Docket: IMM-617-20
Citation: 2021 FC 204
Ottawa, Ontario, March 4, 2021
PRESENT: The Honourable Mr. Justice Brown
| BETWEEN:
|
| JOY OMOSIGHO OVIAWE
OSAYAWEMWEN ALICIA OVIAWE
OSAGBEMWENORHUE VICTORY OVIAWE
OSARUMEN DIVINE OVIAWE
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board, which upheld the decision of the Refugee Protection Division [RPD]. The RAD determined the Applicants are not Convention refugees nor persons in need of protection pursuant to section 96 and section 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA] [Decision].
II.
Facts
[2]
The Applicants, a mother (Principal Applicant) and her three minor daughters are citizens of Nigeria. In her Basis of Claim [BOC], the Principal Applicant says she is a bisexual woman and Nigeria has no tolerance for sexual minorities like her. She says it is against the law to be involved in a same sex relationship and the penalty for violation is 14 years imprisonment.
[3]
The Principal Applicant says she has been a victim of abuse since her youth. She discovered she was bisexual at the age of 11 and her first relationship was with a friend who eventually moved away. In 2004, she began a secret relationship and in December 2009, her girlfriend’s brother secretly recorded them together. He began to blackmail the Principal Applicant to have relations with him or he would tell everyone that she was a lesbian.
[4]
He forced the Principal Applicant to have sex with him and she got pregnant. She started living with him in March 2010 and he said if he found she was in a relationship with another woman, he would kill her. Overtime she had three daughters and he was not happy that she gave birth to girls. He said her daughters would grow up and become lesbian. She says she was continuously threatened and beaten and became depressed. He would also cheat on her and threw a glass at her, injuring her right thigh.
[5]
She became pregnant again. He became mad and asked her to get an abortion because he did not want another daughter. She refused and her physical and psychological torture increased.
[6]
The Principal Applicant states he started dating another girl. One day, the new girlfriend tried to come into the house, the Principal Applicant tried to stop her, and they ended up in a fight. He sided with the new girlfriend and pushed the Principal Applicant to the ground, kicked her head causing blood to gush out of her nose and mouth. She ended up having a miscarriage.
[7]
The Principal Applicant states her boyfriend’s mother is an influential woman, delivers babies and carries out circumcisions for males and females. On December 28, 2015, the mother “summoned”
the Principal Applicant and told her that her oldest daughter would be circumcised after her next birthday according to their family custom and tradition. The Principal Applicant said she would not allow her daughter to be circumcised but her boyfriend’s father said it would have to be done and she did not have a say. Her boyfriend supported his parents, said it was part of an age long family custom, and all his sisters and nieces were circumcised.
[8]
In January 2016, the Principal Applicant said she fled from the city they were living in to another with her three daughters. She stayed with a friend who arranged for the Applicants to flee. In May 2016 the Applicants left Nigeria and went to the United States of America.
[9]
The Principal Applicant met with an immigration lawyer in the US who required a fee of $4,000. The Applicants could not afford this so did not seek asylum in the US.
[10]
A member of her church told her that Canada might be an option. The church helped the Applicants by raising US $380 and bought bus tickets for the Applicants who entered Canada on in June, 2018.
[11]
The Applicants claims were dismissed by the RPD due to lack of credibility.
III.
Decision under review
[12]
The RAD found the RPD erred in some respects but in totality found the Applicants had not established their claims. The RAD found the Applicants were not credible because: (i) the Principal Applicant’s testimony regarding the family’s departure from Nigeria was inconsistent and evolving; (ii) the allegation her mother was threatened by her boyfriend was omitted from her BOC; (iii) the Applicant’s partner was not credible in giving evidence; and (iv) largely because of the negative credibility findings, the supporting documents provided were given little weight.
IV.
Issues
[13]
The only issue is whether the Decision is reasonable.
V.
Standard of Review
[14]
In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post] Justice Rowe said that Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] set out a revised framework for determining the applicable standard of review for administrative decisions. The starting point is a presumption that a standard of reasonableness applies. This presumption can be rebutted in certain situations, none of which apply in this case. Therefore, the Decision is reviewable on a standard of reasonableness.
[15]
In Canada Post, Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[16]
The Supreme Court of Canada in Vavilov, at para 86 states “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies.”
The reviewing court must be satisfied the decision maker’s reasoning “adds up”
:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[17]
Furthermore, Vavilov directs that the role of this Court is not to reweigh and reassess the evidence except in exceptional circumstances:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[18]
See also Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 [Gascon J] which Vavilov cites at the para 125 just quoted:
[55] In reasonableness review, the reviewing court is concerned mostly with “the existence of justification, transparency and intelligibility within the decision-making process” and with determining “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 14). When applied to a statutory interpretation exercise, reasonableness review recognizes that the delegated decision maker is better situated to understand the policy concerns and context needed to resolve any ambiguities in the statute (McLean, at para. 33). Reviewing courts must also refrain from reweighing and reassessing the evidence considered by the decision maker (Khosa, at para. 64). At its core, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution.
[Emphasis added]
[19]
See also Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 [Binnie J]:
[64] In this case, both the majority and dissenting reasons of the IAD disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of Khosa’s expression of remorse, as was pointed out by Lutfy C.J. According to the IAD majority:
It is troublesome to the panel that [Khosa] continues to deny that his participation in a “street-race” led to the disastrous consequences. . . . At the same time, I am mindful of [Khosa’s] show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge’s finding of this remorse . . . . This show of remorse is a positive factor going to the exercise of special relief. However, I do not see it as a compelling feature of the case in light of the limited nature of [Khosa’s] admissions at this hearing. [Emphasis added; para. 15.]
According to the IAD dissent on the other hand:
. . . from early on he [Khosa] has accepted responsibility for his actions. He was prepared to plead guilty to dangerous driving causing death . . . .
I find that [Khosa] is contrite and remorseful. [Khosa] at hearing was regretful, his voice tremulous and filled with emotion. . . .
. . .
The majority of this panel have placed great significance on [Khosa’s] dispute that he was racing, when the criminal court found he was. And while they concluded this was “not fatal” to his appeal, they also determined that his continued denial that he was racing “reflects a lack of insight.” The panel concluded that this “is not to his credit.” The panel found that [Khosa] was remorseful, but concluded it was not a “compelling feature in light of the limited nature of [Khosa’s] admissions”.
However I find [Khosa’s] remorse, even in light of his denial he was racing, is genuine and is evidence that [Khosa] will in future be more thoughtful and will avoid such recklessness. [paras. 50-51 and 53-54]
It seems evident that this is the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts.
[Emphasis added]
VI.
Analysis
[20]
The Applicants’ submit the RAD erred in its assessment of the Applicants’ credibility and its assessment of the Applicants’ supporting documents.
[21]
The Respondent submits the RAD’s determinations regarding the negative credibility inferences and weighing of the evidence were reasonable, and the Applicants are putting forward alternative interpretations of evidence without showing any unreasonableness in the Decision.
A.
Applicants’ Credibility
(1)
Applicants’ departure from Nigeria
[22]
The RAD found the Applicants gave internally inconsistent testimony about the journey out of Nigeria. At the RPD hearing, the Principal Applicant was asked how she left Nigeria with three young children when their father neither travelled with them nor provided a required consent letter. The Principal Applicant originally said they travelled alone, but after questioning, stated another man with the same last name travelled with them. She explained she did not mention this man because he only travelled with them from Lagos to the US and not within Nigeria. The RAD did not accept the explanation the Applicant had misheard or misunderstood the question, suggesting instead that the Applicant had in effect misled Nigerian border personnel with the man posing as the children’s father. This critical omission led to a finding by the RAD that the Applicants had not left as previously stated, and resulted in the RAD taking a negative credibility inference regarding the Applicants’ claims overall. The RAD held this representation rebutted the presumption of truth.
[23]
The Applicants submit they need to establish their claims on the balance of probabilities and there is no requirement for testimony or evidence to be flawless, it must only be plausible. In assessing plausibility, the Applicants submit the RAD should have been mindful of the stress of the hearing room and nature of the proceedings in general. They submit nervousness was plausible and may result in a refugee claimant misunderstanding questions being posed.
[24]
The Applicants submit the RAD’s finding assumes the Principal Applicant and this man coordinated their exits from Nigeria. The Applicants submit the Decision is unreasonable to the extent this assumption influenced to the Decision. However, the RAD held the Principal Applicant’s testimony suggesting this man posed as the children’s father when leaving Nigeria was “a significant omission from and inconsistency with her previous testimony that she was not asked for documentation from the children’s father.”
In my respectful view, the RAD’s conclusions on this aspect of the Applicants’ narrative were reasonably open to it particularly because it relates to such a significant event.
[25]
The Applicants further submitted the RAD should have been mindful of the Principal Applicant’s psychotherapist report which states:
Ms. Oviawe often feels distracted by negative and scary thoughts, which causes her to experience cognitive issues. She reports to be having problems with concentration and focus which interferes with fluidity of thought and daily tasks. Ms. Oviawe also has impaired short-term recall (i.e. short-term memory loss) which causes her to have difficulty retaining or recalling information. It is important to note that concentration and memory problems are very common among people who have been exposed to trauma and high levels of stress. The pressure that is inherent to the high-stakes context of immigration proceedings can easily exacerbate or amplify this stress causing a person to have difficulty understanding questions, retrieving specific details of the past or formulating a coherent response. The person may request for questions to be repeated or rephrased, and these stress-related cognitive problems can lead to difficulties in providing clear and consistent testimony. Should such problems arise, it will be important to understand that the person is likely responding to the disorganizing effects of traumatic stress rather than being dishonest or evasive.
[26]
The Respondent submits, and in my view it is undeniable that the RAD explicitly considered the psychotherapist’s report:
[31] The Appellants have submitted a report from psychotherapist and a letter from the Canadian Centre for Victims of Torture. Each of these documents are psychological reports which indicate symptoms that I have taken into consideration when assessing the Principal Appellant’s testimony.
[27]
In this connection, I note it is long settled in the jurisprudence that a tribunal is entitled to draw negative inferences from omissions and inconsistencies between written and oral evidence. This, with respect, is what the RAD reasonably did in this case. While the Applicants may not agree with the result, in my view they are unable to assert unreasonableness in this regard.
(2)
Basis of Claim narrative omission
[28]
At the RPD hearing, the Principal Applicant testified she spoke with her mother on the phone a few days after she left Nigeria. Her mother told her that her prior boyfriend was causing a ruckus while looking for the Applicants, and had threatened to burn down the mother’s house. This incident was not set out in the Principal Applicant’s BOC. The RAD reasonably found this omission was material because it illustrated the Applicants’ allegation that her allegedly abusive boyfriend was searching for them in Nigeria.
[29]
While the Applicants acknowledge this event could have been included in the BOC, they submit its omission does not necessarily mean the Principal Applicant was deliberately withholding information. The Principal Applicant is a vulnerable, abused woman with three young children. The report from her psychotherapist shows that her memory is impaired – something exacerbated when she is exposed to stress, such as matters related to her immigration in Canada.
[30]
The Applicants submit the RAD cannot find she embellished her claim without considering the evidence which can explain or mitigate the severity of the omission and the RAD erred by not referencing the psychotherapist report, resulting in an unreasonable Decision. In this respect, I am unable to find unreasonableness given the RAD expressly stated earlier in its reasons that it had taken the psychotherapist’s report into consideration. There was no need for it to repeat that finding.
[31]
The RAD found “this information goes to the heart of the [Applicants’] claim”
. I am not persuaded it was unreasonable for the RAD to conclude as it did on the evidence.
(3)
Testimony of partner in Canada not credible
[32]
The Principal Applicant’s current girlfriend in Canada provided evidence at the RPD hearing. Both the Principal Applicant and her girlfriend were asked how often they saw each other. Their evidence first diverged into inconsistency, and then evolved otherwise. The RAD found their responses did not match. And, in my respectful view, they didn’t.
[33]
The Applicants submit gave similar answers, however in my view that allegation is not supported by the evidence. The RAD summarized the testimony as follows:
[20] During testimony, when asked how often she sees her alleged [girlfriend] the Principal Appellant replied that she sees her every other week, sometimes twice a week depending on if she is working, sometimes three times, it depends. The Principal Appellant listed places they see each other and included that they sometimes see each other in church.
[21] When [the girlfriend] was asked how often she sees the Principal Appellant she replied “twice, like 2 weeks, every two weeks.” When the member asked for clarification, Janet replied that she sees her sometimes once, more than once, every two weeks. The Principal Appellant then interrupted to state that they see each other every week. Janet then asked the RPD member what she meant by the question, because they see each other every week, but sometimes every week and she sleeps over. When the RPD again asked for clarification, Janet replied that they do not live far from each other, and that sometimes she goes to the Principal Appellant’s house, but sleep overs can be every two weeks.
[22] When questioned by the Appellants’ counsel, Janet stated that she sees the Principal Appellant every week at church, and earlier she thought the RPD was asking how often they are sexually intimate.
[23] On a balance of probabilities, I find the testimonies of both the Principal Appellant and Janet to be vague, inconsistence and evolving. I have considered that both women may find it difficult to testify about any matters relating to homosexuality given that they are from a homophobic culture, and I have considered the stress of a hearing room, as well as the SOGIE and the Gender Guideline, and the psychological reports, however, I find that their testimony is not sufficiently credible to establish that they are in a non-platonic relationship. My reasons for these findings are below.
[24] The Principal Appellant’s first answer is non-specific, as she indicated that they see each other every week, two times a week or three times a week, sometimes at church. Janet’s answer is more specific and is inconsistent with the Principal Appellant, as she indicated that they see each other every two weeks. Janet repeated this answer when the RPD asked for clarification. The Principal Appellant then interrupted with an answer that is no longer vague: she stated that they see each other every week. Janet’s answer then evolved to state that they see each other every week, but that she was referring to sleep overs or times they are intimate she when stated that they see each other every two weeks.
[25] I understand that the Appellants are arguing that there was confusion regarding the use of the word “see”, however, I do not find that this confusion accounts for the vagueness of the Principal Appellant’s first answer, or for the evolving nature of Janet’s testimony after the Principal Appellant’s interruption. As a result of this vague, inconsistent and evolving testimony, I find that the Principal Appellant has not established that she is in a non-platonic relationship with Janet. Further, I take a negative inference from the Principal Appellant’s vague and inconsistent testimony regarding her claim that she is bisexual.
[34]
The Applicants submit it is unclear why the RAD expected a rigid and conclusive answer. They may not have a fixed schedule for how many times they meet up and it can reasonably vary week to week. They submit the RAD’s analysis precludes this possibility.
[35]
With respect, this is after the fact justification. The question was simple enough, and in my view, the RAD reasonably described and reasonably assessed the contradictions. I am not persuaded of unreasonableness in this respect.
B.
Supporting Documents
[36]
The Principal Applicant submits the RAD erred in its analysis of her supporting documentation. The Applicants provided individual arguments for each piece of supporting documentation. The Respondent states the Applicants’ fail to show the conclusions drawn by the RAD were not open to it. The Applicants attempt to have this Court impermissibly reweigh evidence. The Respondent submits the Applicants’ approach is similar to that in Obozuwa v Canada (Citizenship and Immigration), 2019 FC 1007 [Diner J]:
[20] The Applicants advance a multitude of arguments that boil down to allegations that the RAD erred in its many negative credibility findings, including (i) plausibility; (ii) lack of subjective fear; (iii) inconsistencies in testimony and objective evidence; and (iv) treatment of the documentary evidence presented. Simply put, these arguments amount to a request for this Court to reweigh the evidence and arrive at a conclusion that they would prefer.
[37]
I will now look at the relevant documentary evidence and its consideration by the RAD.
(1)
Documentation from LGBTQ+ organizations
[38]
The Applicants relied on letters and other documents from LGBTQ+ organizations regarding her attendance and participation. The RAD took the position that anyone is able to attend events at LGBTQ+ organizations, and that participation in such organizations is insufficient to establish a claim of bisexuality. The Applicants submit the RAD insinuated the Principal Applicant joined the LGBTQ+ organization only to support her refugee claim. In my respectful view, the RAD was reasonably able to come to the conclusions it did. This is a matter of weighing and assessing evidence, and as noted above, such is not the role of a reviewing court such as this.
[39]
The Applicants also say the RAD erred by finding she attended events to advance a fraudulent claim. The difficulty with this line of argument is that there is in fact no finding of fraudulent intent; in my respectful view the Applicants raise a straw man, which puts an end to this line of inquiry.
[40]
In my view, the RAD accepted the Principal Applicant attended these organizations and events, but that is the extent of the evidence.
(2)
Affidavit of the Applicants’ friend in Nigeria
[41]
The RAD gave little weight to the affidavit of the Applicants’ friend in Nigeria because the statements confirmed facts that are not in dispute. The Applicant submits this means the RAD did not dispute the Applicants resided with this friend before leaving Nigeria - in conformity with the Applicants’ BOC. The Applicants’ submit this affidavit mostly corroborates their claim.
[42]
In my view, the RAD reasonably gave the affidavit little weight. This is because there was no explanation how the affiant was aware of the information provided or how she witnessed any of the events described. The RAD reasonably found the affidavit did not overcome existing credibility issues because it did not confirm who if anyone travelled with them, or if the boyfriend was still looking for them. Again, this raises a matter of the assessment and weighing of evidence which, as already noted, is for the RAD to do, not the Court, unless there are exceptional circumstances; I was pointed to none.
(3)
Affidavit of the Principal Applicant’s girlfriend in Canada
[43]
The girlfriend in Canada gave testimony which I have already considered. She also filed an affidavit with the RAD reviewed and assessed. The RAD noted it had already determined the oral testimony from this girlfriend was vague and evolving. After reviewing the affidavit she filed, the RAD said:
[29] I found that [the girlfriend] gave vague and evolving testimony above. I do not find that her affidavit can overcome the issues I found with her testimony. For this reason, I do not find that her affidavit is able to establish, on its own, that she and the Principal Appellant are in a non-platonic relationship.
[44]
I am not persuaded this assessment was reached unreasonably; it was open to the RAD to conclude as it did on the record before it. As the Respondent notes, the RAD was entitled to give little weight to this affidavit because her oral testimony was found not credible: see Chinwuba v Canada (Citizenship and Immigration), 2019 FC 312 [McDonald J] at para 26:
[26] Evidence is not assessed in isolation from the overall claim, and when the Applicant’s personal evidence is not credible, it is reasonable for the RAD to have credibility concerns with the supporting documentary evidence. Here the RAD considered the affidavits but accorded them minimal weight. As well, the medical note relied upon by the Applicant was not found to be reliable because there were discrepancies on the face of the document. Similar issues were identified by the RAD with respect to the letter from the Applicant’s lawyer.
(4)
Psychological Reports
[45]
The Applicants submits the RAD did not evaluate the Principal Applicant’s oral testimony with the findings from the psychotherapist’s report in mind, resulting in an error. I considered and rejected this submission earlier in these reasons.
(5)
Photographs
[46]
The Applicants submit the RAD erred in its dismissive treatment of photographic evidence. The RAD found the Principal Applicant posed for the photographs tendered. Again, this is an assessment of the evidence the RAD was reasonably entitled to make on its review of the photographs. The RAD concluded they showed the Principal Applicant posed for photographs but did not show anything more than that. Once again, the Applicants ask this Court to reweigh and reassess the evidence, which binding jurisprudence prevents this Court from doing: see Vavilov at para 125.
VII.
Conclusion
[47]
In my view, the Applicants have not established the Decision was unreasonable. The RAD made reasonable credibility assessments and also reasonably reviewed the supporting evidence. It did the same in relation to the credibility issues considered, providing a rational chain of analysis. There is no fatal error. The reasons add up, and the results follow the facts and law. Giving the Decision respectful attention and deference and considering it as a whole, the reasons are justified, transparent and intelligible. Therefore, in my respectful view, judicial review must be dismissed.
VIII.
Certified Question
[48]
Neither party proposed a question of general importance, and none arises.
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