Date: 20060825
Docket: IMM-326-06
Citation: 2006
FC 1028
OTTAWA, ONTARIO,
August 25, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
TAIYE
PADDY ALUYI (a.k.a. OSAKEWE JOSEPH ALUYI)
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant is a citizen of Nigeria and arrived in Canada on April 10, 2001. On
February 19, 2002, the Applicant was granted refugee status on the basis of
persecution due to political opinion and sexual orientation.
[2]
A
fingerprint check of the Applicant was conducted by the FBI and Canada Border
Services Agency (CBSA) was advised that they matched an “Andrew Dede” who had a
criminal record in the United
States. When the
Applicant was interviewed by CBSA on April 4, 2004, he admitted to being “Taiye
Paddy Aluyi”, “Osakewe Joseph Aluyi” and “Andrew Dede”. He further admitted to
concealing his US criminal convictions. He had
resided in the US from 1990 until his deportation back to Nigeria in October 2000. He further
admitted that all information contained in his PIF narrative was false up to
paragraph 15 and except for his sexual orientation.
[3]
The
Minister applied on April 30, 2004 to vacate the Applicant’s refugee status
pursuant to s. 109 of IRPA. Given that the Applicant conceded he misled the
panel about his OPC membership, only his sexual orientation was argued.
[4]
The
Refugee Protection Division of the Immigration and Refugee Board of Canada (the
“Board”) found that it did not trust the Applicant’s testimony. It was
self-serving and the Applicant has repeatedly demonstrated that he is a liar:
he is a convicted fraudster, lied to US authorities about his citizenship, lied
to US authorities about his identify, lied to Citizenship and Immigration Canada,
lied to the original panel, and lied to CBSA when interviewed in 2004.
[5]
Given
this, the evidence about his sexual orientation must come from corroborating
sources. The Board looked at eight pieces of evidence that might corroborate (without
reliance on the Applicant’s testimony) the contention that the Applicant is
homosexual. The Board found no support (independent of the Applicant’s
testimony) in any of these documents to corroborate the Applicant’s allegations
regarding his sexual orientation.
[6]
The Applicant
is now seeking judicial review of that decision.
[7]
Section
109 of Immigration and refugee protection Act, S.C. 2001, c.27 as amended (“IRPA”)
states:
Applications to Vacate
Vacation of refugee protection
109. (1) The Refugee
Protection Division may, on application by the Minister, vacate a decision to
allow a claim for refugee protection, if it finds that the decision was
obtained as a result of directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter.
Rejection of application
(2) The Refugee Protection
Division may reject the application if it is satisfied that other sufficient
evidence was considered at the time of the first determination to justify
refugee protection.
Allowance of application
(3) If the application is
allowed, the claim of the person is deemed to be rejected and the decision that
led to the conferral of refugee protection is nullified.
[8]
The
section 109 process was succinctly described by Justice Blanchard in Canada (Minister of Citizenship and
Immigration) v. Pearce,
2006 FC 492 at paragraph 21:
There are two issues that must
be considered by the Board in the context of an application to vacate. These
matters are essentially raised by the operation of subsections 109(1) and (2)
of the IRPA and require the Board to make factual determinations. First, under
subsection 109(1), the Board must determine if the positive decision was
obtained as a result of direct or indirect misrepresentation or withholding of
material facts relating to a matter relevant to the refugee claim. Second, the
Board notwithstanding the misrepresentation or withholding may still reject the
application to vacate if it finds that there is sufficient "other
evidence," untainted by the misrepresentation or withholding of evidence,
to justify refugee protection.
[9]
There is
no dispute between the parties that in cases involving s. 109, given that the
key issue is credibility, the standard of review must be patently unreasonable
(see Aguebor v. Canada (Minister of Employment and Immigration) (1993),
160 N.R. 315 (F.C.A).
[10]
The
Applicant, in essence, argued only one point before me. The Board has to weigh
the Applicant’s credibility and has to come to a reasonable conclusion on the
basis of the Applicant’s testimony and the corroborating evidence. Here, the
Board began with finding the Applicant not credible and found the evidence
proffered by him sufficiently unreliable to establish his sexual orientation. By
taking that initial position, the Board in effect prejudged the case, created
an insurmountable presumption against the Applicant. Consequently it did not
employ the process mandated by s. 109 of IRPA and therefore the decision is not
tenable.
[11]
I cannot
agree with this submission. The Board understood the s. 109 process as described
by Blanchard J. in Pearce supra, reiterated it and followed it.
[12]
The Board
had ample reasons not to find the Applicant credible given his past history and
his admissions of duplicity. Therefore it stated at the outset that
understandably the Board did not believe anything the Applicant had stated. However,
far from prejudging the case, it then looked at all the evidence presented to
see whether there was something not based upon the Applicant’s testimony
(‘other evidence’ in the words of Pearce supra) that would support his
allegations. Its analysis revealed that none of the evidence, short of anything
that originated from the Applicant, was found to be convincing evidence to
corroborate his statement regarding his sexual orientation. In a case such as
this one, where there is nothing to give the Board any reason to accept the
credibility of the Applicant, this is the appropriate procedure to be
followed.
[13]
The
Board’s reasoning was logical and amply supported by the evidence of this
case. The facts as admitted by the Applicant establish that he had
relationships with women in Nigeria, Vancouver and California as well as having fathered a
child. By contrast the evidence as to his alleged homosexuality was weak,
conflicting and/or lacked credibility.
[14]
I cannot
find anything unreasonable in the Board’s conclusions. Nor do I find that it
followed an incorrect process.
[15]
Accordingly,
this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
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