Date: 20070730
Docket: IMM-6103-05
Citation: 2007 FC 796
Ottawa, Ontario, July 30,
2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
MILDRED CHRISTINA ROBERTS
DONNA MARIE ROBERTS
AND KAREN LEE ROBERTS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mildred
Christina Roberts (the Principal Applicant) and her daughters are citizens of Tanzania who base
their claim to protection on the grounds of race, being “Asian” in a
predominantly black African country and membership in a particular social
group, namely “women alone without a male head”. In a decision dated September
9, 2005, a panel of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) determined that the Applicants were not Convention
refugees or persons in need of protection.
[2] The Board
rejected the claim on two key bases:
- The
Board did not find the Principal Applicant to be credible; in particular,
the Board did not believe that the Principal Applicant’s husband had
disappeared as alleged; and
- The
harassment of the Applicants, as Asians in a predominantly black Tanzania, did
not amount to persecution.
[3] The
Applicants seek to overturn this decision. For the reasons that follow, I will
allow this Application.
Issues
[4] The
Applicants raise the following issues:
1) Did the Board
make a reviewable error by failing to address the aspect of the Applicants’
claim that was based on gender?
2) Did the Board
make a reviewable error by misconstruing significant portions of the evidence
and making findings of fact against the Applicants that were unsupported by the
evidence?
Analysis
Standard of Review
[5] The alleged
errors relate to the findings of the Board; these findings were based on the Board’s
assessment of the evidence before it. Thus the decision will only be overturned
if any errors of fact are material or if the Board misapprehended or ignored
evidence before it.
Issue #1: Gender
[6] The
Applicants submit that the entire gender aspect of the claim was ignored; more
particularly, the Board did not deal with the fact that the Applicants were
women living alone in Tanzania without the protection
of a “male head”. As I understand this submission, it is basically that the
Board misapprehended the claim by considering only whether the Applicants would
be at risk as ethnic Asians in a black African country.
[7] In the narrative of her
Personal Information Form (PIF), the Principal Applicant stated that “I fear
persecution if sent to Tanzania on the basis of my race
and membership in a particular social group, that is women alone without a male
head”. Right from the beginning of the decision, the Board appears to have
misapprehended the claim. At p. 1 of the decision, the Board states that the
Applicants “base their claims to Convention refugee status on the grounds of
their membership in a particular social group, namely, the family”. The basis
of the claim is not, as stated by the Board, membership in a family; rather,
the claim is based on the fear of being “women alone without a male head”.
[8] In
considering the ‘family’ aspect of the claim, the Board focused on the
disappearance of the father. The Board found the Applicants’ story not to be
credible. Nowhere in the reasons does the Board explain that, because of this
finding, there is no need to deal with the gender component of the claim.
[9] Given that
the Applicants are women, the question arises of whether the Board had regard
for the Gender-Related Persecution Guidelines. In Keleta v. Canada (Minister of
Citizenship and Immigration), 2005 FC 56, [2005] F.C.J. No. 54 (QL),
Madam Justice Danièle Tremblay-Lamer wrote:
[14]
Though it is not necessary to explicitly cite the guidelines in the course of
its reasons, it is "incumbent on the Board to exhibit a special knowledge
of gender persecution and to apply the knowledge in an understanding and
sensitive manner when dealing with domestic violence issues": A.Q. v. Canada (Minister of Citizenship and
Immigration), [2004]
F.C.J. No. 834 (F.C.)(QL), citing Newton v. Canada (Minister and Citizenship
and Immigration) (2000), 182 F.T.R. 294 (F.C.T.D.), and Griffith v.
Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240 (F.C.T.D.).
[10] Here, not
only was there no mention of the Gender-Related Persecution Guidelines by the
Board in its reasons, it does not appear that the Board ever turned its mind to
this aspect of the claim. Even when considering the objective fear of
persecution, the Board focused solely on race (being part of the ‘Asian’
minority) and made no mention of gender.
[11] Furthermore,
even if the Board did not believe that the husband had disappeared under
mysterious circumstances, in order to reject the Applicants’ allegations to be
women living without the protection of a male relative, it would be necessary
for the Board to conclude that the Applicants would not be alone in Tanzania. While the
Respondent seems to suggest that, from the Board’s rejection of the alleged
disappearance, such a conclusion should be implied. I am unable to draw that
inference. Rather, it appears to me that the more reasonable inference to be
drawn from the decision as a whole is that Board simply did not address this
aspect of the claim.
[12] Of course, it
remains that the Board made a general finding of lack of credibility, stating
that it found the Applicants to be “neither credible nor trustworthy witness”. Relying
on the decision of the Federal Court of Appeal in Sheikh v. Minister of
Employment and Immigration, [1990] 3 F.C. 238, [1990] F.C.J. No. 604
(QL), it could be argued that a general finding of lack of credibility may
extend to all relevant elements emanating from a claimant’s testimony, and that
it was thus open to the Board to dispose of the Applicants’ claim on the basis
that it simply did not believe them.
[13] However, such
an argument implies that the finding on credibility was reasonable, which I am
not convinced that it was in this case, as will be discussed below.
Issue #2:
Credibility
[14] The Board’s
overall conclusion that the claimants were neither credible nor trustworthy
witnesses appears to have been based on a number of key problems with the
Applicants’ testimony or evidence:
- The
Board found that the principal Applicant had made no efforts to locate her
missing husband, and had not taken steps to approach the police or the
Tanzanian Embassy;
- The
principal Applicant had omitted from her PIF the fact that she had been
denied a Canadian visa three times;
- The
allegedly missing husband had provided his consent to allow his daughters
to obtain visitor visas to come to Canada;
- In her
application for a temporary resident visa, the principal Applicant stated
that her husband was in the United Arab Emirates, which is inconsistent
with her current claim that her husband has disappeared; and
- The
Applicants’ testimony that her daughters were not entitled to get
Tanzanian citizenship was not consistent with the documentary evidence.
[15] In oral
submissions, the Applicants highlighted two findings which, in my analysis,
were clear errors. I will discuss each of these.
Husband’s
Disappearance
[16] As noted, the
Board found that the Principal Applicant had not made efforts to find her
husband. The husband’s disappearance was the central element of the Board’s
decision. However, there are clearly portions of the reasons which do not
reflect the information provided by the Applicants in their PIF or during the
hearing.
[17] With regards
to the Principal Applicant’s actions following the alleged disappearance of her
husband, the Board wrote the following:
When asked if she reported her husband’s
disappearance to the police, the principal claimant stated, “No, she did not.”
The panel finds the principal claimant’s inaction (she made no efforts to
locate her husband), inconsistent with that of a person whose spouse went
missing. The panel finds it reasonable to believe that in the circumstances
alleged, the principal claimant would have taken steps to approach the police,
the Tanzanian Embassy, Red Cross etc; in order to locate her husband rather
than returning to Tanzania. The panel notes that even after arriving in Canada
the principal claimant or her family did not take any steps for instance [to]
contact Amnesty International or other NGO’s for [sic] that caliber to
assist her in locating her husband. It leads the panel to find that on a
balance of probabilities that the claimant’s husband did not disappear, as
alleged.
[18] There are
many problems with this part of the analysis. First, as revealed by the transcripts
of the hearing, when asked by the Board whether she made any efforts to contact
the police about her husband’s disappearance, the Principal Applicant in fact
replied “Yes, I did”, contrary to what was noted in the Board’s reasons. She
also stated later on during the hearing that she had contacted her husband’s
mother in the United States, but that she had not heard from him either.
[19] Second, the
Principal Applicant also stated in her PIF, and at the hearing, that she
approached both the Tanzanian Embassy in Abu Dabi and the Indian Embassy for
assistance, which directly contradicts the Board’s statement that she failed to
contact the Tanzanian Embassy as she should have.
[20] As for the
Board’s comment with regards to her returning to Tanzania rather than
continuing to look for her husband, the Principal Applicant explained at the
hearing that she and her daughters were on her husband’s visa and that the
house they lived in belonged to the company; as a result, they could not stay
in the UAE without her husband.
[21] It was open
to the Board to disbelieve the Principal Applicant’s story. It may have been
open for the Board to draw adverse inferences from the level of effort of the
Principal Applicant in locating her husband. However, it is simply wrong for
the Board to make a blanket statement that she had not gone to the police or
the embassy for help or had abandoned the search for her husband by choosing to
return to Tanzania, when she
clearly stated otherwise in her PIF and testimony.
[22] In my view,
this error cannot be described as immaterial, as submitted by the Respondent.
The disappearance of the husband was a key component to the claim. This
particular finding was directly related to that component. On the basis of the
reasons given by the Board, I cannot determine how much this error impacted the
overall credibility finding.
Daughters’
Citizenship
[23] With respect
to the daughters’ citizenship, the Board stated in its reasons that the
Principal Applicant claimed that they did not have citizenship in Tanzania,
which it found not to be credible. The Board wrote:
The panel notes that the principal
claimant is a Tanzanian citizen. […] This information is in conflict with the
documentary evidence. According to the documentary evidence the Director of the
Immigration Service of the Ministry of Home Affairs of the United Republic of
Tanzania stated that a parent or guardian could apply for naturalization as a
Tanzanian citizen on behalf of a minor. The claimant’s explanation for this
information was that her husband was needed to get travel documents for their
daughters. The panel does not find the claimant’s explanation to be reasonable.
[…] There is no credible or trustworthy evidence before the pane [sic]
to show that the minor claimant’s [sic] were denied any rights to obtain
Tanzanian citizenship.
[24] In fact, the
Principal Applicant claims that her daughters do not have citizenship in the
UAE or in India, while it is
clear from the PIF and from her testimony that they do in fact claim to have
Tanzanian citizenship. The first line of the PIF narrative reads as follows:
My daughters
and I are citizens of Tanzania and no other countries.
[25] The PIF
narrative also contains the claim that the Principal Applicant and her
daughters were not entitled to citizenship in the UAE or in India. As stated
in the PIF narrative:
Although my daughters were born in the
United Arab Emirates (hereinafter referred to U.A.E.), they are not entitled to
citizenship in that country.
[…]
They also told me that while my youngest
daughter might be entitled to Indian citizenship, the problem we faced was that
we could not prove that my husband was alive. He would have to ask that my
daughter be given citizenship. My eldest daughter was over the age of eighteen
and thus, did not qualify.
Further
explanations to that effect were also provided by the Principal Applicant at
the hearing.
[26] It is clear
that the Board completely misunderstood the Applicants’ allegations on the
issue of citizenship, and thus found their credibility to be undermined by a
claim that they never in fact made. Once again, it is difficult to assess how
much of an impact this factual error had on the overall finding of credibility.
However, given that the Board wrote one whole page related to this clear error,
I must assume that it was an important element in the overall finding that “key
aspects of the principal claimant’s story were found not to be credible”.
Conclusion
[27] In
conclusion, I find that the failure of the Board to deal with the gender aspect
of the Applicants’ claim, together with the two material factual errors,
warrants the intervention of the Court.
[28] Neither party
proposed a question for certification. I agree that this case does not raise
any questions of general importance.
ORDER
THIS
COURT ORDERS that:
1. The
application is allowed, the decision quashed and the matter returned to be
reconsidered by another panel of the Board; and
2. No
question of general importance is certified.
“Judith A. Snider”
___________________________
Judge
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