Date: 20100210
Docket: IMM-1920-09
Citation: 2010 FC 138
Toronto, Ontario, February 10,
2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
BIJOU
KAMWANGA KAYUMBA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated March 2, 2009, where the Board refused Bijou Kamwanga Kayumba’s (the
Applicant) claim for asylum.
Factual
Background
[2]
The
Applicant is a citizen of the Democratic Republic of the Congo and lived in
the city of Lubumbashi. Her claim is
based on events that took place after the accidental death of her husband in
November 2006. After the death of her husband, the Applicant was summoned to
the village where her husband’s family lived. She had never been to this
village before, nor had she met his family previously. The family accused her
of lying about her husband’s death and confined her in a room for a week.
[3]
Eventually,
the Applicant was told that she would have to marry her brother-in-law. She was
beaten for refusing to do so and was again confined. Days later, she was told
that she must marry her father-in-law and that she would be killed if she
refused. The Applicant was raped by her father-in-law, multiple times, over a
period of several weeks. She was eventually brought to another village for
medical treatment at which point she escaped from her captors.
[4]
The
Applicant fled her country, leaving behind her six children, arrived in Canada on September
4, 2007 and claimed protection.
Impugned Decision
[5]
In
its decision, the Board accepts the Applicant’s testimony about the forced
marriage and rape as credible but remarks that this alone does not guarantee
refugee status. It notes that refugee status cannot be granted if there is an
internal flight alternative.
[6]
The
Board goes on to identify Kinshasa as an internal flight
alternative. The Board notes that this possibility was brought up at the
hearing and that the Applicant stated that she cannot go live in Kinshasa as she does
not speak lingala (the local language) and she does not have any brothers there
who could help her. The Board rejects these reasons on the basis that they are
socio-economic considerations and are not of a persecutory nature. It further finds
that it would be reasonable for the Applicant to relocate to Kinshasa as she would
not be subjected to a physical danger in either travelling there or living
there.
[7]
Moreover,
the Board adds that it is unlikely that the Applicant’s father-in-law, an 80
year old poor peasant who lives in a remote village, would leave his village
and undertake the journey to Kinshasa for the sole purpose of
finding the Applicant and making her his wife. Accordingly, on a balance of
probabilities, the Board finds it unlikely that the Applicant would run a risk
if she went to live in Kinshasa.
[8]
Finally,
the Board finds that the internal flight analysis applies equally to the
application under subsection 97(1) of the Act.
Questions at issue
[9]
The
questions at issue are as follows:
a. Did the Board
err in determining that an internal flight alternative exists by not analysing
the Applicant’s particular circumstances in view of the Gender Guidelines?
b. Did the Board
err by rendering a finding of an internal flight alternative without referring
to any documentary evidence in support of its assessment?
[10]
The
application for judicial review shall be allowed for the following reasons.
Relevant Legislation
[11]
Immigration
and Refugee Board of Canada, Guideline 4: Women Refugee Claimants
Fearing Gender -Related Prosecutions (November 13, 1996).
|
If
required, determine whether there is a possibility of an internal flight
alternative.
Considerations:
- Whether
there would be undue hardship for the claimant, both in reaching the location
of the IFA and in establishing residence there.
- Religious,
economic, social and cultural factors, among others, may be relevant in
determining the reasonableness of an IFA for a woman fearing gender-related
persecution.
|
S'il y
a lieu, déterminez s'il existe une possibilité de refuge intérieur (PRI) :
- tenir
compte de la capacité de la revendicatrice de se rendre dans l'autre partie
du pays qui offre une PRI et d'y rester sans difficultés excessives;
- les
facteurs religieux, économiques, sociaux et culturels, entre autres, peuvent
servir à évaluer le caractère raisonnable d'une PRI pour une femme qui craint
d'être persécutée en raison de son sexe.
|
Analysis
Standard of
review
[12]
Both
of the parties submit that the standard of review applicable to the questions
at issue is reasonableness. They allege the availability of an internal flight
alternative is a factual inquiry and the jurisprudence of this Court has established
that as such it will be reviewed on a reasonableness standard (Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 51 and 62; Khokhar
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 449, [2008] F.C.J. No. 571 at
paragraph 21 (QL); Agudelo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 465, [2009] F.C.J. No. 583 at paragraph
17 (QL)). The second question concerns the interpretation and assessment of
evidence and also attracts a reasonableness standard (Dunsmuir, above; N.O.O.
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] F.C.J. No. 1286 at
paragraph 38 (QL)).
[13]
I
agree with these submissions and that these fact based decisions require
deference. As the Supreme Court of Canada stated, «[t]here might be more than
one reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome» (Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59).
Did the Board
err in determining that an internal flight alternative exists by not analysing
the Applicant’s particular circumstances?
[14]
The
Applicant submits that the Board’s analysis of the two prong test set out in Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)
and Thirunavukkarasu v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 589 (C.A.) is unreasonable. The test
requires, first, that the claimant show, on balance of probabilities, that
there is a serious risk of persecution throughout the country including the
suggested internal flight alternative. Secondly, it requires that the proposed
alternative not be unreasonable given the circumstances of the individual
claimant.
[15]
The
Applicant contends that the Board’s analysis under both prongs of the test is
unreasonable. With regard to the first prong, the Board concluded that it was
unlikely that the Applicant’s father-in-law would follow her to Kinshasa. She submits
that she testified that she was threatened and abused by the entire family, not
only her father-in-law. Therefore, the analysis is unreasonable given that she
never indicated that her fear was solely limited to her father-in-law. Furthermore,
contrary to the statement of the Board, she never indicated that her
father-in-law is a poor peasant and it was an error to add this to the
evidence.
[16]
With
respect to the second prong of the test, the Applicant argues that the analysis
must be tailored to the circumstances of each claimant and sensitive to her
specific circumstances. Specifically, she claims that the Board committed a
reviewable error by failing “to exhibit the knowledge required, and to apply it
in an understanding and sensitive manner when deciding domestic violence issues
in order to provide a fair result” (Griffith v. Canada (Minister of
Citizenship and Immigration) (1999), 171 F.T.R. 240 at paragraph 24
(F.C.T.D.)). She argues that her testimony showed that, in her case, her basic
survival would be at issue if she were to relocate to Kinshasa and that
socioeconomic problems of this nature can make an internal flight alternative untenable.
[17]
Moreover,
she submits that, in adherence with the Gender Guidelines, the Board should
have taken into account the religious, economic and cultural factors and
considered how these factors would affect her specific situation. The Applicant
presented evidence showing that she suffers from anxiety and post-traumatic
stress disorder and is being treated. She also testified that she does not
speak lingala, has never been to Kinshasa, does not have family
there and would have difficulties because as a rape victim she would be an
outcast. She adds that the Board discounted and ignored these factors and
failed to make any comment on the evidence of her specific situation.
[18]
The
Respondent argues that there is a high threshold that must be met by the
claimant who is contesting an internal flight alternative finding. He submits that
a lack of relatives and the inability to speak the local language are not
hardships of the nature that would render an internal flight alternative
unreasonable (Flores v. Canada (Minister of
Citizenship and Immigration), 2009 FC 410, [2009] F.C.J. No. 525 (QL); Maskini
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 826, [2008] F.C.J. No. 1039 (QL)).
[19]
With
respect to the Gender Guidelines, the Respondent underlines that a failure to
apply the Gender Guidelines does not necessarily result in a reviewable error (Sy
v. Canada (Minister of Citizenship and Immigration), 2005 FC 379, [2005]
F.C.J. No. 462 (QL); Diallo v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1450, [2004] F.C.J. No. 1756
(QL)). In this case, there is no reviewable error as the Applicant was able to
adequately convey her story and the nature of her fear to the Board. Also, no
medical evidence was presented showing the Applicant’s medical condition would
make relocation to Kinshasa an unduly harsh proposition.
[20]
I
am satisfied that the reasons demonstrate that the Board correctly applied the
first prong of the test and considered whether the Applicant would be safe from
the claimed persecution. Despite the Applicant’s argument, I find that the
decision on the first prong of the test was not unreasonable and falls within a
range of possible, acceptable outcomes.
[21]
However,
I cannot find that the analysis under the second prong of the test was
reasonable. The Board concluded that it was not unreasonable for the Applicant
to seek refuge in Kinshasa on the basis that her inability to speak
lingala and the absence of her brothers would not be an undue hardship. There
is no analysis in the reasons of the Applicant’s gender or personal
circumstances – including that fact that she is a rape victim. This despite the
fact that in her testimony, the Applicant indicated that she would be
discriminated against in Kinshasa should someone find out
that she is a rape victim.
[22]
The
Applicant put forward the issue of the Gender Guidelines which specify that particularly
relevant considerations in determining the reasonableness of woman’s recourse
to an internal flight alternative including economic and cultural factors and
how these factors affect women in the proposed internal flight alternative.
[23]
I am not
satisfied that the Board considered the Gender Guidelines as related to the
internal flight alternative. The documentary evidence shows that women who are
victims of rape, along with their children, are ostracised and face
discrimination throughout Congo, often leading them to live in isolation
and being unable to support themselves. The Applicant also explained this in
her testimony. The Board did not comment on this and the Court cannot presume
that it took it into consideration in reaching its conclusion.
[24]
The
Federal Court of Appeal in Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, reiterated that the
unreasonableness test for an internal flight alternative sets a high threshold.
But it also said that a factor or combination of factors would meet the
threshold if they establish that a claimant's life or safety would be
jeopardized (at paragraph 15).
[25]
However,
the Board could not reasonably conclude that this threshold was not met as it
did not take into account the factors set out in the Gender Guidelines, nor how
the Applicant’s personal circumstances in combination with those factors impact
the reasonableness of the finding of the internal flight alternative. One would
have to conduct such an analysis in order to reasonably decide whether or not,
as the Applicant contends, considering the pertinent socioeconomic factors
along with the her personal circumstance would indeed lead to the claimant’s
life essentially being jeopardized. Therefore, the Court's intervention is
warranted.
Did the Board err by rendering
a finding of an internal flight alternative without referring to any
documentary evidence in support of its assessment?
[26]
The
Applicant recognizes that it is not necessary for the Board’s decision to refer
to every piece of evidence. However, she submits that evidence that supports a
claimant’s position must be considered and the Board should not selectively
refer to evidence that supports its conclusion without also referring to the
contrary evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.)).
[27]
Moreover,
the Applicant argues that the Board could not make an internal flight
alternative finding without referring to any documentary evidence in support of
its assessment (Cuevas v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1169, [2005] F.C.J. No. 1425 at
paragraph 12 (QL)). She submits that the documentary evidence put before the
Board shows that Congo overall, and Kinshasa more
specifically, is fraught with insecurity and dangers for women – particularly
women who have been raped and are the subject of social discrimination and
rejection by communities. She contends that, not only did the Board err by not
mentioning any evidence in support of its finding, it further erred my not
mentioning any of the above noted evidence which is contrary to its finding.
[28]
The
Respondent argues that the Board did not need to take into account the evidence
on the discrimination felt by women who have been raped in Congo as the
Applicant’s claim, as set out in her Personal Information Form, was based only
on the forced marriage issue. Besides, the general documentary evidence
describing violence against women was not so compelling or relevant to the
Applicant’s claim that the failure to refer to it was an error of law.
[29]
The
reasons provided by the Board are very brief, particularly the portion on the
reasonableness of the internal flight alternative. The Board, after dismissing
the Applicant’s reasons opposing the internal flight alternative, states that
the internal flight alternative is reasonable as the Applicant will not face a
physical danger or undue hardship in reaching Kinshasa or in relocating there.
[30]
The
Board did not refer to any documentary evidence in support of its conclusion. The
tribunal record does not contain documents that would clearly have supported
that conclusion, the only documents included in the tribunal record is the RPD
Index for Congo and articles submitted by the Applicant at the hearing
pertaining to the prevalence of rape in Congo and the treatment of rape victims.
It is unknown what information the Board relied on when it concluded that the
Applicant would not be subject to any undue hardship in relocating to Kinshasa,
this despite the Applicant’s testimony that she would be discriminated against
as a rape victim along with numerous other hardships stemming from cultural
factors. The Board erred in reaching its conclusion without any justification
or calling upon any documentary evidence (Cuevas, above).
[31]
Neither
party has proposed a question for certification and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is allowed. The matter is remitted back for redetermination by
a newly constituted Board. No question is certified.
“Michel Beaudry”
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