Docket: IMM-2594-17
Citation:
2018 FC 21
Ottawa, Ontario, January 10, 2018
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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CHINEDU
TOCHUKWU IKEME
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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]
The Applicant is a citizen of Nigeria and claims
refugee protection under ss. 96 and 97 of the Immigration and Refugee
Protection Act [IRPA] because he is a homosexual. His claim was denied by
the Refugee Appeal Division [RAD] on the basis of lack of credibility. For the
reasons that follow this judicial review is dismissed.
I.
Background
[2]
The Applicant alleges that from 1999 – 2010 he
was in a long term relationship with a man named EN. The relationship ended
with EN’s death in 2010. The Applicant claims that he conducted this
relationship in secret because of the perceptions of homosexuals in Nigeria and
the consequences of a public gay relationship.
[3]
In 2013, the Applicant states that he started to
see another man in Nigeria named OO.
[4]
In 2014, the Applicant left Nigeria to attend an
internship in Mexico. In 2015, the Applicant came to study in Canada.
[5]
After arriving in Canada, the Applicant claims
that he was informed that OO was caught kissing another man in a club and
subsequently arrested. Upon arrest, the police discovered a video on OO’s phone
depicting the Applicant and OO having sex. The Applicant alleges that his
father found out, and his father now insists that he return to Nigeria to
undergo a ritual to remove the “curse” of
homosexuality. The Applicant also fears the police and general persecution in
Nigeria.
[6]
In November 2016, the Refugee Protection
Division [RPD] denied the Applicant’s refugee claim. He appealed to the RAD.
II.
RAD Decision
[7]
The RAD noted that the Applicant’s credibility
as a gay man was the determinative issue, and accordingly held that it was not
required to conduct a section 97 analysis.
[8]
The RAD, like the RPD, noted that the
determinative issue was the identity of the Applicant as a homosexual. In considering
this, the RAD reviewed the RPD’s analysis of the Applicant’s evidence.
[9]
Regarding the Applicant’s relationship with EN,
the RPD noted an absence of any documentary evidence from the Applicant
regarding EN’s death or his funeral. While the RPD acknowledged that keeping
such evidence could be risky because of Nigerian attitudes towards homosexuals,
it found it concerning that the Applicant did not even attend EN’s funeral, in
light of his evidence that they spent “everyday
together.” Although the RAD found that the RPD may have been “overzealous” in seeking documentary evidence from the
Applicant considering societal attitudes, the RAD fundamentally agreed with the
RPD’s credibility finding.
[10]
The RAD next addressed the Applicant’s
relationship with OO. The Applicant argued that the RPD erred when it
determined that the Applicant’s credibility was undermined in absence of
documentary evidence such as emails, text messages, and telephone records
between the Applicant and OO. The RAD disagreed, and held that there at least should
have been text messages between the two given the fact that OO works in the
computer business and had a cellphone where the recording involving the
Applicant was found.
[11]
The RAD considered photographs, which the
Applicant alleged depicted him and his boyfriends. The RPD found that they did
not establish a same sex relationship and so assigned them no probative value.
The RAD agreed that photographs do not establish sexual identity.
[12]
The RAD affirmed the RPD’s decision to assign no
weight to an email from the Applicant’s older brother and an affidavit from the
Applicant’s younger brother. The email was offered to corroborate the
Applicant’s story that he was being sought by the police because of his outing
as a gay man. The affidavit stated that the Applicant’s life in Nigeria was in
danger from his family and the police. The RAD held that both documents could
not establish sexual identity and could not overcome the credibility concerns
cited by the RPD.
[13]
Finally, the RAD rejected letters from a mental
health counselor and from a gay support group in Toronto, because they did not
overcome the general credibility findings and could not establish the
Applicant’s homosexual identity.
III.
Issues
[14]
The parties agree that the issues are as follows:
- Did the RAD err
in its credibility findings regarding the Applicant’s homosexuality?
- Did the RAD err
by not undertaking a s.97 analysis?
IV.
Standard of Review
[15]
The standard of review on credibility findings is
reasonableness (Liang v Canada (Citizenship and Immigration), 2017 FC 1020
at para 7). This Court should not lightly interfere with credibility findings
made by the RAD and the RPD, which fall into the heartland of their
jurisdiction (Yan v Canada (Citizenship and Immigration), 2017 FC 146 at
para 18).
[16]
The s.97 question involves the RAD’s
interpretation of its home statute, and the interplay of the statutory
requirements with its credibility findings. The standard of review for this
question is also reasonableness (Canada (Citizenship and Immigration) v
Huruglica, 2016 FCA 93 at para 35).
A.
Did the RAD err in its credibility findings
regarding the Applicant’s homosexuality?
[17]
The Applicant argues that the RAD
inappropriately impugned his credibility by insisting on documentary evidence,
when much of that evidence could not be produced because the Applicant had to
conduct his relationships in secret. The Applicant argues that there is a
presumption that his evidence is truthful, and the RAD did not point to
alternative evidence to doubt the truthfulness of the evidence offered by the
Applicant.
[18]
On judicial review, the court is highly
deferential to RPD and RAD credibility findings, so long as they are reasonable
and not microscopic or overzealous (Attakora v Canada (Minister of
Employment and Immigration), [1989] FCJ No 44).
[19]
Accordingly, this Court has held that the RPD
and the RAD are entitled to make reasonable findings based on implausibilities,
inconsistencies, and omissions (Hohol v Canada (Citizenship and Immigration),
2017 FC 870 at para 19 [Hohol]).
[20]
A general finding of a lack of credibility based
on these inconsistencies can extend to all relevant evidence provided by an
Applicant (Lawal v Canada (Citizenship and Immigration), 2010 FC 558).
Findings based on implausibility of evidence should be only made in the
clearest of cases (Valtchev v Canada (Minister of Citizenship and
Immigration), 2001 FCT 776 at para 7), but even if explanations given by an
Applicant regarding this evidence can be plausible, the RAD is entitled to find
otherwise (Krishnapillai v Canada (Citizenship and Immigration), 2007 FC
563 at para 11).
[21]
Significantly for this case, as it pertains to
sexual orientation, a lack of corroborating evidence of one’s sexual
orientation, absent negative rational credibility or plausibility findings
related to that issue, is not enough to rebut the presumption of truthfulness
which extends to all applicants (Sadeghi-Pari v Canada (Minister of Citizenship
and Immigration), 2004 FC 282 at para 38; Hohol, at para 21).
(1)
Relationship with EN
[22]
The RAD relied on the RPD’s credibility finding
and impugned the Applicant’s credibility because he did not attend EN’s funeral.
The RAD also found that the RPD may have been overzealous in insisting on
documentary evidence from the funeral, but ultimately concluded that the RPD’s
credibility findings were reasonable.
[23]
These are all reasonable findings based on the
evidence. As above, the RAD is entitled to rely on internal inconsistencies in
the Applicant’s story. As the RAD noted, it is irrational to believe that the
Applicant would see EN everyday but not attend the funeral. While the Applicant
relies on Leke v Canada (Citizenship and Immigration), 2007 FC 848 at
para 20 for the proposition that the RAD should not insist on evidence of a
relationship that was conducted in secret, the RAD expressly noted the cultural
difficulties with homosexuality in Nigeria, and the good reasons why the
Applicant may not have corroborative evidence. Instead, the negative
credibility finding was drawn based on a perceived inconsistency; though the
Applicant testified that he was attending a youth service program at the time
of the death, the RAD found that if the Applicant spent every day with EN, he would
have attended the funeral.
[24]
This is a reasonable finding based on the
evidence, and is not outside of the range of acceptable outcomes because it is
directly related to the material issue—the Applicant’s sexual orientation.
(2)
Relationship with OO
[25]
The RAD affirmed the RPD’s negative credibility
findings respecting the lack of documentary evidence on the Applicant’s relationship
with OO. Specifically, the RAD found it incredible that the Applicant had no
email or text exchanges with OO given OO’s computer business and the fact that OO
owned a cell-phone (on which the alleged sex tape existed) and laptop computer.
[26]
Similarly, these findings are reasonable, based
on internal inconsistencies in the Applicant’s story.
[27]
Further, the Applicant offered no independent
evidence of the relationship. While the Applicant argues that sexual
orientation claims must be assessed with the a view to the difficulty of
establishing orientation (Ogunrinde v Canada (Public Safety and Emergency
Preparedness), 2012 FC 760 at para 42), and the fact that the Applicant
expressly conducted all of his communications with OO by private phone call,
the RAD specifically turned its mind to this consideration, and rejected the
Applicant’s explanation for failing to provide this information. The
communications which the RAD and RPD sought in this case are private
communications, and there is no reason why the Applicant could not have
produced them, even in light of the necessary secretiveness which would define
a Nigerian homosexual relationship.
[28]
While negative inferences cannot be drawn solely
from the failure to provide corroborating documents (Amarapala v Canada (Minister
of Citizenship and Immigration), 2004 FC 12), here however the RAD rejected
the explanation offered by the Applicant for failing to provide this evidence. Therefore,
it can draw that inference (Radics v Canada (Citizenship and Immigration),
2014 FC 110 at paras 30-32).
[29]
In the absence of corroborative evidence and the
other negative credibility findings, it was not unreasonable for the RAD to expect
evidence of private communications to establish sexual orientation.
(3)
Photographs
[30]
The RAD rejected the photographs offered by the
Applicant because the photographs alone do not establish sexual orientation.
[31]
Further, the RAD’s assessment of evidence should
not be reconsidered and substituted on judicial review (J.M. v Canada
(Citizenship and Immigration), 2015 FC 598 a para 48).
[32]
In these respects, the RAD’s finding was
reasonable.
(4)
Letters
[33]
The RAD assigned no weight to an email and
affidavit from the Applicant’s two brothers, on the grounds that the evidence
could not (1) overcome the general credibility concerns and (2) could not establish
the Applicant’s sexual identity or previous relationships.
[34]
This was a reasonable finding. Although evidence
cannot be rejected simply because it is not arm’s length (Kailajanathan v
Canada (Citizenship and Immigration), 2017 FC 970 at para 16), the evidence
must be corroborated to have probative value (Ferguson v Canada (Citizenship
and Immigration), 2008 FC 1067 at para 27).
[35]
In this case, there was little evidence to
corroborate the evidence offered by the Applicant’s brothers. In fact, for
example, the brother’s letter did not speak to the determinative issue: the Applicant’s
same sex relationships. Given the possible self-serving nature of the letter,
and the previous credibility findings, the RAD was entitled to give little
weight to the letter and the email.
[36]
Absent error, on judicial review it is not the
role of this Court to reweigh the evidence (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 61), and for that reason these
credibility findings were reasonable.
(5)
Letters of Support
[37]
The Applicant put forward letters from a mental
health counselor and a Toronto advocacy group. The RAD generally rejected this
evidence because it could not conclusively prove that the Applicant was a
homosexual.
[38]
For the same reasons as above, the RAD’s
assessment of evidence is owed deference. There is no basis for the Court to
intervene.
B.
Did the RAD err by not undertaking a s.97
analysis?
[39]
This Court has held that the tests under s.96
and s.97 are distinct (Ahmad v Canada (Minister of Citizenship and
Immigration), 2004 FC 808 at para 21). For that reason, as noted in Bouaouni
v Canada (Minister of Citizenship and Immigration), 2003 FC 1211 at para 41
[Bouaouni], negative credibility findings against an applicant under s.96
of the IRPA do not necessarily mean that an applicant is not a person in need
of protection under s.97. This is because s.97 of the IRPA primarily contains
an objective assessment of risk, and so credibility is not necessarily
determinative.
[40]
However, a separate s.97 analysis does not
always need to be done. The analysis of objective risk under s.97 must still be
individualized (Bouaouni, at para 41), so that there is a connection
between the general evidence and the applicant.
[41]
Accordingly, as the Federal Court of Appeal held
in Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381 at
para 3 [Sellan], a general negative credibility finding can dispose of a
s.97 claim in absence of analysis “unless there is
independent and credible documentary evidence in the record capable of
supporting a positive disposition of the claim.”
[42]
In this case, the negative credibility finding
under s.96 extends to s.97 because the findings go to the core of the Applicant’s
protection claim. Whether the Applicant is a person in need of protection is
heavily dependent on his status as a homosexual, which was not found credible
under s.96. Therefore, the credibility findings under s.96 were not peripheral
to this core issue. There was further no objective, corroborative evidence to
support a separate analysis under s.97, as required by Sellan. While
there is general country conditions evidence in the record to support the claim
that homosexuals are persecuted in Nigeria, that evidence is only relevant if
the Applicant’s status as a homosexual is proven. The RAD was not satisfied
that there was enough evidence on the record to establish that allegation.
[43]
Before the RPD, the onus was on the Applicant to
provide evidence of the central aspects of his claim, and if necessary, to
explain why he did not do so, according to Rule 11 of the Refugee Protection
Division Rules, SOR/2012-256. The Applicant failed to do so, and so the RAD
is entitled to take note of this failure.
[44]
In the circumstances, the RAD was entitled to
extend the s.96 credibility findings to the s.97 analysis. This was reasonable
and there is no basis for this Court to intervene.
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