Date:
20121109
Docket:
IMM-2212-12
Citation:
2012 FC 1310
Ottawa, Ontario,
November 9, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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JACKSON KAZONDUNGE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the February 3, 2012, decision of the
Refugee Protection Division of the Immigration and Refugee Board (“the Board”)
in which the Board determined that the Applicant was neither a Convention
refugee nor a person in need of protection under sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA).
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicant is a citizen of Namibia, who arrived in Canada on December 4, 2009. He
filed an application for refugee protection on December 6, 2009, on dual bases:
his particular fear of his ex-same-sex partner in Namibia, by whose hand the
Applicant alleges he was the victim of domestic violence; and his general fear
of persecution by Namibian society on the grounds of his homosexuality.
[4]
The
Applicant obtained medical assistance in Namibia on one occasion following an
assault he suffered on July 5, 2008, though he did not disclose the source of
the injuries to the medical professionals assisting him.
[5]
The
Applicant maintains that he currently lives with a new same-sex partner in
Canada. The latter testified as a witness at the Applicant’s hearing before
the Board on December 16, 2011.
II. Decision
under Review
[6]
The
Board rejected the Applicant’s claim because of the presence of “unreliable
evidence in areas central and material to the claim.” The Board found that
discrepancies in the evidence submitted with respect to the Applicant’s
identity as a homosexual male had not been overcome.
[7]
Specifically,
the Board pointed to the Applicant’s inconsistent declaration of the number of
years in which he had a relationship with his same-sex partner in Namibia. In
his original application for refugee protection, the Applicant declared that he
lived with the man whom he feared for three years. At the hearing, however,
the Applicant stated that they lived together for only one year and six months.
The Board found that, “if the claimant had the sexual orientation alleged and
any relationship with a same sex partner in Namibia, then more likely than not,
clear, consistent and reasonably accurate information about the length of their
cohabitation would have been supplied to the Board” (Application Record at page
13).
[8]
The
Board pointed further to inconsistencies in the Applicant’s stated first
language. In his Personal Information Form (PIF), the Applicant asserted, with
the assistance of counsel, that his first language was English, and that he
would not need the services of an interpreter. At the hearing, the Applicant
stated that his first language was not English, but Otjiherero. The Board
preferred the Applicant’s PIF statement.
[9]
Finally,
the Board found that the witness’s testimony conflicted “materially and
significantly” with the Applicant’s evidence. Particularly, the witness
testified that he and the Applicant had moved in together in the year of the
hearing (meaning 2011), though he could not remember the month. The Applicant
claimed that they had lived together for one year and six months. When
questioned on this point, the witness stated that the two had lived in the same
building before moving in together, but did not give any additional details.
III. Issues
[10]
The
determinative issues in this case can be framed as follows:
(a) whether
the Board erred by failing to consider all of the evidence before it; and
(b) whether
the Board’s determination was reasonable.
IV. Standard of Review
[11]
The
treatment of evidence is within the Board’s specialized expertise, and is thus
owed significant deference. The Board’s decisions on such matters are
reviewable on the reasonableness standard (see A.M. v Canada (Minister of
Citizenship and Immigration), 2011 FC 964, [2011] FCJ No 1187 at para 20).
[12]
Reasonableness
is concerned “mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[13]
The
Applicant submits that the Board overlooked the affidavit the Applicant
submitted in support of his current partner’s claim for refugee protection, and
the Applicant’s health passport that corroborates his narrative.
[14]
However,
it is clear from the transcript that the Board did indeed consider the two
documents referred to by the Applicant. Indeed, the Board admitted them as
evidence after its original reluctance to include them on the basis of their
late submission and in the absence of an explanation as to the delay. The
Board further asked questions directly related to the contents of these two
documents. The Applicant’s primary contention is thus that the Board did not
attribute sufficient weight to these documents. The weighing of evidence is
squarely within the expertise of the Board, and it is not for this Court to
substitute its own assessment of the evidence for that of the Board.
[15]
The
Applicant contends that the Board based its conclusions on minor contradictions
that resulted from its misinterpretation of the Applicant’s testimony. Based on
the record before it, I am satisfied that the Board’s decision was reasonable.
[16]
Contrary
to the Applicant’s submissions, the Board did not misinterpret the Applicant’s
testimony with respect to the length of time he had lived with his partner in
Namibia. The transcript is clear that the Applicant’s answers were
inconsistent. While the point about the Applicant’s language may not be
central to his claim, it does go to credibility, an area within the Board’s
specialized expertise. As already mentioned, the Board is entitled to weigh
the evidence before it. I am satisfied that the Board did so in a
reasonable manner in this case.
[17]
Finally,
as the Respondent rightly points out, this Court has held that, where the
Applicant has failed to establish his identity, in this case as a gay man, the
Board is not obligated to consider the application further (Pak v Canada
(Minister of Citizenship and Immigration), 2011 FC 381, [2011] FCJ No 490
at para 42; Li v Canada (Minister of Citizenship and Immigration), 2006 FC
296, [2006] FCJ No 368 at para 8; Husein v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 726 at para 13). The Board’s purported
failure to consider the documentary evidence pertaining to the treatment of gay
men in Namibia is thus not reviewable.
VI. Conclusion
[18]
The
Board’s decision is defensible in respect of the law and of the facts of this
case, and falls within the range of possible, acceptable outcomes.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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