Ottawa, Ontario, February 7, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
NOËL J.
[1] This is an application for judicial review brought under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision of the Refugee Protection Division (“RPD”) dated May 25, 2005. The RPD dismissed the claim for refugee protection made by Thierno Habib Balde (“applicant”).
THE FACTS
[2] The applicant is a citizen of Guinea and is a Muslim. He alleged the following facts. On May 15, 1998, he married a Christian woman. He claimed that his problems in this country really started when his daughter was born in June 2000. Being married to a Christian woman, he progressively became integrated into this minority community of the city of Labé, which according to him is 98.5% Muslim. One Sunday in September 2003, the applicant claims he returned home with some guests. Family members, including his uncle, who is the patriarch of the family and very influential in the country, went to the applicant’s home, drove the applicant’s guests from the home and then savagely beat the applicant. After this event, the applicant lost all the contracts he had in his local area. In June 2004, the applicant’s wife was forced to leave the couple’s home for Conakry, and the applicant’s uncle decided that his nephew should marry the wife of his brother who had died of AIDS. In November 2004, the applicant went into hiding and learned that three of his colleagues had been arrested. On December 16, 2004, the applicant left Guinea, arriving in Canada after having spent three days in New York. He applied for refugee protection on December 21, 2004.
IMPUGNED DECISION
[3] The decision rendered by the RPD was based on the applicant’s statements at the hearing, which indicated, according to the RPD, that the applicant was not afraid of being persecuted:
- He stated that he did not apply for refugee status in the United States, preferring Canada for linguistic reasons and work opportunities;
- He stated that, being a Muslim, he would not be accepted in the United States;
- He stated that he chose Canada because of the quality of our health care;
- He said he liked the friendly welcome he received in Canada.
The RPD specified that it had no objection to a person testifying in this manner, but it nevertheless had doubts about the applicant’s testimony.
[4] The RPD concluded the applicant had no credibility for the following reasons:
- It was not credible that the applicant’s problems began in 2003, as he was married in 1998 and his daughter was born in 2000;
- The RPD considered there was a contradiction in connection with the applicant’s Personal Information Form (“PIF”) and the events of September 2003;
- The applicant gave contradictory versions as to what he did after September 2004;
- Concerning this contradiction, “[i]t was obvious that the claimant was giving improvised responses”.
- Considering the applicant transited through the United States before coming to Canada, he could have applied for refugee status there instead of in Canada.
[5] The RPD concluded by finding that the applicant did not submit any evidence of his marriage.
ANALYSIS
[6] The standard of review applicable to questions of fact decided by the RPD is that of patent unreasonableness (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 39, at paragraphs 39 to 43; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, at paragraph 4). After having heard the submissions of the parties, I come to the conclusion that the RPD made errors of fact, which taken together warrant allowing the application for judicial review.
[7] First of all, the RPD wrote that no evidence had been submitted to show the applicant was married to Hélène Barry. However, the RPD had Exhibit P-4, entitled [translation] “Declaration of Intent to Contract a Mixed Marriage” and photographs of the marriage and birth certificates. This seems to show that the RPD did not examine all the evidence or neglected part of it. If the evidence was dismissed or considered unreliable, the RPD should have said so instead of saying that there was no evidence on record. The conclusion reached by the RPD on this point seems to me to be significant. Such a conclusion cannot do otherwise than influence the person called upon to render a decision in the assessment of the rest of the evidence. If there had not been a mixed marriage, it is obvious that the analysis of the facts concerning the persecution endured because of this marriage would have been considerably affected.
[8] But there is more than this mistaken conclusion. The excerpt from the RPD’s decision concerning the applicant’s statements about the reasons for which he chose to come to Canada seem contradictory. The RPD first of all analysed the reasons for which it considered the applicant was not credible and ended this analysis, which takes up half of its decision, by saying, “The panel has no objection to this testimony”. However, the RPD used the applicant’s statements concerning Canada to decide that the applicant’s claims for refugee protection were based on strictly economic grounds.
[9] The fact that a person seeks refugee status in one country rather than in another one is not in itself inconsistent with a subjective fear of persecution. For example, every person seeking refugee status who decides to flee his country to come to North America, rather than to Europe, makes a choice that could be based on several grounds, such as linguistic, cultural and economic reasons or because of the reputation, whether warranted or not, that the immigration systems of the receiving countries have in the minds of members of the public. The fact that the applicant chose to come to Canada because employment opportunities were good, because French is spoken in certain parts of the country or because he rightly or wrongly believed that his claim would be dismissed in the United States, does not preclude that he may actually fear persecution (see S. Chuop v. (Minister of Citizenship and Immigration) 2006 FC 37). A distinction must be made between this situation and one in which an applicant candidly admits that the reason for which he left his country was economic or a situation in which the applicant admits that the only reason he does not want to return to his country of origin is because the unemployment rate is high.
[10] I must also add that a stopover of three days in the United States before coming to Canada does not seem to me to be necessarily unacceptable or subject to challenge as such. The RPD drew a negative inference. Such a conclusion does not seem to me to be warranted on the basis of the decision as drafted.
[11] In spite of valiant efforts by counsel for the respondent, the errors of fact raised by counsel for the applicant, which are difficult to explain upon reading the decision, make this decision patently unreasonable. The RPD may have had good reasons for dismissing the applicant’s claim for refugee protection, but these reasons are not found in the decision rendered on June 16, 2005. The sum of all the mistakes, especially the one concerning the marriage, render this decision patently unreasonable. For these reasons, the application for judicial review is allowed, and the case is referred to a differently constituted panel for rehearing.
[12] The parties were invited to submit questions for certification, but no questions were submitted.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review is granted, and the case is referred back to the RPD for rehearing and redetermination by a differently constituted panel.
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4147-05
STYLE OF CAUSE: THIERNO HABIB BALDE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 2, 2006
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Simon Noël
DATED: February 7, 2006
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
MARI-CLAUDE PAQUETTE FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
Montréal, Quebec
JOHN M. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec