Date: 20051215
Docket: IMM-588-05
Citation: 2005 FC 1692
Ottawa, Ontario, this 15th day of December, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
ZUWAIRA YAHYA BILAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER ANDORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, (the Board) wherein the Board determined that the applicant was neither a Convention refugee nor a person in need of protection
[2] The applicant is a 37 year-old national of Nigeria. She alleges a well-founded fear of persecution on the ground of her membership in a particular social group (women), due to the
threats and harassment of an older man to whom her father had given her in marriage when she was ten years old.
[3] The applicant testified that under the marriage arrangement, she was to join the household of the older man and his three wives and children after completing her secondary school education, and take her place as his fourth wife. This man paid for the applicant's high school education. The applicant's father died in 1980. Two years later she met a man whom she fell in love with and subsequently married in 1985 over the objections of her uncle who had assumed the role of her guardian. The marriage produced two sons.
[4] In December 1989 the older man demanded that the applicant come and live with him as his wife. The applicant refused and a physical scuffle ensued. During the incident, the infant son whom the applicant was carrying on her back was accidentally killed when the applicant was pushed and fell onto her back. Following this incident the applicant and her husband moved to Saudi Arabia where they remained until December 1997 when they decided to return to Nigeria.
[5] The applicant and her husband established a business which carried on until 2002 when it was destroyed following a series of riots which occurred during the Miss Universe pageant. The applicant and her children then went to live with her mother. The older man found her and brought a civil proceeding before a Sharia court charging her with being illegally married to her husband. The applicant testified that the Sharia court decided to have her stoned to death.
[6] The applicant then fled the state, going to Lagos, while her husband remained in the city of Zaria. A friend of the applicant arranged for her to come to Canada and to seek refugee protection.
[7] The Board determined that the applicant was not a refugee or a person in need of protection, as she failed to provide credible evidence with regard to material elements of her story. In particular, the Board was not satisfied with the applicant's explanation of what happened during the proceedings at the Sharia court, as well as with a lack of clarity in the applicant's evidence as to whether she is or was ever actually married to the older man, or simply engaged to him. Accordingly, it found that there was no subjective basis for the applicant's claimed fear of persecution.
ISSUES
[8] 1. Did the Board err by taking into account irrelevant considerations?
2. Were the credibility findings of the Board patently unreasonable?
3. Did the Board breach any duty of fairness owed to the applicant?
Standard of Review
[9] Decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of the witnesses. Credibility determinations lie within "the heartland of the discretion of triers of fact" and cannot be overturned unless they are perverse, capricious or based on erroneous findings of fact: Aguebor v. Minister of Employment & Immigration, (1993) 160 N.R. 315, [1993] F.C.J. No. 732 (F.C.A.) (QL); Sivanathan v. Canada (Minister of Citizenship & Immigration), (2003) 30 Imm. L.R. (3d) 319, 2003 FCT 500.
[10] Where any of the Board's inferences are reasonably open to it on the record, the Court should not interfere, whether or not it agrees with the inferences drawn: R.K.L. v. Canada(Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43, 2003 FCT 116.
[11] Issues of procedural fairness and natural justice are to be judged on a standard of correctness. When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness and the duty of fairness have been adhered to: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Canadian Union of Public Employees v. Ontario(Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29">2003 SCC 29.
1. Irrelevant considerations
[12] The applicant submits that the Board erred in referring to extrinsic evidence because it relied on a United Kingdom country report dated October 2002. Only the April 2002 report was referred to in the index filed in the tribunal record. Of three quoted passages, one is taken from the April 2002 report and the other two are from the October report. The applicant submits that in quoting from the later report in its reasons the Board exceeded and lost its jurisdiction: Bachore v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 1871 (F.C.T.D.) (QL).
[13] The respondent submits that once the Board determined the applicant was not credible, and that there was no subjective basis for her claim, the objective evidence of difficulties in Nigeria was irrelevant as the Board had found no justification for the applicant's claimed fear of persecution: Djouadou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1568 at para. 4 (F.C.T.D.) (QL); Mukharji v. Canada(Minister of Citizenship and Immigration), [2004 FC 721 at para. 30; Saldago v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 33 (F.C.T.D.) (QL).
[14] While I agree that the Board erred in quoting from a later version of the report that was before it during the hearing, I do not accept that this is sufficient to set aside the decision. Having carefully read the passages in question, I am unable to conclude that their content was material to the decision. They simply provide an updated account of country conditions which neither assist nor detract from the applicant's case.
[15] Unlike the decision in Bachore, above, in this case the credibility findings of the Board were not based on the extrinsic evidence. The Board had determined that the applicant was not credible based on inconsistencies in her testimony. The Board's negative credibility finding can stand on its own, without reference to the extrinsic evidence.
2. Credibility findings
[16] One of the key contradictions the Board found was in the applicant's evidence as to whether she married or was merely promised to marry, the older man. The applicant submits that she was consistent during the hearing and in her personal information form (PIF) that she was only promised to be married. The real issue, the applicant submits, is not the contradictions on this question but whether she was at risk because of the old man's ability to persuade the Sharia authorities that she was his wife whether or not she was in fact married to him.
[17] Unfortunately for the applicant's case, the Board found that her testimony with regard to central aspects of her claim, such as the proceedings before the Sharia court, was hesitant, vague, uncertain and contradictory. She variously claimed, for example, that the Sharia court had already decided that her punishment would be death by stoning and, alternatively, that she had been released by the court to return for sentencing on a later occasion. Counsel's able efforts to demonstrate through the objective evidence that the Sharia court may well have taken the old man's marital complaint seriously were undermined by the contradictions and inconsistencies in his client's testimony.
[18] When the standard of review is patent unreasonableness, an applicant must point to a conclusion of the Board that is not supportable in any way on the evidence: Sinan v. Canada(Minister of Citizenship and Immigration), 2004 FC 87 at paras. 8 and 11, citing Aguebor, above at para. 4.
[19] In this case, the Board made a number of observations about the applicant's evidence which led to a negative credibility finding. These observations are supported by the applicant's own PIF and her testimony and are, therefore, not patently unreasonable.
3. Duty of Fairness
[20] The applicant submitted that the Board erred by breaching the duty of fairness in two ways. According to the applicant, the first breach occurred when the Board failed to directly put to the applicant the contradiction between her PIF and her testimony with respect to the question of her marriage to the older man. The PIF says that the applicant was married to the older man whereas the applicant testified that she had been only promised in marriage to him. The applicant submits that it was unfair of the Board not to point out this apparent contradiction and seek an explanation.
[21] The respondent submits there is no legal or natural justice obligation for the Board to confront a witness with contradictions, particularly where those contradictions are obvious.
[22] The respondent relies upon the following statement by Justice Anne MacTavish in Guci v. Canada(Minister of Citizenship and Immigration), 2004 FC 1033 at paragraph 26:
I also do not accept the Guci's submission that it was incumbent on the Board to confront them with its credibility concerns. There is no duty to put obvious discrepancies and inconsistencies in the stories of represented claimants to them in the course of their refugee hearings: Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (T.D.) (Q.L.), distinguishing Gracielome v. Canada (Minister of Employment and Immigration), (1989), 9 Imm. L.R. (2d) 237 (F.C.A.). [Emphasis added].
[23] It is clear from a review of the PIF itself that there were inconsistencies and contradictions in the applicant's account of her relationship with the older man. In paragraph two, she says she was married to him at the age of ten. In the next paragraph she says the marriage "was performed." In paragraph five she relates how her uncle told her that she "must marry the old man being that my father had already given me out to the old man." The contradiction called out for an explanation and indeed the Board, at pages 305-306 of the certified tribunal record, asked the applicant to clarify the situation. It was open to the Board to conclude that the applicant had failed to provide a satisfactory answer. I find that there was no denial of natural justice in the Board's reliance on this contradiction.
[24] In her written submissions, the applicant also alleged that the Board breached its duty of fairness by failing to provide an interpreter. This was not pressed in oral argument as it is
apparent from the transcript that the opportunity to have an interpreter present was expressly waived by the applicant and her counsel. The applicant chose to proceed and to provide her evidence in English. It was not open to her now to claim a denial of natural justice: Mohammadian v. Canada(Minister of Citizenship and Immigration), [2001] 4 F.C. 85 at para. 19, 2001 FCA 191.
[25] However, the applicant submitted in oral argument that it is also apparent from the transcript that both the panel member and the transcriber had difficulty hearing and understanding her at times. In its decision the Board found that the applicant was not able to testify in a forthright manner. The applicant submits that this was due to the applicant's difficulty in communicating in English and that the Board was required to consider this as a factor in relation to the credibility assessment. That question does not go to the fairness of the proceeding but to the reasonableness of the credibility finding. As I have found above, that finding was open to the Board on the evidence. Having closely reviewed the transcript, I am satisfied that on the key points of contradiction and inconsistency, the applicant's evidence was clearly understood by the Board.
[26] Accordingly, this application for judicial review is dismissed. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
" Richard G. Mosley "
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