Date: 20030930
Docket: IMM-5738-02
Citation: 2003 FC 1120
Ottawa, Ontario, this 30th day of September, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MARGARET L. KOUK KING
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] Margaret L. Kouk King (the "applicant") is applying for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") rendered on October 31, 2002.
Background
[2] The applicant is a 24-year old female citizen of Liberia. She claims a well-founded fear of persecution based on her membership in a particular social group - females fearing female genital mutilation ("FGM"). She also claims that she is a person in need of protection pursuant to s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[3] The applicant graduated from public school in July 2000. She states that she moved to the town of Buchanan for her 12th grade because her Mother wanted her to be close to the bush area in Bassa where she was to undergo female circumcision and be initiated into the "Sande secret society", a female secret Society, (the "Society").
[4] During that year, she lived with her mother's brother and helped with the house cleaning. The applicant stated that in the summer of 2000 her mother visited her and told her that the circumcision would be performed on her in December 2001. Her mother, a member of the Society, had given gifts to the Society in preparation for her daughter's circumcision. After the procedure, the applicant would be invited to join the Society.
[5] At the end of the applicant's grade 12 year, she moved back to Monrovia without informing her mother. She lived with a friend, and worked in a shop doing hair braiding. She looked for an opportunity to leave Liberia, and was able to become registered as a member of Liberia's Edmonton World games delegation with the help of Hector Hilton,a member of the Liberia National Olympic Committee, whom she knew as her former physical education teacher. She left for Edmonton on August 17, 2001. The applicant claimed refugee status there on August 20, 2001.
Board's Decision
[6] The Board held that there was insufficient credible and trustworthy evidence to establish that the applicant has a well-founded fear of persecution based on a Convention ground. The Board also determined that the applicant was not a "person in need of protection" under the Act.
[7] While the Board accepted the applicant's identity as claimed, and that she was from the Bassa tribe on her mother's side, it found that the applicant had not presented trustworthy evidence in support of her claim.
[8] The Board made a number of adverse credibility findings in its decision. It noted that the applicant stated that she was afraid of agents that would attempt to abduct her on behalf of her mother and take her into the bush for the circumcision. The Board stated that the applicant had not written about "agents" in her PIF and failing to do so undermined her credibility. The applicant also stated that it is common for girls to be forcibly taken to the bush for FGM. The Board found this to be vague and implausible. The Board also noted that the documentary evidence indicates that there are groups operating in Liberia that educate and conduct research into the prevention of FGM.
[9] The Board found the applicant not credible when she stated that she did not reveal to her room-mate in Monrovia, who was a close female friend, that she was slated for FGM. The Board did not accept that the applicant would tell her former athletic coach but not her friend, especially since her mother was looking for her at this time.
[10] The Board found it implausible that the applicant would work for Hector Hilton delivering letters around Monrovia at a time when her mother was searching for her there. The Board held that this evidence did not support a subjective fear of persecution and found the applicant not credible.
[11] The Board also held that the letter of support from Hector Hilton did not refer to the circumcision, the applicant's reason for her fleeing Liberia. The applicant testified that she did not think it was important as she had outlined her claim to immigration officials. The Board did not accept the explanation and drew an adverse credibility finding. Similarly, the Board considered a letter from the applicant's brother to be self-serving, as it contained no information concerning the family except to state that the applicant's mother is looking for her.
[12] The Board noted that the applicant stated that FGM could be performed on females between the ages of 20 and 23, but often as early as age 8. The Board considered the documentary evidence on FGM in Liberia, including Response to Information Request dated March 18, 2002. That response included the following information:
While the role of Sande has changed over time, the education of young girls remains a key responsibility of its leaders. In theory all women belong to Sande and its formal role in women's lives begins at puberty when girls must undergo a rigorous training period that marks their transformation from child to adult (7 June 2001).
The Board questioned the applicant on this reported age of initiation, which was much lower than the applicant's experience as described by her. The Board concluded that there was insufficient credible evidence to establish that the applicant has a well-founded fear of persecution.
[13] The Board also determined that the applicant is not a "person in need of protection" under the Act because of the lack of credible evidence supporting her claim. Consequently, the applicant's claim was dismissed.
Issues
[14] The applicant raises the following issues on judicial review:
A. Did the Board base its decision on erroneous findings of fact when it made adverse credibility and plausibility findings concerning the applicant's story?
B. Did the Board make a reviewable error of law in that it failed to consider the totality of the documentary evidence before it?
Standard of Review
[15] The applicant challenges the Board's adverse credibility and plausibility findings. The appropriate standard of review on findings of fact and credibility is patent unreasonableness. The Federal Court of Appeal has found that the Board, as a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316-317.
Analysis
The documentary Evidence on Liberia
[16] Information compiled by the research directorate of the Immigration and Refugee Board (the "Directorate"), estimates that 60 percent of women and girls in Liberia undergo FGM. Thirteen ethnic groups, including the Bassa, reportedly practice FGM. Although certain experts estimate that the incidence of FGM may have dropped to 10 percent of the female population, as a result of the civil war, exact statistics are not available. The information also reports that in 1985, the "Liberian National Committee", conducted research into attitudes towards and the prevention of FGM. The U.S. Department of State Country (DOS) report on Liberia dealing with FGM, released on June I, 2001, specifically referred to by the Board in its reasons, confirms that before the civil war began in rural areas, approximately 50 percent of the female population between the ages of eight and eighteen had undergone this procedure. The report further confirms that the practice has been a part of custom and tradition in the more remote areas, and not as strong in the urban areas among many of the educated. However, whether FGM is practiced in the more populated centers, such as Monrovia, depends on education, class and how close the family's ties were to rural life. The DOS report states that since the end of the civil war traditional societies are re-establishing themselves throughout the country, and practices such as FMG are expected to increase again in rural areas for those groups for which it has been a significant and important rite of passage. The extent to which these practices might be revived to pre-war levels is yet unknown. The report also states that the Liberian National Committee began restructuring in 1994 to continue its work of informing women and young girls about the harmful health effects of the practice, however, the support of community leaders, elders, chiefs, and government officials is still lacking.
[17] The totality of the documentary evidence paints an uncertain picture with respect to the practice of FGM in Liberia. Whether the practice will return to post war levels is uncertain. What is clear is that there is no law against FGM in Liberia and there appears to be little support to curb the practice from community leaders, elders, chiefs, and government officials. The reports on the efforts of the Liberian National Committee are dated and there is no current evidence that the Committee's work has had any impact. Against this evidence, the Board had before it the applicant's testimony, which related circumstances that are particular to the applicant and current. The applicant's undisputed evidence is that her mother, with ties to the rural area of Buchanan, is from the Bassa tribe and a member of the Sande Secret Society. For many years, the applicant's mother paid her dues so that her daughter could by initiated in the Society. The applicant also testified repeatedly that her mother would be subject to disgrace in the family if she failed to achieve initiation for her eldest daughter. Given the applicant's testimony, which is undisputed, it is difficult to see how the documentary evidence could assist the Board in its negative credibility findings. I am rather of the view that it corroborates the applicant's testimony.
[18] The Board's credibility findings are based principally on findings of implausibility based on extrinsic criteria. The Board cast doubt on the credibility of the applicant because of a number of inferences drawn on the plausibility of the applicant's testimony concerning the following matters: (i) that it was implausible for the applicant to suggest that girls are taken forcibly off the street in order to be circumcised in the bush in accordance with tribal traditions; (ii) that it was implausible that the applicant's mother would tell her as early as the summer of 2000 that she would be circumcised in December 2001; (iii) that the applicant was not credible in regards to not telling her friend that she was in fear of her mother forcing her to have FGM performed on her; (iv) that it was not credible that the applicant would drive around Monrovia delivering letters for Hector Hilton at a time when she was sought by her mother or her agents. I propose to deal in turn with each of these implausibility findings.
[19] The Board found the applicant's account concerning "agents" abducting girls for FGM unreasonable and unbelievable. The Board based its finding, at least in part, on the fact that there was no mention in the documentary evidence of such events taking place. The Board further stated that if agents were grabbing girls off the streets today, the civil groups (the Liberian National Committee) working in Liberia, to educate and conduct research into the prevention of FGM, would have reported on this practice. These two reasons, offered by the Board to justify, in part, its finding, are patently unreasonable. In my view the Board erred in requiring corroboration of the applicant's evidence, which is to be presumed true unless there is a valid reason to doubt the truthfulness of it: Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302; Ahortar v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R 137. I also find unreasonable, a finding of implausibility based on the failure of the Liberia National Committee to report such incidents, when the documentary evidence shows the work of the so-called civil groups in Liberia to be dated and totally inconclusive in terms of their impact.
[20] The Board found it implausible that the applicant's mother would tell her nothing about the Sande Secret Society, after contributing to the Society for eight to ten years, then 18 months before the ceremony, alerts her daughter in the summer of 2000 that she would be circumcised in December of 2001. I am of the view that the Board based its plausibility finding on an unsupported inference about when girls are told of their initiation into the Society. There is nothing in the documentary evidence concerning this, and the documentary evidence does state that the workings of the Sande Society are secret and that it is difficult to obtain information on its actual rites. The Board stated no reason for its finding, aside from its conclusion that "the panel finds the claimant's evidence implausible". It was patently unreasonable for the Board to conclude as it did without giving reasons for its finding. Such an implausibility finding must be based on more than an unexplored weighing of evidence with no reasons stated. The Board erred in so doing.
[21] The Board found that the applicant's evidence was not credible in regards to not telling her friend that she was in fear of her mother forcing her to have FGM performed on her. In the circumstances, this finding was reasonably open to the Board.
[22] The Board also found that by "driving around Monrovia delivering letters for Hector Hilton" the applicant did not exhibit behaviour that was consistent with that of a person fearing persecution. On its face, such a finding would appear to be reasonably open to the Board. However, a review of the evidence shows that the applicant did not state that she drove around Monrovia, her evidence is that she did not even have a driver's licence. Moreover, the applicant's evidence is that she never claimed to be in hiding in Monrovia. She was living with a friend and working at doing hair braiding in a shop. This was not dealt with by the Board in its reasons. I can only speculate, from the reasons, as to whether the Board misapprehended the applicant's evidence and, if so, whether it would have made the same negative credibility finding. In this instance, the Board made an obvious error in finding that the applicant "drove around Monrevia delivering letters." Further, the Board did not deal with the evidence that clearly shows the applicant not to be hiding in Monrovia. The Board has an obligation to give clear reasons for its findings. With respect to this finding, it erred by failing to do so.
[23] The applicant submits that she filed documentary evidence that supported her claim that she would be in danger of undergoing FGM if returned to Liberia. She notes that the United States Department of State Report on Female Genital Mutilation (DOS Report) states that "one well-educated female lawyer in Monrovia underwent the procedure just before she married
because she came under strong pressure from an upcountry grandmother". The applicant submits that this passage supports her testimony that FGM is administered up to age 20 or 23. She submits that a female lawyer would be in her twenties, and thus the evidence supports her claim as articulated at the hearing. In response, the respondent contends that the "one educated female lawyer", referred to in the documentary evidence, underwent the FGM procedure voluntarily, and that this evidence, therefore, does not support the applicant's allegations that she would be abducted and forced to undergo the procedure.
[24] The applicant's testimony is that FGM can occur up to the age of 20 or 23. The DOS Report states that, before the civil war in Liberia, 50 percent of the female population between the ages of 8 to 18 underwent the procedure. There is also some evidence, that of the female lawyer, that supports the applicant's account of a late-administered FGM procedure. Given the uncertainty of the documentary evidence with respect to the current practices of FGM in Liberia, I am of he view that the applicant's allegations cannot be discounted because of the country documentation. I find that many aspects of the applicant's narrative are indeed corroborated by the documentary evidence.
[25] The Board made at least two adverse plausibility findings based on unsupported inferences, which I have found to be in error. On the strength of these findings, coupled with the documentary evidence on Liberia, which is far from clear on the extent of current practices relating to FGM in that country, the Board determined that the applicant was not credible and concluded that the applicant was not a Convention refugee. By so doing, the Board committed a reviewable error.
[26] In my view, the Board also erred in concluding, for the same reasons, that the applicant was not a person in need of protection. By determining the applicant's claim for protection under s. 97 of the Act, on an erroneous credibility finding, the Board avoided the prime issue in this case, that is the likelihood that the applicant would face FGM if returned to Liberia, the very issue which led to her fleeing the country in the first instance. Considering that the Board accepted the applicant's identity as a member of the Bassa tribe, it failed, in my view to properly assess the likelihood that the applicant would face FGM if returned to Liberia.
[27] For the above reasons, the application for judicial review is allowed and the matter is returned for re-consideration before a differently constituted panel in accordance with these reasons.
[28] Neither party proposed a question for certification. The Court declines to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board rendered on October 31, 2002, is allowed and the matter is returned to the Board for re-consideration before a differently constituted panel in accordance with these reasons.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5738-02
STYLE OF CAUSE: Margaret L. Kouk King v. MCI
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 13, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: September 30, 2003
APPEARANCES BY:
Mr. Michael J. Tilleard For the applicant
Mr. Robert Drummond For the respondent
SOLICITORS OF RECORD:
McMenemy & Tilleard For the applicant
700 - 10150 - 100th Street
Edmonton, Alberta T5J 0P6
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
211 Bank of Montreal Bldg
10199 - 101 Street N.W.
Edmonton, Alberta T5J 3Y4
FEDERAL COURT OF CANADA
Docket: IMM-5738-02
BETWEEN:
MARGARET L. KOUK KING
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER