Ottawa, Ontario, November 29th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated January 27, 2005 in which the applicant was found not to be Convention refugee or person in need of protection, because she lacked credibility and a subjective fear of persecution. The applicant claims to be a lesbian from Uganda who had an affair with one of her students. Homosexuality is illegal in Uganda. Having an affair with her student compounded the problem.
FACTS
[2] The applicant, born in 1979 and a citizen of Uganda, claims a well-founded fear of persecution by Ugandan police because she is a lesbian and homosexuality is illegal.
[3] In 1997, the applicant, while a high school student, was caught having an intimate relationship with her same-sex partner at the Nabisunsa Girls' School, whereupon she was arrested and detained by the police for three days. She claims to have been raped and beaten by the police prior to her release.
[4] After university the applicant worked as a teacher at Katikamu Secondary School in Uganda from January 2002 to February 2004. During this time she had a lesbian relationship with a 19-year old student. In November 2003, she claims to have been caught engaging in a sexual relationship with that student by another teacher who threatened to report her to the police if she refused to have sexual relations with him.
[5] The applicant relented to coerced sexual relations with him for 12 weeks until February 20, 2004, at which time she fled to Entebbe, Uganda. There she learned the student had confessed to having had a sexual relationship with her, and she was dismissed as a teacher. At this point, she says the "authorities" were looking for her.
[6] The applicant then travelled to Kenya to get a Canadian Visitor's Visa, and then back to Uganda before she came to Canada on the visa. She arrived in Vancouver on June 17, 2004, travelled to Toronto and sought refugee protection.
THE DECISION
[7] The Board rejected the applicant's claim because she lacked credibility and a subjective fear of persecution in Uganda.
ISSUES
[8] Two issues are raised in this application:
1. Did the Board draw a patently unreasonable credibility finding?
2. Did the Board breach its duty of fairness by making pre-hearing comments giving rise to actual bias or a reasonable apprehension of bias?
ANALYSIS
Issue No. 1: Did the Board draw patently unreasonable adverse credibility findings?
[9] The applicant submits that the Board's cumulative credibility finding is patently unreasonable. Specifically, the applicant submits the Board erred by:
(i) finding she was not a wanted person by Ugandan authorities;
(ii) finding she incorrectly represented her country of departure to be Kenya and not Uganda;
(iii) drawing an adverse inference because she admitted to lying on her CVV;
(iv) drawing an adverse inference from her demeanour at the hearing;
(v) finding the letter of employment was not credible;
(vi) finding it implausible that the applicant as a lesbian would have sexual relations with a man to foster her breast development;
(vii) finding it implausible the applicant would let herself be sexually coerced for 12 weeks;
(viii) finding it implausible the applicant would risk further physical harm by having a second homosexual affair with a student; and
(ix) drawing an adverse inference against subjective fear of persecution because the applicant went to Kenya but returned to Uganda.
[10] It is not the Court's function to re-evaluate the Board's fact findings on their merits. The Court will intervene where such findings are patently unreasonable, but will not disrupt reasonable findings which the Court would have concluded differently. (Chen v. Canada (Minister of Citizenship and Immigration),2002 FCT 1194 at paras. 4-5; Aguebor v. (Canada) Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). The applicant has the onus of establishing one of the following four criteria which I set out in Chen, supra, at paragraph 4:
...
1. the Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. the decision was based on inferences that were not supported by the evidence; or
4. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
(i) Applicant not sought by Ugandan authorities
[11] The applicant submits that the Board concluded the applicant was not wanted in Uganda based on speculation and without evidence. The Board concluded that the applicant would not have been issued a passport had she been sought by the Ugandan government. It further found her story implausible because she was able to travel to Kenya and return to Uganda without difficulty in April 2004, as well being able to leave the country bound for Canada in September 2004 without being questioned or stopped. It further found that a Canadian Visa would not have been issued had the applicant been a wanted person. The Court concludes the Board did not make a patently unreasonable finding of fact in this regard because such a finding was open to the Board based on the evidence.
(ii) Country of departure
[12] The Board was clearly wrong in concluding the applicant stated her country of departure was Kenya and not Uganda. Question 1 of the Canadian Visitor's Visa Application ("CVV") form IMM 5474 asks to which country the applicant first travelled from her country of origin, which she correctly answered to be Kenya. Accordingly, the Court considers this to be a patently unreasonable finding of fact.
(iii) Admitted misrepresentation on Canadian Visitor's Visa Application
[13] The applicant admitted to lying on her CVV to Canadian officials in respect of the dates at which she attended university, but submits that Fajardo v. Canada(Minister of Employment and Immigration)(1993) 157 N.R. 392 (F.C.A.) stands for the proposition that the Board cannot conclude the applicant was not credible because she admitted to lying on her CVV. In Fajardo, the claimant's stated reason for entry to Canada was for visitation and not asylum. A plain reading of the Board's reasons indicates that it concluded the applicant was willing to mislead Canadian authorities, although it noted that the applicant's university attendance was irrelevant and not determinative of the claim. The Court concludes that the Board should not have drawn an adverse inference on this ground. It is established that a refugee claimant may need to lie in order to obtain a Canadian visa in order to make a refugee claim upon arriving in Canada.
(iv) Letter of employment
[14] The Board attributed little weight to the letters of employment from the Katikamu Secondary School, which it found to not be credible because it was stamped with a date after the applicant commenced employment in January 2002. The applicant submits the Board failed to consider that she gave a reasonable explanation, namely that there was a mistake on the stamp. The Board rejected the explanation, finding it not credible. It was open to the Board to find this evidence not credible.
(v) Breast development
[15] The applicant submits that the Board erred when it found it implausible that she would, as a lesbian, have had sexual relations with a man for the purpose of fostering breast development. Specifically, she contends the Board failed to have regard to the social norms of breast development in Uganda and imposed inappropriate North American standards of logic and reason in finding her evidence implausible. However, there is nothing in the Board's reasons or the record that betray an inappropriate line of reasoning. While the Court may have come to a different conclusion, the Board's conclusion was reasonably open to the Board and is not patently unreasonable.
(vi) Coerced sex with fellow teacher
[16] The Board's finding that the applicant would allow herself to be sexually assaulted and humiliated for 12 weeks rather than "seek a leave of absence" (from the school) or make "another alternative arrangement" was reasonably open to the Board on the evidence, and not patently unreasonable.
(vii) Risk of further harm
[17] The Board's finding that the applicant would not risk everything to have another affair with a student, after being arrested, tortured and raped the first time by police, was reasonably open to the Board and is not patently unreasonable.
(viii) No subjective fear of persecution
[18] The Board's finding that the applicant went to Kenya but returned to Uganda belied her alleged subjective fear of persecution was reasonably open to the Board on the evidence.
Conclusion on credibility finding
[19] The main findings are:
1. that the applicant was not being sought by the Ugandan police or "authorities";
2. that the applicant did not have a subjective fear of persecution in Uganda or else she would not have returned once in Kenya.
[20] These credibility findings were reasonably open to the Board on the evidence and are not patently unreasonable. The erroneous conclusion that the applicant misrepresented her country of departure, and inappropriate inference that the applicant was willing to mislead authorities are not sufficient to disrupt the Board's main findings.
Issue No. 2: Did the Board breach its duty of fairness by making pre-hearing comments giving rise to actual bias or a reasonable apprehension of bias?
[21] The applicant submits the Board's pre-hearing comment that her PIF was similar to that of another claimant gave rise to a reasonable apprehension of bias. On the record, the applicant's counsel addressed the Board in respect of the panel's pre-hearing comment. The panel replied that it did not have requisite facts on which to conclude the PIFs were identical and untrustworthy. The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394 as follows:
...the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, the test is "what would an informed person, viewing the matter realistically and practically - having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
The panel did not make an adverse finding against the applicant because of her PIF's similarity to that of another claimant. There is no evidence upon which an informed person would reasonably conclude there was a reasonable apprehension the Board was biased against the applicant. The Board gave the applicant a full and fair hearing, and a fulsome set of reasons for finding her not credible. Moreover, the failure to raise the issue of bias during the hearing and ask the Board member to recuse herself is fatal to a later determination of the question. See Narty v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 120 at paragraph 11, per Denault J. The applicant cannot wait until the decision to argue bias. It must be objected to at the earliest opportunity with a motion that the Board member recuse herself.
CONCLUSION
[22] The Board's findings that the applicant was not credible and did not have a subjective fear of persecution was open to the Board on the evidence, and its decision was made in accordance with the duty of fairness, without raising a reasonable apprehension of bias.
[23] The parties did not propose a question of general importance for certification, and none is certified.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is dismissed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-888-05
STYLE OF CAUSE: JOY RONBINAH NDAGIRE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 21, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Ms. Janice Chung Toronto, Ontario
|
|
| Ms. Marina Stefanovic Department of Justice Toronto, Ontario
|
SOLICITORS OF RECORD:
| Ms. Janice Chung Barrister and Solicitor
|
|
| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
|