Docket: IMM-1445-16
Citation:
2016 FC 1411
Ottawa, Ontario, December 23, 2016
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
SYLVIA JILL SABIITI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is a judicial review of a decision by the
Refugee Protection Division [RPD] of the Immigration and Refugee Board of
Canada dated March 22, 2016, in which the RPD determined that the Applicant is
not a Convention refugee pursuant to section 96 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] nor a person in need of protection pursuant to section 97 of IRPA.
The Applicant, Ms. Sylvia Jill Sabiiti, a citizen of Uganda, claimed protection
against domestic violence by her husband and his second wife.
[2]
This application is allowed. The RPD concluded
that Ms. Sabiiti was not credible or trustworthy and that her claim had no
credible basis. These conclusions were influenced significantly by the RPD’s
analysis of the evidence surrounding Ms. Sabiiti’s marriage certificate and her
application in December 2014 for a Canadian Temporary Resident Visa [TRV]. For
the reasons explained in greater detail below, I find the RPD’s analysis of
that evidence, and therefore its decision rejecting Ms. Sabiiti’s claim, to be
unreasonable.
II.
Background
[3]
Ms. Sabiiti states that she and Mr. Emmanuel Kwihangana
were married in a traditional ceremony on February 16, 2008, with a church
wedding following on November 15, 2008. Ms. Sabiiti alleges that, toward the
end of their first year of marriage, Mr. Kwihangana’s behaviour became violent
and controlling, and that he was physically and sexually abusive towards her,
raping her on several occasions and causing injuries which required medical
attention.
[4]
According to Ms. Sabiiti, Mr. Kwihangana brought
home another woman in October 2013 and told Ms. Sabiiti that the woman was to
be her co-wife. She alleges that the abusive treatment towards her continued,
from both her husband and his second wife.
[5]
Ms. Sabiiti alleges that she repeatedly sought
assistance from the local police and other authorities but did not receive any
help. In September 2015, Ms. Sabiiti was helped by family and friends to
purchase a ticket to Canada while her husband and his second wife were away.
She came to Canada and claimed refugee protection soon thereafter. Her refugee
claim was heard on February 29, 2016, and a negative decision was issued by the
RPD on March 10, 2016. The determinative issue for the RPD was credibility,
resulting in the RPD finding under section 107(2) of IRPA that there was no
credible basis for her claim.
III.
Analysis
[6]
While Ms. Sabiiti raised a number of issues in
this application for judicial review, my decision turns on the RPD’s assessment
of the evidence in reaching certain of its principal credibility findings. It
is well-established that findings based on the assessment of evidence and
determinations of credibility are reviewed on the standard of reasonableness
(see Khosa v Canada (Minister of Citizenship and Immigration), 2009 SCC
12, at para 46; Dunsmuir v New Brunswick, 1 SCR 190, at para 47; Jin
v Canada (Minister of Citizenship and Immigration), 2012 FC 595, at para 4;
Mukamuganga v Canada (Minister of Citizenship and Immigration), 2013 FC
566, at para 35; Pepaj v. Canada (Minister of Citizenship and Immigration),
2014 FC 938, at para 13).
[7]
At the outset, I note that I concur with Ms.
Sabiiti’s characterization of the RPD’s overall decision as having been
influenced significantly by its findings that she was not a credible witness
and that her evidence was not trustworthy. The evidence before the RPD included
documents purporting to be from the Uganda police, municipal authorities,
hospitals in Uganda, a shelter in Toronto, family members, and a neighbour,
which Ms. Sabiiti argued corroborated her allegations of threats and incidents
of domestic violence. The RPD considered this evidence but gave none of it any
evidentiary weight, in part because it did not overcome the credibility concerns
that arose in Ms. Sabiiti’s own evidence. Those credibility concerns are
therefore are critical to the RPD’s overall decision.
[8]
Both the decision and the transcript of the RPD’s
questioning of Ms. Sabiiti at the hearing demonstrate a significant focus on
the evidence surrounding her marriage certificate. The documentary evidence
included two copies of a document bearing the title “Marriage
Certificate” under the heading “St. Francis
Chapel Makerere University”, which purported to reflect Ms. Sabiiti’s marriage
to Mr. Kwihangana on November 15, 2008. One of these copies bore the stamp of
the Assistant Registrar of Marriages, dated September 15, 2015, indicating the
document to be a certified true copy.
[9]
The RPD concluded that neither copy of the
marriage certificate was a reliable or trustworthy document and that there was
therefore no reliable or trustworthy evidence originating from proper government
sources to establish a record of Ms. Sabiiti ever having been married. The RPD
therefore found that Ms. Sabiiti’s credibility was undermined and that she was
not a credible witness.
[10]
The conclusion that the copies of the marriage
certificate were not reliable was based on the RPD’s consideration of
documentary evidence with respect to the issuance of marriage certificates in
Uganda. The RPD noted that this evidence indicated that marriage records are
issued by the government of Uganda and that there was no evidence to establish
that either official marriage certificates or certified copies of marriage
certificates were issued by churches in Uganda. The RPD also observed that Ms.
Sabiiti testified that the certified copy of her marriage certificate was
issued by the church where she was married.
[11]
In reaching its conclusion on this issue, the
RPD appears to have misconstrued the evidence before it. First, I note that
there is no reference in the decision to the fact that the certified copy of
the marriage certificate was issued by the “Asst.
Register of Marriages”. Also, the RPD does not refer to Ms. Sabiiti’s
testimony at the hearing as to how she obtained the certified copy. She
explained that she went to the office of the registrar to have her marriage
certificate certified. The registrar checked their records and determined that
her marriage had not been registered there. She was then instructed to obtain a
letter from the church confirming her marriage. She obtained that letter, a
copy of which was in evidence before the RPD, and submitted that letter to the
registrar’s office, which then certified the marriage certificate.
[12]
The RPD’s decision does not address this
evidence at all. It appears to rely solely on an exchange with Ms. Sabiiti at
the conclusion of her testimony, in which Ms. Sabiiti confirmed that she did
not ever have a certificate for her customary marriage and that both copies of
the marriage certificate were from the church where she was married, with Ms.
Sabiiti referring to the certified copy as just having a stamp on the side. The
Applicant has raised a credible argument that the evidence demonstrates that,
notwithstanding the marriage certificate itself was prepared by the church, the
certification was performed by a government official, the Assistant Registrar
of Marriages. I acknowledge that Ms. Sabiiti’s explanation of the process by
which she obtained the certified copy was somewhat confusing and that there is
no clear evidence of the official status of Assistant Registrar of Marriages.
However, I find it a reviewable error for the RPD to have failed to consider
Ms. Sabiiti’s evidence of the certification process and the fact that the
certification was purportedly performed by an office called the Assistant
Registrar of Marriages. Without such consideration, it was unreasonable for the
RPD to conclude that the marriage certificate was not reliable or trustworthy
and to conclude based thereon that Ms. Sabiiti was not a reliable witness.
[13]
I have a similar concern related to the RPD’s
treatment of Ms. Sabiiti’s December 2014 application for a TRV. The RPD noted
that, in her application, Ms. Sabiiti stated she was single, and that she
acknowledged she had knowingly submitted fraudulent information to Canadian
Embassy officials. The RPD found that Ms. Sabiiti’s actions demonstrated that
she was not a reliable or trustworthy witness, was therefore not credible, and
that her word cannot be trusted, as she had admitted to knowingly lying to
Canadian officials.
[14]
The RPD also found that Ms. Sabiiti had not
provided a reasonable explanation for stating she was single in her 2014 TRV
application. It noted that, in an earlier TRV application Ms. Sabiiti submitted
in March 2013, she stated that she was married and was never asked to submit a
letter from her husband. The RPD also observed that there was no evidence to
show that married TRV applicants are required to submit letters from their
spouses. However, the transcript of the hearing demonstrates that Ms. Sabiiti
provided the RPD with a more extensive explanation than is reflected in the
decision. She testified that, when she submitted the first Canadian TRV application,
stating that she was married, her application was refused. Based on
conversations with other visa applicants, she thought her visa may have been
denied because she indicated she was married and did not submit a supporting
letter from her spouse. She also explained that, between the two Canadian TRV
applications, she submitted an application for a United States visa, indicating
that she was single, and that this visa was granted. Therefore, when she
submitted her second Canadian TRV application, she also indicated that she was
single.
[15]
Ms. Sabiiti relies on jurisprudence establishing
that refugees are often forced to flee their countries of origin using false
documentation, and lie to officials upon arrival, and that caution should be
exercised in drawing negative credibility inferences from such circumstances
(see, e.g. Koffi v. Canada (Minister of Citizenship and Immigration),
2016 FC 4, at paras 41-44). This authority is not perfectly on point, as Ms.
Sabiiti was not travelling on false documentation. However, I consider the
reasoning underlying this jurisprudence to be applicable, and that a refugee’s
overall trustworthiness should not necessarily be judged too harshly for making
false statements in order to escape persecution. It was of course available to
the RPD to disbelieve Ms. Sabiiti’s explanation for providing false information
to Canadian Embassy officials on her marital status. However, taking into
account the necessity to exercise caution in drawing negative credibility
inferences in such circumstances, it was certainly incumbent upon the RPD to
consider Ms. Sabiiti’s full explanation for her actions. As the decision does
not demonstrate such consideration, I find the adverse credibility conclusions
derived from the provision of false information to Canadian officials to be
unreasonable.
[16]
As noted above, the decision demonstrates that
the RPD’s negative findings on Ms. Sabiiti’s credibility influenced its
consideration of other evidence she submitted. As I have found those
credibility findings to be unreasonable, the decision will be set aside and Ms.
Sabiiti’s claim returned to the RPD for consideration by another member.
[17]
Neither party proposed any question for
certification for appeal, and none is stated.
Email this Content