Date:
20130430
Docket:
IMM-5029-12
Citation:
2013 FC 450
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, April 30, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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KHADY KANGHE DIENG
SARAH EZULDA AM
JOURSON
KAGNE AMINATA BA
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Applicants
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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]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision by the
Refugee Protection Division of the Immigration and Refugee Board of Canada (the
panel) dated April 25, 2012, through which the panel refused to recognize
Khady Kanghe Dieng, Kagne Aminata Ba and Sarah Ezulda Amélie Maria Marly
Jourson (the applicants) as Convention refugees under section 96 of the
IRPA or persons in need of protection under section 97 of the IRPA.
I. Facts
[2]
Kagné
Aminiata Ba, 56 years of age, is a citizen of Senegal. She is the mother of the
other two applicants.
[3]
Khady
Kanghe Dieng, 30 years of age, is a citizen of Senegal. She is the
principal applicant.
[4]
Sarah
Ezulda Amélie Maria Marly Jourson, 19 years of age, is a citizen of
France. She is the half-sister of Ms. Dieng.
[5]
The
three applicants lived in France before coming to Canada. They left France on
September 27, 2008, and arrived in Canada on September 29, 2008.
[6]
Ms. Dieng
and Ms. Jourson claimed refugee status on April 21, 2009. Ms. Dieng’s
application related to Senegal and France, while Ms. Jourson’s application
only related to France.
[7]
Ms. Ba
left Canada in October 2008. She came back to Canada on February 4,
2012, and claimed refugee status the same day. Ms. Ba’s
application only related to Senegal, but after the hearing, the panel found
that her application also related to France.
[8]
Ms. Ba’s
application was joined to those of her daughters during a hearing held before
the panel on February 7, 2012.
[9]
The
reasons for the refugee claim are the same for three applicants. They allege
that they fear persecution in Senegal and in France because of their political
opinions and their membership in a social group. They also allege that they
would be exposed to risks to their lives or cruel treatment or punishment if
they had to return to France or Senegal.
[10]
The
applicants stated that they had been persecuted by former high-ranking members
of the Wade government in Senegal who could hunt them down in France and kill, attack
or kidnap them.
[11]
Ms. Ba
stated during the hearing that these people bear a grudge because members of
her family held positions of authority within the government of Senegal that
was in power before the Wade government and that she knew compromising things
about the Wade government (which has not been in power since April 2, 2012).
[12]
Ms. Ba
explained that the day after a meeting between her and President Wade in Canada
in 2008, her mother was killed in a hospital in France. Ms. Ba suspected a
former minister of the Wade government of being responsible of the murder. Ms. Ba
also explained that members of the Wade government sent murderers to kill her
when she was living with her daughter in a hotel in Dakar in March 2008 and
that her apartment in France was set on fire by his persecutors on
December 6, 2010.
[13]
The
applicants also stated that they feared being circumcised or married by force in
Senegal and that they were not sheltered from these dangers, even in France. The
applicants explained that a friend from Senegal who had expressed herself publically
against circumcision was killed in Paris in February 2008.
II. Impugned decision
[14]
The
applicants' refugee protection claim was heard by the panel on April 25,
2012. The panel initially determined that Ms. Jourson is a French citizen,
that Ms. Dieng and Ms. Ba have permanent resident status in France and
that, as a result, none of the applicants can request refugee protection against
Senegal because of the exclusion provided under Article 1E of
the Convention Relating to the Status of Refugees (Convention) and
section 98 of the IRPA.
[15]
The
panel also found that the applicants had no subjective fear of persecution because
of the fact that they did not claim refugee status within a reasonable period
after fleeing France.
[16]
Finally,
the panel determined that the applicants had not rebutted the presumption of state
protection against France, noting that they had not sufficiently sought to
avail themselves of state protection.
III. Issues
[17]
There
are two issues in this application for judicial review:
a) Did
the Panel commit a reviewable error by applying Article 1E of the
Convention to the refugee claims of Ms. Dieng and Ms. Ba?
b) Did
the Panel commit a reviewable error by rejecting the refugee claims of the
three applicants since they failed to show that France could not protect them?
IV. Analysis
[18]
Two
standards of review apply in respect of the exclusion under Article 1E of
the Convention. The correctness standard is used to determine whether the
correct legal test was applied and the reasonableness standard is used to
ascertain whether the panel correctly applied the legal principles to the facts
(Ramadan v Canada (Minister of Citizenship and Immigration), 2010
FC 1093, at paras 13-14 (available on CanLII). See also Zeng v Canada (Minister
of Citizenship and Immigration), 2010 FCA 118, at para 11, [2011] 4 FCR 3,
and Lu v Canada (Minister of Citizenship and Immigration), 2012
FC 311, at para 20 (available on CanLII).
[19]
Article 1E
of the Convention states:
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This
Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the
rights and obligations which are attached to the possession of the
nationality of that country.
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Cette
Convention ne sera pas applicable à une personne considérée par les autorités
compétentes du pays dans lequel cette personne a établi sa résidence comme
ayant les droits et les obligations attachés à la possession de la
nationalité de ce pays.
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[20]
Section 98
of the IRPA provides as follows:
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A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
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La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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[21]
The
case law has developed a framework to determine whether a person meets the
criteria of Article 1E of the Convention. First, the Minister must establish a prima
facie case that the claimant may return to the third country and enjoy the
same rights as its nationals. If that step is met, the burden then shifts and
the claimant must show that he or she cannot in fact enjoy the rights of his or
her residence status. The rights which the claimant must enjoy for this first
step to be achieved include the right to return to the claimant’s country of
residence, the right to work there, the right to study there and the right to
access social services with no restrictions. So that the panel can validly find
that the applicant enjoys a status in the third country conferring equivalent
rights to those of its citizens, the applicant must enjoy this status at the
time that he or she claims refugee protection in Canada and the day on which it
is decided. If that is the case, the exclusion under Article 1E of the
Convention applies. See Ramadan, above, at paras 18-20; Zeng,
above, at para 13-16; Lu, above, at para 24.
[22]
In
this case, the panel correctly stated the legal principles applicable to paragraphs 10
to 13 of its reasons and its application of these principles to the facts was
certainly reasonable.
[23]
In
her Personal Information Form (PIF), Ms. Dieng stated that she lived in France
from September 1988 to September 2008 and that her immigration status in this
country from 1999 to her departure for Canada in 2008 was that of permanent
resident. During the hearing before the panel she confirmed that she was still
a permanent resident in France and that she could return there. In addition, it
appears from the documents filed with the panel that Ms. Dieng had a
permit to remain in France as a resident, valid from March 23, 2005, to
March 22, 2015. She stated during her testimony that she had the right to
study, work and receive social services in France. In these circumstances, it
was not unreasonable for the panel to find that Ms. Dieng had the prima
facie right to go back to live in France and enjoy the same rights as its
nationals. Ms. Dieng did not provide any evidence to the contrary, the
panel could reasonably find that at the time that she made her refugee claim in
Canada and up to the end of the hearing, Ms. Dieng was still recognized by
France as a permanent resident of that country and that, as a result, she falls
under Article 1E of the Convention.
[24]
As
for Ms. Ba, she stated during an interview at the point of entry on
February 4, 2012, that she obtained French citizenship following her marriage
to a French citizen, but does not have the proof. The panel also had a letter
from the French Republic dated April 20, 2011, indicating that Ms. Ba
had become a French national on November 26, 2011, and asking her to return
her residency permit. In her PIF and before the panel, Ms. Ba stated that
she was a permanent resident of France, contradicting at the same time the
above letter from the French Republic and her own statement at the point of entry.
Considering this evidence, it was thus not unreasonable for the panel to find
that Ms. Ba was at the very least a permanent resident of France and that
she had the prima facie right to return there and to exercise the
rights equivalent to those of French citizens. Since Ms. Ba did not present
any evidence establishing that her residency permit in France had expired and
that she could not benefit from her rights under her residency permit in
France, it was reasonable for the panel to find that she still had, from the
time that she submitted her refugee claim in Canada and up to the end of the
hearing, at least permanent resident status and, thus, that she was also referred
to in Article 1E of the Convention.
[25]
Finally,
with respect to Ms. Jourson, there is no doubt that she became a French
national because she was born in France. Further, she holds a French passport valid
until July 2013 and she submitted before the panel that she is a French citizen.
The merit of her application should thus also be assessed in relation to
France.
[26]
Therefore,
it was not unreasonable for the panel to reject the refugee claim of all the applicants
in relation to Senegal. However, the applicants argued that Ms. Dieng and
Ms. Ba had not been formally excluded when Article 1E of the Convention
was applied. It is true that the panel did not mention this exclusion in its general
finding or in its notice of decision. Other than the fact that it was not
required under subsection 107(1) of the IRPA, which provides that the
panel must specify only whether it allows or dismisses the application, referring
this application back to a different member of the panel would be completely
superfluous and would not be the best use of resources since the application of
Article 1E of the Convention cannot be questioned given the evidence on
the record.
(b) Did the
Panel commit a reviewable error by rejecting the refugee claim of each of the
three applicants as they did not show that France could not protect them?
[27]
It
is well established that any person having a well-founded fear of persecution should
be quick to make a refugee claim as soon as they have arrived in Canada. The
late submission of a refugee claim is a factor that the panel can take into account
to evaluate the credibility of an applicant with respect to the merit of his or
her claim: Aslam v Canada (Minister of Citizenship and Immigration),
2006 FC 189, at paras 25-28, 146 ACWS (3d)
316; Singh v Canada (Minister of Citizenship and Immigration),
2006 FC 743, at para 50, 149 ACWS (3d) 479.
The delay in claiming refugee status often reveals a lack of subjective fear of
persecution or well-founded fear of persecution, since a person with a reasonable
fear will generally make a refugee claim at the first opportunity: Mejia et
al. v Canada (Minister of Citizenship and Immigration), 2011 FC 851, at
para 14 (available on CanLII); Semextant v Canada (Minister of
Citizenship and Immigration), 2009 FC 29, at para 1 and 22 (available
on CanLII).
[28]
Ms. Dieng
and Ms. Jourson waited almost seven months after they arrived in Canada before
making a refugee claim and explained their conduct by saying that they knew
nothing about this issue and that they felt safe with their tourist visa valid
for six months. I find, as the panel did, that this explanation is not satisfactory.
Ms. Dieng and Ms. Jourson knew that their residency was authorized
for a limited duration and it is reasonable to find that they would have
attempted to legalize their status as soon as possible if they truly feared for
their lives or their physical integrity. As for Ms. Ba, she made a refugee
claim more than three years after coming to Canada in September 2008 with
her two daughters. Her explanation that her lawyer had advised her to wait to
have documents that they had to obtain by going to Gambia at the Senegal border
seems hard to believe. Given these circumstances, the panel could reasonably
find that the applicants’ failure to make a refugee claim when they arrived in
Canada or soon after affects their credibility with respect to their subjective
fear of persecution if they were to return to live in France, whether as permanent
residents or French citizens.
[29]
Moreover,
the applicants’ fear also had to have an objective basis. In this regard, the
first step of the analysis is to assess whether the applicants could be
protected from the alleged persecution by France. As Justice Major recalled in Chan
v Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at
para 120 (available on CanLII): “Both the existence of the subjective fear
and the fact that the fear is objectively well-founded must be established on a
balance of probabilities”.
[30]
To
rebut the presumption of state protection, evidence that is relevant, credible and
persuasive of insufficient or non-inexistent protection must be presented, the applicable
standard of evidence is the balance of probabilities: Carrillo v Canada (Minister
of Citizenship and Immigration), 2008 FCA 94 au para 30, [2008] 4 FCR
636; Guevara v Canada (Minister of Citizenship and Immigration), 2012 FC
195, at para 16-18 (available on CanLII). Where a state is in effective
control of its territory, has military, police and civil authorities in place,
and makes serious efforts to protect its citizens, the mere fact that it is not
always successful at doing so will not be enough to rebut the presumption of
the existence of state protection: Canada (Minister of Employment and
Immigration) v Villafranca (1992), 99 DLR (4th) 334, at para 7,
37 ACWS (3d) 1259 (CA); Onodi v Canada (Minister of Citizenship and
Immigration), 2012 FC 1191, at para 16 (available on CanLII); Molnar
v Canada (Minister of Citizenship and Immigration), 2012 FC 1475, at
para 23 (available on CanLII).
[31]
While
a certain number of problems may exist France in terms of respecting human
rights, we cannot seriously call into question the ability of the France’s
authorities to protect its nationals and all those in its territory. The
documentary evidence shows that the police and gendarmes are generally
considered to be effective, that judges are independent and impartial and that
anyone whose rights or freedoms are violated or infringed upon may apply to a
court for remedy. The documentary evidence also indicates that significant
efforts are being made to fight against violence against women, that circumcision
is prohibited and that measures exist to protect women against forced marriage.
Women are protected against attempts to have them marry against their will. There
are also several specialized national and international non-governmental human
rights organizations active in France and organizations funded by the government,
which may help people who have difficulties with obtaining state protection. The
panel noted that if the purpose of these organizations is not to implement state
protection, they can guide people in approaching the authorities responsible for
implementing protection.
[32]
Persons
who fear for their life or integrity have the obligation to seek the protection
of the authorities in their country, unless it is objectively reasonable not to
do so because this protection could not have been ensured: Soto v Canada (Minister
of Citizenship and Immigration), 2005 FC 1654, at para 7, 145 ACWS (3d) 136. It must never be forgotten
that international law relating to refugees was formulated to back up protection
that a State must provide to its nationals. It was meant to come into play only
in situations when that protection is unavailable, and then only in certain
situations: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 (available
on CanLII).
[33]
Further,
the panel noted that the applicants sent information to the Commissariat de
Colombes several years after the harassment over the telephone had occurred, but
had not reported it to the police because their lives were presumably in danger.
Not only did they not inform the authorities of their grandmother’s murder, but
they also did not tell them that their lives had been directly threatened by influential
people in Senegal who could easily enter France using diplomatic passports. The
applicants also did not establish, on a balance of probabilities, that they
would have put their lives or security in danger if they had taken steps to inform
the French authorities of their situation with respect to people that they
allegedly fear.
[34]
In
these circumstances, it was not unreasonable for the panel to find that the applicants’
testimony does not constitute relevant, reliable and persuasive evidence leading
to a finding that the presumption that the French authorities are able protect
their citizens and permanent residents was rebutted. Therefore, the applicants did
not demonstrate that their fear of being persecuted, supposing that they are credible,
was objective. The panel did not err in refusing to grant them refugee status.
V. Conclusion
[35]
For
all of the foregoing reasons, the application for judicial review must be
dismissed. In closing, I would regret not pointing out the excellence of the
written and oral submissions by counsel for the respondent, whose work greatly
inspired me in writing these reasons.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed and no question is certified.
"Yves de
Montigny"
Certified true
translation
Catherine Jones,
Translator
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