Date:
20110112
Docket:
IMM-2177-10
Citation:
2011 FC 28
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, January 12, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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NADINE KAMDEM LIPDJIO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (the
panel) dated March 30, 2010, that the applicant is not a Convention
refugee or a person in need of protection under the Act.
Facts
[2]
The
applicant is a citizen of Cameroon who claims to have a
well-founded fear in her country by reason of her sexual orientation.
[3]
At the age
of 17, she gave birth to her son after she had been raped. She allegedly became
a lesbian following this trauma.
[4]
Her
problems result from events that occurred in the night of August 3 to 4, 2008. She
allegedly went to a lesbian club with her spouse, Ghislaine Péhou. During the
evening, she found her spouse kissing a person named Sandrine. A fight
followed, which caused physical damage to the night club. The applicant
allegedly managed to flee with the help of a security guard before the police
could intervene.
[5]
She then
went to her apartment, took clothing and money and hid in an inn. She then took
steps to find a safe haven, after a friend informed her that her spouse had
been arrested without a warrant.
[6]
She left Cameroon on August 7, 2008, with
the help of a smuggler and arrived in Canada on August 8, via Paris, using false identity documents, which
the smuggler took back. She filed her claim for refugee status on August 22,
2008, because she was waiting for her own identity documents before doing so.
Impugned decision
[7]
The panel
found that the applicant was not credible and that her story was a complete
fabrication for the sole purpose of obtaining refugee status.
Issues
[8]
This
application for judicial review raises the following issues:
1. Did the
panel err in arguing that it had a specialized knowledge of homosexuality?
2. Did the
panel err in finding that the applicant was not credible?
Analysis
A. Standard of review
[9]
Questions
of fact and questions of mixed fact and law are reviewable according to the
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
Where the issue is credibility and assessment of the evidence, it is well
established that the Court will intervene only if the decision is based on an
erroneous finding of fact made in a perverse or capricious manner or without
regard for the evidence (Aguebor v Canada (Minister of Employment and
Immigration), (1993), 160 NR 315, [1993] FCJ No 732 (QL), at para 4 (FCA)).
Questions of procedural fairness are reviewed on a standard of correctness (Ha
v Canada (Minister of Citizenship and
Immigration), 2004 FCA 49, 3 FCR 195).
B. The panel’s specialized knowledge of
homosexuality
[10]
In his
memorandum, counsel for the applicant pointed out the panel’s failure to comply
with section 18 of the Refugee Protection Division Rules, which provides
that the panel is obliged to give the applicant advance notice of its intention
to use information or an opinion that is within its specialized knowledge. It
reads:
Before using any information or opinion
that is within its specialized knowledge, the Division must notify the claimant
or protected person, and the Minister if the Minister is present at the
hearing, and give them a chance to
(a) make representations on the
reliability and use of the information or opinion; and
(b) give evidence in support of
their representations.
[11]
As stated
by Justice Campbell in Isakova v Canada (Minister of Citizenship and
Immigration), 2008 FC 149, [2008] FCJ No 188 (QL), at paragraph 16:
The purpose of Rule 18 is to enable a
claimant to have notice of the specialized knowledge and to give him or her the
opportunity to challenge its content and use in reaching a decision. Therefore,
in order for Rule 18 to be effective, the RPD member who declares specialized
knowledge must place on the record sufficient detail of the knowledge so as to
allow it to be tested. That is, the knowledge must be quantifiable and
verifiable.
[12]
Justice
Teitelbaum in Mama v Canada (Minister of Employment
and Immigration) (1994), 51 ACWS (3d) 128, 1994 FCJ No 1515 (QL), stated at
paragraph 21 that unverifiable personal knowledge does not qualify as
specialized knowledge:
The applicant submits (and I agree), that
the personal and professional experiences of the Board members, the full extent
of which was unclear, hardly justified their claim to “specialized knowledge.” The
Board did not purport to take judicial notice of any facts with respect to
European border controls and there was no evidence whatsoever before it as to
the efficacy of these.
[13]
Counsel
for the applicant alleges that the panel’s error is a breach of the rules of
natural justice and provides a basis for his application for review given that,
first, the procedure provided under section 18 of the Refugee Protection
Division Rules was not followed and, second, that the panel erred by relying
on its non-existent specialized knowledge.
[14]
At the beginning
of the hearing, counsel for the respondent admitted the panel’s error concerning
its specialized knowledge. However, she argued that such an error is not always
fatal and that the applicant’s credibility remained tainted by the numerous contradictions
found in her testimony.
[15]
Counsel
for the respondent relied principally upon N’Sungani v Canada (Minister
of Citizenship and Immigration), 2004 FC 1759, 22 Admin LR (4th) 225, at
paragraphs 25, 26, 32 and 33 and on Jarada v Canada (Minister of
Citizenship and Immigration), 2005 FC 409, [2005] FCJ No 506 (QL), at
paragraph 22.
[16]
It is true
that in the cited decisions, the error with respect to specialized knowledge
did not lead to setting aside the panel’s decision. However, Justice
Tremblay-Lamer noted at paragraph 32 of N’Sungani, cited by the respondent,
that:
In my view, the principal established in Yassine,
supra, stands with a caveat taken from Hu, supra: provided
credibility determinations were properly arrived at, and wholly determinative
of the application, then the Mobil Oil, supra, exception can be invoked
to deny a new hearing, assuming there is no reason to suspect that the
specialized knowledge in dispute in any way shaped the Board’s credibility
findings. [The decisions cited in this excerpt are the following: Yassine v
Canada (Minister of Citizenship and Immigration) (1994), 172 NR 308,
27 Imm LR (2d) 135; Hu v Canada (Minister of Citizenship and
Immigration), 2003 FCT 603, 4 Admin LR (4th) 296; Mobil Oil Canada Ltd.
v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.]
In the case before us, it is apparent from reading the
decision that the panel’s error with respect to its specialized knowledge did
indeed lead it to make the finding it did. In fact, at the outset the panel
refused to believe that the applicant was a lesbian because she discovered her
sexual orientation following a rape, rather than admitting that it was innate.
[17]
This Court
is not able to agree with the respondent’s position. Here it is interesting to
recall what Justice Teitelbaum wrote in Cortes v Canada (Minister of
Citizenship and Immigration), 2009 FC 583, [2009] FCJ No 734 (QL), at
paragraph 36:
In my opinion, the “specialized knowledge”
relied on in this case was mischaracterized. Here, the decision maker drew on
the specialized and general knowledge it had acquired over the years to point
out to the applicant that this was the first time it had heard such an argument
and that its professional knowledge and experience in cases from Mexico
demonstrated the contrary. The “knowledge” relied on in this case was neither
quantifiable nor verifiable.
[18]
This Court
shares that opinion in this case, since the opinion expressed by homosexuals
who have testified before the Commissioner that their “homosexuality is innate”
is neither verifiable nor quantifiable. Therefore, the panel erred by relying
on an alleged specialized knowledge.
C. Applicant’s credibility
[19]
The respondent
noted in his memorandum that the panel’s statement as to its specialized
knowledge was not determinative of or central to the decision, but that the
decision relied more on the applicant’s lack of credibility.
[20]
A reading of
the decision and the hearing transcript shows that the panel first confronted
the applicant with its “specialized knowledge” without giving her prior notice
or informing her that it would take this knowledge into consideration. It
immediately called into question the very basis of the claim, i.e. the
applicant’s homosexuality.
[21]
This error
goes to the heart of the issue and this Court cannot agree with the respondent’s
position that this statement was neither determinative of nor central to the
decision.
[22]
In its
decision, the panel then focused on what it considered to be significant
contradictions in finding that the applicant was not credible. It relied on
separate contradictions related to inconsistencies in specific dates.
[23]
At the
hearing, counsel for the respondent pointed out six contradictions that would
affect the applicant’s credibility. She primarily relied on the applicant’s
testimony with respect to the exact moment when she allegedly began having
relations with her spouse, then on the inconsistencies with respect to the date
of her mother’s death and the precise date when she began working for her girlfriend
Ghislaine and finally on the lack of effort to maintain contact with her since
she arrived in Canada. Upon reading the transcript, it is clear that there are
no inconsistencies in the applicant’s testimony with respect to when she began
having sexual relations with her spouse. However, the error in the exact year
of her mother’s death and the exact date that she began working for her spouse
must be recognized. In our opinion, the panel’s position on the innate nature
of homosexuality directly affected the entire assessment of the applicant’s
credibility.
[24]
In her
affidavit, the applicant submits that she was very upset after having been
confronted by the panel with respect to the innate nature of homosexuality. This
confrontation allegedly reduced her ability to concentrate.
[25]
Therefore,
this Court finds that the application for judicial review must be allowed because
the panel’s error with respect to its specialized knowledge goes to the heart of
the issue and because its finding on the applicant’s credibility, in its entirety,
is a direct result of it, thus rendering this decision patently unreasonable. Neither
party proposed a question for certification and I see none.
[26]
For all
these reasons, this application for judicial review is allowed, and the matter
is referred back to a differently constituted panel for reconsideration and redetermination.
No question is certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that
1. The application for judicial review is allowed;
2. The
case is referred back to a differently constituted panel for redetermination;
and
3. No
question is certified.
“André
F.J. Scott”
Certified true
translation
Catherine Jones,
Translator
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