Docket: IMM-2843-14
Citation:
2015 FC 1255
Ottawa, Ontario, November 5, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
|
BETWEEN:
|
|
JUAN JACKSON
OMOROGIE
|
|
MICHEAL NAYABA
BANGURA (a minor)
|
|
DESTINY NAYABA
BANGURA (a minor)
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants’ claim for refugee protection was
denied by the Refugee Protection Division of the Immigration and Refugee Board
of Canada (the Board). They now apply for judicial review of that decision
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act].
[2]
The applicants seek an order setting aside the
negative decision and returning the matter to a different member of the Board
for redetermination.
I.
Background
[3]
The applicants are citizens of Nigeria who had
been granted permanent resident status in Italy. The applicants are a mother,
Juan Jackson Omorogie (the principal applicant), with her two minor children.
[4]
In 2001, the principal applicant was deceived by
a woman named Madam Grace who promised to bring her to the United Kingdom and
get her a job. Madam Grace smuggled her into Italy and forced her to work as a
prostitute. For twelve years, Madam Grace extorted and assaulted the principal
applicant and forced her to work as a prostitute.
[5]
In 2002, the principal applicant was granted
permanent resident status in Italy as a result of a general amnesty.
[6]
In September 2006, the principal applicant
married a man in Italy and later gave birth to the two minor applicants. She is
now separated from her husband.
[7]
In 2010, the principal applicant got a job, but
Madam Grace forced her to continue paying and to continue working as a
prostitute on the weekends.
[8]
The principal applicant alleges that on June 30,
2012, Madam Grace had the principal applicant’s father murdered in Nigeria
because the principal applicant tried to leave prostitution and stopped paying
money.
[9]
In October 2012, the principal applicant fled
Italy to the United States (the U.S.) in order to claim asylum. Following a
conversation with a stranger at the airport, she decided not to claim asylum
and returned to Italy.
[10]
In February 2013, the principal applicant went
to the U.S. again, this time to work as a prostitute for Madam Grace and she
brought her children with her. The principal applicant ran away with her
children and met a stranger at a McDonalds. They stayed with this stranger in
the U.S. for fourteen days, following which they travelled to Canada and
claimed refugee protection in March 2013.
II.
Decision Under Review
[11]
The hearing took place in August 2013. In a
decision dated March 18, 2014, the Board rejected the applicants’ claim. It
found the applicants were excluded under Article 1E of the United Nations Convention
Relating to the Status of Refugees, 189 UNTS 150 [the Convention] due to
their Italian permanent residency status. In the alternative, the Board found
the applicants are not Convention refugees and are not subject to a risk of
life or a risk of cruel and unusual punishment upon return to Nigeria.
[12]
The Board considered the following issues:
exclusion under Article 1E of the Convention, credibility, delay in leaving
Italy, not making a claim in the U.S. and re-availment.
[13]
The Board noted the exclusion provision under
Article 1E of the Convention, incorporated into Canadian law by subsection 2(1)
of the Act. It cited Shamlou v Canada (Minister of Citizenship and
Immigration), [1995] FCJ No 1537, 103 FTR 241 [Shamlou] and observed
exclusion under Article 1E requiring the applicants’ basic rights to meet the
four criteria:
i) the right to return to the
country of residence;
ii the right to work freely without
restrictions;
iii) the right to study, and
iv) full access to social services in
the country of residence.
[14]
The Board observed after the Minister raised a prima
facie case that the applicants were excluded under Article 1E of the
Convention, the onus then shifted to the applicants to establish that they no
longer had status in Italy.
[15]
The Board acknowledged being born in Italy does
not in itself make the minor applicants citizens of Italy. It noted Article 1E
arises when a claimant does not have a well-founded fear of persecution or a
risk of harm under Article 97(1) in the Article 1E country. It also
acknowledged the Article 1E country must be safe for the applicants. It noted
the documentary evidence on whether the applicants would automatically lose
their permanent residence after one year outside of Italy was inconsistent. The
Board preferred the evidence from the Italian police indicating that status “can”
be revoked and found that this meant revocation is not automatic. It found even
in light of this inconsistency, as of the date of this hearing, the applicants
continue to have permanent resident status in Italy until February 14, 2014
which gives them the Shamlou rights.
[16]
Next, the Board assessed the applicants’ alleged
risk faced in Italy and found the applicants’ claims not credible. It found
that parts of the principal applicant’s testimony and some of the allegations
in the claim did not have a “ring of truth” to
them.
[17]
First, the Board noted the applicant maintained
Madam Grace and her associates would kill her and her children if she returned
to Italy; but she re-availed herself to Italy after talking with a stranger
without any legal expertise at the airport in 2012. The Board did not find the
principal applicant’s action reasonable and drew an adverse credibility
inference.
[18]
Second, the Board found the allegations
surrounding the applicants’ 2013 U.S. trip unreasonable. It found it would be
reasonable to assume the children would have remained in Italy with their
father because the purpose of the 2013 U.S. trip was prostitution. Also, it was
unreasonable that Madam Grace would allow the principal applicant to bring her
children on this trip, who were four and six years old at the time. Further, it
was unreasonable that the principal applicant did not know the name of the man
who tried to save her and her children’s lives and whom she stayed with for
fourteen days in the U.S.
[19]
Third, the Board did not find the principal
applicant’s explanation reasonable as to why she did not go to the police in
Italy. She alleged she and her husband’s lives were threatened by Madam Grace
who was connected with the Mafia. The Board found her testimony was very vague
and lacked details on these threats. Also, the principal applicant did not
provide any credible evidence to establish that Madam Grace was connected with
the Mafia or had any influence over the police. The Board considered the
Chairperson’s Gender Guidelines with respect to this claim. Nevertheless, it
found it would be reasonable to assume the principal applicant would have
contacted the police in Italy sometime in the twelve years. The Board found
adequate state protection was available to the applicants in Italy based on
documentary evidence.
[20]
Fourth, the Board drew an adverse inference regarding
the principal applicant’s allegation that Madam Grace murdered her father. It noted
the death certificate did not indicate who killed her father. The police report
also did not indicate who killed her father and whether it was related to the
allegation in the claim. The Board found it unreasonable that it took Madam Grace
two years to allegedly order the murder after the principal applicant attempted
to escape from the sex trade in 2010.
[21]
Fifth, the Board drew an adverse credibility
finding due to the principal applicant’s delay in leaving Italy. It stated it
would be reasonable to assume that she would have left or tried to leave Italy
much sooner than twelve years.
[22]
Further, the Board found there was not enough
credible evidence to establish Madam Grace would hurt the children. There was
no evidence that Madam Grace ever directly or indirectly threatened them. To
the contrary, Madam Grace allowed the principal applicant to bring the children
and agreed to provide a babysitter while she went to see clients during the
2013 U.S. trip.
[23]
As for the medical assessment documents, the
Board found Dr. Dalfen does not have firsthand knowledge of whether the
principal applicant was harassed, threatened, assaulted or forced into
prostitution. So, it found Dr. Dalfen is not in a position to state the causes
for the principal applicant’s mental condition. It found Dr. Asekomhe’s letter
also does not address the credibility concerns. Further, the Board acknowledged
the letter from a violence prevention counsellor. The Board assigned very
little evidentiary weight to the affidavit from the principal applicant’s
sister and an undated letter from her friend about the principal applicant’s
forced prostitution.
[24]
The Board concluded the applicants have their Shamlou
rights and given the negative credibility findings and a lack of credible
evidence, it found the applicants are excluded from making a claim for protection
in Canada under Article 1E of the Convention.
[25]
In the alternative, the Board found the
applicants’ alleged risks are not supported by credible evidence and therefore
they are not Convention refugees and are not subject to a risk of life or a
risk of cruel and unusual punishment upon return to Nigeria.
III.
Issues
[26]
The applicants raise the following issues:
1.
Did the Board misapprehend or ignore material
evidence properly before it to the extent that the Board committed an error of
law and/or fact?
2.
Was the Board’s overall assessment of the
totality of evidence patently unreasonable, perverse and capricious?
3.
Did the Board err in law by drawing negative
inferences unsupported by the evidence and decide the case on the basis of its
conjecture and speculations and not the evidence before it?
4.
Did the Board proceed on improper principles and
base its decision on irrelevant considerations, or take extraneous factors into
consideration in its assessment of the applicants’ credibility and/or ignore
critical evidence?
[27]
The respondent raises the following issues:
1.
Was the finding that the claim was not credible
reasonable?
2.
Was the finding that the applicants failed to
rebut the presumption of state protection reasonable?
3.
Was the finding that the applicants were
excluded due to their permanent residence in Italy reasonable?
[28]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Was the Board’s finding on the applicants’
permanent resident status in Italy reasonable?
C.
Were the Board’s credibility findings reasonable?
D.
Was the Board’s state protection analysis
reasonable?
E.
Was the Board’s decision reasonable overall?
IV.
Applicants’ Written Submissions
[29]
The applicants submit the appropriate standard
of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph
47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[30]
First, the applicants submit the Board made
unreasonable findings regarding the issue of exclusion. They argue it rejected
their well-founded fear of persecution and the non-existent legal rights to
return to Italy. The evidence indicates after staying more than twelve months
out of Italy and being in Canada before the impugned decision was rendered, the
applicants could no longer return to Italy because their rights as permanent
residents had automatically ceased to exist after February 14, 2014. Here, the
Board erred in law by using the date of the hearing as the decisive date instead
of the date of decision.
[31]
Second, the applicants submit the Board’s
mindset was contaminated because it chose to believe the Italian police website
even though it did not completely contradict the Italian Embassy’s report.
[32]
Third, the applicants submit the Board fettered
its discretion by not considering the applicants’ well-founded fear of
persecution which is the focal issue of the application. The applicants argue
the principal applicant testified about the existence of a fear of persecution
in Italy, the applicants therefore discharged the onus of establishing
exclusion.
[33]
Fourth, the applicants submit the Board unreasonably
assessed the applicants’ difficulties in making a claim in the U.S. They argue
the Board did not appreciate the principal applicant’s entire circumstances.
The reliance of the principal applicant on the information she gathered from
the people she met in the U.S. was not unreasonable or out of place given that
she was in a state of confusion. They cite the “Human Rights First Blueprint -
How to Repair the U.S. Asylum System” which states refugees who seek asylum in
the U.S. are often detained for months.
[34]
The applicants submit the Board’s credibility
findings were made based on mere speculation and conjecture and these findings
lack evidential proof. They cite Dhillon v Canada (Minister of Employment and
Immigration), [1990] FCJ No 1040, 12 Imm LR (2d) 118 (FCA) and Isse v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1020, 155
FTR 298 for support.
[35]
Fifth, the applicants submit the Board
unreasonably assessed state protection. They argue the Board’s review of the evidence
was selective and ignored key evidence supportive of their claim. The
applicants submit there was inadequate and/or no state protection for the
applicants in Italy. For support of the applicants’ allegations, they cite the
documents “Women in the World - Nigerian Girls Sold Into Sex Slavery in Italy”,
“Sexual Slavery: Our Ordeal in Italy - Nigerian Prostitutes” and “Trafficking
of Women & Children” in Italy.
[36]
Sixth, the applicants submit the Board’s
assigned weight to the affidavit evidence and medical evidence was
unreasonable. They cite Zapata v Canada (Solicitor General), [1994] FCJ
No 1303, 82 FTR 34 for support, where this Court overturned a Board’s decision
for the failure to accord due weight to medical evidence of post-traumatic
stress disorder in its credibility determination.
V.
Respondent’s Written Submissions
[37]
The respondent submits the standard of review
for the issues of credibility and state protection, which concern findings of
fact, are reviewable on a standard of reasonableness (Singh v Canada
(Minister of Citizenship and Immigration), 2008 FC 408, [2008] FCJ No 547;
and Valdez Mendoza v Canada (Minister of Citizenship and Immigration),
2008 FC 387, [2008] FCJ No 481). As for the issue of exclusion under Article 1E
of the Convention, this concerns findings of mixed fact and law and is also
reviewable on a standard of reasonableness (Zeng v Canada (Minister of
Citizenship and Immigration), 2010 FCA 118 at paragraph 34, [2011] 4 FCR 3
[Zeng]). It submits each of these findings was determinative of the
applicants’ claim.
[38]
First, the respondent submits the Board’s
credibility findings were reasonable. The Board found many of the details
alleged by the principal applicant were not credible. They have not challenged
any of the specific findings and they have not shown the Board made these
findings without support from the evidence. It is well-established that the
Board is entitled to draw inferences and make findings based on the
implausibility of evidence (Alizadeh v Canada (Minister of Employment and
Immigration), [1993] FCJ No 11, 38 ACWS (3d) 361 (FCA) [Alizadeh]).
[39]
The respondent argues the Board reasonably drew
a negative inference from the applicants’ failure to claim protection in the U.S.
because the principal applicant relied on the advice of a stranger who had no
expertise or knowledge. The Board assessed the claim while considering the
Gender Guidelines and the letters and documents from the principal applicant’s
doctors and support worker. The applicants’ disagreement does not mean the
Board ignored evidence. Also, the Board was reasonable to give little weight to
the personal documentary evidence given the credibility concerns and the lack
of in-person testimony. Here, the applicants disagree with the assigned weight
of the evidence. It is trite law that disagreements with the weight assigned to
evidence is not a basis on which the Court should intervene (Ye v Canada
(Minister of Employment and Immigration), [1994] FCJ No 1233).
[40]
Second, the respondent submits the Board was
reasonable to find that adequate state protection was available (Camacho v
Canada (Minister of Citizenship and Immigration), 2007 FC 830 at paragraph
10, [2007] FCJ No 1100). Italy is a functioning democracy with laws and
services in place to combat violence against women and sexual violence. Here,
the principal applicant made no attempts over twelve years to approach the
state for protection. The Board reasonably found there was no credible evidence
that the principal applicant’s persecutor, Madam Grace, had connections with
the Mafia or influence over the authorities. The documents cited by the
applicants show human trafficking and prostitution are persistent problems in
Italy; but they do not show state protection is inadequate so that the principal
applicant was not required to seek assistance from the Italian state before
seeking refugee protection.
[41]
Third, the respondent submits the Board was
reasonable to find the applicants were excluded under Article 1E of the
Convention. The applicants do not challenge the Board’s finding that as
permanent residents, they enjoy the rights set out in Shamlou. The
respondent argues the applicants have not cited any case law in support of the
argument that their status had to be assessed at the time of the decision and
not the time of the hearing. The case law does not support the proposition that
if status is lost through an individual’s own action or inaction between the
date of the hearing and the date of the decision, that individual will not be
excluded (Zeng at paragraph 16).
[42]
Further, the Board acknowledged the inconsistent
documentary evidence on whether the loss of status is automatic. No evidence
was submitted at the time of the decision, thirteen months after the applicants’
departure from Italy, that the applicants had lost their status in Italy.
[43]
In the respondent’s further memorandum, it
submits the Board was reasonable to draw a negative credibility finding against
the applicants’ delay in seeking refugee protection. Delay amounts to a lack of
subjective fear (Mejia v Canada (Minister of Citizenship and Immigration),
2011 FC 851 at paragraph 14, [2011] FCJ No 1062 [Mejia]).
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[44]
Where the jurisprudence has satisfactorily
resolved the standard of review, the analysis need not be repeated (Dunsmuir
at paragraph 62).
[45]
First, for the issue of exclusion under Article
1E of the Convention, this concerns findings of mixed fact and law and is
reviewable on a standard of reasonableness (Zeng at paragraph 34).
[46]
Second, for the issue of the Board’s credibility
findings, this involves questions of fact. Both credibility findings and the
treatment of evidence are areas within the Board’s specialized expertise. This
attracts the standard of reasonableness.
[47]
Third, for the issue of the state protection
analysis, the standard of reasonableness also should be applied. The Federal
Court of Appeal has determined in Carrillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94 at paragraph 36, [2008] FCJ No 399, that the
standard of review is reasonableness for the analysis of state protection.
[48]
The standard of reasonableness means that I should
not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47).
Here, I will set aside the Board’s decision only if I cannot understand why it
reached its conclusions or how the facts and applicable law support the outcome
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraphs 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
B.
Issue 2 - Was the Board’s finding on the
applicants’ permanent resident status in Italy reasonable?
[49]
I find the Board’s finding on the applicants’
Italian permanent residency status was reasonable.
[50]
Article 1E of the 1951 UN Convention provides “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.”
[51]
Section 98 of the Act provides:
|
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.
|
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.
|
[52]
The applicants do not challenge the Board’s
finding that as permanent residents they enjoy the rights set out in Shamlou,
they argue they should not be excluded under Article 1E because their permanent
resident status was lost in between the hearing date and the decision date. The
respondent argues the loss of status, if it indeed is the case, is through the
applicants’ own actions.
[53]
Under Zeng, the Federal Court of Appeal
at paragraph 16 found the Board’s inquiry on whether a claimant should be
excluded under Article 1E is limited to all relevant facts to the date of the
hearing. It outlined the steps of analysis for exclusion under Article 1E in
paragraph 28:
Considering all relevant factors to the
date of the hearing, does the claimant have status,
substantially similar to that of its nationals, in the third country? If the
answer is yes, the claimant is excluded. If the answer is no, the next question
is whether the claimant previously had such status and lost it, or had access
to such status and failed to acquire it. If the answer is no, the claimant is
not excluded under Article 1E. If the answer is yes, the RPD must consider and
balance various factors. These include, but are not limited to, the reason for
the loss of status (voluntary or involuntary), whether the claimant could
return to the third country, the risk the claimant would face in the home
country, Canada’s international obligations and any other relevant facts.
[My emphasis added]
[54]
I find the Board’s determination was reasonable.
Here, the Board acknowledged the applicants’ permanent resident status in Italy
was not lost on the date of the hearing. It observed the inconsistency in the
documentary evidence on whether the applicants would automatically lose their
permanent residence after one year outside of Italy. It chose to believe the
information on the Italian police website (certified record at page 161) even
though it did not completely contradict the Italian Embassy’s report (certified
record at page 159). The Italian police website indicates the applicants’
permanent resident status “can” be revoked after one year outside of Italy. The
Italian Embassy information indicates the applicants’ permanent resident status
“will” be lost after one year outside of Italy. The Board preferred the
evidence from the Italian police website and reasoned this evidence means
revocation is not automatic.
[55]
The Board has the power to assign weight to
evidence and it is not the role of this Court to reweigh evidence. Given the
Board’s rationale, I am satisfied that the Board has thoroughly examined the
evidence in front of it. It not only followed the instruction outlined in Zeng,
but also considered the potential consequence of the applicants remaining outside
of Italy for more than one year. I find the Board’s conclusion falls within a
range of acceptable outcomes.
C.
Issue 3 - Were the Board’s credibility findings
reasonable?
[56]
I find the Board’s credibility findings were
reasonable.
[57]
It is trite law that the determination of an
applicant’s credibility is at the heartland of the Board’s jurisdiction (RKL
v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at
paragraphs 7 and 8). The Federal Court of Appeal has found the Board is
entitled to draw inferences and make findings based on the implausibility of
evidence (Alizadeh).
[58]
Here, the applicants have not challenged any of
the specific findings and they have not shown the Board made these findings
without support from the evidence. The applicants’ arguments indicate they
disagree with the Board’s assessed weight of the evidence. In my opinion, mere
disagreements with the Board’s findings do not indicate these findings are
unreasonable.
D.
Issue 4 - Was the Board’s state protection
analysis reasonable?
[59]
As part of their arguments, the applicants state
that Article 1E exclusion should not apply to them because they would face a
risk in Italy should they return. They feared that Madam Grace would attempt to
kill them and the police would not protect them. The Board specifically found
that the principal applicant was not a credible witness and as a result, there
was not enough trustworthy or credible evidence to establish the allegations in
her claim ever occurred. Consequently, there is no need to address state
protection for the applicants.
E.
Issue 5 - Was the Board’s decision reasonable
overall?
[60]
I find the Board’s decision was reasonable
overall.
[61]
Article 1E of the Convention arises when the
claimant does not have a well-founded fear of persecution or a risk of harm
under Article 97(1) in the Article 1E country.
[62]
This Court has repeatedly found that delay in
seeking refugee protection amounts to a lack of subjective fear (Mejia
at paragraph 14). Further, the Board’s negative credibility findings regarding
the principal applicant’s allegations also indicate a lack of subjective fear.
[63]
Here, the Board was reasonable to conclude the
applicants have their Shamlou rights and given the negative credibility
findings, the delay in seeking refugee protection and a lack of credible
evidence, the applicants are excluded from making a claim for protection in
Canada by Article 1E of the Convention. Its alternative finding was also
reasonable, wherein the Board found the applicants’ alleged risks are not
supported by credible evidence and therefore they are not Convention refugees
and are not subject to a risk of life or a risk of cruel and unusual punishment
upon return to Nigeria.
[64]
Therefore, the Board’s overall decision was
reasonable.
[65]
As a result, the application for judicial review
must be dismissed.
[66]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
Email this Content