Date:
20130801
Docket:
IMM-3588-12
Citation:
2013 FC 842
Ottawa, Ontario,
August 1, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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POPYILLA DAYEBGA
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated April 10, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a citizen of Cameroon born in 1984. He claims refugee protection
on the basis of persecution due to being gay.
[4]
His
first gay relationship was in 2004 and he told his mother he was gay in the
same year. His was a member of the gay awareness group at his high school and
joined the local gay pride movement.
[5]
In
January 2005, the applicant was attacked and beaten by police for participating
in the meeting of a gay pride group. He spent two weeks in hospital.
[6]
In
May 2008, he was participating in a gay rights march when he and others were
arrested. He never appeared before a judge. He stayed in prison for four months
before he was released due to his uncle’s bribing the warden.
[7]
The
applicant fled Cameroon on October 28, 2011 and arrived in Canada on October 30, 2011. He claimed protection on November 3, 2011.
Board’s Decision
[8]
The
Board gave an oral decision at the hearing on April 10, 2012 with written
reasons provided on April 30, 2012. The Board summarized the applicant’s
allegations and held that the applicant was neither a Convention refugee nor a
person in need of protection.
[9]
The
Board accepted the applicant’s identity but held that he had not established
other central elements of his claim, including his sexual orientation.
[10]
The
applicant had testified that he was involved in the gay, lesbian and transgender
movement in various groups from 2004 to 2011, but could not provide any
acceptable documents to establish this fact. The Board rejected the applicant’s
explanation; that he could not get in touch with any members of these groups
due to their being in hiding, on the basis that there was some continuity in
the groups given that the applicant had been a member for seven years.
[11]
The
Board noted the applicant had testified he was no longer in touch with any of his
past partners, so could not provide corroborative evidence from them. The Board
assigned no weight to a letter from the applicant’s mother, as the applicant
did not provide any documents establishing his presence in Cameroon from 2003 to 2011.
[12]
The
Board also noted the applicant provided no documents confirming either his
nursing training or his employment at a hospital. The applicant testified he
could not obtain documents from either source. The Board held that the
applicant had been unable to satisfactorily establish his whereabouts from 2003
and 2011 and his testimony about how he got to Canada was not supported by
documentary evidence.
[13]
The
Board therefore concluded the applicant was not credible and indicated neither
his knowledge of the persecution of gays and lesbians in Cameroon nor his activities in Canada with groups that cater to gay, lesbian and transgender refugee
claimants established that he was gay.
Issues
[14]
The
applicant submits the following points at issue:
1. Did the panel err
by basing a negative identity and credibility finding on a faulty premise and
thereby make a finding without regard for the material actually before it?
2. Did the panel err
by making perverse findings of fact regarding apparent inconsistencies and
implausibility?
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[16]
The
applicant notes that the Board accepted his identity and nationality and that
he provided documents to the Board including his birth certificate and
educational transcripts. The Board did not doubt the authenticity of this
evidence.
[17]
The
applicant argues the standard of review is reasonableness. The applicant
emphasizes section 106 of the Act, which allows a claimant to provide a
reasonable explanation for a lack of documentation. The applicant argues he gave
such satisfactory explanation. The Board must make a reasonable finding based
on the evidence.
[18]
The
applicant argues the Board had no basis on which to impugn his credibility. His
sworn testimony is presumed to be truthful unless there is a reason not to
believe it. A lack of corroborative evidence is an insufficient reason to
discredit his testimony regarding his treatment in Cameroon.
[19]
The
applicant further argues the Board performed a microscopic analysis of the
evidence and placed undue reliance on the absence of documentary evidence. This
Court has held that the Board cannot disbelieve the applicant simply because
there is no documentary evidence. The Board failed to grasp the reality facing
homosexual people in Cameroon. The applicant argues there is a perception the
decision maker lost impartiality by ignoring the totality of the evidence. The Board
should give clear and convincing reasons in rejecting evidence. The Board gave
no reasons for rejecting the claim under section 97 of the Act.
Respondent’s Written Submissions
[20]
The
respondent argues reasonableness is the appropriate standard of review. There
was no requirement for a separate section 97 analysis given that the applicant
had not established his sexual orientation or his allegations of mistreatment.
[21]
The
respondent argues the applicant’s affidavit evidence that was not before the
decision maker cannot be considered. The respondent argues the Board considered
the applicant’s reasons for failing to provide documents and did not find them
credible. The transcript shows that the Board discussed with the applicant the
steps he took to obtain corroborating documents. It was reasonable to expect
the applicant to provide corroborating evidence. The Board also questioned why
the applicant left Cameroon so quickly that he was not able to bring
corroborating documents with him.
Analysis and Decision
[22]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[23]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7, [2003] FCJ No
162; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada (Minister of Citizenship and Immigration), 2011 FC 584 at paragraph 23, [2011]
FCJ No 786). Similarly, the weighing of evidence and the interpretation and
assessment of evidence are reviewable on a standard of reasonableness (see Oluwafemi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1045 at
paragraph 38, [2009] FCJ No 1286).
[24]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Khosa above, at paragraph 59). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[25]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
The applicant filed an
affidavit which was not before the Board that made the decision in this matter.
I am not prepared to consider this evidence. The jurisprudence of this Court is
to the effect that the review of a tribunal’s decision should proceed on the
basis of the evidence before the decision maker (see Fabiano v Canada (Minister of Citizenship and Immigration) 2005 FC 1260 at paragraphs 22 to 25,
[2005] FCJ No 1510). Accordingly, the affidavit with its exhibit sworn to on
December 17, 2012 is struck.
[26]
The
applicant relies on the principle from Ahortor v Canada (Minister of
Employment and Immigration), (1993), 65 FTR 137 (Fed TD), that the Board
cannot reject a claim on the basis of a lack of corroborative evidence if the
applicant’s credibility is not in question (at paragraph 45). The respondent
points out that the Board had clearly elaborated credibility concerns relating
to the applicant’s explanation for his failure to produce documents.
[27]
The
respondent’s approach would reverse engineer the principle from Ahortor
above. the applicant’s failure to produce documents would create a credibility
concern allowing the Board to consider his failure to produce documents as a
reason to doubt credibility. If the Board engages in such reasoning, it
circumvents the presumption that sworn testimony is truthful (see Maldonado
v Canada (Minister of Employment and Immigration), [1994] FCJ No 72) by
analyzing the applicant’s reasons for a lack of documents without addressing
the credibility or plausibility of the applicant’s allegations as described in
oral testimony.
[28]
The
reasons do not disclose any credibility concern other than those concerns
relating to the failure to produce evidence. In the absence of such a
credibility concern or any doubts about the applicant’s story other than those
pertaining to documentary evidence, it was an error for the Board to reject the
claim solely on the basis of a lack of corroborative evidence.
[29]
I
would also note that the applicant’s nursing training and hospital employment,
two elements of the claim the Board doubted due to the lack of documents, are
not central elements of the applicant’s claim. While the applicant may have
been reasonably expected to produce corroborative evidence on these points,
that is certainly not the case in the actual central elements of the claim: his
sexual orientation and his participation in persecuted political groups.
[30]
Whether
corroborative evidence can be reasonably demanded depends on the facts of each
case (see Lopera v Canada (Minister of Citizenship and Immigration),
2011 FC 653 at paragraph 31, [2011] FCJ No 828). The fact that the applicant
was a member of such groups for seven years while he was physically present in Cameroon does not mean that such groups are easy to contact from Canada. The Board did not take into
account the undisputed persecution of such groups in Cameroon when considering
the ease with which the applicant could contact group members or procure
corroborative evidence from them. As for sexual orientation itself, it is not
clear to me what evidence could be reasonably expected from an applicant who
described the extensive persecution he suffered in Cameroon on that basis.
[31]
Given
the flaws I have described in the Board’s reasoning, its decision was not
properly justified and it falls outside the range of acceptable outcomes.
[32]
The
application for judicial review is therefore granted and the matter returned to
the Board for redetermination.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is remitted to a different panel of the Board for
redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
106.
The Refugee Protection Division must take into account, with respect to the
credibility of a claimant, whether the claimant possesses acceptable
documentation establishing identity, and if not, whether they have provided a
reasonable explanation for the lack of documentation or have taken reasonable
steps to obtain the documentation.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
106.
La Section de la protection des réfugiés prend en compte, s’agissant de
crédibilité, le fait que, n’étant pas muni de papiers d’identité acceptables,
le demandeur ne peut raisonnablement en justifier la raison et n’a pas pris
les mesures voulues pour s’en procurer.
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