Date: 20040129
Docket: IMM-2758-02
Citation: 2004 FC 143
Montréal, Quebec, January 29, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ALISSA KHON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel), that the applicant is not a Convention refugee.
[2] The facts are summarized as follows by the panel in its decision:
[3] The applicant is a 22-year-old young woman.
[4] At the end of June 2000, a friend introduced her to a young Kazakh man, by the name of Nurzhan Zhakenov, with whom she established an intimate relationship.
[5] However, having sensed that he had a certain arrogance and superiority, traits that she did not appreciate in the least, she suggested to him that they take a break in order to give her time to think, which he had difficulty accepting. He called her repeatedly to insult her.
[6] On August 12, 2000, after meeting her with a group of male Korean friends, he insulted her and attacked her; a friend came to her defence; the police arrived on the scene, they arrested Nurzhan and the applicant's male friend. They were released some time later.
[7] The next day, Nurzhan showed up at the applicant's home. She refused to open the door; he insulted her and threatened to kill her. A neighbour called the police who, after having a talk with Nurzhan, let him leave.
[8] Nurzhan continued to make threatening phone calls; the applicant was now afraid to leave her home. After two weeks of this treatment, the applicant went to the home of her mother, who advised her to leave the country for a little while, in the hope that Nurzhan would forget about her.
[9] She left Kazakhstan for Holland on September 12, 2000, and stayed there until October 7, 2000.
[10] Upon her return, Nurzhan began to harass her again, even though her mother had advised the police of it and the police had promised to have a serious talk with him. So, the applicant went to live at a girlfriend's house.
[11] On October 22, 2000, Nurzhan broke into her friend's home by prying the front door open. He allegedly beat up the applicant and threatened her with serious consequences if she did not show up at his house the next day.
[12] Her friend suffered a nervous shock. As for the applicant, she had to spend four days at the hospital, where the police, called by the attending physician, visited her. However, although the police officer opened a file, she did not hear anything from him after that. When she was released from the hospital, the applicant hid at the house of her friend's grandmother. Nurzhan continued to make his threatening phone calls to her mother and to her friend.
[13] Fearing for her life, she and her mother decided that she had to leave the country and go to live in Canada. The applicant left Kazakhstan on December 3, 2000. She arrived in Canada on December 4, 2000, and claimed refugee status upon her arrival.
[14] The panel found that the applicant is not a Convention refugee because she did not take the necessary steps to obtain protection from the authorities and because there was an internal flight alternative available to her.
[15] I note at the outset that the applicant raised questions about the panel's jurisdiction as well as questions concerning a denial of the principles of natural justice. In view of my findings regarding the merits of the decision, it is unnecessary to address them because the errors that are identified are sufficient to warrant the intervention of this Court.
[16] The applicant's claim is based on her membership in a particular social group, namely, women victims of violence. This is my opinion.
[17] I note, upon review of the reasons of the panel's decision, that it failed to examine the claim in accordance with the Guidelines of the Chairperson of the IRB, under subsection 65(3) of the Immigration Act, on Women Refugee Claimants Fearing Gender-related Persecution (the Guidelines).
[18] Although the panel is not obliged to apply the Guidelines because they do not have the force of law, they must be examined by the members of the panel in appropriate cases.
[19] In Fouchong v. Canada (Secretary of State), [1994] F.C.J. No. 1727, MacKay J. addresses the application of the Guidelines, in paragraphs 10 and 11:
[10] I am further persuaded that in the circumstances of this case the tribunal erred in its failure to explicitly assess the applicant's claim in relation to the Guidelines, because here submissions of counsel made specific reference to those in relation to the applicant's claim. The Guidelines are not law, but they are authorized under s. 65(3) of the Act. They are not binding but they are intended to be considered by members of the tribunal in appropriate cases. In a memorandum accompanying their circulation, the Chairperson of the I.R.B. advised, inter alia, that while they are not to be considered binding
Refugee . . . Division Members are expected to follow the Guidelines unless there are compelling or exceptional reasons for adopting a different analysis.
Individuals have a right to expect the Guidelines will be followed unless compelling or exceptional reasons exist for departure from them.
[11] Neither the terms of the Guidelines nor of the Chairperson's memorandum of advice create the basis for the court to determine that in this case the tribunal erred by not explicitly referring to the Guidelines. The basis of my conclusion is the nature of the applicant's claim and the reference by counsel at the hearing to the use of the Guidelines in assessing the claim. In fairness the claim could not be assessed without reference to the Guidelines. I do not suggest what the outcome of that assessment might be but in the circumstances in which this claim was made and presented, it was not sufficient for the tribunal to simply set out in its conclusion, "This is not a situation of spousal abuse. This is a situation where the claimant fears criminal attacks by a former spouse". [Emphasis added].
[20] The Guidelines are issued in order to assure a certain coherence in the tribunal's decisions. As MacKay J. indicated, when the panel is faced with a case where the applicant has made a claim of persecution based on her membership in a particular social group, i.e. women victims of violence, in all fairness, the claim cannot be examined without reference to the Guidelines.
[21] I also accept that there was an erroneous finding unsupported by the evidence regarding the internal flight alternative available to the applicant.
[22] First, the applicant testified that her persecutor could have found her anywhere in the country because his father was the personal bodyguard of the President's wife and he could have found out where she was living, evidence that was not refuted.
[23] Further, the documentary evidence in the record indicates that, in Kazakhstan, everybody must be registered. This implies that the applicant would have been forced to register with the authorities as soon as she had moved. I believe that this fact is crucial to the question of the applicant's internal flight alternatives within Kazakhstan, and that the panel erred in disregarding this evidence.
[24] For these reasons, the application for judicial review is allowed and the matter is referred to a differently constituted panel.
ORDER
THE COURT ORDERS that the application for judicial review be allowed and the matter referred to a differently constituted panel.
"Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2758-02
STYLE OF CAUSE: ALISSA KHON
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 27, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATE OF REASONS: January 29, 2004
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon Morin FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec