Date: 20090331
Docket: IMM-2787-08
Citation: 2009 FC 332
Toronto, Ontario,
March 31, 2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
NORBERT
OKOLI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Norbert
Okoli applied for judicial review of the June 2, 2008 decision of the Refugee
Protection Division denying his claim for Convention Refugee Status under
sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)
on the basis of being persecuted as a homosexual person in Nigeria.
[2]
The
Applicant is a citizen of Nigeria from Enugu. He says he is homosexual and fears
persecution from members of the Ogbete Traders Association and from the general
public in Nigeria. Mr. Okoli had worked in a
market in Nigeria as a member of the Ogbete
Traders Association. He first became involved in a homosexual relationship
with a trader in 1997. In 1998, he met Emeka and the two began a homosexual
relationship in 1999 that continued until 2005.
[3]
Mr. Okoli
says that because of his homosexual relationship he was persecuted by members
of the Ogbete Traders Association including two severe beatings, ongoing
harassment, forced intercourse with a prostitute, death threats and expulsion
from the Ogbete Traders Association. Around April 2005 his lover, Emeka,
approached a priest to ask if the two could be married. The proposed marriage
was disclosed to the local media and members of the Ogbete Traders Association
came searching for him and Emeka. The two went into hiding and fled from Nigeria separately. Mr. Okoli made
his way to Canada travelling on a false French
passport. He filed a claim for refugee status on June 18, 2005.
[4]
The
Refugee Protection Division board member denied his refugee claim on the basis that the
Applicant was not credible. The member concluded that Mr. Okoli does not have
a well-founded fear of persecution in Nigeria nor would he be subject
to personalised risk upon return. The member also found that an internal flight alternative
was available within Nigeria in Lagos City if the Applicant kept his
sexual orientation discreet.
[5]
In the
application for judicial review, the Applicant poses a question for
certification as follows:
“Is there a requirement under the 1951
convention Related to the Status of Refugees or under s. 97 of the Immigration
and Refugee Protection Act that an individual hide his/her sexual
orientation to avoid persecution?”
Background
[6]
The
Applicant says that an agent helped the Applicant to get to Canada and
recommended that he apply once inside the country rather than at the airport.
He was also advised that if there were any problems entering the country he
should say that he had made a refugee claim in the Netherlands so he would be
returned there rather than Nigeria. When the Applicant
claimed refugee status on arrival he told officials that he had made a claim in
the Netherlands. He was
kept in detention until November 2, 2005 for reasons of identity.
[7]
While
in detention, the Applicant was provided with the name of a lawyer who met with
him only briefly a couple of times. The Applicant alleges that this lawyer
told him that his story was “too sweet”, meaning that it would not be
believed. The Applicant says that he relied on the lawyer’s advice since he
was in detention. From July to September, the Applicant says that the lawyer
did very little on his case or in attempting to have him released. In
September, he requested a different lawyer.
[8]
After
release, with the assistance of his new lawyer, the Applicant submitted a
revised PIF which he states by affidavit is the true narrative. The Applicant
states that people in his community of Enugu, including
the Ogbete Traders Association, first found out about his sexual orientation in
1999 and that since then he has experienced serious beatings and threats, was
forced out of his home and was arrested by the police.
[9]
The
Applicant alleges that he became afraid that he would be killed in April 2005
after people found out that his partner, Emeka, had asked a local priest about
the two getting married. Emeka apparently provided the priest with a photo of
the couple and a letter. The media were informed and a gang from the Ogbete Traders Association
went hunting for both of them. They fled and went into in hiding in a village
before leaving the country separately. The Applicant does not know Emeka’s
whereabouts.
[10]
The
Applicant submitted a doctor’s medical report about numerous scars on his body
and a physiological report about the effects of the treatment he received.
The Decision Under Review
[11]
The
board member found that the Applicant was a trader in Enugu and that he
was homosexual. The board member did not dispute the findings of Dr. Ng with
respect to the Applicant’s numerous scars but concluded that there was
insufficient evidence that they were due to a beating because of his
homosexuality. He found that the Applicant was not credible due to
inconsistencies and contradictions between his testimony, the two versions of
his PIF, his Port of Entry (POE) Declaration and associated notes despite his
explanations about fear upon arrival, incompetent counsel and memory problems
for the inconsistencies.
[12]
The
board member rejected the Applicant’s explanation that he was stressed and
fearful at the Port of Entry. Instead, the member found that the Applicant
came to Canada with the
intent to mislead Canadian officials because he came as a visitor and only
applied for refugee status after his false French passport was challenged. As
such, the board member found any inconsistencies in the POE documents were
caused by his deception and getting caught, not stress or fear.
[13]
The
board member concluded that the Applicant did not provide credible or
trustworthy evidence to support his allegations about his first lawyer since he
did not make any complaint to the Law Society of Upper Canada or inform the
lawyer of the allegations to provide him with the opportunity to defend
himself.
[14]
The
board member found the Applicant’s explanation of memory problems to be unreasonable
because although the Applicant was able to provide details about his treatment
at the psychological evaluation, at the doctor’s office, and when asked by his
counsel at the hearing, he claimed memory problems when asked to clarify
inconsistencies by the board member.
[15]
The
board member found inconsistencies in the POE documentation and the two PIFs as
to the frequency and details of beatings. The board member also found that the
Applicant’s story about fleeing with his boyfriend varied in the different
accounts. The Applicant’s explanations were rejected. The board member found
it to be implausible, in the homophobic context of Nigeria, that Emeka
would ask a priest to marry them and also provide a photograph and letter which
could be used as evidence against them. No evidence of the alleged media
reports was provided. The board member concluded on a balance of probabilities
that the Applicant was not abused by the Ogbete Traders Association and
did not have his life threatened because of the plans to marry his homosexual
partner.
[16]
The
board member questioned whether the Applicant was even in Nigeria after
April/May 2004, as he had no documents proving he was there. This was found to
be critical as the final events were after that period and there was some
concern that the Applicant might have been in the Netherlands at that
time. The documentation and explanations of the Applicant were rejected as
unreasonable.
[17]
The
board member gave little weight to the psychological report because the Applicant’s
story was found not to be credible.
[18]
Finally,
after considering the documentary evidence and explaining why he gave the
weight he did to the various documents, the board member concluded that the
Applicant had a reasonable IFA in Lagos, “if he were discreet
about his sexuality”.
The Standard of Review
[19]
The
decision in Dunsmuir v. New Brunswick, 2008 SCC 9, has
established that there are now only two standards of review: correctness and
reasonableness, at para. 34. Where questions of fact and credibility are
reviewed, the standard of review is reasonableness (Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427 at para. 15).
[20]
A
claimant’s testimony is presumed to be true (Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para. 6). The
presumption may be refuted by the presence of inconsistencies and
contradictions in testimony, implausibility and where facts as presented are
not what could reasonably be expected (Jiang v. Canada (Minister of Citizenship
and Immigration), 2008 FC 775 at para. 15). Lastly, the Board is entitled
to deference in regard to its credibility determinations (R.K.L. v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para. 8).
[21]
The
parties agree that the reasonableness standard applies to all of the
questions. I agree that credibility findings are to be assessed on the
reasonableness standard (Aguirre v. Canada (M.C.I.), 2008 FC 571, at para.
14). The same is true for IFA findings (Khokhar v. Canada (M.C.I), 2008 FC 449, at paras.
21-22).
Issues
[22]
The
issues in this proceeding are:
1. Did the Board
member ignore or misapprehend the evidence such that the credibility findings
were unreasonable?
2. Was the Board
member’s IFA finding reasonable?
Analysis
Did
the board member ignore or misapprehend the evidence such that the credibility
findings were unreasonable?
[23]
The
Respondent submits that the board member is entitled to consider discrepancies
between the POE and the PIF and draw negative inferences from the omission of
significant events in the PIF (Oyebade v. Canada (M.C.I.), 2001 FCT 773).
[24]
The
details of the beatings, frequency and dates were not consistent in the various
sources. The Respondent submits that the board member did consider the
explanations for the inconsistencies, that is: the Applicant’s fear at the
POE, the incompetence and misrepresentation by former counsel, and the
Applicant’s memory problems. The Respondent submits that the board member gave
cogent reasons for his credibility findings.
[25]
The
Respondent submits that, given the generalised discrimination faced by
homosexuals in the country and the previous treatment received by the Applicant
and Emeka, it was reasonable for the board member to conclude that Emeka
approaching a priest to ask him about marriage was implausible.
[26]
The
Respondent submits that both the medical and psychological reports were
considered but properly given little weight because the Applicant’s allegations
were not found to be credible. In result the Respondent submits the Applicant
has not demonstrated that any error was made by the board member.
[27]
I
find the board member accepted several crucial elements of the Applicant’s
story: his sexual orientation, his scars, mistreatment of homosexuals in Nigeria and lack of
police protection for homosexuals. The board member’s overall credibility
findings about the Applicant are based almost entirely on inconsistencies
between the port of entry notes and the two versions of the PIF. The Applicant
was detained and asked for the details of his claim at the Port of Entry.
There were discrepancies over several interviews but the core of the
Applicant’s claim remained the same. The Applicant provided a PIF while in
detention and an amended PIF after release from detention.
[28]
The
Applicant provided an explanation for the amended PIF. The amendment was made
almost immediately after the Applicant found a new lawyer and was released from
detention (Giminez v. Canada (M.C.I), 2005 FC 1114). The board member may
not draw negative inferences from the fact of an amendment which was done in a
timely manner well before the hearing (Ameir v. Canada (M.C.I), 2005 FC 876). The
amended PIF merely expands on the original, rather than contradicting it. In
similar cases, this Court has concluded that such a change provides no reason
to question the credibility of the claimant (Puentes v. Canada (M.C.I.), 2007 FC 1335, para.
17-19). The amended PIF addresses the omissions directly, explaining why they
occurred. The board member’s role was to assess these explanations, rather
than point out the inconsistencies (Osman v. Canada (M.C.I.), [1993] F.C.J. No 1414, para.
12-13). The board member failed to assess the Applicant’s explanation.
[29]
The
board member disregarded the Applicant’s explanation about the change from the
initial PIF to the amended PIF because the Applicant had not made a complaint
to the Law Society or notified the previous counsel. However, at the hearing
the board member, after adjourning to consult legal counsel, indicated that he
would not be applying the policy requiring a complaint and notice.
Nevertheless he applied the policy in his decision.
[30]
As
an example of microscopic examination, the board member notes that the
Applicant did not mention that he had been tied to a pole when being beaten
with canes and electrical wires, as he did mention this to his doctor. The
Applicant was consistent in saying that he’d been attacked throughout the
proceedings and to conclude that the attacks did not happen because he did not
mention being tied to a pole is unreasonable. Where the evidence supports the
plausibility of the story, namely the medical report of numerous scars and the
reliable documentary evidence of homophobic attitudes in Nigeria, relatively
minor inconsistencies should not lead to a negative credibility finding (Mohacsi
v. Canada (M.C.I.), 2003
FCT 429, para.
20).
[31]
The
board member’s finding of implausibility with respect to Emeka’s approaching
the priest ignored the explanation provided. The Applicant’s companion did not
approach just any priest but rather a priest he thought was gay and would be
receptive to the idea. This may have been naïve, but is an explanation that
negates an implausibility conclusion.
[32]
The
board member did not dispute the medical report which confirmed numerous scars
on the Applicant’s body on the shoulder, biceps, abdomen, thigh and back. The
board member decided since the Applicant’s claim of beatings because of his
homosexual relationship was not credible, little weight should be assigned to
the medical report. The board member treated the psychological findings in
support of the Applicant’s claim in a similar fashion. In effect, the board
member discounted the medical and physiological reports submitted in support of
the Applicant’s credibility about the beatings as of little weight because the
member already decided the Applicant was not credible.
[33]
I
find the board member’s assessment of the Applicant’s credibility to be
unreasonable.
Did the board member err in finding an
internal flight arrangement in Lagos City?
[34]
The
Respondent submits that the onus is on the Applicant to demonstrate that he
does not have an IFA in Lagos City. The board member did not say that
the Applicant would have to give up his homosexual identity or lifestyle, just
that he would need to be discreet. According to the Respondent, an IFA is only
unreasonable when there is evidence that the life or safety of the Applicant
would be jeopardized (Ranganathan v. Canada (M.C.I.), [2000] F.C.J. 2118
(FCA)).
[35]
As I have
found the board member’s assessment of credibility to be flawed, it follows
that the assessment of an IFA on faulty fact finding is itself flawed.
[36]
The
board member found that the Applicant did not present sufficient credible
evidence that he would be personally targeted by the police or the public in Nigeria based on his
sexuality. Although he noted that the British-Danish Fact Finding Mission
Report stated that homosexuals in large cities in Nigeria have a well-founded
fear from the person’s local community and society at large, he preferred the
statement in the Report that homosexuals in larger cities may not have reason
to fear persecution as long as they do not present themselves as homosexuals in
public. The board member stated:
“There was no evidence to suggest that he [the Applicant] would have to remain
in hiding, should he live there, although, as with respect to certain elements
of his life in Canada, he would possibly have to
practice discretion with respect to his sexual orientation in Nigeria.” The Federal Court has
repeatedly found such findings perverse as they require an individual to
repress an immutable characteristic (Sadeghi-Pari v. Canada (M.C.I.), 2004 FC 282, para. 29).
[37]
I
find the board member’s conclusion that a viable IFA exists in Lagos City to be
unreasonable given the flawed credibility finding of facts and requirement that
the Applicant repress an immutable characteristic to live there.
Question for Certification
[38]
The
Applicant proposes a question for certification as a serious question of
general importance under s. 74(d) of IRPA. Since I have found the board
member erred on assessment of credibility, the facts of this application have
to be re-determined before any question could be considered for certification.
Conclusion
[39]
I have
found the board member erred in the assessment of the Applicant’s credibility
because he failed to consider the Applicant’s explanation for the amended PIF;
he acted contrary to his statement that he would not apply policy on
non-reporting the first lawyer’s misconduct; he failed to consider medical and
psychological evidence; and he conducted an overly microscopic examination of
the Applicant’s claim. Further, the board member erred in assessing an IFA
based on a faulty assessment of credibility and on an impermissible requirement
for concealment of a personal characteristic, the Applicant’s homosexuality.
Accordingly, the decision is unreasonable. The application for judicial review
is granted.
[40]
Given my
conclusion on the credibility findings in this matter, I do not consider it
appropriate to propose a question for certification.
JUDGMENT
THIS COURT ORDERS that:
1. The
application for judicial review is granted. The matter is remitted back for
re-determination by a differently constituted board.
2. No
question of general importance is certified.
“Leonard
S. Mandamin”
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