Date: 20090514
Docket: IMM-4856-08
Citation: 2009 FC 501
Montréal, Quebec, May 14, 2009
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ADEDAYO
ODETOYINBO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The applicant, a
citizen of Nigeria, challenges the legality of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) dated
October 7, 2008, wherein the Board held he was not a Convention refugee or
a person in need of protection. The applicant’s claim is based on his
alleged bisexuality. Since homosexuality is illegal in Nigeria, the applicant
fears persecution because of his sexual orientation.
[2]
The only question
before the Court is whether the Board’s dismissal of the applicant’s claim on the basis of a lack of credibility is
reasonable in the circumstances.
[3]
How the Board weighed
and assessed the evidence at the hearing is a question of fact.
Accordingly, it should be reviewed on a standard of reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir)).
Provided the decision “falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”, this Court will not
intervene (Dunsmuir at para. 47; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 at para. 59, [2009] S.C.J. No. 12 (Khosa)). Moreover,
unless the credibility findings were made capriciously or without supporting evidence, or the Board did not provide
sufficient
reasons in clear and unmistakable terms to conclude as it did, this Court would
owe these findings the highest degree of deference (paragraph 18.1(4)(d)
of the Federal Courts Act, R.S.C., 1985, c. F-7, as further confirmed in
Dunsmuir (Khosa at para. 46)).
[4]
At
the opening of the hearing before the Board, the presiding member clearly sets
out the issues of the present case as follows:
… the hearing today should particularly
focus on the following issues: The identity of the claimant as bi-sexual, as a
bi-sexual person, and [the claimant’s]
credibility in
general. …
[5]
At
the hearing, the applicant was questioned at length both about his bisexuality and the
facts which led him to flee Nigeria. With respect to the first matter, the applicant was asked about the moment at
which he initially realized that he was bisexual, the number of partners he
had, if and when he had revealed his bisexuality to the members of his family,
if his partners disclosed their sexual orientation
to their families, the existence in Nigeria of organizations devoted to
homosexual rights advocacy, his personal knowledge of the law condemning
homosexuality in Nigeria and of people having
been tried
or arrested pursuant to this law, his current partner since his arrival in
Canada and his knowledge of the gay community in Canada.
[6]
Unfortunately,
despite extensive questioning at the hearing on the identity of the applicant
as a bisexual person, the Board’s
reasons are totally silent on this key issue of the applicant’s claim. Having
closely reviewed the tribunal’s record, including the transcripts and
documentary evidence, overall, I find the Board’s conclusion unreasonable.
Notwithstanding the Board’s negative credibility findings with regards to the
events causing the applicant to flee Nigeria, an assessment of the applicant’s
sexual orientation both in Nigeria and in Canada was nevertheless necessary
considering the documentary evidence on record pertaining to the persecution of
homosexuals in Nigeria, and the elaborate testimony of the applicant on this
very central issue of his claim (which incidentally was corroborated by the
letters produced by the applicant). Accordingly, the Board’s failure to make an
explicit determination as to the applicant’s bisexuality constitutes a
reviewable error and justifies a redetermination of the applicant’s claim (Burgos-Rojas
v. Canada (Minister of Citizenship and Immigration), 162 F.T.R. 157,
[1999] F.C.J. No. 88); Alemu v. Canada (Minister of Citizenship and
Immigration)., 2004 FC 997 at paras. 45 and 46, [2004] F.C.J. No. 1210).
[7]
It is well settled that an adverse credibility finding, though it
may be conclusive of a refugee claim under section 96 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), is not necessarily
conclusive of a claim under subsection 97(1). The reason for this is that the
evidence necessary to establish a claim under section 97 differs from that required under section 96
(Jarada v. Canada (Minister of Citizenship and Immigration), 2005
FC 409, [2005] F.C. J.
No. 506). When considering section 97, the Board must decide whether the
claimant's removal would subject him personally to the dangers and risks
stipulated in paragraphs 97(1)(a) and (b) of the Act (Bouaouni v. Canada (Minister
of Citizenship and Immigration),
2003 FC 1211,
[2003] F.C.J. No. 1540). Further, there are objective and subjective components
to section 96, which is not the case for paragraph 97(1)(a):
a person relying on this paragraph must show on a balance of probabilities that
he or she is more likely than not to be persecuted (Chan v.
Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593,
[1995] S.C.J. No. 78; Li
v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 1, [2005] F.C.J. No. 1).
[8]
It
must be stressed that the claimant’s fear of persecution or individualised risk
must be evaluated in light of or take into account what is generally known
about conditions and the laws in the claimant’s country of origin, as well as
the experiences of similarly situated persons in that country. In the case at
bar the Board did not explicitly state in its reasons that it did not believe
that the applicant was bisexual. Accordingly, it could not ignore compelling objective
evidence on record demonstrating the abuses which gay men are subjected to in Nigeria.
Therefore, even if the Board rejected the applicant’s account of what happened
to him in Nigeria, it still had a duty to consider whether the
applicant’s sexual orientation would put him personally at risk in his country.
[9]
Therefore, the
application will be allowed and returned to the Board for redetermination by a
different member. There is no question for certification.
Email this Content