BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These reasons follow the hearing at Calgary, Alberta on the 6th of March, 2007 of an application for judicial review of a decision of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board whereby the RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of like protection.
BACKGROUND
[2] The Applicant is a citizen of Mauritania. He is “black”, a Muslim and a member of the Soninke ethic group. He alleges a well-founded fear of persecution if required to return to Mauritania by reason of his race and his imputed political opinion. He was born in Mauritania on the 31st of December, 1986 and was seventeen (17) years of age on his arrival in Canada and nineteen (19) years of age at the date of his hearing before the RPD. Thus, at the time of the alleged events in Mauritania underlying his claim, he was a minor.
[3] The Applicant attests that his father was active in politics in Mauritania. In 1989, the Applicant’s family home was looted and the family’s belongings as well as their home were burned. Two older brothers of the Applicant were hanged. The family changed the locale in which they lived to avoid further trouble. Despite the relocation, the Applicant attests that he was arrested many times even before he became politically active.
[4] At the age of fifteen (15), the Applicant himself became politically active. He distributed information and undertook to raise awareness for the political party that he had joined. In October, 2001 he was arrested during a political meeting. He was taken to a police station, beaten and tortured and held over several days. Following his release, he spent two days in hospital under observation.
[5] The Applicant attests that following his arrest in October, 2001, he was accosted and detained by the police on many occasions due to his political involvement.
[6] In 2003, the Applicant turned to an uncle for aid in securing a passport and a student visa to enter Canada. In August, 2004, the Applicant fled Mauritania to Canada through Paris, France.
[7] On the 14th of September, 2004, the Applicant claimed Convention refugee status in Canada.
THE DECISION UNDER REVIEW
[8] The RPD found, on a balance of probabilities and on the evidence before it, that the Applicant was who he said he was and was a citizen of Mauritania. That being said, the RPD found the Applicant’s answers before it to be vague and inconsistent. It rejected his explanations for his failure to provide sworn corroborative evidence to support his allegations. It found the Applicant showed “…a lack of diligence…” in the pursuit of his claim. It questioned the failure of the Applicant to leave Mauritania earlier, notwithstanding that he remained very young when he finally took the initiative to flee. The RPD found the Applicant’s testimony “…to be very vague about his knowledge of a [political] party in which he claims current membership.” On the same issue, the RPD wrote:
I found the claimant’s testimony to be inconsistent with the profile he alleged for himself, as being currently [a] member of the AC till today and that he was still in touch with party supporters, since he has been in Canada. I find it implausible that he would not have known about the legal status of the APP. I found his vague testimony to undermine his credibility.
[9] The RPD concluded:
After reviewing all of the evidence adduced, I find that the claimant has failed to establish the central factual elements of his claim, on a balance of probabilities, with credible and trustworthy evidence. I do not believe the claimant was arrested in his country, as he alleges. I do not believe that he was abused or tortured by the police, as he alleged. I do not find his actions in his country to be consistent with the abuse he alleged that he suffered. I do not believe he was an active member or had the profile he alleged in the AC. In short, I do not believe he left his country for the reasons he alleged.
THE ISSUES
[10] In the memorandum of argument filed on behalf of the Applicant, counsel described the issues on this application for judicial review in the following terms:
1. Did the Board fail to consider Guideline 3: Child Refugee Claimants – Procedural and Evidentiary Issues, Guidelines issued by the Chairperson of the Immigration and Refugee Board in considering the claimant’s testimony and in assessing the claimant’s credibility?
2. Is the Board under a positive obligation to assess a minor refugee claimant’s personal circumstances? Did the Board fail to adequately consider the Applicant’s personal circumstances?
3. Did the Board fail to consider relevant, objective third party country condition evidence, corroborative of the claimant’s fear in returning to Mauritania?
4. Did the Board misconstrue or fail to consider evidence properly before it?
[11] At hearing, counsel for the Applicant essentially condensed the foregoing issues into two, combining the first two issues quoted above into one and the third and fourth quoted issues into a second single issue. To paraphrase the restated issues, the first arose out of the undisputed fact that the Applicant was a minor at all times while he remained in Mauritania, remained a minor when he arrived in Canada and when he filed his Convention refugee claim and yet the RPD, the Applicant alleges, failed to have regard to Guideline 3 and failed to treat the Applicant as required by that Guideline in assessing the evidence before it. I will deal with this issue in two parts: first, the pre-hearing process and the opening of the hearing; and second, the conduct of the hearing and in particular, the sensitivity of the RPD to the Applicant’s testimony. The second issue leading to a reviewable error, it was alleged, arose out of the failure by the RPD to properly consider and evaluate the totality of the evidence before it and of the misconstruction by it, or misevaluation, of
the evidence that it did consider.
[12] No issue of procedural fairness was raised before the Court.
[13] Although not raised by counsel, as with all applications for judicial review, the appropriate standard of review arises and was raised by the Court.
SUBMISSIONS AND ANALYSIS
Standard of Review
[14] When questioned by the Court, counsel were in agreement that what is at issue on this application for judicial review is the identification, consideration and analysis of the totality of the evidence before the RPD and that the appropriate standard of review in such circumstances is patent unreasonableness.
[15] In Nahimana v. Canada (Minister of Citizenship and Immigration)[1], cited on behalf of the Applicant, my colleague Justice Shore had before him an application for judicial review of a decision of the RPD where the principal applicant was a minor when she fled her country of origin and, as here, was still a minor when she entered Canada. Citing Aguebor v. Canada (Minister of Employment and Immigration)[2], my colleague wrote at paragraph 16 of his reasons:
The reasons of the Board are essentially based on its assessment of the credibility of Ms. Nahimana’s evidence. Credibility findings of the Board are entitled to the highest degree of deference. The standard of review for findings of credibility is that of patent unreasonableness. …
My colleague reached the foregoing conclusion, notwithstanding that, as here, the principal
Applicant was a minor when she fled her country of origin and was still a minor when she entered
Canada.
[16] I find nothing on the evidence before the RPD in this matter that would lead me to reach a different conclusion as to the appropriate standard of review of the factual findings of the RPD.
[17] In Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92[3], Justice Major, for the majority, wrote at paragraph 18 of his reasons:
…A decision of a specialized tribunal empowered by a policy-laden statute, where the nature of the question falls squarely within its relative expertise and where that decision is protected by a full privative clause, demonstrates circumstances calling for the patent unreasonableness standard. By its nature, the application of patent unreasonableness will be rare. A definition of patently unreasonable is difficult, but it may be said the result must almost border on the absurd. …
From the foregoing, I am satisfied that it is clear that the patent unreasonableness standard requires that very substantial deference be paid to the decision, here of the RPD, a “…specialized tribunal empowered by a policy-laden statute…”. I am satisfied that the issues here before the Court, the “…nature of the question…” falls squarely within the RPD’s “…relative expertise” notwithstanding that its decisions are not protected by a full privative clause.
[18] At paragraph 41 of the same decision, Justice LeBel, for the minority, citing Canadian
Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation[4] wrote that “…a decision will only be patently unreasonable if it “cannot be rationally supported by the relevant legislation’”’.
[19] Thus, on this application for judicial review, the onus on the Applicant is a very heavy one.
Guideline 3 – The Pre-hearing Process and the Opening of the Hearing
[20] Guideline 3, entitled Child Refugee Claimants, Procedural and Evidentiary Issues[5] provides under the headings “Procedural Issues” and “General Principle”:
In determining the procedure to be followed when considering the refugee claim of a child, the CRDD [now the RPD] should give primary consideration to the “best interests of the child”.
The “best interests of the child” principle has been recognized by the international community as a fundamental human right of a child. In the context of these Guidelines, this right applies to the process to be followed by the CRDD. The question to be asked when determining the appropriate process for the claim of a child is “what procedure is in the best interests of this child?” With respect to the merits of the child’s claim all of the elements of the Convention refugee definition must be satisfied.
The phrase “best interests of the child” is a broad term and the interpretation to be given to it will depend on the circumstances of each case. There are many factors which may affect the best interests of the child, such as the age, gender, cultural background and past experiences of the child, and this multitude of factors makes a precise definition of the “best interests” principle difficult.
[footnotes omitted]
[21] The Guideline goes on to deal with appointment of a “designated representative”. On the
facts of this matter, the RPD inquired of the Applicant’s counsel whether or not it would be appropriate to designate a representative for the Applicant. Counsel responded that it would be appropriate and identified a potential designated representative, a person not related to the Applicant. Nothing further was done. No individual was designated as a representative for the Applicant and, according to the Tribunal record, the issue was never followed up by counsel for the Applicant.
[22] It was not in dispute before the Court, that, when the Applicant arrived in Canada, he was an “unaccompanied child” within the contemplation of the Guideline. The Guideline provides that: such children should be identified as soon as possible by the Registry staff of the RPD; a panel and Refugee Claims Officer should be assigned to the claim and their assignment should, to the extent possible, continue until the completion of the claim; the claim should be given scheduling and processing priority; a designated representative for the child should be appointed as soon as possible; a pre-hearing conference should be scheduled shortly after the filing of the child’s Personal Information Form; and finally:
In determining what evidence the child is able to provide and the best way to elicit this evidence, the panel should consider, in addition to any other relevant factors, the following: the age and mental development of the child both at the time of the hearing and at the time of the events about which they might have information; the capacity of the child to recall past events and the time that has elapsed since the events; and the capacity of the child to communicate his or her experience.
[23] In this matter, once again it was not in dispute that the Applicant, at the time he came to Canada, was reasonably well educated and within months of his eighteenth (18th) birthday. A review of the transcript indicates that, during his hearing, he was reasonably articulate. Further, it was not in dispute that he was, throughout the greater part of the interval between the time of filing his claim and the time of his hearing, represented by counsel. He certainly was represented by counsel at his hearing.
[24] While it is indeed unfortunate on the facts of this matter, particularly the facts that the Applicant was a child when the events that he alleged to be persecutory occurred in Mauritania and that he was an unaccompanied child when he arrived in Canada, the Guideline was not applied to his claim, I am satisfied that the following exchange at the opening of the hearing of the Applicant’s claim is determinative on this issue:
…by the presiding member to the applicant:
Q. Sir, tell me if you recognize the document your lawyer is showing you?
A. Yes, for sure.
Q. Tell me how the document [the applicant’s Personal Information Form] was completed please, sir?
A. I tried to be the most coherent possible.
Q. So you completed the form yourself?
A.. Absolutely.
- Okay
Q. You’re familiar with all of the contents of the document?
A. Yes, sir.
- Okay
Q. And if you look at page 13 of the document, there is a signature on page 13. Is that your signature?
A. Yes, sir.
Q. The document says that you are able to read French and that you understand the document as it is written?
A. Yes, sir.
Q. That the information is complete, true and correct?
A. Yes, sir.
Q. And you understand that the information has the same force and effect as if you made it under oath?
A. Yes, sir.
- Okay. Thank you.
Q. Are you taking any medication today, sir, that I need to know about?
A. No.
Q. Do you have any medical condition that might impede your ability to testify that I should be aware of?
A. No.
- Okay. So you will be asked questions today and there’s a few things you need to keep in mind. First, you need to speak up, and I’m not sure about the positioning of that microphone, but every once in a while it… If you do not understand a question, it is your responsibility to say so at the time. If you do not say you don’t understand a question, I’ll assume you did and I will accept your answer as given. And this is important for a couple…I’m sorry, if there is something specific you’re not clear on you should specify what it is you’re not clear on. This is important for two reasons.
First, since my primary role today is to understand your testimony, if you’re answering questions you don’t understand, we will both have a problem. And second, if an hour from now you answer a question that doesn’t seem consistent with something you’ve said earlier, I will not accept as satisfactory an explanation being that the difference is because you didn’t understand what you had been asked earlier.
Q. Do you have any question about what we have done so far, sir?
A. No.
Q. Okay, are you ready to begin testimony?
A. Yes, sir.
- Okay.
By presiding member (to counsel)
Q. Counsel, we’ve done the administrative responsibilities and we’re ready to begin. Is there anything you think that I’ve left out that we should discuss before we begin testimony?
A. No, sir. We’re ready to proceed.[6]
…
[25] The presiding member of the RPD was thorough in ensuring that both the Applicant and his counsel at hearing were ready to proceed and had no objections to the process before the RPD, to that time, that they wanted to raise. In particular, they were given full opportunity to raise failure to fully comply with the Guideline. In light of the foregoing, I am satisfied that the Applicant and his counsel waived any procedural defect in the process leading to the hearing before the RPD, including compliance with the Guideline.
Guideline 3 – Alleged Failure of the RPD to be Sensitive Throughout the Hearing Before It to the Age of the Applicant During the Period of the Alleged Persecutory Treatment in Mauritania, to His Arrival in Canada as an Unaccompanied Child and to His Age, Nineteen (19), at the Time of His Hearing
[26] Having considered the arguments of counsel for the Applicant at hearing, and having again reviewed the transcript in detail following the hearing, I am satisfied that the presiding member was sensitive to the particular circumstances of the Applicant throughout the hearing of his claim. Further, having again reviewed the reasons for decision of the presiding member, I find no basis on which to conclude that the presiding member was less than fully sensitive to the responses at hearing of the Applicant, where those responses related to events that occurred when the Applicant was a child. No objection was taken during hearing, by counsel for the Applicant, to questioning by the presiding member. I am satisfied that no objection was warranted.
[27] The principle concerns identified by the presiding member in his reasons related to the Applicant’s vagueness at hearing, conflicting testimony in relation to what he had recorded in his Personal Information Form and his lack of diligence, after his arrival in Canada, in pursuing reliable corroborative evidence for his claim. I am satisfied that these concerns on behalf of the presiding member were reasonably open to him, taking into account that the Applicant had counsel throughout the greater part of the time from his arrival in Canada to and throughout the hearing, and particularly against the standard of review of patent unreasonableness.
Failure to Consider the Totality of the Evidence
[28] In the third last paragraph of his reasons for decision herein, the presiding member of the RPD wrote:
After reviewing all of the evidence adduced, I find that the claimant has failed to establish the central factual elements of his claim, on a balance of probabilities, with credible and trustworthy evidence. I do not believe the claimant was arrested in his country, as he alleges. I do not believe that he was abused or tortured by the police, as he alleged. I do not find his actions in his country to be consistent with the abuse he alleged that he suffered. I do not believe he was an active member or had the profile he alleged in the AC. In short, I do not believe he left his country for the reasons he alleged.
[emphasis added]
[29] Counsel for the Applicant urged that the RPD erred in a reviewable manner in failing to consider country conditions documentation, relating to Mauritania, that was before it. Counsel urged that such documentation provided substantial support to the Applicant’s story of ill treatment, particularly at the hands of the police in Mauritania. As noted in the foregoing quotation, the presiding member indicates that he reviewed all of the evidence that was before him. In the last analysis, he determined not to believe the evidence of the Applicant himself. In such circumstances, country conditions documentary evidence, whatever it might say about the unsatisfactory country conditions in Mauritania at large, could not have aided the Applicant unless one were to accept that all young black Muslim males from the Soninke ethnic group in Mauritania were, at the relevant time, Convention refugees or persons entitled to like protection in Canada. There was no basis before the RPD on which such a conclusion could be reached.
[30] I cannot conclude that the RPD’s failure to summarize the burden of the country conditions documentation before it amounted to reviewable error, particularly, once again, against a standard of review of patent unreasonableness.
CONCLUSON
[31] For the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A QUESTION
[32] When advised at the close of the hearing of this application for judicial review that the application would be dismissed, counsel for the Applicant recommended certification of the following question:
Did the Refugee Protection Division err in law if it ignores or refuses to consider or apply the best interests of the child as enunciated in Refugee Protection Division Guideline 3, when the claimant suffered persecution as a minor, arrived in Canada as an unaccompanied minor, and claimed protection as a minor, but reached the age of majority prior to the date of the hearing?
Restated – do the principles contained within Guideline 3 with respect to eliciting evidence and assessing credibility apply for minors who reach the age of majority
prior to the date of the hearing?
[all as submitted in writing]
[33] Counsel for the Respondent urges against certification of the question proposed by counsel for the Applicant on the ground that the proposed question would not be determinative on an appeal herein.[7] As noted by counsel for the Respondent, the Applicant was represented by counsel from at least as early as the 3rd of November, 2004 and the Applicant became an adult on the 3rd of December, 2004. The RPD reached its conclusion based on a determination that the Applicant failed to establish his claim, on a balance of probabilities, with credible and trustworthy evidence. No amount of sensitivity to the Applicant and to his “best interests” would have altered the RPD’s
conclusion in this regard. In the result, the question proposed simply would not be determinative on an appeal from this decision.
[34] In the result, no question will be certified.
“Frederick E. Gibson”
JUDGE
Ottawa, Ontario
March 28, 2007
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4625-06
STYLE OF CAUSE: CHEIKHNA DIAGANA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
|
Mr. Raj Sharma
|
|
|
Ms. Camille Audain
|
SOLICITORS OF RECORD:
|
Caron & Partners LLP Calgary, Alberta
|
|
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John H. Sims, Q.C. Deputy Attorney General of Canada Edmonton, Alberta
|
[1] [2006] F.C.J. No. 219 (QL), February 14, 2006.
[2] [1993] F.C.J. No.732 (QL), (1993), 160 N.R. 315 (F.C.A.).
[3] [2004] 1 S.C.R. 609 (not cited before the Court).
[4] [1979] 2 S.C.R. 227 at page 237.
[5] Issued by the Chairperson of the RPD pursuant to subsection 65(3) of the Immigration Act effective the 30th of September, 1996.
[6] Tribunal Record, pages 491 to 493.
[7] Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.F. 4 (F.C.A.).