Date: 20080111
Docket: IMM-824-07
Citation: 2008 FC 39
Ottawa, Ontario,
January 11, 2008
PRESENT: The Honourable
Sean J. Harrington
BETWEEN:
JOSIAH NYABOGO MASONGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
[1]
The
question in this case is not whether Mr. Masongo is homosexual. Rather, the
question is whether Mr. Masongo is perceived by the Kenyan police as being
homosexual and at risk of being persecuted therefore.
[2]
His
claim for refugee status was turned down by the Immigration and Refugee Board. It
was of the view that there was insufficient trustworthy evidence to allow it to
conclude that Mr. Masongo is gay.
[3]
He
then sought a pre-removal risk assessment (PRRA) and in accordance with section
113 of the Immigration and Refugee Protection Act came up with new
evidence; a missive from the Nairobi Divisional Police
Headquarters at Muthangari Police Station to the Administrative Chief of the
Bureau Estate in Nairobi. The text of the letter reads:
The above named person is a
resident of your area Umoja House Estate Hse. No.3B Nairobi.
Josiah Nyaboga Masongo is
wanted by police on matters regarding involvement in acts of Homosexuality as
alleged. Several attempts by the police o arrest him have been fruitless.
This is to request you to
immediately inform or arrest him should he be sighted around your area.
Contact SGT. Ndegwa on
Telephone No. 0736 492348. The investigating officer. My circulation signal
KP/042/06 addressed to Police Headquarters.
[4]
The
PRRA officer found that this document was solicited for the purposes of this
application and was of low probative value.
[5]
This
is a judicial review of that decision.
[6]
Leaving
aside the treatment of this letter, the PRRA analysis is very thoughtful. It was
acknowledged that homosexual activity is a crime in Kenya, but that
there are few prosecutions. Such prosecutions as there are generally pertain to
organizations active in the gay community. The evidence, apart from the letter,
did not, in the PRRA officer’s opinion, support the proposition that Mr.
Masongo’s profile would be of interest to the Kenyan authorities. The officer
concluded that there was no more than a mere possibility that he would be
subjected to persecution if returned to Kenya.
[7]
However,
the police letter, if true, indicates quite the contrary. It suggests he would
be arrested on sight.
[8]
The
issue is whether the assignment of low probative value to that letter should be
set aside. This is not really a matter of weighing evidence, but rather a finding
of fact on the officer’s part. He found that the “document was solicited for
the purposes of the application…” In other words, he found the document was
false. In reality he gave it no value. Findings of fact are not disturbed
unless patently unreasonable.
[9]
The
officer noted the letter did not identify the section of the statute Mr.
Masongo was suspected of violating, did not indicate the date of the alleged
acts of homosexuality, and did not state why he was being sought at that time,
approximately three years after the events in question.
[10]
However,
the document purports to be an internal letter. There is no evidentiary basis
for the inference that such letter should cite the section of the criminal
statute involved or the date of the alleged offence. Furthermore, what is a
“circulation signal”? Is it another document which gives those particulars? It should
also be noted that it states that several attempts to arrest Mr. Masongo proved
fruitless.
[11]
In
my opinion, this is not one of those cases where the officer was entitled to
discount the document without verification, on the grounds that there was
sufficient evidence for doubting its authenticity or that the applicant was not
credible (Gebremichael v. Canada (Minister of Citizenship and Immigration),
2006 FC 547, [2006] F.C.J. No. 689 at paragraph 29, and the authorities
cited therein).
[12]
Rather,
Mr. Masongo’s case is in line with those which have held that a document
purportedly issued by a foreign authority is presumed to be valid unless there
is evidence to the contrary (Ramalingam v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J No. 10, 77 A.C.W.S. (3d) 156; Osipenkov
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 59, 120
A.C.W.S. (3d) 111
and Sitoo v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1513, [2004] F.C.J. No. 1850).
[13]
The
officer’s reasons do not indicate whether the letter before him purported to be
an original or a photocopy. While there may have been no positive obligation to
have the document examined by experts, such as the RCMP, we are left with a
presumption of validity. The reasons given to doubt authenticity were in the
realm of conjecture, not inference drawn from evidence in the record. As such,
they were patently unreasonable.
[14]
It
is well established that a conjecture may be reasonable but is of no legal
value as it is a mere guess, as opposed to an inference which is a deduction
from the evidence. I refer to Canada (Minister of Employment
and Immigration) v. Satiacum, 99 N.R. 171, [1989] F.C.J. No. 505 in
which Mr. Justice McGuigan, speaking for the Court of Appeal, cited Lord
Macmillan in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at
page 45, 144 L.T. 194 at page 202.
[15]
It
would have been appropriate to investigate the authenticity of the police
letter. It may well be that an investigation would have revealed that the
letter was a fake, particularly as counsel for the Minister points out that the
address given for Mr. Masongo appears to be incorrect. PRRA officers have means
at their disposal and there are times when they should be used (Myle v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1073, [2007] F.C.J. No. 1389).
ORDER
THIS COURT
ORDERS that for these reasons the application for judicial review is
allowed, the decision of the PRRA officer is set aside and the matter is
referred back for redetermination by another PRRA officer. There is no serious
question of general importance to be certified.
“Sean Harrington”
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