Toronto, Ontario, March 9, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Ms. Lubega is a citizen of Uganda who came to Canada as a student. She claims that, while in Uganda, she was to be forced into marriage with a 53-year-old man and subjected to female genital mutilation, specifically genital elongation (FGM). She claimed refugee status after learning from her mother that problems had arisen as a result of Ms. Lubega's departure from Uganda. The Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed the claim. I have not been persuaded that the RPD erred such that the application should succeed.
[2] The principal determinative issue in this claim was Ms. Lubega's lack of credibility, based on the inconsistencies and implausibilities in her evidence. The RPD stated:
The panel therefore rejects the claim of Jackie Lubega. The significance of its credibility concerns and resulting findings leaves the panel with insufficient credible or trustworthy evidence on which to make a positive finding.
[3] The applicant submits that the board erred in fact when it found that she did not belong to the Baganda tribe and when it concluded, as a result, that the documentary evidence regarding the FGM practices of the Baganda tribe was not relevant. Ms. Lubega states in her personal information form (PIF) that she is Muganda. However, Muganda is the singular form of Baganda. Ms. Lubega asserts that the impugned finding is significant because it led the board to conclude that there was no objective basis for her claim.
[4] There is nothing in the certified tribunal record (including the transcript) that would lead the RPD to conclude that Muganda is the singular form of Baganda. The document contained at page 37 of the applicant's record (exhibit "D" to the applicant's affidavit) was not before the RPD and its inclusion in the application record is improper. Judicial review concerns the review of a decision for the purpose of assessing its legality. The reviewing court must proceed on the record, as it exists, confining itself to the criteria for judicial review: Canada(Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.). The applicant's submission in this respect will not be considered.
[5] The applicant additionally takes issue with the board's reference to an online exchange in which FGM is discussed by two unknown individuals chatting on a Yahoo forum. I agree that the veracity of this evidence is highly questionable. Nonetheless, it ill befits the applicant to complain of the board's reference to it when it was the applicant who tendered the document as evidence. Insofar as the board's failure to mention the other piece of documentary evidence provided by the applicant, while it may have been preferable for the board to have done so, its failure in this respect is not fatal to its decision. The document in question went to the objective basis for the applicant's claim. At the end of the day, even if it were established and accepted that Ms. Lubega is a member of the Baganda tribe and that FGM is practised by the Baganda tribe, the decision does not turn on the objective element of the claim. It rests on the applicant's failure to satisfy the subjective element. A claimant must satisfy both elements: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Rajudeen v. Canada(Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.).
[6] The evidence in this matter is replete with inconsistencies. The applicant has attacked some of the board's credibility findings. For the most part, her arguments are without merit. I do agree that the board misinterpreted the applicant's evidence regarding the measurement of the elongation. In all other respects, the findings made by the board were open to it.
[7] The RPD provides an extensive list of inconsistencies and discrepancies regarding the alleged beatings of her mother, the Chairman's letter and Ms. Lubega's testimony, her mother's statement as compared with the other evidence, and the student visa documentation. The inconsistencies are relevant and significant because they go to the question of motivation for the claim. The applicant also failed to provide any explanation regarding the fact that her sisters had not been subjected to FGM. The board was entitled to give little weight to the letter from the medical doctor, not because of what it said, but because of what it failed to say.
[8] In short, the few errors established by the applicant in relation to the board's findings of inconsistency and implausibility would not have affected the result because the evidence, in its totality, was found to be not credible. Having carefully reviewed the record and the transcript of the hearing, I find no fault with the board's conclusion and it is readily apparent why it dismissed the claim.
[9] The RPD determined clearly and unequivocally that the applicant was not credible and it provided detailed reasons for its findings. It is entitled to significant deference in this respect and my intervention is not warranted. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2599-05
STYLE OF CAUSE: JACKIE DORA LUBEGA
Applicant
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 8, 2006
AND ORDER: Layden-Stevenson J.
APPEARANCES:
| David Yerzy
|
|
| Mielka Visnic |
SOLICITORS OF RECORD:
| David Yerzy Barrister and Solicitor Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |