Date: 20011106
Docket: IMM-140-01
Neutral Citation: 2001 FCT 1213
BETWEEN:
GERALDINE SSERWANGA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Ms. Geraldine Sserwanga (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated November 14, 2000. In its decision, the Board determined that the Applicant was not a Convention Refugee.
FACTS
[2] The Applicant sought Convention Refugee status on the basis of a well-founded fear of persecution in Uganda because of her perceived political opinion and her membership in a particular social group, her family.
[3] The Applicant and her husband were members of the Baganda tribe. From the time of their marriage in 1974, they lived together in the town of Kasese, in Western Uganda, where her husband worked a farm. In 1994, fighting erupted between the Allied Democratic Forces ("ADF") and the government forces, leading them to flee to Kampala, the capital city.
[4] The Applicant worked as a teacher in Kampala while her husband continued to operate the family farm in Kasese. Between December 1994 and December 1998, he made weekly visits to the farm, which is approximately ten hours drive from Kampala. The Applicant travelled with him five to six times per year.
[5] In December 1998, when the Applicant, her husband and four of their children were visiting the farm, a group of Uganda People's Defence Forces ("UPDF") raided the family home and beat the Applicant and her family while accusing them of being ADF supporters. Her husband was detained for one month during which he was severely tortured, obtaining release only after payment of a bribe. The Applicant's husband stopped travelling to Kasese for two months after this incident, then returned to manage the farm every two weeks. The Applicant only visited Kasese once since the December 1998 incident, that was in August 1999.
[6] In November, 1999, the Applicant came to Canada to visit her half-sister. She was scheduled to return to Uganda on November 25, 1999. On November 21, she received a telephone call from a family friend informing her that her husband had been shot in Kasese where he had been travelling with two of the children. Later the same day, in two phone calls from the same friend, she was told that her husband had been killed and her children kidnapped by the gunman, but that the children had later been found by one of the farm workers.
[7] On November 23, 1999, the Applicant's half-brother telephoned to tell her it would not be safe for her to return to Uganda. She did not use her return ticket and moved to a shelter on November 28, 1999. She applied for refugee status on December 6, 1999.
[8] The Board made adverse credibility findings against the Applicant, particularly with respect to her lack of detailed knowledge concerning the death of her husband.
[9] The Board also found that there was a discrepancy between the death certificate and the information contained in the Applicant's Personal Information Form ("PIF"), and the evidence given at the oral hearing, particularly with respect to the date and place of death. The Applicant was not able to account for this discrepancy. The Board was also concerned about the date of registration of the death certificate, some four months after the death of her husband. In the result, the Board decided to give little weight to the death certificate.
[10] The Board considered the issue of a well-founded fear of persecution, specifically in relation to the Applicant's husband. It found that a person with a subjective fear of persecution would not continue to travel back to an area where he had been beaten and detained, as the Applicant's husband had done. The Board found that the husband's travels to Kasese were not consistent with the actions of a person holding a subjective fear of persecution.
[11] The Board also made a determination concerning the availability of an Internal Flight Alternative ("IFA"). It found that according to the documentary evidence, the ADF is only active around Kasese and that conflict between the ADF and government forces did not arise outside that area. The Board also considered that none of the family members of the Applicant, including her children, had been questioned or subject to any problems in the year since her husband had died.
[12] Furthermore, the Board found that there was no credible evidence that the authorities or anyone had been inquiring about the Applicant since she left Uganda November 19, 1999. The Board concluded that the Applicant did not have an objective well-founded fear of persecution.
APPLICANT'S SUBMISSIONS
[13] The Applicant argues that the Board erroneously interpreted the correct legal test for the determination of an IFA and in consequence, erred in law in concluding that she has an IFA in Kampala.
[14] She argues that she is fearful of returning to Uganda because her husband was killed by government forces under the suspicion that he was a rebel collaborator. She testified that she too is suspected on the same ground. She submits that there was no reasonable basis upon which the Board could conclude that she has an IFA in Kampala. In her case, the government is the agent of persecution and consequently, her fear of persecution is not limited to the geographic location of the conflict.
[15] Further, the Applicant argues that the Panel erred in concluding that she did not have a subjective fear of persecution. She submits that the Board's consideration of her husband's actions in returning to the farm in Kasese after December 1998 presumes that her husband was to have a subjective fear of persecution before his death, in order for her claim to succeed. She argues that her fear of persecution arose from the shooting death of her husband.
[16] The Applicant submits that the Panel erred in making negative credibility findings against her because it ignored or misconstrued the evidence. In particular, she argues that the finding with respect to the death certificate is erroneous.
[17] The Board refers to a discrepancy about the date and place of death. The Applicant says that she provided a reasonable explanation for this discrepancy by indicating that a day must have passed between the time her husband was shot and the time he was later pronounced dead in the hospital.
RESPONDENT'S SUBMISSIONS
[18] The Respondent argues that credibility findings are within the expertise of the Board because they have the advantage of observing and hearing the Applicant. The Board is entitled to make reasonable findings on its determination of the plausibility of the evidence; see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315.
[19] The Respondent further argues that the Board properly considered the circumstances of the Applicant when considering that there was an IFA. Neither the Applicant nor her husband faced any difficulty while living in Kampala since 1994. No credible evidence was tendered that the authorities had been inquiring about the Applicant since she left in November 1999. As well, the Applicant has family and employment as a teacher in Kampala. The Respondent submits that in these circumstances, it is not unreasonable for the Applicant to seek refuge in Kampala.
[20] The Respondent also argues that the onus of proof rests on the Applicant to show that no objectively reasonable IFA exists for her in Uganda, and that she has not discharged this onus.
ANALYSIS
[21] The disposition of this application for judicial review depends on the applicable standard of review. That issue was addressed by Justice Pelletier in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, paragraph 5, as follows:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise.
[22] Notwithstanding the fact that the Applicant has raised arguments concerning alleged errors of law on the part of the Board in its findings relative to a subjective fear of persecution, internal flight alternative and patently unreasonable findings of fact, in my opinion she is essentially challenging the findings of credibility made by the Board and its findings of fact.
[23] In my opinion, the Board properly considered the husband's lack of a well-founded fear of persecution in assessing the existence of a well-founded subjective fear of persecution by the Applicant.
[24] The Applicant based her claim for Convention refugee status on her perceived political opinion and membership in a particular social group, that is her family. She claimed that her fear of persecution arose from the death of her husband, allegedly at the hands of the government forces, and that she is now at risk because she was married to a target of the government.
[25] However, there was no evidence before the Board to support these allegations. The Board's conclusion that the Applicant had failed to demonstrate a well-founded fear of persecution in relation to her husband is reasonable.
[26] In my opinion, the Board also justifiably considered the availability of an IFA for the Applicant in Kampala and reasonably assessed the evidence that no family members, including the Applicant's children, had been the objects of interest, inquiry or harm by government agents since the Applicant had left Uganda.
[27] I conclude that there is no basis for intervening in the Board's decision. The application is dismissed.
[28] Counsel advised that there is no question for certification.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
Ottawa, Ontario
November 6, 2001