Date:
20130412
Docket:
IMM-6330-12
Citation:
2013 FC 372
Ottawa, Ontario,
April 12, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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NOMONDE GCEBILE MABUYA
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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 is a citizen of Swaziland, who made a refugee claim based on her
alleged involvement in an anti-government protest march, her claimed fear of
persecution by a brother of her former common-law spouse, whom she alleges
raped her, and the discrimination she alleges she would face as a result of her
HIV- positive status. In a decision dated May 23, 2012, the Refugee Protection
Division of the Immigration and Refugee Board [the Board or the RPD] dismissed
the applicant’s claim for protection, finding her to be neither a person in
need of protection nor a Convention refugee within the meaning of sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
IRPA].
[2]
In
this application for judicial review, the applicant argues that the Board’s
decision should be set aside because the RPD erred in failing to mention and
properly apply IRB Guideline 4: Women Refugee Claimants Fearing
Gender-Related Persecution, Guidelines issued by the Chairperson pursuant
to Section 65(3) of the Immigration Act, effective date: November 13,
1996 [the Gender Guidelines]. She also alleges that the RPD erred in failing to
address the actual basis of her claim, which involved an intersection of being
both HIV- positive and a woman in Swaziland, and erred in failing to provide
adequate reasons for finding she would not face persecution if returned to Swaziland.
[3]
As
each of the alleged errors amounts to a challenge to the adequacy of the
Board’s reasons, they are to be assessed along with the Board’s conclusions on
the reasonableness standard of review (Construction Labour Relations v
Driver Iron Inc, 2012 SCC 65 at para 3 [Construction Labour Relations]
and Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 14 [Newfoundland Nurses]).
[4]
For
the reasons set out below, I have determined that the Board did not commit any
of the alleged errors and that its decision is reasonable. Thus, this
application for judicial review will be dismissed.
Did the Board
err in failing to mention or apply the Gender Guidelines?
[5]
There
are numerous cases in which this Court has set aside RPD decisions that fail to
exhibit adequate sensitivity to the issues enshrined in the Gender Guidelines.
Often, these cases turn on a finding that the Board’s credibility
determinations fail to take account of the realities faced by a female
claimant, such as the impact of cultural taboos surrounding sexual violence. As
a result of such taboos, survivors of sexual violence may fail to report
assaults or even to speak about them contemporaneously, but such failures are
not necessarily indicative of a lack of credibility. In addition, there are
almost invariably no witnesses to sex-related crimes. As a result, it is often
difficult for claimants who allege to have experienced sexual assault to
provide corroboration for their claims. Moreover, many women find it difficult
to speak about sexual violence to a stranger in the context of a hearing.
Decisions which are not adequately sensitive to these sorts of realities and
which impugn the credibility of claimants based on lack of corroboration or
difficulty in speaking about the assault have often been set aside as
unreasonable (see e.g. Njeri v Canada (Minister of Citizenship and
Immigration), 2009 FC 291 at para 16; Sukhu v Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at paras 18-21 [Sukhu]; De
Araujo Garcia v Canada (Citizenship and Immigration), 2007 FC 79 at para
24; and Jones v Canada (Minister of Citizenship and Immigration), 2006
FC 405 at paras 14-18).
[6]
In
her written submissions, the applicant argues that the RPD committed errors of
this sort in failing to mention that it was applying the principles in the
Gender Guidelines and in doubting the applicant’s credibility, in part, because
it found she had failed to provide corroboration for the sexual assault she
claimed to have suffered at the hands of her ex-partner’s brother.
[7]
Neither
of these points has merit. In terms of the first, as the respondent correctly
notes, the case law establishes that there is no need for the RPD to
specifically mention the Gender Guidelines in a decision provided it adequately
applies the principles enshrined in them (see Sukhu at para 18; Tsiako
v Canada (Minister of Citizenship and Immigration), 2012 FC 1253 at para
25).
Insofar as concerns the second
point, contrary to what the applicant claims, the RPD did not base its decision
on a finding that the rape had not occurred. Rather, it dismissed the
applicant’s claim to fear future assaults from the brother of the applicant’s
ex-partner because it found that the applicant had not established that he was
still in Swaziland. The applicant does not challenge this finding.
[8]
During
the hearing, counsel for the applicant conceded that in light of the Board’s
conclusion, the claimed failure to apply the Gender Guidelines does not provide
a basis, in and of itself, for intervention because the Board’s decision does
not rest on an impermissible credibility finding. Counsel, however, maintained
that an improper finding was nonetheless made and that this should be taken
into consideration with respect to the other two alleged errors, which are
likewise centred on a lack of sensitivity towards the plight of HIV- positive
women in Swaziland.
[9]
I
disagree that the Board made an improper credibility finding in this case.
While the Board does mention the lack of corroboration for the claimed rape, it
did not disbelieve the applicant’s claim that it occurred. Rather, it premised
its credibility findings on omissions from the applicant’s Personal Information
Form on other topics. Thus, the first error alleged by the applicant provides
no basis for intervention, either on its own or in support of one of the applicant’s
other claims.
Did
the Board err in failing to address the basis for the applicant’s claim, which
centres on the intersection of being both HIV- positive and a woman in
Swaziland?
[10]
Turning
to the second alleged error, as the applicant rightly notes, this Court has
held that a failure by the RPD to consider the interplay between multiple
grounds of persecution invoked by an applicant may give rise to reviewable
error (see e.g. Gorzsas v Canada (Minister of Citizenship and Immigration),
2009 FC 458 at para 40; Diaz v Canada (Minister of Citizenship and
Immigration), 2008 FC 1243 at para 36 [Diaz]; and Ramirez v
Canada (Minister of Citizenship and Immigration), 2008 FC 466 at para 18).
Here, the Board did not fail to address both bases of the applicant’s claim.
Rather, the RPD analysed the essence of the claim, namely that the applicant
faced risk due to both her HIV- positive status and as a woman and that this
dual identity exposes the applicant to a greater risk of discrimination than if
she were a man with HIV or a woman without HIV in Swaziland. The fact that the
Board fully engaged with the applicant’s claim is evident from a reading of
paragraphs 26 to 31 of the Board’s reasons, where the risks to women, the HIV-
positive and HIV- positive women in Swaziland are all discussed. Thus, the
second alleged error provides no basis for intervention.
Did
the Board err in failing to provide adequate reasons for finding that the
applicant would not face persecution if returned to Swaziland?
[11]
Nor
does the third alleged error warrant intervention. Insofar as concerns the
adequacy of the Board’s reasons, the Supreme Court has indicated that reasons
must be transparent, intelligible and justified. That means that the reviewing
court and the parties must be able to discern why a result was reached.
However, it is not necessary that a decision address all of the arguments made
by a party nor all of the evidence submitted (see Construction Labour
Relations; Newfoundland Nurses; and Andrade v Canada (Minister of Citizenship and Immigration), 2012 FC 1490).
[12]
Here,
the Board’s reasons meet the threshold set by the Supreme Court. The RPD found
that many of the worst facets of discrimination that HIV- positive women face
in Swaziland – namely not being able to access diagnosis or treatment or being
assaulted – had not been experienced by the applicant. The Board also
considered that the more general discrimination or stigmatization that the
objective documentation spoke of was not sufficiently serious to amount to
persecution and thus concluded that there was not more than a mere possibility
that the applicant would face more serious consequences by reason of being an
HIV- positive woman if she were returned to Swaziland. These conclusions are
interspersed through paragraphs 26 to 31 of the Board’s decision. Therefore,
the reasons, while sparse, are sufficient to meet the required threshold.
[13]
In
oral argument, applicant’s counsel suggested that the result reached by the
Board was also unreasonable on the evidence as the objective country
documentation establishes that women face serious discrimination in Swaziland
by not having the ability after marriage to own property, through lacking
economic means and thus being forced to have sexual relations to obtain money
for food, and that this exposes them to the risk of becoming HIV- positive due
to the cultural norms which militate against safe sex practices. He also
asserted that the objective documentation established that women are
disproportionately impacted by an HIV- positive diagnosis in Swaziland, due to
societal prejudices against women and irrational beliefs that they may be
responsible for the prevalence of HIV/AIDS in that country.
[14]
This
Court, as well as the RPD, have recognized that discrimination on the basis of
HIV-positive status may rise to the level of persecution in particular
circumstances (see e.g. UQC (Re), [2009] RPDD No 4; TNL (Re),
[1997] CRDD No 251) and Diaz). In Diaz, Justice O’Keefe left open
this possibility at paras 36-37, reasoning:
[…] Discrimination because of the applicant’s HIV
status has the potential for far more devastating and serious consequences.
[…] In this case, the applicant’s submissions that
he would experience persecution and risk as an HIV positive Mexican without
meaningful family support, with the potential for systemic barriers to
employment, and with the potential for discrimination in health care delivery
was not sufficiently addressed by the Board.
However, central to Justice
O’Keefe’s finding was the fact that the Board had insufficiently considered the
applicant’s particular circumstances.
[15]
In
contrast, in the present case, while it true that the objective country
documentation paints a very glum picture of the fate of those with HIV/AIDS –
and most especially women – in Swaziland, much of the general description in
the documentation does not apply to the applicant’s circumstances. She was not
poor and uneducated, but, rather, was employed as a teacher. Likewise, she does
not claim to have contracted HIV from forced intercourse. Rather, she testified
that she likely contracted her infection from her former common-law partner,
with whom she had a consensual relationship while aware that he was involved
with other women. In addition, and importantly, the applicant, unlike many women
in Swaziland, was able to obtain diagnosis and treatment for her HIV. Finally,
it is noteworthy that she admitted that one of the principal reasons for her
having come to Canada was to benefit from the availability of superior
treatment to that generally available to those who are HIV- positive in Swaziland.
[16]
On
these facts, I do not believe the Board’s conclusions are unreasonable. In
short, the applicant’s situation is far removed from that of the many of the
women profiled in the objective documentation before the Board and thus it was
not unreasonable for it to conclude that she faced no more than a mere
possibility of persecution or would not likely face cruel and unusual treatment
if returned to Swaziland.
[17]
Thus,
for these reasons, this application will be dismissed. No question for
certification under section 74 of the IRPA was proposed and none arises in this
case as my decision is tied to the particular facts of this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question is certified under section 74 of the IRPA; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
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