Date: 20070306
Docket: IMM-842-06
Citation: 2007 FC 255
Ottawa, Ontario, March 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
YUMKO TAZAWA
ISAMU ABDULLAHI OMAR
YUTAKA ALEXANDE OMAR
(a.k.a. YUTAKA ABDULLAHI OMAR)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), delivered orally on December 16, 2005, which determined that
the applicant was not a Convention refugee.
[2]
The
applicant requested that the Board’s decision be set aside and remitted for redetermination.
Background
[3]
The
applicant, Yumiko Tazawa, is a Japanese citizen who alleged having a fear of
persecution on the basis of her membership in a particular social group,
namely, as a person in a mixed race marriage and the mother of mixed race children.
The applicant’s husband, Isamu Omar, is a citizen of Somalia. The couple
have two children whom the applicant feared would be subject to discrimination
on the basis of race if the family relocated to Japan. The
applicant described the circumstances leading to her claim for protection in
the narrative portion of her Personal Information Form (PIF).
[4]
The
applicant left Japan in June 1992 in order to pursue university
studies in the United States. She met her husband in 1995, and they were
married in 1999. Their two children are American citizens.
[5]
The
applicant was afraid to tell her family about the relationship due to the
racism that she feltJapanese people manifested toward black people. Once she
told her family about the relationship, they disowned her.
[6]
The
applicant’s husband applied for status in the United States and she
waited to be approved as his dependant. However, he was denied status in 2002
and lost his job in 2003. The family no longer had legal status in the United
States, but did not want to go to Somalia, as they found it too
dangerous. In addition to the discrimination her family would face in Japan, the
applicant was afraid of what her family would do to her if she returned. The
applicant stated that her husband’s relatives in Canada encouraged
the family to come to Canada. The family left the United States and
arrived in Fort
Erie, Ontario, on
September 10, 2003, where the applicant and her two children immediately
claimed refugee protection.
[7]
The
applicant was not represented by counsel at the refugee hearing, which was held
on December 16, 2005. An oral decision was delivered by the Board on the date
of the hearing, and the written reasons are dated January 13, 2006. The Board
concluded that the applicant would not be subjected to discrimination
constituting persecution in Japan, and therefore was not a Convention
refugee. The Board also found that state protection would be available to the
applicant. This is the judicial review of the Board’s decision with respect to
the applicant’s claim for refugee status. The claims of the applicant’s
children have been discontinued.
Board’s
Reasons
[8]
The
Board stated at pages 2 and 3 of its decision:
Then that brings me to your claim as
against Japan. I accept your evidence and
appreciate your honesty. I accept the RPO’s observations that there are
problems in Japan with respect to
discrimination. In Canada we have problems with
discrimination as well. I accept this is probably worse in Japan because it has been a much more homogenous
society for a longer period of time.
However, it is quite clear from the RPO’s
documents that situation is gradually changing. There are more mixed marriages
and the number of mixed marriages is increasing all the time. Discrimination of
the nature you describe does not amount to persecution.
The documents you have provided display
the kinds of problems that persons who are not Japanese would face if living in
Japan. But, you are a Japanese
citizen, you will not face those problems. You have all the rights and all the
obligations of a Japanese citizen.
I appreciate your concern for your
children, but your children’s claim is against the United States. I know as a Mom it is really hard to
separate those two things out and to think of yourself as separate from your
children. However, in the legal construct that I have to work in I can think of
you only in the context of Japan and I am not permitted to
consider questions of family unity. In that respect I am satisfied there is no
evidence to support a finding that you would be at any serious risk of harm if
you return to Japan.
I appreciate your concern about your
family having some kind of campaign against you or being something of a threat
to you. However, the documents made it quite clear that there are mechanisms
in place in Japan that provide police services,
that provide legal services and a judicial system. Japan is a constitutional monarchy. There is
nothing to suggest that the presumption of state protection has been rebutted
in this case or that you would not have access to adequate state protection if
you did encounter any problems upon your return to Japan. So, therefore, I find that your claim
as against Japan also must fail and it is
rejected.
Issues
[9]
The
issues are:
1. Did
the Board err in finding that the discrimination faced by the applicant did not
constitute persecution?
2. Did
the Board err in failing to refer to documentary evidence which supported the
applicant’s claim?
3. Did
the Board err in its analysis of state protection?
Applicant’s
Submissions
[10]
The
applicant submitted that the Board made a superficial analysis of her claim. It
was submitted that the Board’s decision failed to set out the type of
discrimination that the applicant would face, which was clearly stated at the
hearing, and in her written narrative. The applicant had informed the Board
that as the wife of a black man and the mother of two mixed race children, she
would be the victim of racism in the work place, and generally in Japanese
society. It was submitted that this harm was tantamount to persecution.
[11]
Paragraph
54 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status, states that discrimination will amount to persecution if measures of
discrimination lead to consequences of a substantially prejudicial nature for
the person concerned, such as serious restrictions on the right to earn a
livelihood. It was submitted that as a matter of law, the discrimination feared
by the applicant upon return to Japan, if well-founded, was
sufficiently serious to be tantamount to persecution, and that the Board erred
in stating that it was not.
[12]
The
applicant submitted that the Board had an obligation to analyze in more detail
whether the country conditions materials supported her fear. While the Board
generally noted the documents provided by the applicant, no specific mention
was made of any document which supported her claim. The applicant acknowledged
that the Board was not obligated to mention each document she produced. However,
it was submitted that the Board must mention critical documents which run
contrary to its findings, or set out why a document was given little weight. One
document stated that racism was extremely pervasive in Japan and gave
examples of the negative treatment received by black people living there.
[13]
The
applicant submitted that the Board failed to analyze the applicant’s fear of
persecution on the basis of her membership in a particular social group,
namely, as a member of a mixed race family and the wife of a black man. It was
submitted that the Board evaluated her claim by focussing upon her in isolation,
and ignoring the fact that her fear of harm arose because she would be living
with her husband, who was not Japanese.
Respondent’s
Submissions
[14]
The
respondent submitted that the applicant was unable to demonstrate that the
Board’s conclusion was perverse or capricious. It was submitted that the
applicant had not rebutted the presumption that a tribunal is assumed to have
weighed and considered all of the evidence before it (see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)). The
respondent submitted that the fact that the Board had not mentioned each
document was not an indication that the documents had not been considered (see Hassan
v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. 635
(F.C.A.)).
[15]
It
was submitted that the Board took into account the fact that the applicant was
a member of a mixed race family. The respondent submitted that a review of the
transcript demonstrated that the Board considered this factor in both the
applicant’s testimony, and the documentation on country conditions. The Board
acknowledged that discrimination did occur in cases of mixed marriages and
families, however its task was to consider whether the discrimination alleged
by the applicant amounted to persecution.
[16]
The
respondent submitted that the Board considered the cumulative effect of the
alleged discrimination the applicant would face if returned to Japan. It was
submitted that the Board questioned the applicant about the discrimination she
and her children would face in Japanese society. The Refugee Protection Officer
(RPO) also summarized the evidence before the Board at the conclusion of the
hearing. It was submitted that the Board carefully considered the applicant’s
evidence but found that it was speculative and that the effect of this
discrimination did not constitute persecution. The respondent submitted that
the Board was entitled to weigh the evidence and prefer documentary evidence
over that of the applicant (see Zvonov v. Canada (Minister of
Employment and Immigration) (1994), 83 F.T.R. 138, 28 Imm.L.R. (2d) 23;
Zhou v. Canada (Minister of Employment and Immigration) (1994), 49
A.C.W.S. (3d) 558).
[17]
The
respondent submitted that it was open for the Board to conclude that the
discrimination faced by the applicant did not amount to persecution (see Sulaiman,
v. Canada (Minister of
Citizenship and Immigration) (1996), 110 F.T.R. 127). It was submitted
that the Board’s findings must be considered in light of the definition of
persecution adopted by this Court, being an affliction of repeated acts of
cruelty, or a particular period of systematic infliction of punishment. The
respondent noted that mere harassment was not sufficient (Rajudeen v. Canada
(Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)).
[18]
The
respondent submitted that absent a complete breakdown, a state is presumed able
to protect its citizens. It was submitted that refugee claimants must show
clear proof of their state’s inability to protect (see Canada (Attorney
General)
v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1). The respondent
submitted that it was not enough for the applicant to show that her government
had not been effective at protecting persons in her particular situation (see
Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th)
334, 150 N.R. 232 (F.C.A.)). It was submitted that the more democratic a
state’s institutions, the more the applicant must have done to exhaust all
courses of action open to her (see Kadenko v. Canada (Minister of
Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532, 206 N.R. 272
(F.C.A.)).
[19]
The
Board stated that although there were problems with regard to discrimination
against individuals in mixed marriages and families in Japan, the
situation was changing. The Board noted that Japan was a
functioning democracy with adequate judicial, legal, and police resources.
Therefore, the presumption of state protection had not been rebutted. It was
submitted that a reasonable finding of state protection was a sufficient basis
upon which to dispose of the application for judicial review, despite other
errors made by the Board (see Sargraz v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1974 (QL)). It was
submitted that the applicant’s position amounted to a disagreement with the
Board’s conclusion, and that as such, it did not afford a basis for the Court’s
intervention (see Ye v. Canada (Minister of Employment
and Immigration) [1994] F.C.J. No. 1233 (F.C.A.) (QL)).
Analysis and
Decision
Standard of
Review
[20]
The
Board’s conclusion as to whether the discrimination faced by a refugee claimant
constitutes persecution is a question of mixed fact and law, and is therefore
subject to review on the standard of reasonableness (see Lopez v. Canada
(Minister of Citizenship and Immigration) (2006), 151 A.C.W.S. (3d) 678, 2006
FC 1156).
[21]
While
the underlying factual findings are subject to review on the standard of patent
unreasonableness, the Board’s findings on the adequacy of state protection is a
question of mixed fact and law that is reviewable on a standard of
reasonableness (see M.P.C.R. v. Canada (Minister of Citizenship and
Immigration) (2005), 139 A.C.W.S. (3d) 1068, 2005 FC 772). I would also
note that the Board is presumed to have considered all of the documentary
evidence before it, unless the contrary is shown (see Florea above).
[22]
Issue
1
Did the
Board err in finding that the discrimination faced by the applicant did not
constitute persecution?
The
applicant submitted that the Board did not analyze her fear of persecution as a
member of a particular social group, namely, as a member of a mixed race
family. The applicant also argued that the Board erred in finding that the
repeated acts of discrimination she would face in Japan did not
amount to persecution.
[23]
I
would note from a review of the Board’s decision that it did consider the
applicant’s submissions that there were problems with discrimination in Japan. The Board
also considered the RPO’s submissions with respect to discrimination. Those
remarks, found at page 177 of the tribunal record, include the following:
I believe the issue before you is whether
or not this discrimination is tantamount to persecution. The claimant was
questioned at length as to whether or not she knows of anyone who has suffered
discrimination personally or whether, even she was back in Japan, if she
herself experienced it. She could not. But as we know it’s forward looking. And
as I’ve said before, the documents do support the fact that mixed marriages not
only exist, but discrimination happens as a result of these mixed marriages.
So, as I said, ma’am, I would like you to consider whether the discrimination
mentioned by the claimant, albeit she is speculating because she could not give
evidence with any certainty, that the children would suffer discrimination. But
the fact that discrimination exists, I’ll ask the member again to consider
whether or not this is tantamount to persecution.
[24]
With
respect to discrimination, the applicant stated in response to a question by
the RPO at page 165 of the tribunal record:
RPO: But the fact remains,
what we’re trying to do here, ma’am, is to find what would happen if you were
to return. So this is the future. What would happen if you were to return today
or later. So they do now have mixed marriages there. Do you have any
information as to how people of mixed marriages are treated there currently?
Claimant: I was looking for
Internet about the article, but I couldn’t find anything about the specific
topic, because you know still my country is like – according (inaudible) in
Japan, (inaudible) first page, almost 90-93% population is ethnic Japanese. So,
this is representative about the majority of the population in Japan is Japanese. So ---
[25]
The applicant referred
to paragraph 54 of the UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status, which states:
54.
Differences in the treatment of various groups
do indeed exist to a greater or lesser extent in many societies. Persons who
receive less favourable treatment as a result of such differences are not
necessarily victims of persecution. It is only in certain circumstances that
discrimination will amount to persecution. This would be so if measures of
discrimination lead to consequences of a substantially prejudicial nature for
the person concerned, e.g. serious restrictions on his right to earn his
livelihood, his right to practise his religion, or his access to normally
available educational facilities.
[26]
During the oral
delivery of its reason, the Board indicated that while there was evidence that
people in mixed marriages suffered from discrimination in Japanese society,
such discrimination did not constitute persecution. The applicant’s documentary
evidence and testimony did not lead to the conclusion that she would suffer
from discrimination leading to consequences of a substantially prejudicial
nature to her, should she return to Japan. Upon review of
the applicant’s testimony and the documentary evidence as to country
conditions, I cannot find that the Board’s conclusion was unreasonable.
[27]
Issue
2
Did the
Board err in failing to refer to documentary evidence which supported the
applicant’s claim?
The
applicant submitted that the Board did not consider the applicant’s documentary
evidence in sufficient detail. Generally, the Board is considered to have
considered all of the evidence before it and is not required to mention every
piece of evidence. By way of example, the following exchange took place at the
hearing, found at page 176 of the tribunal record:
Presiding Member: Okay. All right,
well then I’ll mark that as exhibit R-4. And from the claimants I have the
three Personal Information Forms, the package of objective documents titled,
“Ethnic Issues in Japan”. And then I also have, which
I have marked as C-5, the documents from your spouse this afternoon. Okay?
. . .
RPO: The issue
I believe, ma’am, that’s before you is, and I ask you to consider, is whether
or not, if the claimant and the children were to return to Japan, if what they face there would be
tantamount to persecution. The documentary evidence, it cannot be denied that
discrimination exists in Japanese society. Especially where people of foreign
nationalities are married to Japanese nationalities.
We do have in the DOS, that’s from 2004,
and it states categorically that discrimination is entrenched in the society
and it includes, among other things, it restricts access to housing and
employment opportunities. The documents that have been entered into evidence,
including not only the DOS but including R-4 and, I think it’s C-5 – C-5 or C-4
---
Presiding Member: C-4 and R-4.
[28]
From
my review of the hearing transcript, the oral and written decisions, I am of
the view that the Board did consider the documentary evidence, including the
applicant’s evidence, in coming to its decision. I cannot conclude that the
Board made a reviewable error in this respect.
[29]
Issue
3
Did the
Board err in its analysis of state protection?
The Board
concluded that the applicant did not rebut the presumption that state
protection would be available to her. I am of the view, after reviewing the
file material, that the Board did not make a reviewable error in this respect.
[30]
The
application for judicial review is therefore denied.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
[32]
The
claims of the two children were withdrawn.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c.27.:
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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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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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