Docket:
IMM-7166-11
Citation:
2012 FC 450
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 19,
2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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NOUR EL HOUDA EL AOUDIE
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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
I. Introduction
[1]
[7] ... It is significant that throughout
history and even modern history: e.g. Christians of various denominations,
Jews, Moslems, Buddhists, Hindus and Baha’is have been killed for their beliefs
without necessarily even having had deep knowledge, or even any knowledge, of
their religions, other than adherence to their faith. Many died for their
faiths but, according to the annals of history, did not live according to their
faiths; yet, that did not stop their slaughter. Therefore, it is important to
view the evidence in this case such as provided by the specific church in
question and additional evidence therefrom that was provided.
(As explained by the
undersigned in Oraminejad v Canada (Minister of Citizenship and
Immigration), 2011 FC 997).
[2]
Assessing the credibility of the refugee
claimant is intrinsic to the function of an administrative tribunal. A certain
level of deference is owed to the first instance tribunal’s findings of fact to
protect its primary function of weighing testimony. In some circumstances,
however, this Court must intervene where it appears that, upon reviewing the
entire record, the findings on the crux of the claim are unsupported by all the
evidence, which forms a whole on its own by these nuances:
[1] A
decision cannot be rendered in a vacuum without considering the person who is
before a first-instance tribunal. Without taking into context all testimony,
evidence, both subjective and objective (country of origin condition evidence)
and understanding the clear nuances that form threads to comprehending a case,
a first‑instance tribunal may have heard a case but not necessarily have
listened to it …
(Oraminejad,
above).
II. Judicial
proceeding
[3]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA), of a decision by the Refugee Protection Division (RPD)
of the Immigration and Refugee Board (IRB) dated September 9, 2011, that
the applicant is neither a Convention refugee as defined in section 96 of
the IRPA nor a person in need of protection under section 97 of the IRPA.
III. Facts
[4]
The applicant, Nour El Houda El Aoudie, 58 years
old, is a citizen of Morocco.
[5]
Ms. El Aoudie, a Muslim, was first married
in 1975. In 1992, she was divorced because of the domestic violence she was
subjected to and the sexual assault of one of her children by her husband.
[6]
Ms. El Aoudie alleged that she was
perceived negatively by Moroccan society because of her divorce, her situation
as a single mother and the fact that, as a seamstress, she received clients in
her home.
[7]
Ms. El Aoudie came to Canada in 2004 to
visit one of her daughters and she has remained there since.
[8]
Ms. El Aoudie had psychological problems
and existential crises that caused her to become interested in Christianity. In 2004,
she met Jean-Paul David, a Canadian citizen promising to marry and sponsor her.
The relationship ended because he turned out to be an alcoholic and violent.
[9]
In March 2007, she met Inayath Hussein, a
Muslim of Indian heritage, whom she married in July 2007. A few days after
the marriage ceremony, Inayath Hussein suggested she come live with his first
wife and their three children, which she refused. Ms. El Aoudie apparently
also understood that her second husband would not accept her conversion to
Christianity. She left her husband in December 2007 and the divorce was
granted in December 2008.
[10]
Following her conversion to Christianity, on
November 11, 2007, Ms. El Aoudie was baptised on January 13,
2008.
[11]
She claimed sur place refugee status on December 18,
2007.
[12]
In 2010, Ms. El Aoudie was apparently
the victim of attempted murder during a robbery at her workplace.
IV. Decision
under judicial review
[13]
The RPD questioned the applicant’s testimony as
to whether she truly converted to the Catholic religion. The RPD determined
that the alleged conversion of the applicant is a tactic to remain in Canada,
close to her children.
[14]
The RPD acknowledged the applicant’s fragile
psychological state, but found that she wanted to stay in Canada to receive
psychological care.
[15]
The RPD made negative credibility findings
against the applicant since she had apparently described the baptismal ceremony
in a confusing manner. In addition, she was not able to explain the baptismal
ceremony or recite the Ten Commandments, she was also unable to specify the
reason why she converted on November 11, 2007. Also, the RPD did not give
probative value to the baptismal certificate.
[16]
The RPD found that the applicant’s intention has
always been to live in Canada, as allegedly demonstrated by her two marriages
with Canadian citizens for the purpose of being sponsored. The RPD alleges
that, faced with these failed marriages, the applicant requested protection
from Canada.
V. Issue
[17]
Is the RPD’s decision reasonable?
VI. Relevant
statutory provisions
[18]
The following provisions of the IRPA are
applicable in this case:
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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.
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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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.
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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VII. Positions of the parties
[19]
The applicant alleged that the RPD erred in
questioning her conversion to the Catholic religion. The RPD failed to take
into account the documentary evidence in the record, including the certificate
of baptism and the letter dated March 26 from the Montréal diocese,
confirming the seriousness of her membership.
[20]
The RPD allegedly failed to take into account
the psychological report filed as evidence demonstrating the applicant’s
psychological distress. The applicant also submits that the RPD’s finding that the
applicant converted to Christianity only to benefit from adequate care in
Canada is unreasonable given that she always paid for her psychological care.
[21]
The RPD allegedly erred in basing its
credibility finding on the applicant’s lack of theoretical knowledge, when, in
her view, faith cannot be measured solely by knowledge of doctrine. A
persecutor will not ask the person to explain the faith to which she has converted
before persecuting her; people are not persecuted for the depth of their
knowledge of the religion; rather, they are persecuted for the fact that they belong
to a religion through which they have become either apostates or heretics.
[22]
The applicant submitted that the RPD failed to
consider that, according to the documentary evidence, she could be persecuted
in her country of origin because she converted to Christianity.
[23]
The respondent argued that the RPD, in
accordance with its mandate as decision-maker, reasonably assessed the
credibility of the applicant and that the Court’s role is not to substitute its
reasoning for that of the RPD.
[24]
The respondent submitted that the RPD may rely
on deficiencies in the applicant’s account in finding that the testimony was
not credible.
[25]
The respondent also explained that it appears
from the decision that the RPD did consider the applicant’s psychological
state.
[26]
It further claimed that the RPD could attach
little weight to the documentary evidence submitted if other evidence supported
its findings.
VIII. Analysis
[27]
It is well established by case law that this
Court must defer to the administrative tribunal’s findings of fact. The
reasonableness standard must apply (Dunsmuir v New Brunswick, 2008 SCC
9, (2008) 1 SCR 190).
[28]
More recently, the Supreme Court of Canada, in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, (2011) 3 SCR 708, further explained the definition of the
reasonableness standard:
[15] In
assessing whether the decision is reasonable in light of the outcome and the
reasons, courts must show “respect for the decision-making process of
adjudicative bodies with regard to both the facts and the law” (Dunsmuir,
at para 48). This means that courts should not substitute their own
reasons, but they may, if they find it necessary, look to the record for the
purpose of assessing the reasonableness of the outcome. (Emphasis added)
[29]
This case requires the assessment of the concept
of “sur place refugee” in that an individual, who is not a refugee at
the time of leaving his or her country of origin, may still encounter
persecution upon his or her return because of specific circumstances arising in
the host country (Kyambadde v Canada (Minister of Citizenship and
Immigration), 2008 FC 1307).
[30]
The RPD’s overall analysis is based on its belief
that the applicant converted to Christianity for the sole purpose of remaining
in Canada. The RPD did not present its analysis in determining whether the
applicant was facing a risk of persecution because she had converted, as the
following passage demonstrates:
[Translation]
[16] While
the panel is aware of her fragile psychological state, it did not find her
testimony with respect to her conversion to Catholicism credible because
although she submitted a certificate of baptism, this document is not probative
evidence in the tribunal’s view, but rather considers it a tactic to remain in
Canada. Therefore, based on the evidence submitted by the applicant, it is
insufficient to establish a reasonable fear of persecution and a risk to her
life.
[31]
The following reasoning of Mr. Justice Yves
de Montigny in Chen v Canada (Minister of Citizenship and Immigration),
2009 FC 677, applies to this case:
[27] That
error led to a further mistake, that of not assessing whether the applicant
should be considered as a refugee sur-place. may have been the
motives of the applicant to convert to Christianity, the Board had an
obligation to conduct a meaningful analysis to determine whether he would be at
risk if removed to China. On this point, I am in complete agreement with my
colleague Justice Blanchard in Ejtehadian v The Minister of Citizenship and
Immigration, 2007 FC 158, 2007 FC 158, where he stated (at para 11):
In a refugee sur-place
claim, credible evidence of a claimant’s activities while in Canada that are
likely to substantiate any potential harm upon return must be expressly
considered by the IRB even if the motivation behind the activities is
non-genuine: Mbokoso v. Canada (Minister
of Citizenship and Immigration, [1999] F.C.J. No. 1806 (QL). The IRB’s
negative decision is based on a finding that the Applicant’s conversion is not
genuine, and “nothing more than an alternative means to remain in Canada and
claim refugee status.” The IRB accepted that the Applicant had converted and
that he was even ordained as a priest in the Mormon faith. The IRB also
accepted the documentary evidence to the effect that apostates are persecuted
in Iran. In assessing the Applicant’s risks of return, in the context of a
sur-place claim, it is necessary to consider the credible evidence of his
activities while in Canada, independently from his motives for conversion.
Even if the Applicant’s motives for conversion are not genuine, as found by the
IRB here, the consequential imputation of apostasy to the Applicant by the
authorities in Iran may nonetheless be sufficient to bring him within the scope
of the convention definition.
See also: Guobao
Huang v Canada (Minister of Citizenship and Immigration), 2008 FC
132, 2008 FC 132, at para 8; YanLing Li v Canada (Minister of
Citizenship and Immigration), 2008 FC 266, 2008 FC 266, at paras 24-25.
(Emphasis
added.)
[32]
In its decision, the RPD was
concerned with the applicant’s first relationship with a Canadian citizen who
had promised that he would marry her and her second marriage with a Canadian
citizen of Indian heritage who said that he would sponsor her. Therefore, it inferred that the refugee
claim was not credible. This reasoning did not
take into account the nuances of the evidence that the applicant did not want
to return under any circumstances because she knew that her situation would be precarious
in her country of origin and, as demonstrated in the above-cited case law, the
RPD did not address the evidence of the applicant’s activities in Canada.
[33]
Thus, to call into question
the applicant’s credibility, the RPD indicated that she was unable to explain
the meaning of the baptism, that she described the ceremony in a confused
manner and that she was unable to recite the Ten Commandments. This Court has already ruled that the RPD
should not confine itself to a microscopic analysis of the testimony of a
refugee claimant (Attakora v Canada (Minister of Employment and
Immigration) (1989), 99 NR 168 (FCA); Dong v Canada (Minister of
Employment and Immigration), 2010 FC 55, at para 20).
[34]
The hearing transcript shows
that the RPD spoke at length in its examination about the mandatory presence of
“sponsors” during the baptism, a term that the applicant had probably not
understood. However, she
explained the presence of two women who were with her at the time of the
baptism by the priest in addition to explaining the “dream” that guided her to
convert (Tribunal Record (TR) at pp 223-230).
[35]
As to the RPD’s general
issue relating to preparation prior to the baptism, the applicant explained
what the baptismal ceremony meant to her, spoke of the various Gospels, recited
two prayers and submitted that she went to mass once a week (TR at pp 231-232). These facts were not mentioned in the RPD decision. After reviewing the transcript, the RPD did not adequately review
the credibility of the applicant’s conversion to Christianity, finding that
this conversion, if it had taken place, was merely part of the intention to
remain in Canada.
[36]
The RPD did not mention
the letter of support of Roger Dubois, permanent deacon of the Montréal
diocese, confirming the death of Father Yves Gauthier, the applicant’s guide,
and of the availability of the current priest who accompanied her to testify
regarding her participation in the parish where her baptism took place (TR at p 104).
[37]
Given that the RPD was of
the view that the applicant had created facts so that she could remain in
Canada, it did not carefully review all her actions in Canada to determine
whether she is a sur place refugee.
[38]
Further, this Court is not
persuaded on reading the decision that the applicant’s psychological state was
taken into account. The RPD
stated that it recognized the fragile psychological state of the applicant.
The RPD, as decision-maker, has the jurisdiction to assess
the evidence as it sees fit, in accordance with its jurisdiction, but
nevertheless must point out evidence that may be absolutely contrary to its
findings (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, (1998) FCJ No 1425 (QL/Lexis)). Moreover, the applicant’s conversion is clarified by
statements discussed in the psychological report.
[39]
The RPD failed to analyze
all of the evidence.
[40]
The RPD, as tribunal of fact,
has the advantage of hearing refugee claimants and, thereby, judging their
credibility. The RPD’s
decision is flawed as a result of its hasty decision that the applicant was
using a scheme to allow her to remain in Canada. Thus, the RPD failed to adequately review the documents in support of the
testimony, which would have required an assessment of the overall context.
IX. Conclusion
[41]
For all these reasons, the
RPD’s decision is unreasonable. The
application for judicial review is allowed and the matter is referred back for
redetermination to a differently constituted panel.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for judicial review be allowed
and that the matter be referred to a differently constituted panel for
redetermination. No serious question of general
importance is to be certified.
“Michel
M.J. Shore”
Certified true
translation
Catherine Jones,
Translator
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