Date: 20070823
Docket: IMM-108-07
Citation: 2007 FC
852
Montréal, Quebec, August 23, 2007
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ELIOT OSAGIE
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 of a decision of the Refugee
Protection Division of the Immigration and Refugee Board dated December 18,
2006 wherein it was determined that Mr. Osagie (the applicant) is not a
Convention refugee or a person in need of protection.
Facts
[2]
Mr.
Osagie is a citizen of Nigeria whose difficulties
allegedly began when his family suspected that he was a homosexual, despite his
attempts to keep his sexual orientation private. The local community priest,
also suspecting Mr. Osagie’s homosexuality, approached his family’s home and
performed a religious incantation, and suggested that Mr. Osagie would be
sacrificed in order to cleanse the community of the sin he had brought on them.
[3]
Mr.
Osagie was then beaten by other members of the community and left tied up. He
was able to free himself and fled to the home of a friend, Friday Obasuyi, with
whom he began living. Mr. Osagie alleges that he and Friday were beaten on a
number of occasions when they were together in public, and in one instance, in
September 2005, Mr. Osagie and Friday were attacked in their own home. Mr.
Osagie escaped and he and Friday separated.
[4]
As a
result of these ongoing threats, Mr. Osagie made the decision to leave Nigeria
and met with an agent named “John” who made travel arrangements on Mr. Osagie’s
behalf, and accompanied him via Italy to Montreal.
[5]
John
disappeared once they arrived at Pierre Elliot Trudeau International Airport, and Mr. Osagie, lost, spent two days
wandering in the airport. At some point, he began following other passengers,
was stopped by an airport official who provided him assistance before he claimed
asylum on October 24, 2005.
Decision of the Board
[6]
The
Board summarized Mr. Osagie’s allegations, noting principally his alleged
attacks by members of his community upon their discovery of his homosexuality,
his unsuccessful attempts to flee persecution by living with his friend Friday,
and his subsequent travel arrangements with John.
[7]
However,
the Board was not satisfied that Mr. Osagie had conclusively established his
identity. It considered four specific documents: a national identity card, an
affidavit from his brother attesting to his age, a national birth certificate,
and a membership card from the Quarter Jack Club where he first met John.
[8]
The
Board held that only the national identity card could conceivably be considered
official and reliable. Nonetheless, the Board noted that the information
contained on the card did not correspond to the information contained within his
Personal Information Form (PIF):
§
Mr.
Osagie testified that in 2002 he was helping his father on his farm and
occasionally working as a labourer in construction, yet his identity card
indicated “business” as his occupation;
§
Mr.
Osagie testified that he did not know his height or blood type, yet the card
indicated a measurement of 170 and blood type A+.
- Mr Osagie testified
that in 2002 he lived with his father at 13, St-Manuel Street, Ugeudy, Benin, Edo State, yet the
card indicates that his address is 26, Alawode Street, Ikaje, Surulere, Lagos. The same
discrepancy existed with his father listed as next of kin.
[9]
A
document of this calibre should contain true, not fabricated data. The Board
rejected Mr. Osagie’s suggestion that he provided a different address because
he was temporarily living with his sister at the time his application was
submitted. The Board also noted that Mr. Osagie failed to explain how his
height and his blood type could have been indicated on his card, since he
professed to be ignorant of them.
[10]
Turning
to the birth certificate, the Board noted that at his detention hearing, Mr.
Osagie had stated that he could not retrieve his birth certificate as it was
still located at his parent’s home. This contradicted his testimony that he
never possessed a birth certificate and that he never told the detention
officer that he had one. Therefore, the Board also rejected an affidavit
provided by his brother which had been affirmed in order to obtain a birth
certificate. Had Mr. Osagie previously possessed a birth certificate, there
would have been no need for such an affidavit. Noting that documents are easily
forged in Nigeria, the Board gave no
probative value to the certificate issued based on an affidavit.
[11]
With
respect to the membership card, there were no security features that would
guarantee the reliability of the document and therefore, it was also rejected
by the Board.
[12]
Having
found that Mr. Osagie had failed to establish his identity, the Board held that
this was sufficient to reject the claim. However, the Board then addressed Mr.
Osagie’s testimony and found that it was not credible due to a number of
inconsistencies and omissions between his PIF and testimony. The Board did not
accept that Mr. Osagie was illiterate such that he could not properly complete
his PIF. Mr. Osagie had received six years of primary school education and his
signature was not indicative of illiteracy.
[13]
In
Mr. Osagie’s PIF, he indicated that he left Nigeria in October 2002, providing no dates of
departure. Yet, prior to the hearing, Mr. Osagie made a number of corrections,
although still not providing all the specific dates of travel. In particular,
Mr. Osagie indicated that he left Lagos on October 20, 2005, traveled to Benin and then
to Italy, arriving in Montreal on October 24, 2005. A
second correction changed the date of arrival to October 22 or 23, 2005.
[14]
The
Board held that Mr. Osagie was unable to
explain in a satisfactory
way why at the
time he completed his PIF he could not remember the dates of departure and
transit points, yet could recall these details immediately prior to the
hearing. Given that Mr. Osagie had the assistance of counsel during the
completion of his PIF, the Board could not accept his explanation that John
insisted he not mention the route or the date of departure.
[15]
Furthermore,
Mr. Osagie testified that he had never passed immigration control, and spent
two days at the airport, sleeping in the restroom. The Board simply could not
accept that his behavior would not have been noticed by the security personnel.
Moreover, Mr. Osagie’s testimony contradicted his declarations made during his Point
of Entry (POE) interview. He stated that he and John passed through different
Canadian customs officers, which would indicate that they left the arrival
area. He also declared that John told him to go to through Immigration control
and left with all the travel documents. Yet, Mr. Osagie testified that John
abandoned him before going to customs officers. Mr. Osagie provided no
reasonable explanation for these discrepancies.
[16]
The
Board also noted inconsistencies with respect to Mr. Osagie’s alleged
persecution. Specifically, Mr. Osagie’s PIF indicated that he had worked on his
father’s farm until 2003. However, Mr. Osagie corrected his PIF prior to the
hearing in order to indicate that he stopped working in February 2003. It was
inconceivable that Mr. Osagie could not remember this date when completing his
PIF given that he testified that he stopped working when he was attacked in his
village.
[17]
Moreover,
he testified that from February 2003 to October 2005, he did not work, yet his
PIF, as did other immigration documents, indicated that he worked in
construction in Ugeudu from 2003 to October 2005.
[18]
Finally,
Mr. Osagie’s evidence with respect to his place of residence was contradictory.
In his PIF, Mr. Osagie provided the address of St. Manuel Street in Ugeudu as his place
of residence until February 2003. Thereafter he says he hid in various
locations until the end of 2003 when he moved in the neighborhood of the village of Aho, staying there until
September 2005. Finally he said he moved to Aduwawa where he stayed in a hotel
at John’s insistence until he left Nigeria.
[19]
However,
Mr. Osagie’s PIF indicates that from 2004 to September 2005, he lived at 26, Alawade Street in Ugeudu. His PIF
narrative states that after the attack in February, he went to live with Friday
in another part of the village. Yet, he testified that Friday didn’t actually
live in Ugeudu but in Aho, a completely different village. He further testified
that there was no street address for Friday and that 26 Alawade Street was actually in Lagos.
[20]
Moreover,
in his testimony, Mr. Osagie suggested that he hid at all times after moving in
with Friday, shunning any public activities, other than short walks around
their home. Yet in his PIF, Mr. Osagie stated that he tried to live a normal
life, which was unsuccessful.
[21]
Consequently,
the Board held that Mr. Osagie had not proven his identity or the underlying
claims of his application, and on this basis, declined to give any weight to
the documents he supplied to support his claim. The Board also refused to
consider an internet news report stating that Friday had been killed and that
Mr. Osagie had fled in fear. Having failed to establish his identity, the Board
could not conclusively state to whom the document referred. In any event, the
documentary evidence indicated that documents are easily purchased in Nigeria,
even the most official ones, and the Board concluded from this that it would
also be possible to have a press article written and published for a bribe.
Issues
[22]
The
applicant raises the following four issues:
-
Did the
Board err when determining Mr. Osagie’s identity was not established?
-
Did the
Board err when it exaggerated contradictions that were immaterial to the asylum
claim?
-
Did the
Board err when it made a blanket statement to refuse corroborating evidence?
-
Did the
Board err when it ignored evidence?
Standard
of Review
[23]
The
first issue raised by the applicant is the issue of identity and it should be
reviewed on the standard of patent unreasonableness: Umba v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 17. The three other issues
are all related to the manner in which the Board assessed the evidence on the
issue of Mr. Osagie’s credibility. These questions should also be reviewed on
the same standard.
Submissions
and Analysis
[24]
The
Minister’s submissions recite, nearly word for word, the decision of the Board
without any argument in support. The only independent argument made by the
Minister is that having found that Mr. Osagie failed to establish his identity,
no further analysis by this Court is necessary. Any summary of the Minister’s
submissions would simply be a review of the Board’s decision and a duplicate of
the above summary by the Court.
[25]
Did
the Board err when determining Mr. Osagie’s identity was not established?
[26]
The
applicant submits that it was unreasonable for the Board to hold that his
national identity card was not legitimate given that it was deemed authentic by
the Canada Border Services Agency. While conceding that the Board may reject a
claimant’s identity documents, the applicant submits that such a finding is
only appropriate where those documents contradict themselves or show signs of
tampering. He also submits that not only was the national identity document
deemed authentic, but the Board ignored the assessment of the CBSA and referred
only to the documentation completed prior to that decision.
[27]
Applicant
further submits that when considering a claimant’s identity, reference must be
made to the evidence beyond the documents themselves, particularly with
reference to the claimant’s background and residence. In a similar vein, the
Board should have been more aware of certain difficulties in explaining the
documents, given that Mr. Osagie’s translator spoke a different dialect of Edo,
the language of translation.
[28]
The
Court notes that on November 24, 2005, Mr. Osagie was released from detention
by Rolland Ladouceur, a member of the Immigration Division of the Immigration
and Refugee Board pending the hearing of his claim for refugee protection. In
agreeing to Mr. Osagie’s release, Mr. Ladouceur stated:
Considering
that your national identity card came back from expertise as being authentic,
Immigration is now satisfied of your identity, also a birth certificate was
provided by your counsel. The Canadian Boarder Service Agency is still not
satisfied with the information provided how you came to Canada, but nevertheless, they believe that an alternative to
detention should be offered, considering that you are claiming refugee status.
[29]
The
applicant submits that pursuant to this decision, the Refugee Protection
Division should have accepted his national identity card as authentic.
[30]
True,
there is no strict legal requirement that the Board must follow the factual
findings of another member. But, as recently stated in Siddiqui v. Canada (Minister of
Citizenship and Immigration), 2007 FC 6:
[18]
What undermines the Board’s decision is the failure to address the
contradictory finding in the Memon decision. It may well be that the
member disagreed with the findings in Memon and may have had good
substantial reasons for so doing. However, the Applicant is entitled, as a
matter of fairness and the rendering of a full decision, to an explanation of
why this particular member, reviewing the same documents on the same issue,
could reach a different conclusion.
[31]
In Siddiqui,
a Board member provided detailed reasoning as to why it accepted that there
were reasonable grounds to believe that an organization had engaged in
terrorism based on identical documentary evidence referred to by another Board
member who, on that basis, reached a different conclusion. Despite providing
its own rationale, Justice Phelan in Siddiqui held that the Board’s
failure to acknowledge and discuss the other Board decision was a patently
unreasonable error.
[32]
In the
present instance, a member of the Immigration Division had previously
determined that Mr. Osagie’s national identity card was authentic. The Board
was entitled to depart from this conclusion based on its own review of the
evidence, and in fact did so. However, given the existence of the previous
decision, the Board was required to explain why it was departing from the
conclusion of the Immigration Division. The failure to do so results in
inconsistent and arbitrary decision-making.
[33]
Did
the Board err when it exaggerated contradictions that were immaterial to the
asylum claim?
[34]
The
applicant submits that the discrepancies and contradictions with regards
to Mr. Osagie’s travel to Canada have been exaggerated and are based on the false assumption
that he is literate. He also submits that to reject his contention that
he is illiterate despite six years of primary schooling is unreasonable and
contrary to common sense. And further, to suggest that his signature indicates
that he is literate cannot be supported in light of the absence of any
expertise of the Board in this regard.
[35]
He
also submits that his counsel attempted to provide at the hearing more
precision as to the date of travel, proposing October 24, 2005 as the most
likely date of arrival in Montreal as this was the date that his refugee application was
filed. Counsel always maintained that Mr. Osagie was unaware of the exact
travel date having been in the airport for a number of days.
[36]
The
Court notes that the applicant indicated in his PIF that he arrived in Canada in “October 2005” without providing a specific date. Prior
to the hearing, he amended his PIF to indicate that he arrived on October 24,
2005. As his counsel explained at the hearing, Mr. Osagie remained unaware of
the exact date of arrival, indicating October 24 as the most likely date. At
the Board’s prompting during the hearing, a second amendment was made to the
PIF to indicate an arrival date of either October 22 or 23, 2005 which was more
consistent with the applicant’s allegations.
[37]
Even
if the Court accepts that an omission of a significant fact from the PIF can
form the basis of a negative credibility finding, nevertheless where the
claimant offers an explanation, the Board is bound to consider that explanation
before drawing an adverse inference: Bayrami v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1167. Furthermore, the
Board must be cognizant of those instances where there is indeed an omission of
significant details and where the claimant simply adds further details to his
written statement: Ahangaran v. Canada (Minister of Citizenship and
Immigration) (1999), 168 F.T.R. 315.
[38]
The
applicant provided two explanations for the omissions in his PIF regarding his
arrival date and transit points. First, being illiterate, he was unable to
complete the form in any detail and second, the form was completed not by
himself, but by an immigration agent. The Board rejected both of these
explanations because it did not believe the applicant was indeed illiterate and
because he was assisted previously by a counsel.
[39]
Both
of these conclusions of the Board are unreasonable since the allegations of a
claimant is deemed to be true unless there are reasons to doubt their
truthfulness, Maldonado v. Canada (Minister of Employment and Immigration) [1980]
2 F.C 302.
[40]
The
mere fact that the applicant attended primary school is not conclusive proof of
his literacy. In this case, the Board had no evidence other than speculation
upon which to base its conclusion. Moreover, the Board’s statement that Mr.
Osagie’s signature indicates he is literate is simply nonsensical, particularly
given that it resembles a scribble.
[41]
The
Board suggests that Mr. Osagie understood the information which was requested
of him and had no reason not to provide any information but the truth given
that he had previously had the assistance of counsel.
[42]
In
respect of his travel, Mr. Osagie never provided contradictory evidence.
Rather, prior to the hearing, his counsel attempted to provide greater detail
for the benefit of the Board. The Board’s suggestion that Mr. Osagie
conveniently and suddenly remembered the dates of his travel immediately prior
to the hearing is not reflective of the transcript of proceedings. However it
is clear from the tribunal record that Mr. Osagie and his counsel never
suggested that these dates were exact but were merely trying to provide more
precision.
[43]
Noting
that a claimant’s inability to provide consistent testimony as to his date and
method of travel does not necessarily constitute a microscopic examination of
the evidence. Rather, the means and moment at which a claimant has allegedly
fled persecution is highly relevant. However, in the present case, the Court does
not find that the evidence supports the Board’s finding of contradictions and
serious omissions.
[44]
Did
the Board err when it made a blanket statement to refuse corroborating
evidence?
[45]
The
Board rejected the newspaper article regarding the death of Mr. Osagie’s
partner Friday by applying documentary evidence regarding the questionable
authenticity of government documents to newspaper articles. In doing so, the
Board discounted a relevant document confirming Mr. Osagie’s identity. The
documentary evidence indicated that any document, including official documents
such as a passport, driver’s license or birth certificate can be bought; with
this evidence the Board reasoned that surely a fake newspaper report could also
be purchased.
[46]
The
Board does not specify what documentary evidence it reviewed that supports this
conclusion. However, Response to Information Request NGA43280.E entitled “Availability
of false documents in and from Nigeria” discusses the falsification of documents
in the country and appears to be the most relevant. The document discusses the
multitude of instances in which government documents, and in particular,
identity documents can be forged. At no point however does the document refer
to the possibility that a newspaper story can be bought. Therefore, if the same
argument is made before another Board, the Minister should provide a reference
in the documentary evidence to the ability of individuals to purchase newspaper.
[47]
Did
the Board err when it ignored evidence?
[48]
The
applicant submits that the Board failed completely to consider any of the
evidence with regards to his sexual orientation or persecution, the heart of
his claim. He claims that the Board accepted that he had been tortured when the
Board refused his offer to show his scars during the hearing, and stated: “that
is alright, I believe it.”
[49]
Furthermore,
the applicant adds that the Board rejected his allegation that he is gay, by ignoring
letters of support from community groups in Montreal and their presence at the hearing. The
applicant insists that at no time he was directly questioned by the Board on
the issue of his sexual orientation and that the Board never addressed the credibility
of these documents on their own, nor did the Board provide any reference to the
contradictory evidence contained therein. Rather, according to the applicant, the
Board focused on minor inconsistencies on the periphery of his claim and
ignored the consistency of the substance of his claim.
[50]
The
Minister argues that because the Board correctly concluded that Mr. Osagie’s
identity had not been established, it was not necessary to analyze the evidence
any further: Bhuiyan v. Canada (Minister of Citizenship and Immigration),
2003 FCT 290. However, in this case, the Board nonetheless went on with the
analysis of the applicant’s claim. Simply because the Board was not obliged to
do so is not a sufficient reason to uphold its conclusions.
[51]
Essentially,
the Board accepted the basis of the applicant’s allegations of torture during
his hearing. Having accepted the veracity of these allegations, the Board erred
by not considering the substance of Mr. Osagie’s claim as a gay man, rather
focusing on minor inconsistencies and peripheral matters to impugn his
credibility.
[52]
The
statement by the Board member is particularly troublesome. It follows a lengthy
discussion between the Board member and the applicant wherein he explains that
between eight and ten individuals beat Mr. Osagie with sticks, batons, bottles
and knives, cutting him on his back, leg and hand. Following this description,
there is the following exchange:
BY COUNSEL (to applicant):
Q. With the… You still have a few
scars?
A. Yes.
BY PRESIDING MEMBER (to applicant):
Q.
No, that’s… I believe it. I just want the claimant to describe.
[53]
Yet,
despite this intervention, it still appears that the Board member was not
entirely convinced of Mr. Osagie’s allegations. After several more questions
regarding the beating, the Board member puts her concerns to Mr. Osagie:
Q. Okay. Because, you know, when I
hear you telling me that eight
to ten people beat you for two or three
hours with a stick, bottles, cutlasses, I wonder how could you survive
that.
A. The way if… The way I’m telling
this thing to you is not the way
it happened. I cannot explain the way
that it happened, the way it happened to me, I cannot explain everything
to you, because I
was there, I was there alone, nobody was
there with me.
Q. No, that’s why I’m asking you,
sir.
A. (Inaudible) I’m telling you
now.
Q. To
do your best do describe to me, because I wonder how could you
survive. People, ten, eight to ten people beating you so savagely for
tow-three hours?
[54]
It
appears from these exchanges that the Board accepted that Mr. Osagie has scars
resulting from a beating but doubted his recollection of the extent of that
beating.
[55]
The
applicant argues that having accepted the existence of this beating, the
Board’s determination that Mr. Osagie was not a homosexual cannot be supported
by a credibility determination based on peripheral matters and minor,
irrelevant inconsistencies, particularly given the supporting Canadian
documents.
[56]
Clearly
the transcript shows that the Board member accepted that the applicant had
scars resulting from a beating, but at no time does the transcript indicate
that the Board member accepted the applicant’s homosexuality either in general
or as the basis for the attack, and this even though a discussion did precede
the details of the beating.
[57]
Furthermore,
some of the Board’s credibility determinations were not related to matters
peripheral to Mr. Osagie’s claim. For example, the Board noted that Mr. Osagie
testified that he and Friday were unable to go out in public, yet wrote in his
PIF that they tried to lead a normal life. Moreover, he could not provide
consistent testimony as to where he was living during the times he was in
hiding from persecution due to his sexual orientation.
[58]
Therefore,
while it seems that the Board was satisfied that Mr. Osagie had likely been the
subject of an attack, it never specifically agreed to the motive of the attack
or its extent. Moreover, this did not preclude the Board from impugning his
credibility on other central matters of his claim, as it proceeded to do.
[59]
The
Court concludes that the errors committed by the Board justify its intervention
and that the application for judicial review should be granted.
[60]
The parties
were invited to present questions of importance for certification but declined.
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