard to the evidence before it.
[36]
Finally,
the Court agrees with the applicant that the Board also failed to adequately
address the dual citizenship of the respondents in the present case.
[37]
The
Court sympathizes with the respondents’ situation. However, in light of the
applicable law, the Court must set aside the Board’s decision. As neither party
has proposed a question for certification, none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is granted.
2.
The matter is referred back for redetermination by a differently
constituted panel in accordance with the reasons given in this Judgment.
3.
No
question of general importance is certified.
“Richard
Boivin”
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