Date: 20070605
Docket: IMM-5146-06
Citation: 2007 FC 594
Ottawa, Ontario, June 5, 2007
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
OLUSHOLA
OLAYIN AJAYI
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
[1]
This is an
application for judicial review of a decision dated August 21, 2006, by the
Refugee Protection Division of the Immigration and Refugee Board (the IRB or
the panel) that the applicant is not a Convention refugee or a “person in need
of protection” as defined in sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The
applicant, Olushola Olayin Ajayi, is a citizen of Nigeria. She claims that she
fears both her stepmother, who wants to excise her, and her father, who wants
to force her to participate in a major initiation ritual (Obitum) during which
she will have to climb a high hill. The applicant says that she is also afraid
of powers and supernatural beings. She alleges that refusing to participate in
the ritual in question resulted in her having nightmares and heavy menstrual
bleeding. She and her boyfriend then moved to Port Harcourt. In July 2005, the
applicant became pregnant. The bleeding recommenced, and the applicant and her
friend left Nigeria for the Republic of Benin. In December 2005, the
applicant arrived in Canada.
[3]
The panel
determined that the applicant had not established her identity, her residence
in Nigeria or her travel itinerary from Nigeria to Canada. In addition, the
panel found that the applicant’s testimony was not credible. The panel also
noted that the applicant did not have an objective fear of persecution.
Although the applicant stated in her Personal Information Form (PIF) that she
feared both her father and stepmother, she testified at the hearing that she
was not afraid of her father when she refused to participate in the ritual, nor
was she afraid of her stepmother because her stepmother had never tried to
force her to submit to the excision. What remains is her subjective fear of
powers and supernatural beings. The panel found that the applicant’s testimony
on this issue was not credible and that even if it were objectively credible,
Canada could not offer state protection in such circumstances.
[4]
The
applicant wants the impugned decision to be set aside and the matter referred
to a new panel of the IRB. The applicant maintains that there was no valid
reason for the panel to find that she had not established her identity or that
her claim was without merit, given the strangeness of her fear of persecution.
On this point, the applicant argues that the documentary evidence confirms that
tribal customs exist in Nigeria. The applicant acknowledges that no state can
protect her from forces from beyond but submits that Canada can protect her
from the obligation to participate in initiation rites where the participants
invoke supernatural powers.
[5]
In this
case, whether the appropriate standard of review is patent unreasonableness or
reasonableness simpliciter, I am satisfied that this application must
fail.
Issues concerning the applicant’s
identity
[6]
Generally,
where the Board’s findings as to identity are based on the applicant’s
credibility, the applicable standard of review is patent unreasonableness. On
the other hand, where the Board must assess the authenticity of documents or
the validity of foreign documents, the Court has applied two standards: patent
unreasonableness and reasonableness simpliciter. For an overview of the
particular circumstances that led to the application of these standards, see: Wu
v. Canada (Minister of Citizenship and Immigration), 2006 FC 513 at
paragraph 16; Li v. Canada (Minister of Citizenship and Immigration),
2006 FC 296 at paragraph 5; Bouyaya v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1042 at paragraphs 6-7; Rasheed v. Canada
(Minister of Citizenship and Immigration), 2004 FC 587; Umba v. Canada
(Minister of Citizenship and Immigration), 2004 FC 25.
The driver’s licence
[7]
The panel
could reject the driver’s licence. The applicant testified at the hearing that
she obtained her licence at a local government office without having to pass a
driving test. This contradicts the documentary evidence that indicates an
applicant must pass a written exam and a driving test to obtain a licence and
that the licences are issued by the Nigerian Road Safety Commission, not by a
local government office. In this case, the panel could prefer the documentary
evidence over the applicant’s testimony, and its finding is not patently
unreasonable. I also note that the uncontradicted analysis of the forgery
analyst from the Canada Border Services Agency concluded that the licence was a
falsified document because of several anomalies.
The birth certificate
[8]
The panel
could also reject the birth certificate because there were contradictions in
the applicant’s testimony regarding the fact that she had lived with her
stepmother, whom she refers to as her mother, since she was quite young. Even
more important is the lack of a valid explanation as to why the name of her
stepmother, not her biological mother, is on the birth certificate in question,
which the applicant claims was issued by the maternity hospital where she was
born. Moreover, the certificate in question is not an original, and the
uncontradicted analysis of the forgery analyst mentions various anomalies in
it. The panel’s conclusion is not patently unreasonable.
The certificate of origin
[9]
The
panel’s finding that the certificate of origin had no probative value is not
patently unreasonable. In fact, it appears that the certificate of origin also
bears the name of the applicant’s stepmother and not her biological mother.
Moreover, the uncontradicted analysis in the file also raises various anomalies
as to how this document was made, and its authenticity cannot be established.
The university ID card
[10]
The panel
could reject the university ID card as evidence of identity because there were
significant contradictions in the applicant’s testimony regarding the years in
which she claims to have studied at the university. In fact, the testimony, the
PIF and the immigration documents all indicate a different year and the
university ID card yet another year. The panel’s finding that this document was
of no probative value and that it was a fabrication is based on the evidence
and is not patently unreasonable.
The police certificate
Issues of credibility and state protection
[13]
Once the
panel had concluded that the applicant’s identity had not been established, it
was not necessary for the panel to analyze the evidence any further (Husein
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726
at paragraph 13 (QL)). That being said, the panel nevertheless reviewed the
allegations of fear of persecution and risk pursuant to sections 96 and 97 of
the Act and rejected those allegations. The panel’s general finding of
non-credibility is based on the evidence and is not patently unreasonable.
[14]
In
particular, the panel could find that the applicant had not established that
she resided in Nigeria at the time the events alleged in her refugee claim
occurred. The applicant had the opportunity at the hearing to clarify the
contradictions in her PIF regarding the various periods of time she stayed in
Port Harcourt and the people with whom she lived. Her testimony remained rife
with confusion.
[15]
The panel
could also conclude that the applicant had not established her travel itinerary
from Nigeria to Canada. The applicant first maintained that she had left
Nigeria on December 8, 2005, then transited through Amsterdam to London before
arriving in Montréal. Yet, there was no Dutch, British or Nigerian stamp on the
passport that she used. Confronted with this contradiction, the applicant
testified that she had never been to Amsterdam and that she had only transited
in London for a few hours. The panel found the applicant’s explanation
unreasonable. The panel simply did not believe that the applicant lived in
Nigeria before coming to Canada. The panel’s conclusion that the applicant
failed to establish her itinerary is not patently unreasonable.
[16]
Finally, I
acknowledge that a person’s fear of magic or witchcraft can be genuine on a
subjective basis but, speaking objectively, the state cannot provide effective
protection from magic, witchcraft, supernatural powers or beings from beyond.
The state can only protect a person from actions by members of a sect or a
tribe participating in rituals where supernatural powers or beings from beyond
are invoked or may appear. However, the applicant testified on this issue that
she was not afraid of her father when she refused to participate in the ritual,
nor was she afraid of her stepmother because her stepmother had never attempted
to force her to submit to excision.
[17]
Accordingly,
it was not patently unreasonable to find that the applicant did not have an
objective fear of persecution and that the applicant is not a Convention
refugee or a “person in need of protection” under sections 96 and 97 of the
Act.
Conclusion
[18]
For all
these reasons, this application for judicial review must fail. No question of
general importance was raised, and none arises in this case.
ORDER
THE COURT ORDERS that the application for
judicial review be dismissed. No question is certified.
“Luc Martineau”
Mary
Jo Egan, LLB
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