Ottawa, Ontario, December 19, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MARTIN NJAGI KARIUKI
Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Applicant is a Kenyan citizen and a member of the Kikuyu tribe, who bases his Convention refugee claim on an alleged fear of persecution by reason of his political opinion, his Christian faith, and his membership in a particular social group. In particular, the Applicant fears the Mungiki, a violent sect of Kikuyu, who sought to influence the government and who committed violent crimes against his community. Prior to his arrival in Canada, he lived in or near Nairobi. In a decision dated January 24, 2005, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dismissed the Applicant's claim for protection, on the basis that the Applicant was not credible. The Applicant seeks judicial review of this decision.
Issues
[2] The sole issue in this application is whether the Board erred by basing its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the evidence before it.
Analysis
[3] The Applicant has challenged the factual findings made by the Board, particularly credibility findings. These determinations are in the heartland of the Board's jurisdiction and expertise, and should be accorded high deference (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) at pp. 316-317). This Court may intervene if the Board based its decision on one or more erroneous findings, made in a capricious or perverse manner or without regard to the material before it.
[4] In my view, most of the submissions made by the Applicant cannot succeed, and some are merely frivolous. In all cases, the Board justified its credibility findings with clear reasons and by reference to the evidence. Contrary to the assertions of the Applicant, the Board did not simply summarize the evidence and draw conclusions without relating them to the evidence, as was the case in Syed v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283 (T.D.) and Benitez v. Canada (Solicitor General) (1993), 66 F.T.R. 224 (T.D.).
[5] At the outset, I must note that some of the Board's reasons for drawing adverse credibility inferences or for doubting that the Applicant had a well-founded fear were not disputed. Specifically, the Board made unchallenged findings that the Applicant had planned to leave Nairobi prior to any evidence of persecution; that there was no evidence the Mungiki were continuing to search for the Applicant or were persecuting his family; and that the Applicant could not explain, in detail, how or from whom he obtained his visa. Therefore, in order to seriously impugn the Board's overall finding of negative credibility, the Applicant would have to succeed in showing that the Board erred in many other findings relating to credibility, or that those allegedly erroneous findings were the foundation of the overall decision. Otherwise, some minor errors notwithstanding, I must find that the Board had sufficient reason to draw a negative credibility inference against the Applicant.
[6] Additionally, since the Applicant's viable challenges rest on assertions that the Board ignored relevant evidence, it is important to remember that the Board is presumed to have considered all the evidence and is not obliged to refer to all the evidence in its reasons (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). However, the Board is required to mention and analyze particularly important evidence that contradicts its conclusions (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL) at para. 17; Saraci v. Canada (Minister of Citizenship and Immigration) 2005 FC 175, at paras. 33, 34).
[7] I cannot agree with the Applicant that the Board failed to refer to the documentary evidence. The Board simply took a "shortcut" by linking the relevant parts of the documentary evidence to submissions made during the hearing. The hearing transcript indicates that the relevant documents were quoted from at length and did provide specific references to which the Board was referring in its decision. When undertaking my review of the record, I had no difficulty in determining which portions of the documentary evidence were being relied on.
[8] The Applicant submits that the Board mischaracterized the core of the Applicant's claim as police behaviour, rather than a fear of Mungiki, and that the Board erred by finding an inconsistency between the Applicant's testimony that he did not fear the police and his eventual flight from the country. As a finding of fact, it is open to the Board to find the core of the Applicant's claim. Since the availability of state protection is part and parcel with the Applicant's alleged fear of the Mungiki, I am satisfied that there was no mischaracterization of the Applicant's claim. While the Board's discussion of this particular inconsistency could have been worded more clearly, its meaning is not so obtuse as to be unascertainable and it certainly does not constitute a mischaracterization of the claim.
[9] Much was made by the Applicant of the reliance of the Board on hesitations by the Applicant as he gave his testimony. The Applicant explains that the hesitations were the result of the use of videoconference and the poor quality of sound reproduction and should not have been used to impugn his credibility. In my view, the Board was entitled to rely on hesitations of the Applicant, and in deciding that those hesitations indicated a credibility problem. It is not material that these indicators are not found in the transcript; I would be surprised if such subjective elements of the Applicant's testimony were recorded by the official reporter. Additionally, the Board was not under an obligation to comment for the record every time the Applicant hesitated. Finally, it would be illogical to conclude that the Board, as an expert tribunal in hearing testimony, could not tell the difference between hesitations in testimony and pauses, interruptions or interference due to the use of videoconference.
[10] The Applicant argues that the Board drew an adverse inference from the Applicant's need to have questions repeated, and to repeat answers, but the Board does not rely on these issues in its written reasons. The Board once mentions an incident where the Applicant asked for a question to be repeated, but did not, in my reading, draw any adverse inference from that fact.
[11] The Applicant asserts that the Board ignored evidence of other activities (beyond demonstrations) that the Applicant was involved in, which would contradict the Board's statement that he had a minor role against the Mungiki. The facts referred to by the Applicant are equivocal in respect of whether they would draw the attention of the Mungiki, particularly in light of the evidence the Board expressly considered: the public demonstrations. Thus, I am satisfied that the Board considered this evidence and that it was not crucial to refer to it. As to the Applicant's submission that the Board failed to address any evidence that might establish how the Mungiki would assess the Applicant's importance, I find the Applicant's submission without merit. Evidence of the Applicant's activities against the Mungiki is the relevant evidence about how the Mungiki might view him. The Applicant has not identified any other evidence relevant to this point that the Board ignored.
[12] The Applicant argues that the reasons are not clear about whether the Board was speaking about the Mungiki or the police when it stated that the Applicant only encountered troubles at his third demonstration. In my reading, the context is clear that the Board was referring to the Mungiki. Moreover, although the Applicant asserts that he encountered Mungiki violence at the second demonstration (based, I assume, on the story in his PIF), the Board is clearly referring to the Applicant's testimony at the hearing that he did not have any troubles at the first or second demonstration.
[13] I agree with the Applicant that the Board failed to mention portions of the documentary evidence that appear on their face to support the Applicant's story that he was unlawfully detained and tortured by the police. I would have preferred if the Board had been more thorough in its written reasons on this point. However, I am not convinced that this undermines the Board's findings. The importance of the documentary evidence is, in my opinion, secondary to the serious credibility issues of the Applicant. It was therefore not necessary that the Board refer to every portion of the documents it cited (Hassan, above). In my opinion, the Board did not rely primarily on the documentary evidence when it found the Applicant's story of torture not credible.
[14] It was open to the Board to draw a negative inference from the inconsistency among the Applicant's evidence, including the original immigration forms. The Board acknowledged the Applicant's explanation but did not find it compelling. This determination was within the expertise of the Board to make.
[15] The Applicant submits that the Board acted capriciously when it rejected all of the Applicant's documentary evidence as without probative value, due to the Applicant's severe credibility issues. It is submitted that the rejection of all documentary evidence submitted by the Applicant was perverse and capricious, even in light of the Board's credibility findings (Mahanandan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1228 (F.C.A.) (QL)). While I am troubled by the terse manner in which the Board addressed this issue, I am not convinced that the Board's approach is fatal to its decision as a whole. In Mahanandan, above, the Board's failure to do more than merely acknowledge evidence that could have affected the Applicant's credibility undermined the decision of the Board. The Board is required to indicate the impact of that evidence on its decision (at para. 8). However, in Hamid v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1293 (T.D.) (QL), which the Board in this case relied upon, Justice Nadon expounded more fully on this issue:
. . . the applicant's assertion that the Board is bound to analyze the documentary evidence "independently from the applicant's testimony" must be examined in the context of the informal proceedings which prevail before the Board. Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine.... Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility [at paras. 20-21].
[16] In this case, in light of the Board's serious credibility issues with the Applicant, it was entitled to give no probative value to the documents. This satisfies, in my mind, the requirement that the Board describe the impact of the documents upon its decision.
[17] On the issue of delay, based on the Applicant's testimony and the Board's apparent acceptance of that testimony at the hearing, I agree with the Applicant that the delay in question was only 2 days. Nonetheless, the Board was entitled to draw an adverse inference from the fact that the Applicant had not claimed refugee status when he arrived in Canada. This was not determinative of the claim; rather, it provided further support for the conclusion that the Applicant lacked a subjective fear. The Applicant challenges the Board's finding that he was "sophisticated" but is essentially asking this Court to reweigh the evidence. The Board gave sufficient reasons for its findings, which reasons are not wholly unreasonable. In any event, it is clear from the reasons that the delay was a relatively minor part of the Board's decision. Accordingly, any error would be immaterial to the overall credibility finding which is amply supported by other findings.
[18] At this stage in these reasons, I pause to note that the Applicant has failed to persuade me that there is any reviewable error in the credibility finding of the Board. Stated simply, the Board did not believe the Applicant's story. It reached this conclusion on the basis of a large number of problems with the Applicant's evidence and testimony as it related to him personally. The Applicant did not satisfy the Board as to the subjective element of his claim.
[19] Only one part of the decision addresses anything other than the subjective element of the Applicant's claim. This consists of two paragraphs located beneath a heading "Internal Flight Alternative" that discuss the situation in Nairobi. These two paragraphs do not appear to be an analysis and finding that the Applicant had a viable internal flight alternative ("IFA"). Given the contents of the paragraphs, the fact that the Board did not raise IFA as an issue at the hearing and the fact that the Applicant actually lived in or near Nairobi, it is obvious that the heading was inadvertently placed into the decision. In my view, reading past this typographic error, the passage is intended to address the objective element of the Applicant's claim. The Board simply notes that there is documentary evidence that states that Kikuyu do not have problems in Nairobi and are safe from crime, including Mungiki. I have some difficulty with this brief reference to the objective element of the claim. As pointed out by the Applicant, there is other documentary evidence that states that there have been attacks by Mungiki in Nairobi. The Board does not refer to this directly contradictory evidence that is, in my view, important in the context of this claim (Cepeda-Gutierrez, above). Thus, whether this portion of the decision is intended to address the existence of an IFA or the objective element of the Applicant's claim, it is not sustainable. However, to be successful in his refugee claim, the Applicant must establish both the subjective and objective elements of his claim. In this case, the Applicant failed to satisfy the Board of the subjective element of his claim. Accordingly, any error of the Board on this particular finding is immaterial.
Conclusion
[20] For these reasons, the application will be dismissed. The Applicant suggests that I certify a question regarding whether the Board can rely on hesitations to impugn credibility when a hearing is conducted by videoconference. The obvious answer to this is "yes". In any event, I decline to certify this question as it is not determinative of the application before me.
ORDER
This Court orders that:
- The application is dismissed; and
- No question of general importance is certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1169-05
STYLE OF CAUSE: MARTIN NJAGI KARIUKI v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 14, 2005
REASONS FOR ORDER
AND ORDER: SNIDER J.
APPEARANCES:
Mr. Jeffrey L. Goldman For Applicant
Mr. Bradley Gotkin For Respondent
SOLICITORS OF RECORD:
Jeffrey L. Goldman FOR APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada