Adjibi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 525

Date: 20020508

Docket: IMM-2580-01

Neutral citation: 2002 FCT 525

Ottawa, Ontario, Wednesday the 8^th day of May 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                          MARCELLE ADJIBI

YACOUB MAZOU

SOLIYATE MAZOU

                                                                                                                                          Applicants

                                                                        - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                       REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 Marcelle Adjibi is a 29-year-old citizen of the Republic of the Congo. The other two applicants in this proceeding are her four-year-old son and 8-year-old daughter. They seek judicial review of the May 7, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which denied their claim to Convention refugee status.

[2]                 The issues they raise all challenge the propriety of the CRDD's decision that the persecution which Mrs. Adjibi suffered was not sufficiently atrocious and appalling to warrant application of subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act").

THE FACTS

[3]                 Mrs. Adjibi's story, in brief, is as follows. She and her husband and two children lived comfortably in the Congo for many years due to her husband's well-established job as a mechanic and his work with the government. One day in late 1994 or early 1995, her husband and a colleague were arrested, allegedly because of a debt. On the same day three officials came to Mrs. Adjibi's house, ransacked the home, pushed her children about and raped Mrs. Adjibi repeatedly. Mrs. Adjibi went to live with friends.

[4]                 She eventually received word from her husband that he was in South Africa where he was granted refugee status. In or about 1995, Mrs. Adjibi and their children relocated to South Africa, where they applied for and were granted refugee status. A son, Yacoub, was born there.

[5]                 In 1999, the husband was again arrested and detained, this time due to a problem with his work permit. Thereafter, Mrs. Adjibi was raped in her home by two policeman who also ransacked the home and hit her children. The policeman told Mrs. Adjibi that as long as her husband remained in jail they would continue to come to her house to harass her. She believes that these men also took her eldest son, whom she hasn't seen since.

[6]                 Mrs. Adjibi and her two youngest children left South Africa immediately, entering Canada on January 8, 2000. She has no knowledge of the current whereabouts of her husband and eldest son, but she believes they are together. Mrs. Adjibi says she is afraid to return to the Congo, fearing for her children's safety, and afraid that she will be raped again.

THE CRDD'S DECISION

[7]                 The CRDD was satisfied, on a balance of probabilities, that: the applicants are nationals of the Congo; Mrs. Adjibi and her daughter were recognized as refugees by the Republic of South Africa; the applicants do not have a right to return to South Africa; Mrs. Adjibi's husband's troubles with the authorities may have been politically motivated; and that Mrs. Adjibi was raped in her home in the Congo by men who were looking for her husband.

[8]                 The CRDD noted that violence against women is widespread in the Congo, and that rape was widespread in the most recent civil conflict there. The CRDD found it plausible that the men who raped Mrs. Adjibi in the years immediately preceding the latest civil conflict may have directed this form of persecution against her.

[9]                 However, the CRDD went on to note, in connection with the objective basis of the claim, that there have been some positive developments in the Congo since the government of President Sassou-Nguesso came to power in October 1997. In particular, the CRDD noted as follows:

During the second half of 1999, the Government reestablished effective control over most of the South through military offensives, offers of amnesty, negotiations, and efforts to broaden the government's political base. In August 1999, President Sassou-Nguesso offered amnesty to rebel fighters who renounced violence and turned in their arms. The Government signed cease-fire and reconciliation accords with leaders of some rebel groups in November and with most other rebel groups in late December 1999. Since a December 1999 cease-fire, fighting has stopped and many of the more than 800,000 persons internally displaced during the 1998-1999 conflict have begun returning home. Former dignitaries who went into exile after the end of the civil conflict of 1997 as they feared for their lives have returned to the Congo to attend to their affairs. Political parties are functioning, including those of former President Pascal Lissouba and Bernard Kolelas, although they themselves remain in exile. However, their representatives in the Congo have apparently opted to forget the war and move forward. The economy is taking off due in large part to the high price of crude oil. Buildings that were either damaged or destroyed during the latest civil conflict are being rebuilt. Infrastructure is also being rebuilt. Also, the train link between Brazzaville and Pointe-Noire has been re-established. [footnotes omitted]

[10]            The CRDD further noted that although Mrs. Adjibi did not have knowledge of the nature and extent of her husband's political activities, her husband was apparently targeted on account of his political activities during the period when Pascal Lissouba was in power. However, since October 1997, there has been a change in government. The CRDD further noted that Mrs. Adjibi had no news with respect to her situation or her husband's situation vis-a-vis the current government.

[11]            As a result, the CRDD was not persuaded that the applicants had established, on a balance of probabilities, that there was a reasonable chance or a serious possibility that they would be persecuted based on a Convention ground should they return to the Congo.

[12]            With respect to subsection 2(3) of the Act, the CRDD wrote as follows:

The panel has considered the application of s.2(3) of the Immigration Act. Section 2(3) is intended to apply to a special and limited category of person, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they many [sic] no longer have any reason to fear further persecution. The panel is of the opinion that there is insufficient evidence that the claimant's persecution in this case was sufficiently "atrocious" and "appalling" to warrant the application of s.2(3).

[13]            No further reasons were given by the CRDD related to subsection 2(3) of the Act.

THE ISSUES

[14]            The specific deficiencies asserted with respect to the CRDD's decision are that it inadequately considered the exception contained in subsection 2(3) of the Act because the CRDD:

i)           erred in law in the test that it applied;

ii)          failed to provide adequate reasons;

iii)          overlooked, or failed to consider relevant evidence;

iv)         failed to consider the application of subsection 2(3) to the children; and

v)          failed to take into account the best interests of the children.

LEGISLATIVE PROVISIONS

[15]            Subsection 2(3) of the Act must be read together with paragraph 2(2)(e) of the Act. Together, they provide:

ANALYSIS

[16]            The genesis of subsection 2(3) of the Act is Article 1 C (5) of the 1951 Convention Relating to the Status of Refugees, which states that a person can not continue to refuse to avail himself or herself of the protection of his or her country of nationality if the circumstances in connection with which he or she had been recognized as a refugee ceased to exist, except where the refugee "is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself [or herself] of the protection of the country of nationality".

[17]            The proviso relating to compelling reasons is explained in the following way at paragraph 136 of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status ("UNHCR Handbook"):

136. The second paragraph of this clause contains an exception to the cessation provision contained in the first paragraph. It deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. The reference to Article 1 A (1) indicates that the exception applies to "statutory refugees". At the time when the 1951 Convention was elaborated, these ‘formed the majority of refugees. The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognized that a person who - or whose family - has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee. [emphasis added]

[18]            Two leading authorities from the Federal Court of Appeal which have considered subsection 2(3) of the Act are Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 and Yamba v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 388.

[19]            In Obstoj, Justice Hugessen wrote, at page 748, that the provision gives status to a "special and limited category of persons, [...] who have suffered such appalling persecution that their experience alone is a compelling reason not to return them". In Yamba, the Court noted that the CRDD is obliged to consider the applicability of subsection 2(3) of the Act once it is satisfied that refugee status cannot be claimed because of a change in country condition.

[20]            Generally, the jurisprudence of this Court is to the effect that "compelling reasons" arise out of past persecution which can be characterized as "atrocious" or "appalling". See, for example, Velasquez v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 477 (F.C.T.D.); Dini v. Canada (Minister of Citizenship and Immigration), 2001 FCT 217, [2001] F.C.J. No. 389; Igbalajobi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 348, [2001] F.C.J. No. 593; and Perger v. Canada (Minister of Citizenship and Immigration), 2001 FCT 551, [2001] F.C.J. No. 825.

[21]            With that statement of the principles which have been found to apply to subsection 2(3) of the Act, I now turn to the specific errors asserted on the applicant's behalf.

(i) Did the CRDD err at law in the test that it applied?

[22]            The CRDD, as quoted above, repeated without attribution the words of Justice Hugessen in Obstoj, supra, and applied the test of whether the prior persecution was sufficiently "atrocious" and "appalling" to warrant the application of subsection 2(3) of the Act.

[23]            In view of the case law from the Court of Appeal and the Trial Division cited above, I am unable to conclude that in applying this test the CRDD erred.

[24]            On the applicants' behalf it was argued that the analysis of compelling reasons is not limited to, and does not require a finding of "appalling" or "atrocious" persecution. Reliance was placed upon the decision of Justice MacKay in Kulla v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1347 (T.D.) and upon the fact that in Dini, supra Justice Gibson certified the question as to whether a finding of compelling reasons requires a finding of "appalling" or "atrocious" past persecution.

[25]            On the evidence before me it is, in my view, not necessary for me to consider whether in every case the standard of "compelling reasons" is subsumed in an inquiry into prior "appalling" or "atrocious" past persecution. It is sufficient for me to be satisfied that in view of the evidence before the CRDD and nature of the submissions made to it on the applicants' behalf, that the words "appalling" and "atrocious" were proper interpretive aids to guide the CRDD as to whether the documentary evidence and the oral evidence supported the applicants' submission that compelling reasons existed not to return them to the Congo.

(ii) Were the reasons of the CRDD adequate?

[26]            The CRDD is obliged by paragraph 69.1(11)(a) of the Act to give written reasons for its decision where its decision is against a claimant. Subsection 69.1(11) of the Act provides:

[27]            The Federal Court of Appeal in Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 interpreted this requirement to mean that reasons must be sufficiently clear, precise and intelligible that the claimant might know why his claim failed and decide whether to seek leave for judicial review. The Court of Appeal set aside the decision of the CRDD before it because the simple statement made by the CRDD that the claimant had not proven the existence of the reasonable fear of persecution was susceptible of many interpretations.

[28]            In the present case, the CRDD accepted that Mrs. Adjibi suffered persecution and particularly accepted that she was "raped repeatedly" in the Congo. The CRDD did not discredit her fear of return to the Congo, or her fears for her children' s safety and that she could be raped again.

[29]            Not mentioned by the CRDD in its analysis, or in the context of subsection 2(3), was a psychiatric assessment in evidence before it which concluded that Mrs. Adjibi suffered from Post-Tramatic Stress Disorder.

[30]            The reasons of the CRDD were simply that there was "insufficient evidence" that Mrs. Adjibi's persecution "was sufficiently ‘atrocious' and ‘appalling' to warrant the application of s.2(3)" of the Act.

[31]            Those reasons were, in my view, insufficient for the following reasons.

[32]            First, having found Mrs. Adjibi to have suffered persecution I do not understand what the CRDD meant when it spoke of the "insufficient evidence".

[33]            Second, and related to the first reason, persecution by definition requires maltreatment which rises to the level of serious harm. Meaningful reasons require that a claimant and a reviewing court receive a sufficiently intelligible explanation as to why persecutory treatment does not constitute compelling reasons. This requires thorough consideration of the level of atrocity of the acts inflicted upon the applicant, the effect upon the applicant's physical and mental state, and whether the experiences and their sequela constitute a compelling reason not to return the applicant to his or her country of origin. See: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 89 F.T.R. 106 (T.D.).

[34]            The failure of the CRDD to provide meaningful reasons was a reviewable error. While that is determinative of the application, as the matter will be remitted for redetermination I think it appropriate to address the balance of the applicants' submissions.

(iii) Did the CRDD overlook relevant evidence?

[35]            The applicants complained that the CRDD erred by failing to mention medical reports and by failing to consider expressly Mrs. Adjibi's treatment by the South African police.

[36]            As noted above, inherent in the proper consideration of the applicability of subsection 2(3) is consideration of the repercussions of the persecutory treatment upon the applicant. While it may not be fatal for the CRDD to fail to mention medical reports in its reasons if the reasons otherwise reflect a proper grasp and consideration of the evidence, in the present case the failure to discuss the medical evidence is an example of the failure of the CRDD to adequately discuss and consider the evidence in its reasons.

[37]            Similarly, there is no indication that the CRDD considered Mrs. Adjibi's treatment by the South African police. It was argued on her behalf that subsection 2(3) of the Act directs the CRDD to focus on compelling reasons arising out of "any previous persecution", which in this case might refer to Mrs. Adjibi's rape by officials in South Africa and that the failure to consider the actions of the South African police was a reviewable error.

[38]            In my view, the CRDD did not err as alleged. The CRDD is obliged to consider subsection 2(3) only after finding persecution and a subsequent change in country conditions. Here, the CRDD made no finding that Mrs. Adjibi was a victim of persecution in South Africa. No complaint is made that the CRDD so erred. Therefore, it follows in my view that the CRDD was not obliged to consider subsection 2(3) in relation to incidents which took place in South Africa. Put another way, persecutory treatment in another country cannot justify a refusal to avail oneself of the protection of one's home country.

[39]            Having said that, subsequent events not being persecutory treatment in one's home country may exaggerate or amplify the effect of the persecutory conduct. The CRDD must, in my view, take a refugee claimant as they are at the time of their hearing before the CRDD in order to determine whether the claimant should not be expected to repatriate.

[40]            In the present case, the medical reports detailed Mrs. Adjibi's current medical condition which was the result of the incidents of rape in both the Congo and South Africa. The CRDD would properly have had regard to the cumulative effect of those events upon Mrs. Adjibi when considering if in that present state Mrs. Adjibi has compelling reasons for refusing to return to the Congo.

(iv) Was the CRDD obliged to consider the minor applicants when consideringsubsection 2(3) of the Act?

[41]            Notwithstanding that there were three claimants before it, the CRDD did not mention the children in its subsection 2(3) analysis, referring only to Mrs. Adjibi.

[42]            The UNHCR Handbook in the portion quoted above recognizes that the persecution of a family member may be such as to make it unreasonable to expect a refugee claimant to repatriate. Thus, in Velasquez, supra, Justice Gibson recognized that persecution of a family member can of itself be sufficient to constitute compelling reasons.

[43]            Given that, together with the fact that the CRDD dismissed the claims of all of the applicants on the basis of changed country conditions, and the legal requirement confirmed in Yamba, supra, that the CRDD is obliged to consider the applicability of subsection 2(3) of the Act once it relies upon a change in country condition to deny refugee status, it follows that the CRDD erred in law in failing to consider the application of subsection 2(3) to each applicant.

[44]            The Minister argued that it was reasonable on the facts before it that the CRDD did not consider the situation of the children. While it may be doubtful as to whether the infant claimants can meet the threshold established by the case law, this is for the CRDD to determine, particularly in circumstances where the claim of Mrs. Adjibi is being remitted for redetermination. In so commenting, I make no comment on the merits of Mrs. Adjibi's claim. That is a matter for the CRDD.

(v) Did the CRDD err in not taking into account the best interests of the children?

[45]            The applicants submitted that the CRDD further erred in failing to take into account the best interests of the children in relation to the subsection 2(3) determination. This argument was not expanded upon by counsel for the applicant, but reliance was placed upon the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[46]            This argument, in my view, seeks to make whole cloth from a few threads.

[47]            Baker dealt with the need to consider the best interests of a child in the context of a humanitarian and compassionate application.

[48]            In Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, at paragraph 17, the Federal Court of Appeal cautioned that the more humanitarian grounds are allowed to enter into the determination of a refugee claim, the more the refugee procedure blends into the humanitarian and compassionate procedure with the consequence that the concept of persecution in the definition of refugee would be replaced in practice by the concept of hardship. That is not the intent of Parliament, nor of the framers of the Convention. As Hathaway notes in The Law of Refugee Status, (Toronto: Butterworths, 1991) at page 99, persecution is the exclusive benchmark for international refugee status.

[49]            In the result, the CRDD committed no reviewable error in failing to take into account the best interests of the child when inquiring as to whether the children have compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of the Congo.

(vi) Conclusion

[50]            For these reasons, the application for judicial review will be allowed.

[51]            The applicants proposed certification of a number of questions. The Minister opposed certification on the grounds that the proposed questions did not transcend the interests of the immediate parties and that the questions have already been answered in the jurisprudence of the Court.

[52]            I agree. No question will be certified.

ORDER

[53]            IT IS HEREBY ORDERED THAT:

1.          The decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated May 7, 2001 is hereby set aside, and the matter is remitted to a differently constituted panel for redetermination in accord with these reasons.

2.          No question is certified.

"Eleanor R. Dawson"

                                                                                                                                                  Judge                        

                                                FEDERAL COURT OF CANADA

                                                             TRIAL DIVISION

                   NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:      IMM-2580-01

STYLE OF CAUSE:     Marcelle Adjibi and others v. M.C.I.

PLACE OF HEARING:            Toronto, Ontario

DATE OF HEARING: January 11, 2002

REASONS FOR ORDER AND ORDER

OF THE HONOURABLE MADAM JUSTICE DAWSON

DATED:            May 8, 2002

APPEARANCES:

Mr. Micheal CraneFOR THE APPLICANTS

Ms. Mary MatthewsFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Mr. Micheal CraneFOR THE APPLICANTS

Toronto, Ontario

Mr. Morris RosenbergFOR THE RESPONDENT

Deputy Attorney General of Canada