Date: 20050421
Docket: IMM-4018-04
Citation: 2005 FC 550
Ottawa, Ontario, this 21st day of April, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GEOFFREY MUCHIRI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Muchiri arrived in Canada from Kenya in August 2002 and promptly claimed refugee protection. He fears persecution at the hands of the Kenyan police because of his political opinions and his work as an activist clamouring for human rights and constitutional change.
[2] He was involved with several Non Government Organizations primarily as a theatre facilitator. He would put on plays, especially in central Kenya, with the goal of sensitizing the population to democracy and educating them against the repressive regime under which they then lived.
[3] He testified to what he termed persecution on a number of occasions. He had been detained and questioned by the police, and beaten so badly that his legs were broken. He was released in order to allow him to seek medical attention.
[4] The centrepiece of his claim relates to the plans he had made to come to Canada for a convention. His house was broken into and several documents, including documents relating to the trip, were stolen. Shortly thereafter, the local police questioned him with respect to this trip, which led him to the conclusion that if they were not the burglars, they were at least privy thereto. They told him to hand over his passport. He did not want to do so and made up a story that it was in Nairobi. He then fled to Nairobi and left the country shortly thereafter.
IMPUGNED DECISION
[5] There were two aspects of this story which disturbed the Board member to the extent that he found Mr. Muchiri not credible. As this was a central point, and arose literally before his arrival in Canada, he should have known whether the break-in was at the end of July or in August. Furthermore, there were discrepancies as to the lie he told the police. At one point he said the passport was in Nairobi in order to be renewed by the Kenyan authorities, and another time he said it was to obtain a Canadian visa. The Board member could understand lying to the police, but could not understand why Mr. Muchiri could not get his lies straight.
[6] The Board found many inconsistencies between the Mr. Muchiri's Personal Information Form ("PIF") and his testimony during his hearing.
[7] The Board also commented on the lack of medical evidence to corroborate the injuries Mr. Muchiri allegedly sustained. Mr. Muchiri said he had asked his father to obtain the records, but his father could only do so if he paid a bribe, which was against Mr. Muchiri's principles. Although the Board's suggestion that he should have gone along with the bribe is questionable, I do not consider that comment material to the conclusion reached. In any event, the report would not prove police involvement.
[8] The Board had a distinct second reason for dismissing the application. It said that even if it accepted Mr. Muchiri's evidence, there had been a free election and a change of government since his arrival in Canada.
ANALYSIS
[9] Although the Board's analysis must be of past events, it is also forward-looking. The question is not simply whether a putative refugee was persecuted, but rather whether there is a well-founded fear which would justify an unwillingness to return to his country (Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, F.C.A.).
[10] There was nothing unreasonable in the Board's analysis of the situation in Kenya at the time of the hearing.
[11] Consequently, strictly speaking, it is not necessary to review the credibility issues. I wish to say, however, that there was nothing patently unreasonable in the Board's finding. The treatment by the police (the Board did not believe they broke Mr. Muchiri's legs), or other government officials, fell into the realm of harassment, rather than persecution. One theatre performance was cancelled, but according to newspaper reports only because the drunken administrator in the district wanted a bribe. This does not constitute a United Nations Convention ground for asylum.
[12] Mr. Muchiri argued that the record was imperfect, in that the transcript of the hearing indicated that questions or answers were often inaudible. There may well be findings of credibility which can be contested because the applicant swears positively that he did not say what the Board says he did (A.J.M. v. Canada (Minister of Citizenship Immigration), 2005 FC 98 and Tang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 979 (QL)). However, in this case, Mr. Muchiri does not specifically contest the evidence. Rather, he submits the lack of a complete transcript makes it impossible for this Court to review the record so as to determine whether or not there was a patently unreasonable finding. Given that natural justice does not require that there be a transcript in the first place, Mr. Muchiri, who has a burden as applicant, must do more (Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793). Without positive and specific statements identifying erroneous findings, the Court is hardly in position to decide that justice requires a new hearing.
ORDER
The application for judicial review is hereby dismissed. There is no question for certification.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4018-04
STYLE OF CAUSE: GEOFFREY MUCHIRI
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 11, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: APRIL 21, 2005
APPEARANCES:
Waikwa Wanyoike FOR APPLICANT
Michael Butterfield FOR RESPONDENT
SOLICITORS OF RECORD:
Waikwa Wanyoike FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada
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