Date: 20010829
Docket: IMM-5825-00
Neutral Citation: 2001 FCT 968
BETWEEN:
FATIMA ZOHRA BENNIS
MALIKA MESSAOUD
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] This is an application for judicial review of a decision by the Refugee Division (hereinafter "the tribunal") on October 18, 2000 that the plaintiffs are not Convention refugees.
FACTS
[2] The plaintiffs, Fatima Zohra Bennis and her daughter Malika Messaoud, are citizens of Morocco and alleged that they had a well-founded fear of persecution by Morocco because of their membership in a particular social group, namely abused women in that country.
[3] The plaintiffs' problems began in May 1999. Ms. Bennis' husband wanted to marry her younger daughter to a man 49 years old who had already been married and also had four children.
[4] Ms. Bennis refused to approve this marriage. From that time onwards the husband became abusive, treating the two women as slaves. Ms. Messaoud was forced to wear the Islamic dress and could not take her courses at school. The plaintiffs alleged that they were confined at home. They tried to escape but without success. After that the plaintiffs were beaten several times.
[5] When an opportunity to come to Canada presented itself, in order to help a daughter who was in hospital, the plaintiffs obtained the husband's permission to leave the country. However, the husband changed his mind and left for Canada with Ms. Messaoud on August 17, 1999. Ms. Bennis left Morocco the following day to join her two daughters in Montréal.
[6] Ms. Bennis' arrival in Canada made her husband furious. The latter left Canada for the U.S. with his daughter Ms. Messaoud. They stayed there for 11 days before both returning to Canada.
[7] Assisted by her daughter Rajaa, who lived in Montréal, Ms. Bennis hid Ms. Messaoud with friends. When he found his daughter had fled the husband beat Ms. Bennis and his daughter Rajaa. The plaintiff wanted to telephone the police but chose not to do so. The husband returned to Morocco alone on September 11, 1999.
[8] The plaintiffs indicated their intention to apply for refugee status on October 18, 1999.
POINTS AT ISSUE
[9] 1- Did the tribunal commit an error in ignoring the IRB Directives on Women Refugee Claimants fearing Gender-related Persecution?
2- Did the tribunal err in concluding that the plaintiffs' story was not credible?
ANALYSIS
1- Did the tribunal commit an error in ignoring the IRB Directives on Women Refugee Claimants fearing Gender-related Persecution?
[10] The plaintiffs alleged that in considering their claim the tribunal did not consider the
explanations they gave in light of the IRB Directives and took no account of the cultural background, which was essential for understanding all that was at issue in the claim.
[11] The defendant, for her part, argued that if the tribunal concluded that the plaintiffs lacked credibility it did not have to consider the Directives.
[12] The defendant noted that the purpose of the Directives was to ensure that the definition of a Convention refugee was properly interpreted so as to protect women having a justified fear of gender-related persecution.
[13] Since the tribunal did not believe the plaintiffs about their claims that they were abused women, the defendant maintained that applying the Directives would not in any way have altered the outcome of the plaintiffs' claim since the discrepancies in the plaintiffs' account were so obvious that the tribunal could conclude that it was not credible and accordingly dismiss their claim.
[14] In Newton v. Canada (M.C.I.), [2000] F.C.J. No. 783 (F.C.T.D.), Pelletier J. indicated:
The Guidelines are an aid for the CRDD panel in the assessment of the evidence of women who allege that they have been victims of gender-based persecution. The Guidelines do not create new grounds for finding a person to be a victim of persecution. To that extent, the grounds remain the same, but the question becomes whether the panel was sensitive to the factors which may influence the testimony of women who have been the victims of persecution.
[15] In Griffith v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1142 (F.C.T.D.), Campbell J. said the following about the IRB Guidelines:
If a claimant is not believed, reasons must be given. In the case of credibility findings with respect to women suffering domestic violence, in my opinion, the requirement for reasons become 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.
. . . . .
In my opinion, these statements of the CRDD do not disclose the degree of knowledge, understanding and sensitivity required to avoid a finding that a reviewable error has been made in judging the applicant's statements and conduct.
The pitfall exposed in the statements is that the panel members' interpretation of an "objective" standard is being used as the standard against which the actions of the application are being judged; that is, the objective standard of the "reasonable man" so commonly used in criminal and civil law. The issue is not whether men or women are decision makers, but rather whether a male norm is being unfairly applied. About this, Wilson J. in Lavallee at 874 says this:
If it strains credulity to image what the "ordinary man" would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical "reasonable man".
(Footnotes omitted.)
[16] I admit that in circumstances where a plaintiff claims refugee status because she has suffered abuse, the tribunal hearing the claim must be aware of the IRB Guidelines. The tribunal must also be aware that the credibility of a plaintiff's actions should not be assessed by an "objective" standard that does not take the plaintiff's situation into account, namely the fact that she is an abused person. Accordingly, the standard used to determine the credibility of the actions of a plaintiff who alleges she was abused is that of a person who is in the same position as the plaintiff, namely an abused person, and assessment of credibility must involve the use of specialized knowledge of this area.
[17] However, in the case at bar the tribunal did not consider the plaintiffs' actions when it concluded that their claim lacked credibility. In fact, the tribunal considered the actions of the husband as related by the plaintiffs and found that they were not credible. The tribunal's conclusions did not deal with the actions of the plaintiffs in terms of the abuse they suffered, and therefore the IRB Guidelines were not relevant in assessing the husband's actions. The IRB Guidelines were discussed before the tribunal, which did not discuss them in its decision. However, this apparently had no bearing on the tribunal's conclusions.
2- Did the tribunal err in concluding that the plaintiffs' story was not credible?
[18] The plaintiffs further argued that the tribunal undermined their credibility for reasons that were not justified when it did not look at all the essential aspects of the claim and their explanations.
[19] The courts have recognized that the tribunal is in the best position to determine the credibility of a witness and draw conclusions in this regard. In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[20] As regards the fact that Ms. Bennis stated on her Personal Information Form (PIF) that her problems began in May 1999, whereas she had had problems with her husband in the past, the plaintiffs noted that in a situation where marital violence is a common practice it is reasonable that the plaintiff did not say that her husband was violent toward her if he had always been so. Further, Ms. Bennis indicated that the violence became unbearable after her opposition to the marriage of her younger daughter.
[21] In Basseghi v. M.E.I., [1994] F.C.J. No. 1867 (F.C.T.D.), Teitelbaum J. concluded:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in the one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[22] In my view, the tribunal did not err in noting this absence from the plaintiff's PIF.
[23] The plaintiffs further argued that the tribunal's conclusion regarding the fact that they were free to travel with the husband is not reasonable since they always travelled with the husband and he had never allowed them to travel without his being there. The plaintiffs maintained that the fact the whole family travelled together did not mean the husband was not abusive and dominant. There was no connection between the two. Moreover, the husband prohibited Ms. Bennis from travelling to Canada with his daughter and himself.
[24] As regards the fact that Ms. Bennis' husband did not telephone the Canadian police about the disappearance of Ms. Messaoud, the plaintiffs noted that the husband had beaten Ms. Bennis in Canada and he knew that he could be taken to the police station for hitting her. Accordingly, it is clear the husband would not call the police about Ms. Messaoud's disappearance since under the legislation applicable in Canada he could be detained.
[25] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), Lutfy J. indicated the standard of review applicable to a tribunal's conclusion on the credibility of testimony:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where [sic] the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only infer in exceptional circumstances.
[26] I have considered the transcript of the hearing and the evidence submitted and, in my view, the tribunal made no error justifying this Court's intervention. The evidence allowed the tribunal to conclude as it did and I cannot conclude that its decision was patently unreasonable. This application for judicial review will accordingly be dismissed.
[27] None of the counsel submitted a question for certification.
|
Pierre Blais Judge |
OTTAWA, ONTARIO
August 29, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5825-00
STYLE OF CAUSE: FATIMA ZOHRA BENNIS, MALIKA MESSAOUD v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 2, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: August 29, 2001
APPEARANCES:
Marie-Claude Paquette FOR THE PLAINTIFF
Mario Blanchard FOR THE DEFENDANT
SOLICITORS OF RECORD:
Marie-Claude Paquette FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada