Date: 20060209
Docket: IMM-31-05
Citation: 2006 FC 172
Toronto, Ontario, February 9, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ALLEN AJIBOLA COLE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Orally delivered from the bench and subsequently written for clarification and precision)
Background
[1] The Applicant is a 45-year old homosexual citizen of Nigeria. The Applicant has known he was homosexual since a young age and has had numerous relationships since the age of 16. In January 2004, his mother caught him and his friend "in a compromising position". He claims that his mother then told his extended family who then decided to kill him by poison or through local vigilante gangs.
[2] He went into hiding, but after his business premises were burned, he decided to leave the country. He arrived in Canada on May 1, 2004 and made his refugee claim upon arrival.
[3] The Refugee Protection Division of the Immigration and Refugee Board (the "Board") by decision dated December 21, 2004 determined that the Applicant is not a Convention Refugee or a person at risk. The board found that the Applicant was not credible and that he had failed to establish that state protection was not available to him in Nigeria.
[4] The Applicant is seeking a reversal of that decision alleging:
a) that the credibility findings are patently unreasonable; and
b) that the finding of state protection is self contradictory as you cannot ask a person to seek ineffective state protection merely to establish that protection is not available.
[5] It is not disputed between the parties that the standard of review is patent unreasonableness (see Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732).
Credibility findings
[6] The Board, as the trier of fact, is in the best position to determine the credibility of the Applicant. While the Court might have reached different conclusions on different points, there is not a single finding or combination thereof that can be considered patently unreasonable. The Board amply backed up its key conclusion that given his very private nature and life style, the Applicant had nothing to fear as he would not be perceived as gay.
[7] As far as state protection is concerned, the Applicant simply failed to establish the absence thereof. While it is true that in Nigeria homosexuality is banned by law and a person is subject to imprisonment for 14 years, the evidentiary evidence showed that it is rarely enforced, and that underground gay activity is tolerated by the authorities. But more to the point, the authorities are clamping down on vigilante gangs, which is the Applicant=s principal source of fear. Thus, merely expressing fear of vigilante gangs (however strongly felt), but never having sought police protection by reason of the Nigerian law against homosexuality, does not amount to establishing the absence of state protection.
[8] As was stated in Canada ( Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50:
On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens.
[9] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-31-05
STYLE OF CAUSE: aLLEN AJIBOLA COLE
Applicant
and
THE MINSITER OF CITIZENSHIP &
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 8, 2006
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: FEBRUARY 9, 2006
APPEARANCES BY:
Solomon Orjiwuru FOR THE APPLICANT
Anshumala Juyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Solomon Orjiwuru
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Email this Content