Date: 20040310
Docket: IMM-5809-02
Ottawa, Ontario, this 10th day of March, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
PENINAH KAWINI (KANINI) MUTINDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The applicant is a 36 year-old Kenyan woman. She claims refugee status on the basis of perceived political opinion. In Kenya, she was a member of the Handicapped Mobility Appliances Centre (HAMAC), formed in 1994, with whom she worked to produce and distribute locally-made wheelchairs. She was also secretary for the National League for the Disabled of Kenya (NLDK). Through her membership in these groups, she became involved in advocacy activities with regards to the government's wheelchair purchase policies, which were made through the National Fund for the Disabled of Kenya (NFDK). As the secretary of the NLDK, she investigated why the NFDK was purchasing foreign wheelchairs instead of purchasing locally-made, more sturdy wheelchairs. Being confined to a wheelchair herself, this was a subject of particular interest to her. She claimed that the government was getting sub-standard wheelchairs for free from Asian investors who were receiving business licences in return.
[2] She also claimed to have held a press conference denouncing the government's policies, in particular with regards to police harassment of disabled people. Additionally, she wrote letters complaining about the government's land-grab policies, which involved the NLDK, as the former chairman had illegally obtained title to a valuable parcel of land in Nairobi.
[3] As a result of her membership in the NLDK and HAMAK, the applicant alleges that she became involved in DEEDS (Disabled for Education and Economic Development Support) and UFUNGAMANO (a church-led coalition pressing for constitutional reform).
[4] The applicant stated that her life was threatened as a result of her inquiries, plainclothes police visited her office in late April and early May 2001, and her home on May 4th, 2001. On one of these visits, she was arrested, taken to an isolated room and questioned about a presentation that she had given at a US conference and her press conference. On the second visit to her office, the police seized a draft report that she had been working on that criticized the government and detailed corruption in the NFDK and other government entities, as well as criticizing the government's policies on disability issues.
[5] The applicant went into hiding. On May 22nd, 2001 she received her visitor's visa for Canada. On June 4th, 2001 she left Kenya for Canada, and claimed refugee status on June 27th, 2001.
Board decision
[6] The Board found that her claim failed " in respect of all issues i.e. her identity as a activist, the subjective and objective components and credibility. " (Tribunal report p. 5)
Issues
[7] Three issues were raised by the applicant:
(I) The Board applied the wrong standard of proof by requiring " persuasive evidence" rather than weighing claims on the balance of probabilities;
(ii) The Board made patently unreasonable findings on credibility by relying upon inferences and conjectures; and
(iii) The Board ignored relevant evidence tendered before the decision was published.
Analysis
Issue (I)
[8] The Board made several findings on pages 5 and 7 of the Tribunal Record in respect of the claimant's activism:
- "the claimant was unable to place before the panel any persuasive objective evidence of her alleged activism" (p. 5)
- "there is no persuasive evidence that DEEDS was part of the UNFUNGAMANO coalition" (p. 7)
- " there is no persuasive evidence that HAMAC and NLDK have been involved in contentious issues with the government" (p. 7)
- " the panel finds on the balance of probabilities that the claimant was not a member of DEEDS or UFUNGAMANO" (p. 7)
[9] It is not apparent what the difference between persuasive evidence and balance on the balance of probabilities amounts to. Persuasive clearly does not refer to the criminal standard of "beyond a reasonable doubt". Any finding on the balance of probabilities is, by definition, persuasive. For instance in Li v. Canada (M.C.I.), [2003] F.C.J. No. 1934 at para. 50 Gauthier J. stated:
In view of the foregoing, the Court finds that pursuant to subsection 97(1) of the Act, there must be persuasive evidence (ie balance of probabilities) establishing the facts on which a claimant relies to say that he or she faces a substantial danger of being tortured upon his or her return
(emphasis added).
Similarly in Sivanathan v. Canada (M.C.I.), [2003] F.C.J. No. 662 at para. 2 Snider J. held:
On that basis, the Board had no persuasive evidence before it to indicate, on the balance of probabilities, that the minor Applicant was persecuted or would be persecuted, in Norway for a Convention reason
(emphasis added).
Consequently the Board did not commit a reviewable error by using this term.
Issue (ii)
[10] The applicant alleges that the Board's finding in respect of her credibility was based upon conjecture and inferences rather than on the basis of the adduced facts.
[11] Credibility determinations are quintessential findings of fact and the applicant has the burden of showing that the Board's decision was patently unreasonable, or made without regard for the evidence before it.
[12] Here, the negative credibility findings were supported by reasons (implausibilities, lack of corroborating evidence that was reasonably available and delay in claiming). With respect to the argument that the Board improperly drew negative inferences or conjectures from the applicant's account of other people's behaviour, it should be noted that a panel is entitled to weigh the claimant's story against what might reasonably be expected in a similar situation. A panel is entitled, in assessing credibility, to rely on criteria such as rationality and common sense. See: Shahamati v. Canada (M.E.I.), [1994] F.C.J. No. 415. For instance, in the absence of an explanation as to why her colleagues in Kenya might be unwilling to provide support to her in her refugee claim, the panel was entitled to draw a negative credibility inference. Therefore, there is no basis to the applicant's argument that the Board committed a reviewable error in this regard.
Issue (iii)
[13] The applicant alleges that the Board ignored evidence presented at the hearing. The Board accepted the documentary evidence which establishes that the Kenyan government persecuted certain groups, including groups advocating on behalf of the disabled. The Board accepted that certain groups were targeted in this way, but found that the applicant was not a member of these groups. This was the central sticking point in this case, and the applicant was unable to supply any evidence going to this crucial issue other than her own testimony. As the Board stated on page 6 of the Tribunal Record:
It is the claimant's burden to establish the bona fides of her claim. She enjoyed a singular reputation amongst the disabled community in Kenya because of her design and manufacture of a unique wheelchair. I find it unreasonable to believe that if she were involved in activism on behalf of disabled groups that there not be persons or organisations who would know and would be willing to assist her in her refugee claim. The panel draws a negative inference on the credibility of the claimant in not placing before the panel concrete evidence of her activism. That there would not be any individual or other activist person or organisation willing to support the claimant's contention is not credible.
[14] Based on the evidence submitted, this was a perfectly reasonable conclusion for the Board to reach. The applicant maintains that a press release issued in May of 2001 should have been considered by the Board. The press release was not tendered at the hearing or in advance thereto. The applicant alleges that she gave it to her counsel who failed to submit it to the Board. Subsequent to the Board hearing of September 11, 2002, her counsel faxed it to the Board on September 26, 2002. The Board actually made its decision on September 17, 2002 but it was only sent to the applicant on October 30th, 2002. Given that the Board had already rendered its decision (when it received a copy of the press release), it was under no obligation to consider a document that the claimant had ample time to submit. After all, she received the file Screening and Disclosure order form on June 18th, 2002 which clearly indicated that she should produce all documents upon which she intended to rely 20 days before the hearing. There is no denial of procedural fairness here as the applicant alleges.
[15] The applicant further maintained that it was only the incompetence of counsel that kept this evidence from reaching the Panel on time. This incompetence was apparently manifested through not requesting an adjournment to submit further evidence or faxing the documents to the Panel member prior to the rendering of the decision. However, the applicant's evidence at the hearing as to why she had not produced any documentation was that she did not trust anyone in Kenya enough to get such documents for her. Given this testimony, it was not incompetent of counsel not to have requested an adjournment in the absence of an indication that she now trusted someone enough to get the documents. Without a factual foundation for an allegation of incompetence, and in the absence of a complaint to the Law Society of Upper Canada, this ground for the application must also fail. As Pelletier J. held in Nunez v. Canada (MCI), [2000] F.C.J. No. 555:
I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this court without having the member's explanation for the conduct in question or evidence that the matter has been referred to the governing body for investigation. In this case, there was ample opportunity to do one or the other but neither was done. The failure to do so is inconsistent with the gravity of the allegations made. This is not a question of being solicitous of lawyers' interests at the expense of their clients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in the relief sought being granted. The proof offered in support of such an allegation should be commensurate with the serious nature of the consequences for all concerned.
[16] Accordingly this application is hereby dismissed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5809-02
STYLE OF CAUSE: PENINAH KAWINI (KANINI) MUTINDA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 25, 2004
REASONS FOR ORDER AND ORDER : von FINCKENSTEIN J.
DATED: MARCH 10, 2004
APPEARANCES:
Munyonzwe Hamalengwa FOR APPLICANT
Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
Munyonzwe Hamalengwa FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada