Date: 20060925
Docket: IMM-1104-06
Citation: 2006 FC 1114
BETWEEN:
OSAMUYIMEN
OVIAWE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated January 11,
2006, wherein the Board found that the applicant is not a “Convention refugee”
or a “person in need of protection” as defined in sections 96 and 97
respectively of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27.
[2]
Osamuyimen
Oviawe (the applicant) is a citizen of Nigeria and a
Christian.
[3]
The
applicant shared an apartment with Mr. Abu, a Muslim man, during a year in Kano State.
[4]
In
February 2005, a friend of Mr. Abu came to their apartment and was
flabbergasted when he noticed that his friend was living with a Christian man.
He spoke to Abu in the applicant’s absence. Unexpectedly, Abu’s attitude
towards the applicant changed after that conversation, and Abu then appeared
distant, cold and somewhat distaining.
[5]
The
police were informed that the applicant had sexually molested Mr. Abu.
[6]
On
February 15, 2005, the applicant was arrested, imprisoned and tortured by the
police for almost three months. During this imprisonment, two of his lower
front teeth were removed with pliers.
[7]
On
May 3, 2005, a sympathetic Christian warden in the prison helped him to escape
from jail.
[8]
On
May 4, 2005, the applicant went to Abrya and hid there for two weeks with a
friend named Peter Maxwell, whom he had met in university. In due course, with
the help of an agent, Maxwell got the applicant out of the country and he
eventually wound up in Canada on June 18, 2005 and made a claim for
refugee status.
[9]
The
applicant was not charged with any offence, nor did he appear in Court before a
judge.
[10]
The
applicant fears that if he returns to Nigeria, the police, who are
still seeking him according to what his mother has told him, will arrest him
again because he escaped from prison. If he is found guilty of homosexuality
with Abu (which he denies), he could be sentenced for up to 14 years in
jail by the regular courts or be stoned to death as directed by the Shariah
Court.
* * * * * * *
[11]
The
Board was satisfied that the applicant was a Christian and found that he was
credible about the incidents that led him to leave his country. However, the
Board concluded that the applicant did not have an objective basis to his claim
according to the documentary evidence.
Standard
of Review
[12]
In
Aire v. Minister of Citizenship and Immigration, 2004 FC 41, my
colleague Justice von Finckenstein wrote:
[8] The
standard of review for a Board's decision as to whether or not the facts
suggest that an applicant faces a risk of prosecution rather than persecution
is patent unreasonableness (Simonifi v. Canada (M.C.I.), [2002] F.C.J.
No. 1162). The Court will only interfere with the Board's findings of fact if
they are made in a manner which is perverse or capricious (Kamalanathan v.
Canada (M.C.I.), [2001] F.C.J. No. 826).
Internal
Flight Alternative
[13]
The
applicant submits that the Board erred in determining that he had an Internal
Flight Alternative (IFA) in southern Nigeria because the documentary evidence showed clearly
that Nigerian society (North and South) is very intolerant of people identified
as engaging in homosexual conduct.
[14]
However,
although the Board’s reasons refer to areas of Nigeria where homosexuals are comparatively safer
(Lagos and the southern
states), the Board made no finding regarding an IFA. Since the Board found no
objective basis for persecution, it was unnecessary for it to go on to consider
the existence of an IFA. The references in the reasons to areas of lesser
persecution seem to be included merely to make the point that homosexuality is
treated differently in areas where the Shariah Courts are predominant. However,
as a Christian, the applicant would not be subject to the Shariah Courts in any
case.
[15]
Perhaps
the confusion stems from the fact that other Federal Court cases have upheld a
finding of an IFA in Lagos for Nigerian
homosexuals (Aire, supra; Zakka v. Minister of
Citizenship and Immigration, 2005 FC 1434; Nwokomah v. Minister of
Citizenship and Immigration, 2005 FC 1535).
Objective
Evidence
[16]
Instead
of finding that the applicant had an IFA, the Board found that the applicant
could likely rely on his own innocence to avoid prosecution and/or persecution.
The Board wrote, at page 8 of its decision:
Even
if the court were to prosecute the claimant on his return to Nigeria for a
non-consenting homosexual act, the claimant could produce evidence from his
other friends, family, and his pastor and parishioners that he is a God-fearing
Christian, that he never was nor has ever been a homosexual, and that the
evidence against him was trumped up by Abu and his friend only because Abu’s
friend was disgusted with Abu for living with the claimant, who is a Christian
person.
As
in most criminal trials, the onus would be upon Abu to prove beyond a
reasonable doubt that the claimant committed the sodomy offence without his
consent. With the passage of time and from the documents that I have read, the
evidence appears unlikely that either the Shariah or the Federal Court would
pursue him or even prosecute him.
It
is interesting to note from these reports that for unlawful sexual intercourse
(between a male [and] female) there need[s] to be four male Muslim
eyewitnesses to prove the guilt of the male. Therefore, men are not often
convicted for this offence because it is quite difficult to prove their guilt
[emphasis in original].
[17]
In
the last paragraph, the Board fails to make it clear that the eyewitness
requirement only exists under Shariah law. Though not stated specifically, this
can be gleaned from the Tribunal Record at page 93. Confusingly, however, the
Board had already found that the applicant was not subject to Shariah law,
being a Christian. It is unreasonable to use the fact that Shariah law does not
apply to the applicant as a way of showing there to be no risk of persecution,
and then use one of the tenets of Shariah law to show that the applicant would
likely win a court case.
[18]
Moreover,
I think the first two paragraphs, excerpted above, show the Board engaging in
speculation as to what would likely happen if the case against the applicant
went to court. The Board imagines an easy case for the applicant, saying that
all he has to do is bring his family and friends forward. The fact that Abu’s
friends and family might invent a contradictory story does not seem to trouble
the Board.
[19]
The
Board’s speculation on this point is remarkably optimistic, considering it has
already found as fact that the applicant has had two of his front teeth removed
with pliers while incarcerated for homosexuality in Nigeria. The Board found the
applicant’s evidence credible, yet it appears to become oblivious to this when
considering what would likely happen at a trial.
[20]
The
applicant has the burden of proof, however, and though the optimism of the
Board is a little surprising, the Board is entitled to find that the existence
of past persecution/torture does not necessarily mean that the applicant would
be given an unfair trial. The Board is in the best position to weigh the risk
to the applicant, and it is not the job of a reviewing court to re-weigh that
evidence.
[21]
Though
the Board’s decision is not perfect, I do not believe that the Board’s decision
is so patently unreasonable that “no amount of curial deference can justify
letting it stand” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247 at paragraph 52).
[22]
The
Board was entitled to find, based on the evidence before it, that there was no
real risk of persecution. The Board explicitly found that the applicant is not
subject to Shariah law, therefore there is no risk of a capital sentence even
if the applicant were to be convicted. This leaves the applicant with the
Nigerian Criminal Code, under which the maximum penalty is 14 years in
prison.
[23]
The
Board may have erred in assuming that the applicant’s trial in Nigeria would go smoothly for
the applicant, but even if the Board did err on this point, there would not be
persecution, according to the jurisprudence of the Federal Court. In Aire,
cited above, von Finckenstein J. considered the case of a man who faced
application of the same homosexuality laws in Nigeria. He wrote at paragraphs 12 to 16:
[12] While
the applicant describes this as a law against homosexuality, it is actually a
law against certain types of conduct. No evidence was provided to explain what
is meant by the words "against the order of nature." Nonetheless, the
wording of the section makes it clear that the prohibited conduct, however the
words 'against the order of nature' are interpreted, is not tolerated between
any citizens, regardless of their sexual orientation.
[13] Moreover,
in Birsan v. Canada (M.C.I.), [1998] F.C.J. No. 1861, Pinard, J. held:
It is certainly not unreasonable
to conclude that the mere existence of a law prohibiting homosexuality in
public cannot prove, if it is not enforced, that homosexuals are persecuted.
[14] A
report from the UK Immigration and Nationality Directorate contained at page
323 of the Tribunal Record states
"Nigeria like many former
British colonies has laws dating back to the Victorian era that make sodomy
punishable up to 14 years in prison. While these laws are rarely applied,
they contribute to the climate of intolerance towards homosexuals."
(underlining
added)
No other persuasive evidence was
before the Board regarding the manner and frequency with which section 214 of
the Nigerian Criminal Code is
enforced. Therefore, Pinard J.'s reasoning equally applies in this case.
[15] Laws
against certain types of sexual conduct under specific circumstances exist in
many countries. They are not, per se, "persecutory." In Canada,
for instance, we have provisions against incest and anal intercourse in certain
circumstances contained in Sections 155 and 159 of our Criminal Code which can lead to prison
terms of 14 and 10 years, respectively. However no one suggests that our Criminal Code is a persecutorial law.
[16] The
Board in this case considered all of the evidence before it. I find no reason
to interfere with the Board's conclusion that a law of general application
which was rarely enforced and which prohibited certain types of sexual
behaviour was not a persecutorial law.
[24]
Since
the Board has explicitly found, in the case at bar, that there is no real risk
of the applicant being convicted for a crime that he did not commit, the
possibility of persecution through conviction of the innocent does not arise.
Since this conclusion was rationally available to the Board on the facts of
this case, it is my opinion that it should not be interfered with on judicial
review.
[25]
Although
I have some trouble with the Board’s reasoning in this case, the deferential
standard of review militates in favour of dismissing this application.
[26]
Consequently,
the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa, Ontario
September
25, 2006
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