Date: 20070514
Docket: IMM-3758-06
Citation: 2007 FC 511
Ottawa, Ontario, May 14, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
VICTORIA
BOSEDE ADEGBOLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of a
decision by the Immigration and Refugee Board (Refugee Protection Division)
(the Board) dated June 16, 2006, which determined that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the decision be set aside and remitted for
redetermination by a differently constituted panel of the Board. The applicant
also seeks an order declaring that she is a Convention refugee.
Background
[3]
The
applicant, Victoria Bosede Adegbola, is a citizen of Nigeria. She alleged
having a fear of persecution on the basis of her membership in a particular
social group, namely, women abused by their common-law husbands. She also
claimed to be a person in need of protection. The applicant set out the
circumstances leading to her claim for protection in the narrative portion of
her Personal Information Form (PIF).
[4]
The
applicant met her common-law husband, Tunde Olawole, in the spring of 1990 and
they began living together in December 1990. The applicant was a single parent
at the time and was struggling to work and care for her daughter. In 1998, the
applicant’s husband began physically abusing her. He returned home intoxicated
one night, and she told him not to drive drunk. He became angry and beat her.
He apologized the next day and the relationship continued.
[5]
The
applicant’s husband beat her again in 1999, and she was taken to the hospital. When
she returned to work the next day, her supervisor took her to the police
station and reported the incident. The applicant claimed that the police
treated her situation as a domestic matter that was better resolved within the
family. She was beaten by her husband again later that year. He told her that
she should not make him angry as he had friends in the security force. He
threatened to kill her should she leave him.
[6]
On
December 24, 2000, the applicant returned home and found her husband lying in
bed with her daughter. He threatened the applicant with death should she report
the incident. The applicant was unable to seek help for her daughter until
early January 2001, as she was being watched by her husband. When he left home,
the applicant’s daughter told her that he had been sexually abusing her for a
long time, but she was uncertain as to when the abuse had begun. The applicant
took her daughter to the hospital and the doctor confirmed that she had suspicious
bruises, but did not appear to have been raped.
[7]
The
applicant took her daughter to the police station, but was told that the matter
was private and that the police could not intervene. When her husband found out
that she had reported the sexual abuse, he returned home and beat her. He
threatened her and later moved out of their home. He stayed away from the
family until May 2005, when he returned to the applicant’s home. The applicant
did not want him to return, but she was pressured by the police to accept him.
She was beaten by her husband and he continued to molest her daughter.
[8]
In
August 2005, the applicant was seriously beaten by her husband. She was
introduced to a church official who helped her flee to Canada. The
applicant left Nigeria for Canada on August 11, 2005. She
claimed refugee status three days later. The refugee hearing took place on May
5, 2006, and her claim was rejected by decision of the Board, dated June 16,
2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[9]
The
Board determined that the applicant was neither a Convention refugee, nor a
person in need of protection. The claim turned on the credibility of the
applicant’s allegation that she had suffered harm and feared for her safety at
the hands of her husband, Olawole, should she return to Nigeria. The
applicant could not explain why she did not have any photos of herself and
Olawole together. However, she had obtained other documents, and should have
been able to establish that he lived with her. The Board could not confirm that
the man in one of the photos was Olawole. As a result, the applicant was unable
to establish that she had been in a relationship with the man who had allegedly
abused her.
[10]
The
applicant specified certain dates while testifying, but was unable to provide a
reasonable explanation for having forgotten the date or month in 1999 when she
had suffered a traumatic beating by Olawole. As a result, no evidentiary weight
was given to evidence regarding this incident. The applicant’s story also
contained discrepancies with respect to the circumstances surrounding the
alleged beating.
[11]
The
Board also noted inconsistencies with respect to the applicant’s description of
the events which unfolded after she reported the abuse of her daughter to the
police. In her PIF, the applicant noted that Olawole drew out a gun and
threatened her if she told anyone about the incident, stayed home for a week
and then left with his belongings. However, she testified that Olawole beat
her, left home that day and did not take anything with him.
[12]
When
asked why she did not mention that Olawole had a gun during her testimony, the
applicant became defensive and stated that she had not been given the
opportunity to do so. When asked about the discrepancy in the amount of time
Olawole stayed home after she reported the incident, the applicant responded
that she was confused and did not remember. Finally, with respect to his
belongings, the applicant stated that Owlawole had not taken anything with him.
Given these discrepancies, the Board found that the applicant’s evidence with
respect to this event was not credible and concluded that she had not been
assaulted in January 2001.
[13]
The
Board also noted problems with the applicant’s description of the circumstances
surrounding the sexual abuse suffered by her daughter:
-
a
letter from her daughter indicated that Olawole had sexually assaulted her in
December 2000, and had made sexual comments to her when he went on a trip;
-
the
applicant testified that her daughter told her that Olawole had touched her
sexually long before he was discovered in December 2000;
-
when
asked about this statement, she responded that Olawole had never had
intercourse with her daughter, but had sexually touched her daughter before he
was caught; and
-
the
applicant’s statement that her daughter had told her that Olawole had touched
her breasts before December 2000 was not confirmed by any documents, nor was it
consistent with her earlier testimony.
[14]
The
Board found that inconsistencies in the evidence led to the conclusion that the
applicant was not truthful about the alleged sexual assaults against her
daughter. The Board found that the lack of trustworthy documents and the
applicant’s inconsistent evidence led to the conclusion that she had failed to
establish an objective basis for her fear of persecution. In addition, the
Board concluded that the claimant, more likely than not, would not face serious
harm if returned to Nigeria.
Issues
[15]
The
applicant submitted the following issues for consideration:
1. Whether the
Board proceeded on improper principles and based its decision on erroneous
findings of fact made in a perverse or capricious manner without regard for the
material before it and or whether the Board’s assessment of the totality of the
evidence was patently unreasonable and thereby subject to review?
2. Whether the
panel’s credibility findings were made in a perverse and capricious manner and
therefore a reversible error?
[16]
I
would rephrase the issues identified by the applicant as follows:
Did the Board err in finding
that the applicant lacked credibility?
Applicant’s Submissions
[17]
The
applicant submitted that where an administrative tribunal: (1) proceeded on
improper principles; (2) based its decision on erroneous factual findings, made
in a perverse or capricious manner without regard to the material; (3) made a
decision based upon an error or law; or (4) acted in bad faith, its decision
could be quashed. It was submitted that where a tribunal based its decision
upon unreasonable inferences, the decision should be overturned.
[18]
The
applicant submitted that the Board misunderstood the evidence and that its
decision was based upon unwarranted inferences. It was submitted that the Board
failed to consider vital evidence which supported the applicant’s claim and
explained why she fled Nigeria. It was submitted that
where an applicant swears to the truth of certain allegations, the allegations
are presumed true unless there are reasons to doubt their truthfulness (see Armson
v. Canada (Minister of
Employment and Immigration) (1989), 101 N.R. 372, 9 Imm. L.R. (2d) 150
(F.C.A.)).
[19]
The
applicant submitted that the Board erred in impugning her credibility because
she had not produced a photo of herself with her husband. It was submitted that
the Board erred in failing to clearly set out why her credibility was doubted
upon this basis. The applicant noted that if the photograph existed, it would
have been very hard to obtain when she was fleeing Nigeria. It was
submitted that the Board could have specifically requested such a photo under
the commentary to Rule 7 of the Refugee Protection Division Rules,
S.O.R./2002-228.
[20]
The
applicant submitted that the Board erred by focusing upon small variances
between her PIF and her oral testimony in making its credibility finding. It
was submitted that there were no discernible contradictions between the
applicant’s testimony and her daughter’s letter regarding the allegations of
sexual abuse. The applicant submitted that in weighing evidence and assessing
credibility, the Board should act reasonably and in good faith.
[21]
The
applicant submitted that credibility findings leading to a negative decision
must be germane to the central issue of the refugee claimant’s persecution (see
R.K.L. v. Canada (Minister of Citizenship and Immigration) (2003), 228
F.T.R. 43, 2003 FCT 116). It was submitted that the Board erred in impugning
her credibility on the basis of peripheral issues. In Valtchev v. Canada
(Minister of Citizenship and Immigration) (2001), 208 F.T.R. 267, 2001 FCT
776, the Court held that tribunals should be careful when rendering decisions
based upon lack of plausibility, since refugee claimants come from diverse
backgrounds and actions which may appear implausible by Canadian standards, may
be plausible when considered from their milieu.
Respondent’s Submissions
[22]
The
respondent submitted that the Board’s decision withstood review on the standard
of patent unreasonableness (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315,
42 A.C.W.S. (3d) 886 (F.C.A.)).
[23]
The
respondent noted that the Board’s adverse credibility finding was based upon
omissions, contradictions and inconsistencies in the applicant’s evidence. It
was submitted that the Board gave the applicant an opportunity to address these
concerns and supported its credibility finding with sufficient reasons. The
respondent submitted that the finding was reasonably open to the Board (see Sahi
v. Canada (Minister of
Citizenship and Immigration) (2001), 105 A.C.W.S. (3d) 1120, 2001 FCT
527).
[24]
The
respondent submitted that omissions in a claimant’s PIF may be considered by
the Board in assessing a claimant’s credibility. It was submitted that
consistency between one’s PIF and oral testimony was important to establish a
credible basis for a claim (see Castroman v. Canada (Secretary
of State) (1994),
81 F.T.R. 227, 27 Imm. L.R. (2d) 129 (F.C.T.D.)). The respondent submitted that
while the discrepancies in the applicant’s evidence might seem insignificant,
they cumulatively supported a negative credibility finding (see Nejme v.
Canada (Minister of
Citizenship and Immigration) (1994), 54 A.C.W.S. (3d) 321 (F.C.T.D.)).
[25]
The
respondent noted that the applicant bore the responsibility of providing the
Board with evidence establishing her connection to the alleged agent of
persecution, Tunde Olawole (see El Jarjouhi v. Canada (Minister of
Citizenship and Immigration) (1994), 48 A.C.W.S. (3d) 790 (F.C.T.D.)). It
was submitted that the Board was entitled to draw a negative inference from her
inability to prove her common law relationship with Olawole. The respondent
submitted that the applicant’s mere disagreement with the Board’s conclusion
did not constitute a sufficient basis for intervention by the Court (see Ye v.
Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1233
(C.A.) (QL)).
Analysis and Decision
Standard of Review
[26]
The
Board’s credibility findings are entitled to a high level of deference and are
subject to review on the standard of patent unreasonableness (see Aguebor
above).
[27]
Issue
1
Did the Board err in finding
that the applicant lacked credibility?
The Board
determined that the applicant lacked credibility because: (1) she failed to
provide evidence of her relationship with Olawole; (2) she failed to provide
details about a beating which allegedly took place in April 1999; (3) there
were inconsistencies in her evidence regarding the beating which allegedly took
place in January 2001; and (4) there were inconsistencies in her evidence with
respect to the sexual abuse of her daughter. The applicant submitted that the
Board relied upon peripheral inconsistencies in order to undermine her
credibility, and that most of her evidence was consistent. The respondent
submitted that the Board was entitled to question the applicant’s credibility
on the basis of the inconsistencies in her evidence.
[28]
Existence
of Common-Law Husband
The applicant provided the
Board with the following evidence which specifically named Olawole as her
common-law husband: (1) her sworn testimony; (2) her PIF and narrative; and (3)
a letter from her daughter. The following documents constitute evidence that
the applicant had a common-law spouse, but do not specifically name Olawole: (1)
Port
of Entry notes; (2) a
letter from Pastor Timothy; (3) a letter from pastor Toyin Awotide; and (4)
photographs. There is also evidence on file indicating that the applicant was
treated for injuries at a hospital on April 4, 1999.
[29]
In
my view, there was evidence indicating that the applicant was involved in a
spousal relationship with someone who was abusing her. Therefore, the fact
that she failed to provide a photo of her common-law husband does not support a
negative credibility finding.
[30]
1999
Assault
The Board asked the applicant
why she had omitted the specific date and extent of the 1999 assault noted in
her PIF form. The applicant answered that it had not occurred to her. The Board
did not accept that she could not explain why she had forgotten the exact date
of the beating, and attributed little evidentiary weight to the evidence
provided regarding the incident. The refugee hearing was held about seven years
after the date of this assault. In my view, the specific date upon which it
occurred was not particularly relevant to her credibility. The applicant’s PIF
indicated that during the beating:
He threw me against the wall and I hit my
head on the floor. It started bleeding, I screamed. My daughter screamed too. A
neighbour came and helped me to the hospital, where I was attended to.
[31]
An
amendment to the applicant’s PIF indicated that the applicant’s mouth and hands
were injured in the incident. In addition, a letter from the hospital which
treated her confirmed that the incident took place on April 4, 1999. In my
view, the applicant’s credibility bears a tenuous connection to her inability
to recall the date of an incident which took place seven years ago. I would
note that this is especially the case, given that there was other evidence
confirming the nature of her injuries and the date upon which they were
inflicted.
[32]
Actions
Following Report of Sexual Abuse
The Board noted certain
discrepancies in the applicant’s evidence with respect to her husband’s actions
after she reported the sexual abuse of her daughter to the police. Her PIF indicated
that her husband drew a gun, stayed home for a week and left with his
belongings. However, during her testimony, the applicant did not mention the
gun until prompted to do so by the Board. She testified that her husband left
the day he came home to confront her and did not take his possessions with him.
The following are excerpts of the hearing transcript where the applicant
appears to contradict herself:
CLAIMANT: On his arrival from that trip
he came in and he frowned his face and he started beating me up again. He said
that he had comments that I had already reported the case to the police and
queried my intention of reporting the matter to the police. He left home and
left his belongings at home. I had peace of mind and I was living with my daughter
until 2003.
PRESIDING MEMBER: Okay, so just back to
– when did he get back from his trip, the last trip?
CLAIMANT: He came back the following
weekend.
…
PRESIDING MEMBER: … And I asked you
several questions surrounding that incident and at no point did you mention
that he pointed a gun at you. Why is that?
CLAIMANT: The reasons why I didn’t
mention it, when I attempt to answer your question, before I can finish the
question you always said next.
…
He pulled a gun on me. After pointing the
gun on me, he told me that if I don’t care, if I’m not careful by myself, that
he will kill me. That was the occasion on which he walked out and he left the
home.
…
PRESIDING MEMBER: So, how – did he just
leave after he did that? He came home, and how long was he there before he beat
you up?
CLAIMANT: He came home, he frowned his
face, and as soon as he came in he started beating me up. He accused me of
having reported him to the police.
PRESIDING MEMBER: Okay, so he beat you
the same day that he came home.
CLAIMANT: It was the same day.
PRESIDING MEMBER: And did he leave the
same day?
CLAIMANT: Yes, the same day.
COUNSEL: Did he leave the same day?
CLAIMANT: He left home immediately he
beat me up, the same day.
PRESIDING MEMBER: Okay. He took all of
his stuff and left?
CLAIMANT: He didn’t take anything.
PRESIDING MEMBER: When did he take his
stuff?
CLAIMANT: He didn’t take his stuff. He
left everything and he left himself.
[33]
The
details of the event upon which the Board is focusing took place in early
January 2001, over six years ago. Certain details, such as the day Olawole left
the applicant’s home, and whether he took his belongings with him, are clearly
peripheral to the case at hand. While it was open to the Board to question the
applicant’s failure to recall that Olawole had aimed a gun at her during the
alleged incident, I do not believe that this finding was necessarily sufficient
to ground a negative credibility finding.
[34]
Sexual
Assault Against Daughter
The following evidence of the
alleged sexual abuse suffered by the applicant’s daughter formed the basis of
the Board’s finding:
- The
daughter’s letter indicated that Olawole had sexually assaulted her in
December 2000 and had previously made sexual comments toward her.
- The
applicant’s PIF indicated that her daughter had told her that Olawole had
been “touching her in her private part for a long time”, but she could not
say exactly when it had begun. The PIF stated that her daughter had been
examined by a doctor, who confirmed bruising but no sign of rape.
- A letter
from the doctor confirmed the applicant’s testimony that her daughter had
been sexually assaulted, but not raped.
- During
the hearing, the applicant testified that her daughter had told her that
Olawole had been sexually abusing her for a long time. The applicant also
confirmed that he had never raped her daughter.
[35]
The
Board found that the applicant’s testimony and PIF, which indicated that
Olawole had sexually assaulted daughter prior to the December 2000 incident,
contradicted the daughter’s letter. In my opinion, the Board erred in relying
upon this alleged inconsistency and appears overzealous in its approach to the
evidence. The daughter’s letter does not indicate that the first time she was
sexually assaulted by Olawole was in December 2000, she simply states that she
was assaulted by him on this date and her mother had intervened. I would note
that the applicant’s testimony is consistent with the statement in her PIF that
her daughter had been subjected to sexual abuse by Olawole “for a long time”
prior to his discovery in 2000. The applicant’s evidence that her daughter was
assaulted but not raped was also confirmed in the doctor’s letter. I do not
believe that the evidence in this regard was inherently contradictory, and I
find that the Board erred in finding that it lacked credibility.
[36]
Based
on my conclusions, I am of the view that the Board’s negative credibility
finding was patently unreasonable.
[37]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[39]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c.27.:
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96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
97.(1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
(2) A
person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
97.(1) A qualité de personne à protéger
la personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
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