OTTAWA, Ontario, October 11, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of M. Clive Joakim, a member of the Immigration Refugee Board (“the Panel”) dated October 5, 2005, wherein the Panel held that the applicant was not a Convention refugee pursuant to s. 96 of the IRPA and was not a person in need of protection pursuant to s. 97 of the IRPA.
[2] Mr. Haji Diadama is a 34 year-old citizen of Liberia and claims protection on the grounds of religion and membership in a particular social group. Mr. Diadama is a Mandingo Muslim and claims his parents are forcing him into a marriage not of his choosing. Mr. Diadama has a Christian girlfriend – Ms. Nyima Konteh - and his parents are not supporters of inter-faith relationships. In 1999, Mr. Diadama’s parents brought a Muslim woman – Ms. Nato Camara – to his house telling him that he must marry her, and he must have sexual relations with her to prove his manhood. When he refused, Mr. Diadama alleges that his family beat him, breaking his wrist and thumb.
[3] Mr. Diadama broke of relations with his Christian girlfriend, Ms. Konteh, in 2000. During 2000-2003 his family did not harass him regarding relationships. However, in 2004, Mr. Diadama started seeing Ms. Konteh again. In May 2004, Mr. Diadama attended a Christian Church with Ms. Konteh to witness her sister’s marriage. Upon leaving the Church, Mr. Diadama was seen by members of the Muslim community who believed that he was going to convert to Christianity and later assaulted him at his house breaking his nose. Mr. Diadama stopped the assault by agreeing to marry a Muslim woman of his parents choosing. Mr. Diadama did not go to the police as he feared that the police would not help him and may even assist in torturing him. Mr. Diadama fled Liberia before his bride-to-be could be brought to him, fearing that if he refused to marry her again he would be killed.
[4] Mr. Diadama came to Canada in October 2004, after having travelled through Gambia, Senegal, France, Mexico and the United States. He did not file a refugee claim in any of these countries.
[5] The Panel found the applicant was not a Convention Refugee, as there was not a serious risk to his life or a risk of him being subjected to cruel or unusual treatment or torture, for the following reasons.
[6] The Panel accepted country condition reports that provided evidence that the relations between Muslims and Christians in Liberia are generally considered “good”.
[7] Also, the Panel examined documentary evidence and could not find support for the proposition that arranged marriages were prevalent in Liberia. This omission in the Liberian documentary evidence was particularly apparent given that other countries in West Africa – i.e. Nigeria and Ghana – expressly had discussions of forced marriages in their country condition reports. Also, in those countries where forced marriages do occur, it is typically women being forced into marriage, and not men.
[8] The Panel was clear that they accepted the applicant’s testimony as credible, in that there were no internal inconsistencies with his testimony. However, the Panel did impugn the applicants credibility on the basis that there was no documentary evidence presented that could support the particulars of his claim, including country condition reports. The Panel noted that the applicant was represented by counsel and had sufficient time to obtain supporting documentation.
[9] The only corroborative evidence provided by the applicant was a letter from a friend in Liberia discussing the applicant’s situation. However, the Panel found this letter to be of no probative value as it appeared to have been written with the purpose of backing up the applicant’s story. The Panel came to this conclusion since the letter explained things the applicant was already aware of, implying that there had previously been contact between the applicant and the author of the letter.
[10] Given the lack of documentary support, and the silence of the country condition reports with respect to arranged marriages [particularly since the other countries expressly discussed this topic where prevalent] the Panel found the applicants story not credible. The Panel found that there were appropriate circumstances to rebut the presumption of truthfulness of the applicant’s testimony.
[11] Consequently, the Panel determined the applicant was not at risk if he returned to Liberia.
[12] The relevant sections of the Immigration Refugee Protection Act (IRPA) provide as follows:
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96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themselves of the protection of that country; (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country;
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
96 A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : (a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; ou
(b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes – sauf celles infligées au mépris des normes internationales – et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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[13] The applicant points out that the Panel’s basis for a negative determination of credibility is not based on internal inconsistencies, but rather, on a lack of documentation to support the applicant’s factual assertions. The applicant contends that this is not rational as there is a presumption of truth in a claimant’s testimony and a lack of documentation alone cannot overcome this presumption.
[14] Also, the applicant takes issue with the fact that the Panel relied on country condition reports [of Nigeria and Ghana to show that these countries have arranged marriages] in support of its finding that Liberia does not have arranged marriages since the Liberian country conditions are silent on this point. The applicant asserts that this analysis does not consider the different religions, politics, or reliability of the human rights reports of these different countries, and therefore the Panel cannot draw the inference it did.
[15] The respondent submits that the Panel did not commit any reviewable error in determining that the applicant was not a Convention refugee.
[16] The respondent asserts that the Panel was correct in determining that there was no real risk to the applicant. It was entirely reasonable for the Panel to have expected the country condition reports of Liberia to include reference to forced marriage and problems of persecution relating to inter-faith marriages in the Liberian culture. The Panel noted that the Liberian country condition reports discuss freedom of religion, discrimination, female genital mutilation by some societies and differential treatment of insular groups, - i.e. women and homosexuals.
[17] Thus, given the array of topics covered in the Liberia country conditions, it is not patently unreasonable for the Panel to have expected to find information regarding forced marriages, if it were indeed prevalent in Liberia. This is particularly true when other nation’s country condition reports expressly discuss forced marriage and pressure that may result from non-compliance with forced marriages.
[18] I agree with the respondent. It is not unreasonable to assume that if a person was being forced into a marriage, the denial of which will result in physical harm or death, and cannot seek help from the authorities, that this practice would be present in an impartial country condition report. I would suggest that since the applicant is a man being forced to marry, [which is likely rarer than forcing women to marry] this also militates towards forced marriage being the type of thing that would be mentioned in country condition reports if it existed.
[19] I do not understand how the applicants can say that the panel’s use of the Nigerian and Ghana country condition reports is unreasonable. All three nations are in the same geographical region, and it seems perfectly logical to me that if a concern is addressed in one nations report, it would be addressed in the others if the same condition existed. While true there may be different cultures and religions amongst these three countries, I do not see how this supports the applicant’s position that the Liberian country condition report is not accurate with respect to it’s omission as to forced marriages.
[20] The respondent relies on Attia v. Canada, 2005 FC 690 for the proposition that the Panel is entitled to draw a negative inference from a lack of information in documentation that might reasonably be expected to be mentioned in the circumstances.
[21] In Attia, the Egyptian claimant alleged that he was abducted and forced to convert to Islam to marry an Islamic woman. There was no documentary evidence – including in the country condition reports - supporting the proposition that this type of thing would occur in Egypt. Madam Justice Layden-Stevenson held the Panel did not do a “selective reading” of the country conditions and the Panel’s negative credibility finding was not unreasonable. In this case, Justice Layden-Stevenson accepted that the lack of supporting documentary evidence was sufficient to rebut the presumption of truthfulness of the claimant.
[22] In my opinion, it is very hard to distinguish Attia from the present case – both legally and factually - which effectively disposes of this judicial review, unless one disagrees with the conclusion of Attia.
[23] Also, Mr. Justice Hugessen also came to the same conclusion in Adu v. Canada, [1995] F.C.J. No. 114, where, despite the claimant alleging there was a law he was being persecuted under, the claimant could not bring forward evidence of the laws existence. Justice Hugessen held that if the fact alleged existed, it would be reasonable to have documentary evidence supporting the allegation. A failure of the documentary evidence to mention what one would normally expect it to mention may rebut the presumption of truthfulness.
[24] The also relies on King v. Canada, [2003] FC 1120 to support the proposition that an absence of corroborating documents cannot be used for a negative credibility finding. In King, the Panel erred by drawing a negative inference as to the claimants credibility as the claimant did not show documentation that women are abducted and forced to undergo genital mutilation. However, the Court held there was ample evidence –via country condition reports - that female genital mutilation occurred in Liberia and there was no need for the Panel to have required specific documentary evidence of the exact situation the claimant was fearful of – i.e. being abducted. It was enough that the country condition reports demonstrated that female genital mutilation occurs; there is no need to provide documentation as to the exact method in which the torture will occur in each situation. That would be too high of burden on the claimant.
[25] However, in my opinion, in the facts at bar, the missing documentation goes to the very root of the claim –whether or not men are forced into marriage in Liberia - and thus the present case is akin to Attia and Adu where one might reasonable expect the documentation to mention the issue in question.
[26] I am of the opinion that the Panel was entitled to draw a negative inference as to the applicant’s credibility on these facts. I would suggest that that the fact that the Liberian country condition reports does not address forced marriages – particularly those of men – is strong evidence that this is not a common practice in Liberia. The fact that other Western African nations –Nigeria and Ghana – have the issue of forced marriage specifically addressed in their country condition reports only highlights the logic used by the Panel in this case.
[27] Given the above, I cannot see how the adverse finding of credibility, and consequently the denial of refugee status, could be considered a patently unreasonable finding.
JUDGMENT
This application for judicial review is dismissed.
Deputy Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6469-05
STYLE OF CAUSE: HAJI DIADAMA v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 5, 2006
REASONS FOR JUDGMENT BY: Rouleau, D.J.
APPEARANCES BY:
Ronald Poulton
(416) 862-0000 for the Applicant
Marianne Zoric
(416) 954-8046 for the Respondent
SOLICITORS OF RECORD
MAMANN & ASSOCIATES
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DEPARTMENT OF JUSTICE
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