Date: 20010803
Docket: IMM-3749-00
Neutral citation: 2001 FCT 855
BETWEEN:
HELEN IYEKEORETIN OSAROGIAGBON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario
on Thursday, July 26, 2001, as edited]
LEMIEUX J.:
[1] These reasons confirm those rendered orally in Toronto on Thursday, July 26, 2001, when I allowed this judicial review application by Helen Iyekeoretin Osarogiagbon (the "applicant") a 28-year-old female citizen of Nigeria who entered Canada on February 10, 1997, and claimed refugee status because she alleged she had been arrested on October 3, 1996, by the military police who were searching for her boyfriend, an escapee from prison, accused in March 1995 of taking part in a coup plot to overthrow the Abacha military regime.
[2] On June 19, 2000, the Refugee Division of the Immigration and Refugee Board consisting of Khaled L. Mouammar and Marcelle Bourassa (the "tribunal") rejected her claim finding the applicant's testimony that she was detained for four months and was almost daily tortured and sexually abused during that period not to be credible and trustworthy.
[3] The tribunal based its credibility finding solely on the basis of two implausibilities it drew.
[4] The first implausibility was framed by the tribunal in the following words:
No credible evidence was presented that she sought medical treatment for her alleged injuries before she left Nigeria, or after she arrived in Canada. Moreover, no credible evidence was presented that the claimant had sought psychological help for her alleged traumatic experiences in Nigeria during her lengthy stay in Canada. The panel finds it implausible that the claimant, who allegedly was beaten and sexually abused almost daily for four months, did not seek medical treatment for her alleged injuries and did not seek psychological counselling soon after she arrived in Canada.
[5] The second implausibility drawn by the tribunal was expressed by the tribunal in this fashion:
No evidence was presented that her mother or any of her seven siblings had encountered any serious problems after her departure from Nigeria. The panel finds it implausible that the claimant was allegedly persecuted because her boyfriend had allegedly escaped from prison, yet her family members did not face any serious problems following her alleged escape from prison.
[6] In allowing this judicial review application, I had in mind what Justice Décary said in Aguebor v. Ministre de l'emploi et de l'immigration (1993), 160 N.R. 315 at 316:
[4] There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record.
[7] In my view, the unreasonableness of the second implausibility drawn by the tribunal is palpable. The fact the applicant's immediate family had not encountered any serious problems after her escape from prison, cannot be the basis for a finding she had never been tortured in prison. Who knows why the military authorities did not trouble the applicant's family? The tribunal engaged in speculation on this point.
[8] The first implausibility is somewhat less palpable. Insofar as not seeking medical help in Nigeria, the applicant testified after she escaped from prison, she went into hiding for four days and then immediately left for Canada.
[9] In Canada, the applicant testified she saw a doctor two days after her arrival. The doctor prescribed her medication because she had difficulty sleeping and was experiencing continuous headaches on account of what she said happened to her. The doctor who examined her, was not a psychologist, but counselled her on her medical condition. In addition, the applicant showed the panel scars on her hands and thighs which she attributed to continuous beatings.
[10] I ruled this first implausibility could not stand because it was drawn in a manner contrary to the evidence.
[11] What is also troubling about this decision is the tribunal's discussion about compelling reasons under subsection 2(3) of the Immigration Act. In that discussion, the tribunal found "the claimant may have been detained for a short period of time and mistreated". This statement is contrary to the tribunal's previous finding in its ruling of the applicant's non well-founded fear of persecution.
[12] It is for these reasons I allowed the judicial review application.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
AUGUST 3, 2001
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