Date: 19980818
Docket: IMM-5055-97
BETWEEN:
IDAH KAARI NEBEA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Monday, August 17, 1998)
STRAYER, J.:
[1] I have come to the conclusion that the decision of the Immigration and Refugee Board (Refugee Division) (hereafter "Board") of November 4, 1997, should be set aside and the matter remitted to a different panel of the Board for redetermination.
[2] There was, in my view, a breach of natural justice committed by the Board. After hearing the evidence, but at the beginning of submissions by counsel for the applicant on the subject of the applicant's identity and nationality, the Board advised counsel that it accepted the applicant's identification and that she was a national of Kenya1. As a result, the counsel made no more oral submission on these issues and in subsequent written submissions confined herself to the arguments made before the Board prior to being advised that the Board was already satisfied on these points. Yet, in its decision, the Board finds the evidence to be insufficient to prove identity and nationality2. This is clearly a denial of natural justice in misleading counsel that an issue need not be argued and then finding against her client on that issue.
[3] While this would be a sufficient reason to set aside the decision of the Board, I also make one other finding concerning a reviewable error of fact. The Board concluded that the applicant's claim to having been persecuted in 1996 for providing information to newspapers regarding the alleged role of the Government of Kenya in ethnic clashes in the Rift Valley was implausible. It based its conclusion on the documentary evidence, both what it contained and what it did not contain. This finding of fact, based on inferences drawn from documentary evidence also available for reviewing by this Court, is open to scrutiny by the Court which is in as good a position to draw its own inferences. In doing so, I have concluded that the inferences drawn by the Board were illogical. I am satisfied that, simply from the evidence that some Kenyan newspapers at some time in 1996 were allowed to publish some articles critical of the government, it cannot logically be deduced that Kenyan newspapers would probably have published a story on persons, such as the applicant, being persecuted for supplying information to certain newspapers on the Rift Valley situation that year. (The Board found the absence of such reports to be probative of a lack of such incidents.) Thus, the Board made erroneous finding of facts without due regard to the material before it.
[4] I refrain from drawing any conclusions about other alleged errors of the Board, as it is unnecessary to do so. In particular, I refrain from considering further the obligation, if any, of the Board to put apparent contradictions in the evidence to an applicant before making a finding on the evidence.
[5] The decision will therefore be set aside and the matter sent back for redetermination by a differently constituted panel.
"B.L. Strayer"
J.A.
Toronto, Ontario
August 18, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5055-97
| STYLE OF CAUSE: IDAH KAARI NEBEA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, AUGUST 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: STRAYER, J.
DATED: MONDAY, AUGUST 17, 1998
APPEARANCES:
Mr. Michael T. Crane
For the Applicant
Mr. Jeremiah Eastman
For the Respondent
| SOLICITORS OF RECORD: Michael T. Crane |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980817
Docket: IMM-5055-97
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Tribunal Record, p. 270.
2 Ibid, p. 15.
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