Date: 20020815
Docket: IMM-4076-01
Neutral citation: 2002 FCT 865
Vancouver, British Columbia, Thursday the 15th day of August 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ANI-EMEKA EMMANUELS,
VERONICA ALEXANDROVNA EMMANUELS
(a.k.a. Veronika Alezan Emmanuels)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] A single issue is raised on this application for judicial review: Did the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") commit a reviewable error by failing to assess whether Mrs. Emmanuels would suffer persecution on account of her relationship with her Nigerian husband if she is returned to Russia?
[2] In its reasons the CRDD described the basis of Mrs. Emmanuels' claim as follows:
The female claimant's claim is based on membership in a particular social group as a woman. Her claim is based on gender-based persecution at the hand of her former boyfriend.
Such characterization fairly reflected the preponderance of the evidence adduced by the claimants, and the submissions of their counsel to the CRDD.
[3] However, in her Personal Information Form ("PIF") Mrs. Emmanuels had written "[i]n July 1996, I met my present husband. I underestimated the extent of racism in Russia." and the CRDD noted in its reasons that Mrs. Emmanuels "said they fear persecution in Russia because of the male claimant's colour and race and the authorities either condone acts of racism, or are powerless to protect".
[4] Given that Mrs. Emmanuels stated that her fear of returning to Russia was, at least in part, based on her relationship with a Nigerian man and the panel's acknowledgement of this, I accept the submission of counsel for the applicants that it was an error for the CRDD to fail to deal with this aspect of Mrs. Emmanuels' claim.
[5] On the Minister's behalf it was argued that this was not a reviewable error because there was no evidence that the applicants raised before the CRDD the issue of racism as a basis for their claim against Russia, and counsel who represented the applicants before the CRDD (but not before this Court) did not allude to the issue in his submissions. Reliance was placed upon the decision of the Federal Court of Appeal in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.).
[6] The failure of the CRDD to address this issue is understandable given the testimony of Mr. and Mrs. Emmanuels and the failure of their then counsel to make any submissions on this issue. Nonetheless, I have concluded that it was a reviewable error for the following reasons.
[7] The portion of the CRDD's reasons quoted above to the effect that Mrs. Emmanuels said that she feared persecution in Russia because of Mr. Emmanuels' colour and race, shows that this issue was raised before the CRDD.
[8] Mr. and Mrs. Emmanuels did adduce some evidence of incidents which befell them in Russia and which were attributable to race. In her PIF which was received in evidence before the CRDD Mrs. Emmanuels stated:
Sometime in October 1996, I was attacked on my way from a night club, a few metres from a police check point, by some Russian girls who were angry that I was disgracing them by dating a black man. My husband tried to break up the fight that ensued. In the process, the policemen arrived and began to beat up my husband. They made racist remarks and questioned his audacity in dating a Russian woman. They also removed all our money from my husband. When I asked for an explanation, they said it was because I was dating a black man.
[...]
We are afraid to return to Russia for the fear that I will suffer prosecution or be killed by my ex-boyfriend. The police are corrupt and are not willing to prosecute or punish spousal abusers. Furthermore, we are persecuted because of my husband's colour and race. The authorities are either condoning racial attacks or are powerless to act to protect people of colour.
[9] While the CRDD found Mr. and Mrs. Emmanuels not to be credible witnesses, the panel did accept the fact of their marriage, and a finding of incredibility alone is not determinative of the question of whether an applicant satisfies the subjective and objective components of the definition of Convention refugee. Thus, in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168, the Federal Court of Appeal found that whether or not the applicant was a credible witness, that did not prevent him from being a refugee if his political opinions and activities were likely to lead to his arrest and punishment.
[10] In the present case, there was documentary evidence before the CRDD, including the United States Department of State report, Russia Country Report on Human Rights Practices for 1998, which documented racially motivated attacks on members of minorities (particularly Africans), skinhead attacks on dark-skinned individuals, and arbitrary arrest and detention of darker-skinned persons.
[11] This evidence was not analysed by the CRDD and was capable of establishing an objective basis for the fear of persecution. The CRDD made no finding that it disbelieved Mrs. Emmanuels' evidence that she had been attacked by Russian girls who were angry that she was dating a black man. In rejecting Mrs. Emmanuels' credibility, the CRDD simply wrote "it finds the female claimant, also, not to be a credible witness and rejects her evidence that her ex-boyfriend has abused her, has close ties with the police and would continue to have any interest in her if she returned to Russia" [underlining added].
[12] This finding fell short of rejecting the totality of Mrs. Emmanuels' evidence with respect to racism.
[13] As for the Minister's reliance upon Ranganathan, supra, while the Court of Appeal there found that the CRDD could not be faulted for not addressing an issue, the issue in question was a factual one, the existence of a policy that Tamils from the North were not permitted to remain in Colombo for more than three days. The Court held that the burden was on the claimant to establish that living in Colombo was not an internal flight alternative because of the three-day policy.
[14] I am not persuaded that this principle can be extended to a failure on the part of the CRDD to consider all of the grounds for making a claim to status as a Convention refugee, even where the grounds were not raised by a claimant. The UNHCR Handbook ("Handbook"), at page 17, paragraphs 66 and 67 states:
In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyse his case to such an extent as to identify the reasons in detail.
It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect. It is evident that the reasons for persecution under these various headings will frequently overlap. Usually there will be more than one element combined in one person, e.g. a political opponent who belongs to a religious or national group, or both, and the combination of such reasons in his person may be relevant in evaluating his well-founded fear.
[15] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 80, the Supreme Court considered political opinion as a ground for fear of persecution not withstanding that the issue was first raised in the Supreme Court by the United Nations High Commissioner for Refugees.
[16] To summarize, Mrs. Emmanuels raised the issue of racism as a ground for fear of persecution. Even if she did not, the Handbook and Ward suggest that it is for the examiner, in this case the CRDD, to ascertain the reasons for the persecution feared and whether the definition of Convention refugee is met. There was some evidence in Mrs. Emmanuels' PIF and in the country condition documentation which ought to have been evaluated by the CRDD.
[17] The application for judicial review must therefore be allowed.
[18] As to the relief to be granted, no challenge was made to the decision of the CRDD as it related to Mr. Emmanuels' fear of persecution in Nigeria, or to Mrs. Emmanuels' fear of persecution in Russia at the hands of her former boyfriend. Therefore, the sole issue to be remitted for determination is, as framed in paragraph 22 of the applicants' memorandum of fact and law, whether Mrs. Emmanuels has a well-founded fear of persecution on account of her relationship with her Nigerian husband if she were to return to Russia.
[19] As the failure to address this issue appears to have been inadvertent, and the balance of the CRDD's findings are not challenged by the applicants, I see no need to remit the matter to a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board if the original panel can be reconstituted. Otherwise, the matter may be decided by a differently constituted panel.
ORDER
[20] IT IS HEREBY ORDERED THAT:
1. The issue of whether Mrs. Emmanuels has a well-founded fear of persecution on account of her relationship with her Nigerian husband if she were to return to Russia is remitted for determination by the Refugee Protection Division of the Immigration and Refugee Board.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4076-01
STYLE OF CAUSE: Ani-Emeka Emmanuels and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 24, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 15, 2002
APPEARANCES:
Mr. Arthur I. Yallen FOR THE APPLICANTS
Ms. Pamela Larmondin FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Arthur I. Yallen FOR THE APPLICANTS
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada