Date: 20070326
Docket: IMM-4120-06
Citation: 2007
FC 315
Montreal, Quebec, March 26, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MARIA
OBIANUJU MORKA
Applicant
and
THE
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Immigration and Refugee
Board (the Board) rendered July 6, 2006, wherein the applicant was found not to
be a Convention refugee or a person in need of protection pursuant to sections
96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27
(the Act).
[2]
The
applicant, a citizen of Nigeria, claims to have a
well-founded fear of persecution by reason of her religion (Christianity) and
her membership in a particular social group (women in Nigeria). She alleges that after her father
died, an older man to whom her father owed 200,000 nairas wanted her to
marry him in payment for the loan. Her mother and some friends accompanied her
to his house on August 10th, 2000. After staying there for a few
days, the applicant fled to Kano state, but was found by women
belonging to the Izala group after a week. After bringing her back to the man’s
house, they threatened to kill her if she attempted to leave him.
[3]
The
applicant alleges that she ran away to Kaduna, where she started seeing a man
from Benue state named Stephen Ogwuche.
After bringing her to his village, he forced her to have sexual relations with
his brother, according to the custom in that area. After she ran away to Kaduna, Ogwuche threatened her and beat
her. She was able to escape to Lagos, where she converted to
Christianity. However, after hearing this news, women from the Izala group
threatened to kill her for converting and for refusing to marry the older man. After
spending two months in Senegal, she traveled to Morocco and arrived in Canada on November 22, 2004 where she claimed
refugee status.
[4]
The Board
rejected the applicant’s claim. It found that she had failed to establish her
identity. It also found that she lacked credibility, specifically on her
whereabouts from 2000 to the time of her departure from her country in
September of 2004, and on her subjective fear. In particular, the Board did
not find it plausible that the alleged incident of rape had occurred and also
found there was insufficient evidence to establish that she had converted to
Christianity.
[5]
The applicant now challenges the Board’s findings on three grounds.
First, the applicant contends that the Board erred in finding that she had
failed to establish her identity and her religious affiliation. Second, she
submits that the Board erred in its assessment of her credibility. Third, she
contends that the Board did not properly address the fact that she would face
persecution upon her return to Nigeria due to her status as a single mother.
[6]
Section
106 of the Act provides that with respect to the credibility of a claimant, the
Board must take into account whether the claimant possesses acceptable
documentation establishing identity, and if not, whether they have provided a
reasonable explanation for the lack of documentation or have taken reasonable
steps to obtain the documentation. Furthermore, Rule 7 of the Refugee Protection
Division Rules, SOR/2002-228 provides that the claimant must provide
acceptable documents establishing identity. A claimant who is unable to do so
must explain why they were not provided and what steps were taken to obtain
them.
[7]
In the
case at bar, in support of her identity, the applicant provided an affidavit
that was faxed to the Nigerian High Commission (NHC) located in Ottawa in which
the deponent, identifying himself as her uncle, states her date of birth as
being December 31st, 1985. Before the Board, however, the applicant
testified that it was her brother-in-law who had sworn the affidavit. When the
Board questioned the applicant about this contradiction, she provided what the
Board considered “a confusing response”, saying that she did not know what her
brother-in-law told the NHC and that she did not know whether they had spoken
in English or in Hausa. The Board acknowledged that confusion could sometimes arise
due to language barriers, but that this was not the case here, as the affidavit
had been prepared in Nigeria and consequently, no
conversation would have taken place between the NHC and her brother-in-law in preparing
the affidavit. The Board pointed out that none of the sisters listed on the
applicant’s Personal Information Form (PIF) carried the deponent’s last name. It
also found it implausible that a document of this nature would be unsigned.
Moreover, the documentary evidence was to the effect that it is easy to obtain
fraudulent documents in Nigeria. Based on this evidence, the
Board concluded that the affidavit had been fraudulently obtained and assigned
no probative value to it.
[8]
Given that
the applicant’s emergency travel certificate (ETC) had been issued based on
this affidavit, the Board also found that this document had been fraudulently
obtained and disregarded it. As for the applicant’s employment card, the Board
noted that it was missing security features, such as authorized signatures, the
date of issue, the applicant’s date of birth, as well as her signature. The
Board found that this third document had also been fraudulently obtained. In
the absence of no other reliable identity documents, the Board did not believe
the applicant was the person she claimed to be, except that she was a Nigerian
citizen.
[9]
The
applicant now contends that the Board placed too much emphasis on the fact that
the affidavit was unsigned and that she should not have to explain a clerical
error that was committed by the state judiciary. She also points out that the
NHC issued the applicant’s ETC on the basis of the affidavit. Therefore, it is
plausible to assume that an unsigned affidavit is acceptable to the government
of Nigeria.
[10]
Although
in matters relating to the establishment of identity, the Board must not be so
strict that the acceptance of exhibits filed by a refugee claimant must depend
on North American logic and reasoning, it can certainly draw an unfavourable
conclusion regarding the applicant’s credibility if on their very face, it is
apparent that the documents have various anomalies and that the applicant is
unable to give satisfactory explanations in this regard (Umba v. Canada (Minister of Citizenship and
Immigration),
2004 FC 25, at para. 45; Yogeswaran v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 48 at paras. 28-30 (F.C.T.D)(QL)).
[11]
Apart from
the three documents mentioned above, the applicant did not provide any other
documents. She testified that she had lost her birth certificate in a fire
during the Sharia crisis in 1995 when she was 16 or 17 years old. The Board
pointed out that as she had been born in 1985, she would have been ten years
old at the time. She also testified that she could not obtain any school
records, as she had to obtain these in person and the college did not keep
records of students’ marks. The Board found it implausible that a college would
not keep such records and pointed out that in any event, the applicant had not
made any efforts to obtain them. Lastly, the Board noted that the applicant did
not provide any evidence proving that she had converted to Christianity, such
as a baptism certificate or a letter from her church. In sum, the Board was not
satisfied by the applicant’s explanations for the lack of documentation and did
not find that she had taken reasonable steps to obtain the documentation.
[12]
Consequently,
the Board had doubts as to the applicant’s identity and religious affiliation.
These findings were supported by the evidence and I find them reasonable under
the circumstances.
[13]
Before
this Court, applicant’s counsel referred to the fact that the applicant had
been detained by the immigration authorities after her arrival in Canada for the purpose of
establishing her identity. Three detention reviews were held (November 30,
2004, December 24, 2004 and January 19, 2005). She was finally released
after the Minister was satisfied of her identity: “They verified with the High
Commission of Nigeria in Canada and they clarified your
identity…” (decision of the Immigration Division, dated January 19, 2005, certified
tribunal record, page 197). Accordingly, applicant’s counsel submitted at the
hearing before this Court that the Board should have accepted the affidavit as
valid proof of her true identity. I indicated to counsel at the hearing that I
would not consider this entirely new argument as it was not raised in the
applicant’s memorandum. Be that as it may, even if I would have accepted applicant’s
submission that a reviewable error was made by the Board with respect to the applicant’s
identity, the applicant has not satisfied me that the Board’s reasons for
disbelieving the applicant’s story, including her religious affiliation, are
patently unreasonable.
[14]
It is now
trite law that the Board has expertise in the determination of questions of
fact, particularly in the evaluation of credibility and the subjective fear of
persecution of the applicant (Rahaman v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 1800 at para. 38 (F.C.T.D.)(QL); Cepada-Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at
para. 14 (F.C.T.D.)(QL). It is entitled to draw negative inferences on an
applicant’s credibility based on implausibilities in the applicant’s story (Aguebor
v. Canada (Minister of Employment and
Immigration),
[1993] 160 N.R. 315 (F.C.A.). As such, the Court will not substitute its
decision for that of the Board’s when the applicant has failed to prove that
the Board’s decision was based on an erroneous finding of fact that it made in
a perverse or capricious manner or that the decision was made without regard
for the material before it. The standard of review for such findings of
credibility is therefore that of patent unreasonableness.
[16]
The applicant
has argued in her memorandum that she should not be penalized for following the
instructions of her former counsel, who had informed her that this aspect of
her story was unimportant. I note that no evidence has been tendered by her to
the effect that former counsel was incompetent. At the hearing, applicant’s new
counsel insisted on the fact that since the applicant was detained, her former counsel
had not had the time to clarify the missing information with the applicant. Be
that as it may, I note that this was not the only aspect of the applicant’s claim
that the Board considered questionable. Indeed, the Board also found that the
fear of persecution was not justified and was based largely on speculation. For
example, the applicant testified that while she was staying with a friend in Lagos, suspicious people came by while she was
away. Her neighbour informed her friend of this incident and identified them as
being Muslim, but the applicant admitted that her friend never spoke with them
and she did not tell her how many people there were or how the neighbour knew
they were Muslim. She also testified that they never returned after this
incident. In addition, she never informed police of this occurrence. As such,
the Board was not satisfied that her fear of persecution was justified. In my
view, this finding was open to the Board and is not patently unreasonable.
[17]
Towards
the end of the hearing before the Board, it became known that the applicant had
given birth in Canada to a boy and that the child’s
father, a Canadian of Haitian origin, refused to assist her in any way. The
applicant submitted that she would face persecution in her country because she
is an unwed mother. In this regard, the Board observed that although
documentary evidence had been presented to the effect that discrimination
against women exists in Nigeria, it did not specifically
address the situation of unwed mothers.
[18]
Lack of
supporting documentary evidence is sufficient to rebut the presumption that the
claimant’s sworn testimony is true (Adu v. Canada (Minister of Employment
and Immigration), [1995] F.C.J. No. 114 (F.C.A.); Diadama v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1206; Kahiga v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1240 at
para. 10; Oppong v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 1187 at para. 5). Consequently, in these particular circumstances,
it was not patently unreasonable for the Board to draw an adverse inference
from a lack of information in documentary evidence that might reasonably be
expected to be mentioned in the circumstances.
[19]
Finally,
the applicant submits, albeit summarily, that the Board did not properly
evaluate state protection and apply the criteria set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. Given
my conclusion that the Board was well founded in finding that the applicant had
failed to establish a fear of persecution, there is no need to proceed further
with an evaluation of the availability of state protection (Ayub v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1411 at para.13).
[20]
Accordingly,
this application for judicial review is dismissed. No question of general
importance was proposed and none shall be certified by the Court.
ORDER
THIS COURT ORDERS that the application for judicial
review be dismissed.
“Luc
Martineau”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4120-06
STYLE OF CAUSE: MARIA
OBIANUJU MORKA v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 7, 2007
REASONS FOR ORDER AND ORDER: MARTINEAU J.
DATED: March 26, 2007
APPEARANCES:
Eric Freedman FOR
THE APPLICANT
Sherry Rafai
Far FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Eric Freedman FOR
THE APPLICANT
Montreal,
Quebec
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney
General of Canada
Montreal, Quebec
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