Date: 20070328
Docket: IMM-4625-06
Citation:
2007 FC 330
BETWEEN:
CHEIKHNA
DIAGANA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing at Calgary, Alberta on the 6th
of March, 2007 of an application for judicial review of a decision of the
Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board
whereby the RPD determined the Applicant not to be a Convention refugee or a
person otherwise in need of like protection.
BACKGROUND
[2]
The
Applicant is a citizen of Mauritania. He is “black”, a
Muslim and a member of the Soninke ethic group. He alleges a well-founded fear
of persecution if required to return to Mauritania by reason of
his race and his imputed political opinion. He was born in Mauritania on the 31st
of December, 1986 and was seventeen (17) years of age on his arrival in Canada and nineteen
(19) years of age at the date of his hearing before the RPD. Thus, at the time
of the alleged events in Mauritania underlying his claim,
he was a minor.
[3]
The
Applicant attests that his father was active in politics in Mauritania. In 1989,
the Applicant’s family home was looted and the family’s belongings as well as
their home were burned. Two older brothers of the Applicant were hanged. The
family changed the locale in which they lived to avoid further trouble.
Despite the relocation, the Applicant attests that he was arrested many times
even before he became politically active.
[4]
At
the age of fifteen (15), the Applicant himself became politically active. He
distributed information and undertook to raise awareness for the political
party that he had joined. In October, 2001 he was arrested during a political
meeting. He was taken to a police station, beaten and tortured and held over
several days. Following his release, he spent two days in hospital under
observation.
[5]
The
Applicant attests that following his arrest in October, 2001, he was accosted
and detained by the police on many occasions due to his political involvement.
[6]
In
2003, the Applicant turned to an uncle for aid in securing a passport and a
student visa to enter Canada. In August, 2004, the Applicant fled
Mauritania to Canada through Paris, France.
[7]
On
the 14th of September, 2004, the Applicant claimed Convention
refugee status in Canada.
THE DECISION UNDER
REVIEW
[8]
The
RPD found, on a balance of probabilities and on the evidence before it, that
the Applicant was who he said he was and was a citizen of Mauritania. That being
said, the RPD found the Applicant’s answers before it to be vague and
inconsistent. It rejected his explanations for his failure to provide sworn
corroborative evidence to support his allegations. It found the Applicant
showed “…a lack of diligence…” in the pursuit of his claim. It questioned the
failure of the Applicant to leave Mauritania earlier,
notwithstanding that he remained very young when he finally took the initiative
to flee. The RPD found the Applicant’s testimony “…to be very vague about his
knowledge of a [political] party in which he claims current membership.” On
the same issue, the RPD wrote:
I found the claimant’s
testimony to be inconsistent with the profile he alleged for himself, as being
currently [a] member of the AC till today and that he was still in touch with
party supporters, since he has been in Canada. I find it
implausible that he would not have known about the legal status of the APP. I
found his vague testimony to undermine his credibility.
[9]
The
RPD concluded:
After reviewing all of
the evidence adduced, I find that the claimant has failed to establish the
central factual elements of his claim, on a balance of probabilities, with
credible and trustworthy evidence. I do not believe the claimant was arrested
in his country, as he alleges. I do not believe that he was abused or tortured
by the police, as he alleged. I do not find his actions in his country to be
consistent with the abuse he alleged that he suffered. I do not believe he was
an active member or had the profile he alleged in the AC. In short, I do not
believe he left his country for the reasons he alleged.
THE ISSUES
[10]
In
the memorandum of argument filed on behalf of the Applicant, counsel described
the issues on this application for judicial review in the following terms:
1.
Did
the Board fail to consider Guideline 3: Child Refugee Claimants – Procedural
and Evidentiary Issues, Guidelines issued by the Chairperson of the Immigration
and Refugee Board in considering the claimant’s testimony and in assessing the
claimant’s credibility?
2.
Is
the Board under a positive obligation to assess a minor refugee claimant’s
personal circumstances? Did the Board fail to adequately consider the
Applicant’s personal circumstances?
3.
Did
the Board fail to consider relevant, objective third party country condition
evidence, corroborative of the claimant’s fear in returning to Mauritania?
4.
Did
the Board misconstrue or fail to consider evidence properly before it?
[11]
At
hearing, counsel for the Applicant essentially condensed the foregoing issues
into two, combining the first two issues quoted above into one and the third
and fourth quoted issues into a second single issue. To paraphrase the
restated issues, the first arose out of the undisputed fact that the Applicant
was a minor at all times while he remained in Mauritania, remained a minor when
he arrived in Canada and when he filed his Convention refugee claim and yet the
RPD, the Applicant alleges, failed to have regard to Guideline 3 and failed to
treat the Applicant as required by that Guideline in assessing the evidence
before it. I will deal with this issue in two parts: first, the pre-hearing
process and the opening of the hearing; and second, the conduct of the hearing
and in particular, the sensitivity of the RPD to the Applicant’s testimony.
The second issue leading to a reviewable error, it was alleged, arose out of
the failure by the RPD to properly consider and evaluate the totality of the
evidence before it and of the misconstruction by it, or misevaluation, of
the evidence that it did consider.
[12]
No
issue of procedural fairness was raised before the Court.
[13]
Although
not raised by counsel, as with all applications for judicial review, the
appropriate standard of review arises and was raised by the Court.
SUBMISSIONS AND ANALYSIS
Standard of Review
[14]
When
questioned by the Court, counsel were in agreement that what is at issue on
this application for judicial review is the identification, consideration and
analysis of the totality of the evidence before the RPD and that the
appropriate standard of review in such circumstances is patent
unreasonableness.
[15]
In
Nahimana v. Canada (Minister of Citizenship and Immigration), cited
on behalf of the Applicant, my colleague Justice Shore had before him an
application for judicial review of a decision of the RPD where the principal
applicant was a minor when she fled her country of origin and, as here, was
still a minor when she entered Canada. Citing Aguebor v. Canada (Minister of
Employment and Immigration), my
colleague wrote at paragraph 16 of his reasons:
The reasons of the Board
are essentially based on its assessment of the credibility of Ms. Nahimana’s
evidence. Credibility findings of the Board are entitled to the highest degree
of deference. The standard of review for findings of credibility is that of
patent unreasonableness. …
My colleague reached the foregoing
conclusion, notwithstanding that, as here, the principal
Applicant was a minor when she fled her
country of origin and was still a minor when she entered
Canada.
[16]
I
find nothing on the evidence before the RPD in this matter that would lead me
to reach a different conclusion as to the appropriate standard of review of the
factual findings of the RPD.
[17]
In
Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, Justice
Major, for the majority, wrote at paragraph 18 of his reasons:
…A decision of a
specialized tribunal empowered by a policy-laden statute, where the nature of
the question falls squarely within its relative expertise and where that
decision is protected by a full privative clause, demonstrates circumstances
calling for the patent unreasonableness standard. By its nature, the
application of patent unreasonableness will be rare. A definition of patently
unreasonable is difficult, but it may be said the result must almost border on
the absurd. …
From the foregoing, I am satisfied that it
is clear that the patent unreasonableness standard requires that very
substantial deference be paid to the decision, here of the RPD, a “…specialized
tribunal empowered by a policy-laden statute…”. I am satisfied that the issues
here before the Court, the “…nature of the question…” falls squarely within the
RPD’s “…relative expertise” notwithstanding that its decisions are not
protected by a full privative clause.
[18]
At
paragraph 41 of the same decision, Justice LeBel, for the minority, citing Canadian
Union of Public
Employees, Local 963 v. New Brunswick Liquor Corporation wrote that
“…a decision will only be patently unreasonable if it “cannot be rationally
supported by the relevant legislation’”’.
[19]
Thus,
on this application for judicial review, the onus on the Applicant is a very
heavy one.
Guideline 3 – The
Pre-hearing Process and the Opening of the Hearing
[20]
Guideline
3, entitled Child Refugee Claimants, Procedural and Evidentiary Issues provides
under the headings “Procedural Issues” and “General Principle”:
In determining the
procedure to be followed when considering the refugee claim of a child, the
CRDD [now the RPD] should give primary consideration to the “best interests of
the child”.
The “best interests of
the child” principle has been recognized by the international community as a
fundamental human right of a child. In the context of these Guidelines, this
right applies to the process to be followed by the CRDD. The question to be
asked when determining the appropriate process for the claim of a child is
“what procedure is in the best interests of this child?” With respect to
the merits of the child’s claim all of the elements of the Convention refugee
definition must be satisfied.
The phrase “best
interests of the child” is a broad term and the interpretation to be given to
it will depend on the circumstances of each case. There are many factors which
may affect the best interests of the child, such as the age, gender,
cultural background and past experiences of the child, and this multitude of
factors makes a precise definition of the “best interests” principle difficult.
[footnotes
omitted]
[21]
The
Guideline goes on to deal with appointment of a “designated representative”.
On the
facts of this matter, the RPD inquired of
the Applicant’s counsel whether or not it would be appropriate to designate a representative
for the Applicant. Counsel responded that it would be appropriate and
identified a potential designated representative, a person not related to the
Applicant. Nothing further was done. No individual was designated as a
representative for the Applicant and, according to the Tribunal record, the
issue was never followed up by counsel for the Applicant.
[22]
It
was not in dispute before the Court, that, when the Applicant arrived in Canada, he was an
“unaccompanied child” within the contemplation of the Guideline. The Guideline
provides that: such children should be identified as soon as possible by the
Registry staff of the RPD; a panel and Refugee Claims Officer should be
assigned to the claim and their assignment should, to the extent possible,
continue until the completion of the claim; the claim should be given scheduling
and processing priority; a designated representative for the child should be
appointed as soon as possible; a pre-hearing conference should be scheduled
shortly after the filing of the child’s Personal Information Form; and finally:
In determining what
evidence the child is able to provide and the best way to elicit this evidence,
the panel should consider, in addition to any other relevant factors, the
following: the age and mental development of the child both at the time of the
hearing and at the time of the events about which they might have information;
the capacity of the child to recall past events and the time that has elapsed
since the events; and the capacity of the child to communicate his or her
experience.
[23]
In
this matter, once again it was not in dispute that the Applicant, at the time
he came to Canada, was
reasonably well educated and within months of his eighteenth (18th)
birthday. A review of the transcript indicates that, during his hearing, he
was reasonably articulate. Further, it was not in dispute that he was,
throughout the greater part of the interval between the time of filing his
claim and the time of his hearing, represented by counsel. He certainly was
represented by counsel at his hearing.
[24]
While
it is indeed unfortunate on the facts of this matter, particularly the facts
that the Applicant was a child when the events that he alleged to be
persecutory occurred in Mauritania and that he was an unaccompanied child when
he arrived in Canada, the Guideline was not applied to his claim, I am
satisfied that the following exchange at the opening of the hearing of the
Applicant’s claim is determinative on this issue:
…by the presiding member
to the applicant:
Q. Sir, tell me if you
recognize the document your lawyer is showing you?
A. Yes, for
sure.
Q. Tell me how the
document [the applicant’s Personal Information Form] was completed please, sir?
A. I tried to be the
most coherent possible.
Q. So you completed the
form yourself?
A.. Absolutely.
- Okay
Q. You’re familiar with
all of the contents of the document?
A. Yes, sir.
- Okay
Q. And if you look at
page 13 of the document, there is a signature on page 13. Is that your
signature?
A. Yes, sir.
Q. The document says
that you are able to read French and that you understand the document as it is
written?
A. Yes, sir.
Q. That the information
is complete, true and correct?
A. Yes, sir.
Q. And you understand
that the information has the same force and effect as if you made it under
oath?
A. Yes, sir.
- Okay. Thank you.
Q. Are you taking any
medication today, sir, that I need to know about?
A. No.
Q. Do you have any
medical condition that might impede your ability to testify that I should be
aware of?
A. No.
- Okay. So you will be
asked questions today and there’s a few things you need to keep in mind.
First, you need to speak up, and I’m not sure about the positioning of that
microphone, but every once in a while it… If you do not understand a question,
it is your responsibility to say so at the time. If you do not say you don’t
understand a question, I’ll assume you did and I will accept your answer as
given. And this is important for a couple…I’m sorry, if there is something
specific you’re not clear on you should specify what it is you’re not clear
on. This is important for two reasons.
First, since my primary
role today is to understand your testimony, if you’re answering questions you
don’t understand, we will both have a problem. And second, if an hour from now
you answer a question that doesn’t seem consistent with something you’ve said
earlier, I will not accept as satisfactory an explanation being that the
difference is because you didn’t understand what you had been asked earlier.
Q. Do you have any
question about what we have done so far, sir?
A. No.
Q. Okay, are you ready
to begin testimony?
A. Yes, sir.
- Okay.
By presiding member (to counsel)
Q. Counsel, we’ve done
the administrative responsibilities and we’re ready to begin. Is there
anything you think that I’ve left out that we should discuss before we begin
testimony?
A. No, sir. We’re
ready to proceed.
…
[25]
The
presiding member of the RPD was thorough in ensuring that both the Applicant
and his counsel at hearing were ready to proceed and had no objections to the
process before the RPD, to that time, that they wanted to raise. In
particular, they were given full opportunity to raise failure to fully comply
with the Guideline. In light of the foregoing, I am satisfied that the
Applicant and his counsel waived any procedural defect in the process leading
to the hearing before the RPD, including compliance with the Guideline.
Guideline 3 – Alleged Failure
of the RPD to be Sensitive Throughout the Hearing Before It to the Age of the
Applicant During the Period of the Alleged Persecutory Treatment in Mauritania,
to His Arrival in Canada as an Unaccompanied Child and to His Age, Nineteen
(19), at the Time of His Hearing
[26]
Having
considered the arguments of counsel for the Applicant at hearing, and having
again reviewed the transcript in detail following the hearing, I am satisfied
that the presiding member was sensitive to the particular circumstances of the
Applicant throughout the hearing of his claim. Further, having again reviewed
the reasons for decision of the presiding member, I find no basis on which to
conclude that the presiding member was less than fully sensitive to the
responses at hearing of the Applicant, where those responses related to events
that occurred when the Applicant was a child. No objection was taken during
hearing, by counsel for the Applicant, to questioning by the presiding member.
I am satisfied that no objection was warranted.
[27]
The
principle concerns identified by the presiding member in his reasons related to
the Applicant’s vagueness at hearing, conflicting testimony in relation to what
he had recorded in his Personal Information Form and his lack of diligence,
after his arrival in Canada, in pursuing reliable corroborative
evidence for his claim. I am satisfied that these concerns on behalf of the
presiding member were reasonably open to him, taking into account that the
Applicant had counsel throughout the greater part of the time from his arrival
in Canada to and throughout the hearing, and particularly against the standard
of review of patent unreasonableness.
Failure to Consider the
Totality of the Evidence
[28]
In
the third last paragraph of his reasons for decision herein, the presiding
member of the RPD wrote:
After reviewing all of
the evidence adduced, I find that the claimant has failed to
establish the central factual elements of his claim, on a balance of
probabilities, with credible and trustworthy evidence. I do not believe the
claimant was arrested in his country, as he alleges. I do not believe that he
was abused or tortured by the police, as he alleged. I do not find his actions
in his country to be consistent with the abuse he alleged that he suffered. I
do not believe he was an active member or had the profile he alleged in the AC.
In short, I do not believe he left his country for the reasons he alleged.
[emphasis
added]
[29]
Counsel
for the Applicant urged that the RPD erred in a reviewable manner in failing to
consider country conditions documentation, relating to Mauritania, that was
before it. Counsel urged that such documentation provided substantial support
to the Applicant’s story of ill treatment, particularly at the hands of the
police in Mauritania. As noted
in the foregoing quotation, the presiding member indicates that he reviewed all
of the evidence that was before him. In the last analysis, he determined not
to believe the evidence of the Applicant himself. In such circumstances,
country conditions documentary evidence, whatever it might say about the
unsatisfactory country conditions in Mauritania at large, could not have aided the
Applicant unless one were to accept that all young black Muslim males from the
Soninke ethnic group in Mauritania were, at the relevant time, Convention
refugees or persons entitled to like protection in Canada. There was no basis
before the RPD on which such a conclusion could be reached.
[30]
I
cannot conclude that the RPD’s failure to summarize the burden of the country
conditions documentation before it amounted to reviewable error, particularly,
once again, against a standard of review of patent unreasonableness.
CONCLUSON
[31]
For
the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A
QUESTION
[32]
When
advised at the close of the hearing of this application for judicial review
that the application would be dismissed, counsel for the Applicant recommended
certification of the following question:
Did the Refugee
Protection Division err in law if it ignores or refuses to consider or apply
the best interests of the child as enunciated in Refugee Protection Division Guideline
3, when the claimant suffered persecution as a minor, arrived in Canada as an
unaccompanied minor, and claimed protection as a minor, but reached the age of
majority prior to the date of the hearing?
Restated – do the
principles contained within Guideline 3 with respect to eliciting evidence and
assessing credibility apply for minors who reach the age of majority
prior to the date of the
hearing?
[all as
submitted in writing]
[33]
Counsel
for the Respondent urges against certification of the question proposed by
counsel for the Applicant on the ground that the proposed question would not be
determinative on an appeal herein.
As noted by counsel for the Respondent, the Applicant was represented by
counsel from at least as early as the 3rd of November, 2004 and the
Applicant became an adult on the 3rd of December, 2004. The RPD
reached its conclusion based on a determination that the Applicant failed to
establish his claim, on a balance of probabilities, with credible and
trustworthy evidence. No amount of sensitivity to the Applicant and to his
“best interests” would have altered the RPD’s
conclusion in this regard. In the result,
the question proposed simply would not be determinative on an appeal from this
decision.
[34]
In
the result, no question will be certified.
“Frederick E. Gibson”
Ottawa,
Ontario
March
28, 2007
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