Date:
20130527
Docket:
IMM-5442-12
Citation:
2013 FC 553
Ottawa, Ontario, May 27, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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TUKONDJA MBIRIMUJO
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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]
This
is an application for judicial review under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision of the Refugee Protection Division [RPD] rendered
orally on May 28, 2012 and with written reasons dated July 5, 2012, denying the
Applicant refugee protection.
I. Facts and decision under
review
[2]
The
Applicant is a 32-year-old single citizen of Namibia. He fears society and
authorities because he is Christian and homosexual as well as his uncle who is
targeting him because he refused to marry his cousin.
[3]
The
RPD determined that the Applicant is not a Convention refugee or a person in
need in of protection.
[4]
First,
the Applicant did not declare, at the interview at the point of entry that he
is targeted because he is homosexual although at the hearing, this fact was a
core allegation in his claim. The RPD rejected the Applicant’s explanation that
he was afraid of the officer in uniform because police in Namibia did not listen to him and that he thought the officer might reject him. The RPD noted that
the Applicant is an articulate and confident person who received a high school
education and that he stated that he chose to come to Canada and not stay in Germany, where he changed planes, because he heard from friends of a relative
that Canada would be a good place for him. Therefore, the RPD considered that
he should have mentioned the fact that he is targeted because of his sexual
orientation at the port of entry.
[5]
The
RPD also determined that the Applicant’s alleged fear due to his Christianity
was not credible because when asked at the hearing why he was seeking
protection he referred to his fear of being targeted because of his
homosexuality and fear of being forced to marry his cousin. The RPD rejected
the Applicant’s explanation that the issue of his Christianity was already
addressed earlier in the hearing when he explained that his uncle mocked him
because of his religion and homosexuality since the earlier questions asked by
the member concerned his declaration at the port of entry in Canada. Therefore, the RPD concluded that had the Applicant’s Christianity been the cause of his fear
of persecution, he would have addressed it when asked specifically why he is
targeted by his uncle. The RPD again noted that the Applicant showed to be a
well-spoken person.
[6]
The
RPD further noted that the Applicant presented no evidence to establish his
allegation that he had a same-sex relationship in Canada. His explanation that
the relationship ended and that he tried to contact his former partner was
rejected by the RPD as it considered that the person would have been present to
provide testimony in support of the Applicant’s highly important claim or
alternatively, that the Applicant should have provided evidence that he made
serious efforts to secure the former partner’s testimony or evidence.
[7]
The
RPD made brief mention of the fact that the Applicant could have made a refugee
claim in Frankfurt, Germany where he changed planes.
II. Applicant’s submissions
[8]
The
Applicant first submits that the RPD’s determination that the Applicant has not
established on a balance of probabilities that he is homosexual is
unreasonable. The RPD unreasonably excluded relevant documentary evidence such
as a letter from the Applicant’s former homosexual partner in Namibia, a letter from Rev. Brent Hawkes and a letter from his counsellor.
[9]
The
Applicant also argues that the RPD’s assessment of the Applicant’s explanation
that he did not tell the officer at the point of entry that he was homosexual
because of his prior experience with uniformed authorities in Namibia is unreasonable as it disregards the fact that he is a man who has spent his entire
life in a homophobic country. Moreover, the RPD erred in focusing on his
educational background.
III. Respondent’s submissions
[10]
The
Respondent submits that in the RPD’s oral decision, it is indicated that it did
not accept the late filing of the evidence. Moreover, at the beginning of the
hearing, the RPD provided the Applicant with the opportunity to specifically
explain why the documentation was submitted late and no persuasive argument was
given by the Applicant as to why he did not gather the documents earlier.
[11]
The
Respondent submits that in any event, the RPD considered the entirety of the
evidence submitted by the Applicant including all the letters and concluded
that it did not establish on a balance of probabilities that the Applicant is
targeted because of his Christianity and homosexuality. Moreover, it is open to
the RPD to find that opinion evidence is only as valid as the truth of the
facts on which that opinion is based and the RPD is not required to defer to
the opinion of the author of the report, especially on matters such as the
claimant’s credibility.
[12]
Second,
the RPD reasonably rejected the Applicant’s explanation on why he did not tell
the officer at the port of entry that he fears going back to Namibia because of
his homosexuality as he specifically waited to come to Canada to make a refugee
claim because he thought Canada was receptive to a person who fears returning
to his home country because of his homosexuality and Christianity. It was
therefore unreasonable for the Applicant to think that he would not be allowed
to make a refugee claim on this basis. Omission of pertinent evidence during the
port of entry interview is a sufficient basis for making an adverse credibility
finding.
[13]
Third,
the RPD reasonably found problematic the fact that his first response to why
his uncle is targeting him is that he is homosexual but he failed to disclose
this fact during the port of entry interview. Therefore, the RPD did not err by
considering the educational background of the Applicant as it was pointing out
why it did not accept his explanation for his failure to mention that he was
targeted because he is homosexual.
[14]
The
Respondent also submits that questions of credibility and weight of evidence
are within the jurisdiction of the RPD as the trier of fact in respect of
refugee claims.
[15]
In
conclusion, the Respondent submits that the RPD provided clear reasons for
denying the Applicant’s refugee claim and that the decision falls within the
range of acceptable outcomes and that the Applicant simply disagrees with the
weight that was accorded to this evidence.
IV. Issues
1. Was
the RPD’s exclusion of evidence made in accordance with the law?
2.
Are the RPD’s credibility findings reasonable?
V. Standard of review
[16]
The
RPD’s decision to exclude evidence raises an issue of procedural fairness (Nagulesan v Canada
(Minister of Citizenship and Immigration), 2004 FC 1382 at para 17, 44 Imm
LR (3d) 99;
S.E.B.
v Canada (Minister of Citizenship and Immigration), 2005 FC 791 at
para 25, 2005 CarswellNat 1583), which is reviewable under the
standard of correctness (Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 111, [2009]
1 SCR 339). As for the second issue, findings of credibility are
questions of fact and are therefore to be evaluated on a
standard of review of reasonableness (Dunsmuir
v New Brunswick, 2008
SCC 9 at para 53,
[2008] 1 S.C.R. 190).
VI. Analysis
A. Was the
RPD’s exclusion made in accordance with the law?
[17]
The
RPD’s determination as to the admissibility of the evidence that was filed late
is incomplete as it did not properly apply the factors outlined in section 30
of the Refugee Protection Division Rules, SOR/2002-228
[RPD Rules].
[18]
The
RPD explained at the end of the hearing that it rejected all the evidence that
was filed late as the explanation to the effect that he wanted to wait to have
all the documents before he submitted them was not found satisfactory.
Therefore, it did not consider the letter from Rev. Dr. Brent
Hawkes,
the letter from the Applicant’s former sexual partner in Namibia and the letter from the counselor, although in the latter case, the RPD however
considered the Applicant’s testimony with regards to his meetings with a
counselor.
[19]
Under
the prior version of section 29 of the RPD Rules, the Applicant was
required to file a copy of the documents in support of his claim 20 days
before the hearing. As
the documents were filed late, in its decision, the RPD was under an obligation
to consider the factors set out in section 30 which reads as follows:
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Refugee
Protection Division Rules, SOR/2002-228
30. A party who does not provide a document as required
by rule 29 may not use the document at the hearing unless allowed by the
Division. In deciding whether to allow its use, the Division must consider
any relevant factors, including
(a) the document’s relevance and probative
value;
(b) any new evidence it brings to the
hearing; and
(c) whether the party, with reasonable
effort, could have provided the document as required by Rule 29.
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Règles
de la Section de la protection des réfugiés,
DORS/2002-228
30. La partie qui ne transmet pas un document selon la
règle 29 ne peut utiliser celui-ci à l’audience, sauf autorisation de la
Section. Pour décider si elle autorise l’utilisation du document à
l’audience, la Section prend en considération tout élément pertinent. Elle
examine notamment :
a) la pertinence et la valeur probante du document;
b) toute preuve nouvelle qu’il apporte;
c) si la partie aurait pu, en faisant des efforts
raisonnables, le transmettre selon la règle 29.
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[20]
A
reading of the transcript shows that there was an exchange between the RPD and
the Applicant and his counsel on the late filing of the documents and their
general purpose but at no time did the RPD conclude on the relevancy and
probative value of each document. As noted above, there is an oral decision
which makes a general comment on relevancy but without explanation. A reader
can only be left with no understanding as to the relevancy and probative value
of each document. Such is not what Rule 30 requires in such a situation.
[21]
The
RPD took
into consideration the fact that the Applicant was represented by an experienced
counsel. The panel also assessed the explanation given for his failure to
provide his documents, which he deemed unsatisfactory. He further noted that he
considered that the Applicant started to gather documents only once he received
notice of the hearing.
[22]
However,
in the RPD’s decision, there is no determination as to the probative value
placed on the documents filed late or as to their relevance if they had been
adduced as part of the evidence, which are factors to be considered (Mercado v Canada
(Minister of Citizenship and Immigration), 2010 FC 289 at para 38, 192 ACWS
(3d) 1319).
Moreover, the RPD only considered in part whether the Applicant,
with reasonable efforts, could have provided the document as required by Rule
29.
[23]
Indeed,
while the RPD acknowledges that there are other factors to consider besides the
relevance of the document, it does not actually examine the relevance of the
documents filed late or their probative value. The RPD’s analysis is focused on
the reasons why the documents were filed late and on the lack of diligence of
the Applicant, which is one among other factors that needs to be considered.
On this point, the RPD’s examination of the last criteria is
incomplete. Indeed, its analysis of whether the Applicant, with reasonable
efforts could have provided the documents 20 days before the hearing held on
May 28, 2012, the RPD ignored that a number of documents were not available on
or before May 8, 2012, namely the letter by Rev. Dr. Brent Hawkes dated May 23,
2012, the letter by the Mental Health Counselor dated May 14, 2012 and the
letter by the LGBT Settlement Coordinator dated May 17, 2012.
[24]
Among
the documents that were not considered by the RPD are the photographs of the
Applicant with his former partner in Namibia as well as a letter by the latter
confirming that he had a homosexual relationship with the Applicant. Such
evidence may have been found admissible by the RPD despite the lateness of its
filing, as they consist of relevant evidence that may have established the Applicant’s sexual
orientation, had they been admitted by the RPD. It was therefore incorrect to
reject the documents filed late without doing a proper analysis by reviewing
the factors put forward by the prior version of section 30 of the RPD Rules.
B. Are the
RPD’s credibility findings reasonable?
[25]
In
light of what is mentioned above and since the RPD may not have had all the
documentary evidence as a result of its decision not to accept the late filing
of certain documents, it is not necessary to decide the second question. As a
new panel will be reviewing the case to be presented by the Applicant, it will
then make a new decision in light of the evidence submitted and the
testimony(ies).
JUDGMENT
THIS
COURT’S JUDGMENT is that the present
application for judicial review is granted.
“Simon Noël”
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