Docket: IMM-7741-14
Citation:
2015 FC 852
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 10, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ROUGUIATOU KAKÉ
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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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JUDGMENT AND REASONS
I.
Preliminary remarks
[1]
The Court adopts the reasoning of Justice Simon
Noël in Saeedi v Canada (Minister of Citizenship and Immigration), 2013 FC
146 at para 30 [Saeedi]:
[30] The
RPD’s conclusion that the Applicant’s allegations lack plausibility is
unreasonable for the following reasons. The duty
to provide reasons for negative credibility findings becomes particularly
important when non-credibility determinations are based on perceived
implausibilities in the Applicant's story.
As stated by this Court in Santos v Canada (Minister of Citizenship and
Immigration), 2004 FC 937 at para 15, 37 Imm LR (3d) 241,
the RPD is required to
clearly explain the rationales behind its implausibility findings and they
should be based on the evidence before it:
[15] It is clear that plausibility findings are subject to
the same deference as credibility findings, that being patent unreasonableness:
see Aguebor v. Canada
(Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). However, as
stressed in Valtchev, supra, plausibility findings involve a
distinct reasoning process from findings of credibility and can be influenced
by cultural assumptions or misunderstandings. Therefore, implausibility
determinations must be based on clear evidence, as well as a clear
rationalization process supporting the Board's inferences, and should refer to
relevant evidence which could potentially refute such conclusions. The
cautions set out in both Valtchev,
supra, and Leung v. Canada (Minister of
Employment and Immigration), (1994), 81 F.T.R. 303 are worth keeping in
mind in the Court's review of plausibility conclusions.
[Emphasis added.]
II.
Introduction
[2]
The applicant is seeking judicial review of a
decision by the Refugee Protection Division [RPD] dated October 17, 2014, rejecting
her claim for refugee protection under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[3]
The applicant claims a fear of persecution,
kidnapping and torture if she were to return to Guinea, her country of
citizenship.
III.
Factual background
[4]
The applicant is a 24 year-old woman who was
born in the Faranah prefecture, in Guinea. Since the age of three, the applicant
has lived under the guardianship of her aunt, Binta Kaké in Conakry.
[5]
At the request of her father, the applicant was
circumcised when she was five years old despite the lack of consent from her
guardian.
[6]
In 2007, when she was 17 years old, the applicant
learned that her father had given away her sister Safiatou in marriage to a
merchant who was over 50 years old, named ElHadji Amadou Kaba [Mr. Kaba]. After
Safiatou fled to avoid the marriage, the applicant’s father declared his
intention of giving away the applicant in marriage to Mr. Kaba in the event he
was unable to find Safiatou, which Ms. Kaké firmly opposed.
[7]
On March 29, 2011, accompanied by his friend, the
applicant’s father showed up at Ms. Kaké’s home while the applicant was at
university, with the intention of taking her back to Faranah to marry her off
to Mr. Kaba.
[8]
Ms. Kaké then contacted the applicant to warn
her of the danger that awaited her. The applicant stayed with her boyfriend
Badra Ali in the days that followed.
[9]
On April 7, 2011, on her aunt’s recommendation, the
applicant left Guinea for Bénin and arrived at her friend Binta Diallo’s place
four days later.
[10]
On May 15, 2011, the applicant’s father and
another man showed up at Binta Diallo’s place looking for the applicant. The
two men beat the applicant, grabbed her and forcibly removed her, bringing her
to Mr. Kaba’s home in Faranah.
[11]
Mr. Kaba held the applicant captive in a locked
room for several days, during which she was sexually assaulted numerous times.
[12]
One day, after having abused the applicant, Mr.
Kaba left the room where the applicant was being held captive, accidentally leaving
his cellular telephone and some clothes. The applicant took the cellular
telephone and was able to contact her boyfriend, Badra Ali. She then found some
money in an item of Mr. Kaba’s clothing, took it and escaped through a window
she managed to break.
[13]
After having met up with her boyfriend in
Conakry, the applicant left Guinea the same day and travelled to Canada with a
man named François, with the help of her boyfriend and Ms. Kaké.
[14]
The applicant arrived in Canada on May 29, 2011,
and claimed refugee protection in Montréal the following day.
[15]
On May 7, 2014, a brief hearing was held before
the RPD during which the Minister presented the applicant with the death notice
of one Elhadji Amadou Kaba published on the website of Radio-Kankan. The
applicant stated that she did not recognize the man in the photo accompanying
the death notice.
[16]
On August 19, 2014, the applicant filed new
evidence, including an individual life certificate issued by the civil status
officer of the urban commune of Faranah in the name of ElHadj Amadou Kaba, in
order to confirm that Mr. Kaba was alive (Individual life certificate dated May
29, 2014, Applicant’s Record, at page 42).
[17]
On August 25, 2014, a second hearing was held
before the RPD.
IV.
RPD decision
[18]
On October 17, 2014, the RPD rejected the
applicant’s refugee protection claim, concluding that the applicant did not
meet the definition of “Convention refugee” or
that of “person in need of protection” under
sections 96 and 97 of the IRPA.
[19]
First, in its reasons, the RPD concluded that the
applicant’s testimony was not credible with respect to certain key elements of
her claim for refugee protection.
[20]
The RPD found that the applicant would not face
a risk of persecution if she were to return to Guinea because her agent of
persecution was deceased.
[21]
The RPD accepted the evidence submitted by the
Minister according to which the applicant’s agent of persecution, Mr. Kaba, had
died on April 13, 2013, even though that evidence indicates that Mr. Kaba was
in Kankan rather than Faranah. At the same time, the RPD dismissed the
individual life certificate from the Director of civil status civil submitted
by the applicant as well as the photo that accompanied it, while noting
however, that it was difficult to make links between the photos filed by the
applicant and by the Minister respectively.
[22]
Then, the RPD examined the applicant’s
allegations regarding the sexual violence she had been a victim of. The RPD
concluded that the applicant had not suffered repeated sexual assaults by Mr.
Kaba and that the applicant’s statement in that regard was “clearly exaggerated”. In addition, the RPD drew a
negative inference regarding the applicant’s credibility from the fact that she
had not sought help from or made a complaint to the police.
[23]
The RPD identified a number of inconsistencies
in the applicant’s narrative. First, the RPD noted that the applicant testified
that she had not been married, but that she indicated in her Personal
Information Form [PIF] that she had been married to Mr. Kaba on May 18, 2011.
Second, the RPD observed that the applicant indicated having arrived in Faranah
on May 18, 2011, when she had indicated May 15, 2011, in her PIF.
From this fact, the RPD concluded that the applicant had neither been married
to Mr. Kaba, nor had she been held captive by him.
[24]
In addition, the RPD determined that it was
unlikely that the applicant’s father would have waited nearly four years before
proceeding with the forced marriage of the applicant to Mr. Kaba. Accordingly,
the RPD did not believe that the applicant’s father had contributed to the persecution
of his daughter.
[25]
Further, the RPD assigned no probative value to
the evidence adduced by the applicant in support of her narrative. First, the
RPD examined evidence related to the state of the applicant’s health from the
Movement Against Rape and Incest [MCVI]. In its report, it states that the
applicant was subject to a forced marriage and that she was in need of medical
care as a result of the serious consequences of the assaults and excision she
had suffered. The report also indicates that the applicant was a prisoner of Mr.
Kaba, that he sexually assaulted her daily, several times, while verbally abusing
her in the process (MCVI report dated February 17, 2014, Certified Tribunal
Record, at pages 121 to 128).
[26]
However, the RPD gave no probative value to the
MCVI report because it related facts reported by the applicant, which the RPD
had already determined were not credible.
[27]
Lastly, the RPD dismissed letters filed by the
applicant in support of her allegations. The RPD gave no probative value to the
letters from Ms. Kaké, nor to the one from Binta Diallo, as the signatures on
the letters were identical. In addition, the RPD assigned no probative value to
the letter from the applicant’s friend, Aichata Sylla, on the ground that no
proof of her identity had been submitted.
V.
Legislative provisions
[28]
The following provisions of the IRPA are
relevant to determining refugee status:
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Convention refugee
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Définition de « réfugié »
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VI.
Issues
[29]
The key issues in this application for judicial
review centre on the reasonableness of the RPD’s findings regarding the credibility
of the applicant and the application of the Chairperson’s Guideline 4: Women
Refugee Claimants Fearing Gender-Related Persecution by the RPD [Guideline
4] (Uygur v Canada (Minister of Citizenship and Immigration), 2013 FC
752; Dunsmuir v New Brunswick, [2008] SCJ No 9 [Dunsmuir]).
VII.
Analysis
[30]
For the reasons that follow, the application
must be allowed in order for the applicant’s refugee protection claim to be
determined by a differently constituted panel.
A.
RPD’s credibility findings
[31]
Due to its fact finding expertise, the RPD has
broad discretion with regard to assessing credibility, evidence and making
findings of fact in refugee claims, to which the Court must show deference (Ahmadzai
v Canada (Minister of Citizenship and Immigration), 2013 FC 1025 at para
23).
[32]
In the decision under review, the RPD summarized
its credibility findings at paragraph 38 of its reasons:
[T]he
panel finds that the claimant
is not credible on the matter of her primary agent of persecution,
Elhadji Amadou Kaba, still being alive. The panel also does not
believe, considering a major contradiction, that the claimant was forced to marry this man, Kaba, or that she stayed
with him in Faranah, or therefore that she was the victim of rape and assault
by him, especially since it is inconsistent that the claimant’s father waited nearly four years to act on his
marriage plan. Furthermore, the
claimant made no attempt to seek help or to file a complaint. Finally, the
panel grants no probative value to the documents meant to corroborate that Kaba is alive, to the letters filed by the claimant, or to the medical report that
recounts the claimant’s version of the facts.
(RPD
decision, Certified Tribunal Record, at p. 11)
[33]
The intervention of the Court with regard to the
RPD’s decision is required in three respects.
[34]
First, the RPD indicated that it “does not believe that the claimant
experienced repeated rapes by Elhadji Amadou Kaba, because it is of
the opinion, first of all, that her statement is clearly exaggerated (raped
two or three times a day) and, above all, the panel does not believe
that the claimant was married to Kaba as she stated,
or that she was held captive by this man, as indicated earlier, especially
since she did not seek help and did not file a complaint” (RPD decision, Certified Tribunal Record,
at p 10).
[35]
To begin with, it was unreasonable for the RPD
to conclude that the applicant’s statement about the frequency of the sexual
assaults she suffered was “clearly exaggerated”
without providing an explanation for such a finding in its reasons. As the
Supreme Court of Canada wrote, “[r]easons . . . foster
better decision making by ensuring that issues and reasoning are well
articulated and, therefore, more carefully thought out” (Baker v
Canada (Minister of Citizenship and Immigration), [1999] SCJ 39 at para
39). The RPD provided no evidence or grounds that would point to any inherent
logic in support of its position.
[36]
Furthermore, the RPD’s credibility findings
regarding the sexual assaults suffered by the applicant point to a failure to
take into account Guideline 4, in particular with regard to the applicant’s
reluctance to ask for help from, or file a complaint with, the police.
[37]
The case law holds that although Guideline 4 is
not binding, the RPD must nonetheless apply the principles enshrined in Guideline
4 in a meaningful way (A.M.E. v Canada (Minister of Citizenship and
Immigration), 2011 FC 444 [A.M.E.]). It is not sufficient for the
RPD to simply say that Guideline 4 was applied (Yoon v Canada (Minister of
Citizenship and Immigration), 2010 FC 1017 at para 5; Odia v Canada (Minister
of Citizenship and Immigration), 2014 FC 663 at para 18).
[38]
Guideline 4 acknowledges the difficulty for
women in relaying certain traumas, including sexual abuse, and requires that
decision-makers show a certain amount of sensibility to this reality (A.M.E.,
above at para 9).
[39]
At C.2 of Guideline 4 it states:
When
considering whether it is objectively unreasonable for the claimant not to have
sought the protection of the state, the decision-maker should consider, among
other relevant factors, the social, cultural, religious, and economic context
in which the claimant finds herself. If, for example,
a woman has suffered gender-related persecution in the form of rape, she may be
ostracized from her community for seeking protection from the state.
Decision-makers should consider this type of information when determining if
the claimant should reasonably have sought state protection.
[40]
In this case, the RPD draws a negative inference
from the fact that the applicant did not seek to file a complaint after the
sexual assaults, but without addressing the explanations provided by the
applicant with respect to that aspect of her narrative.
[41]
Although the RPD indicated having applied Guideline
4 in its assessment of the applicant’s testimony and evidence, the analysis
conducted by the RPD leads the Court to conclude that these guiding principles
were not reasonably applied.
[42]
In short, the Court is of the view that the RPD’s
finding with regard to the “clearly exaggerated”
nature of the applicant’s narrative about the sexual assaults she endured does
not meet the reasonableness criteria established in Dunsmuir, above.
[43]
Second, the RPD made an implausibility finding
by concluding that “it is surprising that her father,
who promised her to Kaba in 2007 and who tried to bring her back in 2008,
waited until 2011 to act on this plan” without providing any basis
upon which to support its conclusion (RPD decision, Certified Tribunal Record,
at p. 9). However, the evidence shows that the applicant consistently provided
explanations for the delay between the initial proposal to marry the applicant’s
sister in Kaba and the applicant’s kidnapping four years later.
[44]
The Court adopts the reasoning employed by
Justice Noël in Saeedi, above:
[30] The
RPD’s conclusion that the Applicant’s allegations lack plausibility is
unreasonable for the following reasons. The duty
to provide reasons for negative credibility findings becomes particularly
important when non-credibility determinations are based on perceived
implausibilities in the Applicant's story.
As stated by this Court in Santos v Canada (Minister of Citizenship and
Immigration), 2004 FC 937 at para 15, 37 Imm LR (3d) 241,
the RPD is required to
clearly explain the rationales behind its implausibility findings and they
should be based on the evidence before it:
[15] It is clear that plausibility findings
are subject to the same deference as credibility findings, that being patent
unreasonableness: see Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
However, as stressed in Valtchev,
supra, plausibility
findings involve a distinct reasoning process from findings of credibility and
can be influenced by cultural assumptions or misunderstandings. Therefore,
implausibility determinations must be based on clear evidence, as well as a
clear rationalization process supporting the Board's inferences, and should
refer to relevant evidence which could potentially refute such conclusions.
The cautions set out in both Valtchev,
supra, and Leung v. Canada
(Minister of Employment and Immigration), (1994), 81 F.T.R.
303 are worth keeping in mind in the Court's review of plausibility
conclusions.
[Emphasis added.]
[45]
In short, the Court finds that it was unreasonable
for the RPD to have concluded that the applicant’s father had not contributed
to the applicant’s persecution.
[46]
Third, the Court agrees with the position of the
applicant that the RPD unreasonably concluded that Mr. Kaba was deceased.
[47]
The issue as to whether Mr. Kaba was deceased or
living was vigorously disputed by the parties, who held opposing views on the
matter.
[48]
In its decision, the RPD accepted the death
notice of one Amadou Kaba published on Radio-Kankan’s website filed by the
Minister (Article dated April 13, 2013, “Elhadji Amadou Kaba dit YESS n’est
plus”, Certified Tribunal Record, at p 215) while dismissing any evidence
to the contrary filed by the applicant to the effect that this same man was
still living, by means of an individual life certificate issued by the Director
of Civil Status, in Guinea.
[49]
At the hearing, when confronted with the death
notice presented by the Minister, the applicant declared that this individual
was not her agent of persecution. The RPD dismissed this assertion by the applicant
on the ground that she had not succeeded in demonstrating that Mr. Kaba was
still alive, despite the ambiguities in the evidence to that effect, which,
moreover, had been acknowledged by the RPD.
[50]
The Court finds that the particular
circumstances of the case show that evidence as to whether the applicant’s
persecutor is dead or alive is not necessarily mutually exclusive; the existence
of the death certificate submitted by the Minister does not, in itself,
preclude the possibility that the individual named El Hadj Amadou Kaba, identified
on the individual life certificate submitted by the applicant, is alive.
[51]
Although the RPD has discretion to dismiss
evidence it finds to be insufficient, the rationale that underlies the
acceptance of the Minister’s exhibit, which is of a somewhat less official
nature (Radio-Kankan’s website) than the individual certificate of life issued
by the Guinean authorities submitted by the applicant, evinces a lack of
transparency.
[52]
Consequently, following a thorough review of the
Certified Tribunal Record, including the RPD’s reasons, the hearing transcript
and the submissions of the parties, the Court finds that the RPD’s findings
regarding the applicant’s credibility and implausibility of some of her
statements are unreasonable with regard to the evidence as a whole (Ramos v
Canada (Minister of Citizenship and Immigration), 2011 FC 298 at para 7).
B.
Reasonable apprehension of bias
[53]
The applicant argues that the RPD raised a
reasonable apprehension of bias by having proceeded with a biased analysis.
[54]
However, the Court finds that the applicable
test developed by the Supreme Court of Canada in Committee for Justice and
Liberty v Canada (National Energy Board), [1976] SCJ 118, has not been met.
[55]
Furthermore, the Court agrees with the
respondent’s argument that the issues regarding reasonable apprehension of bias
and breaches of procedural fairness were not raised in a timely manner before the
RPD and that, as a result, the applicant is precluded from raising these issues
on judicial review (Cortes v Canada (Minister of Citizenship and Immigration),
2015 FC 516 at para 32; Abedalaziz v Canada (Minister of Citizenship and
Immigration), 2011 FC 1066 at para 34).
VIII.
Conclusion
[56]
In light of the foregoing, the Court allows the
application for judicial review.
[57]
Although this Federal Court judgment may not
necessarily lead to a positive decision by the RPD, a specialized study by the Immigration
and Refugee Board will at least provide an opportunity to make a determination
on the authenticity of the evidence; it will also allow for the matter to be
reviewed in its entirety in a specialized manner based on the expertise of the
panel in analyzing and thus providing adequate reasons for findings on the
credibility of the testimony and on the probative value of the evidence as a
whole with the help of the guidelines set out in Guideline 4.
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