Docket: IMM-8798-04
Toronto, Ontario, August 24th, 2005
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
SILVIAH (IGOKI) MUGAMBI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 53 year old citizen of Kenya who claims she is being prosecuted due to threats by her ex-husband. She claims while she was married, she suffered physical, emotional and sexual abuse. She asked her family to return the dowery, they refused and she nevertheless sought and was granted a divorce. Her husband began to stalk her. Her husband worked for Kenya Airways and the couple had been allocated a second apartment which the Applicant began to use as her home. He attempted to have her evicted. She sought legal counsel and was allowed to stay in the apartment.
[2] In 1999, the Applicant's home was broken into twice but nothing was stolen so she felt her ex-husband was responsible. She reported the incidents to the police but they did not follow up. In August of 2001, her home was broken into again and the thieves took valuable items. She claims that one of them was arrested but none of her property was recovered. Her ex-husband called her shortly after and told her he could always access her apartment.
[3] Shortly after, a group of men started hanging around outside the gates of her home. She again reported this but the police did not act on her report as some of the men were related to senior police officers. Her husband continued to threaten her. She feared for her safety and attended at the police station again and spoke to the Station Commander. When no action was taken, she appealed to the Divisional Commander and the Provincial Police Officer but again, no action was taken.
[4] In April of 2002, six men visited the Applicant's shop, stole from her and attacked her shop assistant. She claims she was told by the police that these events had occurred because she had left her husband. The Applicant claims she then lost her job and later discovered that her ex-husband and her manager had become friends.
[5] She decided to leave the country and went to Tanzania. When she realized that her ex-husband had many connections in Tanzania, she returned to Kenya. She claims when she returned her ex-husband sent someone to tell her that there had been a woman who was killed by her husband and another whose husband had sent two HIV positive men to rape her. She applied for a visa and arrived in Canada on November 17, 2002.
[6] The Board found the Applicant not to be credible mainly for the following reasons:
(a) the Applicant's explanation that her husband did not want her to divorce him was inconsistent with the ease with which the couple obtained a divorce decree;
(b) the Applicant gave inconsistent evidence as to the date on which her former husband came to her store and attacked another sales associate;
(c) the Applicant gave inconsistent evidence about the number of men that were arrested for breaking into her home;
(d) as the three men took everything that was of value when they robbed her house, it was doubtful that the purpose of the break in was to scare her, but rather the motive was that of robbery;
(e) the Applicant gave inconsistent evidence as to the timing of her trip to Tanzania where she purportedly was fleeing Kenya;
(f) the Applicant's explanation for fleeing to Tanzania - she did not want to go that far away from Kenya - was inconsistent with the fact that she applied for a visa to go to Canada before going to Tanzania.
[7] The Applicant argues that the Board made patently unreasonable plausibility findings and ignored crucial evidence.
[8] It is uncontested that the applicable standard of review for issues of credibility is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).
Plausibility finding
[9] When discussing an alleged incident by three men breaking in the Applicant's house the Board made the following statement by the Board:
In the panel's opinion, if this incident was meant to scare the claimant and was not a random incident of robbery, there is no reason why the attackers would flee with the claimant's valuable goods. The panel finds on a balance of probabilities that this incident was a random incident of theft and was not intended to target the claimant as alleged.
[10] The Applicant submits that the Board should be cautious when making plausibility findings as what is not plausible by Canadian standards may be by those of another culture. The Applicant asserts that the Board does not indicate upon what evidence it based its finding that if the attackers had wanted to scare her, they would not have stolen anything. The Board was not taking into account the harsh conditions in a country like Kenya. The Applicant claims it was patently unreasonable for the Board to say that all attackers would not steal, even if it was not their primary objective.
[11] I would agree with the Applicant that this plausibility finding is not well founded and displays a certain lack of cultural sensitivity. However this was not a central finding of the Board and certainly was not so completely improbable as to amount to a patent unreasonableness.
Ignoring crucial evidence
[12] First the Applicant submits that the Board misunderstood her evidence with regard to her delay in claiming. She said that on December 1, 2002, two weeks after she arrived in Canada, she went to a shelter to seek assistance and they organized her visit to immigration. She had a six month visitor's visa and was not in any danger of being sent back to Kenya therefore her actions were consistent with someone with a subjective fear of persecution.
[13] Secondly the Applicant submits she also provided a reasonable explanation as to why she said one man was arrested after one of the break-ins, yet also said all three were arrested. She confused the terms "being arrested" with "being charged" which is not unusual for a lay person unfamiliar with legal terms.
[14] Third the Board found her claim that her ex-husband was targeting her because her family did not return the dowery not to be credible. The Applicant submits that she never said this was the case. In fact, she said her husband just wanted his wife back.
[15] Assessing credibility is the primary function of the Board. As stated by Martineau J. in R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 at para 7:
The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
[16] This includes assessing the veracity of statements as well as assigning weight to them. In this instance the Board clearly did not accept her contention that she confused "arrested" with "charged". It was certainly not patently unreasonable to for it so to find.
[17] As far as the delay in claiming refuge was concerned the Board made a finding that the Applicant's one month delay in claiming refugee status was : " further evidence of lack of subjective fear". Clearly it was not the only factor and the Board was free to attach some weight to it. It obviously did not attach much credence to the Applicant's explanation for the delay. While one might have reached a different conclusion, the Board's finding is not patently unreasonable.
[18] As far as the dowry is concerned, the Applicant's PIF states:
After several years of physical , emotional and sexual abuse , I begged my family to return the dowry. They refused and so I ignored them and took my case to the legislative law and won a divorce in 1999. Even after I had obtained the divorce my ex-husband stalked me.
[19] The applicant herself thus raised the issue of the dowry and established the link between her husband's activity and the failure to return the dowry. At the hearing the Applicant testified that returning the dowry was a type of divorce but that her family refused to return the dowry. She also stated that her husband wanted her back rather than a return of the dowry.
[20] Thus the dowry issue is somewhat confused and Board's finding is not totally on point. However it is a marginal point in the overall credibility finding.
[21] The central element in the Board's finding, points a), b), c), e) and f) as set out in paragraph 6 above all withstand the test of patent unreasonableness. Neither the dubious plausibility findings regarding theft by attackers nor the ambiguous references to dowry are sufficient to allow the court to set the Board's ruling aside on the basis of patent unreasonableness.
[22] Accordingly this claim cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8798-04
STYLE OF CAUSE: SILVIAH (IGOKI) MUGAMBI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, AUGUST 23, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: AUGUST 24, 2005
Ms. Rita M. Hisar FOR THE APPLICANT
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rita M. Hisar
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT