Ottawa, Ontario, March 6, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ISAMU ABDULLAHI OMAR
YUTAKA ALEXANDE OMAR
(a.k.a. YUTAKA ABDULLAHI OMAR)
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), delivered orally on December 16, 2005, which determined that the applicant was not a Convention refugee.
[2] The applicant requested that the Board’s decision be set aside and remitted for redetermination.
Background
[3] The applicant, Yumiko Tazawa, is a Japanese citizen who alleged having a fear of persecution on the basis of her membership in a particular social group, namely, as a person in a mixed race marriage and the mother of mixed race children. The applicant’s husband, Isamu Omar, is a citizen of Somalia. The couple have two children whom the applicant feared would be subject to discrimination on the basis of race if the family relocated to Japan. The applicant described the circumstances leading to her claim for protection in the narrative portion of her Personal Information Form (PIF).
[4] The applicant left Japan in June 1992 in order to pursue university studies in the United States. She met her husband in 1995, and they were married in 1999. Their two children are American citizens.
[5] The applicant was afraid to tell her family about the relationship due to the racism that she feltJapanese people manifested toward black people. Once she told her family about the relationship, they disowned her.
[6] The applicant’s husband applied for status in the United States and she waited to be approved as his dependant. However, he was denied status in 2002 and lost his job in 2003. The family no longer had legal status in the United States, but did not want to go to Somalia, as they found it too dangerous. In addition to the discrimination her family would face in Japan, the applicant was afraid of what her family would do to her if she returned. The applicant stated that her husband’s relatives in Canada encouraged the family to come to Canada. The family left the United States and arrived in Fort Erie, Ontario, on September 10, 2003, where the applicant and her two children immediately claimed refugee protection.
[7] The applicant was not represented by counsel at the refugee hearing, which was held on December 16, 2005. An oral decision was delivered by the Board on the date of the hearing, and the written reasons are dated January 13, 2006. The Board concluded that the applicant would not be subjected to discrimination constituting persecution in Japan, and therefore was not a Convention refugee. The Board also found that state protection would be available to the applicant. This is the judicial review of the Board’s decision with respect to the applicant’s claim for refugee status. The claims of the applicant’s children have been discontinued.
Board’s Reasons
[8] The Board stated at pages 2 and 3 of its decision:
Then that brings me to your claim as against Japan. I accept your evidence and appreciate your honesty. I accept the RPO’s observations that there are problems in Japan with respect to discrimination. In Canada we have problems with discrimination as well. I accept this is probably worse in Japan because it has been a much more homogenous society for a longer period of time.
However, it is quite clear from the RPO’s documents that situation is gradually changing. There are more mixed marriages and the number of mixed marriages is increasing all the time. Discrimination of the nature you describe does not amount to persecution.
The documents you have provided display the kinds of problems that persons who are not Japanese would face if living in Japan. But, you are a Japanese citizen, you will not face those problems. You have all the rights and all the obligations of a Japanese citizen.
I appreciate your concern for your children, but your children’s claim is against the United States. I know as a Mom it is really hard to separate those two things out and to think of yourself as separate from your children. However, in the legal construct that I have to work in I can think of you only in the context of Japan and I am not permitted to consider questions of family unity. In that respect I am satisfied there is no evidence to support a finding that you would be at any serious risk of harm if you return to Japan.
I appreciate your concern about your family having some kind of campaign against you or being something of a threat to you. However, the documents made it quite clear that there are mechanisms in place in Japan that provide police services, that provide legal services and a judicial system. Japan is a constitutional monarchy. There is nothing to suggest that the presumption of state protection has been rebutted in this case or that you would not have access to adequate state protection if you did encounter any problems upon your return to Japan. So, therefore, I find that your claim as against Japan also must fail and it is rejected.
Issues
[9] The issues are:
1. Did the Board err in finding that the discrimination faced by the applicant did not constitute persecution?
2. Did the Board err in failing to refer to documentary evidence which supported the applicant’s claim?
3. Did the Board err in its analysis of state protection?
Applicant’s Submissions
[10] The applicant submitted that the Board made a superficial analysis of her claim. It was submitted that the Board’s decision failed to set out the type of discrimination that the applicant would face, which was clearly stated at the hearing, and in her written narrative. The applicant had informed the Board that as the wife of a black man and the mother of two mixed race children, she would be the victim of racism in the work place, and generally in Japanese society. It was submitted that this harm was tantamount to persecution.
[11] Paragraph 54 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, states that discrimination will amount to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on the right to earn a livelihood. It was submitted that as a matter of law, the discrimination feared by the applicant upon return to Japan, if well-founded, was sufficiently serious to be tantamount to persecution, and that the Board erred in stating that it was not.
[12] The applicant submitted that the Board had an obligation to analyze in more detail whether the country conditions materials supported her fear. While the Board generally noted the documents provided by the applicant, no specific mention was made of any document which supported her claim. The applicant acknowledged that the Board was not obligated to mention each document she produced. However, it was submitted that the Board must mention critical documents which run contrary to its findings, or set out why a document was given little weight. One document stated that racism was extremely pervasive in Japan and gave examples of the negative treatment received by black people living there.
[13] The applicant submitted that the Board failed to analyze the applicant’s fear of persecution on the basis of her membership in a particular social group, namely, as a member of a mixed race family and the wife of a black man. It was submitted that the Board evaluated her claim by focussing upon her in isolation, and ignoring the fact that her fear of harm arose because she would be living with her husband, who was not Japanese.
Respondent’s Submissions
[14] The respondent submitted that the applicant was unable to demonstrate that the Board’s conclusion was perverse or capricious. It was submitted that the applicant had not rebutted the presumption that a tribunal is assumed to have weighed and considered all of the evidence before it (see Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)). The respondent submitted that the fact that the Board had not mentioned each document was not an indication that the documents had not been considered (see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. 635 (F.C.A.)).
[15] It was submitted that the Board took into account the fact that the applicant was a member of a mixed race family. The respondent submitted that a review of the transcript demonstrated that the Board considered this factor in both the applicant’s testimony, and the documentation on country conditions. The Board acknowledged that discrimination did occur in cases of mixed marriages and families, however its task was to consider whether the discrimination alleged by the applicant amounted to persecution.
[16] The respondent submitted that the Board considered the cumulative effect of the alleged discrimination the applicant would face if returned to Japan. It was submitted that the Board questioned the applicant about the discrimination she and her children would face in Japanese society. The Refugee Protection Officer (RPO) also summarized the evidence before the Board at the conclusion of the hearing. It was submitted that the Board carefully considered the applicant’s evidence but found that it was speculative and that the effect of this discrimination did not constitute persecution. The respondent submitted that the Board was entitled to weigh the evidence and prefer documentary evidence over that of the applicant (see Zvonov v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 138, 28 Imm.L.R. (2d) 23; Zhou v. Canada (Minister of Employment and Immigration) (1994), 49 A.C.W.S. (3d) 558).
[17] The respondent submitted that it was open for the Board to conclude that the discrimination faced by the applicant did not amount to persecution (see Sulaiman, v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 127). It was submitted that the Board’s findings must be considered in light of the definition of persecution adopted by this Court, being an affliction of repeated acts of cruelty, or a particular period of systematic infliction of punishment. The respondent noted that mere harassment was not sufficient (Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)).
[18] The respondent submitted that absent a complete breakdown, a state is presumed able to protect its citizens. It was submitted that refugee claimants must show clear proof of their state’s inability to protect (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1). The respondent submitted that it was not enough for the applicant to show that her government had not been effective at protecting persons in her particular situation (see Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334, 150 N.R. 232 (F.C.A.)). It was submitted that the more democratic a state’s institutions, the more the applicant must have done to exhaust all courses of action open to her (see Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532, 206 N.R. 272 (F.C.A.)).
[19] The Board stated that although there were problems with regard to discrimination against individuals in mixed marriages and families in Japan, the situation was changing. The Board noted that Japan was a functioning democracy with adequate judicial, legal, and police resources. Therefore, the presumption of state protection had not been rebutted. It was submitted that a reasonable finding of state protection was a sufficient basis upon which to dispose of the application for judicial review, despite other errors made by the Board (see Sargraz v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1974 (QL)). It was submitted that the applicant’s position amounted to a disagreement with the Board’s conclusion, and that as such, it did not afford a basis for the Court’s intervention (see Ye v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1233 (F.C.A.) (QL)).
Analysis and Decision
Standard of Review
[20] The Board’s conclusion as to whether the discrimination faced by a refugee claimant constitutes persecution is a question of mixed fact and law, and is therefore subject to review on the standard of reasonableness (see Lopez v. Canada (Minister of Citizenship and Immigration) (2006), 151 A.C.W.S. (3d) 678, 2006 FC 1156).
[21] While the underlying factual findings are subject to review on the standard of patent unreasonableness, the Board’s findings on the adequacy of state protection is a question of mixed fact and law that is reviewable on a standard of reasonableness (see M.P.C.R. v. Canada (Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 1068, 2005 FC 772). I would also note that the Board is presumed to have considered all of the documentary evidence before it, unless the contrary is shown (see Florea above).
Did the Board err in finding that the discrimination faced by the applicant did not constitute persecution?
The applicant submitted that the Board did not analyze her fear of persecution as a member of a particular social group, namely, as a member of a mixed race family. The applicant also argued that the Board erred in finding that the repeated acts of discrimination she would face in Japan did not amount to persecution.
[23] I would note from a review of the Board’s decision that it did consider the applicant’s submissions that there were problems with discrimination in Japan. The Board also considered the RPO’s submissions with respect to discrimination. Those remarks, found at page 177 of the tribunal record, include the following:
I believe the issue before you is whether or not this discrimination is tantamount to persecution. The claimant was questioned at length as to whether or not she knows of anyone who has suffered discrimination personally or whether, even she was back in Japan, if she herself experienced it. She could not. But as we know it’s forward looking. And as I’ve said before, the documents do support the fact that mixed marriages not only exist, but discrimination happens as a result of these mixed marriages. So, as I said, ma’am, I would like you to consider whether the discrimination mentioned by the claimant, albeit she is speculating because she could not give evidence with any certainty, that the children would suffer discrimination. But the fact that discrimination exists, I’ll ask the member again to consider whether or not this is tantamount to persecution.
[24] With respect to discrimination, the applicant stated in response to a question by the RPO at page 165 of the tribunal record:
RPO: But the fact remains, what we’re trying to do here, ma’am, is to find what would happen if you were to return. So this is the future. What would happen if you were to return today or later. So they do now have mixed marriages there. Do you have any information as to how people of mixed marriages are treated there currently?
Claimant: I was looking for Internet about the article, but I couldn’t find anything about the specific topic, because you know still my country is like – according (inaudible) in Japan, (inaudible) first page, almost 90-93% population is ethnic Japanese. So, this is representative about the majority of the population in Japan is Japanese. So ---
[25] The applicant referred to paragraph 54 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which states:
54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.
[26] During the oral delivery of its reason, the Board indicated that while there was evidence that people in mixed marriages suffered from discrimination in Japanese society, such discrimination did not constitute persecution. The applicant’s documentary evidence and testimony did not lead to the conclusion that she would suffer from discrimination leading to consequences of a substantially prejudicial nature to her, should she return to Japan. Upon review of the applicant’s testimony and the documentary evidence as to country conditions, I cannot find that the Board’s conclusion was unreasonable.
[27] Issue 2
Did the Board err in failing to refer to documentary evidence which supported the applicant’s claim?
The applicant submitted that the Board did not consider the applicant’s documentary evidence in sufficient detail. Generally, the Board is considered to have considered all of the evidence before it and is not required to mention every piece of evidence. By way of example, the following exchange took place at the hearing, found at page 176 of the tribunal record:
Presiding Member: Okay. All right, well then I’ll mark that as exhibit R-4. And from the claimants I have the three Personal Information Forms, the package of objective documents titled, “Ethnic Issues in Japan”. And then I also have, which I have marked as C-5, the documents from your spouse this afternoon. Okay?
. . .
RPO: The issue I believe, ma’am, that’s before you is, and I ask you to consider, is whether or not, if the claimant and the children were to return to Japan, if what they face there would be tantamount to persecution. The documentary evidence, it cannot be denied that discrimination exists in Japanese society. Especially where people of foreign nationalities are married to Japanese nationalities.
We do have in the DOS, that’s from 2004, and it states categorically that discrimination is entrenched in the society and it includes, among other things, it restricts access to housing and employment opportunities. The documents that have been entered into evidence, including not only the DOS but including R-4 and, I think it’s C-5 – C-5 or C-4 ---
Presiding Member: C-4 and R-4.
[28] From my review of the hearing transcript, the oral and written decisions, I am of the view that the Board did consider the documentary evidence, including the applicant’s evidence, in coming to its decision. I cannot conclude that the Board made a reviewable error in this respect.
[29] Issue 3
Did the Board err in its analysis of state protection?
The Board concluded that the applicant did not rebut the presumption that state protection would be available to her. I am of the view, after reviewing the file material, that the Board did not make a reviewable error in this respect.
[30] The application for judicial review is therefore denied.
[31] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
[32] The claims of the two children were withdrawn.
JUDGMENT
[33] IT IS ORDERED that the application for judicial review is dismissed.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c.27.:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
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96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-842-06
STYLE OF CAUSE: YUMKO TAZAWA
ISAMU ABDULLAHI OMAR
YUTAKA ALEXANDE OMAR
(a.k.a. YUTAKA ABDULLAHI OMAR)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 7, 2006
APPEARANCES:
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Lani Gozlan
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Fozia Chaudary
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SOLICITORS OF RECORD:
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Max Berger Professional Law Corporation Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |