Date: 20050121
Docket: IMM-3779-04
Citation: 2005 FC 80
Ottawa, Ontario, January 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SIRA WAHAB KEITA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c.27 (Act), of a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel) dated March 29, 2004. In that decision, the panel determined that the applicant did not meet the definition of a "Convention refugee" under section 96 or that of a "person in need of protection" under section 97.
ISSUE
[2] Did the panel err in determining that the applicant was not credible?
[3] For the following reasons, I must answer this question in the affirmative. Accordingly, I would allow this application for judicial review.
BACKGROUND
[4] The applicant is 23 years old and is a citizen of the Republic of Mali. She alleges a well-founded fear of persecution based on her membership in a social group, namely women promised to an arranged marriage to which they did not consent. She alleges a risk to her life or a risk of cruel and unusual treatment or punishment if she were to return to her native country.
[5] In September 2002, i.e. three months after the end of classes for the 2001-2002 university year, her father's older brother decided to give her in marriage to his 38-year-old son. The applicant states that her father and her mother did not agree with this decision. However, since the applicant's father is the youngest in his family, it was not possible for him to intervene.
[6] The applicant submits that she tried to explain to her uncle that she did not want to marry her cousin because she preferred to continue her studies and to marry a person whom she loved. Her uncle, who did not appreciate her opposition to his decision, allegedly asked his son to beat her up.
[7] The marriage was scheduled for December 2003 and the applicant had to begin to prepare for her marriage by adopting the "character of a married woman". In that respect, she had to change the way that she dressed, limit her topics of conversation to those acceptable for a married woman and ask permission before leaving the house.
[8] Her parents, unable to bear the idea of seeing their daughter unhappy, sent her to hide at a girlfriend's house. The next day, her cousins found her and beat her severely.
[9] Unable to openly oppose his older brother's will, the applicant's father decided to send his daughter outside the country. With the help of the applicant's best friend, they registered her at the University of Saint-Boniface in Manitoba. Her father obtained her Malian passport in December 2002. The applicant alleged that she had not been accepted by a Canadian university until March 2003. She explained that she had waited until July 2003 before applying for her student visa so that her application corresponded with the beginning of the school year in September. She received her student visa on August 12 and left Mali for Canada on September 5, claiming refugee status.
IMPUGNED DECISION
[10] Relying on omissions and implausibilities, the panel determined that the applicant was not a "Convention refugee" or a "person in need of protection".
ANALYSIS
[11] The issue of credibility is a question of fact which must be reviewed in accordance with the standard of review of patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL) at paragraph 4).
[12] In this case, the applicant claimed to belong to the Malian ethnic group, whose basic social unit is patrilineal: lineage, inheritance and succession are based on the paternal line. Since the death of her paternal grandfather, it was her grand-uncle (uncle Sady), her father's older brother, who became the family patriarch - the one making all of the decisions. She stated that she was born to a family where arranged marriages are a tradition from which it is impossible to derogate.
[13] Accordingly, even if her father and mother did not support the marriage, they could not oppose the decision-making authority of the uncle Sady, without taking the chance of breaking the family's unity. The applicant stated that even the fact that her father helped her to flee her country was very likely to divide the family (pages 0407 and 0408 of the tribunal record).
[14] The panel stated that it had before it a scenario that was inconsistent and implausible. Yet, when reading the stenographer's notes, the applicant reasonably explained the delay between the announcement of her engagement in September 2002 and the date set for the arranged marriage in December 2003.
[15] When questioned by the decision-maker regarding her uncle's having forgotten to give her in marriage before September 2002, the applicant provided reasonable explanations to him. The same can be said of the panel's questioning in relation to the fact that she was confined to her home and could not go out unless her father accompanied her. Finally, the Court does not consider inconsistent the applicant's explanations regarding the date that she left for Canada.
[16] I therefore consider that it was demonstrated in this case that there were patently unreasonable errors on behalf of the panel (Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (F.C.A.) (QL). The words of Pelletier J. in Maruthapillai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 761 (F.C.T.D.) (QL) at paragraph 13 are entirely appropriate:
Weighing evidence is at the core of the Refugee Division's jurisdiction. It is not for the Court to substitute its own assessment for that of the Refugee Division. However, when weighing the evidence, the Refugee Division must respect a claimant's testimony. . . .
[17] After reviewing all of the evidence filed before the panel, the submissions of the parties and the transcript of hearing, it is my opinion that the decision warrants the intervention of this Court. The parties declined to submit questions for certification. I am satisfied that there is no question to be certified in this case.
ORDER
THE COURT ORDERS that the application for judicial review be allowed. The applicant's claim is referred to a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board for reconsideration. No question will be certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3779-04
STYLE OF CAUSE: SIRA WAHAB KEITA v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 18, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: January 21, 2005
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johanne Doyon FOR THE APPLICANT
Montréal, Quebec
John H. Sims FOR THE RESPONDENT
Deputy Attorney general of Canada
Montréal, Quebec