ALRADIA WEDAH ELBAKER Applicant v. THE MINISTER OF CITIZENSHIP, 2014 FC 759

Date: 20140729 Docket: IMM-505-14 Citation: 2014 FC 759 Ottawa, Ontario, July 29, 2014 PRESENT: The Honourable Mr. Justice Locke BETWEEN: ALRADIA WEDAH ELBAKER Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I.

Introduction [ 1 ] This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act [ IRPA ] following a decision of a member of the Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada [Board] to deny a claim for refugee protection. [ 2 ] The applicant, Alradia Wedah Elbaker, is a citizen of Sudan whose family was caught between warring parties in the Darfur region of that country. She was denied protection under both sections 96 and 97 of the IRPA . [ 3 ] For the purposes of this decision, I need only address the denial under

section 96 , which applies when a claimant has “a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.” For the reasons set out below, I have concluded that this application should be granted and the RPD’s decision set aside. II. Facts [ 4 ] Ms. Elbaker is from El Daein, in the Darfur region of Sudan, and lived in Maali (about 30 km from the city). She had a farm with her husband and children, seven boys and one girl. After civil war began in 2003, Ms.

Elbaker and her family were caught between government and rebel forces due to the specific location of the farm. Each of the sides in the conflict imposed taxes on local people, and each side considered those people to be traitors for giving support to the other side. [ 5 ] On February 14, 2010, government forces surrounded Ms. Elbaker’s farm and began shooting at their house. The forces entered the house and beat Ms. Elbaker’s husband and accused him of being a traitor. When one of Ms. Elbaker’s sons intervened, both the husband and the son were taken to an unknown location. They have not been seen since.

The house was burned down, the livestock were taken and Ms. Elbaker’s children were scattered. To this day, Ms. Elbaker has no news from her children and does not know where they live, or even if they remain alive. [ 6 ] In an attempt to find her missing husband and son, Ms. Elbaker later went to the offices of the government forces who took her husband and son. She was not well-received. She was called a traitor, mistreated, and threatened. [ 7 ] Ms. Elbaker left Maali to rejoin her brother in El Daein. He organized for her to come to Canada on a false Dutch passport where she submitted a refugee claim. III.

Analysis of the RPD’s decision [ 8 ] In assessing the

section 96 aspect of Ms. Elbaker’s refugee claim, the RPD acknowledged at paragraph 11 of its decision that: It may very well be that the members of the government forces who attacked the claimant’s farm and apprehended her husband and son may have believed at the time that the claimant’s family had helped the rebels. [ 9 ] However, later in the same paragraph 11, the RPD states: “The panel finds that insufficient evidence has been provided to support [Ms.

Elbaker’s] allegation that she and her family were personally targeted because of their political opinion or perceived political opinion.” A similar statement is made later in the decision at paragraph 14: The panel … does not find any evidence that the claimant and her family were personally targeted or that the government forces or even the rebel forces have any particular interest in her. The panel also finds that there is insufficient evidence to support her claims of persecution and is not persuaded that her fears are well-founded.

[10] These statements concerning the lack of evidence that Ms. Elbaker and her family were personally targeted are difficult toreconcile with the earlier acknowledgement of the attack on her farm on February 14, 2010, which is clearly a personal targeting. [11] I have attempted in several ways to reconcile the apparent inconsistency, but without success. [12] I have considered whether the RPD was of the view that

section 96 did not apply because the persecution to which Ms.Elbaker and her family were subjected applied generally and was not particular to her family. The RPD’s decision does discuss, still inparagraph 11, the fact that the family was simply in the wrong place and that many other families were similarly targeted. There isfurther discussion of the generalized nature of the risk to Ms. Elbaker at paragraph 17. However, while the generalized nature of a riskmay be relevant to

section 97 of the IRPA, it is not a proper consideration for

section 96. Ms. Elbaker and her family were personallytargeted, and the fact that others were also targeted does not change that. [13] I have also considered whether the RPD was not satisfied that the persecution that Ms. Elbaker and her family faced had anexus to one of the grounds enumerated in

section 96: race, religion, nationality, membership in a particular social group or politicalopinion. But it seems clear that the attack on Ms. Elbaker and her family, and her later mistreatment at the offices of the governmentforces, were due to a perception that she and her family had supported the rebel forces. This would seem to constitute a perception of apolitical opinion, even if Ms. Elbaker and her family were not politically active (Canada (Attorney General) v. Ward, (SCC), [1993] 2 SCR 689 at p 746-747).

In my view, a nexus appears to have been established, even though none was explicitly stated inthe RPD’s decision. [14] The final possibility that I considered in an attempt to reconcile (

i) the RPD’s acknowledgement of the attack on Ms. Elbakerand her family; and (ii) its insistence that insufficient evidence exists to show personal targeting, is as follows: perhaps the RPD meant toconclude that, though Ms. Elbaker was personally targeted at her farm on February 14, 2010, she ceased to be a target after that.

Insupport of this hypothesis is the phrase “at the time” in the above-quoted passage from paragraph 11 of the decision: “government forces… may have believed at the time that the claimant’s family had helped the rebels.” [15] The main problem with this hypothesis is that the RPD decision does not state a conclusion that the risk no longer exists. Infact, the RPD states at paragraph 17 that Ms. Elbaker would face a risk to life if she were to return. Moreover, there does not appear to beany clear evidence to support a conclusion that the risk no longer exists. For one thing, Ms.

Elbaker’s experience going to the office ofthe government forces appears to be sufficient to show that the attack on her farm, the taking of her husband and son, and the burningdown of her house did not end the risk she faced. [16] The RPD’s decision notes that Ms. Elbaker has not experienced any further difficulties at the hands of either government orrebel forces, and that there is no evidence that they have any interest in the claimant. Those are facts, but they are not evidence that thetargeting to which Ms. Elbaker and her family were subjected has ended.

But the uncontradicted evidence is that the government forceshave continued to threaten Ms. Elbaker. I have seen no evidence to indicate that this state of things has changed or that the governmentforces no longer believe that Ms. Elbaker supports the rebels. [17] I am also mindful that the burden for a refugee claimant to satisfy s.96 is relatively low.

A claimant must prove on the balanceof probabilities that there is more than a mere possibility – or a reasonable chance – that the claimant will face persecution if returned tohis or her country of origin: Adjei v Canada (Minister of Employment and Immigration), (FCA), [1989] 2 FC 680 at683, 57 DLR (4th) 153 (FCA) and Lopez v Canada (Minister of Citizenship and Immigration), 2006 FC 1156 (para 20). [18] The foregoing analysis concerns issues of mixed fact and law and the parties are agreed that the standard of review of theRPD’s decision is reasonableness. [19] I have been unable to reconcile the RPD’s critical conclusion of insufficient evidence that Ms.

Elbaker has been personallytargeted with its acknowledgement of Ms. Elbaker’s personal experiences. For these reasons, I find this conclusion by the RPD to beunreasonable. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is granted. The RPD’s decision is set aside and the matter isreferred back to the Board for a new determination by a differently constituted panel. There is no serious question of general importanceto certify. “George R. Locke” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-505-13

STYLE OF CAUSE: ALRADIA WEDAH ELBAKER v MCI PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: JULY 23, 2014 JUDGMENT AND REASONS: LOCKE J. DATED: July 29, 2014 APPEARANCES : Howard P. Eisenberg For The Applicant Suranjana Bhattacharyya For The Respondent SOLICITORS OF RECORD : Eisenberg & Young Barristers & Solicitors Hamilton, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent