Date: 20031028
Docket: IMM-2564-02
Citation: 2003 FC 1256
BETWEEN:
OUSMANE TRAORE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated May 13, 2002, that the applicant is not a Convention refugee.
Background
Introduction
[2] The applicant, Ousmane Traore, is a citizen of Mali, in West Africa.
[3] The applicant states that his parents and his uncle arranged for him to marry his uncle's daughter, with whom he had lived growing up and who he considered a sister. The applicant states that he resisted the marriage and, as a result, his uncle beat him on three separate occasions and threatened to kill him. Because of this, the applicant's mother arranged to send him to Canada to finish high school. He left Mali in August 1998 and came to Canada on a student visa.
[4] The applicant states that he had hoped to return to Mali, but that his uncle continued his threats against him. This prompted the applicant to seek refugee protection in 2000 based on persecution as a member of a particular social group: Malian men from the tribe of Bambara subject to forcibly arranged marriages.
[5] On May 14, 2002, the Board determined the applicant not to be a Convention refugee. This is the judicial review of the Board's decision.
Reasons of the Board
[6] The Board's negative decision was based on the following reasons:
1. Given that the applicant's paternal grandfather was the village chief and did not arrange his parents' marriage, the Board found it implausible that "the betrothal of young men was a strictly adhered to custom in his family or village." The Board also found it implausible that the applicant's uncle, rather than his father, would forcibly arrange the applicant's marriage. In addition, the Board found it implausible that the applicant would know so little about the marriage circumstances of his family, especially in light of the nature of his refugee claim. As a result, the Board drew a negative inference respecting the applicant's credibility.
2. The documentary evidence does not support the applicant's claim that men are subjected to forced marriages; rather, it indicates only that girls are.
3. The applicant submitted an internet editorial in French from the website of the Minister of Culture for Mali and also an apparent translation of that document into English. The Board found that the English translation demonstrated the applicant's attempt to fabricate evidence. The Board placed no weight on the evidence. Furthermore, it found that the applicant's attempt to fabricate evidence undermined his credibility.
[7] The Board concluded as follows:
. . . the panel does not believe the claimant's paternal uncle betrothed him to his daughter at a young age, in accordance with Bambara marriage custom, as is alleged. For the same reasons, the panel does not believe the claimant's paternal uncle physically mistreated him on three occasions because of his refusal to marry his daughter, and threatened to kill him if he returned to Mail and did not proceed with the marriage, as is alleged. The panel finds these allegations to be an attempt by the claimant to embellish his Convention refugee claim.
Applicant's Submissions
[8] The applicant submits that plausibility findings require particular care. Furthermore, he submits that considerable caution is required when assessing the norms and patterns of different cultures. The applicant argues that the Board's plausibility findings were patently unreasonable since they interpreted evidence through their own cultural experience and because there was no documentary evidence to contradict the applicant's statements.
[9] The applicant submits that the Board breached his right to procedural fairness by failing to raise its concerns about the applicant's lack of knowledge regarding his parents' marriage and about the applicant's apparent fabrication of evidence. He submits that a Board must give a claimant an opportunity to clarify evidence and explain apparent implausibilities or contradictions. Further, the Board must afford a claimant the opportunity to address key issues upon which the Board intends to rely.
Respondent's Submissions
[10] The respondent submits that the standard of review applicable to credibility and implausibility findings is patent unreasonableness. It argues that it is not for the Court to substitute its own appreciation of the facts for that of the Board. As long as the Board has based its conclusions on the evidence before it, the Court cannot interfere.
[11] The respondent submits the Board based its credibility and plausibility findings on the evidence before it. It submits that the Board's findings were reasonable. Specifically, the respondent submits that the evidence demonstrates that Mali society is male-dominated and paternalistic and that women are forced into arranged marriages. This, it argues, does not support the applicant's contention that he would be forced into an arranged marriage. The respondent also argues that it was open to the Board to find it implausible that the uncle, rather than the father, would arrange the applicant's marriage.
[12] The respondent submits that the applicant could have explained why he did not know about his parents' marriage but did not. It submits that the issue was clearly brought up during the hearing and that the applicant had an opportunity to fully explain his answers. Furthermore, the respondent argues that the Board's refusal to give any weight to a document that appeared to be improperly translated stands, regardless of the applicant's explanation for the translation.
Applicant's Reply
[13] The applicant submits that, pursuant to the pragmatic and functional approach, the appropriate standard of review is reasonableness simpliciter. He argues that the nature of the decision is only one factor to be taken into account. The applicant argues that since the Board has no particular expertise in assessing plausibility, less deference ought to be owed to credibility findings based on plausibility than credibility findings based on other factors.
[14] The applicant reiterates his submissions that the plausibility findings were unreasonable, and even patently unreasonable, because the Board decided the issues through the lens of a Canadian cultural context, and because the documentary evidence did not support its finding. Specifically, he argues that the Board's implausibility finding with regard to whether a man would agree to an arranged marriage was patently unreasonable. He also argues that sons are victims of a paternalistic society.
[15] The applicant submits that the apparently faulty translation of a submitted document was not a translation at all, and that the applicant is not obliged to submit translations of documents that are originally in French or English. He submits again that the credibility finding, based on this document, was unfair since the Board did not raise its concern to the applicant. He also submits that the Board erred in failing to give weight to a French original document where the translation was faulty since there is no obligation to provide a translation.
[16] The Board's negative credibility finding based in part on the applicant's lack of knowledge of his parents' marriage circumstances is, according to the applicant, evidence of its cultural insensitivity.
Respondent's Further Memorandum
[17] The respondent submits that the Federal Court has made it clear that the Refugee Division has the complete jurisdiction to make plausibility findings, and that the standard of review remains patent unreasonableness.
[18] The respondent argues that the Board did not make any finding on the willingness of men to enter arranged marriages; rather, the Board found it implausible that a man would be forced into an arranged marriage. In addition, the respondent takes issue with the applicant's definition of paternalistic, noting that the Board also found Mali society to be male-dominated, which does not support the applicant's contention that he would be forced into an arranged marriage.
[19] The respondent takes issue with the applicant's assertion that he did not intend to submit a translation of the French document. It points to the applicant's affidavit and description of the documents in the applicant's documentary package as proof that the applicant intended the English document to serve as a translation of the French one. It argues that a comparison between the two texts supports the Board's finding that the applicant's credibility was seriously compromised. It furthermore notes that the original article does not support the applicant's claim, therefore, any failure to consider it is immaterial.
[20] The respondent argues that, based on the transcript, the Board did not err in concluding that the applicant answered that his parents' marriage had not been arranged.
[21] Finally, the respondent argues that there is no obligation on a Board to confront a refugee claimant with alleged inconsistencies.
[22] Issues
1. What is the applicable standard of review?
2. Was it open to the Board to make the implausibility findings that it did based on the evidence before it?
3. Was the duty of procedural fairness met, namely, was the applicant given an opportunity to address the Board's concerns?
Analysis and Decision
[23] Issue 1
What is the applicable standard of review?
Standard of Review
The Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 stated, at paragraph 26, in relation to standard of review as follows:
In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law. I find the approach taken in the courts below problematic. As a result, I believe it will be helpful to re-articulate the focus of the factors involved and update the considerations relevant to each. Before doing this, I must emphasize that consideration of the four factors should enable the reviewing judge to address the core issues in determining the degree of deference. It should not be viewed as an empty ritual, or applied mechanically. The virtue of the pragmatic and functional approach lies in its capacity to draw out the information that may be relevant to the issue of curial deference.
[24] Presence or Absence of a Privative Clause or Statutory Right of Appeal
Decisions of the Board are not protected by a strong privative clause. In addition, the only way that the decision can be appealed is by the Court certifying a serious question of general importance. This implies less deference.
[25] The Expertise of the Tribunal Relative to the Reviewing Court on the Issue in Question
Although the Board has an expertise in many areas it deals with, that is not the case here. The case deals with the marriage customs of the Bambara tribe of Mali and in particular, with arranged marriages to relatives. Absent evidence, the Board has no more expertise than the Court in this area. This calls for a less deferential standard of review.
[26] The Purpose of the Legislation and the Provision in Particular
Immigration legislation as it relates to Convention refugees is in effect determining the rights of persons claiming refugee status, but the legislation also leaves much discretion to the Board to determine who is a Convention refugee. This would tend to lead to higher deference.
[27] The Nature of the Question - Law, Fact or Mixed Law and Fact
The issue of implausibility leading to a non-credibility finding has been held to be a question of fact.
[28] Weighing all of the factors in this case, I find that the standard of review to be applied is patent unreasonableness.
[29] Issue 2
Was it open to the Board to make the implausibility findings that it did based on the evidence before it?
The Board found that it was implausible that the applicant knew so little about family marriages in Mali and also found it implausible that the Chief (the applicant's grandfather) did not force his own son into an arranged marriage. The evidence before the Board states that the applicant's mother and father's parents were good friends. The applicant was not asked why he did not know about arranged marriages in his family. In his affidavit supporting this judicial review, he stated that it was rude in his culture to ask others about their marriages. If this question had been put to him at the hearing, he most likely would have answered the question as he stated in his affidavit. I do not agree that this implausibility finding can flow from the facts it was based on.
[30] The Board also found that it was implausible that the applicant's paternal uncle would arrange the marriage. The testimony shows that the uncle was a very important person in the community and the evidence also shows that the applicant's father preferred the arranged marriage of his son to his niece proceed for the honour of the family. Based on these facts, I do not believe that this implausibility finding should stand.
[31] The Board also accepted "that young women in rural areas of Mali are often the victims of a customary arranged marriage." The Board then said this evidence did not corroborate the fact that "Bambara village chiefs, parents, or other family members coerce young men into customary arranged marriages." This evidence, in my view, does not take away from the applicant's statement that he would be forced into an arranged marriage.
[32] It should also be noted that the country condition information for Mali filed at the hearing included the following statement found in the applicant's record at page 24:
le mariage, dans la plupart de nos sociétés était (et reste dans une certain mesure) une affaire de famille décidée d'abord par le chef de famille - généralement le père du futur époux.
[marriage in most of our society was (and remains to a certain extent) a family affair decided first by the head of the family. Generally the father of the future husband.]
[33] Based on the above, I conclude that the Board's implausibility determinations which led to a non-credibility finding are patently unreasonable.
[34] Issue 3
Was the duty of procedural fairness met, namely, was the applicant given an opportunity to address the Board's concerns?
The Board also considered an internet editorial from the website of the Minister of Culture for Mali which was in French. The applicant's lawyer did not speak French. The applicant provided his lawyer with a guide and what he says was a partial translation. The lawyer
filed both the guide and the French version from the website at the hearing. There were statements in the guide that were not in the French version. This difference was not put to the applicant at the hearing. The Board stated in its decision:
The panel finds this attempt by the claimant to fabricate his evidence completely undermines his credibility.
[35] I am of the view that since this inconsistency played such an important role in the Board's decision, it should have been, in the circumstances of this case, put to the applicant for an explanation, if any. On the facts of this case, the failure of the board to do so constitutes a breach of the duty of procedural fairness owed to the applicant.
[36] The application for judicial review is allowed.
[37] The parties shall have one week from the date of this decision to submit a proposed serious question of general importance for my consideration and one week for reply, if any.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2564-02
STYLE OF CAUSE: OUSMANE TRAORE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: Tuesday, May 13, 2003
REASONS FOR ORDER OF O'KEEFE J.
DATED: Tuesday, October 28, 2003
APPEARANCES:
David Matas
FOR APPLICANT
Naline Reddy
FOR RESPONDENT
SOLICITORS OF RECORD:
David Matas
Winnipeg, Manitoba
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT