Date: 20060411
Docket: IMM-4246-05
Citation: 2006 FC 468
Ottawa, Ontario, April 11th, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
TOSIN AFOLABI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) dated May 26, 2005 which found that the applicant was not a Convention refugee or person in need of protection because he lacked credibility, failed to establish his identity, and had an internal flight alternative.
Facts
[2] Mr. Afolabi is a citizen of Nigeria born on April 12, 1984. He was apprenticed at the Kayus Aluminium Products Co. factory in the city of Lagos from April 1999 to May 2002. The applicant's father died on March 6, 2001, at which time the applicant was 16 years of age. Because the applicant and his 14-year old brother had no contact with their mother or grandparents, they came under their uncle's care. The applicant and his brother were allegedly sexually and physically abused by their uncle, which led to the brother's alleged disappearance in August 2001 and the applicant's flight from Nigeria in May 2002.
Flight to Canada
[3] Accompanied by a mysterious person, the applicant fled Nigeria on May 7, 2002. The applicant entered Canada at Toronto via Germany on May 8, 2002 with an employment identity card, but without a passport, plane ticket, boarding pass or other photographic identity documents. Mr. Afolabi claimed refugee protection on May 24, 2002.
Claim for refugee protection
[4] The applicant claimed that he would be persecuted by Nigerian police on the basis of a mistaken but perceived sexual orientation because his uncle spread rumours that the applicant was a homosexual, or because the police would deem the applicant to be a homosexual if he laid a criminal complaint against his uncle. Practicing homosexual acts is prohibited under Nigerian law. If returned to Nigeria, the applicant fears his uncle would kill him.
The decision under review
[5] The Board rejected the applicant's claim for 3 reasons: because he lacked credibility; because he failed to establish his identity; and because there is an internal flight alternative in southern Nigeria. The Board concluded, inter alia:
(a) at the hearing, the applicant often did not answer questions or his answers were hesitant, vague, and evasive;
(b) the original birth certificate lacked security features and appeared just before the hearing;
(c) the applicant's account that he travelled to Canada with the assistance of a good Samaritan was implausible because the applicant could not provide any details about the good Samaritan;
(d) the applicant's stated fear of the Nigerian police is inconsistent with his PIF, which omits that fear;
(e) the applicant would not be persecuted by police under Nigeria's law on homosexual practices because the law is not enforced unless homosexual acts are forced or involve pedophilia;
(f) the applicant had an internal flight alternative in southern Nigeria because the applicant admitted his uncle could not find or kill him there; and
(g) the applicant first heard that his uncle was spreading rumours that he was homosexual three weeks prior to the hearing.
Issues
[6] This following issues are raised in this application for judicial review:
1. Did the Board err by rejecting the authenticity of the birth certificate without a reasonable basis?; and
2. Did the Board make patently unreasonable credibility findings by:
(a) speculating without a reasonable basis when it rejected as implausible the applicant's evidence that he travelled to Canada with the assistance of a good Samaritan?;
(b) making an adverse inference because the applicant failed to state his fear of Nigerian police in his PIF?; and
(c) speculating without a reasonable basis that the applicant would not be persecuted under Nigeria's anti-homosexuality law?
Analysis
Internal flight alternative
[7] The applicant did not challenge a number of the Board's findings, including its determination that an internal flight alternative exists for the applicant in southern Nigeria. The Court finds that the IFA finding is not unreasonable. Accordingly, the Board did not err in concluding that the applicant is not a refugee or a person in need of protection. This issue is conclusive of the case. Nevertheless, I will consider the other issues raised by the applicant.
Issue No. 1: Did the Board err by rejecting the authenticity of the birth certificate without a reasonable basis?
[8] The Board concluded that the applicant failed to establish his identity with sufficient credible and trustworthy evidence. The applicant did not produce his birth certificate until the hearing.
[9] The explanation for the delay was that the applicant did not know he had to produce documents to the Board and that he thought his counsel would have asked for them if required. The Board noted that the PIF instructed the applicant to produce identity documents and that in oral testimony the applicant conceded that members of the Nigerian community in Canadainformed him of the requirement.
[10] The applicant's evidence was that once he became aware of the need for his birth certificate, he took steps to recover the document, then located at this uncle's residence in Lagos. He contacted a friend and instructed him to attend his uncle's house, enter by using a key located on the property grounds, secure the certificate from the room, and send it to the applicant in Canada. The Board found that the applicant's evidence was not credible because the applicant was evasive and unable to answer the Board's specific questions relating to obtaining the certificate. In a lengthy series of questions from the presiding member and refugee protection officer, the applicant gave only vague and evasive answers:
Q. How did you obtain this birth certificate?
A. I told one of my friend to help me to send it and he send it to me.
Q. Okay. Sir, I am going to give you some instructions. I told... I told is vague. My friend is vague. To send it is vague. Told, we have to know how and when you contacted that friend. We have to know the name of that friend and how you know that friend, and we have to know by which means it arrived here. If you say I told one of my friend to send it, it's vague. So can you give me some details now? How did you contact that friend?
[...]
Q. Sir... Sir, again, I am wondering how your friend could find the key if you simply told him Look for my key it's around the house. Is that what you told him?
A. Yes. No... I told him the... where... where I keep it.
Q. That's what I'm asking, Sir.
A. Okay. It's outside the building. It's outside the building, I kept it under something, but I explained...
[...]
Q. We know when people improvise. You are improvising at the moment. You are just improvising. You are inventing things, because you don't know how to explain the plain truth. This has... makes no sense, what you are saying. You realize? It makes no sense. It was outside, it was under something, I explained to him. You never give a straight and simple answer, so far.
A. Yes. In the garden, (inaudible) plants different... different things.
Q. Different things, again? What things?
A. Like... like (inaudible), we plant (inaudible), corn and I... I kept the key in... in the corn garden so I told him to go and get it in the corn garden.
[11] Because the applicant's oral testimony in respect of the birth certificate was at times contradictory, at other times evasive and lacking detail, the Board concluded the evidence was not credible. Assessing an applicant's oral answers in reply to questions is at the heart of the Board's expertise, and it was reasonably open to the Board to find the answers are evasive or improvised.
Issue No. 2: Did the Board make a patently unreasonable credibility finding?
(a) Did the Board speculate without a reasonable basis when it rejected as implausible the applicant's evidence that he travelled to Canadawith the assistance of a good Samaritan?
[12] The Board found it implausible that the agent who accompanied the applicant from Nigeria to Germany to Canada was a good Samaritan who would purchase for him a false passport and airfare without compensation. The Board noted that the applicant could not provide any information material to his travel to Canada, and that on entry he did not have a passport, plane ticket, boarding pass, luggage tag, or any other document save for his employment ID card. The applicant did not know what name was stated on the passport under which he left Nigeria, nor did he know or hear any questions posed by immigration official in Lagos, Germany and Canada to the agent behind whom he stood not more than 5-10 inches. The Board concluded this account was not plausible, speculating that the agent was a human smuggler, and drew an adverse credibility inference against the applicant. The Board's credibility finding was not patently unreasonable on this material issue.
(b) Did the Board err in making an adverse inference because the applicant failed to state his fear of Nigerian police in his PIF?
[13] The PIF was silent as to any fear of Nigerian police, while the applicant stated that fear in oral testimony. The Board's adverse inference from this inconsistency between the applicant's oral testimony and his PIF was not patently unreasonable.
(c) Did the Board speculate without a reasonable basis that the applicant would not be persecuted under Nigeria's anti-homosexuality law?
[14] In rejecting the applicant's fear of persecution by reason of his perceived homosexuality as unfounded, the Board preferred documentary evidence to the applicant's oral testimony. The Board examined credible documents for Nigeria, which described the situation of homosexuals and their treatment under Sharia law in Nigeria. Whereas the applicant stated that he would be prosecuted under Nigerian domestic law which provides for custodial sentences on conviction of committing homosexual acts, the documentary evidence is that the law is not habitually enforced in southern Nigeria except where the act is forced or involves pedophilia. The documents show that homosexuals live freely in southern Nigeria, where they are not subject to the widespread discrimination under Sharia law in the north of Nigeria. Accordingly, the Board's finding in this regard is not unreasonable.
Conclusion
[15] The Board did not err in deciding the applicant did not establish his identity, which undermined his claim of a well-founded fear of persecution. The applicant did not take issue with the Board's conclusion that he had an internal flight alternative in southern Nigeria. The Board's credibility findings are not patently unreasonable. For these reasons, the application for judicial review must be dismissed.
[16] The parties did not propose a question of general importance for certification, and none is certified.
JUDGMENT
THIS COURT ORDERS that:
This application for judicial review is dismissed.
"Michael A. Kelen"
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