Date: 20110606
Docket: IMM-5287-10
Citation: 2011 FC 646
Ottawa, Ontario, June 6,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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HAROUNA SIBO SOW
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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]
The
applicant seeks an order setting aside the decision, dated August 25, 2010, of
the Refugee Protection Division of the Immigration Refugee Board of Canada (the
Board), which found the applicant to be neither a Convention refugee nor a
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, 2001, c. 27 (IRPA).
For the reasons that follow this application for judicial review is granted.
[2]
The
applicant was born in Mauritania in 1971 and is a member
of the Fullah ethnic group speaking Fulani. In December 1989, at the age of
18, he fled Mauritania because of
conflict in the country that targeted Afro-Mauritanians, which includes the
Fullah. As a result of this conflict, described in one United Nations document
as “ethnic cleansing”, many thousands of Afro- Mauritanians were expelled from
the country. The applicant’s father’s land and cattle were expropriated by
soldiers and civilians. The applicant fled Mauritania by walking
for several days over the border to Senegal and then taking a bus to the Gambia.
[3]
The
applicant remained in the Gambia from 1989 to 2009 without status or a work
permit. He worked as a farmer and later as a construction worker, but was
frequently harassed and, on occasion, detained by police because he did not
have a work permit. In 1991 the applicant met his wife, who was also from Mauritania, in the Gambia. They
married in 1992 and now have two children.
[4]
In
2005 the applicant took a construction job where he was paid one quarter of his
salary, with his employer withholding the rest in order to arrange the
applicant’s passage out of the country to Canada. The
applicant arrived in Calgary on December 14, 2008 and
claimed refugee status the next day.
Decision under Review
[5]
The
applicant’s application for refugee protection was refused by the Board in a
decision rendered orally on July 27, 2010 and in writing on August 25, 2010. The
determinative issue was the availability of state protection.
[6]
The
applicant’s claim for refugee protection was based on his fear of persecution
should he return to Mauritania. In his claim the
applicant stated that he had a well founded fear of persecution pursuant to
section 96 of the IRPA based on his race or ethnicity as a member of the
Fulani in Mauritania, and specifically as a victim of the land expropriation
and expulsion by the government of Mauritania in 1989. This fear was based on
reports from other returnees, who are Afro-Mauritanian, from the Gambia or Senegal who have been arrested
and otherwise targeted by the Mauritania authorities, which are largely comprised of the Arab Moor
majority.
[7]
The Board
found that Mauritania was a “new democracy”
and noted that an election had been held in 2009 which was considered to be
free and fair by independent observers. The Board found that the government
has made serious efforts to repatriate and reintegrate approximately 17,130
returnees who took refuge in neighboring countries during the expulsion, as
demonstrated by the documentary evidence, including reports form UN Human
Rights Council and the US Department of State. Although the Board noted that
there was evidence that a few returnees were arrested, it found that it was not
clear why these arrests happened or whether these people remain in jail.
[8]
In
consequence, the Board held that there was an expectation of the state’s
ability to protect its citizens, which the applicant failed to rebut with clear
and convincing evidence.
Analysis
[9]
In a
democratic country there is a presumption that a state can protect its own
citizens. As such, the onus is on the applicant to rebut this presumption and
prove the state’s inability to protect through “clear and convincing” evidence:
Canada
(Attorney General) v Ward [1993] 2 S.C.R. 689 at para 50; Hinzman v Canada (Citizenship
and Immigration), 2007 FCA 171 at paras 43-44; Zepeda v Canada (Minister of
Citizenship and Immigration), 2008 FC 491 at para 13.
[10]
This
principle, however, does not stand in isolation. It is tempered by the fact
that the presumption varies with the nature of the democracy in a country. Indeed,
the burden of proof on the claimant is proportional to the level of democracy
in the state in question, or the state’s position on the “democracy spectrum”: Kadenko
v Canada (Minister of Citizenship and Immigration) [1996] FCJ No 1376 at
para 5; Avila v Canada (Minister of Citizenship and Immigration), 2006
FC 359 at para 30; Capitaine v Canada (Citizenship and Immigration) 2008
FC 98 at paras 20-22.
[11]
Democracy
alone does not ensure effective state protection. The Board must consider the
quality of the institutions providing that protection. As well, the Board must
look at the adequacy of state protection at an operational level and consider
persons similarly situated to the applicant and their treatment by the state: Zaatreh
v Canada (Citizenship and
Immigration),
2010 FC 211 at para 55.
[12]
Democracy,
for these purposes, encompasses more than the existence of free and fair
elections. It is not a black or white analysis. The jurisprudence is clear
that democracies are to be assessed on a continuum, and that the more
“democratic” a country, the greater the burden on the applicant to rebut the
presumption of state protection. Democracy, to be more than a label, requires
institutions and principles to give effect to the values that the term
encompasses. These may include, amongst others, an independent judiciary and
defence bar, access to justice and a police force that is independent in the
exercise of its investigatory function.
[13]
While
the rule of law and democratic values are sometimes conflated, certain freedoms
– those of expression, religion, and the right of habeus corpus – have
been considered to be integral to viable democracy. Without these components,
along with existence of free and fair elections, democracy is but a political
theory with little meaning in reality. Indeed, it is the existence of these
institutions that mitigate against the very risks that lie at the core of the
Convention on the Protection of Refugees. Put otherwise, the right to vote
might mean little to a refugee if he is still subjected to arbitrary arrest and
detention or persecution for his race or religion.
[14]
It
should be noted that the 2007 presidential election appears to be the first
free and fair election since independence in 1960, and the 2009 elections were
precipitated by a coup in 2008. With regards to the democratic situation of
Mauritanian, the US Department of State found that:
Mauritania, with an estimated population of 3.4
million, is a highly centralized Islamic republic governed by President Mohamed
Ould Abdel Aziz, whose election on July 18 ended the 11‑month political
crisis caused by the August 2008 coup d'etat against former President Sidi Ould
Cheikh Abdallahi. President Aziz had served as head of state and head of the
governing junta, the High State Council (HSC), until he resigned from the
military on April 22 to formally run for office. The presidential election,
declared free and fair by international observers, followed the June 4 Dakar
Accord, a consensual agreement brokered by Senegalese President Wade and the
international community to end the country's political stalemate. In compliance
with the Dakar Accord, deposed President Abdallahi returned on June 27 to form
a Transitional Government of National Unity and voluntarily resigned from
office. Following the election, civilian authorities maintained effective
control over the security forces.
[15]
During the year there
was deterioration in the human rights situation. Citizens did not have the
right to choose their government until the July 18 election. Other problems
included mistreatment and torture of detainees and prisoners; security force
impunity; lengthy pretrial detention; harsh prison conditions; arbitrary
arrests and political detention; limits on freedom of the press and assembly,
including police beating of demonstrators and arrests of journalists;
restrictions on freedom of religion; and corruption.
[16]
Had
the Board looked at the question of the nature of the democratic institutions
that underlies the presumption state protection it may have placed a less
stringent burden on the applicant to rebut the presumption of state protection.
[17]
While
this finding on the presumption of state protection is sufficient to allow the
application, I will also address the Board’s analysis of the evidence before it
because it was neither contextual nor fulsome.
[18]
This
does not mean that a full analysis of all aspects of the state’s machinery of
government is required. It does mean that pointing to democratic elections may
not, depending on the context, suffice. As Justice Russel Zinn said in Gonzalez
Torres v Canada (Citizenship and
Immigration)
2010 FC 234:
The
profile of the alleged human rights abuser is important due to the fact that,
even in democratic countries, certain individuals can be above the law.
[19]
In
my view, the criteria set forth by Justice Zinn at paragraphs 37-42 are
instructive as to the approach to be taken in the analysis of a claim of
failure of state protection.
[20]
It
is, therefore, insufficient to point to the existence of free and fair
elections, conclude that a country is a new democracy, and then fully shift the
onus to the applicant to displace the presumption. The presumption is stronger
in states with strong democratic institutions and traditions. It is weaker in
others. The equation is nuanced and it requires calibration. This calibration
was not done in this case. This was the error on which this decision will be
set aside and remitted to another panel of the Board.
[21]
The
reasons for decision do not reflect or recognize the historic persecution and discrimination
of the Fullah and Afro-Mauritanian peoples in Mauritania, which evidently led to their expulsion in
1989-1990. The Board did examine the current context facing Afro-Mauritanians,
which includes the cessation of violence with Senegal and the signing of a repatriation treaty
for expelled Afro-Mauritanians. However, given this deep historical antipathy,
it was an error to assume, in the face of contradictory evidence, that this
treaty with Senegal alleviated the risks
facing the applicant. Again, relying on Justice Zinn in Torres above,
para 42:
Finally,
all of the foregoing factors must be situated against the available documentary
record. Such an exercise can inform the RPD whether the circumstances of the
case are plausible within the context of a given country. The documentary
record can inform whether such human rights violations are a regular event in a
given country, whether the response of the authorities is in line with what
normally happens, whether other avenues of protection exist that were not
sought, and whether the institutions present in a country are regularly able
and willing to provide protection. The purpose of reviewing the documentary
record is not to state unequivocally whether there is state protection in a
given country. The purpose of reviewing the documentary record is to inform
the analysis of the foregoing factors in order to determine whether the
claimant has rebutted the presumption of state protection.
[22]
The
Board did not refer to important evidence contrary to its conclusion, and
therefore it can be concluded that the Board failed to consider this evidence. As
well, the Board failed to explain why it preferred excerpts from the national
documentation package over the applicant’s oral testimony and documentary
evidence that supported his testimony. Specifically, at paragraph 18 the Board
stated:
You stated that you believe if you return
to Mauritania you would be put in jail until you die because you are considered
by the government as someone who destroyed the reputation of Mauritania. However, the documentary
evidence does not support this assertion. The Government of Mauritania is
making serious efforts to repatriate nationals from other countries back to Mauritania.
[23]
This
statement was made despite the fact that there was documentary evidence,
submitted by the applicant that demonstrated that some returnees were jailed on
return. The observations by the Board that the arrests may have been the
result of an error or other criminal activity unrelated to return, and that
“there was no indication that the individuals remained in jail today”, as
corroboration of its conclusion on the issue of risk are, in the case of the
former, speculative and in respect of the latter, irrelevant.
[24]
In
support of its decision, the Board cited passages from the US State Department
report on Mauritania, which looked at the
efforts made by the government to repatriate those who had previously been expelled
from the country:
The
government cooperated with UNHCR and other humanitarian organizations in
providing protection and assistance to internally displaced persons, returning
refugees, asylum seekers, stateless persons, and other persons of concern; however,
the government lacked resources to effectively support these persons. However,
reintegration of returnees into communities was challenging due to deficient
sanitation, health, and education infrastructure, as well as land disputes.
[Emphasis added]
[25]
However, the Board
omitted from its reference to the US State Department report the observation
that:
The
majority of Afro‑Mauritanian returnees were unable to obtain identity
cards. According to
UNHCR, the deficiencies stemmed from bureaucratic delays rather than policy.
[Emphasis Added]
And further, the US State Department report states:
During
the year the HSC and President Aziz’s administration continued the national
reconciliation program for the repatriation of Afro-Mauritanian refugees from Senegal and Mali, in coordination with the Office of the
UN High Commissioner for Refugees (UNHCR). On December 31, repatriation
operations were successfully ended with the arrival of the last group from Senegal. On March 25, the HSC signed a framework agreement to
compensate 244 widows of Afro-Mauritanian military personnel killed during the
1989-91 expulsion of Afro-Mauritanians and held a memorial for the victims on
the same day. The agreement and memorial represented the authorities' first
public acknowledgement of the government's role in the ethnic killings and
expulsions of 1989-91. [Emphasis Added]
Document
2.1, National Documentation Package for Mauritania (24 March 2010). “2009 Human Rights Report: Mauritania”, US Department of State (11
March 2010).
[26]
There was also evidence
before the Board that demonstrated that the issues that prompted the
applicant’s original flight from Mauritania remain, such as the high rates of Afro-Mauritanian
imprisonment:
During
his visit to the Dar Naim Prison, the Special Rapporteur heard many claims that
most of the detainees were from the communities that were traditionally
discriminated against, whereas individuals from the Arab-Berber communities
escaped imprisonment thanks to the discriminatory application of the law and
the protection by their family or tribe. Despite the absence of statistics on
the ethnic makeup of the prison population, the Special Rapporteur observed
that most of the prison population was black Moors and black Mauritanians. He
was also concerned at the prison conditions, notably overcrowding, which
prevented pretrial detainees from being separated from convicts and, among
other things, hampered access to medical services. At that time of his visit
there were 760 inmates, whereas the prison’s capacity was 380.
Document 13.1, National Documentation Package for Mauritania
(24 March 2010). Doudou
Diène, Special
Rapporteur, “Racism, Racial Discrimination, Xenophobia and Related Intolerance
– Follow-up to and Implementation of the Durban Declaration and Programme of
Action: Mauritania”, Report to the United
Nations Human Rights Council, A/HRC/11/36/Add.2 (16 March 2009) at para 53.
[27]
As
well, the US Department of State noted that ethnic minorities, and specifically
Afro-Mauritanians, continue to face discrimination and marginalization:
Ethnic
minorities faced governmental discrimination. The inconsistent issuance of
national identification cards, which were required for voting, effectively
disenfranchised numerous members of southern minority groups. Racial and
cultural tension and discrimination also arose from the geographic and cultural
divides between Moors and Afro‑Mauritanians.
[…]
Ethnic
rivalry contributed to political divisions and tensions. Some political parties
tended to have readily identifiable ethnic bases, although political coalitions
among parties were increasingly important. Black Moors and Afro‑Mauritanians
continued to be underrepresented in mid to high‑level public and private
sector jobs.
[…]
There
were numerous reports of land disputes between former slaves, Afro‑Mauritanians,
and Moors. According to human rights activists and press reports, local
authorities allowed Moors to expropriate land occupied by former slaves and
Afro‑Mauritanians or obstruct access to water and pastures.
[28]
Counsel
for
the Minister made compelling submissions in support of the decision. In
particular, counsel pointed to two particular aspects of the evidence before
the Board that constituted a supportive rationale for the Board’s findings:
·
On
November 12, 2007, the governments of Mauritania, Senegal, and the UN High Commissioner for
Refugees signed the “Tripartite Agreement on the Voluntary Repatriation of
Mauritanian Refugees in Senegal”: UN Human Rights Council
Report, at p 42, para 3; and
·
The
President of Mauritania has made the repatriation and the humanitarian issues
that returnees will face a government priority: application record, UN Human
Rights Council Report at p 48, paras 58, 60; see also p 50, paras 69-70;
[29]
Counsel
also contended, correctly, that Refugee law is forward looking – it is the risk
that would be faced on return that is to be assessed: Thiaw v Canada (Citizenship
and Immigration), 2006 FC 965 at para 21. But it is that very issue that
the Board overlooked.
[30]
While
it was within the Board’s power to reject the applicant’s fears as lacking an
objective basis, that conclusion had to be reached having regard to the
evidence on the current treatment of Afro-Mauritanian returnees. The evidence
in the national documentary package as to how returnees are currently being
treated was, at best, thin and speculative. While not determinative in and of
itself, when viewed in the historical context, prolonged and severe ethnic
based persecution, the absence of evidence on this issue is significant.
[31]
Ultimately,
the test before the Board is that as is expressed under the Convention: whether
the person has a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion, and
is unable or, by reason of that fear, unwilling to avail himself of the
protection of that country.
[32]
In
my view, having regard to the evidence that was before the Board, the conclusion
that the applicant had state protection available to him cannot be sustained.
[33]
The
application for judicial review is granted and the matter is referred back to
the Immigration Refugee Board of Canada for reconsideration before a
different member of the Board’s Refugee Protection Division.
[34]
There
is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back to the Immigration Refugee Board of Canada for reconsideration
before a different member of the Board’s Refugee Protection Division. No
question for certification has been proposed and the Court finds that none
arises.
"Donald
J. Rennie"
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