Date: 20061213

Docket: IMM-2512-06

Citation: 2006 FC 1488

 Montréal, Quebec, December 13, 2006   

Present: The Honourable Mr. Justice Blais

 

BETWEEN:

JACKSON KAILIKI ERINGO

Applicant

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated April 11, 2006, by the Immigration and Refugee Board (the Board) – Refugee Protection Division (the RPD), rejecting the applicant’s refugee claim.

 

[2]               For the following reasons, I am persuaded that the application for judicial review should be allowed.

 

RELEVANT FACTS

[3]               Mr. Jackson Kailiki Eringo (the applicant) is a citizen of Kenya who arrived in Canada on August 8, 2004, and sought Canada’s protection on November 8, 2004.

 

[4]               The applicant asserts that he is both a Convention refugee and a person in need of protection, on the ground that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment should he return to his country of origin. The events that led to the applicant’s refugee claim essentially involve his sexual orientation; the applicant states that he is a homosexual, and was denounced as such. As a result, his life is in danger, since homosexuality is illegal in Kenya.

 

IMPUGNED DECISION

[5]               In a decision dated April 20, 2006, RPD member Sajjad Randhawa (the panel) determined that the applicant was not credible and therefore not a refugee under sections 96 and 97 of the Act.

 

ISSUE

[6]               Did the panel err in assessing the evidence, which led to the rejection of the claim?

 

STANDARD OF REVIEW

[7]               The case law consistently states that the standard of review applicable to an IRB decision varies according to the type of decision. On a question of law, the standard is correctness; on a question of fact, patent unreasonableness, and on a question of mixed fact and law, reasonableness simpliciter. This approach was affirmed by the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100.

 

[8]               Since the issue here is essentially a question of fact, this Court must defer to the member’s findings, and may only intervene if the decision is patently unreasonable.

 

ANALYSIS

[9]               The applicant submits that the panel erred in finding his story not credible at all, even though there was no serious reason to question his homosexuality. The respondent maintains that the panel is in the best position to assess the applicant’s credibility, its conclusion is not patently unreasonable, and therefore the Court should not intervene.

 

[10]           On the issue of assessing the applicant’s credibility during his testimony before the panel, I agree with the respondent’s position. It is clear from the panel’s decision that it paid great attention to the applicant’s testimony, and that it specifically identified the parts of the testimony that prompted it to doubt the applicant’s credibility.

 

[11]           Nonetheless, it is regrettable that the panel referred to stereotypes several times, such as the fact that the applicant discovered he was homosexual at the age of 23, whereas often homosexuals realize their situation during adolescence, or the fact that he married without being forced to do so.

 

[12]           The applicant’s testimony regarding his situation is entirely consistent with the documentary evidence demonstrating that homosexuals must hide their situation, often by marrying, to avoid persecution in Kenya.

 

[13]           On that issue, the following is stated in the documents submitted as evidence by the Refugee Protection Officer, in the application for information No. KEN31719.E dated April 19,1999, entitled “Kenya: Treatment of homosexuals by the authorities and the society in general (Research Directorate, Immigration and Refugee Board, Ottawa)”:

Generally, homosexuality in Kenya is viewed with hostility and denial and is legally criminalized, although some sections of the society currently acknowledge its existence . . . President Daniel Arap Moi of Kenya reportedly stated that “Kenya has no room or time for homosexuals and lesbians. Homosexuality is against African norms and traditions, and even in religion it is considered a great sin.” . . . An accountant with a Kenya HIV/AIDS organization reportedly stated that “homosexuals are a menace to society, they should not only be jailed, but the key to the lock should be thrown away.”

 

[14]           That being said, the applicant also maintains that the panel erred in disregarding the documentary evidence that he had tendered to support his claim, i.e. the letters from his ex-wife, his friend, the priest Gérard Lecomte and the coordinator of Projet 10.

 

[15]           The respondent contends that the absence of a subjective fear of persecution implies that the RPD does not have to look for the objective basis of the alleged fear in any independent documentary evidence. This was noted by Madam Justice Danièle Tremblay-Lamer in Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695, at paragraph 10:

The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition–subjective and objective–must be met.

 

[16]           Although the respondent is correct on this point, this argument is not relevant to the issue of whether the panel erred in failing to make mention of the documentary evidence filed by the applicant to support his subjective fear of persecution.

 

[17]           On this point, it must be noted at the outset that there is a presumption that the panel considered all the evidence when making its decision (Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102).

 

[18]           The case law of this Court has established that where the documentary evidence was essential to the issue before the decision-maker, the failure to mention it in the reasons for the decision constitutes an error warranting intervention by this Court.

 

[19]           In Khan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 332, Mr. Justice Teitelbaum states:

19      The Applicant also relies on Mahamood Rehman v. Canada (M.C.I.), [1997] F.C.J. No. 763, (F.C.T.D.) (IMM-2175-96, June 4, 1997) for the proposition that evidence must be analyzed in the Board's reasons and not just acknowledge that the evidence exists and, that it is not an answer to an allegation of ignoring evidence that the Board based its finding, in part, on a claimant's demeanour. Justice McGillis states:

 

In its reasons for decision, the Board found that the applicant was not a credible witness for various reasons and made a negative comment concerning his demeanour. However, in conducting its analysis, the Board made no reference to documentary evidence tendered by the applicant in support of his claim, save and except to indicate that he had ". . .  also presented personal documents."

 

…

 

In my opinion, the Board erred in failing to consider in its analysis the independent evidence tendered by the applicant which appears to corroborate his testimony concerning the two significant incidents precipitating his departure from Bangladesh.  [See Khan v. M.E.I. (file no. IMM-415-93, August 23, 1994, F.C.T.D.),  [1994] F.C.J. No. 1226].  I also note that, in making its adverse findings of credibility, the Board made no reference to the two important events which appear to be corroborated by the evidence tendered by the applicant. (Emphasis added.)

 

 

[20]           In Kabita Dhar v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1337, IMM-6226-99, Mr. Justice Denault intervened because the panel had failed to consider documents that corroborated the applicant’s testimony:

 

10     Not only did the Board's members did not examine in their decision the reasons for such omissions, but they also ignored documentary evidence which corroborated parts of the applicant's claim [See Note 6 below].  Ignoring such evidence constitutes a reviewable error, as indicated by Cullen J. in Bains v. Canada (M.E.I.) (1993), 20 Imm.L.R. (2d) 296, at page 300:

The second issue raised by the applicant is that although three pieces of documentary evidence directly specific to the applicant were introduced, namely, a doctor's certificate, a letter from the applicant's wife and a letter from the president of the Punjab Human Rights Organization, the Refugee Division made no mention of these documents in their decision.  Once again, I am concerned that no mention of this documentation is made in the reasons.  I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information, . . . The Refugee Division, in my view, is obligated at the very least, to comment on the information.  If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant's position.  . . . It is my decision that the Refugee Division erred in law when it failed to advise whether it accepted or rejected the three documents specifically applicable to the applicant, and for that matter, failed to mention whether they even considered this evidence.

 

11      For these reasons, this application will be allowed.  This case raises no serious question of general importance.  (Note omitted. Emphasis added.)

 

[21]           In this case, no mention was made of the documentary evidence corroborating the applicant’s homosexuality, an element that was central to the panel’s determination that the applicant was not credible. Although it was open to the panel to find that these documents were insufficient to establish the applicant’s homosexuality, the panel was obligated to consider these documents and to make mention of them in its decision.

 

[22]           For these reasons, the application for judicial review is allowed. The parties have not submitted a question for certification.

 

 

 

JUDGMENT

 

1. The application for judicial review is allowed.
2. The matter is returned to a differently constituted panel of the Refugee Protection Division for redetermination in light of these reasons.

 

 

“Pierre Blais”

                                                                                                                       

 

 

 

 

 

Certified true translation

Mary Jo Egan

 

 

 

APPENDIX

RELEVANT STATUTORY EXCERPTS

Immigration and Refugee Protection Act, S.C. 2001, c. 27

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2512-06

 

STYLE OF CAUSE:                          JACKSON KAILIKI ERINGO v. MCI

 

 

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      December 13, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    The Honourable Mr. Justice Blais

 

DATED:                                             December 13, 2006

 

 

 

APPEARANCES:

 

Éveline Fiset	FOR THE APPLICANT
Diane Lemery	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Éveline Fiset Montréal Québec	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT