Date: 20050117
Docket: IMM-4378-04
Citation: 2005 FC 56
Ottawa, Ontario, January 17, 2005
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
SARA BELAY KELETA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), wherein the Board determined that the applicant was not a Convention refugee or person in need of protection according to sections 96 and 97 of the Act, respectively.
[2] The applicant and her minor daughter, Yohanan Tsegaye Demeke, are citizens of Ethiopia but of Eritrean nationality. They claim to have a well-founded fear of persecution based on their nationality, and membership in a particular social group, people who are victims of domestic violence.
[3] The applicant's husband is a diplomat who was posted in Eritrea in April 1998. He was recalled to Addis Abeba one month later, however. The applicant alleges that her husband started to be abusive upon returning from his stay in Eritrea because of her Eritrean nationality.
[4] In January 2001, the applicant's husband was posted in the Netherlands. The applicant alleges that her husband continued to abuse her verbally and physically. She nevertheless decided to accompany him to the Netherlands. She testified that he threatened to have her deported to Eritrea if she did not obey him. She remained hopeful that her husband's conduct would improve in Holland. It did not. She indicated that he was controlling and that she could not go out of the home.
[5] The applicant alleges that in September 2002, her husband decided to come to Canada to visit friends. He took the applicant and their daughter along. They arrived in Canada on September 5, 2002.
[6] The applicant alleges that on September 8, 2002, she was given permission by her husband to attend church where she recognized an old friend named Emmu. They talked about their respective lives and the applicant communicated her marital problems. Emmu suggested taking the claimant to the immigration office.
[7] The claimant then used the pretext of going to see her friend's home to instead go to the immigration office on September 10, 2002 to inquire about asylum. She attended on September 13, formally made her claim, and went to Emmu's place to avoid encountering her husband.
[8] The applicant's claim for refugee status was rejected by the Board for lack of credibility.
[9] The Board noted that the evidence did not show that she is "truly separated from her husband"; that numerous aspects of the applicant's allegations were vague; and, that several implausibilities support the conclusion that the applicant was not in fact in an abusive relationship. Taking these factors cumulatively, the Board concluded that her story was fabricated.
[10] The Board also concluded that there was no reliable evidence to show that there exists a risk to her life, or a risk of cruel and unusual punishment pursuant to paragraph 97(1)(b) of the Act.
[11] The standard of review governing judicial review of credibility determinations is patent unreasonableness: N'Sungani v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2142 (F.C.)(QL). Patently unreasonable determinations are clearly irrational: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52.
[12] In the present case, the Board's credibility assessment was premised on the aspects of the applicant's claim, which it found implausible. Two aspects in particular figured prominently in the Board's decision: the likely behaviour of a spouse in an abusive relationship, and the lifestyle of a person who is a member of the diplomatic community. The Board found that someone in an abusive relationship would not act as the applicant did, nor would someone who is a wife of a diplomat have the lifestyle she alleged.
[13] In reaching these plausibility conclusions, the Board, in my opinion, failed to exhibit the sensitivity and understanding required by the Gender-Related Persecution Guidelines, and did not comply with its obligation to disclose its intended reliance on specialized knowledge. I find these errors regarding plausibility were the primary basis for the Board's credibility determination and therefore render its decision patently unreasonable, as explained further below.
Gender-Related Persecution Guidelines
[14] Though it is not necessary to explicitly cite the guidelines in the course of its reasons, it is "incumbent on the Board to exhibit a special knowledge of gender persecution and to apply the knowledge in an understanding and sensitive manner when dealing with domestic violence issues": A.Q. v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 834 (F.C.)(QL), citing Newton v. Canada (Minister and Citizenship and Immigration) (2000), 182 F.T.R. 294 (F.C.T.D.), and Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240 (F.C.T.D.).
[15] In other words, substance prevails over form when considering whether the principles in the guidelines were properly applied and thus the fact that the guidelines were mentioned at the outset of the Board's decision in the present application does not preclude a priori an attack on the decision on this basis.
[16] In my view, the findings of the Board to which the applicant refers - the applicant's failure to seek a divorce in Canada or to claim refugee status during the period when she resided in Holland - relate directly to the issue of domestic violence, and thus the guidelines are germane.
[17] The Court in Griffith, supra explained at para. 25 that the Board must give specific reasons for doubting the credibility of an applicant who alleges to have suffered domestic abuse:
If a claimant is not believed, reasons must be given. [See Note 16 below] In the case of credibility findings with respect to women suffering domestic violence, in my opinion, the requirement for reasons becomes specific: the reasons must be responsive to what is known about women in this condition. The Gender Guidelines are, in fact, an effort to implement the professional education needed to accomplish this objective. [See Note 17 below] [footnotes omitted]
[18] Here, the Board cited the applicant's concerns about the cost of getting a divorce to support the conclusion that she did not actually suffer abuse, i.e. her story was fabricated. In my view, however, this demonstrates a measure of insensitivity that is inconsistent with the Board's guidelines. As the applicant points out, it is entirely likely that a refugee claimant new to Canada, would be completely unfamiliar with Canadian family law, how to get a divorce, and whether it might impact on her refugee status claim. In my opinion, these factors as well as concerns over monetary cost are in no way necessarily inconsistent with a woman seeking to escape domestic violence.
[19] Secondly, the applicant submits that the Board's remarks regarding the applicant's inaction in Holland (in terms of seeking refugee status and attending functions within the diplomatic community) also illustrates a failure to apply the guidelines' principles. This overlaps with the concerns above surrounding natural justice and the Board's reliance on its specialized knowledge with respect to the diplomatic community, but suffice it to say that her delay in doing so (over the 18 months she stayed in Holland) is not a valid basis for concluding that she was not enduring abuse from her husband.
[20] In Griffith, supra, the Court hastened to point out that simply because the applicant waited more than five years after her arrival in Canada to claim refugee status did not support a finding to the effect that she did not possess a well-founded fear of persecution. And that in making such a finding, the Board failed to display "the degree of knowledge, understanding and sensitivity required to avoid a finding that a reviewable error has been made". Furthermore, contrary to the circumstances in Griffith, supra, the applicant explained to the Board that she was not able to communicate in the Dutch language, thus intensifying her sense of isolation.
[21] This is a clear example of how the Board failed to meaningfully apply the guidelines in the present case.
Specialized Knowledge
[22] The Board invoked its own specialized knowledge about the lifestyle of a diplomat's wife and the diplomatic community more generally. The transcript from the hearing does not indicate any disclosure by the Board that it would rely on its knowledge concerning these matters. The Board only asked whether the applicant met the wives of other members working at the Ethiopian Embassy in Holland, to which the applicant responded that she attended one reception.
[23] Ordinarily, failing to mention its use of specialized knowledge contrary to the Board's own procedural rules voids the decision. However, as I recently explained in detail, failure to disclose specialized knowledge is not necessarily fatal to the Board's decision: N'Sungani, supra. If "there is no reason to suspect that the specialized knowledge in dispute in any way shaped the Board's credibility findings" (N'Sungani, supra at para. 32) and those findings are otherwise properly made, then the Board's decision can stand notwithstanding a breach of natural justice or procedural fairness.
[24] The norms of diplomatic life, and more particularly of the wife of an Ethiopian diplomat, are "not the sort of information of which judicial notice could be taken in proceedings before a court nor...[of a] general character well known to the Board and to the public" (Hu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 788 at para. 25 (T.D.)(QL)) and therefore constitute specialized knowledge. And the Board invoked this knowledge in the present case to reject the applicant's oral evidence that she did not go outside her home without the company of her husband or his permission, or attend various activities organized which the Board found to be typical in the diplomatic community. The Board flatly asserted that the applicant was free to go outside as she pleased, again in direct contradiction to her testimony, and relied upon this to cast further doubt on the applicant's credibility.
[25] In my view, this finding was perverse in view of the fact that the applicant was not afforded an opportunity to respond to the Board's subjective perception of diplomatic life.
[26] It seems moreover that the Board's understanding of how a diplomat works and lives influenced its credibility assessment of the applicant more broadly. The Board noted that the relocation of diplomats is commonplace, and therefore to suggest that the applicant's husband was moved outside of Ethiopia due to his wife's Eritrean nationality, was not credible. In short, as in Hu, supra, it is difficult to discern how much influence the Board's knowledge of diplomatic life had on its credibility findings, therefore the reliance on this specialized knowledge was highly problematic.
[27] These two troubling aspects of the Board's decision informed the implausibility findings and the Board's assessment of the applicant's overall credibility, thus rendering its decision patently unreasonable.
[28] For all these reasons, the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
O R D E R
THIS COURT ORDERS THAT
[1] The application for judicial review is allowed.
[2] The matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4378-04
STYLE OF CAUSE: SARA BELAY KELETA -and-
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JANUARY 13, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
APPEARANCES:
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FOR THE APPLICANT |
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Ottawa |
FOR THE APPLICANT |
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Deputy Attorney General of Canada Ottawa |
FOR THE RESPONDENT |