Date: 20040623
Docket: IMM-2487-03
Citation: 2004 FC 902
Toronto, Ontario, June 23rd, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
THERESA GILL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Theresa Gill fled her home in Zimbabwe to escape an arranged marriage. She seeks relief from the decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), reasons dated March 13, 2003 which determined that she was not a Convention refugee or a person in need of protection. For the reasons below, I have concluded that the decision cannot stand and the matter must be reconsidered by a differently constituted panel.
BACKGROUND
[2] Ms. Gill is 22-year old citizen of Zimbabwe. She claimed Convention refugee status in Canada by reason of her fear of persecution due to her membership in a particular social group, namely women in forced marriages. She also claimed to be a person in need of protection, pursuant to the grounds set out in section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[3] The applicant claimed that she was forced into an arranged common law marriage with a much older man named Christopher Maredza, because her father wanted to demonstrate his gratitude to Mr. Maredza for being a generous benefactor for helping the family financially. The applicant sets out in her Personal Information Form ("PIF") that this custom is called "Kuzvarira" in her native language of Shona. Ms. Gill claimed that she was 17-years old when she was forced to live with Mr. Maredza in November 1999.
[4] The applicant describes herself as a Roman Catholic and she regularly attended church in Zimbabwe. She claims that at the age of 14, after her mother had passed away, her father sent her to work as a maid in the residence of Mr. Maredza, a man who had several wives. She worked about once a week in the residence and would occasionally receive payment or food for her family. The applicant testified that Mr. Maredza was kind to her during this time period.
[5] After about three years, when she was in her final year of high school, the applicant alleges that Mr. Maredza began to demand sex from her. She describes Mr. Maredza as a highly respected and feared man in her community who, in addition to owning a butcher shop, worked as an officer in the "central intelligence organization". She later discovered that Mr. Maredza had paid for her school fees.
[6] In October 1999 the applicant stopped going to Mr. Maredza's house, telling her father that she had to spend more time studying for school. However, about a month later, the applicant claims that her father told her that he had made arrangements for her to marry Mr. Maredza and when she protested he beat her severely, warning her to never argue with him again. She then claims that Mr. Maredza came to her home soon afer that when her brother and father were at work and raped her. Her father's response was to tell her she was no longer pure and could no longer remain in his home. He insisted that she live with Mr. Maredza immediately. The applicant claims that, after being forced to join his household, Mr. Maredza beat and raped her on several occasions and that she was obliged to observe him engage in sexual relations with his other wives. He also controlled her movements and insulted her on a constant basis.
[7] In July 2000 the applicant was permitted to attend her brother's funeral. At the funeral she described her situation to her aunt who was able to convince the applicant's father and husband to allow the applicant to remain with her for a few days to mourn the loss of her brother. The applicant's aunt took her to the police to report the abuse. However, she claims that the police refused to act, stating that it was a domestic matter. She believes they did not want to get involved because Mr. Maredza worked for the intelligence organization.
[8] The applicant was not able to escape from Mr. Maredza until January 2001, when she met her aunt on the way home from church and was able to flee and make arrangements to come to Canada. Ms. Gill arrived in Canada on January 9, 2001 and made her clam for refugee status a few days later. Her hearing was held on September 6, 2002.
The Board's Decision
[9] The Board determined that the applicant's refugee claim was not objectively well-founded or credible and therefore she did not have a serious possibility of being persecuted if returned to Zimbabwe or a serious possibility of being at risk pursuant to the grounds set out in section 97 of IRPA. The Board found that Ms. Gill's claims did not have "the ring of truth" for the following reasons:
- Since the applicant was a practising Roman Catholic, it was implausible that her father, a "Christian man", would send her, his only daughter, at the age of 14 to work in a household such as Mr. Maredza's;
- It is "universally known that any Christian sect, let alone Roman Catholicism, does not permit marriage to more than one person." The applicant's response that in Zimbabwe one could marry only one person if the marriage is performed in a church was not accepted by the Board;
- It is not plausible that a Christian father would arrange a forced marriage for his only daughter with a considerably older man with multiple wives;
- It is not plausible that a practising Christian man would engage in polygamy;
- It is not plausible that her father would pledge the applicant to a man in payment for school fees when the applicant was only one month away from her high school graduation;
- The documentary evidence does not support the applicant's allegations, as it states that "Kuzvarira" is more widely practised in the countryside rather than in cities and there was no evidence that Roman Catholicism accepts polygamy;
- It is not plausible that her father, a Christian man, would not want to protect the applicant after she had allegedly been raped by Mr. Maredza after he came to her home;
- it is not plausible that her father would offer the applicant in marriage to someone who had violated her since her family is educated and urban, residing in the capital, Harare;
- It was unreasonable to expect that the applicant would call Mr. Maredza "uncle" throughout her time of living with him against her will;
- The psychologist's report which stated that she suffered from post-traumatic stress disorder was given no weight since her claims of abuse were not believed and any diagnosis based on her allegations were not relevant. The Board also noted a discrepancy in the factual description in the psychologist's report and her PIF related to her completion of a college course during a time when she had claimed to have been under the constant control of her husband, and not allowed to go out.
[10] The Board also referred to documentary evidence that demonstrated that there was state protection available to Ms. Gill in Zimbabwe.
ISSUE
[11] Did the Board base its decision on patently unreasonable findings of fact or misapprehend evidence that was before it?
ANALYSIS OF SUBMISSIONS
[12] The applicant submitted that the Board's decision arose from a perverse and capricious assessment of the totality of the evidence and in the absence of evidence to support its decision, there is nothing to rebut the principle set out in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) that her sworn evidence was true. The applicant says that the Board misunderstood her evidence and the decision was based on the Board's own speculations and "unwarranted inferences". She also argues that the Board failed to consider certain evidence submitted by the applicant.
[13] Relying on Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (T.D.)(QL), the applicant argues that this Court may intervene when the implausibility findings of the Board are perverse on the face of the record, do not take into account cultural norms and practices in Zimbabwe and there is relevant evidence in the tribunal record that could potentially refute its plausibility findings. She argues that the Board lost track of the relevant issues in this claim, improperly focussing on the expectations of how her father did not act as a typical, "good Christian" rather than on the abuse she suffered at the hands of Mr. Maredza. The applicant submits that there was no evidence in front of the Board that either her father or Mr. Maredza were "perfect" Christians and that the Board erred in assuming this to be the case. The Board, according to the applicant, used western standards of Christianity to evaluate the applicant's father whose Christian faith ran concurrently with traditional African beliefs and values.
[14] The applicant submitted that the Board had no evidentiary basis for not believing the applicant and in fact accepted that there was evidence that African churches combine elements of established Christian beliefs with traditional African beliefs, since one of these is the acceptance of polygamy and marriage at a very young age. The applicant refers to documentary evidence that was before the Board that indicates that physical and sexual abuse of women by their husbands in Zimbabwe is both common and relatively accepted.
[15] The applicant argued that the Board's finding on state protection was unreasonable and not supported by the evidence before it. Further, according to the applicant, the Board erred in not giving the psychologist's report sufficient weight.
[16] The respondent submits that the Board considered and weighed all of the evidence and determined the applicant not to be credible. It offered detailed reasons citing contradictions and implausibilities related to the applicant's allegations. This Court should not intervene with the Board's findings even where it does not agree with the Board's inferences, provided such inferences were reasonably open to it on the record.
[17] The respondent submits as a secondary argument that even if the credibility findings of the Board are seen as patently unreasonable, then the Board also found that Ms. Gill's claim was not objectively well-founded and that there was state protection. Each of these grounds is sufficient to reject the applicant's refugee claim.
[18] In my view, the Board's reasons are based on findings that fail to take into account cultural differences in Zimbabwe and impose a western view of Christian practises in evaluating the applicant's allegations. The Board's findings that Ms. Gill's father, as a good Christian man, would not force her to marry a rich man viewed as their benefactor because he had raped her ignores the applicant's testimony that her father was abusive towards her, had a very traditional and patriarchal view of women's place in society and viewed the applicant as impure after being raped by Mr. Maredza. This is all clearly apparent from the applicant's testimony, yet nowhere in the reasons has the Board referred to these factors in its analysis. Further, the Board failed to refer to its own gender guidelines or deal with the possibility that the applicant's father was not a model Christian and viewed it as necessary to have his daughter married off since she was no longer a virgin. There is no analysis as to how rape is viewed in Zimbabwean society, despite those involved being of the Christian faith.
[19] The Board made the following finding at page 5 of its reasons:
According to the documentary evidence, indigenous African churches that combine elements of established Christian beliefs with some beliefs based on traditional African culture and religion generally accept polygamy and the marriage of young girls. This is not evidence that Roman Catholicism accepts polygamy.
[20] The Board erred in viewing that the applicant had to demonstrate that "Roman Catholicism accepts polygamy". The applicant testified that she was never married in the church, or with any official ceremony and that she did not know if Mr. Maredza was Catholic. For that matter, there was no evidence before the Board that her father was Catholic, practising or nominal. In requiring the applicant to present evidence that Roman Catholicism accepted polygamy, the Board lost focus of the applicant's actual claims that she was not married pursuant to the Catholic faith or ceremony. This is another way in which the Board came to its central implausibility determination without regard to the material before it.
[21] After reviewing the documentary evidence on the tribunal record and the transcript of the hearing, it is apparent that there is considerable acceptance of violence against women, particularly within the familial unit, in Zimbabwe. There is no documentary evidence on the record to demonstrate that those who are Catholic or otherwise Christian in Zimbabwe do not engage in violence against women or follow the doctrine generally, yet not universally, adhered to in western society by Christians in marriage.
[22] Instead, the majority of the documentary evidence deals with the tension between black families occupying white-Zimbabwean farms and the state's repression of the Movement for Democratic Change, a political opposition group. I find that the Board's ultimate findings about the plausibility of the applicant's allegations were not based on any supporting documentary evidence. What is apparent from the documentary evidence is that violence against women, particularly within the family, is common and accepted, notwithstanding recently enacted laws that proscribe the practise. The Board failed to analyse the significance of societal acceptance of such violence on the applicant's claim. The Board instead relied on cultural assumptions about the practice of Catholicism in Zimbabwe and how this religion impacted the cultural values and norms in that society.
[23] Furthermore, the Board assumed that her father and Mr. Maredza were good Christians, while the allegations of the applicant consistently indicated that they were not. The applicant never testified that her father or Mr. Maredza were devout followers of that religion, and she in fact testified that she did not even know if Mr. Maredza was Catholic. Therefore the Board confused the applicant's desire to regularly attend church and belief in Christian values and transferred such beliefs to her father and Mr. Maredza.
[24] Finally, on the tribunal record there is a Response to Information Request from the Research Directorate of the Board, dated January 25, 2002 dealing with violence against women in Zimbabwe which clearly contradicts the Board's finding on state protection. It outlines that while certain laws may be on the books, the police are extremely ineffective in protecting women who experience abuse in marriage, to the extent of encouraging women to return to abusers. The Board's failure to deal with such significant evidence that contradicted its finding on state protection leads to the inference that it was disregarded in the analysis: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed. The Board's decision is quashed and a differently constituted Board shall reconsider the applicant's claim to be a Convention refugee or a person in need of protection. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2487-03
STYLE OF CAUSE: THERESA GILL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 23, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JUNE 23, 2004
APPEARANCES:
Mr. Kingsley I. Jesurobo
FOR APPLICANT
Ms. Mary Matthews
FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesurobo
Barrister and Solicitor
North York, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20040623
Docket: IMM-2487-03
BETWEEN:
THERESA GILL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER