Docket: IMM-4285-16
Citation:
2017 FC 507
Toronto, Ontario, May 17, 2017
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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MAHA YOUSOF
HIMAT HASSAN,
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AYA ELFATIH
AHMED KHALAFALLA,
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AHMED ELFATIH
AHMED KHALAFALLA,
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AND ASEEL
ELFATIH AHMED KHALAFALLA
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Applicants
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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
[1]
This is an application for judicial review of a
decision made by the Refugee Protection Division of the Immigration and Refugee
Board [RPD] dated September 26, 2016, which determined that the applicants have
no credible basis for their claims and are neither Convention refugees nor persons
in need of protection.
[2]
Ms. Hassan, the principal claimant, made her
claim on the basis of political persecution. She claimed that her activism on
behalf of the Nubian community of Sudan put her at risk of persecution from the
Sudanese government. She also made separate claims on behalf of her two
daughters, Aya and Aseel, on the basis that they were at risk of female genital
mutilation [FGM] from Ms. Hassan’s extended family if they were returned to
Sudan.
[3]
The determinative issue in this application is
the RPD’s assessment of the FGM claims for Aya and Aseel. The RPD found
insufficient evidence that they had not already been subject to FGM, but did
not reasonably consider the objective country condition evidence regarding the prevalence
of FGM in Sudan or the timeline of when the daughters were actually in Sudan.
[4]
Ms. Hassan and her minor children are nationals
of Sudan. While it did not give credence to their reasons for doing so, the RPD
accepted that the family moved to Saudi Arabia in 2006. While living in Saudi
Arabia, Ms. Hassan gave birth to Aseel who, at the time of the RPD hearing, was
aged five. The applicants did not return to Sudan until 2016, when they
returned for a period of eight days so the children could see their sick
grandmother, at her request.
[5]
The RPD found that Ms. Hassan’s testimony lacked
credibility. It did not accept that she faced political persecution in Sudan,
or that she personally feared that her daughters would be subject to FGM.
Whether or not that finding was reasonable, the RPD was still obligated to
examine whether, on the basis of the country condition evidence, the daughters
faced a serious possibility of gender persecution if they were returned to
Sudan. It is well-established that where a claimant has not personally
experienced a form of persecution, the RPD is nonetheless obligated to examine
whether a personal risk can be inferred from the experiences of
similarly-situated persons: Salibian v Canada (Minister of Employment and
Immigration), [1990] 3 FCR 250 at paras 16-18 (FCA); Josile v Canada
(Citizenship and Immigration), 2011 FC 39 at para 22.
[6]
The RPD acknowledged that country documents
state that FGM remains widespread in Sudan. It cited the fact that 88 percent of
girls and women aged between 15 and 49 in Sudan “have
undergone this barbaric practice and this is well documented in our National Documentation
Package, Exhibit 3”. The RPD also stated that though the prevalence of FGM
was high all over the country it varied and was as high as 99 percent in the
north. The applicants were from the north. Nonetheless, the RPD believed that
it could not rely on Ms. Hassan’s testimony about whether her daughters had
already been subject to FGM. The RPD found no other evidence capable of
supporting the conclusion that they had not. The RPD explained that Ms.
Hassan’s failure to adduce a medical report about whether her daughters had
already been subjected to FGM was fatal to their claims.
[7]
While the RPD assessed the National
Documentation Package for the prospective risk of FGM in Sudan, it failed to
consider whether the same evidence, combined with the timeline of when the
daughters were physically present in Sudan, could allow it to infer whether or
not they had already been subject to FGM. When referring to the prevalence of
FGM for women aged 15 to 49 as 88 percent, the RPD did not include the
immediately following words from the National Documentation Package: that “[g]irls were generally cut when 5 to 11 years old.”
[8]
Aya was aged 4 when the family left Sudan and Aseel
was not yet born. Having clearly reviewed the National Documentation Package indicating
the ages at which young girls are at risk of forced FGM, the RPD should then
have personalized that risk to the minor Applicants. The ages of the daughters
at the time of leaving the Sudan originally, and their ages of 16 and 5
respectively when returning to the Sudan, should have been considered by the
RPD. If that had been done, the RPD would have seen that when Aya left Sudan
she was not yet of an age where FGM was normally practiced. It would also have
seen that Aseel had never spent time in Sudan other than the fleeting one-week
visit in March 2016 when she was 5 years old.
[9]
There is no evidence that the RPD turned its
mind to the likelihood, based on the evidence in the National Documentation
Package, that the minor Applicant daughters had not in fact been subjected to
FGM. This is particularly so for Aseel, as there was evidence that FGM is not
practiced in Saudi Arabia. Had the RPD considered whether the daughters were
physically present in Sudan at ages when they were at risk of FGM, it is not
clear whether it would still have required a medical assessment before finding
that they were at risk of gender persecution.
[10]
After reflecting on the lack of consideration by
the RPD of such a crucial aspect of the claims by the minor daughters, it is my
view that it is not possible to find that the RPD’s decision falls within the
range of possible, acceptable outcomes defensible on the facts before it. For
that reason, the decision is unreasonable and the application is allowed.
[11]
This matter is to be returned to the RPD for
determination by a different panel.
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