Omoregbe v. Canada (Minister of Citizenship and Immigration), 2004 FC 1189

Date: 20040831

Docket: IMM-6710-03

Citation: 2004 FC 1189

Ottawa, Ontario, the 31^st day of August 2004

Present:           THE HONOURABLE MR. JUSTICE SHORE   

BETWEEN:

                                                              JOY OMOREGBE

(a.k.a. JOY OMOREABE)

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

OVERVIEW

[1]                "Some stories are real, but not true; others are true but not real."^[1] The documentary evidence assists in accepting the paradox.

JUDICIAL PROCEDURE

[2]                This an application for judicial review pursuant to section 18.1 of the Federal Courts Act,^[2] and section 72 of the Immigration and Refugee Protection Act,^[3] of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated July 29, 2003, wherein the Board dismissed the Applicant's claim to be a "Convention refugee" or a person in need of protection.

BACKGROUND

[3]                Joy Omoregbe, the Applicant, is a 33 year old citizen of Nigeria. She claims to have a well-founded fear of persecution, based on her membership in two particular social groups, namely, women subject to domestic abuse and HIV positive individuals subject to ostracism by their communities and society. In addition, Ms. Omoregbe claims to be a person in need of protection.

[4]                Ms. Omoregbe states that when she was 18 years old, she learned that her father had promised to have her marry a chief, a man much older than her. She did not accept this arrangement and was able to defer the marriage for a number of years under the pretext of furthering her education. Ms. Omoregbe had a boyfriend, but her parents refused to accept this relationship.

[5]                In May 2000, Ms. Omoregbe was forcibly taken to the chief's house. There she was confined in a room, where the chief beat and raped her 2-3 times a week.

[6]                Ms. Omoregbe escaped with the help of a guard. Her brother, John, then took her to Lagos where she was hospitalized for two days. John made arrangements for Ms. Omoregbe to travel to Canada.

[7]                Ms. Omoregbe arrived in Canada on December 2, 2000 and made her claim for refugee protection.

[8]                Ms. Omoregbe states that she was diagnosed as HIV positive in the course of a medical examination after she made her claim for refugee protection in Canada. Ms. Omoregbe states that her fear is exacerbated by her HIV status, as her community and Nigerian society in general would ostracize her. Ms. Omoregbe indicates that treatment for HIV in Nigeria is very expensive.

DECISION UNDER REVIEW

[9]                The Board accepted that Ms. Omoregbe is a citizen of Nigeria.^[4]

[10]            The Board, however, found that Ms. Omoregbe was not credible. The Board noted many inconsistencies between her oral testimony, her interview with a counsellor, her Personal Information Form (PIF), her medical report from the Toronto General Hospital, and the Port of Entry (POE) Notes. These inconsistencies included, inter alia: when arrangements were made for her marriage, how she escaped the chief's home, and who helped her come to Canada.^[5]

[11]            The Board also noted the documentary evidence which indicated that it was highly unlikely a woman of the age of Ms. Omoregbe would be forced into marriage. The Board found that this evidence impugned Ms. Omoregbe's credibility.^[6]

[12]            The Board found that, although Ms. Omoregbe claimed that when the chief raped her for the first time on May 28, 2000, she conceived her daughter. The medical report stated that the Applicant was 6 months pregnant in October, 2000. This indicates that she had been pregnant before she had been taken to the man's home.^[7]

[13]            The Board drew a negative inference from the fact that Ms. Omoregbe obtained a false driver's licence for the purpose of her refugee claim.^[8]

[14]            The Board also dismissed the psychological report presented to it, as it did not believe that Ms. Omoregbe's symptoms resulted from ill treatment at the hands of the chief.^[9]

[15]            The Board therefore rejected Ms. Omoregbe's claim of persecution on the basis of women subject to domestic abuse.

[16]            The Board then assessed Ms. Omoregbe's claim of persecution based on her membership in the group of HIV positive individuals subject to ostracism by their communities and society.

[17]            The Board first found that there is a lack of proper treatment in Nigeria because of poverty and lack of technological advancement. The Board stated that there was no credible or trustworthy evidence that people are denied medical care or are inadequately treated solely because of their HIV status.^[10]

[18]            The Board then assessed whether Ms. Omoregbe would be ostracized by the community. It took note of the documentary evidence before it and then concluded:

The panel acknowledges that support systems are weak financially, technically and some strategies are required to revamp them. Isolated incidents of discrimination may take place. There is no credible or trustworthy evidence before the panel however, that people who are diagnosed as being HIV positive are being singled out and subjected to systemic discrimination in Nigeria.^[11]

ISSUE

[19]            Did the Board err by ignoring documentary evidence before it with respect to the treatment of people with AIDS in Nigeria?

ANALYSIS

Did the Board err by ignoring documentary evidence before it with respect to the treatment of people with AIDS in Nigeria?

[20]            The Board found that there was no "credible or trustworthy evidence" that Ms. Omoregbe, or anyone who was similarly situated, would be denied medical care or provided with inadequate care, would suffer from discrimination from family, be denied work or would be systemically discriminated. The Applicant, in arguing that the Board ignored evidence in coming to these conclusions, points to documentary evidence which gives examples of people who were denied hospital treatment, given inadequate treatment, and were fired from their jobs because of their HIV positive status.^[12] Moreover, the Applicant cites documentary evidence which states that some people are utterly rejected by family and the community.^[13]

[21]            The Applicant also cites a case of a claimant from St. Vincent who was found to be a Convention refugee because of her HIV status.

[22]            The Respondent submits that the Board need not cite in its reasons all of the documentary evidence before it, as there is a presumption that all documentary evidence is taken into consideration.^[14]

[23]            The Respondent further submits that the Board may select the evidence it prefers. The evidence is not specific to the Applicant but is general in nature, and therefore there was no requirement to deal expressly with the evidence in the reasons.

[24]            The Respondent also submits that the Applicant has selectively listed portions of the documentary evidence in her Memorandum. However, a complete consideration and weighing of all documentary evidence is required. This is precisely what the Board did.

[25]            The Respondent states that the case of the claimant from St. Vincent is irrelevant, as every case is decided,based on its own specific facts. In particular, the case at bar deals with allegations relating to Nigeria, and not St. Vincent. The result of the latter case is not applicable to that of the case at bar and, understandably, because each case is a case unto itself, unique to it, and to it alone.

[26]            The Court deems that the Board did ignore documentary evidence before it. It is true, as the Respondent states, that there is a presumption that the Board has taken all the documentary evidence into consideration. Where, however, the documentary evidence is directly relevant to the Board's findings, but the Board does not discuss the documentary evidence, a conclusion may be drawn that the Board ignored the evidence. In the case at bar, the Board identified specific forms of discrimination and stated that there was no evidence that these forms of discrimination occurred in Nigeria. However, the documentary evidence did cite examples of specific forms of discrimination, including those identified by the Board.

[27]            It is for the Board to determine how the documentation applies to the Applicant; however, to do so, the Board is obliged to relate how it arrives at its conclusions in demonstrating that it has considered the evidence as a whole, and not in a manner that would appear to serve a specific orientation in the circumstances, without having taken all diverse elements of the evidence into consideration.

[28]            Moreover, the Board contradicted itself. At one point it cites documentary evidence which states that the three million Nigerians with HIV/AIDS face ostracism from their families and communities,^[15] later, it states that there is no evidence of systemic discrimination.^[16] Whatever the Board's decision, that is for the Board, and the Board alone, to decide; it is not for this Court to substitute itself for the Board, nor even to suggest a decision which is for the Board's sole jurisdiction, yet, the Board was obligated to make mention of the documentary evidence before it and explain why it did not accept it in coming to its findings.

[29]            The Respondent also submits that the Board looked at the entirety of the documentary evidence before it in determining that there was no evidence of persecution of people with HIV/AIDS in Nigeria. In fact, all the documentary evidence before the Board that was specific to Nigeria detailed the discrimination and stigmatization faced by Nigerians living with HIV/AIDS. There was no documentary evidence which supported a finding that discrimination and stigmatization did not occur in Nigeria. As such, the Board erred in its examination of the documentary evidence.

CONCLUSION

[30]            The application for judicial review is granted.

                                                                   JUDGMENT

THIS COURT ORDERS that:

1.         The application for judicial review be granted, and therefore that a newly constituted panel redetermine the claim.

2.         No question be raised for certification.

"Michel M.J. Shore"

                                                                                                                                                   Judge                             

FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                       IMM-6710-03

STYLE OF CAUSE:                                       JOY OMOREGBE (a.k.a. JOY OMOREABLE)

v. THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   August 25, 2004

REASONS FOR JUDGMENT

AND JUDGMENT BY:                                 The Honourable Mr. Justice Shore

DATED:                                                          August 31, 2004

APPEARANCES:

Nainesh Kotak                                                  FOR THE APPLICANT

Jamie Todd                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Nainesh Kotak                                                  FOR THE APPLICANT

Brampton, Ontario

MORRIS ROSENBERG                                  FOR THE RESPONDENT

Deputy Attorney General of Canada