Date: 20051109
Docket: IMM-90-05
Citation: 2005 FC 1525
Ottawa, Ontario, November 9, 2005
PRESENT: The Honourable Mr. Justice EdmondP. Blanchard
BETWEEN:
KINUTHIAH DAN NGARAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is an application for judicial review of the December 2, 2004, decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), wherein Kinuthia Dan Ngarah was found not to be a Convention refugee or a person in need of protection.
[2] The Applicant seeks an order setting aside the decision of the Board and referring the matter back to the Board:
a) with a direction to declare the Applicant a Convention refugee or person in need of protection, pursuant to s. 18.1(3)(b) of the Federal Courts Act, or
b) for re-determination by a differently constituted panel.
2. Background Facts
[3] The Applicant relates the following information in his Personal Information Form (PIF). He is a citizen of Kenya and is a member of the Kikuyu tribe and worked as a purchasing officer for Jakwe Construction, starting in 1990. The Applicant disclosed his sexual orientation to his father in August 2000 and as a consequence his father disowned him. Subsequently, in November 2000 he was fired from his job.
[4] In 1995, the Applicant joined the National Democratic Human Rights Organization (NDEHURIO), a group involved in the resettlement and counselling of displaced Kikuyu tribe members in the Rift Valley. As a result of this work, the Applicant was arrested twice in 1995. He was held for several days during which time he was abused by the police; each time he was released after the payment of a bribe.
[5] The Applicant and his partner, Moses Rujema, began living together in 1990. As knowledge of their sexual orientation spread, the Applicant and his partner suffered more abuse in the community. In February 2003, the house they were living in burned down and Mr. Rujema was killed in the fire. When the Applicant reported the fire, the police arrested him and threatened to charge him with arson. He was detained for a week and abused by police; he was released after the payment of a bribe.
[6] The Applicant went to live at a friend's house. Fearing that things would get worse, the Applicant left Kenya on August 4, 2003. He travelled through France and England and arrived in Toronto on August 9. He requested refugee protection at the Pearson International Airport. The Applicant sought asylum on the basis of his sexual orientation.
[7] The Applicant's hearing took place on October 28, 2004, by videoconference. The Applicant and his counsel were in Toronto while the Board and Refugee Protection Officer were in Montreal. The hearing was conducted in English without an interpreter.
[8] In dismissing the Applicant's claim, the Board found that the Applicant had not established the "central factual elements of his claim, on the balance of probabilities, with credible and trustworthy evidence". The Board concluded that the Applicant had not established his "homosexual orientation". Further, the Board concluded that, on the evidence, the Applicant had not established more than a mere possibility of risk of persecution, torture or cruel and inhuman treatment, or of risk to life.
[9] The Applicant applied for leave to judicially review the Board's decision, and leave was granted on June 28, 2005.
3. The Impugned Decision
[10] The Board stated that it found inconsistencies in the evidence which were not satisfactorily explained and which undermined the Applicant's credibility. Specifically, in its reasons, the Board focused on the Applicant's testimony concerning his citizenship and identity, the revelation of his sexual orientation, and the spelling and pronunciation of the name of Rhumba Kinuthia, the executive secretary of NDEHURIO. The Board also cited inconsistencies between the Applicant's PIF and his oral testimony.
[11] The Board found the Applicant's testimony to be untrustworthy and concluded that the Applicant was not a credible witness, that he is not homosexual, and that he had not established more than a mere possibility that he would be at risk if returned to Kenya.
[12] At the outset the Board raised concerns in respect to the Applicant's identity documents, in particular his birth certificate and passport. The Board found that the Applicant was unclear and hesitant in his testimony when questioned on these documents. In the end, though questions had been raised in respect to the Applicant's identity, the Board gave the Applicant the benefit of the doubt and accepted, "...on the balance of probabilities, that the claimant is a citizen of Kenya, with the identity he alleges for himself."
[13] The Board then referred to the Applicant's testimony concerning how long his relationship was a secret and when and to whom he first came out. The Board stated that the Applicant's testimony was confusing and evasive. The Board found it contradictory that the Applicant testified that his relationship was a secret until 1995 and yet the first person he acknowledged his sexual orientation to was his father in 2000. When asked to explain, the Board stated that the Applicant replied that he continued to lead a secret life but that people knew about his sexual orientation in 1995. This response did not satisfy the Board.
[14] The Board also referred to the letter written by Rumba Kinuthia which states that NDEHURIO "came to know of Mr. Ngarah's sexual orientation in the late 1990s". The Board set out the exchange at the hearing where the Applicant was asked to explain why the statement in the letter differed from his testimony that the first person he told was his father in 2000. The Board was not satisfied with the Applicant's response and found that the Applicant's testimony on the issue was untrustworthy.
[15] The Board also referred to the misspelling and mispronunciation by the Applicant of Rumba Kinuthia's name. The Board noted that the Applicant testified that in Kikuyu there is a problem with the R's and L's and that the letter L does not exist in Kikuyu. The Board rejected this explanation and concluded that "the claimant's vague and inconsistent testimony on this point undermined his credibility".
[16] The Board stated that the Applicant was unable to provide clear and consistent versions of sequences of events. One such event the Board referred to is the date of the death of the Applicant's partner. The Board noted that the Applicant wrote in his PIF that his partner died in February 2003, but then the Board pointed out that the Applicant wrote [by hand] in his Record of Examination (ROE) narrative that he had been "[living] with his partner since 1990 but since 2000 when he died...". Although the Board acknowledged that the Applicant stated that writing "2000" was a mistake due to stress and that the Applicant's counsel pointed out that in Schedule 1 of the ROE, the immigration officer had written down that the Applicant's partner died in February 2003, the Board rejected the Applicant's explanation and found that even if the error was a "simple mistake", it would not counterbalance its finding of a general lack of credibility of the Applicant.
[17] Finally, the Board found it unreasonable that the Applicant did not provide corroborating documentary evidence, such as a copy of his partner's death certificate, to support each of the central issues of his claim.
[18] In its conclusion, the Board found, on the evidence before it, that the Applicant had not established his homosexual orientation. Further, the Board held that the Applicant had not established more than a mere possibility that he would be at risk of persecution or torture.
4. Issues
[19] The following issues are raised in this application:
A. Did the Board err in finding that the Applicant did not establish his homosexual orientation, while finding him to have "the identity that he alleges"?
B. Did the Board err in making its negative credibility findings in respect to the Applicant?
C. Did the Board's conduct of the Applicant's refugee hearing violate principles of procedural fairness or natural justice?
5. Standard of Review
[20] The jurisprudence has established that the appropriate standard of review for findings of facts and credibility determinations is patent unreasonableness. The Federal Court of Appeal has established that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony, as well as the risk of persecution: Aguebor v. Canada(Minister of Employment & Immigration), [1993] F.C.J. No. 732 (QL). On such findings, the Court should not intervene unless the Board bases its decision on an erroneous finding of fact made in a perverse and capricious manner or without regard to the material before it: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d).
[21] However, the Federal Court of Appeal has also held that credibility findings must be based upon reasonably drawn inferences, not conjecture or speculation. Where inferences are improperly drawn, the Court is more likely to interfere with the Board's decision: Giron v. Canada(Minister of Employment and Immigration), (1992), 143 N.R. 238, [1992] F.C.J. No. 481 (QL).
6. Analysis
A. Did the Board err in finding that the Applicant did not establish his homosexual orientation, while finding him to have "the identity that he alleges"?
[22] The Applicant submits that the Board committed a reviewable error by first accepting that "the claimant is a citizen of Kenya, with the identity he alleges for himself" but then later concluding that the Applicant is not homosexual.
[23] The Applicant contends, first that the Board's finding that the Applicant is not homosexual contradicts its initial finding accepting the identity he alleges for himself. Second, the Applicant argues that by giving him the benefit of the doubt, the Board was in effect finding him credible and, as consequence, the Board's subsequent negative credibility finding is not consistent with giving the Applicant the benefit of the doubt. The Applicant argues that the Board failed in its obligation to give reasons for its decision in clear and unmistakable terms. The Applicant contends that the Board in effect contradicts itself by implicitly finding the Applicant credible and, later in its reasons, lacking in credibility as to his sexual orientation.
[24] While I accept that the reasons for decision of the Board could have been crafted with greater care and provided more clarity in respect to its findings regarding the Applicant's identity, I do not accept the Applicant's argument. In the first four paragraphs of its reasons the Board dealt in significant detail with the documentary evidence produced by the Applicant to establish his identity, particularly his birth certificate and passport. At this point in its reasons the Board was only dealing with the Applicant's identity documents and not his sexual orientation, the key element of his claim. By accepting "...the identity [the Applicant] alleges for himself", the Board was in effect accepting his identity as a citizen of Kenya. Reading the Board's reasons as a whole, it is clear that the Board at this stage of its reasons was not finding in respect to the Applicant's sexual orientation.
[25] The Applicant contends that the Board's negative credibility finding is not consistent with giving the Applicant the benefit of the doubt. The Applicant cites the "UNHCR Handbook on Procedures for Determining Refugee Status" (the UNHCR Handbook), particularly article 204 which states:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility, The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[26] In support of his argument the Applicant points to the decision of Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, where the Supreme Court established that the UNHCR Handbook must be treated as a highly relevant authority in considering refugee admission practices.
[27] The Applicant's argument is not without merit. While the above cited guidelines suggest the benefit of the doubt should only be extended to a claimant that is generally credible. By finding the Applicant lacking in credibility as to his sexual orientation, the Board's decision is therefore arguably inconsistent. I am not prepared to find this inconsistency fatal to the Board's decision. On the evidence, it was open to the Board to accept the Applicant's identity as a citizen of Kenya. The difficulty with the decision is rather with the Board's credibility findings which led to the conclusion that the Applicant has not established his homosexual orientation as alleged. For the reasons that follow I find that these negative credibility findings of the Board are determinative of the within application.
B. Did the Board err in making its negative credibility findings in respect to the
Applicant?
[28] The Board found that the Applicant had not established the key element of his claim, his homosexual orientation. The Board based its decision on a number of negative credibility findings resulting from inconsistencies and implausibilities in respect to the following evidence:
1. the Applicant's evidence as to when people came to know about his sexual orientation;
2. the Applicant's difficulty with the letters "L" and "R" in respect to his evidence on Rhumba Kinuthia ;
3. the Applicant's evidence on how the news of his "coming out" was received by his colleagues at his work place;
4. the Applicant's evidence on when his partner died;
5. the Applicant's failure to produce corroborating evidence on the death of his partner;
6. the Applicant's general demeanour in testifying.
I will deal with each of the above in turn.
[29] The Applicant argues that the Board erred in impugning his credibility by finding that he gave conflicting evidence in respect to when people came to know about his sexual orientation. The Applicant states that he initially testified that colleagues at NDEHURIO and others, who knew that he and his partner shared travel accommodations, became aware of his homosexuality in 1995, but that he did not tell anyone he was gay until he disclosed his sexual orientation to his father in 2000. The Applicant states that the Board failed repeatedly to appreciate the distinction between people suspecting and therefore "coming to know" about his sexual orientation and his active disclosure to his father. The Applicant submits that the Board's resulting adverse credibility finding was not based on a reasonably drawn inference. He submits that it is not a contradiction for people to know about a person's sexual orientation without the person having disclosed that fact.
[30] I agree with the Applicant's submissions in respect to this finding by the Board. A review of the transcript of the hearing establishes there to be no inconsistency in the Applicant's evidence. During an exchange with the Applicant, the Board stated, "...well, if they knew about it [his sexual orientation], [the Applicant] told them". There is no basis in the evidence to support this inference drawn by the Board. The Board simply speculated that since "they knew", the Applicant would have told them, notwithstanding the Applicant's evidence to the contrary. In my view this finding is made without regard to the evidence and, as a consequence, is patently unreasonable. The Board erred by relying on this erroneous finding to impugn the Applicant's credibility.
[31] The Board found it implausible that the Applicant would be unable to provide clear and consistent evidence about Rumba Kinuthia, a person he had known since 1993, and who had signed a letter on his behalf. In his oral testimony the Applicant referred to this individual as "Lumba Kinuthia". The Board rejected the Applicant's explanation that he had difficulty with the letters "R" and "L" since the letter "L" does not exist in Kikuyu. In my view, the Board erred in rejecting the Applicant's explanation. No reason is given for rejecting the explanation and in my view the finding demonstrates a lack of sensitivity to the cultural and linguistic circumstances of this particular claimant. Not only do I find the Applicant's explanation reasonable, there is evidence on the record showing that the Applicant on at least one other occasion had difficulty with these same letters. In his handwritten narrative accompanying the ROE, he wrote "Rift" Valley, whereas in Schedule 1 of the ROE, the immigration officer who examined the Applicant wrote "Lift" Valley. This corroborates the Applicant's evidence. The Applicant's explanation is in accordance with logic and common sense and should not have been rejected. In the circumstances, I find the Board's implausibility finding to be patently unreasonable.
[32] With regard to the Applicant's job, the Board made the following findings. First, it found that the Applicant was inconsistent when he stated in his oral testimony that he had lost his job after he told his father, while in his PIF he wrote that he had lost his job after coming out and then talked to his father. Second, the Board found that the Applicant's testimony that he was not confronted at work to be clearly inconsistent with his statement that after coming out the news was not well received at work. Based on these findings, the Board further impugned the Applicant's credibility.
[33] With regard to the first above finding, it is far from clear from the Applicant's narrative that the sequence of events as described is inconsistent with the Applicant's testimony. The PIF narrative is unclear as to whether the Applicant's father was told before or after the Applicant lost his job. With respect to the second inconsistency, I find there to be no connection between news of the Applicant's homosexuality being not well received in the work place and the notion of being confronted at work. Not being well received does not necessarily lead to confrontation and, in the result, it is difficult to appreciate how the two observations can be inconsistent. The Board's finding is based on conjecture and a misapprehension of the facts. The Board erred by impugning the Applicant's credibility on the two above findings which I find to be patently unreasonable.
[34] The Board also impugned the Applicant's credibility for not providing consistent evidence on the death of his partner. The Applicant stated that his hand written statement in the ROE, which indicated that his partner died in 2000, was a mistake. The Applicant explained that he was fatigued when the error was made. The Board rejected this explanation citing other inconsistencies and the Applicant's general inability to provide a clear and consistent version of events. In essence the Applicant's explanation was rejected because the Board found other inconsistencies and implausibilities in the Applicant's evidence. These are the same erroneous findings dealt with above. Further, the Applicant's PIF and Schedule 1 of the ROE both indicate that his partner died in 2003. The Board erred in rejecting the Applicant's reasonable explanation. His credibility should not have been impugned for what amounts, in my view, to a simple mistake.
[35] The Board also found the Applicant's account of his detention not credible. In his PIF the Applicant stated that while in detention he suffered "...for a full week [...] unimaginable torture and humiliation." The Board reasoned that though the Applicant was subject to unacceptable conditions while in detention, these conditions were not consistent with the description he gave in his PIF. This determination turns on how one defines "unimaginable torture". Through the eyes of the Applicant, the treatment may well have fit this description. While I do not find the Board's finding to be patently unreasonable, nor can it be, in my view, determinative of the claim.
[36] In considering the Applicant's claim, it was reasonable for the Board to have expected the Applicant to provide corroborating documents on the central elements of his claim in particular, a copy of his partner's death certificate. Section 7 of the Refugee Protection Division Rules, SOR/2002-228, requires that acceptable documents be filed for this purpose, excepting where a claimant can explain why such documents are unavailable. The Applicant simply explained that he did not think obtaining a copy of the death certificate would be necessary. Though a factor to be considered in assessing credibility, the Applicant's failure to provide his partner's death certificate is not determinative of the claim in circumstances where a negative credibility assessment is based essentially on a number of erroneous credibility findings, as discussed earlier in these reasons.
[37] Negative credibility findings based on a claimant's demeanour are usually shown deference by the Court. It is widely accepted that a tribunal, having seen and heard the claimant, is in the best position to make such assessments. In the instant case, however, many of the Board's observations regarding the Applicant's demeanour, particularly in respect to confusion, hesitancy and evasiveness relate in large measure to the erroneous credibility findings of the Board, which were made, either without regard to the evidence or based on a serious misapprehension of the evidence. Because of this, I give little weight to the Board's findings in respect to the Applicant's overall demeanour. In the result, the Board's observations in this respect are clearly insufficient to warrant dismissal of the claim.
[38] The Board dismissed the Applicant's claim on a finding of general lack of credibility and concluded that he had not established the central factual element of his claim, his homosexual orientation. The Board based its decision on a number of inconsistencies and implausibilities in the Applicant's evidence which I find to be patently unreasonable for reasons discussed above. In my view the cumulative effect of these errors warrants the Court's intervention. I therefore find that the Board committed a reviewable error in concluding as it did and in dismissing the Applicant's claim on the basis of the Applicant's lack of credibility.
C. Did the Board's conduct of the Applicant's refugee hearing violate principles of
procedural fairness or natural justice?
[39] The Applicant states that the Board was over-zealous in its cross-examination of the Applicant. The Applicant also states that the vigorous examination by the Board member crossed the line from being a neutral, impartial adjudicator to becoming a participant in the hearing. The Applicant submits that such confrontations by the Board give rise to a reasonable apprehension of bias.
[40] A careful review of the transcript confirms that the examination of the Applicant was thorough and at times aggressive. Upon considering the entire transcript I am unable to conclude that the Board, in its conduct of the hearing, unduly interfered with the proceeding or breached the principles of natural justice. It is appropriate for the Board to ask question to clarify testimony or address issues which are relevant to the case. Moreover, there is no evidence that the Applicant or his counsel objected to the Board's interventions or questions at the hearing. The Applicant has failed to establish that the Board's conduct at the hearing violates principles of procedural fairness or natural justice. Nor has the Board, by its conduct, raised a reasonable apprehension of bias as defined and understood in the jurisprudence of this Court.
7. Conclusion
[41] For the above reasons the application for judicial review will be allowed. The decision of the Board is quashed and the matter is referred back for re-determination before a differently constituted Board.
[42] The parties had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I am satisfied that no question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The decision of the Board is quashed and the matter is referred back for re-determination before a differently constituted Board.
3. No question is certified.
"Edmond P. Blanchard"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Kinuthiah Dan Ngarah v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 24, 2005
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Nshumala Juyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jordon Battista LLP FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada