Ottawa, Ontario, January 25, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3221-06
STYLE OF CAUSE: AMINA NAKIBUYE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 24, 2007
APPEARANCES:
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Mr. David Matas
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Ms. Aliyah Rahaman
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SOLICITORS OF RECORD:
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MR. DAVID MATAS Barrister & Solicitor Winnipeg, Manitoba
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Winnipeg, Manitoba
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