Date: 20010529
Docket: IMM-3696-00
Neutral citation: 2001 FCT 538
Between:
SIDONIE LORINCE DONKENG MANEFO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act (the Act), of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated June 21, 2000, whereby Ms. Sidonie Lorince Donkeng Manefo (the "applicant") was found not to be a Convention Refugee, given the absence of a link between her alleged fear and one of the five Convention grounds.
FACTS
[2] The applicant alleged the following facts: she was born in Cameroon in 1976; she is a member of the Bamilike ethnic group; she married a Nigerian and is therefore both Cameroonian by birth and Nigerian by marriage; she was married on December 28, 1994, against the will of her father who swore to disown her.
[3] The applicant claimed that from 1992 to1999, she pursued her studies in Nigeria and that towards the end of that period she was studying to complete her master's degree.
[4] In her PIF, the applicant stated that Bayelsa State in Nigeria has huge oil reserves that are exported by foreign operating companies. According to the operating terms agreed upon by the companies, governments and the natives, those companies were entrusted with the development of hospital, school and road infrastructures. Failure by the operating companies to comply with those terms gave rise to accusations that the agreements had been breached and that fishing grounds in the Odi village had been polluted.
[5] The applicant claimed that her husband had acted as an advisor for the Ijaw Youth Congress ("Ijaw"), the group that had made the accusations of the breach of the agreements. In order to denounce those breaches, marches were allegedly held. On the
second march, a quarrel broke out between police officers and young Ijaw members. The group was already preparing for another march when the town was shelled by armed forces.
[6] The applicant alleged that systematic shelling of the town resulted in hundreds of deaths. She also claimed that one October morning in 1999, she found two of her brothers-in-law dead. Her neighbour apparently notified her that her children and husband had fled to the bush during the army's attack.
[7] After she heard this, the applicant apparently went back home to collect some money before heading to her parents-in-law. However, when she reached her home, she stated that army members came to question her regarding her husband's hiding place, and that they raped her when she was unable to answer them.
[8] She claimed that after the army members who raped her had left, she went to see her in-laws to tell them what had happened. According to the applicant, her in-laws told her that they were aware of what had happened. Moreover, they presumably told her that ever since she married their son, she had brought them nothing but bad luck, and that they vowed to kill her even if she returned to Cameroon.
[9] The applicant claimed to have returned to Cameroon where her father scolded her yet again. The applicant's mother told her she could not stay with them but found her a place to live temporarily until the mother was able to obtain travel documents to send her daughter to Canada.
[10] The applicant claimed that she left Cameroon to travel to Canada on
December 15, 1999, that she arrived on December 17 and that she claimed refugee status on December 20, 1999.
[11] She stated that she feared returning to Nigeria because of her in-laws and that she feared returning to Cameroon because of her father; moreover, that as a member of the Bamilike ethnic group, she would be unable to find a job.
PANEL'S DECISION
[12] The panel determined that the applicant is not a Convention refugee since her fear of her in-laws if she returned to Nigeria is not related to one of the grounds in the Convention. Furthermore, since she was a citizen of Cameroon, she would be able to rebuild her life in that country. As for her fear of her father if she returned there, it is also not linked to one of the Convention grounds. The panel further determined that the applicant's fear of persecution based on her membership in the Bamilike ethnic group
was not supported by the documentary evidence, which discussed only the issue of
discrimination against members of that group.
[13] Furthermore, the panel determined that the applicant's refugee claim had no credible basis, as defined in subsection 69.1(9.1) of the Act.
ISSUES
[14] Did the panel err by determining that the applicant is not a refugee because her fear is not related to one of the Convention grounds? Did the panel err by determining that the applicant's refugee claim had no credible basis?
PARTIES' SUBMISSIONS
Applicant
[15] The applicant claimed that the panel failed to consider all of the evidence and therefore committed a reviewable error. She argued that the panel disregarded the psychologist's report and the doctor's letter stating that the applicant had suffered atrocities.
[16] The applicant submitted that the panel failed to take into account the documentary evidence stating that tensions between Nigeria and Cameroon exist, tensions that would prevent her from returning to Cameroon without being persecuted by the Cameroonian army given her Nigerian citizenship.
[17] She also claimed that the panel failed to consider documentary evidence stating that individuals directly or indirectly linked to the Ijaw are in grave danger.
[18] The applicant stated that since the panel had not questioned her credibility or the facts she had put forward, it committed an error when it failed to explain why it disregarded documentary evidence on Nigeria and Cameroon that substantiated her testimony.
[19] The applicant further argued that, contrary to the panel's contention, it had never been agreed that if she were to recount her story, she would repeat word for word the narrative she had written in response to question 37 in her PIF.
[20] She submitted that the panel erred in identifying the ground for persecution when it found that she feared her in-laws while, in fact, she feared Nigeria's armed forces who had raped her and killed her brothers-in-law. Her fear of persecution was allegedly based on the fact that her husband was an important member of the Ijaw. The respondent agreed with that contention. Therefore, the panel committed an error in identifying the ground for persecution put forward by the applicant regarding Nigeria.
[21] The applicant claimed that the panel erred by overlooking her rape and the murder of her brothers-in-law by the same armed forces as well as the disappearance of her husband and children.
[22] According to the applicant, the panel misunderstood the most crucial element of her claim by concluding that she feared her father. In fact, she claimed to fear both her father and the army in Cameroon because of her marriage to a man from Nigeria, which was very badly perceived given the tensions between those two countries. Her fear therefore is based on politics, which is linked to a Convention ground.
[23] The applicant further alleged that the panel made a error by determining that there were no compelling reasons why she should not be returned to Nigeria.
[24] Finally, the applicant submitted that the decision to return her to her country violated section 12 of the Charter; moreover, that the Charter should be interpreted in light of Canada's international duties, more specifically, article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Respondent
[25] The respondent submitted that to be granted refugee status, the claimant had to establish a well-founded fear of persecution based on one of the five Convention grounds in both of the countries she purported to have citizenship.
[26] The respondent claimed that even if the panel's finding regarding Nigeria was unreasonable, the applicant nonetheless had to establish that the panel's finding regarding Cameroon was patently unreasonable in order to obtain status.
[27] According to the respondent, the panel's conclusions were justified given the evidence. As for the applicant's fear of her father, the panel could not be satisfied that his intention was to disown his daughter since he had consented to her marriage, as stated in the Notice of Marriage produced on page 21 of the applicant's record. Furthermore, the panel could not be persuaded that the applicant's father had been fired from his job as a result of his daughter's marriage since the applicant had failed to mention this point in her PIF.
[28] The respondent further submitted that since the documentary evidence simply mentioned that members of the Bamilike group might be subjected to discrimination, it did not support the applicant's claims that her ethnic group suffered persecution.
[29] The respondent argued that the applicant had not established whatsoever that the panel's findings were patently unreasonable. The applicant failed to mention in her affidavit that she had testified concerning the basis for her fear with respect to her mixed marriage; furthermore, the hearing transcript did not support the applicant's claims in any way concerning that fear.
[30] The respondent also stated that the applicant failed to substantiate her claims; consequently, there are no grounds for this Court's intervention.
[31] The respondent also submitted that the panel's finding of no credible basis was made since there was no link to a Convention ground and no objective basis for the applicant's alleged fear. Even though a witness is found credible, the panel must be able to rely on factual evidence to grant refugee status. Panel members must ensure that evidence supporting each of the elements of the Convention refugee definition exists, and that was not the case here.
[32] The respondent argued that the applicant's claims under the Charter and international conventions are premature and should not be dealt with by this Court.
[33] The respondent claimed that since the applicant had never been granted refugee status, she could not have lost such status. Therefore, the issue of compelling reasons why she should not cease to be a Convention refugee under 2(2)(e) of the Act is irrelevant. As a result, since paragraph 2(2)(e) does not apply, the exception found under subsection 2(3) is irrelevant in this case.
[34] Finally, the respondent argued that the applicant failed to prove that she had been adversely affected by the panel's alleged agreement with her that, had she recounted her story, she would have repeated her narrative verbatim. Therefore, the applicant failed to establish a justifiable ground for this Court to intervene.
ORDER SOUGHT
[35] The applicant seeks to have the panel's decision set aside by this Court and have the matter sent back for redetermination before a newly constituted panel.
ANALYSIS
(a) Fear regarding Nigeria
[36] At the hearing, counsel for the respondent acknowledged that the panel had erred when it stated in its decision that the parents-in-law were the applicant's main fear. Having read the hearing transcript, I am satisfied that, even though the applicant claims to fear her in-laws, what she really fears are the Nigerian authorities.
[37] In Mia v. Canada (MCI) [2000], F.C.A. No.120, Madam Justice Tremblay-Lamer stated the following:
First, it is clear from the Convention definition that there be a nexus or link between the harm feared and one of the five grounds of the refugee definition, that is, race, religion, nationality, membership in a social group or political opinion. Without the required exus, the claim for refugee status will fail.
In addition, as stated in recent case-law such as Leon v. MCI and Lara v. MCI, the existence of a nexus between persecutory conduct and a Convention ground is a question of fact, which is clearly within the panel's expertise, and as a result, this Court may only intervene if a decision was made in a perverse or capricious manner or without regard to the material before the panel.
[38] It is important to note that the panel's decision fails to analyze explicitly the applicant's fear of the army. The panel stated that it was not questioning the alleged incidents described by the applicant concerning atrocities she had suffered, even though she testified that the main incident had occurred at an earlier date than what the documentary evidence states. At first glance, this could constitute an error if that failure were unreasonable and adversely affected the claim.
[39] However, I do not believe that this failure had an impact on the outcome of the claim. The panel clearly established that the applicant could rebuild her life in another country. The applicant came to Canada from Cameroon. She claimed to be a citizen of both Nigeria and Cameroon. Since the panel found that the applicant was not a refugee, given the absence of a link between her fear and one of the Convention grounds, and that an internal flight alternative in Cameroon existed, the issue of whether the applicant feared the Nigerian army was moot.
(b) Fear regarding Cameroon
[40] As for her fear of returning to Cameroon, the applicant still failed to discharge her burden of establishing a link between her fear and one of the grounds of the Convention.
[41] When asked during her testimony what she feared in Cameroon, the applicant replied:
[TRANSLATION]
Q. And what exactly do you fear in Cameroon?
A. According to my mother, my father could be extremely . . . she doesn't know how far he would go. Despite my having asked her, she doesn't know how badly he will react. He might even shoot me, she doesn't know, which is why she asked me to leave.
Later on in her testimony, she stated as follows:
[TRANSLATION]
A. What I fear if I returned to Cameroon is my father, based on what
my mother told me.
[42] The applicant's fear of returning to Cameroon is that, having married a Nigerian, she will be perceived as a traitor who can disclose military strategies since her father is a member of the army. However, it should be noted that it was the applicant's father who sent her away to Nigeria to study, despite political problems between the two countries. In my view, if the applicant actually risked persecution as a result of her marriage to a Nigerian, it is unlikely that her father himself would have sent her there to study. After carefully going over all the documents in the file, it seems that the applicant fears her father. Since that fear is not linked to a Convention ground, the panel's conclusion that there is no nexus between the applicant's fear and one of those grounds is not unreasonable.
[43] As for the applicant's fear of being unable to find employment because of her membership in the Bamilike ethnic group, she acknowledged during her testimony that she had not tried to find work since she knew she wouldn't succeed. She stated that without her father's help, she would be unable to find work anywhere in Cameroon. Nonetheless, the applicant failed to establish that: (1) she was unable to find work, and (2) this inability to find work was due to the fact that she is Bamilike. Consequently, the panel was justified in determining that she had not been persecuted as a result of her membership in the Bamilike ethnic group.
(c) The Charter and international conventions
[44] This issue was not discussed at the hearing but was mentioned in the applicant's written submissions.
[45] I agree with the respondent that this argument is premature. In Ithibu v. Canada (MCI), 2001 FCT 288, Blais J. refers to some of the comments I made in an earlier decision when he states:
The present case is an application for judicial review of a Board's decision that the applicant is not a Convention refugee. The case does not deal with the
applicant's deportation and I will refer the applicant to the decision of Teitelbaum J. in Cruz v. Canada (M.C.I.), [1999] F.C.J. No. 1266 (T.D.), where it was stated:
With respect to the Charter issues raised, the decisions
of this Court clearly state that the refusal of a refugee
claim does not give rise to the application of sections 7
and 12 of the Charter, because it is not a removal . . . .
Therefore, it is premature for the applicant to raise
Charter issues in his application for judicial review.
I believe that an application for judicial review of a Board's decision is not the appropriate forum to raise this issue since there is no deportation order before us.
[46] As for the claim that the Charter should be interpreted in light of article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, comments made by Blais J. in Ithibu supra are relevant:
I believe that this case is not the appropriate case to deal with this issue since the applicant has not demonstrated before the Board that he would be subjected to torture.
(d) Compelling reasons
[47] I agree with the respondent's argument on this issue. The facts of this matter are not subject to such an analysis. The issue of "compelling reasons" must be considered only when a person determined to be a Convention refugee risks losing that status (see Corrales v. MCI [1997], F.C.J. No.1283).
(e) No credible basis finding
[48] Since a no credible basis finding has serious and immediate consequences for the applicant, precedents have established that the panel must consider all of the evidence
before making such a finding. InFoyet v. Canada (MCI), [2000] F.C.J. No.1591
(F.C.T.D.),[1] Mr Justice Denault stated:
In my view, before making a no credible basis finding, the panel must always consider all the evidence. A broad interpretation of Sheikh is not consistent with subsection 69.1(9.1) of the Immigration Act.
Certainly, the panel need not expressly evaluate each piece of evidence in its reasons; however, given the significance of the provision at issue which, we would point out, was enacted some years after Sheikh, the context in which Sheikh was decided must be taken into account.... The fact that a panel finds an applicant's testimony not credible does not, de facto, bring subsection 69.1(9.1) of the Immigration Act into play
...
Therefore, in every case, a thorough analysis must be carried out to establish whether the documentary evidence is relevant. If it is, the panel is required to express reasons, having regard to the objective evidence, to explain why subsection 69.1(9.1) of the Immigration Act is applied.
[49] In this case, the documentary evidence states that there is enormous political repression and violence in Nigeria and Cameroon. Those documents point out a number of serious civil and political problems. However, since the applicant failed to establish a link between a Convention ground and her fear of Cameroon, that evidence cannot support her claim and is therefore irrelevant.
[50] The panel made a no credible basis finding since the reasons behind the applicant's fear were not linked to one of the grounds of the Convention and also since the documentary evidence did not substantiate the applicant's claims. In my view, the panel erred since the evidence clearly established that the applicant was very concerned about the political situation.
CONCLUSION
[51] In my opinion, the applicant failed to justify why this Court should intervene. Therefore, this application for judicial review is dismissed.
[52] None of the parties submitted questions for certification.
Max M. Teitelbaum
C.J.F.C.
Ottawa, Ontario
May 29, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3696-00
STYLE OF CAUSE: SIDONIE LORINCE DONKENG MANEFO v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 24, 2001
REASONS FOR ORDER BY TEITELBAUM J.
DATED: May 29, 2001
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Michel Pepin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
Date: 20010529
Docket: IMM-3696-00
OTTAWA, ONTARIO, THE 29th DAY OF MAY 2001
IN THE PRESENCE OF THE HONOURABLE TEITELBAUM J.
Between:
SIDONIE LORINCE DONKENG MANEFO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons set out in the Reasons for Order, the application for judicial review is dismissed.
Max M. Teitelbaum
C.J.F.C.
Certified true translation
Sophie Debbané, LL.B.