Date: 20090319
Docket: IMM-3614-08
Citation: 2009 FC 291
Ottawa, Ontario, March 19,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TERESIA
NJERI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Refugee Protection Division (RPD) rejected the Applicant’s refugee claim on the
grounds of credibility. This is the judicial review of that decision and an
instance where the Court finds, having regard to the deference owed, that the
decision is not within a range of acceptable outcomes and must be quashed.
II. BACKGROUND
[2]
The
Applicant, a citizen of Kenya, is a widow with two children. Her
deceased husband’s brother (Kirimi) joined the Mungiki group in 2004, a
religious group that advocates a return to traditional religious and cultural
practices.
[3]
Presumably,
in keeping with those traditions, Kirimi, the brother-in-law, insisted that the
Applicant become his wife and that her sons were to join Mungiki. She refused.
[4]
Kirimi
is then alleged to have returned to the Applicant’s home in Nairobi to threaten,
rape, and beat her. The incidents were reported to medical professions and to
the local Chief of the village where the Applicant had lived with her husband
and where Kirimi resided. The Chief reprimanded Kirimi.
[5]
In
February 2005, the Applicant’s younger son was attacked at a bus stop and lost
an eye. The Applicant believes that the attack was made by the Mungiki as punishment
for her refusal. The son stated that he heard a voice like Kirimi’s during the
attack.
[6]
The
Applicant then moved twice within Nairobi but Kirimi found her
each time. In May 2006, Kirimi and three other men accosted her and threatened
to blind her if she did not accede to his demands.
[7]
Shortly
thereafter, the Applicant came to Canada for a conference. Seven
days later, she claimed refugee status.
[8]
The
RPD, while acknowledging the Gender Guidelines, did not follow them. The RPD
identified credibility as the determinative factor, namely that the Applicant
had not established her husband’s death or the assaults on her or her son. It
then went on to cite the following errors and/or discrepancies which led to the
negative credibility finding:
a.
the
PIF said her husband died in the village, whereas the Certificate of Death said
Nairobi and lacked a
space after a comma;
b.
the
inconsistencies between the dates she was assaulted by Kirimi and the date of
and reasons for her moves, and the failure to provide medical evidence of those
assaults;
c.
the
presence of a “Sister Ann” on documentary evidence sent from Kenya, one via
Dubai and one from Kenya direct. The Board noted that the Applicant
could not explain the FedEx routing via Dubai nor had she
listed a sister on her PIF;
d.
the
medical report of her son’s beating contained a spelling mistake (“lose of the
vision” vs. “loss of the vision”);
e.
the
son’s report of Kirimi’s presence at the beating came up in oral testimony but
was not disclosed in the PIF;
f.
the
village Chief’s letter regarding the reprimand to Kirimi contained a spelling
mistake (“out lowed” vs. “outlawed”) and that the letter and another from a
priest came via Dubai;
g.
two
letters from Canadian social workers regarding counselling were discounted
because the RPD concluded that the Applicant had not been abused.
[9]
Finally,
the RPD found that a one-week delay in seeking refugee status signified an
absence of subjective fear.
III. ANALYSIS
[10]
While
neither party addressed the standard of review, the Court will. Although the
Applicant has raised the issue of failure to consider evidence, which is a
legal error (see Uluk v. Canada (Minister of
Citizenship and Immigration), 2009 FC 122), the crux of this case is
credibility.
[11]
On
credibility findings, I have noted the reluctance that this Court has, and
should have, to overturn such findings except in the clearest case of error (Revolorio
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1404). The deference owed
acknowledges both the contextual circumstances and legislative intent, as well
as the unique position that a trier of fact has to assess testimonial evidence.
That deference is influenced by the basis upon which credibility is found. The
standard is reasonableness subject to a significant measure of deference to the
Immigration and Refugee Board.
[12]
However,
deference is not a blank cheque. There must be reasoned reasons leading to a
justifiable finding. With considerable reluctance, I have concluded that this
decision does not meet this standard of review.
[13]
Courts
have been warned about microscopic review; boards have been warned about
microscopic examination of an applicant’s story. In this case, the RPD engaged
in that type of microscopic review without setting matters in context.
[14]
In
its conclusions based on spelling errors, it is not unreasonable to find that
such errors give rise to concerns. Often false documents are shown to be false
because of such errors. However, in this case, the errors are so small, do not
recast the story, and occur in circumstances where spelling errors are a likely
occurrence. No regard was had to these factors which could explain the errors.
[15]
The
errors concerning the place of death are pause for consideration. However, the
explanation of bureaucratic incompetence in Kenya was never
addressed. There was no other evidence to suggest that the story of the death
of the Applicant’s husband was untrue.
[16]
The
inconsistencies of dates and the Applicant’s general inability to recall small
details are addressed in the Gender Guidelines. The Guidelines were, at best,
given lip service. The proceeding was not conducted in accordance with the
Guidelines nor was there any evidence that the RPD conducted itself as being aware
of the principles and cautions in dealing with evidence of sexual assault.
[17]
The
RPD ignored evidence that the son heard Kirimi’s voice during this beating. The
RPD did not address the Applicant’s explanation of her reason for not including
that part of the story in her PIF.
[18]
The
RPD rejected the documents which came from Dubai without
addressing counsel’s explanation that Dubai is a trans-shipment
point for African traffic moving over FedEx. It found the Applicant’s inability
to explain the reasons for packages from Dubai as
negatively affecting credibility, yet did not address the explanation advanced.
[19]
One
of the reasons for rejecting this evidence is that it came from Sister Ann.
Since the Applicant had not listed a female sibling in her PIF, the RPD
concluded that there was some untruthfulness present. The RPD ignored the
Applicant’s explanation that “Sister Ann” referred to a nun, not a sibling.
[20]
The
RPD also found that there was no medical evidence confirming the Applicant’s
injuries from an assault. The record included a letter from a Canadian doctor
confirming injuries to her mouth and legs consistent with the events the
Applicant described. The Respondent asks the Court to read in that there was no
medical evidence “from Kenya”. Given the context of the RPD’s comment
and against a background of multiple errors, it is not for the Court to rescue
the RPD from its errors.
[21]
Lastly,
the RPD found the one-week delay in claiming refugee status indicative of a
lack of subjective fear. The RPD did not address the explanation that the
Applicant was in a shelter and that the social worker who was to accompany her
to make the claim was unavailable for a week.
[22]
There
are other aspects of the decision which also raise concern but the above is
more than sufficient to compel this Court to intervene and set aside the
decision.
IV. CONCLUSION
[23]
This
judicial review will be granted, the RPD’s decision quashed, and the matter
remitted to a differently constituted panel for a new determination.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the Refugee Protection Division’s
decision is quashed, and the matter is to be remitted to a differently
constituted panel for a new determination.
“Michael
L. Phelan”
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