[1995] 3 F.C. 61
IMM-3528-94
Khatijabhai Vidhani (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Vidhani v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, McKeown J.—Toronto, May 15 and June 8, 1995.
Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of decision applicant not Convention refugee — Applicant leaving Kenya to avoid traditional Islamic arranged marriage — Claiming membership in particular social group i.e. women forced into arranged marriages without their consent — Fearing sexual attack by police if complaining about forced marriage — Basic human right to enter freely into marriage, but restriction on exercise of human right not always persecution — Board considered persons forced into arranged marriages constituting particular social group, but not properly considering consequences if refused to marry, and whether state protection available — No documentary evidence of police attitude towards complaints concerning arranged marriages — Not addressing applicant’s evidence as to why not seeking police protection — Application allowed, Board having failed to ask proper question.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321.
CONSIDERED:
Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314 (1993), 19 Imm. L.R. (2d) 81 (C.A.); Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675 (1993), 20 Imm. L.R. (2d) 181; 156 N.R. 279 (C.A.); leave to appeal to S.C.C. granted [1994] 1 S.C.R. vi.
AUTHORS CITED
Immigration and Refugee Board. Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Ottawa: Immigration and Refugee Board, March 9, 1993.
APPLICATION for judicial review of decision applicant, a woman who refused to enter into an arranged marriage in Kenya and feared attack by police if she were to complain, was not a Convention refugee (X. (K.E.) (Re), [1994] C.R.D.D. No. 123 (QL)). Application allowed.
COUNSEL:
Michael E. Brodzky for applicant.
Cheryl D. E. Mitchell for respondent.
SOLICITORS:
Michael E. Brodzky, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
McKeown J.: The applicant, a female Asian citizen of Kenya, seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated June 9, 1994, wherein the Board determined that the applicant was not a Convention refugee [X. (K.E.) (Re), [1994] C.R.D.D. No. 123 (QL)].
The issue in this matter is whether the Board failed to address the question of whether the applicant was a member of a particular social group, i.e., women who enter into an arranged marriage to which there is no consent, and whether the applicant was subject to persecution within the meaning of the definition of “Convention refugee” set out in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, as amended [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1], (the Act), and whether such failure constitutes a reversible error.
As the Board stated at page 11 of its reasons:
The claimant testified that, if it was not for her father arranging a marriage to a man she did not wish to marry, as is Islamic tradition, she would not have left Kenya.
The Board then went on to consider the following question at pages 14-15 of its reasons:
Turning now to membership in a particular social group, counsel submitted that this pertains to the claimant’s gender as an Asian woman in these particular circumstances.
In this regard, the panel notes the Guidelines issued by the Chairperson, pursuant to section 65(3) of the Immigration Act, Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board, Ottawa, Canada, March 9, 1993.
The panel notes the possible spousal abuse the claimant feared, if the marriage had occurred. However, it did not. In the event that the claimant did get married to an abusive husband, the panel notes that there are laws on domestic abuse that can be pursued by the claimant.
The Board discussed possible spousal abuse at the hands of the man she was to marry, however, under the circumstances of this case, given the lack of factual evidence, such abuse is speculation. I do not agree with the inference of the Board that there must be actual spousal abuse before persecution can occur, however. It is difficult to determine whether the Board actually considered the issue of whether an arranged marriage to which there is no consent constitutes persecution within the definition of Convention refugee. Although in its decision it mentioned the Guidelines issued by the Chairperson [Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution], which deal with the issue of gender persecution, it did not review these Guidelines in its reasons. I will now deal with the relevant portions of the Guidelines.
Under General Proposition at page 2 it states:
Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection to women who demonstrate a well-founded fear of gender-related persecution by reason of any one, or a combination of, the enumerated grounds.
Before determining the appropriate ground(s) applicable to the claim, decision-makers must first identify the nature of the persecution feared by the claimant.
The Guidelines then set out the four broad categories of women subject to persecution; the fourth reads as follows [at page 3]:
Women who fear persecution as the consequence for failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin. Such laws and practices, by singling out women and placing them in a more vulnerable position than men, may create conditions precedent to a gender-defined social group. The religious precepts, social traditions or cultural norms which women may be accused of violating can range from choosing their own spouses instead of accepting an arranged marriage to such matters as the wearing of make-up, the visibility or length of hair, or type of clothing a woman chooses to wear.
Then at page 4 under the heading Race the Guidelines state:
There may be cases where a woman claims a fear of persecution because of her race and her gender. For example, an Asian woman in an African society can be persecuted not only for her race, but also for her gender.
The Guidelines [at page 5] then go on to review the findings of the Executive Committee of the United Nations High Commissioner for Refugees where Conclusion No. 39 reads:
There is increasing international support for the application of the particular social group ground to the claims of women who allege a fear of persecution solely by reason of their gender ….
Then at page 7, the Guidelines state:
The circumstances which give rise to women’s fear of persecution are often unique to women. The existing bank of jurisprudence on the meaning of persecution is based on, for the most part, the experiences of male claimants. Aside from a few cases of rape, the definition has not been widely applied to female-specific experiences, such as infanticide, genital mutilation, bride-burning, forced marriage, domestic violence, forced abortion, or compulsory sterilization. [Endnotes omitted.]
The Guidelines also refer to some cases before the Board as well as an obiter of a decision of the Federal Court of Appeal on this subject, at page 14, endnote 8. The same year that the Guidelines were released by the Chairperson of the Board, there were three very important cases relating to a particular social group. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314(C.A.); and Chan v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 675(C.A.); leave to appeal to S.C.C. granted [[1994] 1 S.C.R. vi]; judgment under reserve. The conclusion in Cheung, supra, was that forced sterilization as practised in China fell within the definition of persecution, as contemplated by the Convention refugee definition. The Chan case, supra, appears to have come to a contrary conclusion. I shall, therefore, restrict my analysis of a particular social group to the comments by La Forest J. in Ward, supra. In particular, I refer to page 739 where he stated:
The meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers, Cheung and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify three possible categories:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
…
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists.
The respondent suggested that the applicant fell within the second category, however, La Forest J.’s wording puts gender-related cases in the first group, which seems to be more appropriate. In my view, women who are forced into marriages against their will have had a basic human right violated. There are United Nations conventions to which Canada is a party which state that the right to enter freely into marriage is a basic human right. If the applicant falls within the first category, as in my view she does, it is not necessary for the Board to look at whether the sanctions are so severe that they severely interfere with bodily integrity or human dignity. However, the restriction on the exercise of a human right does not constitute persecution in every case. I will now examine whether the Board examined persecution of the applicant in this light.
The applicant in this case advanced two arguments with respect to her situation. She claimed membership in a particular social group, being Asian women in Kenya, and women forced into arranged marriages without their consent. The Board clearly dealt with the applicant’s submission that she was a member of a particular social group, i.e., an Asian woman in Kenya, and concluded at pages 15-16 of its reasons:
The panel concluded, from the documentary evidence, that there are laws and there are women’s groups actively combating domestic violence. In the claimant’s particular circumstances, it defies logic that a twenty-five-year-old woman, in a business career since the age of 18, who is able to travel abroad on business since 1984, although always accompanied by her aunt or her mother, with money of her own, who was able to arrange to leave the country on her own, and who was aware that her parents were seeking a suitable husband for her since her 19th birthday, would not seek the intervention of the Kenyan authorities before seeking international asylum.
With respect to this issue, the Board found that she was a member of a particular social group, but that there was documentary evidence indicating that such women had recourse to the Kenyan authorities, and that domestic violence is being addressed in that country. The Board did not address as clearly, however, whether persons forced into marriage without their consent constitute a particular social group. Nonetheless, the fact that it considered the consequences of the marriage, being abuse by the applicant’s father should she refuse to go through with the marriage, makes it possible to infer that the Board determined that persons forced into arranged marriages might constitute a particular social group, and be subject to persecution. The question that arises is whether the Board properly considered what would happen to the applicant should she fail to conform to custom, refusing to marry the man chosen for her, and whether state protection would be available to her in these circumstances. The Board dealt with the Ward case, supra, to determine whether it was objectively unreasonable for the applicant not to have sought the protection of the home authorities. It mentioned the fact that the applicant might face abuse at the hands of her father, but found that it would be reasonable to approach the state for protection and indicated that the applicant had made no attempts to go to the authorities as it stated at pages 19-20 of its reasons:
The panel acknowledges, as counsel has submitted, that Asian women of the Islamic faith continue to be disadvantaged. However, the general thrust of the documentary evidence suggests that the role of women in Kenyan society is changing slowly and the claimant is not without effective recourse in seeking protection against domestic abuse in Kenya, be it at the hands of her father or possible husband.
The claimant did not make any attempts to seek the protection of Kenya state before leaving her country and the panel is of the opinion that should she face threats or abuse at the hands of her father, on account of her resistance to the marriage, it would be reasonable under the circumstances to approach the authorities for protection. [Footnote omitted.]
The Board, however, did not deal with the applicant’s own evidence stating why she did not seek protection. The applicant testified that she feared the police would sexually attack her if she made a complaint with respect to being forced into a marriage without her consent. The Board did not have any documentary evidence before it with respect to the attitude of the authorities on complaints by women being forced into marriage without their consent. Nor was there any adverse credibility finding with respect to the applicant. Therefore, the Board should have dealt with her testimony on possible sexual attack by the police and determined whether this constituted persecution in her case.
There is no doubt the jurisprudence is replete with examples of where boards and courts have been reversed for failure to ask a proper question. In light of the Board’s failure to deal with the applicant’s particular evidence with respect to why she did not go to the police, and the fact that there was no documentary evidence regarding police attitude to complaints with respect to arranged marriages, it is a reversible error for the Board to have failed to ask the proper question and conduct the proper analysis of the persecution to which she would be subject for refusal to marry.
The application for judicial review is allowed and the decision of the Board is quashed. The matter is returned to a differently constituted panel of the Board. The new panel will have to analyze persecution in light of her membership in a particular social group of women who are forced into marriage without their consent. In this respect the Ward case, supra, which discusses the relationship between persecution and state protection will have to be carefully considered.