Sawadogo v. Canada (Minister of Citizenship and Immigration), 2001 FCT 497

Date: 20010517

Docket: IMM-4162-00

Neutral citation: 2001 FCT 497

Between:

                                       SALAMATA SAWADOGO

                                                                                                             Applicant

And:

                      MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                        Respondent

                                           REASONS FOR ORDER

ROULEAU J.

[1]    This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division) dated July 14, 2000, in which it was determined that Salamata Sawadogo, the applicant, is not a Convention refugee.

[2]    The applicant, who was born in 1976, is a citizen of Burkina Faso. She states that on April 22, 1999, she was forced to marry an important Muslim merchant who was related to the president of Burkina Faso and who already had three wives and twelve children and that he demanded that she undergo excision. To avoid this, she says, she fled to Ivory Coast in May 1999. She was tracked down by her husband's family and forcibly returned to Ouagadougou in August 1999, where she says she was detained and mistreated by the police, and that she then underwent the excision and was forced to have painful sexual relations with her husband.

[3]    The applicant states that she fled her country in December 1999 with the help of a French citizen. She arrived in Canada on December 30, 1999, and she claimed refugee status.

[4]    On July 14, 2000, the Refugee Division rejected the applicant's refugee claim on the ground that she had not proved that she had a well-founded fear of persecution and was not credible due to numerous implausibilities and contradictions.

[5]    The applicant argued that the Refugee Division failed to have regard to crucial evidence such as the letter from the Canadian doctor stating that the applicant had undergone excision, the letter from her friend Aïcha confirming her story, the psychologist's report and the wedding pictures, and that it failed to explain why that evidence was not taken into account. She further argued that the Refugee Division relied on only those passages from the documentary evidence that supported its decision.

[6]                 The applicant submits that the Refugee Division did not properly apply the test for assessing the reasonable possibility of state protection and failed to follow the Board's guidelines on gender-related persecution. Under those guidelines, the Refugee Division could not hold the applicant responsible for failing to seek protection from non-governmental organizations. Moreover, and contrary to the guidelines, the Refugee Division failed to consider the social, cultural, religious and economic context of the applicant.

[7]                 The applicant submits that compelling reasons prevent her from returning to her country and that the Refugee Division should therefore have applied subsection 2(3) of the Act.

[8]                 The applicant alleged that the conduct of the presiding member of the Refugee Division at the hearing gave rise to a reasonable apprehension of bias or appearance of bias. She stated that the presiding member was very aggressive and disrespectful toward her and that on several occasions, the presiding member openly displayed her impatience and exasperation by rolling her eyes and sighing. The applicant stated that the presiding member became angry with her and her counsel when she failed to understand the explanations given by the applicant. The applicant also alleged that when she described her excision, the presiding member stopped her on the ground that this was voyeurism.

[9]                 The applicant's final argument was that any decision to deport her would violate section 12 of the Canadian Charter of Rights and Freedoms as well as Canada's international obligations in respect of the protection of human rights.

[10]            Contrary to what the applicant seemed to be saying, she cannot fear undergoing excision if she is returned to Burkina Faso since she has already undergone that procedure. The fear that the applicant alleged before the Refugee Division, and therefore the fear that must be considered by this Court, is of being detained by the police on her arrival and forced to live with a man she was married to against her will.

[11]            The respondent submits that the applicant failed to discharge her burden of establishing that the Refugee Division's findings of fact were made in a perverse or capricious manner, without regard to the material before it. The wedding photographs did not show the husband and were not consistent with the applicant's explanations. The letter from the applicant's friend, which was written in very general terms, did not in any way corroborate the essential facts of her claim and made no reference to the forced marriage, the husband's age and the excision that was performed after the marriage. The Diagnostic Interview Report was not a psychologist's report and was based entirely on facts presented by the applicant. The medical certificate did not specify when the excision might have been performed. There is also nothing to indicate that the Refugee Division failed to consider all of the documentary evidence or the guidelines for gender-related persecution.

[12]            The respondent submits that, having regard to the evidence, it was reasonable for the Refugee Division to conclude that the applicant's story was a fabrication. He argued that it was unlikely that a young woman, an adult, who was educated and had held a job and was living in the capital had undergone excision against her will as an adult. The applicant did not fit the profile of victims of that procedure found in the documentation. Having regard to the laws in Burkina Faso, it was implausible that the applicant, who was detained by the police after returning from Ivory Coast, would not have asked for and received help to prevent the excision procedure that was to be performed on her, in a country whose government resolutely combats that practice. It was also implausible that the applicant's wedding photographs did not show the applicant's husband.

[13]            The respondent submits that the Refugee Division did not have to address the issue of compelling reasons in a decision in which it found that the applicant was not credible. A change of circumstances which would prevent Convention refugee status being granted is necessary if the question of compelling reasons is to arise. The Refugee Division did not conclude that the applicant would have been found to be a refugee were it not for a change of circumstances in Burkina Faso.

[14]            On the allegation of bias, the respondent pointed out that the applicant never objected to the manner in which the hearing was conducted and therefore, according to case law, must be regarded as having waived her right to do so at a later date.

[15]            The Refugee Division did not believe the applicant's allegations regarding the excision she claims to have undergone after her forced marriage. It stated the following:

The claimant alleges that her father had decided several years earlier to arrange her marriage. The panel finds it implausible that the claimant could have been excised against her will only at the age of 23 if her father had intended to offer his daughter to someone. With regard to the forced excision of the claimant, the panel finds it implausible that it was not until such a late age and also after her marriage that she alleges she was subjected to it. The documentary evidence shows that the practice is generally used against a very young girl to preserve her virginity and the family's honour while ensuring the future wife's fidelity. The claimant admitted at the hearing that her family had never required it. Why then would her family have forced her into a marriage where she would be obliged to be excised? The claimant's answers were confused and not very satisfactory. This implausibility undermines her credibility.

Moreover, the documentary evidence indicates that the profile of a person who is generally targeted for genital mutilation is that of a vulnerable, uneducated young girl living in a small village. We have before us a person who has 12 years of education, who lived in a major urban centre (the capital of the country) and who was in the labour market. The documentary evidence shows that the act is generally performed against very young children (under the age of six), especially since the introduction of the anti-excision law, which provides for penal sanctions.

Burkina Faso has had an anti-excision law since 1996. There are also women's rights groups that provide assistance to protect women from this illegal practice in Burkina Faso. The claimant could therefore have requested the assistance of the state and many women's rights organizations in Burkina Faso. Several trials have been held, leading to the conviction of the persons involved. Moreover, the claimant has not shown in a clear and convincing manner that she could not have had the state's protection to prevent the excision of a 30-year-old woman. The panel is of the view that this is a fabricated story.

[16]            The Refugee Division did not comment on or even mention the existence of the medical certificate from a Canadian doctor attesting to the fact that the applicant indeed had undergone excision. The respondent argued that the certificate did not specify when the circumcision took place and that it was therefore reasonable for the Refugee Division to disregard it. With respect, I believe that by making this argument, the respondent is doing a job that fell to the Refugee Division to do. By failing to mention this important evidence and failing to state the reason why it rejected that evidence, the Refugee Division seems to me to have refused to perform its duty of assessing the evidence.

[17]            The Refugee Division did not indicate anywhere in its decision that it believed the applicant had undergone excision at a young age. In fact, some passages of the decision, in my view, even leave some doubt as to what the actual findings of the Refugee Division were. The following words in the third paragraph of its analysis are particularly ambiguous: "the documentary evidence indicates that the profile of a person who is generally targeted for genital mutilation is that of a vulnerable, uneducated young girl living in a small village. We have before us a person who has 12 years of education, who lived in a major urban centre (the capital of the country) and who was in the labour market." In my opinion, it is certainly not clear that the Refugee Division made an implicit finding that the applicant had in fact undergone excision during her youth rather than after her forced marriage. The words quoted above by no means imply this. In my view, it would have been important, and at the very least desirable, for the Refugee Division to clearly indicate its position on the excision of the applicant and refer to the relevant evidence.

[18]            Furthermore, the documentary evidence states that the percentage of women who underwent excision in 1996, before the law came into force, fell from 70% to 66% within four years, which clearly casts a serious doubt on the effectiveness of the measures taken. In view of its conclusion, which in my view was hasty and flawed, on the issue of the applicant's credibility, the Refugee Division obviously did not see fit to say anything about the applicant's explanations. In my opinion, the Refugee Division was required, at the very least, to expressly reject the applicant's explanations, having regard to the circumstances, especially since those explanations related directly to the allegation against her, namely, that she had failed to establish that she could not have availed herself of state protection.

[19]            To support its negative finding on the applicant's credibility, the Refugee Division used passages from the documentary evidence that show that it is generally uneducated, vulnerable young girls living in small villages who are targeted by excision procedures. The Refugee Division also took note of an anti-excision law that the authorities in Burkina Faso have been trying to enforce since 1996, and the existence of women's rights groups. That information, in my opinion, is far from enough to make the applicant's story implausible. The documentation clearly indicates that to this day, 66% of the female population in Burkina Faso (in other words, two out of three women) still undergo excision. Although it is generally very young girls who undergo the operation, examples involving older women are also found in the documentation. In short, I believe that the reasons given by the Refugee Division to explain its doubts as to the applicant's credibility are unpersuasive.

[20]            The Refugee Division also failed to mention a report written by David L. B. Woodbury, a member of the Ordre professionnel des conseillers et conseillères d'orientation du Québec. The report presents a psychological profile of the applicant and is based in part on facts related by her and in part on Mr. Woodbury's clinical observations. It was an important part of the applicant's evidence and, in my opinion, should indeed have been addressed by the Refugee Division. The respondent referred the Court to Danailov v. Canada (Minister of Employment and Immigration),

T-273-93, October 6, 1993, (F.C.T.D.), in which Madam Justice Reed wrote:

With respect to the assessment of the doctor's evidence, to find that the opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.

[21]            With respect, the situation is not the same in this case. The Refugee Division did not even mention the professional report in its decision and therefore there is every reason to believe that it failed to assess the probative value of this important evidence. An analogy can indeed be made with Khawaja v. Canada (Minister of Citizenship and Immigration), IMM-5385-98,    July 27, 1999, (F.C.T.D.), in which Mr. Justice Denault stated the following:

In my opinion, the panel was wrong to conclude that the principal claimant was not credible without taking into account and without discussing the content of the psychological report which found severe post-traumatic stress disorder and the plaintiff's difficulties relating the traumatizing events he had experienced, except for negatively arriving at the conclusion that these were facts he had not indicated in his personal information form.

[22]            In Ward (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689), the Supreme Court of Canada stated that except in situations of complete breakdown of the state apparatus, the state should be presumed capable of protecting its nationals. The Court also wrote that "clear and convincing proof" of a state's inability to protect must be advanced to rebut that presumption.

[23]            I note that the applicant testified that she did seek state protection unsuccessfully, that she did in fact undergo excision. The evidence clearly shows that the applicant went to the police asking for protection on three separate occasions. It is apparent from the transcript that it is the police officers themselves who are alleged to have contacted the husband of the applicant, thereby denying her the protection she was requesting. As she explained, her husband was a man close to the president and therefore very influential. He used his status with the police forces to enable three officers to cross the border into Ivory Coast, a neighbouring country, bring the applicant back, incarcerate her for approximately five days, during which she was mistreated, and ultimately have her transported to a hospital to have her wounds tended to.

[24]            The respondent's argument concerning subsection 2(3) of the Act is clearly unsound, as indicated by the following passage from the reasons of Reed J. in Corrales (IMM-4788-96, October 3, 1997, (F.C.T.D.)):

I turn then to counsel's ‘compelling reasons' argument. In order for an inquiry under section 2(3) to be made, one must first find changed country conditions in the absence of which the applicant would be a convention refugee. The Board did not make such a determination in this case . . . .

Since the Board never made a determination that the applicant was a Convention refugee, there was no need for it to consider section 2(3).

[25]            Those observations are directly applicable in this case.

[26]            The transcript clearly shows that the Refugee Division cross-examined the applicant for 6 to 8 pages concerning the distance between the police station, the hospital where she was treated and her home. I am persuaded that the sole purpose of the cross-examination was to confuse the applicant and induce her into error in her testimony. It is an example of the evidence of the Refugee Division's bias. Although there are a number of other examples, in my view, there is no need to cite any more.

[27]            I believe that it is apparent from the decision of the Refugee Division that regard was not had to all of the evidence in this case. For foregoing reasons, I allow the application and I refer the case back to a different panel of the Refugee Division.

   P. ROULEAU

      JUDGE

OTTAWA, Ontario

May 17, 2001

Certified true translation

Sophie Debbané, LL.B.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                 IMM-4162-00

STYLE OF CAUSE:              SALAMATA SAWADOGO v. MCI

PLACE OF HEARING:         Montréal, Quebec

DATE OF HEARING:            May 9, 2001

REASONS FOR ORDER AND ORDER OF ROULEAU J.

DATED:                                    May 17, 2001

APPEARANCES:                   

Stewart Istvanffy                                                                FOR THE APPLICANT

Marie Nicole Moreau                                                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

Stewart Istvanffy

Montréal, Quebec                                                             FOR THE APPLICANT

Morris Rosenberg                    

Deputy Attorney General

of Canada                                                                          FOR THE RESPONDENT

Date: 20010517

Docket: IMM-4162-00

OTTAWA, Ontario, the 17th day of May, 2001

PRESENT: The Honourable Mr. Justice Rouleau

Between:

                                       SALAMATA SAWADOGO

                                                                                                             Applicant

And:

                      MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                        Respondent

                                                        ORDER

[1]         The application for judicial review is allowed.

            P. ROULEAU

________________________                                                     

                JUDGE

Certified true translation

Sophie Debbané, LL.B.