Date: 20050216
Docket: IMM-10520-03
Citation: 2005 FC 255
Toronto, Ontario, February 16th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
BENEDICTA EFOLE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Efole is a thirty-nine-year-old Nigerian woman who claims a well-founded fear of persecution on the basis that she was forced into a marriage against her will and was then subjected to emotional, physical and sexual abuse. This is an application for judicial review of the decision of the Refugee Protection Division, Immigration and Refugee Board, dated December 8, 2003, that rejected the claim and declared that she was neither a Convention refugee nor a person in need of protection.
[2] The sole issue before me is whether the Board's credibility findings were patently unreasonable. I am unable to reach that conclusion and will dismiss the application.
[3] When the applicant first arrived at Pearson International on March 11, 2003, with a false visa, she first claimed that she was coming to Canada as a visitor. When pressed for further information at the Port of Entry, she indicated that she was coming to look for a job in order to take better care of her children and to support her mother, brothers and sisters. After admission as a visitor was refused, she made a refugee claim. She declared that her children were suffering because the Nigerian government would not allow her to find a good job. She stated she was unable to provide them with a good education and asked to be able to remain in Canada for a year, to work and raise money for her family. No mention was made of her husband.
[4] In the narrative to the Personal Information Form ("PIF") submitted on March 31, 2003, Ms. Efole stated that she had been forced into a common law relationship against her will and was then subjected to abuse by her spouse, a powerful chief named Michael Odiase. She claims that she opposed the arrangement because she is Christian while he is not, and because he was over 40 at the time. However, her uncles forced her into the match.
[5] Ms. Efole claims she was kept a virtual prisoner when she was with the chief and that he was physically, sexually and emotionally abusive. She found out after she started living with him that he already had six wives and that one of them had divorced him for being violent. She alleges that she attempted to escape from the chief, but that each time, his body guards would hunt her down and bring her back. If returned to Nigeria, she feared being killed by her husband.
[6] The Board did not believe Ms. Efole's story. It concluded that her assertions - that she experienced domestic violence in the context of a long term common law relationship and that this was her primary reason for seeking refugee protection - were not credible.
[7] As her counsel readily acknowledged, Ms. Efole's evidence at the hearing was vague and confused about events, dates and locations. This was attributable, counsel argued, to a lack of sophistication. But Ms. Efole had completed high school and one year of post-secondary education. English was her first language. The Board described her as intelligent.
[8] The applicant testified about several escapes from Chief Odiase: in 1989 - for six months - to her mother and then to a friend; in 1990-92 to Lagos; in 1995-1999 to Lagos again; and from 2001-2002. The final escape was in January 2003 to Warri and then on to Canada in March 2003. The Board found that her testimony about these escapes was "vague, incoherent and lacking in conviction".
[9] The Board was concerned that while Ms. Efole stated she was kept in a virtual prison, she was able to leave for prolonged periods and was able to continue her secondary and post-secondary education. There was also no documentary evidence submitted to support any aspect of the applicant's claim including her marriage and the birth of her children. Nor was the applicant able to provide any explanation for the lack of documents other than she hadn't thought of obtaining them. The Board did not accept her explanation for why she had held the reason for her flight to Canada in reserve, that she was ashamed to state it.
[10] The applicant argues that while the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality, when assessing negative credibility findings based on inferences drawn from the evidence, the Court is in the same position as the Board and can quash its decision if the conclusions are unreasonable: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.).
[11] With reference to the failure to disclose the basis for her claim to the Port of Entry officers, Ms. Efole submits that the Board failed to take into account the Women Refugee Claimants Fearing Gender-Related Persecution Guidelines when assessing why she failed to disclose the true reasons for her refugee claim to CIC officials. The Board erred by assessing her explanation in accordance with Canadian values, rather than based on Nigerian stigmas and prejudices toward victims of domestic abuse as disclosed in the country condition documents: Ye v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 584; IRB Research Directorate, Nigeria: State Protection (2003), RIR NGA33078.E.
[12] The respondent submits that the Board's assessment of credibility was reasonably open to it on the record and the Court should not interfere with its findings: Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81 (T.D.). If the finding of the Board is reasonable it must stand: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)
[13] The applicant's only explanation for why her story at the Port of Entry and the hearing was different was that she was ashamed, even though she admitted that she had intended all along to seek refugee status in Canada. The respondent argues that it was appropriate for the Board to regard the explanation with suspicion. The Board weighed her explanation against the fact that she had assistance in coming to Canada and based the finding on all of the evidence. The discrepancy went to the heart of the claim: Parnian v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 142 (T.D.); Karikari v. Canada (Minister of Employment and Immigration) (1994), 169 N.R. 131 (F.C.A.).
[14] The applicant also argues that the Board failed to give sufficient weight to two medical reports that were filed in support of her claim. One was a brief statement from a physician describing marks and scars on Ms. Efole's body that were said to be consistent with the abuse described by the applicant. The Board noted that the information as to the source of the injuries came from the applicant and concluded that the injuries were equally consistent with other situations and did not substantiate the applicant's story. The second report was from a psychologist, Dr. Pilowsky, stating her opinion that Ms. Efole suffered from symptoms of post-traumatic stress disorder and of depression. The Board did not dispute those findings but found that the report was of little value in assessing the applicant's claim.
[15] The respondent submits that the Board's assessment of the medical evidence was reasonable and in accordance with the law. It disbelieved the underlying facts that the reports were based on: Rokni v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 182 (T.D.)
[16] A high level of deference should be accorded to the decisions of the Board made on the basis of credibility findings: Aguebor, supra. As a result, the appropriate standard of review is patent unreasonableness. Unless it is shown that the Board's inferences and conclusions are so unreasonable that they could not have been drawn, or the Board appears to have drawn them capriciously or without regard to the evidence, this Court should not interfere, whether or not it agrees with those inferences: Oduro v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 106 and Aguebor, supra.
[17] The Board made several questionable inferences and implausibility findings. For example, the Board found that it was implausible that the applicant would have continued her secondary schooling while she was eight months pregnant. The respondent conceded that this was not at all unlikely. Further, the Board found it difficult to accept that the bodyguards would return the applicant to her husband by bus rather than by car. It is not clear how that is implausible. Neither finding, however, was central to the Board's decision and neither, in my view, had any material affect on the outcome. None of the other implausibility findings made by the Board are so unreasonable as to amount to reviewable error.
[18] Overall, the Board's findings were open to it on the evidence and I unable to find that the decision it reached - that the applicant's story was simply not credible - was patently unreasonable.
[19] I was troubled by the absence in the Board's reasons of any express reference to the Gender-Related Persecution Guidelines. In T.G. v. Canada (Minister of Citizenship and Immigration) (2004), 255 F.T.R. 152 (T.D.), this was one of the factors that led me to conclude that the application must be allowed. As the respondent argued, however, a statement in the reasons that the Guidelines were considered could be no more than a matter of form.
[20] On a close examination of the Board's reasons and of the transcript of the hearing in this case, I am satisfied that the Board was alert and sensitive to cross-cultural and domestic violence concerns in eliciting and assessing the applicant's claim. The difficulty with the presentation of the applicant's claim stemmed not from any symptom of battered wives syndrome or from her embarrassment in disclosing the details of sexual or physical abuse, but rather from her inability to credibly account for significant events in her life with a semblance of veracity.
[21] No serious questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Refugee Protection Division dated December 8, 2003 is dismissed. No questions are certified.
"Richard G. Mosley"
J.F.C
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10520-03
STYLE OF CAUSE: EFOLE BENEDICTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 15, 2005
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: FEBRUARY 16, 2005
APPEARANCES BY:
Mr. Loftus Cuddy FOR THE APPLICANT
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gertler & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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