Eimani v. Canada (Minister of Citizenship and Immigration), 2005 FC 42

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2005 FC 42

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Date: 20050117

Docket: IMM-1609-04

Citation: 2005 FC 42

OTTAWA, Ontario, January 17^th, 2005

Present: THE HONOURABLE MR. JUSTICE KELEN

BETWEEN:

PETRONELLA EIMANI

Applicant

and

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated February 3, 2004 in which the applicant was found not to be a Convention refugee or person in need of protection.

FACTS

[2] The applicant (born January 1, 1978) is a 27 year-old Ugandan national who alleges a well-founded fear of persecution on the basis that she will be forced into marriage if returned to Uganda. The applicant claims that she and her family moved to the capital city of Kampala to live with her uncle at some point following her father's death in 1986. At the age of 22, the applicant's uncle took her to meet Mr. Akuti, a rich and influential friend, whom he said she would have to marry. She alleges that during a two-week stay with this man, she was forced to cook and clean for his family and was sexually abused by him.

[3] During this time, the applicant was also pursuing studies in journalism. She claims that she was able to convince Mr. Akuti that, in view of his political aspirations, it would be to his advantage to have a wife who was a journalist. Accordingly, he agreed that she could continue living with her uncle and that the wedding would not take place until her studies were complete. The applicant received her journalism diploma in August 2001 and began an internship shortly thereafter. In February 2002, she made a successful application to participate in the World Youth Day celebrations being held in Toronto that summer. The applicant arrived in Canada on July 16, 2002 and claimed refugee status three weeks later.

[4] In her personal information form, the applicant states that she fears returning to Uganda because her future husband will discipline her for having fled the country. She is also afraid that the Ugandan authorities may arrest and torture her, in light of a government official's statement that the Ugandan World Youth Day refugee claimants should be arrested under Operation Wembley, a violent crackdown program against Ugandan criminals.

THE DECISION

[5] The Board rejected the applicant's claim primarily on the basis that she was not credible. It based this conclusion on the following findings:

(i) the applicant resided with her uncle from sometime in 2000 until July 2002 without being forced to marry Mr. Akuti, despite their betrothal. The Board found it implausible that the applicant would have been able to hold off the wedding by convincing both men that her journalism diploma would be a useful asset to Mr. Akuti;

(ii) it was implausible that the applicant's uncle and Mr. Akuti would not have forced her to marry immediately after she received her journalism diploma in August 2001. The internship was not a professional requirement to become a journalist and the Board did not believe that the applicant's uncle or Mr. Akuti would allow her to delay the wedding that long;

(iii) the applicant's statement that she expected to work as a journalist after her marriage was inconsistent with her alleged treatment during her two-week stay with Mr. Akuti, where she was treated like a "slave";

(iv) The applicant's nearly two-year delay in leaving the country after she learned of the arranged marriage was inconsistent with subjective fear. The applicant's explanation that she had no opportunity to leave was not persuasive as she had travelled to Kenya in May 2000 and to Tanzania in December 2000.

[6] The Board also concluded that the applicant did not fit the profile of the typical victim of forced marriage. It found that the applicant was not from the areas of Uganda where the documentary evidence indicated forced marriages are more common. Moreover, the fact that the applicant was well-educated and travelled freely suggested that she was not controlled or dominated in her life, as she alleged.

ISSUES

[7] The following issues are raised:

1. Did the Board err in its credibility assessment of the applicant?

2. Did the Board err in concluding that the applicant was not from a region in Uganda where forced marriage is more common, and that Operation Wembley is not likely to be invoked in this case?

ANALYSIS

[8] The Board's opinion is well-explained and its conclusions on the subject of the applicant's credibility appear reasonable, considering the extensive inconsistencies in her testimony. In particular, the contrast between the applicant's ongoing existence as a travelled professional-in-training and her allegations of a longstanding fiancé who allegedly wished to control and dominate her is striking.

[9] However, there are two errors in the reasons of the Board. First, the Board lists the areas of Uganda where forced marriage is common, including northern Uganda, then states: "The claimant is from none of those areas, but the urban capital of Kampala." This is not true. The applicant was living in Kampala as an adult, but states clearly in her PIF that her family is from northern Uganda and that she lived there again as a child after her father's death until it became so difficult that her family moved in with the uncle. The applicant also states in her testimony before the Board that she is a member of the Madi tribe, which has arranged marriages as a custom. Moreover, Mr. Akuti lives in northern Uganda.

[10] The Board does not state anywhere that it does not believe the applicant's assertion that she is not a Madi from northern Uganda. Instead, it states flatly that she is not from northern Uganda, as if she had never mentioned it, and uses her origin not only to question her objective fear but also as one of the bases for doubting her credibility.

[11] Since the applicant's credibility was explicitly challenged on the assumption of her not being from northern Uganda, when she in fact stated she was, and such a conclusion is not logical or explicable to the reasonable observer, I conclude that the Board's decision contains a patently unreasonable finding of fact and must be sent back for re-determination.

[12] Second, the Board's finding that Operation Wimbley will not be invoked is contrary to the clear statement from a Minister of the Ugandan Government that it will be applied to certain Ugandan youths who came to Canada for World Youth Day, and then claimed refugee status in Canada. Accordingly this finding is also patently unreasonable.

[13] Neither counsel recommended certification of a question. No question will be certified

ORDER

THIS COURT ORDERS THAT:

This application for judicial review is allowed, the decision of the Board dated February 3, 2004 is set aside and the matter is remitted to a different panel of the Board for redetermination.

"Michael A. Kelen" _______________________________

JUDGE

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-1609-04

STYLE OF CAUSE: PETRONELLA EIMANI

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: THURSDAY, JANUARY 13, 2005

REASONS FOR ORDER

AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN

DATED: MONDAY, JANUARY 17, 2005

APPEARANCES:

Mr. Chris Opoka-Okuma

FOR APPLICANT

Ms. Marian Stefanovic

FOR RESPONDENT

SOLICITORS OF RECORD:

Chris Opoka-Okuma

Barrister and Solicitor

Toronto, Ontario FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada