Date: 20040323
Docket: IMM-3395-03
Ottawa, Ontario, this 23rd day of March, 2004
Present: The Honourable Justice James Russell
BETWEEN:
JOAN WANJIRU NGUGI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application by Joan Wanjiru Ngugi ("Applicant") for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated April 8, 2003 ("Decision") wherein the Board determined that the Applicant was not a Convention refugee or a person in need of protection. The Applicant is a 28-year-old citizen of Kenya and claimed refugee status on the grounds of a fear of persecution at the hands of her parents and her proposed husband based on her gender and fears that she will be subjected to a forced marriage and Female Genital Mutilation ("FGM").
ISSUES
[2] The Applicant raises the following issues:
Was the Board's overall assessment of the totality of the evidence patently unreasonable, perverse and capricious?
Did the Board misstate and misapprehend material evidence properly before it to the extent that the Board committed an error of law?
Was the Board right when it held that the Applicant had not established a well-founded fear of persecution in Nigeria?
Did the Board misunderstand the evidence and decide the case on the basis of its own speculations and/or irrelevant issues instead of the relevant evidence before it?
BACKGROUND
[3] The applicant is a 28-year-old citizen of Kenya and fears that she will be subjected to a forced marriage and FGM.
[4] In December 1992, she says she stopped attending school because her parents did not want her to further her education.
[5] She claims that in February 2000, her parents pressured her into a forced marriage with Mr. Njogu who was 30 years older than the Applicant and was already married. She alleges that a bride price was paid by her parents and she was thereafter bonded to Mr. Njogu as his subservient wife.
[6] In April 2000, the Applicant's parents insisted that she visit Mr. Njogu's house every Friday and Saturday to cook and clean for him.
[7] The wedding ceremony was to take place in October 2000. However, prior to the ceremony, Mr. Njogu insisted that the Applicant undergo female circumcision.
[8] The Applicant refused and claims that she was beaten by Mr. Njogu at the end of October 2000, at which point she decided to end her visits to his house.
[9] The Applicant claims that her parents were unsupportive and agreed that a man should beat his wife if she does not obey.
[10] She fled to Nairobi to a friend's house and made arrangements to flee Kenya.
[11] She arrived in Canada on December 4, 2000, and made her refugee claim.
THE DECISION
[12] Because of inconsistencies in the evidence, the Board found that the Applicant was not credible.
[13] The Board found that there were inconsistencies concerning the Applicant's address. In the Applicant's PIF and her oral testimony, she testified that she lived in a small village known as Kaimbu, Kenya, until she fled.
[14] However, the Board found that she gave contradictory evidence. At the Port of Entry in the Background Information Form she stated that her last address was in Nairobi, Kenya. She also attested that her parents' current address was in Nairobi, Kenya.
[15] The Applicant explained to the Board that she had given a friend's mailing address in Nairobi (she had resided with this friend before fleeing the country) as a substitute for her parents' address because they were from Kaimbu, a very small village, and she did not have a mailing address.
[16] The Board did not find the explanation credible because the Applicant had allegedly lived in the village of Kaimbu her entire life and the Board felt that, if she was truly from that village, she would have mentioned it at the Port of Entry.
[17] Furthermore, the Applicant claimed in her oral testimony that, in April 2000, Mr .Njogu started to physically abuse her and that the beatings continued until October 2000. The Board found that this information conflicted with the evidence in the Applicant's PIF narrative where she had said that "my visits to Mr. Njogu continued until the end of October 2000 when he began to beat me." The Board found that if the Applicant had been beaten for 6 months, she would have mentioned it in her PIF narrative.
[18] In addition, in the Applicant's PIF, she stated that her marriage to Mr. Njogu was due to take place at the end of October. But when she was asked by the Board when the wedding ceremony was going to take place she could not answer and merely stated that she could not remember. The Board found that it was not plausible for the Applicant to forget the date of her wedding if it had been truly scheduled to take place.
[19] The Board also found that the Applicant stated in her PIF, at question 18, that she worked as a housekeeper from June 1992 until December 2000. However, the Board felt this contradicted her evidence that she went into hiding at a friend's house in Nairobi in October, 2000.
[20] Furthermore, the Applicant in her Background Information Form stated that she was a student when, in other evidence, she alleged that she had not attended school since 1992.
[21] The Board stated that it considered all of the documentary evidence with respect to domestic abuse, sexual abuse, rape, FGM and discrimination of women. However, it found that there was no evidence to suggest that 26-year-old girls are forced into arranged marriages.
[22] The Board found that there was no credible and trustworthy evidence that proved that the Applicant was forced into an arranged marriage or to undergo FGM.
APPLICANT'S SUBMISSION
[23] The Applicant argues that the Board misunderstood the evidence that was presented before it. The Decision was not based on the totality of the evidence but on speculations and unwarranted inferences. The Board misconstrued the facts and failed to take into consideration the documentary evidence and oral testimony of the Applicant.
Mailing Address vs. Address of Dwelling
[24] The Applicant argues that the Board's credibility finding concerning her address was unjustifiable. The Applicant explained at the hearing that the reason why she did not give her parents' home address in the village of Kaimbu, Kenya in the Background Information Form was because the village did not operate under an address system. Instead, on the Background Information Form, the Applicant chose to print a mailing address in Nairobi, which is clearly a mailing address because it reads "P.O BOX 12468 Nairobi." A mere mailing address does not prove that the Applicant lived in Nairobi rather than in the village of Kaimbu.
[25] Furthermore, the Applicant never stated, as implied by the Board, that she did not know her parents' address. She said that her parents did not have a mailing address in the village and only received mail through a postal address in Nairobi.
[26] The Applicant argues that the Board viewed the address and mailing issue matter from a western perspective and without special consideration to the Applicant's culture. This was an error in law.
[27] The Applicant further submits that there was no space in the Background Information Form to explain that, in her village, there was no mailing system. The column required an address. Hence, the Applicant gave her mailing address.
Claims of Abuse
[28] The Applicant argues that the Board erred in microscopically analyzing the evidence of the Applicant without leaving room for a contextual understanding of the evidence.
[29] The Applicant says that the Board erred when it examined the following statement taken from the Applicant's PIF, which it interpreted to mean that the abuse suffered by the Applicant started at the end of October 2000 :
" my visits to Mr. Njogu continued until the end of October 2000 when he began to beat me"
[30] The Applicant argues, however, that the Board did not consider the Applicant's PIF in totality, which states as follows:
During my periods of contact with this man, he began to insist quite forcefully, that I undergo genital circumcision. He paid deaf ears to my decision not to undergo the risky procedure.
Meanwhile, my visits to Mr. Njogu continued until the end of October 2000 when he began to beat me. He explained the beatings as a behaviour that is spurred by his love for me, and his desire to correct my mistakes. I felt I could not take it any more.
[31] The Applicant says she could not have meant that the abuse started at the end of October. When read in totality, the statement accords with her oral evidence that she fled at the end of October because she could no longer take all of the abuse he administered as a result of her refusal to undergo circumcision.
[32] Furthermore, the Applicant says the Board erred in its Decision in stating that "if the claimant were truly beaten every week for approximately six months she would have mentioned it in her narrative." However, the Applicant did explain the abuse when she said that Mr. Njogu began to insist quite forcefully, which was intended to describe how he treated her refusal to undergo circumcision.
Date of the Wedding Ceremony
[33] The Applicant argues that she never stated that she did not remember when the date of the wedding ceremony was to take place at the hearing and, in any event, the date was not a critical aspect of her claim.
Work Period
[34] The Applicant argues that the Board erred in stating that there was inconsistent evidence on this issue. The PIF does not state that the Applicant worked from June 1992 - December 2000. It clearly says that the Applicant worked from July 1992 - October 2000.
Claim of Being a Student
[35] It was completely reasonable for the Applicant to refer to herself as a student in the Background Information Form. She was never really employed in the proper sense of the word. Because she was pulled out of school, it was only reasonable for the Applicant to see herself as a student.
Forced Marriages
[36] The Applicant argues that the Board erred in its finding that there was no evidence to suggest that 26-year-old girls are forced into arranged marriages. The Applicant submits that, at the material time in 1992, she was 18 years of age and the documentary evidence supports her account of her situation. She was an attractive girl who had economic importance for her parents.
RESPONDENT'S SUBMISSION
Mailing Address vs. Address of Dwelling
[37] The Respondent argues that if the Applicant truly did live in the village Kaimbu, she would not have given a Nairobi address for herself and her parents at the Port of Entry. The Applicant was asked at the port of entry where she lived and not her mailing address.
[38] Furthermore, the Applicant told the Board at first that she could not remember her parent's address and then explained that houses in her village did not have addresses. The Respondent argues that there is nothing in the Board's Decision to suggest it viewed this evidence from a Western perspective. The Board simply found that the Applicant's testimony was unreliable.
Claims of Abuse
[39] There was inconsistent evidence as to when her husband started beating her. At the hearing the Applicant stated that she was beaten from April 2000 until October 2000. She now argues that the beatings really started in October 2000, and prior to that she suffered from psychological abuse.
Date of the Wedding Ceremony
[40] The Respondent argues that the Board was entitled to draw an adverse credibility inference from the fact that the Applicant could not remember the date of her scheduled marriage ceremony.
Claim of Being a Student
[41] The Respondent argues that the Applicant, in her PIF, admitted to ending her school studies in 1992 and said that she worked as a housekeeper until 2000. However, at the Port of Entry, the Applicant stated that she was a student. The Board was entitled to base an adverse credibility finding on discrepancies between Port of Entry notes and the Applicant's written and oral evidence.
Work Period
[42] While the Respondent admits that the Board erred in the dates of when the Applicant ceased work as a housekeeper, and concedes that the PIF did clearly state that it was in October 2000, and not in December 2000, there was still a key credibility concern in the fact that, at the Port of Entry, the Applicant claimed she was a student while, in her PIF, she claimed she was a housekeeper.
[43] The Respondent submits that the Applicant's argument that she considered herself a student eight years after leaving school is nonsensical.
[44] The Respondent argues that, although the Board erred with respect to the December 2000 and October 2000 dates from question 18 in the Applicant's PIF, this was an inconsequential error. The Decision as a whole should be upheld because as a whole it was clearly reasonable.
ANALYSIS
[45] Several days before the Court was due to hear this matter on March 11, 2004, it came to the attention of counsel that no transcript of the hearing had been produced and that, indeed, no transcript could be made available because of poor tape quality.
[46] When counsel appeared before the Court on March 11, 2004, the Applicant urged that the lack of a transcript made it virtually impossible to proceed to review a Decision that is based, for the most, upon adverse credibility findings and where the Applicant takes serious issue with the Board's findings and interpretation of evidence she gave at the hearing.
[47] The Respondent correctly pointed out that the lack of a transcript is not necessarily fatal or determinative of an Application such as this one. The Respondent also drew the Court's attention to the specific issues referred to in the Applicant's affidavit and suggested that, in relation to at least two matters, a transcript was not necessarily required. Counsel for the Respondent also graciously conceded that, although in his view a third issue raised by the Applicant did not necessarily require the transcript, there was certainty room for debate over the matter.
[48] My review of the Decision suggests that it is based, for the most, on a lack of credibility that the Board found in the Applicant's narrative and inconsistencies that the Board found in her evidence. Looking at the specific issues raised in her affidavit that involve what she may or may not have said at the hearing, I am not convinced that the Court can safely deal with this review without a transcript. Bearing in mind what is at stake here, the Court concludes that it would be better to err on the side of caution and return the matter for re-determination.
[49] Relying upon Kandiah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 321 (C.A.); Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342 (T.D.) and Vergunov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 584 (T.D.), I conclude that the Court cannot deal adequately with the concerns raised in this Application without a transcript and that a new hearing is required.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed. The matter is returned for a re-hearing before a different panel.
2. There are no questions for certification.
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"James Russell" |
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JFC |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3395-03
STYLE OF CAUSE: JOAN WANJIRU NGUGI v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: March 11, 2004
REASONS FOR ORDER: The Honourable Justice Russell
DATED: March 23, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |