Date: 20050913
Docket: IMM-9346-04
Citation: 2005 FC 1245
BETWEEN:
HENRY MBUGUA KAMAU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of protection. The decision under review is dated the 22nd of November, 2004.
BACKGROUND
[2] The Applicant is a citizen of Kenya. He bases his claim to Convention refugee status or to like protection on his sexual orientation. The Applicant alleges that he is homosexual.
[3] The Applicant testified that he only became aware of his sexual orientation at the age of 20. He further testified that Kenya is a country which is very homophobic or anti-gay, and that he was aware that gay men would have to live a closeted and secretive lifestyle. Nonetheless, on his first meeting with another individual that he identified as a gay man, he testified that they hugged and kissed in a public nightclub, albeit in a secluded location within the nightclub.
[4] The Applicant further testified that, while taking what he considered to be appropriate precautions, he and his partner, the same person he met in the nightclub, lived together in a village for a period of ten (10) years without incidents of harassment.
[5] The Applicant testified that, early in January of 2003, he and his partner were arrested and charged. Documentary evidence that was before the CRDD discloses that the Applicant was, very shortly after his arrest,
...convicted on his own plea after trial before me [of the] offence of being a gay member and a leader of gay association of men (having carnal knowledge with another person of the same sex...)[1]
The same document indicates that the Applicant was sentenced to sixteen (16) months imprisonment. The Applicant attests that he and his partner, who apparently was also convicted and sentenced to imprisonment, were subjected to brutality while imprisoned.
[6] The Applicant testified that, sometime after he and his partner were released from imprisonment, the dwelling that they occupied was set on fire. His partner died in the fire. In the result, the Applicant fled to Canada where he made his claim for protection.
THE DECISION UNDER REVIEW
[7] In its decision, the RPD wrote:
The determinative issue in this case is credibility. Specifically, I do not believe that you are gay.
.... I find that your description of life as a gay person in Kenya is not plausible or credible.[2]
The foregoing being said, the RPD did accept the Applicant's identity and that he is a citizen of Kenya.
[8] The RPD noted the Applicant's testimony regarding his conduct on his first encounter with another gay male. It wrote:
... I do not find that kind of activity to be plausible since you testified it was the very first time that you met a gay man in all of Kenya. ...
Information that we read about people who are beginning to come to terms with their sexuality which is not generally accepted by society, does not support that kind of activity being very open and public.[3]
With great respect, the RPD, in the foregoing statements, demonstrates a stereotypical attitude towards gay males, whether in Kenya or elsewhere, without citing any documentary support for that attitude.
[9] The RPD implied doubt that the Applicant and his partner could have lived together in "the village" for some ten (10) years without incidents of harassment or other problems.
[10] The RPD was critical of the Applicant's description of himself as a "leader" of a gay association, despite an explanation provided by the Applicant and the fact that he used the term in the English language, which was not his first language. Similarly, it was critical of the Applicant's use of the words "sect" and "cult" in relation to the gay community. The RPD found that it would make "no sense" that people who are leading a prohibited lifestyle would use a name for themselves, in this case the Gay Association of Men, which would identify themselves as part of a prohibited group.
[11] The RPD wrote:
Your testimony with respect to your arrest and trial I do not find to be credible. The prison document appears to be a kind of fill in the blanks document, which would be easily replicated. It is not an official document that one would expect a government to issue when convicting a man to a 16-year sentence. There is no mention in your Personal Information Form that you had a trial. Your testimony today was that you were arrested on Friday and tried and convicted three days later, on the Monday.[4]
[12] As noted earlier, the Applicant was not sentenced to sixteen (16) years imprisonment but rather to sixteen (16) months imprisonment. The RPD's determined that the Applicant's testimony in this regard was not credible, particularly in light of the documentary evidence indicating that Courts in Kenya are back-logged and that therefore a trial and conviction within some three days where such a serious sentence was imposed was improbable. The RPD continued:
So, the documents do not support that it was possible you were convicted within two days to a 16-year sentence.[5]
[13] The foregoing, notwithstanding that the following exchange is recorded in the transcript of the Applicant's hearing:
CLAIMANT: According to the things I was doing I was convicted for one year and four months, together with my friend.
PRESIDING MEMBER: You were convicted for one year and four months?
CLAIMANT: Yes.[6]
[14] Finally, the RPD concluded:
Overall, I find that there is a lack of credible and trustworthy evidence that you are a homosexual and thus that you have any reason to fear persecution or other mistreatment on return to Kenya.[7]
THE ISSUE
[15] In the view of the Court, the sole issue on this application for judicial review is whether the RPD's conclusion with respect to the Applicant's credibility and trustworthiness was open to it on a standard of review of patent unreasonableness.
ANALYSIS
[16] I am satisfied that the RPD's confusion between a sixteen (16)-month sentence and a sixteen (16)-year sentence and its unwillingness to accept the documentary evidence regarding the Applicant's arrest, conviction and sentence was central to its decision.
[17] In Gyimah v. Canada (Minister of Citizenship and Immigration)[8], I wrote at paragraphs 9 and 10 of my reasons:
... the conclusions of the CRDD regarding the form and precision of a summons requiring an individual to appear before a Public Tribunal in Ghana simply were not supported by the documentary evidence, or indeed any evidence, that was before it.
I conclude that the implausibility findings of the CRDD in this matter and its finding regarding the lack of authenticity of the summons produced before it are inextricably linked. In the result, I conclude that the finding regarding the summons, which I am satisfied cannot stand, is central to the CRDD's decision. ...
I reach the same conclusion here regarding the RPD's comments with regard to the purported Court form appearing at page 174 of the Tribunal Record, the centrality of that document to its decision as indicated therein and its error in grossly misrepresenting the term of imprisonment to which the Applicant was sentenced.
[18] In Rahnema v. Canada (Solicitor General)[9], I wrote at paragraph 12:
I conclude that the CRDD engaged in a microscopic examination of certain elements of the evidence before it, and in inappropriate conjecture and speculation, to conclude against the credibility of the applicant...
Once gain, I reach the same conclusion here with respect to the decision of the RPD. I would add to the reference to inappropriate conjecture and speculation in the foregoing quotation, on the facts of this matter, unsupported and inappropriate stereotyping of the behaviour of homosexuals.
[19] Finally, in Xu v. Canada (Minister of Employment and Immigration)[10], Justice Mahoney, in very brief reasons on behalf of the Court, wrote:
The finding that the father's story was not credible was based entirely on the perception of a number of implausibilities, not all of which are apparent in the transcript and some of which were, in our opinion, reasonably explained.
I am satisfied that the same might be said with respect to this matter, substituting for the reference to the father's story, a reference to the Applicant's story.
CONCLUSION
[20] Based upon the foregoing, this application for judicial review will be allowed. That is not to say that the conclusion reached by the RPD might not be open. It is simply to say that the reasons provided by the RPD in respect of the decision under review simply do not adequately support the decision on the totality of the evidence that was before it.
[21] Counsel were advised of the outcome at the close of the hearing of this matter. When consulted, neither recommended certification of a question. I am satisfied that no serious question of general importance arises out of this matter. In the result, no question will be certified.
"Frederick E. Gibson"
F.C.J.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: HENRY MBUGUA KAMAU v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2005
APPEARANCES:
David B. Olson
Ladan Shahrooz
SOLICITORS OF RECORD:
David B. Olsen
Jordan Battista LLP
Barristers and Solicitors
160 Bloor St. E.
Suite 1000
Toronto, ON
M4W 1B9
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ontario Regional Office
130 King St. W.
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
[1]Tribunal Record, page 174.
[2]Tribunal Record, page 5.
[3]Tribunal Record, page 6.
[4]Tribunal Record, page 4.
[5]Tribunal Record, page 9.
[6]Tribunal Record, page 198.
[7]Tribunal Record, page 9.
[8][1995] F.C.J. No. 1519 (F.C.T.D), (Q.L.).
[9][1993] F.C.J. No. 1431 (F.C.T.D.), (Q.L.).
[10][1992] F.C.J. No. 810 (F.C.A.), (Q.L.).