Date: 20080204
Docket: IMM-561-07
Citation: 2008 FC 147
Toronto, Ontario, February 4, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
NELSON
IDAHOSA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant is a citizen of Nigeria who applies for refugee
protection based on a current threat to his life in Nigeria. The Refugee Protection Divisions of the
Immigration and Refugee Board (RPD) rejected the Applicant’s claim on a
negative credibility finding based primarily on a determination that critical
parts of his evidence are implausible.
[2]
The RPD
concisely describes the Applicant’s story as follows:
The claim for refugee protection is based
on the claimant’s fear of persecution on the grounds that he impregnated a
young woman [Doris] who was to be married to a rich man [Musa] and now the rich
man and her family are out to kill him.
(RPD Decision, p. 1)
[3]
In the
decision under review the
RPD characterized the Applicant as a “suitor and a caring father” and then made
negative implausibility findings because the Applicant failed to act in
accordance with the RPD’s understanding of what might be expected of the
Applicant acting in these roles.
[4]
Important features of
the Applicant’s evidence leading to the claim for protection are: Doris became
pregnant only one month after meeting the Applicant; upon learning of the
pregnancy, the Applicant expressed a willingness to create a family out of the
situation; Doris balked, and avoided telling the Applicant about Musa; Doris
resisted taking the Applicant to meet her parents; under threat of abortion,
Doris fled to have the baby and rejected the Applicant’s request to go with
her; in the course of their search for Doris, Doris’s parents came to the
Applicant’s home and made a death threat against the Applicant; upon learning
about the threat the Applicant wanted to talk to Doris’s parents, but his
mother advised against it; the threat was reported to the police; subsequently
the parents and Musa, acting together, came to the Applicant’s home and beat
him; after the Applicant went into hiding, his parents were beaten and were
hospitalized because they were seriously injured; the Applicant fled for Canada
in fear of his life and continues to be under death threat.
[5]
With respect to the
Applicant’s evidence it is important to note that, following the first threat
from Doris’s parents, while the Applicant had cursory contact with Doris, there
was no romantic content to it. Indeed, there is no clear evidence that he had any
contact with the child.
[6]
The RPD found that
the Applicant’s conduct with respect to not meeting the Applicant’s parents is
implausible:
It would have been logical to go to her
parents and ask for their blessing, but for unexplainable reasons this never
happened. I find it implausible that he did not take any action to formalize
their relationship. I further find it inconsistent that Doris, who is allegedly
capable of independent action, chose to leave her home to avoid the pressure of
abortion but was reluctant to take the claimant to meet her parents.
(RPD Decision, p.4)
The RPD also found that the Applicant’s conduct with respect
to not continuing the relationship with Doris and her child is implausible:
He still did not go to see his new born
daughter or Doris. He did not know when the baby was due. He does not know
where the mother and daughter are, today. While he calls Doris, his fiancée, he
has no picture of her or his daughter. His explanations for why he did not take
care of Doris and his daughter were
unsatisfactory. He testified he did not go to Kano [where Doris had fled] because he had never been
there and did not know how to get there. I find it implausible that a
professional driver with several years of driving experience in Nigeria is
incapable of finding his way to Kano
from Benin City to provide support for his
young girlfriend who is there to avoid forced abortion of their child. He
testified he did not go to her parents’ home after his daughter was born in
January 2006, because he was afraid. I again find it implausible that he would
be afraid when he personally had not been harmed until after Doris decided to
flee again. He did not allege any further contact or threats by her family
after the incident in August 2005, when his mother was mistreated. Finally, he
did not mention the first and only meeting with his newborn daughter in his
oral testimony during a lengthy hearing, until he was specifically asked about
her. Based on the evidence I find his actions inconsistent with his
allegations of a suitor and a caring father. For these reasons I am not
persuaded that his allegations of fathering a child are credible.
(Emphasis added)
(RPD Decision, p. 5)
[7]
To make an implausibility finding
according to law it is necessary for the RPD to set out what is expected of an
applicant’s behaviour, given the applicant’s specific circumstances, and then
to clearly given reasons as to why the applicant’s behaviour is outside of what
could reasonably be expected in the situation (Hilo
v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.); Valtchev v. Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. No. 1131).
[8]
In my opinion, the RPD’s characterization of the
Applicant as a “suitor and caring father” is a misunderstanding of the
evidence. The essential component of the situation, which the RPD failed to
take into consideration in making the implausibility findings, is that the
Applicant was under death treat. Given this fact it is not hard to understand
why he did not go to Doris’s parents
and did not react to the child’s birth as the RPD expected.
[9]
As a result, I find that the implausibility
findings are patently unreasonable, and, therefore, the RPD’s decision is made
in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision
and refer the matter back to a differently constituted panel for re-determination.
“Douglas
R. Campbell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-561-07
STYLE OF CAUSE: NELSON
IDAHOSA v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 24, 2008
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FEBRUARY 4, 2008
APPEARANCES:
Boniface Ahunwan FOR
THE APPLICANT
Sally Thomas FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Boniface
Ahunwan
Barrister
and Solicitor
Toronto, Ontario FOR
THE APPLICANT
John H. Sims, QC
Deputy Attorney General of Canada
Toronto, Ontario FOR
THE RESPONDENT
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