Docket:
IMM-2700-15
Citation: 2015 FC 1408
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 22, 2015
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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MARIAM JOSEPH
LATIF
FARHAD YACIN
MOHAMOUD
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review filed
under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] against a decision by a member of the Refugee
Protection Division [the Tribunal] dated May 7, 2015, to reject the
applicants’ refugee protection claim. The applicants are seeking to have the
decision set aside and the file referred back to a different member for
redetermination.
[2]
For the reasons that follow, this application
for judicial review is allowed in part.
II.
Background
[3]
The principal (female) applicant, Miriam Joseph
Latif, and her son, the male applicant, Farhad Yacin Mohamoud [collectively,
the applicants], are both citizens of Djibouti.
[4]
The female applicant and her husband have four
children, including an older son who still lives in Djibouti with his father.
Their other son fled to Morocco. The female applicant, her son (the male
applicant) and her minor daughter fled to Canada, where they claimed refugee
protection on May 16, 2014, at the Lacolle port of entry.
[5]
The female applicant fears returning to her
country because of the political involvement of her father-in-law, who was once
a member of the government of Djibouti’s first president. Ten years after being
dismissed from office, he supported the opposition in 2011 after his family was
threatened. Despite her father-in-law’s death in June 2013, the threats
against the family continued.
[6]
On April 3, 2011, the female applicant, along
with her eldest son and her husband, was ordered to come to the police station
because of her name (Joseph), which sounds Jewish or Christian, even though she
is a Muslim. While they were in detention, the police officers mistreated the female
applicant’s husband and her son. On that same occasion, they threatened the female
applicant by telling her that she should change her name if she wanted to live
in peace with her family. They were all released the next day and threatened [translation] “to
keep quiet if they wanted to not put their lives at stake”.
[7]
On April 20, 2012, the applicant and her
family received death threats. They also learned that influential residents in
the neighbourhood had encouraged armed youths to climb over the walls of their
house during the night.
[8]
On May 4, 2012, some plainclothes police
officers brought them a summons and used the principal applicant’s name as a
pretext for harassing and intimidating them. This is the context in which the
principal applicant and her husband decided that she should leave the country
with the two youngest children to join her family in Canada and claim refugee
status.
[9]
The refugee protection claims of the principal
applicant and her son (the male applicant) were rejected, while the refugee
protection claim of her minor daughter was allowed.
III.
Impugned decision
[10]
The refugee protection claims of the principal
applicant and the male applicant were refused because of numerous unfavourable
findings regarding credibility. The Tribunal found that there were several contradictions
between the applicants’ Basis of Claim [BOC] forms and their testimony;
moreover, the documentary evidence in the record did not support their claims.
[11]
In the case of the principal applicant, the Tribunal
was of the opinion that there was a stark difference between her story and her
oral testimony regarding the events surrounding her detention by the police
station and the alleged political activities of her father-in-law. At the port
of entry, she had stated that she had been detained because of her husband,
whereas in her testimony and in her BOC form, she had alleged that it had been
because her name sounded Jewish or Christian. The Tribunal noted that the
principal applicant did not file any evidence showing the political activities
of her father-in-law and that the objective documentary evidence did not
support her claims that Jews or Christians were being persecuted in Djibouti. The
Tribunal therefore found that the principal applicant was not credible.
[12]
In the case of the male applicant, the Tribunal found
several contradictions between his refugee protection claim at the port of
entry and his testimony at the hearing. At the port of entry, he had declared
that he was neither a sympathizer nor a member or affiliate of any organization
and had never been detained. This declaration contradicted his testimony, in
which he alleged having been targeted by the authorities and detained three
times because of his political activities with the Youth Opposition Movement [MJO].
The Tribunal noted that the entry and exit stamps in his passport show that he
was outside Djibouti between June 29, 2013, and July 26, 2013, which
contradicts the allegations in his BOC form that he had been detained on
July 18, 2013, in Djibouti. The Tribunal therefore found that the male
applicant was not credible.
[13]
Lastly, the Tribunal found that the minor female
applicant would face a serious possibility of persecution, specifically, female
genital mutilation [FGM], should she return to Djibouti. However, the Tribunal nonetheless
found that her mother, having failed to declare that she feared for herself
because of her opposition to this practice and having failed to provide any
supporting evidence, would not be persecuted should she return to Djibouti.
IV.
Issues
[14]
This application raises two issues:
1.
Was the Tribunal’s decision regarding the
assessment of the applicants’ credibility unreasonable?
2.
Did the Tribunal unreasonably conclude that the
evidence in the record did not allow it to find that the female applicant would
be at risk because of her opposition to FGM?
V.
Standard of review
[15]
The parties agree that the standard of review in
this case is the reasonableness standard (Ramirez v Canada (Minister of
Citizenship and Immigration), 2007 FC 721 at para 31; Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir]).
VI.
Analysis
A.
Assessment of the applicants’ credibility
[16]
The applicants submit that the Tribunal placed
undue weight on the declarations made at the port of entry, particularly
document IMM-0008 [Generic Application Form for Canada]. This sort of analysis
is contrary to the principle established in Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at paragraph 11, that “[i]t would not be proper for the Board to base its findings
on extensive ‘microscopic’ examination of issues irrelevant or peripheral to
the applicant’s claim”. It is also an error of the Tribunal “to impugn the credibility of the Applicant on the sole
ground that the information provided . . . at the [port of entry]
interview lacks details” (Cetinkaya v Canada (Minister of Citizenship
and Immigration), 2012 FC 8 at paras 50-51 [Cetinkaya]). The
Tribunal therefore erred in relying on these stories from the port of entry to
find that the applicants are not credible.
[17]
However, it should be noted that in Cetinkaya,
the applicant had not changed his story been the port of entry interview and
the hearing. It was a matter of adding details, such as dates. Furthermore, in
that case, the Tribunal had accepted erroneous facts that were not supported by
the evidence in the record.
[18]
Regarding the assessment of the documents filled
out at the port of entry, the respondent submits that the Tribunal did not cast
doubt on the applicants’ credibility just because this information was not
detailed. There were significant contradictions and omissions between the
applicants’ BOC form and their testimony regarding key questions in their
claims. The Tribunal may draw negative conclusions from differences between the
statements made at the point of entry and any subsequent testimony: (Singh v
Canada (Minister of Citizenship and Immigration), 2008 FC 453 at para 17;
Jean-Baptiste c Canada (Minister of Citizenship and Immigration), 2009
FC 1261 at para 1).
[19]
In light of the deficiencies described by the Tribunal,
such as the significant contradictions and omissions, its decision regarding
the applicants’ credibility is reasonable. The Tribunal did not believe the
applicants’ story or that they had been politically active in their country and
targeted by Djiboutian authorities.
B.
Duty to consider all possible grounds of
persecution
[20]
The principal applicant argues that the Tribunal
erred because it has a duty to consider all possible grounds of persecution,
even if one of the grounds is not raised until the hearing, as was the case here.
This principle was stated by Justice Dawson in Viafara v Canada (Minister
of Citizenship and Immigration), 2006 FC 1526 at paragraphs 5 to
7 [Viafara]:
Particular Family Group: Spouse of Mr. Malagon
[5] In fairness to the Board, Ms. Pastrana’s former counsel
did not specifically advance a claim to refugee status on this ground. Indeed,
Ms. Pastrana’s former counsel made no intervention when the presiding member at
the start of the hearing advised the parties that “each claim will be
determined on its own merits”.
. . .
[6] However, in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at pages 745 and
746, the Supreme Court of Canada confirmed that the Board must consider all
of the grounds for making a claim to refugee status, even if the grounds are
not raised during a hearing by a claimant. This flows from the direction at
paragraph 67 of the United Nations High Commissioner for Refugees (UNHCR)
Handbook on Procedure and Criteria for Determining Refugee Status that it is
not the duty of a claimant to identify the reasons for their persecution.
[7] In the present case,
the Board accepted that Ms. Pastrana was the common-law spouse of
Mr. Malagon, that he was a former military conscript, and that FARC “is
described as a brutal and pervasive organization that pressures young men to
join their ranks, and resort to threats, intimidation, extortion and kidnapping
in order to achieve their goals”. Documentary evidence before the Board
included the March 2005 document prepared by the UNHCR entitled “International
Protection Considerations Regarding Colombian Asylum-Seekers and Refugees”.
There, the UNHCR noted that “[a]gainst the background of widespread violations
of human rights and international humanitarian law, certain groups of persons
[in Colombia] can be identified as being more frequently targeted than others”.
Included as a group were “[f]ormer conscript[s] or professional soldiers and
police, as well as their families”.
[Emphasis added]
[21]
At the hearing, the principal applicant stated
for the first time that the document from the Office of the United Nations High
Commissioner for Refugees [UNHCR] that she had
filed, entitled “Guidance Note on Refugee Claims relating to Female Genital Mutilation”,
shows that there is a reasonable possibility that she could be persecuted for
her opposition to FGM. The principal applicant relies on the following
statement from that document:
The parent could nevertheless be considered
the principal applicant where he or she is found to have a claim in his or her
own right. This includes cases where the parent would be forced to witness the
pain and suffering of the child, or risk persecution for being opposed to the
practice.
[22]
The respondent submits, first of all, that the
female applicant has not discharged her burden of proving the merits of her own
refugee protection claim based on her opposition to FGM, since raising these
arguments at the hearing is not in itself evidence. In light of Viafara,
above, I cannot agree with this argument.
[23]
Second, the respondent submits that the
Tribunal’s decision is reasonable because no evidence was submitted with regard
to the mother’s fear of witnessing the suffering of her child. I reject this
point too, since the relevant evidence concerning the mother’s opposition to FGM
was mentioned at paragraph 81 of the decision:
[translation]
The adult claimant (the female applicant) did not state in her BOC
or at the hearing that she feared for herself because of her opposition to her
daughter’s excision. She spoke only of her fear that her daughter would be
excised and of her desire to protect her daughter from such mutilation. The
female claimant never raised persecution, threats or other harm directed
against her by her in-laws or other individuals because of her opposition to
the genital mutilation of her daughter. Indeed, when the female claimant’s
counsel asked her what the consequences would be for her if she and her husband
openly opposed her husband’s grandmother, who wants to excise their daughter,
the female claimant simply answered that she did not want to antagonize the
grandmother, that she could not say it to her directly and that she went
through her husband. Her husband has already spoken to the grandmother about
their opposition to their daughter’s excision, but the grandmother would not
listen, saying that they had to respect her age and her wishes.
[Emphasis added]
[24]
This passage shows that it would be impossible
for the principal applicant to protest or intervene to prevent the grandmother
from going ahead with the FGM of her daughter. The principal applicant is
constrained by the family’s cultural norms, which prevent her from objecting to
the grandmother’s decision. As a woman, she therefore cannot denounce the
mistreatment of her daughter because only the husband may do so.
[25]
Apart from the fact that the Tribunal should
have assessed the evidence under the Guidance Note on Refugee Claims
relating to Female Genital Mutilation and Guideline 4 – Women Refugee
Claimants Fearing Gender-Related Persecution, it should have understood that
the evidence also tended to establish the basis for the principal applicant’s
subjective fear. I find that this is particularly the case when the supporting
evidence for the daughter’s risk of FGM has been accepted by the Tribunal.
[26]
The principal applicant may have said that she
did not fear for her own safety, but in light of the evidence in the record, it
is clear that if she does not take refuge in another country and tries to
intervene on behalf of her daughter contrary to cultural norms, she will be at
risk.
[27]
It is unacceptable to reject a risk of
persecution or a need for protection when the alleged conduct would place the
person in a potential situation of serious harm, even if the person could avoid
it by accepting the persecuting conduct and does nothing to prevent it.
[28]
I also reject the similar argument by the
respondent in his supplementary submission letter dated November 17, 2015:
Second, the implicit risk at issue is a hypothetical risk. The risk
of witnessing the pain and suffering of her daughter would be a potential risk
should the applicant return to Djibouti along with her daughter. In the
circumstances of this case, [the Tribunal] was under no obligation to consider
such a possibility.
[Emphasis in original]
[29]
The fact that the mother would avoid persecution
by not bringing her daughter back with her to Djibouti is not an indication
that the risk is hypothetical or that she would not be persecuted. The
principal applicant is not free to choose to travel and remain with her
daughter, as a mother normally would want. In this case, the danger is
therefore not hypothetical.
[30]
The Guidance Note on Refugee Claims relating
to Female Genital Mutilation is objective evidence supporting the subjective
fears of the principal applicant: “where the parent
would be forced to witness the pain and suffering of the child, or risk
persecution for being opposed to the practice”.
[31]
Finally, I conclude that the Tribunal’s decision
to refuse to grant the principal applicant refugee status is unreasonable in
light of Dunsmuir. That part of the decision is therefore set aside, and
the matter shall be referred back to a different member for redetermination.
However, the Tribunal’s decision regarding the male applicant (Farhad Yacin
Mohamoud) is reasonable and is not set aside by this decision.
VII.
Certified question
[32]
There was a discussion before the Court as to
whether a certified question was needed to allow the Court to consider an issue
that had not been raised at the Tribunal’s hearing, namely, the [translation] “indirect” persecution of
the principal applicant owing to her involvement in the process of her
daughter’s FGM. Having concluded that the issue was raised at the hearing and
addressed in the Tribunal’s reasons, the Court finds that a certified question
is no longer required.
VIII.
Conclusion
[33]
For the reasons set out above, the application
is allowed in part, and no question is certified. The part of the decision
refusing to grant the principal applicant refugee status is unreasonable and
shall be referred back to a different member for redetermination. The
Tribunal’s decision regarding the male applicant is reasonable and is not set
aside.
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