Date: 20110111
Docket: IMM-2196-10
Citation: 2011 FC 20
Toronto, Ontario, January 11,
2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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IVA IBRAHIM KHALIL IBRAHIM
(A.K.A. IVA IBRAHIM KHA IBRAHIM)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant is a
73-year old female citizen of Sudan. She came to Canada in July 2008 and applied for
refugee protection in August 2008 on the basis of her fear of persecution on
the grounds of her religion. As described in her Personal Information Form
(PIF), the Applicant, a Christian widow, fled to Canada when ordered to report for service with
the Popular Defence Forces (PDF). She is fearful that she would be forced to go
to the Darfur Region of Western Sudan, or, “at the very least, I would be
imprisoned and tortured” for failing to report for service with the PDF. The
Applicant believes that she has been specifically targeted for service – in
spite of her age and ill health – because she is a Christian.
[2]
In
a decision dated
March 25, 2010, a panel of the Immigration and Refugee Protection Board,
Refugee Protection Division (the Board) determined that the Applicant was neither
a Convention refugee nor a person in need of protection. The determinative
issue was credibility. A key finding was that the Board did not believe that a
woman of her age would be required to serve in the military in Sudan. The Board also found other inconsistencies
in the Applicant’s testimony.
[3]
The
Applicant seeks
judicial review of this decision.
[4]
A
finding of lack
of credibility is one with which the Court will normally not interfere. The standard of review is reasonableness.
According to the
Supreme Court, in determining whether a decision is reasonable, the factors to
be considered are justification, transparency and intelligibility within the
decision-making process. The outcome must be defensible in respect of the facts
and law (Dunsmuir v. New
Brunswick
(Board of Management),
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47). In spite of this high standard, the
jurisprudence teaches that a decision maker errs by failing to have regard to
evidence that speaks directly to the issues before the decision maker (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ
No 1425 (QL)(FCTD.)).
[5]
The
most serious
problem with the decision is that the Board fails to have regard to the
Statutory Declaration of a member of the clergy with the Applicant’s Church in Sudan. In this Declaration, the clergyman
corroborates many details of the Applicant’s story. In particular, he states
that he had has had numerous complaints from members of the congregation in Sudan “about the government calling on all PDF
trainees for active duty in Darfur . . . regardless of age and medical
condition”. Although the Board mentioned this Declaration in the context of the
Applicant’s identity, no reference to the document is made in dealing with the
key aspects of her claim. The Declaration is highly relevant and appears to
squarely contradict the Board’s central finding of fact that the PDF would not
require a person of the Applicant’s age and health to serve. In my view, the
Board’s failure to refer to the Declaration constitutes a reviewable error.
[6]
A
second (albeit
less serious) concern is that I question whether the Board clearly
differentiated between the military and the PDF.
[7]
The
Applicant was
questioned, during her hearing, about whether it was likely that a person of
her profile (age and health) would be exempted from service. The Applicant
responded that no exemptions were given by the PDF. In its decision, the Board
states that “the idea of this claimant serving in the military seems
somewhat implausible”.
[8]
In
reviewing the
documentary evidence related to military service, the Board observes
that:
The claimant’s insistence that there are
no exemptions is not consistent with the findings of a Danish fact finding
mission, which reported in 2001 that persons who are not medically fit are
exempted from service.
[9]
As
a result, it
appears that the Board misapprehended the claim of the Applicant that she
feared conscription into the PDF – and not into the military.
[10]
For
these reasons,
the application for judicial review will succeed. Neither party proposed a
question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The application for
judicial review is allowed, the decision is quashed and the matter is remitted
to a different panel of the Board for re-determination; and
2.
No question of
general importance is certified.
“Judith
A. Snider”
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