Ottawa, Ontario, Wednesday the 3rd day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Ms. Nancy Munani Makau is a citizen of Kenya who claimed status as a Convention refugee and a person in need of protection on the basis of her fear that, should she return to Kenya, she will be forced into an arranged marriage and be forced to undergo female genital mutilation. The Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel") rejected Ms. Makau's testimony as being incredible because of what the panel found to be contradictions and improvisations in her testimony. Ms. Makau brings this application for judicial review of that negative decision.
[2] In Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at paragraph 38, the Supreme Court of Canada recently reaffirmed that, pursuant to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, findings of fact may only be set aside if made in a perverse or capricious manner, or without regard to the material before the tribunal. The standard of review in respect of issues of credibility is patent unreasonableness.
[3] Central to the RPD's credibility finding were its determinations that:
i) In her Personal Information Form, and in her declaration made to an officer at the port of entry, Ms. Makau said that she had learned of the arranged marriage from her parents in March of 2003. This was inconsistent with her testimony before the RPD that she learned of the arranged marriage only in June of 2003 from her aunt.
ii) It was implausible, given Ms. Makau's testimony that her marriage had been formalized in January or February of 2003, that in March or April of 2003 her father would have acquiesced to her applying for admission to Canadian universities so as to continue her studies in Canada.
iii) The documentary evidence was to the effect that female genital mutilation is traditionally carried out on girls at the time of puberty. There was no documentary evidence to corroborate Ms. Makau's assertion that among her tribe some women were excised just prior to marriage.
[4] These findings were supported by the evidence before the panel and, in my view, cannot be characterized as being perverse or capricious. They revealed serious contradictions and implausibilities with respect to the central aspects of Ms. Makau's claim. The findings are sufficient to support the rejection of Ms. Makau's claim on credibility grounds.
[5] Having so found, I note that the RPD appears to have engaged in conjecture, as opposed to drawing an inference from the evidence, when it speculated that Ms. Makau's parents were helping her to obtain refugee status. This error is, however, insufficient to warrant setting aside the decision of the RPD.
[6] In Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81, Mr. Justice Joyal observed, in an often quoted passage, that decisions of the Refugee Board must be read as a whole and analyzed in the context of the evidence in order to decide if the conclusions reached were patently unreasonable. Having examined the decision as a whole, in the context of the evidence, I am satisfied that the conclusions of the RPD were not patently unreasonable. The application for judicial review is, therefore, dismissed.
[7] Counsel posed no question for certification, and I agree that no serious question of general importance arises on this record.
ORDER
[8] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6865-04
STYLE OF CAUSE: NANCY MUNANI MAKAU V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 20, 2005
REASONS FOR ORDER AND DAWSON J.
ORDER
APPEARANCES:
BRIGET O'LEARY FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C.