Docket: IMM-4601-13
Citation:
2014 FC 842
Ottawa, Ontario, September 4, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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CHARL WILLEM NEL
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NAIRA NEL
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Applicants
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants were refused protection by the
Refugee Protection Division of the Immigration and Refugee Board [the Board].
They now seek judicial review of that decision pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
The applicants ask the Court to set aside the
negative decision and return the matter to another panel of the Board for redetermination.
I.
Background
[3]
Charl Nel (the principal applicant) and his
family are citizens of South Africa who claimed they fear persecution because
they are white. His wife, Naira Nel, and daughter, Serena Nel, also claimed to
fear persecution because they are women. They left South Africa on April 27,
2010 and after a layover in the London airport, arrived in Canada on April 28, 2010. They applied for refugee protection shortly thereafter.
II.
Decision
[4]
On May 21, 2013, the Board decided that the applicants
were neither Convention refugees nor persons in need of protection.
[5]
The Board took a negative view of the
applicants’ credibility. Originally, only the principal applicant had supplied
a narrative, but he eventually supplemented it with another statement to record
what he alleged were changes in the country. The Board said there had been no
significant changes and viewed this update as an attempt to amplify a situation
of fear. As well, the principal applicant’s wife added a statement about her
fears of being raped and the Board was critical of this too since these claims
had already been recorded in the principal applicant’s original narrative.
[6]
The Board then noted that many of the incidents
recorded in the narratives did not personally affect the applicants. For the
few that did, the Board said they were vaguely dated and internally
contradictory. For instance, one was an alleged break-in at the principal
applicant’s mother’s home. The narrative said that his mother went to the
police while her letter describing the incident said that she called her
children and they called the police. The Board thought this was a
contradiction. As well, the applicants did not remember what month of the year
that incident or any other happened. The Board concluded they were all lies.
[7]
Every other incident they describe happened to
other people and the Board said they did not demonstrate that they had any
racist connotations. Indeed, there was no indication of racial violence in the
country documentation; the high crime rate was mostly inspired by poor economic
conditions and white people were not any more likely to be victimized by that
crime than anyone else. As well, the Board said that there are resources
available to help victims of rape and the government does take action to
counter this.
[8]
The Board then reviewed the documents submitted
by the applicants, rejecting some because of his earlier findings. He also
discussed the large package of news articles and other documents submitted by
the applicants and noted that a lot of them were opinion pieces. The Board
rejected them in favour of the documentary evidence from independent
organizations such as Amnesty International and Human Rights Watch, which the
Board says are more objective and show no racial violence problem.
[9]
The Board then briefly discussed state
protection, but said that mere distrust of the police is not enough. Since it
did not believe the applicants or anyone they knew had ever been attacked,
there was never any need to seek state protection or an internal flight
alternative and the Board held that the presumption therefore could not be
rebutted.
[10]
Next, the Board decided that when a woman fears
being raped simply because of generalized criminality and not any particular
circumstances, this cannot be a fear that attracts section 96 protection
(citing SM v Canada (Minister of Citizenship and Immigration), 2011 FC
949, [2011] FCJ No 1224 [SM]; Prophète
v Canada (Minister of Citizenship and Immigration), 2008 FC 331 at paragraph 23, 70 Imm LR (3d) 128 [Prophète],
aff’d 2009 FCA 31 at paragraph 10, 387 NR 149). In the Board’s view, the danger
of rape is just a symptom of the endemic criminality in South Africa that affects both men and women equally. After that, the Board applied the
same reasoning to subsection 97(1) of the Act and said that the applicants would
not be personally targeted.
[11]
The Board then observed that the applicants flew
through the United Kingdom to get to Canada and the Board said that if they
really feared persecution, they would have claimed asylum there. For that
reason, it said they had no subjective fear and were simply trying to abuse the
refugee protection system as a means to settle in Canada.
[12]
Finally, the Board noted that the two female
applicants had at one time been citizens of Armenia and was unsure whether or
not they still were. However, it did not explore this issue any further since
it did not accept that they had any fear of returning to South Africa or any risk once there.
III.
Subsequent History
[13]
All three applicants originally applied for
judicial review, but Serena Anne Nel has since discontinued her application. I
would therefore order her name deleted from the style of cause.
IV.
Issues
[14]
The applicants submit three issues:
1.
Did the Board err in its credibility findings?
2.
Did the Board misapply the law in assessing
whether the applicants have been persecuted in the past or would face
persecution in the future?
3.
Did the Board err by not extracting the
Convention ground elements in the criminal activity the applicants stated they
feared and by not applying section 96 of the Act to those elements?
[15]
The respondent says the only issue is whether
the Board’s decision was reasonable.
[16]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Did the Board misunderstand the tests?
C.
Was the decision otherwise unreasonable?
V.
Applicants’ Written Submissions
[17]
Relying on Ruszo v Canada (Minister of
Citizenship and Immigration), 2013 FC 1004 at paragraphs 20 to 22, [2013]
FCJ No 1099 [Ruszo], the applicants submit the Board must correctly
understand the tests, but reasonableness is the standard of review otherwise.
[18]
The applicants argue that the Board’s decision
was unreasonable. They complain that it gave the impression that Mrs. Nel’s
fear of rape was added as an afterthought when it had plainly been included in
the original narrative from the beginning. Further, the Board had rejected the
principal applicant’s updated narrative on the basis that it saw no significant
changes in South Africa between 2010 and 2013. The applicants counter this
perversely ignores that over this interim, both the president of the country and
the African National Congress’ youth leader had sung songs about killing white
people on political platforms and Genocide Watch had elevated South Africa to
stage 6 of the 8 stages of genocide.
[19]
Moreover, the applicants say the Board’s
credibility findings focused on trivial details and ignored the main thrust of
their claims, which were fears of genocide and rape. The precise dates of
particular events from 2003 and 2004 were irrelevant and the alleged
contradictions were questionable at best. For instance, the applicants say
there is no contradiction between the principal applicant saying his mother
“went” to the police and someone else having called the police. It was
unreasonable for the Board to say otherwise. Further, the Board made no comment
about the incidents in their updated narratives.
[20]
As for the finding that they lacked subjective
fear because they did not claim asylum in the United Kingdom, the applicants
say they explained that this was because they wanted to be represented by the
same lawyer who helped another South African find refuge here. The Board did
not say why this explanation was rejected or unacceptable and the applicants
say it was unreasonable.
[21]
The applicants also argued that the Board
wrongly required the applicants to show that they had been persecuted in the
past. They point out that at several points, the Board observed that “nothing had happened to them personally” and that the
incidents described in the narratives “happened to other
people.” This, the applicants say, reveals that the Board did not
recognize that evidence about similarly situated people could also satisfy
their burden (see Fi v Canada (Minister of Citizenship and Immigration),
2006 FC 1125 at paragraphs 13 to 16, [2007] 3 FCR 400 [Fi]).
[22]
Indeed, the applicants say the Board failed
entirely to consider how the risk other white South Africans faced could be
relevant to their claim. It rejected the evidence for lacking definitive proof
that the crimes had racial connotations, but they say that they explained what
those connotations might be in their narrative. They pointed out that the
crimes against white people frequently involved mutilation and brutality even
when nothing was stolen; they observed that political leaders had sung songs
about killing white people even after a South African court had declared the
song racist; and they also provided expert evidence from a reporter, Adriana
Stuijt, and the president of Genocide Watch, Dr. Gregory Stanton, indicating
these crimes were racially motivated. If it was to be rejected, they say they
were owed reasons. Here, the Board did not decide whether the applicants feared
these genocide-like conditions.
[23]
The applicants also criticize the Board for its
conclusions regarding the female applicants’ claims. They say it erred by requiring
them to show that only white women are raped, when they could be refugees
simply by showing that all women are endangered.
[24]
Beyond that, the applicants also say the Board
erred for rejecting its evidence because they were “opinion” pieces when all
documentary evidence is prepared by individuals and could therefore be
characterized the same way. Anyway, the applicants say that even the country
documentation that the Board accepted showed that rape is a serious problem in South Africa.
[25]
Moreover, they criticize the Board for
concluding that rape was just a symptom of the overall criminality and
distinguish SM on the basis that the risk in that case was generated by
family relationships. They say the Board erred by finding the risk of rape is
not persecutory merely because other crimes are also endemic in the country (see
Josile v Canada (Minister of Citizenship and Immigration), 2011 FC 39 at
paragraphs 26, 30 and 31, 382 FTR 188 [Josile]).
VI.
Respondent’s Written Submissions
[26]
The respondent says that the applicants have
challenged only the respondent’s findings of fact and mixed fact and law and
for these questions the standard of review is reasonableness.
[27]
In its original memorandum, the respondent
defends the Board’s credibility findings. Specifically, the applicants had
failed to provide even basic dates and facts about the events they had
described and had made significant omissions and contradictions regarding who
called the police when the principal applicant’s mother was allegedly attacked.
In its view, the Board was entirely reasonable to disbelieve the applicants in
light of that.
[28]
Moreover, the respondent argues that the Board’s
findings that white South Africans were not targeted by criminals on the basis
of their race was reasonable and well supported by the country documentation. It
was entitled to prefer that evidence over that submitted by the applicants. In
its view, the applicants are really just asking the Court to reweigh the
evidence, which it cannot do.
[29]
As for the female applicants’ alleged fear of
rape, the respondent says that the Board correctly stated the law. This
argument was expanded in its further memorandum, where the respondent says that
the Board reasonably found that the applicants really only feared criminality
and insecurity, not sexual assault, and had therefore established no link to a
Convention ground (citing Frederic v Canada (Minister of Citizenship and
Immigration), 2010 FC 1100, [2010] FCJ No 1386 [Frederic]).
[30]
As well, since any risk faced by the applicants
was generalized, the respondent says the Board’s dismissal of any section 97
claim was also reasonable. Though that would be enough to defeat the claim, the
respondent notes that the Board went even further and reasonably decided that
the applicants had failed to rebut the presumption of state protection.
Moreover, there was no need to consider the existence of any internal flight
alternative because the applicants had never had any problems there.
[31]
Besides, the Board also found that the
applicants lacked a subjective fear since they failed to claim asylum in the United Kingdom and went forum shopping instead. This alone would have been enough to
dismiss the section 96 claim.
VII.
Analysis and Decision
A.
Issue 1 – What is the standard of review?
[32]
I disagree with the respondent that this
application raises only questions of law or of mixed fact and law. Rather, the
applicants have also argued that the Board failed to apply tests that have been
well established by the jurisprudence and such questions attract a correctness
standard of review (see Ruszo at paragraphs 20 to 22). However, when it
comes to the application of those tests to the facts or the findings of facts
themselves, I agree with the respondent that reasonableness is the standard of
review (see Ruszo at paragraphs 20 to 22; Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 53, [2008] 1 S.C.R. 190 [Dunsmuir]).
[33]
This means that I will not intervene if the
decision is transparent, justifiable, intelligible and within the acceptable
range of outcomes (see Dunsmuir at paragraph 47; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the Supreme Court held in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 59 and 61,
[2009] 1 S.C.R. 339, a reviewing court cannot substitute its own view of a
preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Did the Board misunderstand the tests?
[34]
I agree with the applicants that it would be an
error to reject a section 96 claim on the basis that the applicant had not been
personally persecuted in the past (see Chan v Canada (Minister of Employment
and Immigration), [1995] 3 S.C.R. 593 at paragraph 137, 128 DLR (4th) 213 [Chan];
Fi at paragraphs 13 to 16), but I disagree that the Board did so. The
applicants’ argument hinges on the Board’s observation that nothing had
happened to the applicants personally, but that hardly means the Board required
them to have been personally persecuted. Indeed, the Board expressly denied
this at the hearing during the following exchange:
BY COUNSEL (to presiding member)
This suggests to me, sir, that you’re [sic]
understanding of the law is that for him to be found to be persecuted something
must have happened to him personally.
Is that your understanding of the law, sir?
BY PRESIDING MEMBER (to counsel)
I didn’t say that. I was just asking if
something happened to him personally, that’s all and that’s it.
[35]
Whether or not it is the only way to prove a
serious possibility of persecution, a claimant’s personal experiences can still
be relevant both to the subjective and objective branches of the test. The
Board committed no error by asking the claimants about it, nor by observing in
its reasons that the claimants answered they had not been. Further, the Board
did not fail to consider evidence about similarly-situated people; it simply
preferred the country documentation to it. I see no indication that the Board
made the error of which it is accused.
[36]
However, the Board’s reasons regarding the
female applicants’ fear of rape do reveal some serious misunderstandings of the
law. The respondent attempted to rescue the decision by citing Frederic
and arguing that the applicants had simply failed to link their alleged fear to
gender, but those were not the Board’s reasons. Rather, the Board said this at
paragraph 57:
Many other Federal Court decisions,
particularly Prophète, have ruled that when circumstances demonstrate
that a woman fears being raped because of generalized criminality in a country,
as opposed to a situation where a woman might fear being raped because of a
particular situation, this fear cannot be considered a valid fear by means of
membership in a particular social group of women, as per section 96 of the Act.
[Footnotes omitted]
[37]
Prophète had
nothing at all to do with either a woman fearing rape or section 96; it was
about a businessman who was afraid because he was perceived as being wealthy
and there was no nexus to a Convention ground. The case was entirely about
subsection 97(1) and the application was refused pursuant to subparagraph
97(1)(b)(ii) of the Act because the slightly elevated risk faced by the
claimant was still one “faced generally by other
individuals in or from that country.” However, that subparagraph does
not apply to section 96 and the Board misplaced reliance on Prophète.
[38]
Moreover, the Board’s reasons themselves betray
the interpretation the respondent has tried to impose and show that it was
really applying a generalized risk analysis and ignoring the Convention ground.
The Board justified its decision by saying that “[c]riminals
kill, steal and rape for their own advantages at all times. Women and young
girls are therefore no more likely to be victims of abuse than members of other
population groups.”
[39]
However, rape does not become a gender-neutral
crime merely because all people in the country face some risk of other types of
violence. Rather, the applicants rightly directed my attention to Josile
at paragraphs 24 to 32, where Mr. Justice Luc Martineau considered a similar
situation regarding the risk of rape in Haiti. I can say it no better than he
does at paragraphs 24 to 26:
[24] With respect to the establishment of
nexus, the Court in Dezameau at paragraphs 34 and 35, notes that “it is
well established in Canadian law that rape, and other forms of sexual assaults,
are grounded in the status of women in society”, and adds to this effect that
“[t]he notion that rape can be merely motivated by common criminal intent or
desire, without regard to gender or the status of females in a society is wrong
according to Canadian law”.
[25] Canadian jurisprudence is also
emphatic on the point. For example, in R. v. Osolin, [1993] 4 S.C.R.
595, Justice Cory for the majority of the Supreme Court of Canada stated that
“it cannot be forgotten that a sexual assault is very different from other
assaults. It is true that it, like all the other forms of assault, is an act of
violence. Yet it is something more than a simple act of violence. Sexual
assault is in the vast majority of cases gender based. It is an assault upon
human dignity and constitutes a denial of any concept of equality for women” (Osolin,
above, at paragraph 165).
[26] Indeed, rape is referred to as a
“gender-specific” crime in Guideline 4. The latter specifically categorizes rape
as a gender-specific crime:
The fact that violence, including sexual
and domestic violence, against women is universal is irrelevant when determining
whether rape, and other gender-specific crimes constitute forms of
persecution.
[Justice Martineau’s emphasis]
[40]
Therefore, the “real test
is whether the claimant is subject to persecution by reason of his or her
membership in that particular social group.” (Josile at paragraph
31), and the Board derailed itself by importing into its section 96 analysis the
concept of generalized risk.
[41]
Moreover, this is not saved by the Board’s state
protection analysis, since the Board said this at paragraph 54 of its decision:
[T]he panel does not believe the claimants and,
therefore, is of the opinion that they did not need to request protection from
the state. Therefore, the claimants cannot demonstrate through clear and
convincing evidence that the state of South Africa and its agents are not willing
or able to protect them.
[Emphasis added]
[42]
The Board there misstated the test for state
protection, since it suggests that only claimants who have approached the state
for protection can satisfy the test. However, that is not the case. Claimants
can also rebut the presumption of state protection by showing “that their home state, on an objective basis, could not be
expected to provide protection” (see Hinzman v Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 at paragraph 37, 282 DLR (4th) 413; see also
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 55 and 56, 103 DLR
(4th) 1).
[43]
Nor does the remainder of the analysis reveal
that the Board applied the correct test despite the misstatement. Rather, the
Board failed to address any of the evidence that might support the futility
argument, like the report from the United States Department of State, “South
Africa”, Country Reports on Human Rights Practices for 2011 (24 May 2012).
There, the authors observed that “there were 56,272
reported cases of rape and indecent assault during the year and a total of
66,196 reported sexual offence cases,” and “only
4.1 percent of reported rape cases resulted in conviction.” Moreover,
the authors said “the true incidence of rape was thought
to be much higher,” and they referred to surveys on which between 25%
and 37.4% of men questioned admitted to raping one or more women. The fact that
the Board did not consider this evidence at all would have been suspicious even
had it stated the test correctly and combined with the misstatement, it
suggests that the Board applied the wrong test.
[44]
By themselves, however, these errors would not
be fatal. This is because the Board also found that the applicants had no
subjective fear and if that finding was reasonable, there was no need to
consider whether the fear would have been well-founded (see Chan at
paragraph 120). As such, it is still necessary to consider the applicants’
other arguments.
C.
Issue 3 - Was the decision otherwise
unreasonable?
[45]
Several of the applicants’ arguments are
unfounded. Although the Board questioned Mrs. Nel’s motives for submitting a narrative
late, it did not imply that she had just invented the gender-based fear
recently. Rather, one of the reasons the Board gave for doubting her
explanation for the late submission was precisely that “the
male claimant, in his initial narrative, had already indicated that he feared
that his wife and his daughter might be raped.” Moreover, while the
Board mentioned that white women were at no greater risk than anyone else, that
was a direct response to Mrs. Nel’s statement in her narrative that they were.
It does not indicate that the Board failed to consider the situation of women
generally and indeed the entire section of the decision devoted to that issue
shows that the Board did not misconstrue that ground however inadequately it
was assessed.
[46]
As for the dates of events, it was reasonable
for the Board to expect that people who are the victims of break-ins and other
crimes would remember the month and year they happened in. Also, the Board
criticized the applicants for originally saying that two of the events were
only a couple of months apart and that the second event was in the fall, but
not knowing when the first event occurred. The applicants reply that they did
identify them consistently and the Board simply forgot that the seasons were
different in the southern hemisphere, but the transcript tends to support the
Board’s doubts:
BY CLAIMANT: MARA [sic] NEL: (to
presiding member)
That must have happened by the end of
(inaudible) because it was certainly warm weather, I didn’t have the door
closed again. Yeah, it’s open so it’s certainly end of 2003, end quarter.
BY PRESIDING MEMBER (to claimant: mara [sic]
nel)
A couple of months - - a couple of months, and
you said the first one happened at the beginning?
BY CLAIMANT: MARA [sic] NEL: (to
presiding member)
At beginning, yeah, the (inaudible) ---
BY PRESIDING MEMBER (to claimant: mara [sic]
nel)
So a couple of months. It’s not twelve months,
madam.
BY CLAIMANT: MARA [sic] NEL: (to
presiding member)
Yes, that’s what I mean, probably not twelve
months. Then the first month probably happened not in summer. Then it was
winter because that time year it was certainly warm. She was playing by the
door and it was open, yes, that I remember.
[47]
The Board did not imagine this inconsistency and
the applicants were wrong to suggest that it simply forgot what hemisphere South Africa was in.
[48]
While I may not have assigned the vague timing
the same weight that the Board did since these events allegedly happened eight
or nine years before the interview, it is not my place to second-guess it now.
The assessment of credibility is ultimately up to the Board who heard the
testimony.
[49]
That said, some of the applicants’ other
complaints are meritorious. Specifically, the Board’s assessment of the
principal applicant’s updated narrative is puzzling. In it, the principal
applicant said that he had become more fearful of returning to South Africa
because Julius Malema, then the youth leader of the African National Congress
(the governing party), had since sung a revolutionary anti-apartheid song
called “Kill the Farmer, Shoot the Boer,” which he felt threatened by since he
says “boer” is a word for a South African white person. Even after a South
African court ruled that the song was hate speech, Mr. Malema continued to sing
it and Jacob Zuma, the president of the country, also sang it at the 100th
anniversary of the African National Congress. Over that same time period
between the making of the claim and the hearing, Genocide Watch also updated
the situation to stage 6 of the 8 stages of genocide because of political
shifts and warned white Afrikaners (of which Mr. Nel is one) to leave South
Africa.
[50]
The Board dismissed the updated narrative on the
basis that these were not significant changes and concluded it was only done
with the intent of amplifying a situation of fear. However, it never explained
why it felt the singing of this song by political leaders at political forums
or the updated Genocide Watch opinion could not have legitimately inspired a
further subjective fear of political persecution in the applicants. While it
could have had good reasons for doing so, the absence of any explanation by the
Board makes it hard to understand why it felt this updated narrative damaged
the principal applicant’s credibility.
[51]
Moreover, I agree with the applicants that the
contradiction regarding who phoned the police when the principal applicant’s
mother was allegedly attacked was essentially invented by the Board. The
applicant said that his mother “went to the police”,
while his mother said that she called her family and “[t]hey
phoned the Police.” In this context, saying that someone went to the
police is a perfectly ordinary expression meaning that they reported the crime
and it implies nothing about who precisely phoned the police or from where they
reported the crime. In any event, it is a trivial detail and would hardly be
evidence of their lack of credibility (see Attakora v Canada (Minister of Employment and Immigration), [1989] FCJ No 444 (QL), 99 NR 168).
[52]
Still, considering that some other aspects of
the credibility finding were reasonable, I do not view these errors as alone
revealing a microscopic analysis since I cannot say they were used to dispose
of the case (see Konya v Canada (Minister of Citizenship and Immigration),
2013 FC 975 at paragraph 22, [2013] FCJ No 1041).
[53]
However, the finding regarding the lack of
subjective fear is more problematic. The applicants explained to the Board that
they decided to claim protection in Canada because they had heard about another
white South African whose claim had been successful here and had already
contacted the lawyer who had represented him.
[54]
Unfortunately for them, their flight plan took
them through the United Kingdom and the Board seized upon this brief layover as
reason enough to conclude that they must have lacked any subjective fear. The
Board said the applicants’ explanation for not claiming protection immediately
upon arriving in the United Kingdom was invalid and that claimants must claim
refugee protection as soon as possible when traveling through another country
that is a signatory to the Convention (see Skretyuk v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 783 at paragraph 3, 47 Imm LR
(2d) 86 [Skretyuk]).
[55]
That was unreasonable. First of all, nothing in
the decision allows me to understand why the Board decided that the applicants’
explanation is invalid. While the respondent condemns it as forum shopping and
that might be relevant to public policy, it is certainly not something that is
incompatible with a subjective fear of persecution. On the contrary, it is
unsurprising that someone who actually fears persecution would want to go to a
country where their claim has the best chance of success, since the price of
failure is a return to the persecution they fear. At the very least, it cannot
be summarily rejected without explanation and that made this crucial finding
non-transparent.
[56]
Further, while it is true that delay in claiming
protection can indicate a lack of subjective fear, it is a highly fact-specific
determination. In these circumstances, precedent is a very poor substitute for
logic. In Skretyuk, the claimants had lived for two months in London before coming to Canada and then waited three more weeks to claim refugee
protection (at paragraph 1). In such circumstances, it can be reasonable to
infer that they lacked subjective fear because a person’s status in a foreign
country is usually unstable and they were risking being removed to their
country of origin by failing to make a claim.
[57]
Here, the applicants spent approximately seven
hours in an airport in the United Kingdom while waiting for a flight to Canada, where they had already obtained a temporary resident visa and booked a hotel room.
There was never any realistic danger that the United Kingdom would deport them
to South Africa and the Board never explains why this was incompatible with a
subjective fear.
[58]
Moreover, many cases recognize that simply
travelling through another country should not prejudice a claimant’s request.
In Tung v Canada (Minister of Employment and Immigration), [1991] FCJ No
292 at paragraph 16, 124 NR 388 (FCA), a claimant was in transit for five weeks
and the Board said his failure to claim protection in any of the countries
through which he traveled was inconsistent with his fear. The Federal Court of
Appeal rejected that logic at paragraph 20, partly because it did not feel that
the Board could judicially notice that those countries were signatories to the
Convention but also because “the appellant was at all
times in transit to Canada and had already decided to claim Convention refugee
status after he arrived here.”
[59]
Indeed, this case is very similar to Ilunga v
Canada (Minister of Citizenship and Immigration), 2006 FC 569 at paragraph
14, [2006] FCJ No 748, where Mr. Justice Yvon Pinard said the following:
[T]he Board in the case at bar made a patently
unreasonable error in determining that the applicant’s stay in England of less
than a day in duration undermined her subjective fear of persecution, for, she
had already decided to claim Convention refugee status in Canada, and was at
all times in transit to Canada.
The same can be said here.
[60]
Of course, the Board also decided that the
applicants’ motives were improper at paragraph 72 of its decision:
On Mr. Kaplan’s advice, undoubtedly, they took
advantage of a situation where a positive decision was rendered for a white
South African, and chose to claim refugee protection as the means to an end to
settle in Canada.
[61]
However, that implicitly relied on the earlier
decision that the delay was invalidly explained, which was unreasonable.
[62]
All that said, the general finding of a lack of
credibility might have alone been sufficient to find a lack of subjective fear
since there would be no credible evidence of their fear (see Sheikh v Canada
(Minister of Employment and Immigration), [1990] 3 FC 238 at 8, 71 DLR
(4th) 604). However, those were not the reasons given by the Board and it
instead tied its finding of a lack of subjective fear directly to the failure
to claim asylum in the United Kingdom. In my view, that was an unjustifiable
inference and an unreasonable one. Therefore, because the objective fear
analysis was also tainted by applying the incorrect tests, I am of the view
that the decision as a whole was unreasonable.
[63]
Finally, there was also some question about
whether the female applicants were citizens of Armenia. While the Board expressed
some doubts at paragraphs 73 to 76 of its decision, it declined to make any
definite finding since it disposed of the claim on other grounds. As such, that
also cannot save the decision.
[64]
I would therefore set aside the decision and
return the matter regarding Charl and Naira Nel to another panel of the Board
for redetermination. I would also delete Serena Anne Nel’s name from the style
of cause since she had discontinued her application.
[65]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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