Date: 20110930
Docket: IMM-604-11
Citation: 2011 FC 1122
Ottawa, Ontario, September 30, 2011
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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ETUNE VERA
AWOLO
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant’s refugee claim was dismissed by
the Refugee Protection Division of the Immigration and Refugee Board,
principally on the basis of its assessment of implausibilities in her story.
The Member found that she had fabricated the evidence in support of her fear of
forced female genital mutilation.
[2]
The applicant’s evidence was as follows. She is
a 22 year-old woman born in the village of Asaba, Nigeria,
to a very poor family. In order for her to go to elementary school, her father
borrowed money from Chief Obinna. The loan could not be repaid and on October
19, 2007 the Chief and his bodyguards went to the applicant’s home and beat her
father causing him to die the following day.
[3]
Since the family could not repay the loan, the
applicant’s uncle, the new head of the family since his brother’s death,
proposed that she marry the Chief. The applicant was opposed to marrying the
Chief because he was 75 years of age and because he demanded that she be
circumcised before marriage.
[4]
The applicant was forced to go to the Chief’s
house by her uncle in February 2008. The Chief, in turn, drove her to the home
of an old woman in the village in order that she be circumcised. The woman
took the applicant to a separate room, apparently to confirm that she had not
been circumcised. After having made the confirmation, the old woman left the
applicant and went to speak to the Chief, at which point the applicant escaped
from the house.
[5]
The applicant went to the neighbouring village of Oko
where she hid for about three months. There she met Auntie Nnenna who was
visiting. Auntie Nnenna contacted the police on the applicant’s behalf, but
they declined to take action, stating that the applicant’s situation was a
matter of tradition. Auntie Nnenna then took the applicant to her home in
Lagos where they stayed until arrangements were made to remove her from Nigeria.
[6]
Auntie Nnenna bought a plane ticket and provided
the applicant with a Canadian passport. On her way to Canada, the applicant was stopped by United States immigration authorities on a stopover. The applicant was detained
there from August 29, 2008, to January 21, 2009. Upon her release, she was
advised by her counsel that her claim would likely not succeed. Fearing
persecution upon return to Nigeria, she made arrangements to come to Canada. She arrived on March 31, 2009, and
made a claim for protection the same day.
[7]
As noted, a critical aspect of the Board’s
decision was that it did not accept the applicant’s evidence regarding the
attempt to have her circumcised; it found that she had fabricated that part of
her story in order to enhance her claim.
[8]
The Board set out two aspects of the
circumcision story it found to be implausible.
[9]
The Board stated that “it is implausible that
this painful procedure, which the claimant was resistant to, would be carried
out by one woman in her home.” In my view, the Board’s statement as to the
implausibility of one person doing the procedure is reasonably valid; however,
there was no evidence at all that the woman would be doing the procedure alone
and not having assistance in performing the circumcision. The Board asked no
question in this respect of the applicant. It is unreasonable to reject
evidence as implausible unless the reason why it is found to be implausible is
either obvious or is supported by other evidence before the Board. In this particular
situation, no evidence was before the Board that the old woman would be
performing the procedure herself. Rather, the Board assumed that the woman
would be performing the procedure without assistance. There was simply nothing
on which it could reasonably base that assumption.
[10]
The Board found “[e]qually implausible was the
testimony that the Chief, who, according to the claimant, is wealthy and
powerful, would drive the reluctant claimant to the old woman’s house without
the assistance of a driver or bodyguards”. No explanation is offered by the
Board as to why this is implausible. Counsel for the respondent suggested that
a driver or bodyguard would be needed as the applicant was opposed to the
circumcision and might be expected to flee or to be uncooperative. That may be
the reason for the Board’s finding; however, it should not be left to counsel
or the Court to speculate. In any event, even if that was the basis for the
Board’s finding of implausibility, it assumes that the Chief knew that the
applicant was opposed to being circumcised. There is no evidence at all in the
record as to whether the Chief knew that the applicant was opposed either to the
marriage or to the circumcision. The Board never asked the questions necessary
to establish a factual base on which to support its assumption that the Chief
was knowledgeable about these aspects of the proposed marriage and would
therefore have arranged to have others accompany the applicant to ensure she
did not escape. Absent that evidentiary foundation, the implausibility finding
is unreasonable.
[11]
There are other aspects of the decision that are
troublesome. The most serious of which is the following statement:
It has now been almost three years since the claimant fled [the
Chief’s] proposal, and according to her testimony he would be 78 years of age.
It is implausible that the Chief would continue to mount an extensive search for
the claimant, three years on. Were he desirous of another wife, it would seem
he has the means and influence to easily procure one.
[12]
The Board Member is engaging in utter
speculation as to the motive, behaviour and personality of the Chief. This
statement assumes that the Chief viewed the applicant to be nothing more than
another wife and ignores whether the Chief had an interest for other reasons in
the applicant. The only evidence in this regard was that the marriage was to
be a repayment of an unpaid debt. In my view, it is unreasonable in those
circumstances to view the applicant as merely another wife.
[13]
Simply put, the Court finds that the Board
Member’s decision is based on assumptions and suppositions and speculations,
none of which are founded in the evidence. This decision must be set aside.
[14]
Neither party proposed a question for
certification. There are none.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the applicant’s claim for
refugee protection is referred to a differently constituted Board for
determination, and no question is certified.
“Russel W. Zinn”
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