Date: 20050329
Docket: IMM-4925-04
Citation: 2005 FC 422
Ottawa, Ontario, this 29th day of March, 2005
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
MAGDALENA MHANDO and
GIBBONS JOHANNES MLOWE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board") dated May 12, 2004, wherein the Applicants were determined to not be Convention refugees or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The Applicants seek to have this decision declared invalid, quashed and set aside, and that their refugee claim be sent back for redetermination before a newly-constituted panel.
ISSUE
[2] Did the Board err in finding that the Applicants are not Convention refugees or "persons in need of protection" as defined in sections 96 and 97 respectively of the Act?
CONCLUSION
[3] Based on the analysis below, the answer to this question is yes and this application for judicial review is granted.
BACKGROUND
[4] Magdalena Mhando (Ms. Mhando or the "Principal Applicant") and her husband Gibbon Johannes Mlowe (Mr. Mlowe or the "Applicant") (collectively, the "Applicants") are citizens of Tanzania. Ms. Mhando belongs to the Mpare tribe, while Mr. Mlowe belongs to the Mbena tribe. Both Applicants fear persecution at the hands of Mr. Mlowe's parents, and especially his mother, as well as the tribal elders of the Mbena tribe, since Ms. Mhando refused to submit to the Mbena tribal custom of female circumcision, or female genital mutilation ("FGM") after her marriage to Mr. Mlowe. They also fear harm, should they be forced to return to Tanzania, because of witchcraft practiced by the tribal elders.
[5] A few months after the Applicants got married in June 2001, Ms. Mhando's mother-in-law began pressuring Ms. Mhando to be circumcised. Mr. Mlowe's tribe practices FGM, while Ms. Mhando's tribe does not. Upon marriage, a woman becomes a member of her husband's tribe. Ms. Mhando would not agree to being circumcised, a decision in which she had Mr. Mlowe's support. She continued, however, to be pressured by her mother-in-law and the tribal elders. Finally, in April 2002, after it became known that Ms. Mhando was pregnant, her mother-in-law threatened that if the baby was a girl, she would also be taken away and circumcised (along with Ms. Mhando herself).
[6] In October and November of 2002, both claimants left Tanzania, separately so as to not raise suspicion amongst Mr. Mlowe's family. On October 21, 2002, Mr. Mlowe went to the United States on the pretext that he was going to study there. At the beginning of November (10 days after her husband left), Ms. Mhando went to Canada on the same pretext. After her baby was born (a girl), she began her refugee claim, in early February 2003. As for Mr. Mlowe, he spent a few months in the United States, and then came to Canada in early May 2003. He claimed refugee status upon arrival, and proceeded to Edmonton, AB, where Ms. Mhando and the new baby were living with a friend.
DECISION UNDER REVIEW
[7] The Applicants' claims for refugee status were consolidated and heard on February 17, 2004. On May 12, 2004, the Board advised that after reviewing the Applicants' claims and the documentary evidence on Tanzania and FGM, the Applicants' fear of persecution in Tanzania, either because of the risk of FGM or because of witchcraft, was not well-founded.
[8] The Board noted, first, that the Applicants remained in Tanzania for over a year after the issue of FGM was first raised. In addition, Ms. Mhando "was never the victim of serious harm ... [and] no attempts were made to abduct the claimant or to forcibly perform FGM on her prior to her departure" (at page 3 of the Board's decision). The Board determined that if Mr. Mlowe's mother and the tribal elders truly meant to cause serious harm to the Applicants, they had "ample opportunity" to do so prior to the Applicants' leaving Tanzania. Furthermore, the Board determined, after assessing the documentary evidence, that the incidence of FGM had declined. For these reasons, in the Board's opinion, the Applicants' fear of FGM was not well-founded.
[9] As far as the Applicants' fear of witchcraft was concerned, the Board found that not only was there again ample opportunity for the tribal elders to have persecuted the Applicants before their departure from Tanzania (which did not happen), it was "not prepared to accept the claimants' evidence that by virtue of the claimants being in Canada, they [those persons exercising witchcraft]_are unable to harm them, while it is their evidence that they could be harmed no matter where they are in Tanzania, or for that matter anywhere in Africa, through witchcraft" (at page 4 of the Board's decision).
[10] Finally, the Board concluded that, at any rate, there was a viable internal flight alternative ("IFA") available to them in Lindi or Tanga from any threat of harm. The Board decided that there was "no more than a mere possibility" the Applicants would be located in these cities by those who might wish to cause them harm.
[11] For the same reasons, the Board found the Applicants to not be persons in need of protection since the Applicants did not face a risk to their lives, or of cruel and unusual treatment or punishment were they to return to Tanzania.
SUBMISSIONS
The Applicants
[12] The Applicants claim that the Board made three errors in assessing their claim : it failed to consider relevant evidence; it failed to provide adequate reasons as to why certain evidence was rejected; and it erred in its assessment of the availability of an IFA.
[13] As part of their refugee claim, the Applicants had submitted many supporting documents which corroborated the fears of the Applicants. These included letters and emails from siblings of Mr. Mlowe and Ms. Mhando, a threatening letter sent to Mr. Mlowe by the tribal elders, and a copy of the police report that corroborated the Applicants' evidence that the police refused to become involved in the matter. The Board also heard testimonial evidence via telephone from a sister and brother of Mr. Mlowe as to the problems experienced by the Applicants in Tanzania and the actual risk should they be forced to return. According to the Applicants, the Board set the standard of proof too high for the Applicants by stating that the fact no attempt to abduct or forcibly perform FGM on Ms. Mhando prior to her departure made her story less credible. Finally, and perhaps most importantly, the Board focused on a single statement in the documentary evidence which indicated that the practice of FGM is on the decline, while the bulk of the evidence on FGM reports that it is still a serious local problem which receives very little support from police.
[14] Second, in rejecting the Applicants' evidence regarding witchcraft, the Board did not take into consideration differences in cultural beliefs and practices between Canada and Tanzania. There was other evidence supporting the Applicants' belief that witchcraft could harm them anywhere in Africa, though especially in Tanzania, but not at all in Canada. The Board failed to provide reasons as to why this evidence was not accepted.
[15] Finally, the Board incorrectly assumed that just because Lindi and Tanga are large cities, the Applicants would be safe from any perceived threat by Mr. Mlowe's mother and the tribal elders. The Applicants testified (which was supported by the other witnesses) that Mr. Mlowe has family throughout Tanzania and that the whereabouts of the Applicants would readily be discovered and reported back to Mr. Mlowe's parents and the tribal elders. The Board did not take this evidence into consideration.
The Respondent
[16] In response, the Respondent submits that since the findings at issue in this application are all factual, the highest level of deference should be accorded to the Board. The Respondent is of the opinion that none of the Board's findings are patently unreasonable when the evidence is viewed as a whole. The Respondent further claims that the Board is not bound to mention every piece of evidence in its reasons.
[17] The Respondent did admit, however, in its oral submissions (though not in its written Memorandum of Fact and Law), that the Board improperly assessed the question of whether an IFA existed since it did not fully explain this determination. While this aspect of the Board's decision was incorrect, this admission is limited to the IFA finding. Nevertheless, since this finding was independent of the Board's analysis and determination regarding the Applicants' lack of fear of persecution in Tanzania, the Respondent submitted that those errors were not sufficient, in and of themselves, to vitiate the decision.
ANALYSIS
Standard of Review
[18] Both parties agreed that in highly fact-based applications, the appropriate standard of review to apply is that of patent unreasonableness :
[T]he standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per LaForest J., at pages 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact-finding be patently unreasonable.
(See C.U.P.E. Local 301 v. Montréal, [1997] S.C.R. 793">[1997] S.C.R. 793 at para. 85. See also 2003 SCC 20">Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52.)
[19] Furthermore, decisions of the Refugee Protection Division concerning the availability of an IFA have also been found to be reviewable according to a standard of patent unreasonableness : See Mohammed v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 954, Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.), and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.). Therefore, this decision should be reviewed having in mind the patently unreasonable standard of review.
The Board's decision
[20] To determine whether a claimant is a Convention refugee, there is a two-step analysis the Board should undertake :
(a) Does the claimant truly hold a subjective fear of persecution on the basis of one of the Convention grounds?; and,
(b) Is there "a reasonable chance that persecution would take place were the applicant returned to his country of origin?" (This second step is an objective one.) See the comments of McGuigan J.A. speaking for the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.) at paras. 6-7.
[21] While, according to the standard of review of patent unreasonableness, the reviewing Court should not intervene lightly in a Board's decision, enough errors, however small individually, may combine to make an otherwise reasonable decision quite unreasonable. I believe this is the case here.
[22] While it is perhaps true that the tribal elders and Mr. Mlowe's mother had ample opportunity to harm Ms. Mhando prior to her departure from Tanzania, but did not actually do so, the requisite legal test for persecution does not prescribe that actual harm must be attempted as against the Applicant. In this regard, Décary J. (as he then was), in Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (T.D.), commented at page 558 that when determining whether a person fits the definition of a Convention refugee (which would necessarily include an analysis of whether persecution was present) a number of factors should be kept in mind, including :
(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future;
(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him, but from reprehensible acts committed or likely to be committed against members of a group to which he belonged;
[...]
(4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin.
A refugee claimant, then, must have a subjective fear of persecution, and this fear, in turn, should be reasonable; however, actual persecution does not have to occur in order for this to be established. The reasonableness of fear can often be assessed by examining the documentary evidence, as well as any other corroborating evidence such as statements by other witnesses. This was not done in this case.
[23] It is true that the Board does not have to mention each and every piece of evidence, and that it is assumed a Board took all the evidence into consideration unless the contrary is shown (see Akram v. Canada (Minister of Citizenship and Immigration), 2004 FC 629 at para. 15); however, in this case, the evidence to which the Board did not refer to or comment on in its reasons is sufficient in nature and potential importance as to necessitate the provision of reasons for the rejection. The Board instead chose to remain silent as to its assessment of much of the corroborating evidence; e.g., the evidence of Mr. Mlowe's brother and sister, the police report, the letter from the tribal elders. Also, upon review of the Tribunal record, I find that some of the documentary evidence should have been referred to by the Board, as the Board's conclusions were at odds with many of these documents.
[24] For example, some of the documents discuss witchcraft as a belief system in Tanzania; see, e.g., the U.S. Department of State Country Reports on Human Rights Practices for Tanzania in 2002 (see especially page 242 of the Tribunal record), and the IRB Information Request on Tanzania: Situation of women, and state protection available for female victims of rape and violence (1995-July 2000) dated August 2, 2000 (see especially page 279 of the Tribunal record).
[25] More telling, however, is the amount of evidence in the record on FGM and women's rights to which the Board chose not to refer; e.g., pages 254-56 of the Tribunal record, which is a section on women's rights from the U.S. Department of State's Country Report (as cited above); the IRB Information Request on Tanzania dated August 2, 2000 (as cited above, pages 278-80 of the Tribunal record), as well as its update on June 1, 2001 (pages 275-76 of the Tribunal record); the IRB Information Request on Tanzania : Update to TZA34272.E of 8 May 2000 on female genital mutilation (FGM) in Tanzania and available state protection, dated July 11, 2003 (pages 294-297 of the Tribunal record); and an article on the campaign against FGM in Tanzania ("FGM campaign gains acceptance in Tanzania" by Alpha Nuhu, from IPP Media, dated December 15, 2003; pages 299-300 of the Tribunal record). The July 11, 2003 IRB Information Request seems especially enlightening as to the prevalence of FGM in Tanzania and the protections available to women trying to avoid forced circumcision. I find this information to be of importance, and even more so when the finding of the Board is in direct contradiction with the way in which these documents treat the subject matter of FGM. In the circumstances, an explanation and reasons ought to have been provided.
[26] On the IFA issue, I agree with both counsels that the reasoning to support the Board's conclusion is limited, to say the least. Furthermore, it did not deal with the evidence that Mr. Mlowe had family members residing in all parts of Tanzania and that, therefore, the Applicants were likely to be found no matter where they might relocate. That concern was not even addressed by the Board, even though ample evidence on this point existed. Such an analysis is key to the question of whether a person is in need of state protection.
[27] While I agree with the Board's determination that attitudes toward FGM in Tanzania seem to be changing for the better, there is definitely much documentary evidence in the Tribunal record that police and government officials are reluctant to become involved in tribal customs such as FGM. It is not clear, therefore, whether state protection would thus even be available to the Applicants, should such protection become necessary. Without this further analysis, the Board's decision cannot stand.
CONCLUSION
[28] Without a full assessment of the documentary evidence before it, the Board could not come to a reasonable decision as to the fear of persecution experienced by Ms. Mhando and Mr. Mlowe as members of a tribe practicing FGM. Nor could it properly assess whether the fears of witchcraft held by both Applicants were reasonable, considering the available evidence on this issue (both personal and documentary). Mr. Mlowe also feared for his life, as a man who refused to force his wife to undergo circumcision, a fact that was not taken into consideration by the Board, though that evidence was clearly before it. As mentioned, I note that some of these mistakes, taken in isolation, might not be enough on their own to invalidate the decision. But taken as a whole, their impact on the Board's final decision cannot be underestimated. In essence, a full and thorough understanding of the situation in Tanzania surrounding the issue of FGM was not reached by the Board and the most pertinent evidence was not dealt with. The totality of these mishaps make this decision patently unreasonable. As a result, this application for judicial review should be granted and the refugee claims of both Applicants sent back for redetermination.
[29] The parties were asked to suggest questions for certification but they declined since the Board's decision concerned issues more of a factual nature than legal.
ORDER
THIS COURT ORDERS THAT :
- This application for judicial review be granted, without costs;
- The decision of the Board dated May 12, 2004 be quashed and set aside, with no questions to be certified;
- The refugee claims of the Applicants, Mr. Mlowe and Ms. Mhando, be sent back before a newly-constituted Board for redetermination in accordance with the proper assessment of the evidence.
"Simon Noël"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4925-04
STYLE OF CAUSE: MAGDALENA MHANDO and GIBBONS
JOHANNES MLOWE v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: March 17, 2005
REASONS FOR ORDER: Mr. Justice Simon Noël
DATED: March 29th, 2005
APPEARANCES:
Simon K. Yu FOR APPLICANT
Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Simon K. Yu FOR APPLICANT
Barrister & Solicitor
Edmonton, Alberta
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR RESPONDENT
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