Date: 20070125
Docket: IMM-3221-06
Citation: 2007 FC 84
Ottawa, Ontario, January 25,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
AMINA
NAKIBUYE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of credibility findings made in a decision of the
Immigration and Refugee Board denying the Applicant’s claim for refugee status
and for protection.
II. BACKGROUND
[2]
The
Applicant is a citizen of Uganda who left for Italy in 2000
claiming fear of her husband. She claimed that she feared her husband would
force her into sex and would infect her with AIDS. She never divorced her
husband.
[3]
She
joined the Ugandan Association in Italy and claimed that another
member of the Association threatened her because of statements she made which
were critical of the government. She says that she was told that the individual
was a secret government agent.
[4]
In
2003 she returned to Uganda to attend her daughter’s wedding. There
was a significant issue as to whether she stayed with her husband while she was
there.
[5]
The
Board concluded that her fear of her husband was groundless because he had
shown no interest in her even when she stayed with him. The Board was also not
persuaded by her reasons for not seeking a divorce – that her husband was the
father of her children.
[6]
Having
considered the Gender Guidelines, the Board still found her claim to lack
credibility.
[7]
As
to the fear of the secret agent, the Board found that there was no
corroboratory evidence in a letter of recommendation received from the Ugandan Association
of Italy. The Board also found that the alleged secret agent took no steps
against her and that she did not report anything to the police, thus
undermining the rationality of her fear.
[8]
In
general, the Board found that she embellished her claim. The Board specifically
cited as an example the circumstances of her sister telling her that some men
in Uganda were looking
for her at her sister’s house.
III. ANALYSIS
[9]
There
is no issue that the standard of review of credibility findings is patent
unreasonableness. (See Horvath v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 583) The real question here is
whether the Board made any material factual errors, and if so, did those errors
make the credibility conclusion patently unreasonable despite the other
evidence.
[10]
The
Applicant filed an affidavit which went to some length to explain away the
Board’s credibility findings. The Court cannot accept this ex post facto
justification or explanation. The Court must deal with the evidence which was
before the Board.
[11]
The
Court must be very reluctant to overturn credibility findings. The Board is in a
much better position to make the findings than the Court. Having recognized the
limits on the Court’s role, there are two aspects of this case which are
troubling.
[12]
As
a preliminary matter, it was open to the Board to reject the Applicant’s
reasons for not seeking a divorce and concluding that this fact undermined her
claim of fear.
[13]
It
was also open to the Board to conclude that the evidence concerning the
existence of a secret government agent was speculative and at least
questionable. Even though the Board’s conclusion, that the Association’s letter
of reference ought to have contained comment about the Applicant’s problems, is
hard to follow, it is a finding which it could make.
[14]
However,
the Board made a critical finding that the Applicant had stayed with her
husband when she returned to Uganda for a wedding. The Board’s decision on
credibility seems to flow from this conclusion and affects the credibility afforded
other incidents including the overall conclusion that she was embellishing her
story.
[15]
A
review of the transcript shows no basis for reaching this conclusion. There is
no admission that she stayed with her husband. It should be noted that the
transcript is appalling and one can find no comfort that it accurately reflects
what was said by the Applicant. The most common word in the transcript after
the usual “and”, “it”, etc. is “indiscernable”.
[16]
The
Board may have heard more than the transcript reflects but this speculation is
too flimsy a basis upon which to support the Board’s finding; a critical
finding in the context of the overall evidence.
[17]
The
Board also found that the Applicant was embellishing her claim. The example
used, that she claimed men came looking for her, is in fact inaccurate. The
Applicant never made that claim and therefore there is no basis, for concluding
on this incident that she was engaged in a general course of embellishment.
[18]
The
Board recognizes that there are other factual findings which could support the
Board’s overall conclusion but these two incidents are sufficient, in this
case, to find that the overall decision cannot be upheld.
[19]
For
these reasons, this judicial review will be granted, the Board’s decision
quashed and the matter remitted to a different panel of the Board for a new
determination.
[20]
There
is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted, the Board’s decision quashed and
the matter is remitted to a different panel of the Board for a new
determination.
“Michael
L. Phelan”
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