Date: 20110613
Docket: IMM-4289-10
Citation: 2011 FC 675
Ottawa, Ontario, June 13, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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KATY NYOTA, ERIC NONDA &
LUC NONDA
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated June 30, 2010, wherein the applicants were determined
not to be Convention refugees or persons in need of protection under sections
96 and 97 of the Act.
[2]
The applicants request that the decision be set aside and the
claim remitted for redetermination by a different member of the Board.
Background
[3]
Katy
Nyota (the principal applicant) was born in Lubumbashi, Democratic Republic of the Congo (DRC) on November 24, 1982.
She is married to Papy Nonda with whom she has two children, Luc and Eric Nonda
(the minor applicants). Her husband also has a son from a previous
relationship.
[4]
The
principal applicant lived with her family in Lubumbashi, DRC until
2001. There, she alleges that she faced discrimination and feared violence on
the basis of her mixed ethnicity of Hutu and Tutsi. The principal applicant
eventually moved to Mweso, north of Goma, DRC with her husband and children.
[5]
In
August 2008, rebels entered Mweso and began killing local people and raping
women and girls. They also kidnapped young men and boys.
[6]
The
principal applicant alleges that the rebels entered her house and demanded
money which she and her husband had earned from their business. The rebels threatened
to decapitate the principal applicant’s baby. They then raped and beat the principal
applicant in front of her children. The principal applicant’s husband and step son
were taken and she has not heard from them since.
[7]
With
her children, the principal applicant escaped to Goma, DRC, where there was
continued violence. She was able to buy a flight to Lubumbashi, where she
encountered a man with whom she previously did business who helped her escape
to Canada.
[8]
The
principal applicant arrived in Calgary on October 15, 2008 and
filed for refugee protection.
Board’s Decision
[9]
The
Board found a nexus between the principal applicant’s claim and a Convention
ground, as she was a victim of past sexual violence. The Board also found a
nexus for the minor applicants on the ground of their mixed ethnicity.
[10]
The
Board did not find that the principal applicant faced a serious possibility of
persecution on the basis of a Convention ground. She and her children were
caught in localized crime and were not specifically targeted. Even if they were
specifically targeted, it was for money and there was no indication that they would
be pursued in the future. The Board also noted that financial extortion cannot
found the basis for a refugee claim.
[11]
The
Board further determined that the principal applicant did not face a serious
possibility of persecution on the basis of her ethnicity. The discrimination
the principal applicant described arose over a period of less than three years
in Lubumbashi and did not
amount to the level of persecution contemplated by the Act.
[12]
The
Board found that the same analysis of section 96 applied to section 97 and the
evidence did not persuade the Board that the applicants would face a personalized
risk of life, torture or cruel treatment if they returned to the DRC.
Issues
[13]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
finding that the applicants did not face persecution on the basis of a
Convention ground?
3. Did the Board err by
not conducting a separate section 97 analysis?
4. Did the Board fail
to address the psychological report submitted by the applicants?
5. Did the Board err by
not assessing the risk faced by the minor applicants of recruitment or
kidnapping?
Applicants’ Written Submissions
[14]
The
principal applicant submits that the Board found a nexus to a Convention ground
based on her gender. However, despite finding a nexus, the Board erred in
failing to analyze the evidence before it concerning gender based violence in
the DRC. The evidence demonstrated that sexual violence in the DRC is used as a
weapon of war against women and girls and legislation has been largely unable
to combat such violence. The Board’s finding of generalized crime does not preclude
a finding of persecution on a Convention ground.
[15]
The
applicants also submit that the Board merely provided a conclusion on section
97 without undergoing a proper analysis.
[16]
Finally,
the applicants submit that the Board did not properly address the matter of
risk of psychological deterioration addressed in the psychological report
prepared by Dr. Beverly Frizzell. The Board also failed to assess the risk of
forced recruitment or kidnapping of the two minor applicants if returned to the
DRC.
Respondent’s Written Submissions
[17]
The
respondent submits that membership in a social group is not sufficient for a
finding of persecution. The onus is on the applicants to satisfy the Board that
there is a serious risk of harm that is more than a mere possibility. The Board
did not discount a finding of persecution based on general risk. Rather, it
examined the evidence and found a nexus to Convention grounds and assessed the
likelihood of risk to the applicants if returned to the DRC on a balance of
probabilities.
[18]
The
respondent submits that the Board conducted a sufficient section 97 analysis in
conjunction with a section 96 analysis and that it was entitled to conduct such
analyses concurrently.
[19]
The
respondent submits that the Board specifically referred to Dr. Frizzell’s
psychological report. The applicants have not shown that the Board failed to
consider this evidence or the psychological consequences if the applicants
return to the DRC.
[20]
The
Board acknowledged the risks of living in the DRC but found that the applicants
would not face a personalized risk of cruel and unusual treatment, punishment
or torture if they retuned to the DRC. This included the risks faced by the
minor applicants.
Analysis and Decision
[21]
Issue
1
What is the appropriate
standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[22]
The
issue of whether the Board erred by not applying a section 97 analysis is a
question of law reviewable on a standard of correctness. As I held in Marshall v Canada
(Minister of Citizenship and Immigration), 2008 FC 946 at
paragraph 28, the Board's conclusion as to whether a refugee claimant faces
persecution or a risk to her life or of torture or cruel and unusual punishment
is a question of mixed fact and law and is therefore subject to review on a
standard of reasonableness.
[23]
Any
failure by the Board to consider the totality of the evidence is an error of
law also reviewable on the correctness standard (see Morales v Canada (Minister of
Citizenship and Immigration), 2008 FC 1267 at paragraph 12).
[24]
Issue
2
Did the Board err in
finding that the applicants did not face persecution on the basis of a
Convention ground?
The Board found that the principal applicant
belonged to the particular social group of victims of past sexual violence. I
agree with the respondent that in Dezameau v Canada (Minister of
Citizenship and Immigration), 2010 FC 559, Mr. Justice Yvon
Pinard held that membership in a social group is not adequate, alone, to result
in a finding of persecution. At paragraph 29 he held:
This is not to say that
membership in a particular social group is sufficient to result in a finding of
persecution. The evidence provided by the applicant must still satisfy the
Board that there is a risk of harm that is sufficiently serious and whose
occurrence is “more than a mere possibility”.
[25]
The
Board found that the principal applicant was a victim of sexual violence. It
made no adverse credibility findings and therefore accepted the principal applicant’s
allegations that she was raped and beaten in front of her children. This sexual
violence was taken out on the principal applicant and not her husband or step son.
Despite these findings, the Board did not assess the possibility of persecution on the basis of gender.
[26]
In
addition, the Board did not assess the documentary evidence before it
concerning persecution based on gender. The principal applicant presented
documentary evidence of the persecution that women face in the DRC. Among other
evidence before the Board was an article by the Internal Displacement
Monitoring Centre: Democratic Republic of the Congo “Massive Displacement
and Deteriorating Humanitarian Conditions” which stated that:
Despite all initiatives undertaken to
counter sexual violence, rape continues to be widespread. According to an Oxfam
survey, sexual violence has increased dramatically since the military offensives
against the FDLA began in January 2009 (Oxfam, 14 July 2009)…. Thousands of
women have also been abducted and kept as slaves in the forces’ camps to
provide sexual, domestic and agricultural services.
Government soldiers and rebel fighters
have committed widespread sexual violence to attack the fundamental values of
the community, to scare the civilian population into submission, to punish them
for allegedly supporting enemy forces or to provide gratification for the
soldiers or militia members.
[27]
Further,
the United Nations Security Council Twenty-ninth Report of the
Secretary-General on the United Nations Organization Mission in the Democratic
Republic of the Congo, S/2009/472 observed that:
Sexual violence in the Democratic Republic of the
Congo remained
severe during the reporting period, with rapes and other forms of sexual
violence perpetrated by armed groups, security forces and, increasingly,
civilians. In North and South
Kivu, in some
areas where operation Kimia II was being conducted, humanitarian organizations
were either unable to access sites to provide services, or survivors were
unable to access medical services due to ongoing fighting. High incidences of
sexual violence were reported in Shabunda in South Kivu, and Lubero and Walikale
in North Kivu, but access to those areas remained especially difficult.
[28]
Finally,
the Human Rights Watch report, Soldiers Who Rape, Commanders Who Condone:
Sexual Violence and Military Reform in the Democratic Republic of
the Congo was also before the Board. This report outlined
that:
In the Democratic Republic of Congo, tens
of thousands of women and girls have suffered horrific acts of sexual violence.
The government army, the Forces
Armées de la République Démocratique du Congo (FARDC), is one of
the main perpetrators, contributing to the current climate of insecurity and
impunity in eastern Congo. FARDC
soldiers have committed gang rapes, rapes leading to injury and death, and
abductions of girls and women. Their crimes are serious violations of international
humanitarian law. Commanders have frequently failed to stop sexual violence and
may themselves be guilty of war crimes or crimes against humanity as a
consequence. Although other armed groups also commit brutal acts of sexual
violence against women and girls, the sheer size of the Congolese army and its
deployment throughout the country make it the single largest group of
perpetrators.
[29]
The
evidence before the Board was of extreme sexual violence directed at women and
girls in the DRC. While the Board need not refer to every document before it,
its conclusion must acknowledge any contradictory evidence (see Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 (FCTD)). It was an
error for the Board to omit any analysis of this documentary evidence.
[30]
The
principal applicant was a victim of this violence when she was raped and
assaulted by rebels in Mweso. Through personal testimony and documentary
evidence, the principal applicant argued that
there was more than a mere possibility that she would be persecuted on the
basis of membership in the particular social group of women in the DRC. The Board was
required to analyze the risk of persecution on
the basis of gender.
[31]
Issue 3
Did the Board err by not
conducting a separate section 97 analysis?
Instead of undergoing an
analysis of the gender based claim of persecution, the Board determined that
the principal applicant has experienced localized crime in the form of
extortion and that “financial extortion cannot found the basis for a refugee
claim.” The Board’s conclusion is an inaccurate statement of the law.
[32]
The
Board relied on Prato v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1088. However, I disagree with
the Board that in this case Mr. Justice Pinard held that extortion can never
form the basis of a refugee claim. Rather, he held that the Board’s finding
that in that case, extortion had no connection to a Convention ground, was
supported by the documentary evidence.
[33]
Recent
jurisprudence from this Court indicates that in some instances, extortion may
amount to persecution. For example, in Sinnasamy v Canada (Minister
of Citizenship and Immigration), 2008 FC 67, Mr. Justice Yves de
Montigny held at paragraph 25:
As demands for bribes by the police are a
form of extortion, they may also, in relevant circumstances, amount to
"persecution" for the purposes of the Convention: see Kularatnam
v. Canada (Minister of Citizenship
& Immigration),
2004 FC 1122 (F.C.), at paras. 10-13.
[34]
The
Board was required to assess whether the risk of extortion amounted to
persecution under section 96 or a risk under section 97.
[35]
Given
the above errors, the application for judicial review is allowed.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[37]
IT
IS ORDERED that the application for judicial
review is allowed, the decision of the Board is set aside and the matter is
remitted to a different member of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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.
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