Docket:
IMM-4966-13
Citation: 2014 FC 374
Ottawa, Ontario, April 17,
2014
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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PIERRETTE SOPHIE MANEGE
GLORIA DOMINA T MANEGE
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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]
The applicants, two sisters from Burundi, seek
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the “Act”],
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”) made on April 22, 2013, which
found that the applicants were not Convention refugees nor persons in need of
protection under sections 96 or 97 of the Act.
[2]
For the reasons that follow the application is
allowed.
Background
[3]
The applicants are sisters and citizens of Burundi. They arrived in Canada in January 2011 at the ages of 17 and 14 respectively. They
claim a fear of persecution due to their father’s political opinions.
[4]
The applicants recounted that their family’s
troubles began on December 19, 1994, when their uncle was murdered on account
of his political affiliations. Their father and his family attempted to
investigate the murder and after being targeted for his inquiries, the
applicants’ father took his own family to Mozambique. The family moved back to Burundi in August 2009.
[5]
Upon their return to Burundi, the applicants’
father joined the Movement for Solidarity and Democracy Party [“MSD”]. Due to their father’s MSD membership, the
applicants’ safety was threatened. The applicants recounted that on March 22,
2010, armed men came to their house demanding to know the whereabouts of their
parents and where the applicants went to school. The applicants’ father also
received phone calls threatening harm, rape and murder of the girls. On June
15, 2010, unknown persons watched the applicants at their school and school
administrators alerted their father.
[6]
The applicants’ father advised them of these
threats only after the June 15, 2010 incident. The applicants were then moved
from house to house of other family members and, in light of unsuccessful
attempts to seek police protection, were sent to live with their uncle in Canada in January 2011.
The decision
[7]
The applicants had an expedited hearing in
February 2012, a full year after they arrived in Canada, followed by a hearing
before the Board in February 2013. At the expedited hearing, the older
applicant, Pierrette, was 18 years of age and was appointed as the designated
representative for her younger sister.
[8]
The determinative issue for the Board was
credibility. The Board found the applicants’ credibility to be undermined by
omissions and contradictions that went directly to the core of their claims.
[9]
The Board noted that there was a contradiction
between the applicants’ testimony and a letter their father filed with the
police; in the former, it was alleged that two armed men went to their home on
March 22, 2010 and threatened their maid, whereas the letter indicated that the
applicants were threatened directly. The Board did not accept the applicants’
explanation that their father inflated the account in his letter to the police
because the police would not have taken him seriously if only their maid was
threatened. When asked who threatened them, Pierrette gave a name that differed
from the one given in a previous interview with the immigration officer at the
expedited hearing (although at the expedited hearing, Pierrette indicated that
she was not certain of the name). The Board also remarked that the applicants
were inconsistent in their explanation as to why they were being threatened; in
one instance, they stated that it was because their father was pursuing justice
for crimes committed during the civil war, and in another instance, they stated
it was because their father was a member of the MSD. The Board also noted that
the applicants had omitted to mention that, between the threats at their house
and the school event, their father had received additional threats of violence
and rape of the applicants; these threats were not mentioned until the oral
hearing.
[10]
The Board gave little probative value to two
letters from the applicants’ father and the scanned copy of his MSD membership
card. The Board concluded that the applicants had produced no evidence of their
father’s involvement in the MSD, which was central to their claim. The Board
also rejected the applicants’ testimony that their parents and siblings in Burundi continued to receive threats.
[11]
In addition, the Board found the applicants’
failure to claim asylum in Kenya and Germany, while they were in transit to Canada, to be inconsistent with their alleged fear, notwithstanding their explanation that their
parents were sending them to Canada because they had family here.
The issues
[12]
The applicants allege that the Board’s
credibility and plausibility findings were not reasonable, and in particular,
that the Board erred by: failing to consider the Chairperson Guideline 3, Child
Refugee Claimants: Procedural and Evidentiary Issues, and the Chairperson
Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution,
when assessing their credibility; making unreasonable and non-specific
implausibility findings; and concluding that they lacked subjective fear on the
basis that they did not claim refugee protection while transiting in safe third
countries.
[13]
The parties agree that the applicable standard
of review is that of reasonableness.
[14]
The role of the Court is, therefore, to
determine whether the Board’s decision “falls
within ‘a range of possible, acceptable outcomes which are defensible in
respect of the facts and law’ (Dunsmuir, at para. 47). There might be
more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.” (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 59).
[15]
It is also well-established that boards and tribunals
are ideally placed to assess the credibility of refugee claimants Aguebor v
Canada (Minister of Employment and Immigration) (1993), 160 NR 315, [1993]
FCJ No 732 at para 4 (FCA) [Aguebor]; and that given its role as trier
of fact, the Board’s credibility findings should be given significant deference
(Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at
para 13, [2008] FCJ No 1329; Fatih v Canada (Minister of Citizenship and
Immigration), 2012 FC 857 at para 65, 415 FTR 82).
[16]
As the respondent pointed out, credibility
findings are factual and case specific and rely on the assessment by the
decision-maker of several factors, including the observation of the witnesses
and their responses to questions posed. The Board is, therefore, entitled to
draw inferences based on implausibility, common sense and rationality (Aguebor,
supra at para 4).
[17]
Credibility findings are owed significant
deference but are not beyond review, for example, where the contradictions or
omissions are insignificant or result from a microscopic examination, or when
explanations have been unreasonably discounted, or where relevant contextual
information has not been considered, the Court may intervene.
Were the Board’s credibility findings reasonable?
[18]
The applicants submit that the Board erred by
failing to apply Guidelines 3 and 4 and that both should have been considered
together because they were minors threatened with gender-based violence due to
the political views of their father.
[19]
The applicants submit that the Board should
consider their age at the time of the persecutory events and at the time their
testimony is given. They were 16 and 14 years old, respectively, when the
events occurred and their parents disclosed that threats to rape and murder
them had been made on account of their father’s political affiliations. They
were 18 and 16 years old, respectively, at the time of the expedited hearing
and 19 and 17 at the time of the refugee hearing.
[20]
The applicants submit that, had Guideline 3 been
properly applied, the Board would have recognized and accepted their limited
knowledge of their father’s political activities, of the details of the threats
made against them, and of their family’s situation in Burundi. The applicants note that they had testified that their parents preferred not to
discuss politics, the graphic nature of the threats, and the family’s
insecurity with them.
[21]
The applicants submit that the Board also failed
to consider or even to acknowledge Guideline 4 in evaluating their claims,
which involved threats of gender-based violence. The applicants submit that it
was reasonable for them to not mention the threats of rape against them in
their Personal Information Forms [“PIFs”], because
they were young girls without the benefit of their parents in Canada, their
parents were reluctant to share the full graphic details of such threats, and
they were assisted by a male lawyer in preparing their PIFs. If Guideline 4 had
been applied, it would have highlighted the appropriate context underlying
their actions and narrative.
[22]
The respondent submits that the Chairperson
Guidelines are flexible and that failure to mention or to fully apply them does
not in itself vitiate a decision. The respondent notes that the jurisprudence
has established that the Chairperson Guidelines cannot cure the deficiency the
Board found in the applicants’ claim; the applicants were not credible and the
Guidelines can not be used to salvage the inconsistencies and omission.
[23]
The respondent also notes that Guideline 3 takes
into account factors such as age and maturity and that, in this case, the
applicants were not young children. As a designated representative for her
younger sister, Pierrette assumed obligations, which she acknowledged, such as
instructing counsel and acting in the best interest of her sister.
[24]
With respect to Guideline 4, the respondent
submits that the Board is presumed to have taken it into account as the
decision does not suggest otherwise. There was no insensitivity or
impermissible reasoning regarding the threats of rape on the part of the Board.
Moreover, this is not an exclusively gender-based claim, but a claim based on
political persecution of the applicants’ father.
The Board’s credibility findings are not reasonable
[25]
Despite the deference that is owed to the Board
in its assessment of credibility, it is not apparent from the decision that the
Board considered how the application of the Guidelines should inform its
assessment of the applicants’ evidence.
[26]
I acknowledge that the Board need not
specifically mention the Guidelines and that the Guidelines are not the law
but, as the name implies, are intended to guide the Board. But if the Board is
not so guided, the Guidelines have no purpose. Apart from the transcript of the
expedited hearing and the Board hearing, which reveals only that Pierrette, who
was appointed as the designated representative, was cautioned about her
evidence and that it would be given on behalf of both her and her sister, there
is no indication that the Board was alert to the applicants’ youth or to the
gender-based violence they indicated they feared.
[27]
As the respondent notes, the failure to mention
or fully apply the Guidelines does not, on its own, render the decision
unreasonable. In Henry v Canada (Minister of Citizenship and Immigration),
2013 FC 1084 at para 50, [2013] FCJ No 1222, Justice Noël held:
50 Furthermore, the Applicant claims that
the RPD fails to consider the Chairperson Guideline 3: Child Refugee
Claimants. However, as stated by Justice Beaudry in Allinagogo v Canada
(Minister of Citizenship and Immigration) 2010 FC 545 at para 14, [2010]
F.C.J. No. 649, "[t]his argument cannot succeed as there is no obligation
for the Board to mention the guidelines in its decision and the reasons show
that the Board properly considered the [...] Applicant's claim". This
decision relates to the Guideline 4: Women Refugee Claimants Fearing
Gender-Related Persecution, but this Court sees no difference as to the
application of this principle to Guideline 3. What is more, the Guideline 3
requires the decision-maker to give primary consideration to the best interest
of the child and, in fact, the RPD stated on numerous occasions that the
main concern in the case at bar was for the Applicant to remain with his mother
and to avoid future separation. Therefore, this Court finds that the RPD did
not fail to consider the Guideline 3 as the reasons show that it did.
[Emphasis added.]
[28]
However, in the present case, there is no
indication that the Board considered the applicants’ age or best interests; all
the decision does is identify inconsistencies in the applicants’ testimony,
some of which are minor or not irreconcilable given their explanations, and
holds them to the same standards as any adult claimant.
[29]
I also accept that the Chairperson Guidelines do
not prevent negative credibility inferences from being made against the
applicants. However, the Guidelines do encourage the Board to consider the
applicants’ testimony in accordance with their circumstances as vulnerable
people coming from societies that operate in a different cultural milieu than Canada.
[30]
In Juarez v Canada (Minister of Citizenship
and Immigration), 2010 FC 890 at paras 17-20, [2010] FCJ No 1107, Justice
Kelen articulated the relevant principles as follows:
17 The relationship between the Gender
Guidelines and the onus of the applicant to prove her claim with credible
evidence is set out in Karanja v. Canada (MCI), 2006 FC 574, per Justice
Pinard at paragraphs 5-7 of his decision:
5 The applicant is correct that
the Gender Guidelines (issued on March 9, 1993 by the Chairperson of the
Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the Immigration
Act and entitled Women Refugee Claimants Fearing Gender-Related
Persecution) indicate that in the context of a gender-based claim, the
Board should be particularly sensitive to a female applicant's difficulty in
testifying. However, the Gender Guidelines, in and of themselves, are not
intended to serve as a cure for all deficiencies in the applicant's claim or
evidence. The applicant bears the onus of proving her claim. As Justice
Pelletier indicated in Newton v. Minister of Citizenship and Immigration
(2002), 182 F.T.R. 294, at paragraph 18, "the Guidelines cannot be treated
as corroborating any evidence of gender-based persecution so that the giving of
the evidence becomes proof of its truth" and, at paragraph 17:
The Guidelines are an aid for the
CRDD panel in the assessment of the evidence of women who allege that they have
been victims of gender-based persecution. The Guidelines do not create new
grounds for finding a person to be a victim of persecution. To that extent, the
grounds remain the same, but the question becomes whether the panel was
sensitive to the factors which may influence the testimony of women who have
been the victims of persecution...
6 Furthermore, the Board's
failure to specifically mention the Gender Guidelines does not mean that they
were not considered and is not material or fatal to the Board's decision. The
Board is presumed to have taken all of the evidence into account, and there is
nothing that suggests that the Board did not consider the Gender Guidelines
(see S.I. v. Canada (M.C.I.), [2004] F.C.J. No. 2015 (F.C.) (QL); Farah
v. Canada (M.C.I.), [2002] F.C.J. No. 416 (T.D.) (QL); and Nuray Gunel
v. The Minister of Citizenship and Immigration (October 6, 2004),
IMM-8526-03).
7 The Gender Guidelines
specifically state that the female refugee claimant must demonstrate that the
harm feared is sufficiently serious to amount to persecution. In this case,
there were numerous negative credibility findings by the Board and such
findings are open to the Board to make. [Emphasis in original]
18 The principles in Karanja,
supra were followed in Allfazadeh v. Canada (MCI), 2006 FC 1173, per
Justice Harrington where he held at paragraph 6 that the RPD is presumed to
have considered the Gender Guidelines, in my decision in Cornejo, supra,
where I held at paragraph 27 that the Gender Guidelines are not intended to
serve as a cure for deficiencies in a refugee claim, and in I.M.P.P. v.
Canada (MCI), 2010 FC 259, per Justice Mosley at paragraph 47.
[31]
The Guidelines do not cure any reasonably made
credibility findings. However, the Guidelines have not provided guidance to the
Board in the present case as it appears that the Board did not acknowledge or
consider the Guidelines at all; there is nothing in this decision to signal
that the Board was sensitive to the situation of these girls – either due to
their youth or their allegations of rape, which they did not disclose until the
expedited hearing and again at the Board hearing.
[32]
In Diallo v Canada (Minister of Citizenship
and Immigration), 2004 FC 1450 at paras 32-33, 259 FTR 273 [Diallo],
Justice Mactavish considered the application of the Gender Guidelines noting:
[32] The Chairperson's Gender Guidelines
recognize that cross-cultural misunderstandings can come into play when
gender-based claims are assessed by the Board. In order to minimize the risk of
this happening, members are alerted to the effect that social, cultural, traditional
and religious norms can have on the testimony of those claiming to fear
gender-based persecution.
[33] In this case, the Board's reasoning
as to the need to consider the Gender Guidelines is somewhat circular. The
Board held that it did not have to consider the applicability of the Gender
Guidelines because Ms. Diallo was not credible. However, the Gender
Guidelines exist, in part, to ensure that social, cultural, traditional and
religious norms do not interfere with the proper assessment of an applicant's
credibility. [Emphasis added.]
[33]
In the present case, unlike Diallo, the
Board did not state that it did not have to consider the Guidelines. However,
as noted, I have no indication whether or not the Board did consider the
Guidelines. I have a similar concern about the circular nature of the argument
that the application of the Guidelines can not cure a credibility finding. In
my view, if the credibility finding is made without regard to the Guidelines,
or to the relevant context or circumstances, then the finding may not be
reasonable. It is not a matter of curing the finding, but of examining whether
the finding is reasonably made and if the appropriate youth or the gender-based
considerations had been taken into account.
[34]
The evidence of the applicants given during the
hearing is that: their father did not discuss politics with them; they only
learned of the threats made against them when their parents told them they had
been watched at school; they only obtained specific details from their mother on
the threats made against them after persistence; their parents mentioned other
threats which they did not want to tell them about; their father preferred not
to discuss with them the insecurity under which the family continued to live;
and, their father saw himself as their protector and generally shielded them
from the grotesque details of the threats made against them.
[35]
Although the applicants were not young children,
their testimony and evidence does not appear to have been considered by the
Board in the context described; they were deliberately insulated from the
political issues faced by their father and had limited knowledge about it. This
is precisely what Guideline 4 addresses. The Board expected the applicants to
have a much more detailed knowledge of their father’s political involvement,
the events and the threats than was reasonable under the circumstances
described.
[36]
The individual inconsistencies noted by the
Board are not all irreconcilable and the applicants offered explanations that
the Board did not accept. Again, the Board did not appear to have considered
that these applicants did not have first hand knowledge, given that their
parents had shielded them until they were sent to Canada.
[37]
I also note that the applicants played no role
in reporting the threats to the police and that their evidence about two armed
men coming to their house remained consistent, although the letter from their
father referred to three men and more direct threats.
[38]
Upon re-determination, it will of course be open
to the Board to assess the credibility of the applicants, who are no longer
minors; however, the fact that they fled to Canada while still under the age of
18 should not be ignored. Although they are now more mature, they remain young
women who fled their home as youth facing threats of violence, including sexual
violence.
Did the Board err in finding that the applicants lacked
subjective fear?
[39]
Credibility was the determinative issue for the
Board, however, the Board also found that the applicants’ failure to seek
asylum in Kenya and Germany, while in transit to Canada, demonstrated a lack of
subjective fear. This finding is not reasonable based on the applicants’
circumstances and youth. I note that the applicants did not sojourn in either
country and never left the airport en route to Canada. The applicants were 17
and 14 years of age at the time they travelled and had been instructed by their
parents to make an asylum claim upon arriving in Canada, because they have
family in Canada. The Board unreasonably expected the applicants to appreciate
that their failure to seek asylum in the very first country they landed would
jeopardize their claim and undermine their subjective fear of persecution.
[40]
As Justice Scott’s observed in Ruiz v Canada (Minister of Citizenship and Immigration), 2012 FC 258 at para 61, [2012] FCJ No
282:
[61] It goes without saying that a child
does not have the same abilities as an adult. Even though the IRB seemed to
have taken C. Ruiz's age into account in its decision, it found that he should
have behaved like an adult and claimed asylum at the earliest opportunity.
However, C. Ruiz was just 15 years old. It seems unlikely to us that an
adolescent would know the complexities and subtleties of the administrative
apparatus with respect to asylum and be able to gauge the rough waters of the
immigration process in the United States without an adult's help. Imposing such
a burden on an adolescent seems unreasonable to us.
[41]
The application for judicial review is allowed.
No question was proposed for certification.
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