Date: 20080814
Docket: IMM-3638-07
Citation: 2008 FC 946
Ottawa, Ontario, August 14, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MATIN MARSHALL and DIANA
MARSHALL
And SARA MARSHALL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRAITON
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 or the Act) for judicial
review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (the Board), dated July 15, 2007, which found that the applicants
were neither Convention refugees nor persons in need of protection.
[2]
The
applicants requested that the decision be set aside and the matter be referred
back to a newly constituted panel of the Board for redetermination.
Background
[3]
The
applicants are a family consisting of a husband (Matin), a wife (Diana) and
their young daughter (Sara). The applicants are all citizens of Afghanistan; the minor
applicant was born in Pakistan, but she has not
claimed Pakistani citizenship.
[4]
Both
adult applicants are of Tajik ethnicity, but while Matin is Sunni Muslim, Diana
is a Shiite Muslim. They both come from very non-religious, secular backgrounds
and were raised in very progressive families. They both left Afghanistan before the
ousting of the Taliban and change of government in 2001 because their families
did not agree with the extreme conservative conditions under that regime. Matin
Marshall left Afghanistan in 1992, and
Diana Marshall left in 1996. They met while living in Pishawar, Pakistan, a
border city with Afghanistan where Afghan refugees reside.
[5]
In
their Personal Information Forms (PIFs), the adult applicants provided examples
of the alleged persecution. Specifically, Diana Marshall recounted how while
living in Pishawar she could not leave her home without being in full burqa and
escorted by a male relative. Moreover, she described an incident wherein she
told a friend that she would love to go swimming in a local lake. As women were
forbidden to swim, the friend’s father approached Diana Marshall’s father and
reminded him of the need to teach his daughter Muslim values. For his part,
Matin Marshall recounted an incident wherein he was physically threatened and
called an ‘infidel’ for having spoken to an unrelated woman. On another
occasion, while being shown videos of Taliban corporal punishment by his
co-workers, Matin Marshall voiced his opposition to the videos and was
subsequently beaten by his co-workers’ friends.
[6]
The
adult applicants submitted that upon the birth of their daughter Sara in
December 2001, they felt compelled to escape the situation in Afghanistan. The
applicants were especially concerned that they had to live a life based on
‘pretending’ that they shared the same conservative values that dominated both
Pishawar and Afghanistan. The
applicants entered Canada on or about April 16, 2006 and claimed refugee
status on April 19, 2006.
[7]
In
a decision dated July 15, 2007, the Board found that the applicants were
neither Convention refugees, nor persons in need of protection.
Board’s
Decision
[8]
The
Board noted that the applicants’ identity had been established and that they
were credible witnesses. The Board stated “the claimants were patently honest
and forthright, and made no attempt to exaggerate or to embellish the
particulars of their specific circumstances, although there would have been
ample opportunity to do so.”
[9]
The
Board stated that the applicants based their claims on the general situation in
Afghanistan, as well as
the general situation of women in that country. The Board noted that it had
considered the Gender Guidelines, and accepted that women may need
refugee protection on account of their gender in appropriate cases.
[10]
The
Board then considered the situation in Afghanistan. The Board
described the Taliban governance as being repressive and brutal towards women,
but stated that since the Taliban regime collapsed at the end of 2001, the new
government had made efforts to implement democratic principles, gender equality
and principles of international human rights law. The Board noted that
implementation and results of these measures have been mixed and that the new
measures on gender equality were not available to all women in Afghanistan.
[11]
The
Board then noted that as in all refugee claims, the case had to be determined
on the basis of the evidence as it relates to the specific applicants. The
Board identified the following challenges in the present case:
1. Whether
under section 96 there was any reasonable chance or serious possibility of harm
to the applicants amounting to persecution?
2. Whether
the applicants faced a risk to their lives or of cruel and unusual treatment or
punishment or a danger of torture which was particular to them and not general
to other individuals in Afghanistan?
[12]
Having
reviewed the documentary evidence, the Board then rendered its findings on the
specific fears alleged by the applicants. The Board’s overall determination was
that the evidence did not support a finding that the applicants needed refugee
protection. The Board acknowledged that women faced “serious disadvantage and
discrimination in Afghanistan” and that it would take time before Afghan
women had the level of equality experienced by women in Western countries.
However, the Board stated that this did not mean that Afghan women were in need
of refugee protection for those reasons alone.
[13]
The
Board noted the applicants’ submission that “the whole system”, including the
volatile nature of Afghan society at the present time and the traditional
conservative nature of society, generated an elevated level of risk for the
applicants. However, the Board found that these conditions did not lead to a
conclusion that the female applicants faced a reasonable chance of persecution,
or a risk to their lives or of cruel and unusual treatment or punishment, or a
danger of torture. The Board stated:
In order to make such a finding in this
case, in the absence of any specific circumstances which would lead these
claimants into harm’s way, but rather on the basis of the general situation in
Afghanistan, including the general situation of women, it would be necessary to
find that the claimants need refugee protection because of their citizenship, and
gender, alone.
[14]
The
Board rejected the applicants’ argument that the government of Afghanistan had only
made token gestures in favour of gender equality. In doing so, the Board noted
the percentage of women in Parliament, the number of women registered to vote
in elections and the rate of women occupying positions throughout the civil
service.
[15]
The
Board also found that the evidence did not support a finding that people from Afghanistan, apart from
their gender, were in need of refugee protection because of their nationality
or citizenship alone. The Board noted that the applicants had taken no steps to
approach the state authorities for protection against the harm feared and
acknowledged that given the context of the applicants’ fears, state protection
was a difficult question. The Board noted that the applicants would have to
make some approach to see what protection could be offered, or they would have
to show that it would be unreasonable to expect them to make such an approach.
[16]
In
conclusion, the Board stated:
The end result is that it would be
entirely speculative for the panel to find that the claimants face more than a
mere possibility of persecution, or a risk to their lives or of cruel and
unusual treatment or punishment, or a danger of torture. Accordingly their
claims for refugee protection under sections of 96 and 97 f [sic] the
Act are rejected.
Issues
[17]
The
applicants submitted the following issues for consideration:
1. Did
the Board err in determining that section 97 of IRPA does not apply to risks
faced generally by other individuals and does not protect groups of people in
society?
2. Did
the Board err in not extending freedom to exercise one’s religion to the right
not to exercise any religion?
3. Did
the Board err by not considering the objective documents, or even if it
considered them, reach a patently unreasonable conclusion?
[18]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the Board err in law in its analysis of section 97 by failing to recognize the
section could apply to groups of individuals facing similar persecution?
3. Did
the Board err in finding that the fear faced by the applicants did not amount
to persecution?
Applicants’
Submissions
[19]
In
their written submissions, the applicants submitted that the Board’s finding
that women in Afghanistan are not
persons in need of protection under section 97 was entirely incorrect and
contrary to case law. The applicants submitted that women subject to collective
abuse at the hands of strangers are a particular social group in need of
protection. The applicants noted that the Board acknowledged the systemic
discrimination against women in Afghanistan and the numerous
limitations on their freedom. In light of these acknowledgements it was unreasonable
for the Board to find that women in Afghanistan are not being
persecuted. The applicants also submitted that as individuals who are
westernized, non-religious and secular, they were ‘uniquely’ different from the
majority of the Afghan population which made the persecution faced even more
serious.
[20]
The
applicants’ also argued that the Board erred in not extending freedom to
exercise one’s religion to the right not to exercise any religion. Freedom of
religion includes the right to manifest one’s religion in public, or private,
in teaching, practice, worship and observance (Fosu v. Canada (Minister of
Employment and Immigration) (1994), 27 Imm. L.R. (2d) 95 (F.C.T.D.)). The
applicants submitted that the right to manifest religion in public also includes
the right not to manifest it in public. Thus, the applicants forced adherence
to the Islamic dress code and other codes of conduct is a violation of their
freedom of religion and conscious. The applicants cited at length portions of
the hearing transcript wherein they testified as to their opposition to such
religious dress codes and other codes of conduct. The applicants also noted the
case of Kassatkine v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 1105, wherein the Court
held that a law which requires a minority of citizens to breach the principles
of their religion is patently persecutory. The applicants submitted that in
light of the finding in Kassatkine above, it must also be true that a
law that forces a minority to practice a religion they do not believe in is
also persecutory. Moreover, the applicants submitted that as per Chan v.
Canada (Minister of
Employment and Immigration), [1995] 3 S.C.R. 593, what constitutes a basic
human right is determined by the international community and not by any one
country. The right to religion, including the right not to adopt a certain
religion is a basic human right and violation of this right amounts to
persecution.
[21]
And
lastly, the applicants submitted that in light of the documentary evidence, the
Board erred in concluding that the conditions in Afghanistan do not
amount to persecution.
Respondent’s
Submissions
[22]
The
respondent submitted that the Board’s unchallenged finding of state protection
is dispositive of this application for judicial review. An applicant must
either show that they sought state protection, but it was not forthcoming, or
else that it would be “objectively unreasonable” for them to have done so. As
the Board found, the applicants failed to show either in the present case.
[23]
The
remainder of the respondent’s submissions were made in the alternative. The
respondent submitted that the Board’s interpretation of section 97 is
reviewable on a standard of correctness. The Board’s finding that the female
applicants were not at a particular risk under section 97 as “westernized,
non-religious, secular” females is reviewable on a standard of patent
unreasonableness.
[24]
The
respondent submitted that contrary to the applicants’ argument, the Board
clearly considered the gender-based claim under section 97. Moreover, the Board
correctly found that a generalized risk is a limiting factor under section 97.
The respondent noted that the wording of section 97 and current jurisprudence
(see Sanchez v. Canada (Minister of Citizenship
and Immigration), 2006 FC 604; Bouaouni v. Canada (Minister of
Citizenship and Immigration), [2003] FC 1211) both support the
established conclusion that a risk under section 97 must be personal or
individual to the claimant. The Board’s finding that section 96 and 97 were not
met was reasonable given the Board’s assessment of “personalized risk” versus
“generalized risk”, and the Board’s finding that there was insufficient
evidence of “personalized risk” and “generalized risk” is not enough.
[25]
As
to the applicants’ argument that the Board erred in not extending freedom of
expression to the right not to express religion, the respondent submitted that
the Board reviewed the relevant factors but concluded that the applicants faced
discrimination, not persecution. The respondent noted that the adult applicants
are in fact Muslim, albeit perhaps not fundamentalists. The respondent
submitted that the Board considered the circumstances in Afghanistan including
religious codes of conduct imposed on the population as per the documentary
evidence, but found that these did not amount to persecution. The respondent
submitted that given the mixed documentary evidence and given the Board’s
acknowledgement of widespread discrimination, the finding that the
discrimination did not amount to persecution was reasonably open to the Board.
[26]
And
lastly, the respondent submitted that the Board clearly reviewed the Gender
Guidelines, and reasonably found that women in Afghanistan were not in
need of protection on the basis of gender. The respondent submitted that the
applicants are asking the Court to reweigh the evidence. This is not the role
of the Court on judicial review (Scherzad v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1224).
Analysis and
Decision
[27]
Before
engaging in an analysis of the issues raised by the applicants, I first feel it
necessary to address the respondent’s argument that as the applicants have not
challenged the Board’s finding on state protection, this judicial review must
fail. In my opinion, this argument cannot be accepted. It is true that the Board
made comments on state protection. Specifically the Board commented on the
applicants’ failure to show that they had either tested the state protection
mechanisms or that it was objectively unreasonable to expect them to. However,
in my opinion, the Board did not conduct an analysis of state protection, nor
did it make a finding on the adequacy of state protection. The statements made
by the Board were comments on the applicants’ situation; the determinative
factor was not state protection, but yet lack of persecution. The Board had already
found that the applicants were neither refugees, nor persons in need of
protection and as such, there was no requirement on the Board to make a finding
on state protection. In light of this, I will proceed to my analysis of the
issues raised by the applicants.
[28]
Issue
1
What is
the appropriate standard of review?
The issue of
whether the Board erred in its section 97 analysis is a question of law
reviewable on a standard of correctness. The Board’s conclusion as to whether
the discrimination and hardship faced by a refugee claimant constitutes
persecution is a question of mixed fact and law, and is therefore subject to
review on a standard of reasonableness (Lopez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1452).
[29]
Issue
2
Did the
Board err in law in its analysis of section 97 by failing to recognize the
section could apply to groups of individuals facing similar persecution?
The applicants submitted that the Board erred in denying the
applicants’ section 97 claim on the basis that section 97 did not apply to
individuals who faced a risk as a group, that is a general risk. The respondent
submitted that the Board did not err in its analysis as section 97 requires a
“personalized” risk; a “general” risk does not suffice.
[30]
In
Bouaouni v. Canada (Minister of
Citizenship and Immigration), above at paragraph 41, Justice Blanchard
made the following findings regarding a section 97 analysis:
A claim under section 97 must be
evaluated with respect to all the relevant considerations and with a view to
the country’s human rights record. While the Board must assess the applicant’s
claim objectively, the analysis must still be individualized. I am satisfied
that this interpretation is not only consistent with the United Nations CAT
decisions considered above, but is also supported by the wording of paragraph
91(1)(a) of the Act, which refers to persons, “…whose removal… would subject
them personally…”.
[31]
It
is clear from the above passage that while the risk may be shared by others
similarly situated, the risk must nonetheless be individual to the applicant.
That is, while a “personalized” risk will suffice, a “general” risk will not.
[32]
The
relevant portions of the Board’s decision reads as follows:
In this case, the challenge is to
identify, under section 96, any reasonable chance or serious possibility of
harm to the claimants, and whether that amounts to persecution, and, under
section 97, whether they face a risk to their lives or of cruel and unusual
treatment or punishment which is particular to them and not general to other
individuals in Afghanistan, or a danger of torture.
The Board goes on to state:
The panel finds, however, that these conditions
do not lead to a conclusion that the female claimants face a reasonable chance
of persecution, or a risk to their lives or of cruel and unusual treatment or
punishment, or a danger of torture. In order to make such a finding in this
case, in the absence of any specific circumstances which would lead these
claimants into harm’s way, but rather on the basis of the general situation in
Afghanistan, including the general situation of women, it would be necessary to
find that the claimants need refugee protection because of their citizenship,
and gender, alone.
[33]
It
is clear by the Board’s decision that it considered the applicants’ risk, but
was of the opinion that without “specific circumstances which would lead these
claimants into harm’s way” the risk was too general. That is to say that the
Board was of the opinion that the applicants had failed to show how the risk
faced was particular to them.
[34]
I
note that the applicants also argued that in its section 97 analysis, the Board
failed to recognize the applicants’ gender-based arguments. I disagree. The
Board clearly stated that it had reviewed the Gender Guidelines and
accepted that in certain cases women may need refugee protection on account of
their gender. Moreover, the Board clearly reviewed the situation of women
throughout its analysis of the country conditions as per the documentary
evidence. I would not allow the judicial review on this ground.
[35]
Issue
3
Did the Board err in finding
that the fear faced by the applicants did not amount to persecution?
The applicants submitted that
their forced adherence to strict Islamic codes amounted to persecution. The
respondent submitted that the applicants are really arguing that they will be
persecuted for being “Westernized”.
[36]
In
its decision, the Board reviewed the specific fears alleged by the applicants,
canvassed the documentary evidence, and made a number of conclusions. The
Board’s overall conclusion was that the evidence did not support a finding that
the claimants needed refugee protection. The Board acknowledged that women in Afghanistan faced
serious disadvantage and discrimination, but found that this did not amount to
persecution.
[37]
In
my opinion, the Board clearly considered whether or not the applicants’ forced
adherence to strict Islamic codes amounted to persecution. The Board found that
there was no evidence that at least in Kabul and regional
centres women were restricted to the home or required to wear a burqa, although
wearing a headscarf was required. The Board also found that although there were
limitations to freedom of expression, Afghanistan was in the process of
developing a free civil society. Furthermore, the Board found that while there
was some indication that the current government intended to re-establish a
Ministry of the Vice, there was no evidence upon which to conclude that any
threat would be forthcoming from this Ministry to the applicants.
[38]
As
to the reasonability of the Board’s finding that the alleged fear did not
amount to persecution, I am of the opinion that the Board’s decision was
reasonable in light of the documentary evidence before it. The Board clearly
acknowledged the discrimination and hardship faced by the applicants as
evidenced in the documentary evidence. However, it was satisfied that the
documentary evidence also indicated that since the regime change there had been
significant improvements. It is not the role of this Court to reweigh the
evidence before the Board; in this respect, deference must be given to the
Board. I am satisfied that the Board did not err in rendering its decision. I
would not allow the judicial review on this ground.
[39]
The
application for judicial review is therefore denied.
[40]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[41]
IT
IS ORDERED that the application for judicial review is denied.
“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 (IRPA):
|
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.
(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.
|
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.
(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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