Date: 20070904
Docket: IMM-4140-06
Citation: 2007
FC 883
Montréal, Quebec,
September 4, 2007
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
COMFORT EDOBOR, BRADLEY ISERHIEN
AND ELYZAH
ISERHIEN
Applicants
and
THE MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants apply 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 Immigration and Refugee Board (Refugee Protection Division) (the Board)
dated June 23, 2006, which determined that
the applicants are not Convention refugees or persons in need of protection.
FACTS
[2]
Comfort
Edobor (the “principal applicant”) and her children Bradley Iserhien and Elyzah
Iserhien are citizens of Nigeria. They fled Nigeria and
came to Canada on July 7,
2005. The applicants made a refugee claim on July 28, 2005 alleging a
well-founded fear of persecution on the grounds of membership in a particular
social group, namely, for the principal applicant, abused women in Nigeria, for the
minor female applicant, females facing genital mutilation, and for the minor
male applicant, males facing tribal facial scarring.
[3]
According
to the principal applicant’s Personal Information Form (“PIF”) Narrative, the
principal applicant was in an abusive common law relationship with the chief of
the Oshodi village. She claims that her common law partner would
psychologically, physically and sexually abuse her, accuse her of having an
affair, force her to stop applying makeup and change her mode of dressing, and
isolate and threaten her.
[4]
In
2005, the principal applicant’s PIF states that her partner wanted to have the
female minor applicant circumcised despite the principal applicant’s
objections. The circumcision was scheduled for February 25, 2005, but two days
prior to that date, the applicants fled to Warri.
[5]
The
principal applicant’s partner and his family located the applicants and forced
them to return on March 1, 2005. The principal applicant claims that as a
result of this, her partner prevented her from working, beat her, and
threatened to attack her with acid if she told anyone.
[6]
The
principal applicant also states that on March 14, 2005, when her partner was
away on business, four of his relatives came and threatened to take the female
minor applicant away unless the principal applicant swore an oath, at the
family shrine, that they would all be present at the next family ritual on
August 15, 2005.
In her PIF, the principal applicant claims
she went to the police on April 20, 2005 regarding her daughter’s impending
circumcision, but the police refused to intervene because they said it was a
family and customary issue. On June 10, 2005, the applicants fled to Lagos where the
principal applicant’s brother resided, and then travelled to Canada.
ISSUES
[7]
This
case raises the following issues:
1.
Whether
the Board erred in making its credibility findings?
2. Did the Board err by
ignoring some evidence central to the applicants’ claim?
3. Did the Board err by
relying on evidence not submitted by the applicants, but by an anonymous third
party?
Legislation
|
Immigration and Refugee
Protection Act
(S.C. 2001, c.27)
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.
|
Loi
sur l’immigration
et
la protection des réfugiés
(L.C. 2001,
ch. 27)
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 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 themselves 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.
(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.
|
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.
(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.
|
Standard of review
[8]
The
Board’s findings with respect to plausibility and credibility warrant a high
level of deference, and are reviewable on the standard of patent
unreasonableness (see Miranda v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 437 (C.A.) (QL); Aguebor v. Canada
(Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Rahman v.
Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 1235 at para. 26-28 (C.A.) (QL)).
[9]
In
order for an alleged error of fact to be reviewable, the Tribunal
must have made an "erroneous" finding of fact and that erroneous finding
must have been made in a perverse or capricious manner, or without regard for
the material before the Tribunal, and the decision attacked must be
"based" on the erroneous finding (see Rohm and Haas Canada Ltd. v. Canada
(Anti-Dumping Tribunal), [1978] F.C.J. No. 522 (C.A.) (QL); more recently
Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 565 (C.A.) (QL); Harb v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 108 (C.A.) (QL)).
[10]
The
principal applicant submits that the Board erred by not considering local
custom and culture when it made the finding that it was implausible that the
common law partner’s family would wait 5 months to carry out the circumcision
in August when the principal applicant and her children had fled prior to the
first date being set in February. She asserts that August 15th was
a ceremonious day and that, by custom, most families have their children
circumcised on ceremonious days.
[11]
The
respondent submits that the Board made this finding due to inconsistencies in the
principal applicant testimony. In particular, the respondent argues that the
principal applicant testified that the initial date set for the daughter’s
circumcision was a market day, that there were a number of market days between
the first scheduled circumcision and the second, and finally, that the
principal applicant could not explain why the family would wait until August to
schedule the second date and why the first scheduled circumcision was not
scheduled in August to begin with.
[12]
This Court has held that a Board may err when it
fails to assess the evidence in its proper context (see Giron v. Canada
(Minister of Employment and Immigration) (1992), 143 N.R. 238, 33 A.C.W.S. (3d) 1270 (F.C.A.); Jack v. Canada (Minister of
Citizenship and Immigration), 2007 FC 93). In Rani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 73 at paragraph 8, Mr. Justice
O’Reilly held that, “The Board has a duty to assess the evidence before it and
to do so in a manner that is sensitive to the social and cultural context from
which it arises.”
[13]
The country documentation in front of the Board,
including its National Documentation Package for Nigeria, clearly indicates
that the practice of female genital mutilation in Nigeria
is carried out of adherence to a cultural dictate.
[14]
The principal applicant, in her testimony, did
provide an explanation of why the family waited approximately 5 months to
circumcise the minor female applicant, namely that circumcision is traditional
and ceremonial and is done in accordance with the traditional calendar. While
the principal applicant stated that it is usually done on a market day, she
also stated that because there was a festival coming up in August, the family
decided this was the best time to conduct the circumcision.
[15]
The Board was not sensitive to the social and
cultural context surrounding the principal applicant’s evidence as to why her
daughter’s circumcision would take place at a certain date. Contrary to the
Board’s reasons, there was an explanation for why August 15 was chosen for the
circumcision date. Both the country documentation and the principal
applicant’s testimony attest to the cultural and ceremonial backdrop to which
circumcisions take place in Nigeria
and thus could provide a rationale for the chosen date, albeit 5 months later
than originally scheduled. Consequently, the Court finds that the Board’s
credibility finding was made without regard to the evidence before the Board.
[16]
The principal applicant also submits that the
Board erred in finding that while the principal applicant went to the police in
April 2005, prior to the pending circumcision in August, the principal
applicant did not provide a satisfactory explanation as to why she did not
report the pending circumcision to the police in February. The respondent
simply submits that the Board was entitled to find her testimony not credible.
[17]
This Court has held that a contextual approach
is to be taken in conformity with the Board’s Gender Guidelines, especially
when it comes to a battered woman (Garcia v. Canada
(Minister of Citizenship and Immigration), 2007 FC 79). Justice
Campbell in Garcia, referred to the Supreme Court of Canada’s case of R.
v. Lavallee, [1990] 1 S.C.R. 852, wherein the Court stated that a
contextual approach is needed when questioning why a woman did not seek help or
leave earlier. Indeed, the Supreme Court has stated that the mental state a
battered woman may be in may affect whether or not she does seek help.
[18]
While
the Board, in its decision, did mention the Gender Guidelines, the Board was
nevertheless insensitive to the principal applicant’s situation when, in its
reasons, it stated that the principal applicant “was unable to give the
panel a satisfactory explanation as to why she did not report the pending
circumcision to the police in February”.
[19]
The
Board also misconstrued the evidence in its decision, when it neglected to
mention that the principal applicant went to see the police due to the beatings
she received from her partner.
[20]
Questions
regarding the evaluation of evidence are considered questions of fact and thus
are reviewed by a standard of patent unreasonableness (Aguebor, supra; Umba v. Canada (Minister
of Citizenship and Immigration), 2004 FC 25; Harb v. Canada (Minister of Citizenship and Immigration),
2003 FCA 39).
[21]
The
jurisprudence of this Court supports the notion that the Board has a duty to
consider documentary evidence that supports the Applicant’s position (Bains
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497
(QL); Maldonado v. Canada (Minister of Employment and Immigration), [1980]
2 F.C. 302). Justice Shore
recently held, in Assouad v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1216 (QL) that “A Board
is under a duty to justify its credibility findings with specific and clear
reference to the evidence, particularly when the evidence is cogent and
relevant to the Applicant’s allegations.”
[22]
The
applicants submitted documents central to their claims including two notes from
her mother stating that threats were still being made against the principal
applicant, a letter from the Family Services of Peel confirming that the
principal applicant received counselling services for her trauma from her
abusive relationship, and a medical certificate from a doctor confirming that
the female minor applicant had not been circumcised. While, it is open for the
Board to find the applicants not credible, the Board still had a duty to address
whether or not the evidence submitted by the applicants affected its decision.
[23]
In
reviewing the procedural framework in which the decision to consider extrinsic
evidence was made, the Court need not engage in an assessment of the
appropriate standard of review. Rather, the Court is required to evaluate
whether the rules of procedural fairness or the duty of fairness have been
adhered to (Dr. Q v. College of Physicians and Surgeons of British Columbia,
[2003] S.C.J. No. 18; Ha v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 49).
[24]
The
Board, in its decision, held that Exhibit C4, a package of documents submitted
to the board by an unknown outside source, casts a shadow on the principal
applicant’s credibility. The Board did not accept the principal applicant’s
story that she did not know of the existence of these documents, and that they
could be false documents fabricated by a third person who has a personal
vendetta against the principal applicant.
[25]
This
Court has held that if the Board relies on “extrinsic evidence” not brought
forward by the applicant but from an outside source, the board must give the
applicant the opportunity to respond to the evidence (Shah v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 1299 (Fed. C.A.) (QL); Ardiles
v. Canada (Minister of
Citizenship and Immigration, 2002 FCT 1323). The importance of giving
notice and providing an opportunity to respond to the evidence is accentuated
when the board intends to rely on the evidence to make a decision.
[26]
The
applicant submits that the Board failed to authenticate the documents, and that
it was an error of law for the Board to treat the documents as documents
submitted by the principal applicant, and thus rely on them to question the
credibility of the principal applicant. The respondent submits that the
applicants were afforded an opportunity to respond to the evidence.
[27]
The
Court finds that the applicants were given an opportunity to address whether
the Board should consider Exhibit C4. Indeed, the Board adjourned the first
hearing in order for all parties to look at the documents and investigate
whether they could be authenticated. The Board, after reviewing the documents,
concluded that there was no way to authenticate them as they were sent in
anonymously.
[28]
Counsel
for the applicants was advised, in writing, to make submissions and was also
notified that the Board was not going to pursue verifying the documents.
Counsel got the impression from this correspondence that the documents were not
an issue, but the Board clarified this in the next hearing. Counsel was then
given the opportunity to respond to the documents orally. Having fulfilled its
obligation to give the applicants the opportunity to address the use of Exhibit
C4, it was entirely up to the Board, while taking the applicants’ submissions
into consideration, to rely on the documents in Exhibit C4.
[29]
In
the light of the foregoing (failure to be sensitive to the social and cultural
context, misconstruction of evidence, failure to consider documents central to the claim, relying
on documents
submitted by an unknown outside source ), the Court concludes that on the overall the
Board’s decision is patently unreasonable and should be quashed.
[30]
The
parties were invited to present questions of importance for certification but
declined.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
- The application for
judicial review is allowed;
- The matter be returned to a
differently constituted Board for re-determination; and
- No question is certified.
“Maurice E. Lagacé”
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