Date: 20020430
Docket: IMM-2485-01
Neutral citation: 2002 FCT 495
Ottawa, Ontario, this 30th day of April, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ADA DOMOGO EKWUEME
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), dated April 24, 2001, wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the Board, referring the matter back for redetermination by a differently constituted panel of the Board.
Background
[3] The applicant, Ada Domogo Ekwueme, is a citizen of Nigeria.
[4] The applicant is the mother of three boys. The applicant's three children and husband all continue to reside in Nigeria.
[5] The applicant claims a well founded fear of persecution in Nigeria on the basis that her husband, Chuka Onuorah, has been physically and verbally abusive to her for many years prior to her leaving Nigeria. Her claim is based on domestic violence and an alleged marital rape in 1999.
[6] The applicant is a medical doctor, qualified to practice in Nigeria.
[7] The applicant has travelled extensively. At the hearing, the Board was interested to learn why the claimant returned to Nigeria after a trip to the U.K. in 1992, and again after a trip to Ghana in 2000, as both trips occurred well after the alleged severe domestic abuse began, and the later trip occurred after the alleged marital rape.
[8] At the beginning of the hearing, the Board identified as issues the applicant's credibility, identity, the subjective basis of the claimant's fear given a delay in claiming, the objective basis of her fear, as well as an internal flight alternative and state protection.
[9] The Board accepted the applicant's identity based on her passport, and accepted her medical doctor qualifications based on her degree and her registration with the Nigeria Medical Council.
[10] The Board found that the applicant was not a credible and trustworthy witness, and did not have credible explanations for her delay in claiming Convention refugee status in Canada, or credible explanations for returning to Nigeria after previous trips abroad. The Board accepted on a balance of probabilities that the applicant's husband was verbally and physically abusive to her prior to 1991, but found that there was no reliable evidence that this treatment continued after the applicant moved into her own apartment in that year. The Board found that there was no reliable evidence of the marital rape that was alleged to have occurred in July, 1999. The Board found that at a minimum, state protection was available to the applicant in the past. The Board was not satisfied with the applicant's explanation as to why re-location to another part of Nigeria would not be a viable solution, thus the Board did not accept that no internal flight alternative exists for her in Nigeria. Ultimately, the Board concluded that there was insufficient reliable evidence to find on a balance of probabilities that the applicant has a well-founded fear of persecution in Nigeria.
[11] This is the judicial review of the Board's decision.
Applicant's Submissions
[12] The applicant submits that the Board did not reject the totality of the applicant's testimony and thus the reasons do not support its conclusion that the applicant was not a credible or trustworthy witness.
[13] The applicant submits that the Board erred by finding that state protection was available to the applicant as such a finding goes against the documentary evidence.
[14] The applicant submits that the Board is relying on its conclusion that the applicant is not a credible and trustworthy witness to explain why the harassment, rape, and death threats after 1991 were rejected. The applicant submits that this is an error of law. The applicant submits that the Board must provide clear reasons as to why one portion of the evidence with respect to the abuse was accepted and the other portion was refused.
[15] The applicant submits that the Board gave no weight to the medical document from Nigeria based, in part, on concerns that the letter was addressed "to whom it may concern" and was written while the applicant was still in Nigeria. The applicant submits that these concerns were not raised at the hearing. The applicant submits that the Board erred in finding that the letter was written while the applicant was in Nigeria.
[16] The applicant submits that the Board erred by rejecting the Nigerian medical letter by concluding that "part of the medical opinion is based on hearsay", but the hearsay part of the opinion was not identified.
[17] The applicant submits that the Board could have found the applicant to be a Convention refugee even if she was found to be not credible as the Board has an obligation to consider the remaining credible evidence in order to determine if there is an objective basis for the applicant's fear of persecution.
Respondent's Submissions
[18] The respondent submits that the determinative issue in the applicant's claim was credibility. The respondent submits that the Board is entitled to significant deference, particularly when the credibility finding is based upon an assessment of a claimant's demeanour.
[19] The respondent submits that the Board is entitled to make an overall finding of lack of credibility notwithstanding that the entirety of the applicant's evidence was not rejected.
[20] The respondent submits that the Board appropriately gave no weight to the Nigerian medical report submitted by the applicant. The respondent submits that it was reasonably open to the Board to reject the report as it contradicted the claimant's testimony, and that it appeared to be based on hearsay.
[21] The respondent submits that the Board concluded there was no objective basis to the applicant's claim.
[22] The respondent submits that the Board made no finding regarding the availability of state protection to the applicant, rather simply noted that adequate state protection had been available to the applicant in the past.
[23] Issue
Was the decision of the Board unreasonable?
Relevant Statutory Provisions and Regulations
[24] The Immigration Act, R.S.C. 1985, c. I-2, as amended, defines a Convention refugee as follows:
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"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
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« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
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(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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Analysis and Decision
[25] The applicant raised a number of issues which she alleged were reviewable errors made by the Board. I propose to deal with those issues in the following manner.
[26] The medical letter from Nigeria
In its decision, the Board stated:
I give no weight to the medical letter from Nigeria for the following reasons. Firstly, part of the medical opinion expressed is based on hearsay. Secondly, the letter is contradictory to the claimant's testimony that, despite her pleas, the hospital refused to report to police. Thirdly, it is addressed "to whom it may concern" and is dated while the claimant was still in Nigeria. The letter indicates that police were contacted about the claimant's case and reports that, for policy reasons, the hospital declined an invitation to the court. I find it not plausible that a hospital would issue a letter to an anonymous recipient in an unknown place but refuse to cooperate with the local judicial system. I give the letter no weight. No reliable evidence is before me that the 1999 alleged rape occurred.
[27] The Board was in error when it said the letter was dated when the applicant was still in
Nigeria. However, I do not believe this is a material error. The Board's main concern with the report seems to be that the report states that the July 13, 1999 alleged rape was reported to the police "but the hospital declined an invitation to the court as is the policy of the management of the hospital", and that the letter contradicted the applicant's testimony which was to the effect that although the applicant wanted to report the alleged rape to the police the hospital would not report the incident. The applicant's testimony reads, in part, as follows:
RCO ... Counsel also asked if after ‘96, the claimant had gone back to the police. She stated: "No, because of the initial treatment and what happened to friends." So basically, she said she had gone to the police at one point in time and because of that initial treatment as well as what she had hear from her friends, she decided not to go back to the police again.
Now, however, we have documentary evidence that indicates otherwise. We have a letter from the Edward Specialist Hospital that says that she was sexually abused by her husband, examinations were done, they found lacerations as well as abrasions on the body and I believe it says this case was reported to the local police but the hospital declined an invitation to the court as was the policy of the management of the hospital. So it appears that the hospital did contact the police.
CLAIMANT No.
RCO Okay. Well, counsel can...
COUNSEL Yeah.
RCO ...at re-direct, can... It's the last sentence of the letter from the Edward Specialist Hospital where it says:
This case was reported to the local police station but the hospital declined an invitation to the court.
Is that to mean that this case did go to court and what were the results of this case?
...
KITCHENER Counsel, I will ask: Is that a question that you want to put...
...
COUNSEL To the claimant: We have a statement here that the case was reported to the local police. Who do you know or how did the police get to know?
CLAIMANT I was begging them to. They refused. I begged them in the hospital to bring the evidence (inaudible) let's go to the police and they refused. I don't know (inaudible).
KITCHENER I'm sorry?
CLAIMANT I was begging them to let us go to the police since they have - - they refused. They didn't - - I don't know - - they didn't. We didn't go.
...
CLAIMANT I was begging them, let us go. They didn't agree to go. It wasn't reported.
...
COUNSEL Why were you begging them to go the [sic] police? Why would you beg the hospital to go to the police?
CLAIMANT I told them I want to go to the police with this but they said that they would not go. Exactly what they said, that they would not go (inaudible).
COUNSEL And why would you be begging them knowing that the police were not going to do anything?
CLAIMANT Yeah, because of the rape. That's rape. At least for them, rape...
...
RCO They refused. Okay. So basically, what they're saying here is that they went to the police. She's saying she wasn't aware of that, that they had gone to the police?
COUNSEL Yes. Okay.
CLAIMANT They didn't go. (Inaudible). They refused to.
[28] The letter which is the applicant's own documentary evidence is clearly in conflict with respect to reporting the incident to police. The Board gave no weight to the medical report. In Pehtereva v. Canada (Minister of Citizenship and Immigration) (1995) 103 F.T.R. 200 (F.C.T.D.), MacKay J. stated at paragraph 15:
Assessing the weight to be given to evidence, including that of an expert, is a matter for determination by the tribunal that hears it. Only in a most extraordinary case would a court on judicial review intervene because of the weight assigned by the tribunal to evidence. Only where it is clear on review that the tribunal acted unreasonably, and in relation to evidence upon which its findings were found to be perverse, would a reviewing court intervene. These circumstances are not here established. Rather, it seems clear the tribunal assessed the evidence of the witness in question and determined that it would be given little weight, for reasons it made clear. The evidence of a person introduced as an expert is not entitled automatically to acceptance. Whether or not it is given credence, and the weight to be assigned to it, will depend upon its relevance and general consistency with other evidence, presented to the tribunal.
I am of the view that the Board's conclusion to give no weight to the medical report is one of the reasonable conclusions that the Board could have made and consequently, it is not the role of this Court to substitute its opinion for that of the Board as long as the Board's decision is not an unreasonable decision.
[29] Letter of Toronto Psychiatrist
The applicant tendered a letter from Dr. Ruth Baruch, a psychiatrist to the Board. The examination of the applicant by the doctor took place on March 2, 2001. The letter from Dr. Baruch contains the following conclusions:
Ms. Ekwueme is a 45 year old female who was subjected to years of domestic violence at the hands of her husband. This consisted in the form of humiliation, verbal as well as physical and sexual abuse. This combinated [sic] in a rape which occurred in 1999. As a result of this, Ms. Ekwueme is suffering from symptoms of Post Traumatic Stress Disorder as well as Dysthymia. She presents as chronically depressed and derives little satisfaction from her life. Her symptoms are aggravated by the separation from her children and worries about the children's future.
The Board wrote:
I accept the examining psychiatrist's description of the claimant as suffering from symptoms of Post Traumatic Stress Disorder as well as Dysthymia. I do not doubt that her symptoms are aggravated by the separation from her children. However, no evidence is before me that the claimant was subject to years of sexual abuse. The claimant has not lived with her husband for ten years. I have before me no reliable evidence that he raped her in 1999. Given these factors and my credibility findings,
I cannot accept the psychiatrist's impression that the claimant's symptoms arise as a result of years of domestic violence, including sexual abuse which "combinated [sic] in a rape which occurred in 1999".
[30] The Board had the opportunity to listen and to observe the applicant during approximately seven and one-half hours of testimony. The Board was thus in an excellent position to assess the applicant's credibility. The factual underpining for an expert's report must be established in evidence before the Board (see Danailo v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 1019 (QL) (F.C.T.D.)). Here, the Board did not accept the applicant's testimony about the 1999 incident. The determination of credibility is within the jurisdiction of the Board and is to be given much deference (see Tariq v. Canada (M.C.I.) [2001] F.C.J. No. 738 (QL); 2001 FCT 465).
[31] The applicant argues that the Board made a material error of fact by mischaracterizing Dr. Baruch's assessment and thereby rejecting the letter by stating "However, no evidence is before me that the claimant was subjected to years of sexual abuse." The Baruch letter states that the applicant "was subjected to years of domestic violence at the hands of her husband. This consisted in the form of . . . sexual abuse." In my view, it is clear that the Board did not make an error of fact in finding that the Baruch letter suggested that the applicant suffered "years of sexual abuse".
[32] Well-Founded Nature of Fear of Persecution
The applicant claims a well-founded fear of persecution in Nigeria based on many years of abuse from her husband.
[33] The Board points out that the applicant did not claim Convention refugee status until more than three weeks after she first arrived in Canada. As the applicant is intelligent, well-educated, and well travelled, the Board found "her delay to be not consistent with that which might reasonably be expected of a woman fleeing in fear for her life to seek international protection."
[34] The applicant's travels out of Nigeria is relevant in demonstrating the nature of the applicant's fear of her husband. The transcript of the Board hearing indicates:
COUNSEL Okay. In 1992, you were in which country?
CLAIMANT That's London.
COUNSEL Okay. And you went to live there in London, but from your Personal Information Form, it seems as if at that time, the abuse has started. Why would you go back to Nigeria?
CLAIMANT Because by 1991 (inaudible), I had already moved out . . .
COUNSEL M'hm.
CLAIMANT . . . of the house. I had my own apartment. I wasn't living under the same roof with him anymore.
. . .
COUNSEL Okay. So are you saying you didn't fear him then or you had no reason to?
CLAIMANT I feared him. That was why I moved to my own apartment and no more with him, that December.
COUNSEL And when did you return to him?
CLAIMANT I never returned to him after ‘91, to his house.
[35] This oral testimony indicates that the applicant believed that moving to her own apartment was an adequate solution to the abuse problems that had occurred up until 1992. The transcript further reads as follows:
COUNSEL So your last trip would be when after 1992?
CLAIMANT No. I didn't travel abroad again.
COUNSEL Oh! Okay.
KITCHENER But it would be to Ghana, I think; is that right?
CLAIMANT (Inaudible).
KITCHENER It would be to Ghana. You said that you went to Ghana...
CLAIMANT Oh, that one was when I went for my visa...
KITCHENER Yeah.
CLAIMANT ...in ‘99.
COUNSEL Okay.
CLAIMANT In 2000.
KITCHENER Yeah.
CLAIMANT In 2000, February.
COUNSEL Okay. So your last trip was 2000 to Ghana?
CLAIMANT To Ghana, yes.
COUNSEL Okay. And then when you went to Ghana, why did you return to Nigeria before you left?
CLAIMANT I went to Ghana to get a visa.
COUNSEL Okay.
CLAIMANT I had to come back to leave from Nigeria.
COUNSEL Why did you have come [sic] back to leave from Nigeria?
CLAIMANT Because that's the port of departure.
COUNSEL I know it was the port of departure but here, you were being stalked, you were being harassed, but yet, when you got a visa, you didn't leave from Ghana. Why didn't you leave from Ghana to go...
CLAIMANT Well, he didn't know I was going really, you know. All the time, I have to be hiding since that's - - since (inaudiable) I have been hiding. I wasn't staying in my house. I was up and down. He doesn't know where I was at any particular point in time.
COUNSEL Was it necessary for you to return to Ghana before you...
KITCHENER After Nigeria.
CLAIMANT After Nigeria?
COUNSEL After - - after you returned to Nigeria - - I'm sorry - - before you leave?
KITCHENER That's where what?
CLAIMANT They booked my ticket from Nigeria. My ticket to come, it was booked at my office, so it was from there.
COUNSEL Okay.
CLAIMANT Yes.
[36] I am of the view that given these responses by the applicant, it was not unreasonable for the Board to state the following in the decision:
I find internally inconsistent her evidence as to why, after she obtained a Canadian visitor's visa in Accra, she returned to the same apartment in Lagos and lived for over two weeks until her February 26, 2000 departure from Nigeria. She first testified that she thought Accra had no international airport. She then said that it did. Finally, she stated that she had to return to arrange with her sister for her sons' care. As well, I find not credible, her evidence that she gave no consideration to flying directly from Accra to Canada, in light of her alleged fear of death at the hands of her husband because of his July 1999 death threat.
[37] It was not unreasonable for the Board to find the applicant was not credible in claiming Convention refugee status (alleging that she is unable or unwilling to return to Nigeria on the basis of fear of persecution), yet having stated that she recently returned to Nigeria before leaving for Canada.
[38] In conclusion, I am of the opinion that the Board did not make a reviewable error in its decision.
[39] The application for judicial review is dismissed.
[40] Neither party wished to propose a serious question of general importance for certification.
ORDER
[41] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 30, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2485-01
STYLE OF CAUSE: Ada Domogo Ekwueme v. Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 20, 2002
REASONS FOR ORDER AND ORDER OF The Honourable Mr. Justice O'Keefe
DATED: April 30, 2002
APPEARANCES:
Ms. Helen Turner FOR APPLICANT
Mr. Matthew Oommen FOR RESPONDENT
SOLICITORS OF RECORD:
Helen Turner FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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