Date: 20021011
Docket: IMM-2990-01
Neutral citation: 2002 FCT 1063
Ottawa, Ontario, this 11th day of October, 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LIVINGSTONE KANAKULYA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, ("CRDD"), dated May 31, 2001, wherein the applicant was found not to be a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the CRDD and remitting the matter to the Board for reconsideration by a differently constituted panel.
FACTUAL BACKGROUND
[3] The applicant, a 32 year old male citizen of Uganda, alleges a well founded fear of persecution based on the Convention grounds of political opinion and membership in a particular social group, namely the Uganda Young Democrats (U.Y.D.)
[4] Because of his active involvement in the U.Y.D., the applicant alleges that he was targeted by the military as follows:
1. on June 20, 1999, the applicant's house was searched by the military and he and his wife were mistreated, threatened and ordered to stop his political activities. He went to the police after the incident but no follow-up was done.
2. on October 30th, 1999, after a youth meeting of the U.Y.D., the applicant was attacked by the military and again warned to stop his political activities.
3. on January 17, 2000, the applicant was arrested by the military, taken to a safe house for a period of 3 days (without food for 2 days), where he was beaten and tortured. Again he was told to stop his involvement in political activities.
4. on June 4th, 2000, while visiting his friend, Mr. Mukuye Moses, the applicant and his friend were arrested, brought to a safe house for 7 days and tortured. Mr. Moses, died as a result of the torture.
[5] Without his wife and daughter, the applicant left Uganda on July 7, 2000, because of fear for his life. He considers that if he returns to Uganda he will be killed.
[6] His wife has written two letters advising that the military are still looking for him.
THE CRDD DECISION
[7] The CRDD made the following findings in its decision:
1. the claimant is not credible with respect to the following aspects of his evidence:
(a) that he was arrested by the military on January 17 and June 4, 2000, brought to a safe house and tortured because as it is showed in the documentation "Safe house did not exist in the year 2000"[1] and that there were no documentary reports of torture of political opponents while in detention by the government or the military and no deaths were attributed to torture in the year 2000.
(b) Furthermore, the CRDD considered that the alleged arrest and mistreatment of the applicant and his friend, Mr. Mukuye Moses, and the latter's death "probably did not occur" because of torture by the military while kept in the safe house. The death certificate of Mr. Moses, filed by the applicant, shows that the cause of death was explained as an "assaulted case".
(c) Also, the CRDD "was not persuaded" and found: "no conclusive evidence" that the mistreatment of the applicant and his wife on June 21, 1999 and of the applicant on and after June 4th, 2000, were caused by the military. In support of that conclusion, the CRDD noted that the two hospital reports dated June 21, 1999 and June 11, 2000, stated that the applicant was: "assaulted by thugs" and: "beaten by unknown people on the way home". The CRDD also took note of the fact that there were numerous reports of vigilante attacks in the documentation.
(d) In addition, the CRDD was: "not persuaded" and found: "no conclusive evidence" that the military was looking for the applicant in his absence. The CRDD was: "not persuaded" that the men, who went to his home on two occasions, as mentioned by his wife in the two letters, were really from the military.
(e) The applicant alleged that he was detained in a safe house from June 4 to 11, 2000, but he also filed vaccination certificates against cholera and yellow fever dated June 8, 2000. At the hearing, the applicant gave unsatisfactory explanations as to how he was able to get his vaccination on June 8, 2000 and at the same time, be in a safe house and tortured by the military. The CRDD concluded that the applicant could not be believed.
(f) The CRDD indicated that it preferred the documentary evidence over the applicant's evidence because it considered it more reliable and it came from independent sources which had no interest in the application.
(g) Finally, the CRDD considered that except for the acceptance that the applicant was a member and officer of the U.Y.D., it concluded that there was a lack of credibility and that the claim was defeated on that basis. Therefore, it decided that the applicant was not to be a Convention Refugee.
THE ISSUES
[8] This judicial review raises the following issues:
a) Did the CRDD apply a too high a burden of proof with respect to the assessment of the evidence?
b) Were the following findings of fact made in a perverse or capricious manner, or without regard to the material before it?
i) the CRDD referred to a letter from the vice chairman of the U.Y.D. to conclude on a balance of probabilities that the applicant was a member of the U.Y.D. and chairman of its youth council, but did not give any weight to the part of the letter wherein it states that the applicant left Uganda: "for his safety and life" because of: "problems in the hands of hostile army ".
ii) the CRDD concluded that safe houses did not exist in the year 2000, justifying this conclusion by referring to an army spokesman's statement and other documents.
iii) the CRDD concluded that the death of the applicant's friend, Mr. Mukuye Moses, was not caused by torture or mistreatment from the military. The CRDD referred to the death certificate that indicated that the cause of death was: "assaulted case." and furthermore that there was no documented evidence of politically motivated killing by government forces for the year 2000.
iv) the CRDD concluded that there was no evidence to indicate that the military was looking for him since he left Uganda. The CRDD did not read into the letters from the applicant's wife that the military was looking for him.
c) Lastly did the CRDD err in not giving the applicant the opportunity to respond to the finding that safe houses did not exist in the year 2000?
THE BURDEN OF PROOF THAT MUST BE EXERCISED BY THE CRDD
[9] The burden of proof in assessing credibility of witnesses is the probability of the existence of the evidence and not the possibility of it. (Orelien v. Canada [1992] 1 F.C. 592 (C.A.) at page 605).
[10] A finding on adverse credibility must be based on the evidence and be explained with proper references by the Board. (Owusu-Ansah v. Canada [1989], 8 Imm L.R. (2nd) 106 (F.C.A.)
STANDARD OF REVIEW ON FINDINGS OF CREDIBILITY AND OF FACTS
[11] It will take a major error on the part of a Board for the Court to intervene on a negative assessment of credibility. Such error could be made when the Board, in making such a finding, does it without having the proper factual foundation for it.
[12] The Court must show more deference in its review of the decision because of the ideal situation in which the Board is when listening to a witness, looking at the way of answering or not the questions, assessing the openness or lack of it, and evaluating the consistency of the oral testimony. A review Court is not in such a situation and therefore it must be very careful in assessing such finding or credibility (Sommariva v. Canada [1996], 33 Imm. L.R. (2d) 25, paragraph 6 (F.C.T.D.).
[13] A Court can intervene if the Board has made a finding of fact without regard to the documentary or oral evidence on an issue of importance. (Cepeda-Gatierrez v. Canada [1998] F.C.J. no. 1425, paragraphs 14 to 17).
ANALYSIS AND CONCLUSION
THE BURDEN OF PROOF USED BY CRDD
[14] On the first question of whether the CRDD applied a higher test than that normally required in such cases, I comment as follows:
[15] It is noted that the C.R.D.D. used a vocabulary when assessing the evidence that could create a confusion as to the test that was applied (see the wording in italics at paragraph 7, supra).
[16] The use of the words and expressions "probably did not occur", "convinced", "not persuaded" and "no conclusive evidence" should not be interpreted automatically as being the application of a higher test than on a balance of probabilities and more so when the main concern is the credibility of the applicant [Hidri v. Canada, 2001 F.C.T. 949, para. 26 to 29].
[17] In order to identify the test applied by the CRDD, a decision has to be read as a whole and not viewed in selective parts. A careful examination of the contextual basis of the decision has to be done. (Attakora v. Canada (M.E.I.) (1989), 99 N.R. 168 (F.C.A.).
[18] My reading of the decision permits me to say that the CRDD made a general finding of non credibility and it came to such finding by analysing all of the oral and documentary evidence.
[19] The conclusion of the CRDD is indicative of the concern it had in assessing the application. From the beginning to the end, the credibility of the applicant was the only issue of concern. The panel did not believe all aspects of his story except for his membership with the U.Y.D.
[20] The assessment of the applicant's credibility (which includes his testimony) was done without the use of vocabulary such as "convince"and " not persuaded" but rather by the clear finding that there is a lack of credibility. The applicant was simply not believed.
[21] A reading of the transcript of the hearing can only be indicative of what the CRDD saw from the testimony of the applicant. It is easy to conclude that he was not frank, open nor consistent in his testimony.
[22] His testimony with regard to his arrest and detention in a safe house on June 4 to June 11, 2000, is contradicted by his vaccination certificates, and the applicant was unable to offer a reasonable and satisfactory explanation for this contradiction.
[23] Therefore, after a close reading of the CRDD's decision and having studied the documentary evidence before it, I am satisfied that the test normally required, namely "the balance of probabilities" was used when assessing the applicant's credibility and that the applicant could not meet it. The Board did not feel the applicant provided a believable story. Thus, the CRDD was unable to find the story probable in light of the evidence presented.
THE CRDD's FINDINGS OF FACT
[24] I will deal with the applicant's argument that the assessment on certain findings of fact was done in a perverse or capricious manner or without regard to the material before it.
[25] It is argued that the finding of fact that safe houses did not exist in the year 2000 is wrong, having been made by relying on a statement of a military person who is not credible because of his obvious position. It is true that the CRDD referred to the military spokesperson to reach this finding, but in doing so it also referred to documentary evidence which corroborated the statement (see Tribunal Record (T.R) U.S. Report, Uganda Country Reports on Human Right Practices 2000, released in February 2001).
[26] The Board, in concluding in such a way, referred to proper factual documentary evidence.
[27] Also, the applicant submitted that the finding of fact that the applicant's friend's death, Mr. Mukuye Moses, was not caused by torture or mistreatment from the military was wrong. To arrive at this conclusion, the CRDD referred to the death certificate, which did not indicate that the torture from the military was the cause of death. In addition, the CRDD found that the documentary evidence did not indicate that politically motivated killing by Government Forces or the military existed in the year 2000.
[28] Again, the CRDD based its conclusion on documentary evidence. The CRDD is entitled to weigh the supporting information, it is not the role of this Court to substitute a different opinion when the Board has made a finding with a proper foundation of facts.
[29] Furthermore, the CRDD did not err in concluding that the military has not been looking for the applicant since his departure from Uganda. The applicant referred the CRDD to two letters written by his wife to justify his position. The CRDD commented on the content of the two letters and felt that the statements that the military was looking for him was speculation on her part. The evidence's assessment was done by analysing the content of the letters and it is the CRDD's opinion that the references to military people was speculation.
[30] During the hearing, the applicant added to his written arguments by indicating that it was wrong for the CRDD to use a letter in part to justify a finding and not to use the remaining information which was in favour of the applicant.
[31] The finding was that the applicant was a member and officer of the U.Y.D. The CRDD believed the applicant on that point and referred, for corroboration purposes, to a letter from the vice chairman of U.Y.D., a U.Y.D. membership card and international certificates of vaccination. Since the letter was used for corroboration purposes on a very specific point, there was no obligation on the part of the CRDD to be bound by the remaining information in the letter.
PROCEDURAL FAIRNESS - OPPORTUNITY TO RESPOND
[32] With respect to the third argument that the CRDD erred in concluding that safe houses did not exist in the year 2000 without giving the applicant the opportunity to refute or express his point of view on this matter, I am of the opinion that the Board was not under such obligation for the following reasons.
[33] The evidence presented by the applicant indicates that he was of the opinion that safe houses existed in the year 2000. The applicant testified that he was held on two occasions by the military in a safe house in the year 2000. His opinion on the matter was well known and had he been given the opportunity to raise it again, it would not have added anything significant to the Board's decision.
CONCLUSION
[34] Based on the foregoing analysis and the evidence filed with the CRDD, I find it reasonable that the Board concluded that the applicant does not qualify as a "Convention Refugee" on a balance of probabilities. The applicant has failed to satisfy the Court that he was denied procedural fairness, that some findings of fact were made in a perverse or capricious manner or without regard to the material before it, or that he was subjected to a more stringent burden of proof than required.
[35] Having been invited to do so, counsel did not recommend any certified question, therefore I see no reason why I should certify a question.
[36] In view of the foregoing, this application for judicial review is denied.
"Simon Noël"
Judge
OTTAWA, ONTARIO
October 11th, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:IMM-2990-01
STYLE OF CAUSE :LIVINGSTONE KANAKULYA and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING :Toronto, Ontario
DATE OF HEARING :September 17, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
DATED :October 11, 2002
APPEARANCES :
Geraldine MacDonaldFOR THE APPLICANT
David TyndaleFOR THE RESPONDENT
SOLICITORS OF RECORD :
Gertler & AssociatesFOR THE APPLICANT
Toronto, Ontario
Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
[1] A military spokesperson said: "...safe house are things of the past ..." exhibit R-2, Tribunal Record (T.R.) p. 173
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