Date: 20110705
Docket: IMM-6502-10
Citation: 2011 FC 822
Ottawa,
Ontario, July 5, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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CHRISTIANA ABIODUN NAPOLEON
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board determining that Ms. Napoleon was neither a
Convention refugee nor a person in need of protection. The determinative
issues were credibility and the well-foundedness of the applicant’s fear.
[2]
The
applicant claimed that she feared two men. The first was Mr. Babangida, a 68-year old man she had been forced
to marry. She says that he raped her on their wedding night and accused her of
not being a virgin. She ran away and she says that he threatened her and her
family and sent his men to get her. She suggests that he was responsible for
the death of her boyfriend, father, and sister, and for beating her mother. The
applicant claimed that she fled and remained in hiding at her aunts’ homes and
other locations. The second man she fears is her uncle, Samson Ekundayo, who
she says threatened that if she refused to sleep with him he would allow Mr.
Babangida to come get her. He then raped her. After coming to Canada and
submitting her first Personal Information Form (PIF), Ms. Napoleon found out
that she was pregnant from this rape and gave birth to an albino daughter. She
claimed that both Mr. Babangida and her uncle have threatened her in Canada. She
reported these threats to the Toronto police.
[3]
The Board determined that there
was insufficient credible and trustworthy evidence with regards to pivotal
areas of Ms. Napoleon’s oral and written evidence. Although the Board noted
that none of the credibility concerns standing alone were sufficient to negate her
claim, the cumulative effect of all of them was such that the Board did not
have sufficient credible and trustworthy evidence upon which to base a
determination that she was a Convention refugee.
[4]
The Board found that Ms.
Napoleon’s credibility was compromised by contradictions between her oral
testimony and the Port of Entry notes regarding her prior knowledge of Mr.
Babangida. She testified that the first time she heard of Mr. Babangida was on
her wedding day, whereas during the Port of Entry interview she gave
considerable details regarding Mr. Babangida’s longstanding previous association
with her family, including that he paid her father’s medical bills and her and
her siblings’ tuition fees. The Board did not accept Ms. Napoleon’s attempt to
explain the discrepancy by stating that she was frightened of and misunderstood
the interviewing officer, or that she thought Mr. Babangida had arranged for
the Canadian authorities to apprehend her. The Board noted that:
(i)
while a person being detained
might be frightened, this did not explain giving a detailed account of Mr.
Babangida’s financial involvement with her family;
(ii)
the interview took place the day
after the applicant arrived in Canada;
(iii)
if the applicant really did fear
that Mr. Babangida had influenced Canadian officials, as she claimed, she would
not have identified him as the person from whom she feared persecution;
(iv)
it was unlikely the applicant and
interviewing officer had trouble understanding one another given that the
officer’s notes stated that he confirmed with her that she did not need an
interpreter and that at the end of the interview the officer noted that she had
stated no concerns understanding his questions and had sought clarification
where necessary;
(v)
the applicant was given the
opportunity to write out her account not because the officer did not understand
her, but because it is common practice to do so; and
(vi)
although trauma may impair a
person’s memory or make it difficult to describe certain events, it does not
account for the detailed Port of Entry account regarding Mr. Babangida, who the
applicant later testified she had not previously known; also, the psychology articles
submitted by the applicant related to the suppression of details, not the giving
of detailed information and then denying it.
[14]
The Board noted that an important
indicator of credibility is whether a witness can tell her particular story the
same way over time. The Board found Ms. Napoleon again not credible because of
inconsistencies between her Port of Entry notes and PIF regarding the events
after the wedding night. The Port of Entry notes explained that she went to
her school and learned that Mr. Babangida’s men had been there looking for her,
whereas this event is omitted from her PIF and in her oral testimony she denied
returning to her school. The Board did not accept Ms. Napoleon’s explanation
that she had never traveled before and that her “head would say anything.”
Again, the Board noted that while her confused mental state could account for
forgetting to include information, it could not be an explanation for providing
information at the Port of Entry she later testified was not true. The Board
concluded the applicant was embellishing her claim at the Port of Entry and
then could not keep the story straight when writing her PIF narrative.
[15]
The Board found a number of
allegations made by Ms. Napoleon not to be credible:
(i)
That Mr. Babangida threatened her
life or is an agent of persecution; the Board was not persuaded that the
applicant could avoid being found for 10 months given that Mr. Babangida’s men
allegedly knew the locations of both of her aunts’ homes, where she often hid.
The Board also found it improbable that the applicant could escape from five
men numerous times by jumping out a window, or that she would be sent back to
her aunt’s home where the men knew she had been and where the family had been
beaten.
(ii)
That Mr. Babangida and Mr.
Ekundayo threatened the applicant since she arrived in Canada; the Board did
not believe the applicant’s testimony that these individuals would join forces
given that Mr. Babangida’s men beat Mr. Ekundayo and his family and that Mr.
Ekundayo harboured, and then raped, Mr. Babangida’s wife (the applicant).
(iii)
That Mr. Babangida’s men were
pursuing her; the Board did not find it probable that the applicant would have
opened the door when she heard a knock (from one of Mr. Babangida’s men) given
her testimony that she was always scared and that whenever there was an unusual
knock she would run away through the window.
(iv)
That the applicant’s boyfriend,
father, and sister died because of Mr. Babangida’s actions; the Board found that
the applicant embellished her claim with these allegations. The Board noted
that the applicant had not provided documentation regarding any of these
deaths, contrary to the Rule 7 of the Refugee Protection Division Rules,
SOR/2002-228, which requires an applicant to provide documents or an
explanation for their absence and steps taken to obtain them. The Board found
that the applicant could have obtained such documents given that she had the
assistance of counsel, that her brother sent her other documents, and that the
applicant has sixteen siblings who could have assisted her with obtaining
documentation.
(v)
That Mr. Babangida or Mr. Ekundayo
made threatening phone calls to her in Canada; the Board acknowledged documents from the Toronto
Police Service, a daycare worker, and an employee of a legal aid clinic to this
effect, but gave little weight to them given their lack of detail. The Board
accepted that the applicant made a report to police but found the applicant’s
inconsistencies and lack of credibility extended to her allegations made to the
police regarding threats over the phone.
[16]
The Board noted a letter provided
by Dr. Akinfemiwa Akinlabi James, a doctor from City Specialist Hospital in
Nigeria, regarding the applicant’s mother’s injuries, but found the letter
unreliable due to significant spelling and grammatical errors, lack of a date,
lack of city on the letterhead, and the prevalence of fraudulent documents in Nigeria.
[17]
The Board also noted documents submitted
by the applicant from medical professionals and social service agencies, and it
specifically discussed a psychiatric report. The Board accepted the diagnosis
but found that the doctor was not in a position to know whether the events
described by the applicant actually occurred. The Board cited case law holding
that such evidence cannot cure all deficiencies in a claimant’s testimony: Danailov
v Canada (Minister of Employment and Immigration), [1993] FCJ No 1019 (TD),
Rokni v Canada (Minister of Citizenship and Immigration), [1995] FCJ No
182 (TD). The Board held that given that the applicant’s claim was not
credible, the medical and social service evidence had little probative value. Accordingly,
the applicant’s claim was rejected.
Issues
[18]
The applicant raises two issues:
1. Did
the Board err in its treatment of the psychological and social service
evidence?
2. Did the
Board err by making perverse credibility and plausibility findings?
1. Psychological and Social Service Evidence
[19]
Ms. Napoleon filed evidence from
six mental health professionals and social service agencies, including a
psychiatrist, psychologist, and YWCA and Children’s Aid Society counselors.
She says that the Board erred by reasoning backwards and rejecting the
documents because of a negative credibility finding. She says this approach is
perverse and that the Board had to consider the psychological evidence as part
of her credibility, not after already finding that she lacked credibility. She
further submits that the Board erred by rejecting all the psychological and
social service evidence for the same reason, even though it expressly
considered only one of the documents. According to the applicant, by so doing
the Board ignored the totality of the evidence given that the documents could
not all be rejected for the same reason since they said different things.
[20]
Ms. Napoleon says that the Board
only paid “lip service” to her testimonial difficulties, contrary to the Chairperson’s
Guideline Women Refugee Claimants Fearing Gender-Related Persecution and
the Guideline on Procedures With Respect to Vulnerable Persons Appearing
Before the IRB.
[21]
Lastly, she submits that the Board
erred by implicitly dismissing and disbelieving the evidence of the applicant’s
YWCA counselor despite forfeiting an opportunity to cross-examine her. The
applicant suggests that this finding implies that she has been lying to her
therapist through months of therapy, and argues that the Board should have
cross-examined the counselor to determine whether the applicant was a malingerer.
[22]
I accept none of these submissions.
The Board quite reasonably determined that the persons who provided the
psychological and social service evidence were not in a position to know
whether the allegations made by the applicant were true. They worked with her
to assist and to diagnose her; their role was not to judge the credibility of
her narrative – this was the Board’s role. Moreover, the professionals were in
no better position to judge the truth of the relevant events than the Board,
especially given that they did not have before them all the evidence that the
Board did. Despite the applicant’s allegations of “reasoning backwards,” it
was quite appropriate for the Board to assess the psychological and social
service evidence in light of its earlier negative credibility findings. As
noted by Justice Reed in Danailov, above, at para. 2:
With respect
to the assessment of the doctor's evidence, to find that that opinion evidence
is only as valid as the truth of the facts on which it is based, is always a
valid way of evaluating opinion evidence. If the panel does not believe the
underlying facts it is entirely open to it to assess the opinion evidence as it
did.
[23]
The Board did not err by rejecting
all the evidence for the same reason even though it expressly considered only one
document. All of the documents were rejected for the same reason: because the
facts upon which they were based were found not to be credible. Any
differences between the documents were irrelevant to this determination.
[24]
There is also no basis for the
submission that the procedural accommodations granted to the applicant amounted
to mere “lip service” to the applicant’s testimonial difficulties and the Guidelines.
The record simply does not bear out the allegation made; further, reverse-order
questioning, in particular, was a significant benefit intended to ease the
applicant’s stress.
[25]
Lastly, the Board’s decision to
assign little probative value to the YWCA’s counselor’s testimony did not
amount to disbelieving the counselor herself, but rather constituted a finding
that the information upon which her testimony was based, information provided
by the applicant, was problematic. Cross-examination would not have changed
this finding.
2. Perverse credibility and plausibility findings
[26]
The applicant submits that it was
unreasonable for the Board to dismiss her corroborating evidence, namely
documents establishing that she had reported phone threats from her uncle and
husband to the Toronto police. The Board accepted that the applicant made a
police report in Toronto but found that her lack of credibility extended to
the allegations she made to the police. Contrary to the applicant’s
submission, I find nothing “backward” in the Board’s reasoning in this
respect. The underlying facts of the report came from the applicant and the
Board did not believe them. Contrary to the applicant’s submissions, the Board
did give reasons for rejecting this evidence. Finally, although the applicant
argues that police are experts in crime and assessing witness credibility,
their role is not the same as the Board’s. The Board is specifically tasked
with determining the credibility of a narrative in the context of refugee
protection and with the advantage of Port of Entry notes, a PIF, and a formal
oral hearing.
[27]
I also do not accept the
applicant’s submission that the Board unreasonably discredited the medical
evidence of the October 2009 attack on her mother by ignoring the accompanying
photograph of her mother and by suggesting that the hospital document was fraudulent
merely because of spelling and grammatical errors, lack of date, lack of city
name, and because of the prevalence of fraudulent documents in Nigeria.
[28]
The Board’s finding with respect
to the doctor’s note was reasonable. In addition to being riddled with
grammatical errors, “x-ray” is
spelled “ex-ray.” It was not unreasonable for the Board to assume that a
Nigerian doctor would know the correct spelling of a basic medical term. Given the Board’s finding that the doctor’s note was
fraudulent and its determination that the applicant’s narrative was not
credible, the Board was not required to specifically consider the photograph of
the applicant’s mother.
[29]
The applicant attempts to excuse
the absence of documentation regarding the deaths of her boyfriend, sister, and
father with speculation that the Board would not have accepted it as genuine.
It is up to the Board to determine the genuineness of documents and to weigh
them, and where documents or a reasonable explanation for their absence are not
provided, it is open to the Board to draw a negative inference. Here the Board
reasonably found that documentation could have been obtained given that the
applicant had many family members in Nigeria.
[30]
The Board did not “over-rely” on
Port of Entry notes, and the contradictions in the applicant’s evidence were
not peripheral, but were directed to important aspects of the applicant’s
narrative and to her alleged fears in Nigeria. It is common and completely proper for the Board to
compare a claimant’s evidence from the Port of Entry, PIF, and oral testimony.
The Board’s finding that the applicant’s distressed mental state was not a
reasonable explanation for her provision of detailed false information was
reasonable and did not amount to an impermissible “expert psychological
finding”; rather, it was the Board’s assessment of the evidence before it,
which it was entitled to weigh. The Board considered the applicant’s
explanations, the Guidelines, and the fact that the officer’s notes
confirmed that the officer and applicant understood each other, and reasonably
determined that the applicant’s explanation was unsatisfactory. Importantly,
the discrepancy in the Port of Entry notes was only one of several problems
with the applicant’s evidence which led the Board to its adverse credibility
determination.
[31]
The excerpt from the transcript
reproduced by the applicant at para. 42 of her Memorandum does not establish
that the Board accepted that the rape by her uncle occurred. It merely
establishes that, once the applicant had identified the location and the
perpetrator of the alleged rape, the Board did not consider it necessary for
her to provide explicit details of the assault. There was no violation of
natural justice in the fact that the Board did not probe the applicant for
further details of the rape, especially given that the Board’s negative
credibility findings did not relate to this incident. Just because the Board
does not demand intimate details of a painful experience does not mean that the
Board is compelled to accept that the experience happened in the face of
overwhelming credibility concerns arising from various other aspects of an
applicant’s claim.
[32]
It is clear that the Board found
the applicant to be devoid of credibility in almost every conceivable way:
based on contradictions in her evidence, based on implausibilities in her
narrative, based on her failure to provide relevant documentation without a
reasonable explanation, and based on her use of documents found by the Board to
be fraudulent. The applicant was found, reasonably, to be thoroughly
unreliable, and accordingly none of her evidence was found to be credible. For
all of the reasons noted above, this finding was reasonable and this
application must be dismissed.
[33]
No question was proposed for
certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed
and no question is certified.
“Russel W. Zinn”
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