Date: 20050609
Docket: IMM-8387-04
Citation: 2005 FC 825
BETWEEN:
MARIE STELLA KAVIRA KIFAKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Ms. Kavira Kifaka is a citizen of the Democratic Republic of Congo. She left the DRC by hiding in the back of transport truck bound for Nairobi, Kenya. From there, she travelled to Canada via Belgium, on a false passport. The basis of her claim for refugee status is that she is the child of a racially mixed marriage, her father being of the Nande tribe and her mother being of Rwandan origin and nationality. Her parents divorced when she was young. She remained with her father in the DRC and had no contact with her mother. In 2003, after she was widowed, she travelled to Kinshasa to visit her father and to ask him to go with her to help find her mother. They made one trip together to Rwanda in September 2003, but were unable to locate her. The only information they were able to obtain about her mother was a vague statement from someone who believed she had died some 18 months before.
[2] On return to her home in Beni in the DRC, her neighbours were unusually cold. One of them tipped her off that a government security agent had said that they would find more about the trip to Rwanda. The agent apparently found it incomprehensible that she could have dealings with Rwandans who were responsible for genocide. Another neighbour advised that her personal situation was dangerous because a different government man said there was a group of people who wanted to kill her.
[3] In his decision the Member of the Refugee Protection Division stated he had serious concerns with credibility because at the hearing Ms. Kavira Kifaka alleged that agents of her own Kebele government in Beni wanted to kill her, something that was not mentioned in her Personal Information Form ("PIF") narrative. Her answer was that she had provided this information to her former lawyer, who had also acted as an interpreter between French, which Ms. Kavira Kifaka spoke, and English, which she did not understand. She later amended her PIF, which the Member considered to be an effort to bolster her case.
[4] Because of the allegations respecting Ms. Kavira Kifaka's former counsel, the Member himself suggested to her current counsel that she waive solicitor-client privilege so that the first counsel could be called as a witness. This was done.
[5] Although matters got unnecessarily acrimonious following the Refugee Division's decision, it is clear that Ms. Kavira Kifaka had drafted a PIF narrative in French. Her lawyer was unable to arrange for a French interpreter and so therefore personally interpreted the PIF and PIF narrative back and forth and signed the interpreter's declaration. There are different recollections as to what was said in the meetings between Ms. Kavira Kifaka and her counsel, with the former saying that she had told her counsel that she feared being arrested and killed by the police, government security agents and Congolese authorities, while the latter says that was not the case.
[6] The Board Member preferred the solicitor's evidence. This is what he said:
Ms. Gladman is a Barrister and Solicitor of the Province of Alberta. Ms. Gladman testified that she is fluent in the French language having taken a number of university courses in French in Canada as well as studying the French language at a university in France for one year. Ms. Gladman completed and signed the Interpreter's Declaration in the claimant's PIF wherein she certifies that: she accurately interpreted the entire contents of this form and all attached documents to the claimant from the English language to the French language; she is proficient in both these languages ans was able to communicate fully with the claimant; and the claimant indicated that she fully understood the entire content of this form and the answers provided, as interpreted by her. Ms. Gladman also testified that she asked the claimant whether she understood the complete contents of her PIF, and the claimant replied that she did. I prefer the evidence of the claimant's former legal counsel, Ms. Gladman, to the claimant's evidence because again she is a practicing Barrister and Solicitor of the Province of Alberta. Based upon Ms. Gladman's testimony, I find on a balance of probabilities that claimant did not tell Ms. Gladman that she feared being arrested and killed by the police, government security agents and Congolese authorities, as well as member of the Nande ethnic group in the DRC. I find the claimant's failure to do so seriously undermines the credibility of these allegations contained in her amended PIF narrative. I do not believe these allegations by the claimant and I find that they are an attempt by the claimant to embellish her refugee protection claim...
[my emphasis]
[7] Although findings as to credibility are findings of fact and are not to be disturbed unless patently unreasonable, the Board Member fatally misdirected himself.
[8] It may, or may not, be that Ms. Gladman's evidence is to be preferred. However, it cannot be preferred simply because of her station in life. The testimony of a judge is not to be preferred over that of a street-walker simply he or she is a judge. The testimony of a "religious" should not be preferred over the testimony of a child who claims to have been sexually assaulted, simply because of a vocation.
[9] The rationale behind this credibility finding is patently wrong and so permeates all of the Member's decision that other parts thereof simply cannot survive.
[10] The Member also found that there was a viable internal flight alternative, Kinshasa. However, the credibility finding prejudiced that analysis as the Member said:
Given the foregoing and my finding that the claimant lacks credibility respecting her fear of being arrested and killed by the police or government security forces, I find that there is no serious possibility that the claimant would be subjected to serious harm at the hands of state authorities in the DRC if she were to relocate in Kinshasa.
[11] There was also a serious error in a finding of fact. The error was conceded. Its seriousness was not. Four times in his reasons the Member said that Ms. Kavira Kifaka had gone to Rwanda twice. That is four times too much, for the evidence is clear; she only went once. This could have a considerable bearing on her subjective fear of persecution back in the DRC.
[12] Given these findings, it is not necessary to consider other points raised.
[13] Finally, although Ms. Kavira Kifaka appears to have consented that this matter proceed in English, with her testifying by means of a French interpreter, she had the right to proceed directly in French. Whoever she was accommodating, be it her counsel or the Board, she was not doing herself any favours, something she might bear in mind at the new hearing.
[14] The matter shall be sent back for rehearing by a differently-constituted panel.
[15] There is no question of general importance to certify.
Judge
Calgary, Alberta
June 9, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8387-04
STYLE OF CAUSE: MARIE STELLA KAVIRA KIFAKA
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: JUNE 8, 2005
REASONS FOR ORDER : HARRINGTON J.
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT