Docket: IMM-2967-15
Citation:
2016 FC 710
Ottawa, Ontario, June 23, 2016
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
ITUA OSADOLOR IRIVBOGBE
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board of
Canada (“RAD”), dated June 10, 2015, in which the RAD confirmed the finding of
the Refugee Protection Division (“RPD”) that the Applicant is neither a
Convention refugee nor a person in need of protection pursuant to s 96 or s 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (“IRPA”).
Background
[2]
The Applicant is a citizen of Nigeria. On December
29, 2012, he arrived in Canada on a student visa. He subsequently applied for
a work permit to complete a co-op work placement and then for a further work
permit after completing his studies, both of which were granted. The Applicant
later applied for an extension of his work permit; however, his application was
refused on October 17, 2014. On October 31, 2014, the Applicant applied for
refugee status on the basis of his sexuality.
[3]
As set out in his Basis of Claim form (“BOC”),
the Applicant is married and has two children. He claims that his true sexual
orientation, as a bisexual, was exposed in Nigeria on October 26, 2014, when
compromising photographs of him and his same sex partner were discovered. He
claims that his partner was beaten and humiliated by the community, that his
sexuality was reported to his mother who threatened to disown him, and, that he
fears persecution in Nigeria on the basis of his sexual orientation.
[4]
In a decision dated January 7, 2015, the RPD
denied the Applicant’s claim, the determinative issue being credibility. The
RPD noted that while the Applicant testified that he had met his current
partner, Godwin Ogundipe (“Ogundipe”) on October 15, 2014, the Applicant had
not mentioned him in his BOC, which was signed on October 31, 2014. The RPD
did not accept the Applicant’s explanation for this omission, being that he did
not think it had anything to do with his persecution, given that the basis of
his entire claim rested on his bisexuality and such evidence would have directly
supported his purported bisexual identity. The RPD also found that the
December 30, 2014 affidavit sworn by Ogundipe, stating that he is the
Applicant’s current partner in Canada (“Ogundipe Affidavit”), was evasive and
lacking in detail. Further, while the Applicant stated during the hearing that
Ogundipe would provide testimony, he was not called as a witness. The RPD
ascribed little weight to this untested affidavit evidence. The RPD also noted
that the Applicant could produce only one text message between himself and
Ogundipe, which had been sent the morning of the hearing, and that he could not
access their messaging history. Nor could he produce any other messages or
emails. Given these facts, which undermined the Applicant’s credibility, the
RPD drew a negative inference with respect to his claim that he is in a same
sex relationship with Ogundipe.
[5]
The RPD also had concerns with the timing of the
Applicant’s application for refugee protection, which occurred 14 days after
the refusal of an extension of his most recent work permit. In November 2014,
nearly two years after his arrival in Canada and a month after he submitted his
claim for refugee protection, the Applicant joined various Lesbian Gay Bisexual
or Transgender (“LGBT”) organizations in Toronto. The Applicant explained that
he had not joined the organizations earlier because he was not “out” in Nigeria and did not want his sexual identity
to be exposed. It was only after it became known there in October 2014 that he
became a member of the organizations.
[6]
The RPD found that this was not a reasonable
explanation for the two year delay in making efforts to seek out organizations
for sexual minorities and that the Applicant had not engaged in homosexual
activities in Canada. The RPD therefore drew a negative inference as to the
Applicant’s overall credibility and found that he had undertaken these
activities to advance his refugee claim.
[7]
The RPD accepted that the Applicant attended
meetings at various LGBT organizations, but found that the primary purpose of
the Applicant’s involvement was to further his refugee claim and to bolster his
allegations of his sexual orientation.
[8]
The RPD also noted that the Applicant was unable
to recall the names of any venues frequented by the gay community except those
in which he claimed membership. The RPD found that photographs submitted by
the Applicant in support of his claim did not offer persuasive evidence to
support a conclusion, on a balance of probabilities, that the Applicant is
bisexual and, therefore, the photographs did not overcome the RPD’s credibility
concerns with respect to the Applicant’s sexual orientation.
[9]
As to a December 19, 2014 affidavit of Tochukwu
Nwachi (“Nwachi Affidavit”), which stated that he had witnessed the October
2014 incident in Nigeria involving the Applicant’s same sex partner, and an
email of October 26 from the Applicant’s brother expressing his disappointment
and shame stemming from the Applicant being gay, the RPD acknowledged the
consistency between those documents and the Applicant’s testimony concerning
the discovery of compromising pictures of himself and his same sex partner. However,
the RPD found that the two documents lacked detail and failed to overcome its
credibility concerns. It afforded them little weight in establishing the
sexual orientation of the Applicant as a bisexual.
[10]
Finally, the RPD found the psychological report
submitted by the Applicant to be unpersuasive as the allegations in that report
originated from the Applicant. Because the RPD had found the Applicant not to
be credible in respect of those same allegations, it gave the report little
weight in terms of establishing the Applicant’s sexual orientation.
[11]
Considering the Applicant’s evidence as a whole
and its credibility concerns cumulatively, the RPD found on a balance of
probabilities that the Applicant was not a credible witness and that there was
insufficient persuasive evidence as to his sexual orientation and concluded
that he had not established his sexual identity as a bisexual.
Decision Under Review
[12]
On the issue of the Applicant’s Canadian same
sex partner, the RAD found that if the Applicant was truly involved with a same
sex partner, it was reasonable to expect that he would have noted this in his
BOC since his entire claim rested on his identity as a bisexual and the
relationship would have provided direct evidence of his bisexuality. The
Applicant was represented by counsel at the time he filed his BOC and the
importance of including this information was evident. Although the RPD had
made other findings that also undermined the Applicant’s allegation that he is
involved in a same sex relationship in Canada, these had not been contested.
However, the RAD stated that, based on its own review and assessment of the
evidence, it found no errors with the RPD’s uncontested findings. On this
basis, the RAD agreed with the RPD that the credibility of the Applicant’s
allegation that he was involved in a same sex relationship was undermined.
[13]
The RAD noted that the RPD had also drawn adverse
credibility findings regarding the Applicant’s sexual identity based on the
combination of his immigration history, the timing of his claim, and, his
testimony concerning his activities in Canada. The RAD found the Applicant’s
explanation for the two year delay in joining LGBT organizations in Canada to
be unconvincing, given that the risk of his sexual orientation becoming known
to his family through his homosexual activities in Nigeria was much higher than
through his involvement with support groups in Canada.
[14]
However, the RAD agreed with the Applicant that
the RPD erred by impugning his credibility based on an inability to provide the
names of venues frequented by the LGBT community. The RPD had failed to
explain why it would be reasonable to expect the Applicant to possess such
knowledge. However, despite this error, the RAD found that the remaining
findings of the RPD were sufficient to undermine the Applicant’s claim based on
his bisexual identity. Based on the totality of the adverse findings and on a
balance of probabilities, the RAD agreed with the RPD’s finding that the
Applicant did not engage in any same sex activities in Canada and had attempted
to create that persona to advance his refugee claim.
[15]
The Applicant had submitted to the RAD that the
RPD had merely dismissed the affidavits and other corroborating evidence which
he had submitted in support of his claim. The RAD was not persuaded by this
argument and noted that the RPD had provided rationale beyond its credibility
findings in its analysis of the weight it should afford to the evidence. The
RAD further noted that it was open to the RPD to place little weight on the
psychologist’s report given the RPD’s credibility finding regarding the
Applicant’s claim and the fact that the report was based on self-reporting.
The RAD stated that following its own assessment of the evidence, it agreed
with the RPD’s findings.
[16]
Based on the totality of the evidence, the RAD
found and agreed with the RPD that the Applicant had not established his identity
as a bisexual. As the basis for his claim for refugee protection rested on
that identity, the claim could not succeed.
Issues
[17]
In my view, the points raised in the application
for judicial review can be distilled into a single issue, which is whether the
RAD’s assessment of the evidence and the Applicant’s credibility was
reasonable.
Standard of Review
[18]
The Applicant submits that reasonableness is the
standard of review applicable to the RAD’s assessment of the evidence but that
the RAD’s interpretation and application of the law attracts a correctness
standard (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). The
Respondent submits that the RAD’s assessment of the findings of the RPD with
respect to credibility attracts the standard of reasonableness (Dunsmuir
at para 51).
[19]
I would note that subsequent to the RAD’s
decision in this matter the Federal Court of Appeal issued its decision in Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93 [Huruglica FCA].
This found that the standard of review applied by this Court to RAD decisions
is reasonableness (Huruglica FCA at para 35; also see Gebremichael v
Canada (Citizenship and Immigration), 2016 FC 646 at para 8; Ghauri v
Canada (Citizenship and Immigration), 2016 FC 548 at para 22 [Ghauri];
Voloshyn v Canada (Citizenship and Immigration), 2016 FC 480 at para 15
[Voloshyn]; Sui v Canada (Citizenship and Immigration), 2016 FC
406 at para 14; Ketchen v Canada (Citizenship and Immigration), 2016 FC
388 at para 20).
[20]
In Ghauri, Justice Gleeson found with
respect to the standard of review applied to the RPD by the RAD, that:
[23] The RAD must apply the correctness
standard of review with respect to reviewing findings of law, as well as
findings of fact and mixed fact and law of the RPD that raise no issue of
credibility of oral evidence and must take a case-by-case approach to the level
of deference it owes to the relative weight of testimony and their credibility
or lack thereof (Huruglica at paras 37, 69-71, 103).
[21]
In this case the parties made no submissions
concerning the appropriate standard by which the RAD must review decisions of
the RPD nor has the Applicant asserted an error in that regard. I would note
that at the outset of its decision the RAD, referring to the then unsettled
state of the law concerning its role, relied on Alyafi v Canada (Citizenship
and Immigration), 2014 FC 952 for the proposition that, in the face of this
uncertainty, it was open to the RAD to apply either of the potentially
applicable approaches to the scope of its review of decisions of the RPD until
the matter was resolved by the Federal Court of Appeal or the Supreme Court of
Canada. Accordingly, it stated that it would follow Huruglica v Canada
(Citizenship and Immigration), 2014 FC 799 and conduct its own assessment of
the RPD’s decision and come to an independent assessment of whether the
Applicant is a Convention refugee. Deference would be afforded to the RPD’s
credibility or other findings where the RPD had a particular advantage in
reaching its conclusions. This approach was open to the RAD at the time that
it made its decision (Siliya v Canada (Citizenship and Immigration),
2015 FC 120 at para 21; Djossou v Canada (Citizenship and Immigration),
2014 FC 1080 at para 91; Canada (Citizenship and Immigration) v Alsha’bi,
2015 FC 1381 at para 36).
Analysis
Applicant’s Position
[22]
The Applicant’s submissions are repetitive,
largely unfocused and include many dated case references and quotes purporting
to support principles that the Applicant has not tied to the facts of the claim
or to an alleged reviewable error by the RAD. In essence, the Applicant
asserts that the RAD failed to appreciate the basis of the Applicant’s claim, a
fear of persecution based on his sexual orientation, and that this was an error
of law. Further, he asserts that it was inappropriate for the RAD to rely on
stereotypes in evaluating claims based on sexual orientation (Ogunrinde v
Canada (Public Safety and Emergency Preparedness), 2012 FC 760 at para 42).
The Applicant also submits that, despite evidence that he is being sought in
Nigeria because of his sexuality, the RAD unreasonably and microscopically
assessed his testimony and the documentary evidence. Further, whether or not
he has satisfactorily established his sexual identity in Canada, he argues that
he is still regarded as a bisexual in Nigeria and is at risk for that reason.
[23]
The Applicant also submits that it was
unreasonable for the RAD to ignore all of the evidence that corroborated his
claim and to impugn his credibility because he was not involved in same sex activities
and could not recall the names of locations in Toronto frequented by the LGBT
community. While the Applicant recognizes that a tribunal need not refer to
all the evidence in the record, he points out that it cannot take a selective
approach or ignore evidence that supports an applicant’s claim. The Applicant
argues that the RAD’s decision is unreasonable because it failed to give
adequate reasons to explain why this evidence did not support his claim.
[24]
The Applicant further submits that the RAD
unreasonably failed to consider the merits of the Applicant’s claim just
because it found the documentary evidence submitted by the Applicant not to be
credible in supporting his sexual identity. Minor inconsistencies in the Applicant’s
story are insufficient to reject all of the evidence (Mahathmasseelan v
Canada (Employment and Immigration), [1991] FCJ No 1110 (FCA)). Further,
the RAD’s negative findings as to the Applicant’s sexual identity coloured its
overall consideration of, and it was no longer capable of fairly or reasonably
adjudicating, the claim.
[25]
The Applicant finally submits that a plain
reading of s 111(1)(a) of the IRPA does not permit the interpretation
articulated by the RAD. The RAD had the authority to undertake its own
analysis of the evidence and to substitute the impugned decision with a
determination that should have been made. Here the RAD’s decision does not
show that it considered all of the evidence presented to the RPD or that it
conducted its own analysis.
Respondent’s Position
[26]
The Respondent submits that the RAD did not err
in assessing the RPD’s findings or in its own assessment with respect to the
Applicant’s credibility. The RAD assessed the RPD’s findings in light of its
own review of the evidence and agreed with the bulk of the RPD’s findings. The
RAD reasonably rejected the Applicant’s explanations as to his failure to
mention his same sex relationship in Canada in his BOC and why he delayed
joining various LBGT organizations. Although the Applicant asserts that the
RAD erred in impugning the Applicant’s credibility based on a lack of knowledge
of LGBT venues, the RAD in fact overturned the RPD’s finding on that point, but
found that the remaining findings were sufficient to undermine the Applicant’s
bisexual identity. The Respondent also submits that there is no merit to the
Applicant’s assertion that the RAD failed to appreciate the basis of his claim.
[27]
The Respondent further submits that the
Applicant’s assertions with respect to the treatment of the corroborating
evidence essentially concern the weighing of the evidence. Despite the
Applicant’s assertion that the RAD attached no weight to his evidence, the
Respondent submits that the RAD, in fact, properly noted some credible aspects
of the Applicant’s claim, but found they were insufficient to establish his
sexual identity. And while the Applicant asserts that the RAD ignored
documentary evidence and testimony and adopted a microscopic analysis, the
Applicant does not specify the evidence that was ignored. While the Applicant
asserts that his alleged same sex partner’s affidavit should not be disbelieved
simply because he was not cross-examined, this ignores the additional facts on
which the non-credibility findings were grounded by the RPD and agreed with by
the RAD.
[28]
Finally, the Respondent notes that while the
Applicant raises many legal propositions and makes various unsupported claims,
nothing in his submissions suggests a reviewable error.
Analysis
[29]
Pursuant to s 111(1) of the IRPA, the RAD, after
considering the appeal shall make one of the following determinations: confirm
the determination of the RPD (s 111(1)(a)); set aside the RPD’s determination
and substitute a determination that, in its opinion, should have been made (s
111(1)(b)); or, refer the matter to the RPD for re-determination, giving
directions to the RPD that it considers appropriate (s 111(1)(c)). In this
case, the RAD stated that, pursuant to s 111(1)(a), it confirmed the
determination of the RPD and dismissed the appeal. Accordingly, I see no merit
in the Applicant’s undeveloped assertion that the RAD misinterpreted s
111(1)(a). While it is true that the RAD also has the authority to set aside
the RPD’s decision and substitute its own determination, it is not a reviewable
error, in and of itself, to decline to do so.
[30]
The Applicant also submits that the RAD failed
to appreciate the basis of his claim, a fear of persecution based on his sexual
orientation. There is no merit in this assertion. The RAD acknowledged that
the RPD had noted that the Applicant’s entire claim rested on his identity as a
bisexual and the RAD’s decision concerns the Applicant’s credibility with
respect to his same sex relationship in Canada and the establishment of his
sexual identity as a bisexual. Similarly, the Applicant’s submission that the
RAD based its decision on stereotypes and Western standards has no merit. The
Applicant does not tie this assertion to any specific aspect of the RAD’s
decision. However, I would note that the RAD specifically overturned the RPD’s
finding that the Applicant was not credible because, other than one club, he
could not name venues in Toronto frequented by the LGBT community. The RAD
found that the RPD’s finding was not supported by reasons or the record.
[31]
The Applicant also submits that the RAD ignored
or failed to “adequately refer” to documentary
evidence. It is well-established that, absent contradictory evidence that goes
unmentioned, decision-makers are presumed to have considered all of the
evidence and need not refer to every piece of evidence in the record (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16 [NL Nurses]; Cepeda-Gutierrez v Canada
(Citizenship and Immigration), (1998) 157 FTR 35 (Fed TD) at para 16). The
bar for finding a decision unreasonable based on a failure to mention evidence
is high; the evidence must relate to a central issue and contradict a
decision-maker’s finding (Voloshyn at paras 17-18). As the Respondent
points out, the Applicant does not specify what evidence the RAD allegedly
ignored. It is also difficult to reconcile the Applicant’s submission that the
RAD unreasonably microscopically and zealously reviewed the evidence with his
submission that the RAD ignored it.
[32]
The RAD also noted, as found by the RPD, that
the Applicant’s alleged same sex partner was not mentioned in his BOC. The RAD
agreed with the RPD that, because the Applicant’s entire claim rested on his
identity as a bisexual, it was reasonable to expect that if he was involved
with a same sex partner in Canada that he would have included this information
in his BOC, as it would have provided direct evidence of his bisexuality. I
note that jurisprudence has established that omissions from a BOC narrative may
ground adverse credibility findings where the omission is significant, material
or central to the claim (Akhigbe v Canada (Citizenship and Immigration),
2002 FCT 249 at paras 15-16 (Fed TD); Samseen v Canada (Citizenship and
Immigration), 2006 FC 542 at paras 14-17). Although the Applicant is
correct that minor inconsistencies are not grounds to undermine his
credibility, the RAD clearly found this inconsistency to be significant. As
the RAD noted, the Applicant’s sexuality is the basis for his claim and,
because he was represented by counsel when he prepared his BOC, he would have
known the importance of proving this aspect of his claim. In my view, this
conclusion and the RAD’s finding that the credibility of the Applicant’s
allegation that he was involved in a same sex relationship in Canada was
thereby undermined were reasonable.
[33]
Similarly, the RAD’s rejection of the
Applicant’s explanation as to why he delayed in joining LGBT community
organizations, until nearly two years after his arrival in Canada and a month
after he made his refugee claim, was reasonably open to the RAD and has not
been challenged by the Applicant. The RAD’s conclusion, on the basis of the
totality of the adverse findings, that it agreed with the RPD that the Applicant
did not engage in any same sex activities in Canada and had attempted to create
this persona to advance his refugee claim was also reasonably open to it based
on the record.
[34]
The RAD stated that it would defer to the RPD’s
credibility findings where the RPD had a particular advantage in reaching its
conclusions. In its reasons, when adopting the RPD credibility findings, it
did not indicate what the advantage of the RPD might have been. It did state
throughout its decision that it had conducted its own, independent assessment
of the evidence, which is evident from the fact that it overturned the RPD’s
adverse credibility finding based on the Applicant’s inability to recall the
names of LGBT venues and its reasoning in rejecting the Applicant’s explanation
for his delay in joining LGBT support groups. However, as the Applicant
submits, the RAD mainly adopted the reasoning and findings of the RPD. It did
not identify the evidence that it considered, other than the explanations of
the Applicant which it rejected and the psychologist’s report, or specifically
refer to the transcript or his testimony.
[35]
In that regard, with respect to the
corroborating documents, the RAD noted the Applicant’s submission that the
documents had been dismissed by the RPD on the ground that he was not credible
and that the veracity of the documents had not been weighed. The RAD also
noted that the RPD had drawn an adverse credibility finding based on the
Applicant’s allegation that he was involved in a same sex relationship in Canada
which was grounded on three factors: his failure to mention his Canadian same
sex partner in his BOC; limited evidence of their relationship; and, while he
testified that his partner was willing and able to testify at the hearing, the
Applicant failed to arrange for him to do so. Before the RAD, the Applicant
challenged only the RPD’s finding concerning the omission from the BOC and, as
discussed above, the RAD assessed this and reached its own negative credibility
finding. However, the RAD also stated that, based on its own review and
assessment of the evidence, there were no errors with the uncontested
findings. While its reasons did not specify this, the limited corroborative
evidence of the alleged relationship was comprised of the Ogundipe Affidavit,
which the RPD found lacked detail and was not sufficiently persuasive to
overcome its credibility concerns. In my view, the RPD’s assessment of this
document relied in part on an assessment of the Applicant’s testimony. The RPD
discussed the Applicant’s testimony about Ogundipe in its decision, including
his lack of electronic communication with his alleged partner and Ogundipe’s
failure to appear to testify. It was within this context that the RPD made its
credibility findings on the Ogundipe Affidavit. Therefore, in my view,
although not explicitly challenged by the Applicant, it was also reasonable for
the RAD to defer to or adopt these findings given that the RPD had the
advantage of hearing the Applicant’s testimony.
[36]
As to the psychologist’s report, which
post-dates the Applicant’s claim for refugee protection, the RAD found that
because it was based on self-reporting by the Applicant and because the RPD had
found the Applicant not to be credible, it was open to the RPD to give it
little weight and, based on its own assessment of the evidence, the RAD agreed
with the RPD’s finding. Thus, contrary to the Applicant’s submissions, the
report was not ignored. It is also of note that the RAD does not take issue
with the diagnosis that the Applicant suffers from a major depressive disorder,
moderate, single episode, high anxiety and has had a panic attack. Nor has the
Applicant alleged that the RAD erred in failing to consider the impact of the
diagnosis should he be returned to Nigeria. Rather, because of the lack of
credibility and regardless of the diagnosis, the report does not assist the
Applicant in establishing his sexual identity as a bisexual, which is what the
RPD found and which finding was adopted by the RAD. I see no error in this
finding as the recounting of events to a psychologist does not make the events
themselves more credible (Rokni v Canada (Citizenship and Immigration),
[1995] FCJ No 182 at para 16; Danailov v Canada (Employment and Immigration),
[1993] FCJ No 1019 at para 2; Egbesola v Canada (Citizenship and
Immigration), 2016 FC 204 at para 12; Moya v Canada (Citizenship and
Immigration), 2016 FC 315 at para 57).
[37]
Two other corroborating documents referred to by
the RPD were the Nwachi Affidavit and an email from the Applicant’s brother. The
RPD acknowledged that these documents were consistent with the Applicant’s
testimony that compromising pictures had been discovered in Nigeria. However,
it found that they failed to overcome its other credibility concerns. For that
reason, they were afforded little evidentiary weight in establishing the sexual
orientation of the Applicant.
[38]
As noted above, with the exception of the
psychologist’s report, the RAD referred to the corroborative evidence only
generally. It made no specific reference to the Nwachi Affidavit, the email,
or the photographs and letters submitted by the Applicant. It stated that,
having reviewed and assessed the evidence, it found that “the RPD provided rationale beyond the credibility of the
Appellant in its analysis of the weight it should afford the Appellant’s
supporting documents”. Later in its reasons the RAD found that based on
the totality of the evidence, the Applicant had not established his identity as
a bisexual.
[39]
The Nwachi Affidavit and the email from the
Applicant’s brother speak to the discovery in Nigeria of the Applicant’s bisexuality
in October 2014. Thus, in addition to corroborating his identity as a bisexual,
the documents also support the Applicant’s explanation for his delay in joining
LGBT organizations in Toronto as they suggest that the Applicant’s community in
Nigeria was unaware of his sexuality prior to October 2014. However, the RPD
acknowledged this consistency but found that the documents lacked detail and
failed to overcome its credibility concerns, and it afforded them little
weight. The RAD stated that it had conducted its own assessment of the
evidence and agreed with the RPD’s finding. While it would have been
preferable for the RAD to have explained why it agreed, as it was adopting the
RPD’s reasons it did not err by failing to repeat them. Further, the fact that
the RAD did not refer specifically to the evidence does not preclude the Court
from understanding why the RAD made its decision and permits it to determine
whether the conclusion is within the range of acceptable outcomes (NL Nurses).
[40]
For these reasons I find that the RAD’s decision
was reasonable and the application for judicial review is therefore dismissed.
[41]
The Applicant submits the following question for
certification pursuant to s 74(d) of the IRPA:
Whether finding of credibility [sic] on the
applicant’s gay activities in Canada by extension discredits the applicant’s
claim respecting his bi-sexual persona in Nigeria.
[42]
The Respondent opposes the Applicant’s request to
certify a question and submits that the question does not meet the test for
certification (Gechuashvili v Canada (Citizenship and Immigration), 2016
FC 365 at para 26).
[43]
The test for certification was restated by the
Federal Court of Appeal in Lin Zhang v Canada (Citizenship and Immigration),
2013 FCA 168 as follows (at para 9):
... that to be certified, a question must
(i) be dispositive of the appeal and (ii) transcend the interests of the
immediate parties to the litigation, as well as contemplate issues of broad
significance or general importance. As a corollary, the question must also have
been raised and dealt with by the court below and it must arise from the case,
not from the Judge's reasons.
(Also see Varela v Canada (Citizenship
and Immigration), 2009 FCA 145 at paras 28-30; Canada (Citizenship and
Immigration) v Zazai, 2004 FCA 89 at para 11)
[44]
In my view the question as proposed does not
transcend the interests of the immediate parties to the litigation nor
contemplate issues of broad significance or general importance. I therefore
decline to certify the question proposed.
Email this Content