Date:
20130625
Docket:
IMM-9675-12
Citation:
2013 FC 701
Toronto, Ontario, June 25, 2013
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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PRESCOTT KAMBURONA
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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, Prescott
Kamburona,
is a citizen of Namibia. He alleges that he fled to Canada because it was
revealed that he was in a homosexual relationship in that country. He says that
because of his homosexuality, he currently fears that he will face persecution
if returned to Namibia. The refugee claim of the man he claims is his current
homosexual partner in Canada was granted by the Refugee Protection Division of
the Immigration and Refugee Board [the Board] after a refugee hearing in which
Mr. Kamburona testified as a witness. A differently-constituted Board did not,
however, grant Mr. Kamburona’s refugee claim which was heard at a later date.
The Board Member stated: “I am not satisfied that the Claimant has
established, on the balance of probabilities, his alleged sexual orientation
which is at the core of the claim.”
[2]
Mr.
Kamburona’s partner did not appear as a witness at his hearing or provide a
written statement confirming that they were in a homosexual relationship. Mr.
Kamburona testified that his partner was originally supposed to testify at the
hearing but he got ill shortly before the hearing, took time off, and could not
take further time off from work to attend the hearing. It was only at the end
of the week preceding the Monday hearing that this became known to him.
[3]
In
the absence of his partner’s evidence, the evidence before the Board as to the
sexual orientation of Mr. Kamburona was his own sworn testimony and some
corroborating evidence.
[4]
The
Board made three negative credibility findings, described as “substantial
evidentiary discrepancies,” that caused it to reject Mr. Kamburona’s evidence.
In my view, and despite the deference to be paid to the original trier of fact,
they are neither “substantial discrepancies” nor do they form a reasonable
basis to question the applicant’s credibility.
[5]
First,
I agree that the Board is generally entitled to draw a negative credibility
inference from the applicant’s failure to produce evidence from his partner
that was presumptively available to him: See, e.g., He v Canada (Minister of Citizenship and Immigration), 2013 FC 362 at para 26:
Not only was there no corroborative evidence, but no
attempt to obtain such evidence was made. The Applicant does not address the
statement in the 2010 Response to Information Request to the effect that
"[i]t is possible to obtain a copy [of an arrest or summons] afterwards by
contacting the local Public Security Bureau and making this request". n Wei
v. Canada (Minister of Citizenship & Immigration), 2012 FC 911 (F.C.),
Justice Russell drew a negative inference from the Applicant's failure to
produce a copy of an alleged PSB warrant, referencing the earlier 2004 Response
to Information Request for the proposition that it is possible to obtain a copy
from the PSB. In the absence of any allegation that it would have been
unreasonable for the Applicant's family to contact the PSB, the same negative
inference can be drawn here.
[6]
Here,
the applicant’s partner did not give oral or written evidence about their
relationship, nor was there any corroborating evidence about why the partner
could not testify at the applicant’s refugee hearing such as a doctor’s note,
or note from the partner which, presumptively, would have been available. If
such corroborating evidence was not in fact readily available, it was the
applicant’s burden to say so. He did not, and he was represented by counsel.
On its face, this weighed against the applicant. However, this finding must be
balanced against the comments below about the failure of the Board to access and
review the partner’s refugee determination file in the possession of the Board.
[7]
Second
is the issue of the applicant’s former partner’s arrest in Namibia. The applicant’s testimony was that he left Namibia in April 2010 shortly after
his then partner was arrested for being homosexual and was tortured into giving
up the applicant’s name to the police. However, the notes of the officer who
summarized the applicant’s reasons for seeking Canada’s protection on Form IMM
5611 at Pearson International Airport in Toronto, the port of entry, make no
mention of any arrest and only state that “Recently, I do not even know where
my partner is.” The applicant stated at the Board hearing that he told the
officer everything and that it was the officer’s failure to note that the
partner was arrested. The Board preferred the explanation that the applicant
never told this story to the officer. One can accept that the Board was entitled
to prefer one explanation over another; however, it must be observed that the
applicant’s evidence must be considered in the context of that short written
narrative, which strongly suggests that material details were omitted by the
officer in his notes:
Recently after they found out that I am one of the
gays. I cannot go to work. I could not go home. They were chasing me and
trying to harm me. They were claiming that homosexuals were not supposed to be
in the country. It is very difficult for me to be there. Coming here, I am
trying to escape that. Recently, I do not even know where my partner is.
[8]
Moreover,
the directions in Form IMM 5611 are to “Please keep your answer short. You
will have the opportunity to explain all the facts related to your claim to the
Immigration and Refugee Board of Canada” [emphasis added]. This is to be
contrasted with the Personal Information Form [PIF], Board Form IRB/CISR 189,
which is commonly referred to by the Board and at issue in these judicial
review proceedings, which requires that refugee claimants “set out in
chronological order all the significant events and reasons that have led
you to claim refugee protection” [emphasis in original]. In his PIF, the
applicant recounted his partner’s arrest in Namibia.
[9]
Moreover,
the applicant provided the Board with an affidavit sworn by his Namibian
partner’s sister and that affidavit confirmed and fully supported the
applicant’s story of his partner’s arrest, that he revealed the applicant’s
name to the police, and that the sister had informed the applicant of these
facts and encouraged him to flee.
[10]
For
those reasons, I find the Board’s negative inference based on the contents of
Form 5611 made at the port of entry to be unreasonable.
[11]
Last
of the three credibility findings, the Board drew a negative inference from the
applicant’s failure to distinguish his residence in his PIF. The applicant’s
testimony was that he hid at a cousin’s house for roughly ten days after his
partner was arrested, yet his PIF he indicated one continuous period of
residence in “Windhoek, Katatura.” At the hearing, the Board asked the
applicant about this apparent discrepancy and it was revealed that both his
cousin’s house and his parents’ house (where he had lived his entire life) are
in that same, large suburb. The Board continued and asked why the applicant
did not make any effort on the PIF to indicate his cousin’s specific residence
and the applicant replied that he did not know his cousin’s specific address.
[12]
It
is a mystery why the Board drew a negative credibility inference from the lack
of such specific detail in the residence portion of the PIF. First, the
applicant did positively state in his PIF narrative that he fled to his
cousin’s home. Thus, this is not an example of a detail arising in oral
testimony that is not borne out in the PIF. It was in the PIF. Second, in my
view, the Board again paid insufficient attention to the wording of the form at
issue. In the residence section, the PIF asks a claimant to indicate their
address, which is stated as meaning “village, town, city, county, district,
province.” It does not ask, much less require, claimants to indicate a street name
or number. The applicant fully complied with the requirements stated on the
form. For these reasons, this credibility finding was also made unreasonably.
[13]
Even
if one accepts as reasonable the first credibility finding based on the absence
of evidence from the homosexual partner in Canada, it is impossible to
ascertain the weight given to each of these findings, and since the majority of
the Board’s findings are unreasonable, its decision must be set aside.
However, in light of the following comments, I am also of the view that the
Board should not have so readily challenged the applicant’s credibility based
on the absence of testimony from his homosexual partner in Canada.
[14]
It
is evident from the reasons that the lack of this evidence weighed strongly in
the decision to reject the refugee claim:
In the absence of any affidavit or viva voce
evidence from any alleged same-sex partner, or reliable evidence as to the
reasons for its absence and substantial evidentiary discrepancies which remain
inadequately explained, I am not satisfied that the Claimant has established,
on the balance of probabilities, his alleged sexual orientation which is at the
core of the claim.
[15]
The
Board accepted that the applicant’s homosexual partner in Canada had been previously granted refugee status by the Board and that the applicant
testified at that hearing. It is clear from the record before me that the
partner’s claim was on the basis of his sexual orientation. While the Member
expressed some concern that his decision was contrary to that earlier decision,
he took the position that each claim must be assessed on its merits:
[T]he alleged same-sex partner would be an
interested party. He is from Namibia. Both are refugee claimants who live
together with one other person in Edmonton. The Claimant and his alleged
partner work in Edmonton. The Claimant testified at his alleged same-sex
partner’s hearing: the partner was accepted as a Convention refugee by another
Panel of the division.
Decision-making consistency of like claims is an
important feature of administrative justice at the Immigration and Refugee
Board. However, at the same time, claims are assessed and decided on their own
merits. In my view, if the Claimant’s explanations as to the reasons why his
same-sex partner did not, or was unable to come to Toronto to be a witness in
the Claimant’s hearing, or indeed to fax an affidavit in advance of the
hearing, were credible, then more likely than not there would be independent
corroboration to help support the important allegation of this claim.
[emphasis added]
[16]
In
fact, in my view, there was “independent corroboration” to help support that
the applicant is homosexual; namely, the testimony of the applicant and his
same-sex partner, given under oath at the partner’s refugee hearing and the
Board’s decision accepting the partner’s claim and granting him refugee status.
[17]
The
partner’s hearing file is confidential and is not available to this applicant
or his counsel. The Court recognizes and accepts that the applicant or his
counsel could have requested the file from the same-sex partner or could have requested
the Board to access it. They did neither. However, the Board may do so on its
own motion.
[18]
The
Refugee Protection Division Rules, SOR/2002-228 [the Rules], then
in force, applied to the applicant’s hearing and a combination of Rules 17(1)
and 69(a) provides the Board with such authority:
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17.
(1) Subject to subsection (4), the Division may disclose to a claimant
personal and other information that it wants to use from any other claim if
the claims involve similar questions of fact or if the information is
otherwise relevant to the determination of the claimant’s claim.
…
69.
The Division may
(a)
act on its own initiative, without a party having to make an application or
request to the Division;
(b)
change a requirement of a rule;
(c) excuse a person from a requirement
of a rule; and
(d)
extend or shorten a time limit, before or after the time limit has passed.
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17.(1) Sous réserve du
paragraphe (4), la Section peut communiquer au demandeur d’asile des
renseignements – personnels ou autres – qu’elle veut utiliser et qui
proviennent de toute autre demande d’asile si la demande d’asile soulève des
questions de fait semblables à celles de l’autre demande ou si ces
renseignements sont par ailleurs utiles à la solution de la demande.
…
69. La Section peut :
a) agir de sa propre initiative
sans qu’une partie n’ait à lui présenter une demande;
b) modifier une exigence d’une
règle;
c) permettre à une partie de ne
pas suivre une règle;
d) proroger ou abréger un délai
avant ou après son expiration.
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[19]
In
my view, the circumstances before this Panel of the Board cried out for it to
access the same-sex partner’s information under the Rules because the
claims clearly involved “similar questions of fact,” the explanation offered by
the applicant as to why his same-sex partner was not available to testify was plausible,
and the claim for protection was being made by a self proclaimed homosexual
from a country where that sexual orientation is a criminal offence. In short,
the possibility of error in determining, as a fact, his sexual orientation, had
significant consequences on the applicant if he were returned to Namibia. The Board operates under the Immigration and Refugee Protection Act, SC
2001, c 27, the main purpose of which with respect to refugees is set out in
paragraph 3(2)(a) as being to “recognize that the refugee program is in the
first instance about saving lives and offering protection to the displaced and
persecuted.” In the circumstances here it must exercise vigilance, and it
ought to have accessed the partner’s information in the Board’s possession,
before determining that there was no independent corroboration of this
applicant being a homosexual.
[20]
This
application is allowed. No question was proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application is allowed, the Board’s decision is set aside, the applicant’s
claim for refugee protection is referred back to the Board to a differently
constituted Panel for determination in keeping with these reasons, and no
question is certified.
"Russel W.
Zinn"
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