Docket: IMM-2967-17
Citation:
2018 FC 107
Ottawa, Ontario, January 31, 2018
PRESENT: The
Honourable Mr. Justice Ahmed
BETWEEN:
|
BOLANLE REHANAT
OYEJOBI
|
Applicant
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This case concerns a decision (the “Decision”) of the Refugee Appeal Division (“RAD”) upholding a decision of the Refugee Protection
Division (“RPD”) to reject a claim for
protection. The Applicant is a 28 year old citizen of Nigeria. Although she is
married to a man, she claims to be bisexual and maintained a secret sexual
relationship with a woman in Nigeria. During a visit to Canada, her same-sex
partner was arrested in Nigeria and the Applicant’s sexual orientation was thereby
exposed. As such, she fears that that she may be subjected to “ritual cleansings” and female genital mutilation at
the hands of her father’s family, and her husband’s family, should she return
to Nigeria.
[2]
When preparing to hear the Applicant’s claim,
the RPD member noticed similarities between the Applicant’s Basis of Claim (“BOC”) narrative and that of another claimant. The RPD
member nevertheless began the hearing, adjourning shortly thereafter and citing
a need to inform the Minister of a possible integrity issue relating to the
Applicant’s BOC narrative. Upon continuation of the hearing, the Applicant
unsuccessfully brought a recusal motion, arguing that the RPD member had
already decided that the Applicant was not credible.
[3]
In its decision, the RPD found the Applicant to
lack credibility: it did not believe that the Applicant is a bisexual woman,
based on the credibility of her oral testimony and supporting documentation. She
appealed the RPD decision to the RAD. The RAD largely confirmed the credibility
findings of the RPD, as it found them to be reasonable. It furthermore reviewed
the Applicant’s documentary evidence and again agreed with the RPD’s
conclusions. The RAD also dismissed the Applicant’s arguments that the
procedure before the RPD was tainted by bias and procedural unfairness.
II.
Facts
[4]
Bolayne Rehanat Oyejobi (the “Applicant”) is 28 years old and a citizen of Nigeria.
She is married to A.L., who presently lives in Shagamu, Nigeria. She has one
daughter, Zainab, who was born on June 28, 2016.
[5]
The Applicant asserts that she is a bisexual
woman, and began having feelings for girls in her class and community at around
the age of 13 or 14. She began her first relationship with a girl, O.L., in her
second year of high school. The relationship involved sexual intimacy and was
kept secret, with the pair seeing each other every week or two weeks. In 2007,
the Applicant broke off the relationship after O.L. admitted to dating another
girl.
[6]
The Applicant had a second same-sex relationship
during her studies at Bowen University with a woman named K.O.; again, the
relationship involved sexual intimacy.
[7]
After graduating, the Applicant’s family
pressured her to marry. She met her current husband and began dating him while
simultaneously maintaining her relationship with K.O. She eventually married A.L.
on December 19, 2015, due to intense pressure by her family and the family of
her husband.
[8]
The Applicant came to Canada on January 31, 2016
for holidays. During her visit, she was informed that K.O. had been arrested
for the offence of homosexuality. The police had discovered text messages and suggestive
photos of the Applicant on K.O.’s phone, and K.O. admitted that they are
lovers. As such, the Nigerian police are reportedly searching for the
Applicant, having visited her family’s home on multiple occasions. She fears
that she could face persecution, including female genital mutilation and “ritual cleansings” at the hands of her father’s
family or her husband’s family, should she return to Nigeria.
III.
Decision Under Review
[9]
The Decision is organized around three issues,
as advanced by the Applicant on appeal to the RAD: the RPD breached the rules
of natural justice by exhibiting a reasonable apprehension of bias, the RPD
erred in its credibility assessment, and the RPD failed to analyze the
Applicant’s claim under s. 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (“IRPA”). The RAD reframes the
issue of natural justice as one of procedural fairness: namely, whether the RPD
exhibited an apprehension of bias.
[10]
The RAD found that the RPD member did not
exhibit a reasonable apprehension of bias. The RAD justifies the RPD’s approach
by citing the overlap in investigative and adjudicative functions of the RPD,
as well as the RPD’s statutory obligation to inform the Minister of any
perceived integrity issues. The RAD dismisses the Applicant’s argument that the
RPD member ought to have recused himself after stopping the hearing midway,
stating that this interpretation would require a de novo hearing anytime
the RPD discovers an integrity issue during the course of a hearing.
[11]
The RAD then reviews the RPD findings on
credibility with respect to: 1) the Applicant’s circumstance and realization of
bisexuality; 2) details of the Applicant’s relationship with O.L. and how it
ended; 3) details of the Applicant’s relationship with K.O.; 4) the veracity of
the Applicant’s last communication with K.O.; 5) the circumstances surrounding
the Applicant’s learning of K.O.’s arrest; and, 6) the lack of corroborating
evidence. The RAD affirms the majority of the RPD’s findings, determining that
the RPD erred only in its assessment of the Applicant’s last communication with
K.O. The RAD then conducts review of the documentary evidence and affirms the
RPD decision.
[12]
The RAD dismisses the Applicant’s argument that the
RPD erred in failing to conduct a s. 97 analysis, finding that the RPD’s
conclusion that the Applicant is not a bisexual woman meant that no further
analysis was necessary.
IV.
Issues
[13]
In my view, there is one central issue raised in
this appeal: did the RAD err in finding that the RPD did not commit a breach of
procedural fairness?
V.
Standard of Review
[14]
The standard of review applicable to questions
of procedural fairness is correctness: Adedipe v. Canada (Citizenship and
Immigration), 2017 FC 673 at para. 19. I shall adopt the correctness
standard in the case at bar.
VI.
Analysis
[15]
The Applicant submits that the RAD erred in
finding that the RPD committed no breach of procedural fairness. To support
this argument, the Applicant asserts that the RPD member approached the hearing
with a poisoned mindset, as evidenced by his conduct around the allegation that
the Applicant copied her BOC narrative from elsewhere. The Applicant points to
the RAD’s conclusion that “[h]ad this finding [about
the allegedly copied testimony] been the sole basis for the RPD’s negative
determination, the Appellant’s argument would be more convincing” as
evidence that the RAD wittingly or unwittingly acknowledged the RPD’s finding
was erroneous. The Applicant submits that, if one accepts that the RPD
approached the claim with a biased mindset, the other credibility findings are
irrelevant.
[16]
In contrast, the Respondent argues that the
hearing procedure was not unfair, and that there was no reasonable apprehension
of bias present throughout the proceeding. The Respondent recalls the RPD member’s
explanation for not notifying the Minister immediately after noting
similarities in the BOC narratives (i.e. he had not yet formed the opinion that
the Minister’s intervention was warranted). The Respondent further argues that
even if the RPD member ought to have adjourned the hearing prior to taking any
testimony, the Applicant has failed to demonstrate that a different outcome
would have resulted had the alleged error not occurred. The Respondent submits
that the RPD member’s decision to hear the Applicant’s testimony is actually
evidence of the fact that he was unbiased in his treatment of her case.
[17]
In my view, the RAD failed to reasonably
consider whether the RPD committed a breach of procedural fairness. The most
obvious evidence of this error is the RAD’s failure to fully analyze the RPD member’s
compliance with Rule 27 of the Refugee Protection Division Rules,
SOR/2012-256. Rule 27 states:
Notice to Minister of possible integrity issues before hearing
|
Avis au
ministre — questions concernant l’intégrité avant l’audience
|
27 (1) If the Division believes,
before a hearing begins, that there is a possibility that issues relating to
the integrity of the Canadian refugee protection system may arise from the
claim and the Division is of the opinion that the Minister’s participation
may help in the full and proper hearing of the claim, the Division must
without delay notify the Minister in writing and provide any relevant
information to the Minister.
|
27 (1) Si la Section croit, avant le début d’une
audience, qu’il est possible que des questions concernant l’intégrité du
processus canadien d’asile soient soulevées par la demande d’asile, et
qu’elle est d’avis que la participation du ministre peut contribuer à assurer
une instruction approfondie de la demande d’asile, elle, sans délai, en avise
par écrit le ministre et lui transmet tout renseignement pertinent.
|
Notice to Minister of possible integrity issues during hearing
|
Avis au
ministre — questions concernant l’intégrité pendant l’audience
|
(2) If the Division believes, after a
hearing begins, that there is a possibility that issues relating to the
integrity of the Canadian refugee protection system may arise from the claim
and the Division is of the opinion that the Minister’s participation may help
in the full and proper hearing of the claim, the Division must adjourn the
hearing and without delay notify the Minister in writing and provide any
relevant information to the Minister.
|
(2) Si la Section croit, après le début d’une
audience, qu’il est possible que des questions concernant l’intégrité du
processus canadien d’asile soient soulevées par la demande d’asile, et
qu’elle est d’avis que la participation du ministre peut contribuer à assurer
une instruction approfondie de la demande d’asile, elle ajourne l’audience
et, sans délai, en avise par écrit le ministre et lui transmet tout
renseignement pertinent.
|
[Emphasis added]
|
[Je souligne]
|
[18]
In my view, the RPD member ignored the provisions
of Rule 27. The RPD member claims to have not invoked the Rule 27(1) because he
was not of the opinion that the Minister could provide “meaningful
assistance” when he was preparing for the hearing, and then invoked Rule
27(2) once he determined that the allegedly copied passages “would need to be addressed after all.” This
explanation is simply repeated in the Decision without further analysis. I find
this to be problematic for at least three reasons.
[19]
First, the standard for notifying the Minister
is not when there is a belief that the Minister may provide “meaningful assistance;” rather, it is triggered as
soon as the RPD is of the opinion that the Minister’s participation “may help in the full and proper hearing of the claim”
(emphasis added). As such, the standard is much lower than the one employed by
the RPD member.
[20]
Second, I am unable to identify the precise
testimony from the Applicant that caused the RPD member to change his mind and
decide that the Minister’s assistance would, after all, be necessary to ensure
a full and proper hearing. I find this to be particularly troubling,
considering that the integrity issue was discovered prior to the hearing and
involved the copying of BOC narratives. In my view, it is not clear from the
RPD reasons how such an integrity concern would be resolved (positively or
negatively) through the Applicant’s oral testimony. In other words, and
contrary to the assertion of the RPD, the copying of BOC narratives would
present a significant integrity issue whether or not this Applicant is
believed to be bisexual.
[21]
Finally, my review of the transcript shows that
the RPD member actually did not invoke Rule 27(1) immediately because he was
trying to “give the client a chance.” As the RPD
member himself stated, he wanted to see if he could find the Applicant credible
(specifically with regard to her sexual orientation) – in spite of the
perceived integrity issue – such that he might grant the claim. While the RPD
approach is laudable in that it was likely motivated by a desire to give the
Applicant the benefit of the doubt, the RPD member did not do what Rule 27
requires him to do, and his actions cannot be cured by the ex post facto
explanation provided in the RPD decision. In my view, the RAD’s contemplation
as to whether the Applicant’s procedural fairness rights were breached was thus
unreasonable, as it failed to engage in any meaningful analysis of the application
of Rule 27.
VII.
Conclusion
[22]
The RPD committed a breach of procedural
fairness by failing to comply with its obligations under Rule 27 of the Refugee
Protection Division Rules; this error engages the Applicant’s procedural
fairness rights, and was not given due consideration by the RAD. I find that
the RAD’s finding with respect to this issue alone constitutes a reviewable
error of law, and therefore the Decision cannot stand.
VIII.
Certification
[23]
Counsel for both parties was asked if there were
questions requiring certification, they each stated that there were no
questions arising for certification and I concur.