Docket: IMM-5109-16
Citation:
2017 FC 611
Ottawa, Ontario, June 21, 2017
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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LINDA ERUNWON
GARRICK
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
If Ms. Garrick is, as she says, bisexual and
known to the Nigerian police to be such, surely she would be at risk of
persecution were she to be returned there, as homosexuality is a crime in
Nigeria. However, the Member of the Refugee Protection Division of the
Immigration and Refugee Board of Canada who heard her case did not believe her;
did not believe she was bisexual; did not believe she had any fear of returning
to Nigeria. The whole story was made up to gain status in Canada. This is the
judicial review of that decision.
[2]
In 1995, when Ms. Garrick was 13 years old, she
began to realise that she was interested in girls. Over the next several years,
she had both heterosexual and homosexual relationships.
[3]
She became involved with a group of women known
as the “Sunshine Sisters” who were closet lesbians.
She obtained a visa and accompanied them on a trip to the United States from
October 2014 to April 2015.
[4]
While in the United States, she met a woman by
the name of Queen, a Canadian citizen, who was visiting her relatives in the
United States. They were attracted to each other, but Ms. Garrick’s visa was
expiring, and she had to return to Nigeria.
[5]
They carried on a long distance telephone
romance. Queen encouraged Ms. Garrick to visit her. She did not have a Canadian
visa, but was able to visit the United States again. Queen paid her way, met
her there, and they spent some time together.
[6]
In May 2016, while still in the United States,
she received a call from a Nigerian ex-partner, Maureen, who informed her that
another Nigerian ex-partner, Adesuwa, had been caught in a same-sex
relationship and forced to give up the names of former partners.
[7]
Queen encouraged her to come to Canada. She
presented herself at the border and claimed refugee protection. However, Queen
is now said to be married and ended the relationship.
[8]
Ms. Garrick was entitled to make her refugee
claim in Canada as an exception to the Safe Third Country Agreement with the
United States because she had family in Canada (s 101(1)(e) of the
Immigration and Refugee Protection Act (IRPA) and r 159.5 of the Immigration
and Refugee Protection Regulations (IRPR)).
[9]
That being said, having come to Canada via the
United States, she was not entitled to an appeal before the Refugee Appeal
Division (ss 102(1) and 110(2)(d), as well as rr 159.1 and 159.3 IRPR).
Her only recourse, thus, was an application for leave and judicial review,
pursuant to s 72(1) IRPA.
I.
Analysis
[10]
The issue is not whether Ms. Garrick is
bisexual. The issue is whether it was reasonable for the Member to decide that
she was not and, in any event, to hold that she did not fear returning to
Nigeria. The standard against which I must analyse the decision is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[11]
As regards Ms. Garrick’s sexuality, the Member’s
analysis began with Queen. She was not called as a witness, although she was
said to live in Brampton, Ontario. No evidence was adduced that she had paid
Ms. Garrick’s way to the United States.
[12]
It was open to the Member to find that there was
no relationship between Ms. Garrick and Queen, and perhaps even to find that
Queen did not exist.
[13]
Although it was determined that Ms. Garrick was
not credible, it could also have been found that she had not met the burden of
proof which is on the balance of probabilities (F. H. v McDougall, 2008
SCC 53, [2008] 3 S.C.R. 41; see also Parshottam v Canada (Minister of
Citizenship and Immigration), 2008 FCA 355; or Canada (Citizenship and
Immigration) v Zeng, 2010 FCA 118).
[14]
There were letters of support from Ms. Garrick’s
mother, brother, and sister. No weight was given to them on the basis that they
were self-serving. That is an incorrect characterisation. But the fact remains
that they added nothing to the story, as they were not aware of Ms. Garrick’s
sexuality until recently. Evidence from a family member cannot be automatically
discounted simply because it might be self-serving. One must make one’s case (see
Islam v Canada (Citizenship and Immigration), 2015 FC 1246 at para 25 and
cases cited therein).
[15]
Likewise, letters from organisations which are
friendly to the LGBTQ+ community do not in themselves establish Ms. Garrick’s
sexual orientation.
[16]
However, it is in the Member’s analysis of
events in Nigeria that his zealotry in justifying his decision rendered the
decision unreasonable.
[17]
A refugee applicant is presumed to be telling
the truth (Maldonado v Canada (Minister of Employment and Immigration), [1980]
2 FC 302 (FCA); see also Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 29). The Member was aware of Maldonado as he cited
it in his decision. Reasons must be given for disbelieving the claimant (Punniamoorthy
v Canada (Minister of Employment and Immigration), (1994) 113 DLR (4th) 663
at paras 10 and 17 (FCA)). The reasons given are simply unacceptable (Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association,
2011 SCC 61, [2011] 3 S.C.R. 654; Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
[18]
Maureen was said to be a schoolmate. No evidence
was produced that Maureen attended the same school. How would Ms. Garrick prove
that fact, other than by the letter she produced from Maureen? Should she have
anticipated the demand and asked Maureen to obtain her school records? If the
situation in Nigeria is the same as here, surely Ms. Garrick could not have
obtained such evidence directly. A copy of Maureen’s identity card was
produced. Ms. Garrick was chastised because it had not been certified by an
independent, reliable source. Furthermore, the original identity document was
not produced at the hearing. The Member was not satisfied that the identity document
was authentic and is of Maureen.
[19]
All I can say is that no one in her right mind
would give up her original identity card. While it is possible that the copy is
fraudulent, there is a presumption that a document purportedly issued by a
foreign government is authentic (see Masongo v Canada (Citizenship and
Immigration), 2008 FC 39 at para 12 and cases cited therein). It is not
enough to say, as the Member did, that forged documents are easily available in
Nigeria. That may be so, but it does not automatically follow that this
document was fraudulent (Cheema v Canada (Minister of Citizenship and
Immigration), 2004 FC 224 at para 7).
[20]
As regards Adesuwa, a photograph of her was
produced. The Member noted “the photograph contains the
claimant and another female”. However, it was not dated, nor was Adesuwa
identified by a Notary Public, and there was no indication that the photograph
was taken in Nigeria. If Ms. Garrick was lying at the hearing, she could just
as easily have lied before a Notary Public.
[21]
I can only conclude that the Member was of the
view that Ms. Garrick had to prove her case beyond a reasonable doubt. That is
an error in law. That is not the burden she had to meet. There is simply no way
of knowing what the outcome would have been had the proper burden of proof been
applied. Accordingly, his decision is unreasonable and must be set aside.
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