Docket: IMM-3641-14
Citation:
2015 FC 793
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 24, 2015
PRESENT: The Honourable Mr. Justice Diner
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BETWEEN:
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MARCELLIN KOUA
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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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JUDGMENT AND REASONS
[1]
This is an application for leave and judicial
review under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated April 8, 2014, which rejected
the refugee protection claim of Marcellin Koua (the applicant). For the reasons
that follow, I am of the view that the application should be allowed.
I.
Background
[2]
The applicant was born in Côte d’Ivoire in 1977.
He alleges that he has been a member of the Front Populaire Ivoirien (FPI)
[Ivorian Popular Front] since 1998. The FPI is a political party that governed
the country from 2000 to 2010, and which is now the main opposition party since
the Ivorian crisis of 2010-2011.
[3]
The applicant alleges that between 2000 and
2002, when he was living in Bouaké, he held the positions of [translation] “deputy” and [translation] “section secretary” within
the FPI. During this period, he worked days as a houseboy. On the night of
September 19, 2002, the very day of the beginning of the civil war that led to
the partition of the country, the applicant claims that rebel soldiers went to
his home in order to kill him, but that he was away at a political meeting in
Abidjan at the time. The rebels apparently ransacked his place. He alleges that
he was targeted for his political activities within the FPI.
[4]
Following these incidents, the applicant moved
to Abidjan. He participated in FPI youth rallies in 2002, and he was active in
the committee that organized meetings and sit-ins of the Jeunesse du Front Populaire
Ivoirien [youth wing of the Ivorian Popular Front] between 2003 and 2006.
[5]
On February 14, 2009, the applicant was reportedly
attacked by rebel soldiers when he was leaving a gathering of his FPI
colleagues at the national television studios, where they had issued a
statement in support of ending the partition of the country. The rebel soldiers
purportedly shot at his vehicle. That same day, he filed a complaint with the police
that was not followed up. The applicant claims that the police were in league
with his attackers.
[6]
In 2009, the applicant received an offer of
employment as a domestic worker for an Ivorian diplomat in Canada. Thus, he
obtained an entry visa and arrived in Canada on August 25, 2009. He
subsequently joined the FPI’s Canadian section.
[7]
In August 2012, his employer was called back to
Côte d’Ivoire. The applicant submitted his refugee protection claim on
September 19, 2012. The applicant states that he refused to return to Côte
d’Ivoire with his employer because he fears for his live if he was to return,
particularly in light of the fact that the FPI has since lost power and its
activities are violently suppressed by the current regime. He asserts that other
FPI members that were close to him have been imprisoned, including his close
assistant, and that he fears that the same fate awaits him. He fears
persecution by reason of his political opinion and activities based not only on
his experiences in Côte d’Ivoire during the decade prior to his departure to
work in Canada, but also because of his membership in the FPI in Canada.
[8]
The hearing was held on March 31, 2014. At that
time, the applicant had adduced a number of documents, including a copy of his
membership card of the FPI in Canada. The member asked him if he had a
membership card for the FPI in Côte d’Ivoire. The applicant explained that he
had obtained one in 1998, but that he had left it in Bouaké as he had “to leave hurriedly”. He had not asked for another one
in Abidjan because, due to the war, the party had other priorities than issuing
membership cards.
[9]
The member also raised the issue of the refugee
application form he had filled out on October 3, 2012. In answer to the
question “Have you ever been a member of an organization?”,
he stated that he had been a member of Jeunesse du Front Populaire [Popular
Front Youth] from 2003 to 2006, and then of the Front Populaire Ivoirien
(FPI-Canada) as of March 2010. When asked why he had failed to indicate that he
had been a member of the FPI since 1998 on the form, the applicant explained
that he had written down 2003 as a reference date because it was at that time
that he left Bouaké and joined the party’s section in Abidjan.
[10]
Regarding the events of September 19, 2002, the
member asked the applicant how he knew that people were looking to kill him if
he was not there at the time. The applicant explained that he knew other party
members who had been in Bouaké at that time, and that two colleagues had contacted
him by telephone. He explained that he thought he had been targeted for death
because that night [translation] “there were people killed, one was a former president and
head of state and the other was a minister of the republic”, and that
anyone who did not support Alassane Ouattara, leader of the Rassemblement des
républicains de la Côte d’Ivoire (RDR – the party currently in power in Côte
d’Ivoire) had fled rebel-controlled areas, of which Bouaké was one. He
reiterated that he was targeted by reason of his political activities within
the FPI. He explained that his assistant, Némié Taloo, had disappeared that
night.
[11]
With respect to his political activities between
2003 and 2006, the member asked if he had ever encountered any problems. The
applicant replied that there had been three or four threats of intimidation of
the part of opponents of the party, who said [translation]
“You there – well, the day will come when things will
go really badly for you.” Asked whether he interpreted this as a death
threat, the applicant replied that yes, he did consider this to be a threat
against his life. When it was pointed out to him that he had not indicated
these threats in his personal information form, the applicant stated that he
had failed to indicate this [translation]
“perhaps by simple omission”.
[12]
As to the incidents of February 14, 2009, the
applicant reiterated that members of the rebellion had shot at his vehicle just
after he had made a statement against the partition on national television.
Asked how he knew they were rebel forces rather than [translation] “non-ideological
gangsters”, the applicant replied that he was sure they were rebels,
given the statement he had just given on the country’s partition, although he
did not personally know these attackers.
[13]
With regard to the complaint he had reportedly
made to the police about the incident, the member asked several timed what he
had expected of the police given that he was unable to identify the gunmen, to
which he replied that he expected the police to at least conduct an
investigation. He explained that he thought the police officers were in league
with his attackers, because on several occasions, the police had [translation] “taken
him for a ride” and had not [translation] “carried out any investigations”.
[14]
The applicant also had Luc Gbogouri,
Secretary-General of the Ottawa-Gatineau section of the FPI, testify. He
confirmed that he has known the applicant since 2009, when the latter was
looking for organizations of the FPI in Canada, and that the applicant had told
him that he had been a member of the FPI in Côte d’Ivoire. Mr. Gbogouri
confirmed that the applicant is a member of the FPI in Canada, that he had
attended two meetings held by the organization and had worked as a volunteer
during the 2010 Ivorian election.
II.
Decision under review
[15]
In his decision, the member dealt principally
with the credibility of the applicant’s narrative regarding the incidents that
reportedly took place in Côte d’Ivoire before his arrival in Canada in 2009,
and concluded that these allegations were not credible.
[16]
As to his membership in the FPI in Canada and
Luc Gbogouri’s testimony, the member noted that he did not dispute the fact
that the applicant had been and remains today a member of the FPI in Canada,
but noted that Luc Gbogouri did not know him before he arrived in Canada and
that his membership in the FPI in Canada does not establish that he was also a
member of the FPI in Côte d’Ivoire. The member noted that the applicant only
registered as a member of the FPI in Canada in December 2009, some four months
after he arrived in Canada.
[26] He registered in Canada as a
member of the FPI in December 2009. He participated in meetings of this
party in December 2009 and in June 2012.
[27]
He was apparently also involved in contacting
members of the Ivorian diaspora.
[28]
In Ottawa, he did not participate in any
partisan demonstration.
[29]
To demonstrate his membership in the FPI here in
Canada, the claimant submitted Exhibit P‑3, a membership card of the
above party (Federation of Canada – Ottawa – Gatineau), as well as the minutes
of two meetings he attended in December 2009 and June 2012 (Exhibit P‑3).
[30]
Furthermore, the claimant had Luc Gbogouri,
Secretary‑General of the FPI in Ottawa, testify. The latter confirmed in
his testimony that he met the claimant in December 2009 and confirmed his
membership at that moment in the FPI in Canada.
[31]
He never knew him previously and could not say
whether he had been a member of the FPI in Côte d’Ivoire as he was relying only
on what the claimant had told him.
[32]
Therefore, this testimony of Mr. Gbogouri
does not establish and cannot confirm the claimant’s allegations in any way.
[33]
The panel does not challenge the fact that the
claimant was and is today a member of the FPI in Canada. His membership does
not, however, establish that the latter was a member of the FPI in Côte d’Ivoire.
[34]
Moreover, the panel, noted that the claimant arrived in
Canada in August 2009 and that he registered as a member of the FPI in
Canada only in December 2009, that is, about four months later.
[17]
The member therefore rejected the refugee
protection claim on the ground that the applicant had not established that he
would face a serious possibility of persecution if he were to return to his
country of origin.
III.
Issues
[18]
The applicant raises three issues:
1.
Is the member’s decision unreasonable by reason
of inadequacy of reasons regarding the risk the applicant would face simply for
being a current member of the FPI in Canada (“refugee sur place”)?
2.
Is the member’s decision regarding the
applicant’s credibility unreasonable?
3.
Does the member’s conduct give rise to a reasonable
apprehension of bias?
[19]
The applicant argues that the decision is in
error with regard to the three issues here. I agree with his criticisms
regarding the first issue, which requires that I remit the decision for
re-determination for the following reasons.
IV.
Analysis
[20]
With regard to the issue of adequacy of reasons
in a sur place refugee claim, which is the determinative issue in this
case, it is established jurisprudence that the failure to consider relevant
grounds of persecution is a question of law and is reviewable on a standard of
correctness (Nadarasa v Canada (Minister of Citizenship and Immigration),
2012 FC 752 at para 15, [2012] FCJ No 904 [Nadarasa]; Hannoon v
Canada (Minister of Citizenship and Immigration), 2012 FC 448 at para 42,
[2012] FCJ No 480 [Hannoon]; Mohajery v Canada (Minister of
Citizenship and Immigration), 2007 FC 185 at para 26, [2007] FCJ No 252 [Mohajery];
Ghirmatsion v Canada (Citizenship and Immigration), 2011 FC 519 at para
49, [2013] 1 FCR 261).
[21]
First, it is worth reiterating the general
principles related to sur place refugees. The term “refugee sur place” refers to a person who,
though not necessarily having been a victim of past persecution in their country
of origin, would nonetheless face a serious possibility of persecution upon
their return. This may occur as a result of that person’s activities when they
were outside the country or even when they were in the country of refuge. For
example, in Mohajery, the Court overturned a decision wherein the Board,
having found the applicant’s allegations about practising Christianity in Iran
and being persecuted not to be credible, failed to consider whether the
applicant’s conversion to Christianity while living in Canada would put him at
risk if he were to return to Iran.
[22]
Failure to consider a ground of persecution in a
sur place claim for refugee protection is an error of law that warrants
the Court’s intervention (Urur v Canada (Minister of Employment and Immigration),
[1988] FCJ No 20, 91 NR 146; Manzila v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1264 at para 4, 165 FTR 313; Jiang v Canada (Minister of
Citizenship and Immigration), 2008 FC 635 at para 15, [2008] FCJ No 808; Mohajery,
at paras 31, 37-38; Nadarasa, at para 26).
[23]
The Board must consider the possibility that a
claimant is a sur place refugee even if this ground is not specifically
raised, if “it perceptibly emerges from evidence on the
record that the activities liable to entail negative consequences in case of a
return, took place in Canada” (Mohajery, at para 31; see also Hannoon,
at para 47). This analysis must be done even if the Board finds the applicant
not to be credible, insofar as trustworthy evidence establishes activities in
Canada in support of the sur place refugee claim (Mohajery, at
para 32; Hannoon, at para 47).
[24]
At the hearing, the respondent conceded that the
issue as to whether the applicant was a refugee sur place was raised
based on the facts of this case. However, the respondent submits that the
member adequately considered this issue in his decision having regard to all of
the evidence in the record and to the principles set out in the decision of the
Supreme Court in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
Nurses’].
[25]
I am of the view that the member did not, in
effect, consider the sur place refugee claim, for three reasons.
[26]
First, it appears from the reasons of the decision
that the member solely considered evidence of the applicant’s activities in
Canada in order to determine whether these supported his allegations regarding
events that reportedly occurred in Côte d’Ivoire. Indeed, after briefly
summarizing the allegations with respect to the applicant’s activities with the
FPI in Canada and the testimony of Luc Gbogouri, the member concluded that:
[31] He [Luc Gbogouri] never knew him
previously and could not say whether he had been a member of the FPI in Côte
d’Ivoire as he was relying only on what the claimant had told him.
[32] Therefore, this testimony of
Mr. Gbogouri does not establish and cannot confirm the claimant’s
allegations in any way.
[33] The panel does not challenge the
fact that the claimant was and is today a member of the FPI in Canada. His
membership does not, however, establish that the latter was a member of the FPI
in Côte d’Ivoire.
[27]
As previously noted, an analysis of a sur
place refugee claim must be done even if the member finds that the applicant
is not credible on other matters, insofar as the evidence of the activities in
Canada is trustworthy (Mohajery, at para 32; Hannoon, at para
47). Thus, if the member finds the evidence regarding the applicant’s political
activities in Canada to be credible – which is the case here, as the member “does not challenge the fact that the claimant was and is
today a member of the FPI in Canada” (paragraph 33 of the decision) – he
must assess whether these activities gave rise to a well-founded fear of persecution
regardless of the allegations with respect to events in Côte d’Ivoire. By
limiting his analysis of the activities in Canada to the issue as to whether
these supported the allegations about events in Côte d’Ivoire, the member
committed an error in principle.
[28]
Second, the member completely failed to assess
the risk the applicant could face from simply being a member of the FPI in
Canada. Granted, he did note certain facts which may have been relevant to a
risk analysis, such as the fact that the applicant had not participated in
demonstrations (paragraph 28 of the decision). However, he draws no conclusion
as to the possible effect of such activities in the event the applicant was to
be returned to Côte d’Ivoire. Yet Luc Gbogouri had described the applicant’s
activities within the FPI in Canada and testified that FPI sympathizers are
targeted in Côte d’Ivoire, that he himself was officially listed because of his
political activities with the FPI in Canada and would be arrested if he was to
return to Côte d’Ivoire, and that the applicant would also be in danger. The
member therefore had a responsibility to assess this evidence and to determine
whether the applicant’s involvement with the FPI in Canada would place him at
risk should he return to Côte d’Ivoire.
[29]
Third, I am of the view that the principles
articulated in Newfoundland Nurses’ do not apply here. In that case, the
Supreme Court considered the adequacy of reasons of a brief decision of a
grievance arbitrator and set out the following principles at paragraphs 15 and
16:
[15] In assessing whether the decision
is reasonable in light of the outcome and the reasons, courts must show
“respect for the decision-making process of adjudicative bodies with regard to
both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not
substitute their own reasons, but they may, if they find it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome.
[16] Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker
is not required to make an explicit finding on each constituent element,
however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin
District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p.
391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[Emphasis added.]
[30]
The respondent invites me to consider passages
from the hearing transcript in which the member questions Luc Gbogouri about
his political activities and those of the applicant within the FPI in Canada and
the risk they would face in Côte d’Ivoire, and submits that, if one were to
consider the case as a whole, the member did in fact consider the sur place
refugee claim and implicitly concluded that the risk was an insufficient one on
which to base a refugee protection claim.
[31]
First, I find the present context to be
completely different that the one in Newfoundland Nurses’, where, following
an adversarial proceeding, both parties presented well-supported positions on
the issue of the calculation of leave in a collective agreement and the
arbitrator wrote a brief analysis in favour of one of those positions. In this
context, an analysis of the record will allow for an understanding of the basis
of the decision. In this case, the applicant adduced his evidence in the
context of an inquisitorial proceeding which, in addition, would have a major
impact on his life as he faced removal to Côte d’Ivoire in the event his claim
was to be refused. Before the Board, there is no opposing party presenting
detailed arguments that would support a refusal. The written reasons of the
Commission’s decision are therefore essential in order to understand the
reasons for the decision which, moreover, was quite detailed in terms of other
elements in the record. Thus, it is not a situation in which the decision-maker
issued a decision with few details in a context where the parties were already
familiar with the substance of the arguments in support of the outcome.
[32]
Furthermore, I am of the view that an analysis
of the file as a whole provides no basis for understanding why the sur place
refugee claim was refused. The fact that the member had asked questions at the
hearing with regard to the risk Luc Gbogouri and the applicant would face in
Côte d’Ivoire indicated that the member may have had an interest in the
question during the hearing, but it does not make up for the member’s failure
to make findings on the value of that evidence or to explain why it would be
insufficient. As I have noted above, the member made no finding on the risk the
applicant would face in Côte d’Ivoire, when this was a crucial question. It is
not the role of this Court to assess that evidence itself and attempt to guess
which grounds would support a refusal. As my colleague, Justice Rennie
explained in Komolafe v Canada (Minister of Citizenship and Immigration),
2013 FC 431 at para 11, [2013] FCJ No 449:
[11] Newfoundland Nurses is not an open invitation to the Court to
provide reasons that were not given, nor is it licence to guess what findings
might have been made or to speculate as to what the tribunal might have been
thinking. This is particularly so where the reasons are silent on a
critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and
standard of review, is urged as authority for the supervisory court to do the
task that the decision maker did not do, to supply the reasons that might have
been given and make findings of fact that were not made. This is to turn
the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on
the page where the lines, and the direction they are headed, may be readily
drawn. Here, there were no dots on the page.
[33]
I therefore find that the failure to consider
the sur place refugee claim warrants the Court’s intervention.
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