Docket: IMM-2294-17
Citation: 2017 FC 1109
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 6, 2017
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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YANNATY SYLLA
RAICHE
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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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REASONS
FOR JUDGMENT
(Judgment delivered orally from the bench at
Montréal, Quebec, on November 8, 2017)
BELL
J.
[1]
This is an application for judicial review
regarding a decision made on April 28, 2017 [decision], that concerned the
application for permanent residence for humanitarian and compassionate
considerations that was submitted by the applicant, Ms. Yannaty Sylla Raiche
[Ms. Raiche].
[2]
Ms. Raiche is 36 years old and a Guinean
citizen. She is divorced from a white, non-Muslim man. Her relationship with
that man made her family in Guinea angry. Ms. Raiche is afraid of returning to
that country, among other things, due to the loss of her father and mother, who
were protecting her, the control that her uncles now have over the family, her
fear of being excised, given the high rate of excision in Guinea and threats in
that regard, as well as the possibility of being forced to marry against her
will.
[3]
In the decision, the immigration officer
[officer] denied Ms. Raiche’s application, finding that the humanitarian and
compassionate considerations were insufficient to justify an exemption from the
Immigration and Refugee Protection Act, SC 2001, c. 27.
[4]
I am aware of the deference that I should give
to an officer who makes such a decision (Kanthasamy
v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 at paras 10, 44; Bakenge v. Canada
(Minister of Citizenship and Immigration), 2017
FC 517, [2017] F.C.J. No. 527 at paras 12–13;
Paul v. Canada (Minister of Citizenship
and Immigration), 2017 FC 744, [2017] F.C.J. No. 782 at para 6).
I am also aware that judges have a responsibility to not interfere too much in
the work of administrative tribunals, which perform a useful and important
service to Canadian citizens, and should therefore not go hunting for mistakes, essentially substituting their own reasons for those of the decision-maker (see
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 1; Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 at paras 16-17; Ali v. Canada (Minister of
Citizenship and Immigration), 2015 FC 1231, [2015] F.C.J. No. 1285 at para
24; Rossi v. Canada (Attorney General), 2015 FC 961, [2015] F.C.J. No.
950).
[5]
With this in mind, I do however note errors in
the decision that prevent me from understanding the officer’s reasoning. For
example, Ms. Raiche explains in her affidavit that her mother was her protector
after her father’s death, and that after her mother’s death, her uncles in
Guinea decided to have her excised and give her away in marriage. The officer
confirms that the mother’s death certificate was filed, but he finds this piece
of evidence [translation] “non-relevant”. It seems to me that the officer did
not assess the evidence showing that Ms. Raiche’s [translation] “protector” was
deceased and then assessed Ms. Raiche’s claim that she was at risk of a forced
marriage and excision since her uncles had taken control of the family. The
officer seems to ignore Ms. Raiche’s claim about the mother’s role as the
protector of the family. The officer did not look into this issue.
[6]
Moreover, the officer did not give credence to
the letters from Ms. Raiche’s uncle and sister, because both letters were
written in the same handwriting and on the same kind of paper. The officer was
expecting explanations to justify the fact that both letters were written on
the same kind of paper and in the same handwriting. However, it appears that the
explanation is obvious and did not need to be supported by Ms. Raiche. As I
noted during the hearing, it is quite common for people (witnesses or others)
to adopt as their own the words written by someone else in documents or letters
by signing the document. If the officer meant that he considered the documents
to be fraudulent, he simply should have said so. As he did not say that, and
not seeing any reason to infer that, I cannot understand why that evidence was
not considered.
[7]
As a result, I do not understand the officer’s
finding regarding the risks of excision that Ms. Raiche is facing, given the
documentary evidence and the facts stated in Ms. Raiche’s affidavit. He does
not assess the key evidence on this issue. In my opinion, the key elements are
as follows: the mother’s death; the uncles taking control of the family; the
fact that other sisters were forced to get married against their will; the two
letters to which the officer does not give credence; the frightening and
shocking conditions in Guinea in terms of excision.
[8]
The conditions in Guinea regarding excision are
detailed in the United Nations report on human rights entitled Report on
human rights and the practice of female genital mutilation and excision in
Guinea [Report], which is included in the applicant’s record
[record]. At page 37 of the record (page 3 of the Report), it reads:
[translation]
Although it is
forbidden by Guinean positive law, the practice of FGM/E is widespread in the
Republic of Guinea, where 97% of girls and women aged 15 to 49 have suffered
excision. FGM/E is practised on a large scale in each of the country’s four
natural regions, and among all the ethnicities, religions and
socio-professional contexts. While the practice is decreasing worldwide, a
national Demographic and Health Study that was conducted in 2012 found that
FGM/E had increased slightly in Guinea since 2002. The country is therefore
ranked second worldwide in terms of prevalence, behind Somalia.
[9]
At page 43 of the record (page 9 of the Report),
the authors define the typology of this barbaric custom and provide statistics
for Guinea. I quote:
[translation]
According to the
WHO, FGM/E “comprises all procedures that involve partial or total removal of
the external female genitalia, or other injury to the female genital organs for
non-medical reasons.” There are four types of FGM/E, which the WHO defines as
follows:
Type 1 – Clitoridectomy: Partial or
total removal of the clitoris (a small, sensitive and erectile part of the
female genitals), and in very rare cases, only the prepuce (the fold of skin
surrounding the clitoris).
Type 2 – Excision: Partial or total
removal of the clitoris and the labia minora (the inner folds of the vulva),
with or without excision of the labia majora (the outer folds of the skin of
the vulva).
Type 3 – Infibulation: Narrowing of
the vaginal opening through the creation of a covering seal. The seal is formed
by cutting and repositioning the labia minora, or labia majora, with or without
removal of the clitoris.
Type 4 – Not classified: All other
harmful procedures to the female genitalia for non-medical purposes, e.g.
pricking, piercing, incising, scraping and cauterizing.
In Guinea, cuts that remove flesh, i.e. type
2 FGM/E—or excisions—are the most common. Indeed, according to the 2012 DHS,
84% of women aged 15 to 49 have had flesh removed; 8% have undergone
infibulation, and 6% have been cut without flesh being removed. The most
extreme form (type 3) is practised by ethnic Fula and the Tomas. Age does not
seem to have an impact on the type of FGM/E practised.
According to UNICEF statistics from 2014,
despite existing legislation and awareness efforts (see section 4), the
Republic of Guinea is ranked second in the world, after Somalia, for the
prevalence of FGM/E practices, with 97% of girls and women excised. According
to the DHS, the prevalence rate of FGM/E in 2005 was 96% for women aged 15 to
49, vs. 97% in 2012.
[10]
Ms. Raiche is 36 years old, divorced, and is
threatened with excision and forced marriage by her uncles. The officer made no
efforts to juxtapose Ms. Raiche’s specific conditions with those of the
country. Even though excision is forbidden by law in Guinea, the officer did
not mention that there had been an increase in the number of excisions, from
96% of women aged 15 to 49 in 2005, to 97% of those women in 2012. The officer
noted that there was as evidence a medical certificate attesting that at age
16, Ms. Raiche had not been excised. He mentions that the government is working
to change the mentality of the Guinean people, and that this practice is
forbidden by public law in Guinea. However, he does recognize that this is a
current practice in Guinea. He concludes this part of his analysis by noting
that at age 16, Ms. Raiche was not excised and that she was now 36 years old;
given the government’s efforts to abolish genital mutilation, the chances that
the applicant [translation] “would be excised in the future are considerably reduced,
even low.”
[11]
It is likely that the officer was right in
finding that the chances of excisions among women aged 36 are overall not as
high. However, the officer acted unreasonably in concluding his analysis there,
without focusing more on Ms. Raiche’s specific situation, as she described it
in her affidavit. He does not mention the uncles’ influence in the family. He
does not mention the uncle’s rigid attachment to the customs of their region.
He does not mention the genital mutilation rate among women in Guinea, or the
fact that those rates have increased after 2005 to 97% of women aged 15 to 49.
He does not mention the circumstances of Ms. Raiche, who got married to a
white, non-Muslim man, is now divorced, and who has adult sisters who had to
get married against their will.
[12]
For all these reason, taking into account the
evidence filed, and given the officer’s failures with respect to his assessment
of this that evidence, I find that the decision does not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. It does not meet the standard of reasonableness.
JUDGMENT in IMM-2294-17
THE
COURT ORDERS THAT:
- The application
for judicial review is allowed, without costs;
- The decision is
set aside, and the matter is sent back for reassessment by another
officer;
- There are no
questions to be certified for the Federal Court of Appeal.
“B. Richard Bell”
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