Date: 20120327
Docket: IMM-4367-11
Citation: 2012 FC 364
Ottawa, Ontario, March 27,
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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MAKENGO NSIALA NARA
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Applicant
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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
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision made by
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) on May 19, 2011, wherein it rejected Mr. Makengo Nsiala Nara’s (the
applicant) application for refugee protection in Canada. The Board determined
that the applicant was neither a Convention refugee within the meaning of
section 96 of the Act, nor a person in need of protection within the meaning of
section 97 of the Act.
I. Background
[2]
The
applicant is a citizen of the Democratic Republic of Congo (DRC) and of the
Republic of South Africa (RSA).
[3]
He
studied medicine at the University of Kinshasa and began
his career as a physician in October 1987, working in a hospital in Kinshasa.
[4]
The
applicant’s claim is based on the following allegations.
[5]
In
January 2001, while practicing medicine in the DRC, security forces arrested
him without reason, detained him, tortured him and injected him with drugs. The
security forces wanted him to sign some documents contradicting genuine medical
reports about patients who were mistreated by government forces.
[6]
The
applicant was able to escape four days later by bribing one of the prison
wardens. Believing that he would never be safe in the DRC, he left the country
and made his way to the RSA, leaving his family behind in Kinshasa.
[7]
At
first, the applicant thought that he would be unable to stay in the RSA, as he
arrived as an undocumented migrant; the RSA does not accept refugee claims from
other African countries. However, he discovered that he could re-certify as a
doctor and practice medicine in remote areas of the RSA where other physicians
would not want to work. He passed the licensing exams and secured employment in
a remote province in the RSA. His ten-year employment contract restricted his
work to public hospitals in the province of Limpopo. Through
this process, he also obtained an exemption that allowed him to secure citizenship
in the RSA as well as maintain his DRC citizenship.
[8]
The
applicant began working at the Dr. Cn Phatudi Hospital near the town of Tzaneen
in Limpopo. Eventually,
social problems developed in the area in which the applicant was working. There
were electricity and water supply disruptions and, on these occasions, the locals
went to the hospital to get water. At one point, the hospital authorities
prevented the doctors from providing water to the local population. In
retaliation, the local population began holding xenophobic rallies and
threatened the foreign doctors who worked at the hospital.
[9]
In
April and September 2005, burglars broke in to the applicant’s house and stole
from him. He faced continued threats and the locals treated him like a “demon
or a witch” because he lived alone, without a family. The applicant faced
particular vulnerability because his accent made it obvious that he was a
foreigner. He was unable to relocate because his registration to work as a
doctor was limited to the area in which he was living and working.
[10]
The
local police knew about the incidents and occasionally provided the applicant
with security agents and sent patrols in an effort to protect him. However,
they were unable to restore safety to the area.
[11]
In
December 2005, the applicant learned that his family had made its way to Canada. He applied
for a visa to visit his family but the Canadian embassy refused his
application. The applicant attempted to enter Canada from the United
States (US) on June 4, 2006 but was refused entry. He returned to the RSA.
[12]
The
situation in the RSA continued to deteriorate. In May 2007, two people attacked
the applicant with a gun on his way home from work. They threatened to kill him
and assaulted him. The assailants ran away when someone approached. The
incident left the applicant seriously injured.
[13]
Fearing
for his life, the applicant eventually resigned from his job in July 2007, left
the RSA the same month, and went to the US. He
attempted to enter Canada in August 2007 through the Fort Erie border and
was refused entry, once again. The applicant lived as an illegal alien in the US starting on
January 24, 2008. He finally entered Canada illegally in February
2009 and claimed refugee protection in March 2009.
II. Decision under review
[14]
The
Board determined that the applicant was neither a Convention refugee, nor a
person in need of protection. The determinative issues were a lack of nexus to
a Convention ground and the existence of adequate state protection.
[15]
The
applicant claimed refugee protection against both his countries of nationality
but the Board limited its analysis to the applicant’s claim against the RSA.
The Board stated that, according to section 96 of the Act, claims must be
established against all countries of nationality. Accordingly, once the RSA
claim failed, it was not necessary to proceed to an analysis of the applicant’s
claim against the DRC.
[16]
The
Board accepted the applicant’s testimony as credible.
[17]
The
Board made several findings.
[18]
First,
it found that the applicant’s experiences did not amount, singularly or
cumulatively, to persecution on Convention grounds. The Board determined that
the claimant fears being a victim of crime which does not give rise to
protection under the Convention. The Board stated that the claimant fears
xenophobia in the RSA, but found that the fact that the RSA accredited him as a
foreign-trained doctor and gave him citizenship within a few months of his
improperly documented arrival was hardly consistent with xenophobia. The Board further
found that the three incidents described by the applicant amounted to random
criminal acts and not to xenophobic attacks. The Board excerpted several
statements from various country conditions documents, explaining that poverty
and crime is rampant in the RSA. On the basis of this documentary evidence, the
Board affirmed that it was persuaded that crime is widespread in the RSA and
was not limited to naturalized citizens or rooted solely in xenophobia. The
Board insisted that being a victim of crime does not provide nexus to the
Convention.
[19]
The
Board acknowledged that, while the applicant’s Congolese origin “may have
played a part in the incidents he experienced, they remain[ed] at their core
criminal acts which, according to the documentary evidence, are widespread in
South Africa and not limited to foreign nationals, or persons perceived to be
foreigners”.
[20]
Second,
the Board determined that the applicant was not a person in need of protection.
It found that the applicant did not face a danger of torture in the RSA. It also
determined that the applicant did not face a personalized risk to his life
because of xenophobic violence in the RSA. The Board cited the US Department of
State Report for the year 2009, which stated that, although xenophobic attacks
on foreign African migrants remained a problem, the attacks did not occur on
the same scale as they did the previous year. The Board concluded the
following:
[16] Given the personal situation of
the claimant, as a foreign‑trained doctor, recruited by the government to
work in ill-served parts of the country, and his own declared experience, the
panel is not persuaded that he faces a personalized risk to his life, on a
balance of probabilities.
[21]
Third,
the Board found that, even if the risks feared by the applicant were
personalized, he failed to rebut the presumption of state protection. The Board
found that the applicant’s evidence about the police investigations into the
attacks that he experienced in May 2007 showed that he had received adequate
state protection in the past. The Board acknowledged that the police may not be
perfect in the RSA but considered, after having reviewed the evidence, that in
light of the relevant jurisprudence, adequate state protection would be
forthcoming to the claimant if he were to return to the RSA, as had been
previously provided.
III. Issue
[22]
The
single issue to be determined in this case is whether or not the Board’s
decision was reasonable.
IV. Standard of review
[23]
Neither
party made any submissions regarding the applicable standard of review. However,
the issue at bar relates to the Board’s assessment of the evidence before it.
It is well established that the Board’s decisions on whether an applicant meets
the criteria of a Convention refugee or a person in need of protection, or
whether an applicant has rebutted the presumption of state protection, are all
findings that are reviewable under the reasonableness standard (Canada
(Minister of Citizenship and Immigration) v Huntley, 2010 FC 1175 at para 35-37,
375 FTR 250 [Huntley].
V. Analysis
A. Applicant’s submissions
[24]
The
applicant challenges the Board’s decision on three grounds.
[25]
First,
he argues that the Board erred in determining that he did not establish a nexus
to a Convention ground. The applicant insists that his own evidence, which was
not challenged, was that the attacks he experienced were based in part on
xenophobia. The documentary country evidence also supports the existence of
xenophobia against non-RSA national Africans. The applicant argues that the
Board itself acknowledged that his Congolese origin may have contributed to him
becoming a target of violence. The applicant argues that mixed motives are
enough to establish a nexus to a Convention ground when they include a
Convention ground and relies on Shahiraj v Canada (Minister of Citizenship
and Immigration), 2001 FCT 453 at para 20, 205 FTR 199 [Shahiraj] to
support his argument. Therefore, as the Board determined that the violence that
he suffered was at least partially motivated by xenophobia, it should have
concluded that he had established a nexus to a Convention ground.
[26]
The
applicant argues that Huntley, above, on which the Board relied, is
distinguishable from the case at bar; Huntley dealt with a claim
involving a white farmer. Further, the Board found that there was no evidence
of mixed motives.
[27]
Second,
the applicant argues that in its section 97 analysis, the Board failed to
conduct a forward-looking assessment of the risks that he would face if he were
to return to the RSA and limited its analysis to his past experience. The
applicant insists that the documentary evidence, which is dated after he left
the RSA, establishes that xenophobia against foreign African migrants remained
a problem and that there was a serious possibility that he would be subjected
to xenophobic attacks upon his return.
[28]
Third,
the applicant argues that the Board erred in determining that he failed to
rebut the presumption of state protection. The applicant contends that the Board
ignored objective country conditions evidence that demonstrates that the RSA
police do not provide adequate state protection against xenophobic violence.
B. Respondent’s
submissions
[29]
The
respondent refutes the applicant’s arguments; he argues that the Board’s
decision was reasonable and suggests that the applicant is asking the Court to
reweigh evidence.
[30]
First,
the respondent maintains that the applicant did not demonstrate a nexus to a Convention
ground. The Board acknowledged that the attacks suffered by the applicant may
have, in part, been due to his Congolese origins. However, the Board noted that
these attacks did not amount to persecution and were in fact, three random
attacks. The respondent insists that the evidence did not establish that the
attacks were motivated by xenophobia. Therefore, while the respondent concedes
that mixed motives could establish a nexus, in this case, the Board was not
satisfied that the applicant’s experiences were attributable to xenophobia.
[31]
The
respondent argues that the applicant’s case distinguishes from Shahiraj,
above, because in Shahiraj, this Court found that the applicant was not
randomly targeted for extortion, but rather was targeted in part because his
brother had ties to militants (at para 20).
[32]
Second,
the respondent argues that the Board’s section 97 analysis was also reasonable.
The Board determined that the applicant did not face a personalized risk in the
RSA. The respondent submits that it was reasonable for the Board to characterize
the risk that the applicant faces as a generalized risk of violence. There was
no evidence that demonstrates that his risk was not the same risk faced by all
other citizens. The respondent further argues that the Board’s analysis was
prospective; the Board acknowledged that xenophobic attacks remain a problem in
the RSA, but that they are in fact declining.
[33]
Third,
the respondent argues that the Board’s analysis of the adequacy of state
protection was also reasonable. The Board assessed the documentary evidence. It
further considered that the police in the RSA were responsive to the applicant.
In his Personal Information Form, the applicant indicated that the police
offered him security agents from time to time and sent patrols for a period of
three months. After the incident in May 2007, the police arrested the attackers
and they were subsequently jailed for six months. It was reasonable, in these
circumstances, for the Board to consider that state protection would be
forthcoming for the applicant as it had been in the past. The Board
acknowledged that state protection in the RSA was not perfect, but determined
it was adequate and that the applicant did not rebut the presumption with clear
and convincing evidence.
C. Discussion
[34]
I
find that the Board’s assessment of the evidence and its reasoning on certain
aspects of the applicant’s claim are unreasonable.
[35]
First,
the Board found that the applicant had not established a nexus to a Convention
ground. On this issue, the Board held that the fact that the RSA government had
accredited the applicant as a foreign-trained physician and given him
citizenship within a few months of his arrival, was “hardly consistent with
xenophobia.” With respect, I fail to see the relevance of this finding,
considering that the applicant does not fear xenophobic attacks from the
government but rather from the local community where he practiced. In my view,
the Board insisted on an irrelevant consideration (his accreditation by the RSA
authorities) but failed to take into account the personal circumstances of the
applicant. More specifically, the Board failed to consider that xenophobia
against the applicant and other foreign doctors developed as a reaction from
the local community to the hospital’s decision that prevented doctors from
supplying the locals with water.
[36]
Furthermore,
the Board concluded that the applicant had experienced three isolated and
random attacks. However, although there were no credibility issues, the Board
failed to consider the applicant’s allegations that the attacks occurred in a
context where the local residents were holding xenophobic rallies (para 29 of
the applicant’s affidavit), and were persecuting foreign people (para 32
of the applicant’s affidavit). The Board also seems to have ignored the
applicant’s statements that, upon his return to the RSA in June 2006, the
xenophobia in the community was growing (para 36 of the applicant’s affidavit).
[37]
The
respondent argues that, in his testimony, the applicant failed to link the
attacks to xenophobic motives. My reading of the transcript of the hearing
before the Board does not lead me to the same conclusion. First, I note that
the quality of the transcription is far from adequate as there are numerous
missing or inaudible portions of the applicant’s testimony. I also note that
the Board member never questioned the applicant in relation to the incidents
that occurred in 2005 and that the questions he asked in relation to the May
2007 incident, were general in nature. Moreover, the applicant tried to raise
the xenophobic issue, however, his testimony is almost incomprehensible in that
regard. The Board member did not question the applicant further to try to
understand his allegations. The following excerpts from the transcript
illustrate my point:
CLAIMANT: When I was trying to get, they come to
me, oh Dr. Nara, Dr. Nara. They knew me already.
MEMBER: Yes
CLAIMANT: They were targeting.
MEMBER: Right
CLAIMANT: (inaudible) they were seeing me coming
back. Then they come with … the … the gun. If you continue to make us
(inaudible) for not (inaudible) we’re going to shoot you just … just now. Then
I say, okay.
MEMBER: So they … threatened you.
CLAIMANT: Yes.
MEMBER: Why were they threatening you?
CLAIMANT: Later on I knew the story because
sometime when the people they come to … to threaten you, you never know their
position …
MEMBER: Right
CLAIMANT: … or what is their story. You will find
out just maybe after the incident happened.
MEMBER: Right … But … but … at … at … at the
time of the incident, were you aware of why you were being threatened?
CLAIMANT: I was not aware, but because of the
previous experience last year, whatever, I say I just (inaudible) sometime they
are just too much asking. I do not know figure which way they are.
MEMBER: So they’re threatening you, and at this
point you don’t know why they’re threatening you.
CLAIMANT: Yes.
MEMBER: They threaten to kill you. They … they’re
… they tell you verbally, we’re going to kill you.
CLAIMANT: Verbal
[…]
CLAIMANT: The police, even themselves, they were
suspecting people. They even talk to the people there, and I was hearing the
local language.
MEMBER: Right
CLAIMANT: They say you are doing like this
because those people, they are the foreigner. If they were the local people you
should be in trouble. They blaming all the people. They know everyone the
things are there.
MEMBER: Okay
CLAIMANT: So if this police is protecting the … the
… people, even the 2008 incident which one you were referring to, they kill 16.
The police there were, and some of the people they were … (inaudible), they
were killed by the same police people, the … black. So the police they are
there, but they are looking of that xenophobia, because in their mind also they
are the … foreigner (inaudible) for they coming to get their (inaudible) in the
real, which one the local people they shoot (inaudible). Se we are not treated
like the same quality. I am like a second national there.
[Sic throughout]
[38]
This
Court previously determined that when there are mixed motives for targeting an
individual for crime or violence and at least one of the motives can be
connected to a Convention ground, this may be sufficient to establish a nexus (Gonsalves
v Canada (Minister of Citizenship and Immigration), 2011 FC 648 at para 29
(available on CanLII) [Gonsalves]). In fact, once the Board notes that
at least one of the motives for targeting an individual is linked to a
Convention ground, the Board has a duty to consider whether a nexus exists (Sopiqoti
v Canada (Minister of Citizenship and Immigration), 2003 FCT 95 at para 14,
124 ACWS (3d) 555).
[39]
Had
the Board considered all of the applicant’s evidence and questioned him further
about the xenophobic component of his claim, its assessment of whether the
mixed motives were sufficient to establish a nexus to a Convention ground might
have been different.
[40]
Second,
the Board concluded that the applicant failed to establish, on a balance of
probabilities, that he faced a personalized risk to his life. However, the
rationale for this finding is somewhat difficult to understand. The Board based
its finding on two elements: on the fact that the applicant was a foreign
doctor recruited by the government to work in ill-served parts of the country
and on the applicant’s own experience. As mentioned above, I fail to see the
relevance of the applicant’s employment conditions to the Board’s analysis,
given that the risk that he faced was related to the xenophobic behaviour of
the local residents in his community and not to the conduct of government
officials. Moreover, the Board referred to the applicant’s experiences without
giving any explanation as to why he found that these experiences failed to
establish a personalized risk. The Board cited an excerpt from the 2009 US
Department of State Report indicating that xenophobic attacks on foreign
Africans remained a problem, but that the attacks were less frequent than the
previous year. However, the Board does not explain the bearing of this
documentary evidence which recognizes that xenophobic attacks still occur, nor
does it explain how this evidence was sufficient to set aside the applicant’s
evidence about the xenophobic conduct of the citizens of his own local
community. In my view, these elements were central to the applicant’s claim.
[41]
Third,
the Board concluded that the applicant failed to rebut the presumption of state
protection. The Board based its finding on the fact that the authorities did indeed
respond when the applicant was assaulted. However, the Board failed to consider
the particular circumstances of the applicant who was working in a relatively
closed community and, moreover, that he was confined to that community. Had the
Board recognized the xenophobic component of the attacks that the applicant
experienced combined with his particular employment situation, it may have
analyzed the adequacy of state protection with a different perspective.
[42]
For
all of these reasons, I am of the view that the Board failed to consider
relevant evidence that was central to the applicant’s claim, thus rendering its
decision unreasonable. Furthermore, each case is fact specific and the
conclusions reached by the Board, and by this Court in other cases, cannot be
simply transposed to this case.
[43]
For
the foregoing reasons, this application for judicial review is allowed. The
parties did not propose any question for certification and none arise in this
case.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed and the applicant’s claim for refugee protection is sent back
for re-determination by a different panel. No question is certified.
“Marie-Josée
Bédard”
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