Docket:
IMM-6711-11
Citation:
2012 FC 760
Ottawa, Ontario, June 15, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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FRANCIS OJO OGUNRINDE
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS;
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
a Senior Immigration Officer (Officer), dated 30 August 2011 (Decision), which
refused the Applicant’s application for a Pre-Removal Risk Assessment (PRRA).
BACKGROUND
[2]
The
Applicant is a 40-year-old citizen of Nigeria. He has been living in Canada since October 2007.
[3]
The
Applicant came to Canada as a refugee claimant. He sought Canada’s protection because homosexuality is a crime in Nigeria and he is homosexual. The Refugee
Protection Division of the Immigration and Refugee Board (RPD) rejected his
claim for protection on 29 January 2010. The RPD found the Applicant was not
credible and was not homosexual. It rejected his claim because he had no other
nexus to a Convention ground (RPD Decision).
[4]
After
the RPD Decision, the Applicant applied for his PRRA on 14 December 2010 and
provided additional written submissions on 23 December 2010. He also provided a
letter from his landlord and roommate, Daniel Asaolu (Asaolu), which said
Asaolu knew the Applicant was homosexual (Asaolu Letter). The Applicant also
submitted a letter from Larry Olugbade (Olugbade) which said Olugbade knew the
Applicant was homosexual because of his behaviour and actions (Olugbade
Letter). Olugbade said he had seen the Applicant with a man Olugbade believed
was the Applicant’s boyfriend. The Applicant also provided the Officer with a
letter from Samuel Adigun (Adigun), in which Adigun said he and the Applicant
were in a relationship and had been going out since April 2010. In addition,
the Applicant provided the Officer with several photographs of him with Adigun.
[5]
The
Applicant also submitted documents to show the risk he faced in Nigeria because he is homosexual. An affidavit (Arowojobe Affidavit) from Peter Arowojobe
(Arowojobe) – a citizen of Nigeria and friend of the Applicant – said Arowojobe
had been arrested by a team of police officers in November 2010. The police
officers said they were looking for the Applicant because of his homosexual
activities and accused Arowojobe of being the Applicant’s lover. A further
affidavit (Akomolede Affidavit) from Tope Akomolede (Akomolede) – also a
Nigerian citizen and the Applicant’s friend – said Nigerian police came to his
home and asked if he knew where the Applicant was. Akomolede said he did not
know where the Applicant was, and the police left telling Akomolede to tell
them when he knew of the Applicant’s whereabouts.
[6]
The
Officer considered the Applicant’s PRRA application and rejected it on 30
August 2011.
DECISION
UNDER REVIEW
[7]
The
Decision in this case consists of a letter the Officer sent the Applicant on 30
August 2011 (Refusal Letter), along with the Officer’s notes on the file
(Notes).
[8]
The
Officer rejected the PRRA application because she determined the Applicant
would not face a risk of persecution if he returned to Nigeria. The Applicant also did not face a risk to his life or a risk of torture or cruel
and unusual treatment or punishment.
[9]
The
Officer noted the Applicant continued to fear harm in Nigeria because he is homosexual. She then reviewed the RPD’s reasons for rejecting his refugee
claim. The RPD had found the Applicant’s testimony contained inconsistencies.
He had also not provided documents to establish his sexual orientation and had
not properly documented his homosexual relationship in Canada. The RPD had further found the Applicant did not have a secret homosexual relationship in Nigeria, as he said he had, and was not homosexual.
[10]
The
Officer instructed herself on the law applicable to the question before her.
She found Kaybaki v Canada (Solicitor General of Canada) 2004 FC 32
establishes that a PRRA application is not an appeal of a refugee
determination. Rather, it is a process by which any new risks which may have
developed since the RPD hearing can be evaluated. Further, subsection 113(a) of
the Act establishes that only evidence which arises after the refugee decision,
or which was not reasonably available, can be presented on a PRRA application.
Documentary Evidence
[11]
The
Officer found the Adigun Letter was of low probative value and did not
establish the Applicant was in a genuine homosexual relationship. This letter
was undated and unsworn and did not provide details of the relationship,
including how Adigun and the Applicant met or whether there was a sexual or romantic
component to their relationship. The Adigun Letter said that Adigun and the
Applicant had been in a relationship for over a year, so the Officer found it
was reasonable to expect the Applicant to present more details or evidence to
corroborate the relationship.
[12]
The
Officer also found the photographs submitted by the Applicant did not show that
his relationship with Adigun was genuine. The Applicant had not provided any
context or identified the purpose for which the photographs were taken. The
photographs were insufficient to overcome the RPD’s determination that the
Applicant was not credible.
[13]
The
other letters were also insufficient to overcome the RPD’s finding that the
Applicant was not credible. The Asaolu Letter said the author was aware the Applicant
is homosexual, but did not include details of how Asaolu knew this was so.
Asaolu had not said he had any first-hand knowledge of the Applicant’s sexual
activities or orientation.
[14]
The
Olugbade Letter said “I got to know Francis Ogunrinde is gay because of his
behaviour and actions. I always see him with a guy which I believe is his
girlfriend [sic].” This letter, however, did not set out what behaviours
or actions led Olugbade to believe the Applicant is homosexual, so it was also
of low probative value. Further, the Olugbade Letter and Asaolu Letter were
both unsworn and undated. Their low probative value did not establish that the
Applicant is homosexual. They were insufficient to overcome the RPD’s negative
credibility finding.
[15]
The
Applicant also submitted a letter from Helen Rykens (Rykens Letter), the office
manager at the 519 Church Street Community Center (519 Center). The 519 Center
provides resources to people in Toronto who are homosexual, bisexual, or
transgendered. The Officer found the Rykens Letter was not new evidence because
it spoke to membership at the 519 Center. The RPD had dealt with the
Applicant’s membership in the 519 Center when it evaluated his credibility and
the Rykens Letter was insufficient to overcome the RPD’s finding that the
Applicant was not credible.
[16]
Although
the Applicant said he was still at risk in Nigeria, the Officer found this was
not so. She found the affidavits he submitted were not enough to establish he
is homosexual or that he is wanted by the Nigerian police. The Akomolede
Affidavit did not say why the Applicant was wanted by the police and did not
provide any insight into the Applicant’s homosexuality. Although the Arowojobe
Affidavit said the police were interested in the Applicant for his “gay
activities,” this affidavit did not show that Arowojobe had been arrested or
detained. Further, the Arowojobe Affidavit was not corroborated by other
evidence.
[17]
The
Arowojobe Affidavit attested to new developments in a claim that had already
been rejected because the RPD found the Applicant was not credible. The
Arowojobe Affidavit was not enough to overcome the RPD’s negative credibility
finding.
[18]
The
Officer found country condition evidence before her showed that conditions in Nigeria were unfavourable for people who are homosexual. She also found there was
insufficient persuasive evidence to allow her to come to a different conclusion
from that of the RPD. Although the Applicant said he faced unusual and
undeserved hardship, this was an irrelevant consideration. The Officer
therefore refused the Applicant’s PRRA application.
ISSUES
[19]
The
sole issue the Applicant raises in this proceeding is whether the Officer’s
treatment of the evidence was reasonable.
STANDARD
OF REVIEW
[20]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[21]
In
Hnatusko v Canada (Minister of Citizenship and Immigration) 2010 FC 18
at paragraph 25, Justice John O’Keefe held the standard of review applicable to
a PRRA officer’s decision is reasonableness. Justice Maurice Lagacé made a
similar finding in Chokheli v Canada (Minister of Citizenship and
Immigration) 2009 FC 35 at paragraph 7, as did Justice Marie-Josée Bédard
in Marte v Canada (Minister of Public Safety and Emergency Preparedness)
2010 FC 930 at paragraph 17. The standard of review in this case is
reasonableness.
[22]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUTORY
PROVISIONS
[23]
The
following provisions of the Act are applicable in this proceeding:
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in
accordance
with the regulations, apply to the Minister for protection if they are
subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
[…]
113. Consideration of
an application for protection
shall
be as follows:
(a)
an applicant whose claim to refugee protection has been rejected may present
only
new
evidence that arose after the rejection or was not reasonably available, or
that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection;
[…]
114. (1) A decision to
allow the application for protection has
(a)
in the case of an applicant not described in subsection 112(3), the effect of
conferring
refugee
protection;
[…]
|
112. (1) La personne se
trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut,
conformément aux règlements, demander la protection au ministre si elle est
visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé
au paragraphe 77(1).
[…]
113. Il est disposé de
la demande comme il suit:
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement
accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
[…]
114. (1) La décision
accordant la demande de protection a pour effet de conférer l’asile au
demandeur;
toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3),
de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le
visant.
[…]
|
ARGUMENTS
The Applicant
[24]
Contrary
to the Officer’s conclusion, the evidence the Applicant submitted was
sufficient to show he is homosexual and in a relationship with Adigun. The
Officer unreasonably assessed the Asaolu Letter and Olugbade Letter.
[25]
The
Officer also unreasonably assessed the Rykens Letter. The Rykens Letter shows
the Applicant’s involvement with the 519 Centre after the RPD Decision. Since
the Rykens Letter speaks to events after the RPD Decision, it was an error for
the Officer to conclude this letter was not new evidence. It was also an error
for the Officer to reject this letter only because of the negative RPD
decision. The Officer was required to consider the evidence before her
independently of the RPD decision.
[26]
The
Officer also treated the Akomolede Affidavit and Arowojobe Affidavit
unreasonably. Both affiants described experiences with the Nigerian police.
What they said was corroborated by a report from the United States Department
of State called Nigeria: Country Condition Reports on Human Rights
Practices for 2010 (DOS Report). Although the Akomolede Affidavit said the
Nigerian police sought the Applicant for homosexual activities, the Officer
rejected it because it did not give any insight into the Applicant’s
homosexuality. The Officer unreasonably expected the Nigerian police to give
details of the homosexual activities which led them to seek the Applicant.
[27]
The
evidence the Applicant submitted was more than sufficient to establish he is
homosexual and faces a risk on that basis if he is returned to Nigeria. The Officer also did not consider how the new evidence establishes that the
Applicant faced a risk when the RPD made its decision. The Officer erred in
concluding the Applicant does not face a risk in Nigeria.
The
Respondents
[28]
The
Respondents point out that a PRRA is not an appeal of a negative RPD decision.
The RPD denied the Applicant’s claim because his evidence was inconsistent and
did not establish that he is homosexual. The Decision was reasonable and it is
not open to the Court to re-weigh the evidence.
Reasonable
Assessment of the Evidence:
[29]
Sayed
v Canada (Minister of Citizenship and Immigration) 2010 FC 796
teaches that new evidence submitted in a PRRA application must address the
deficiencies in the evidence which was before the RPD and which led to a
negative decision. The evidence on the PRRA must address any new risks which
have developed since the negative RPD decision. Further, a PRRA is not an
appeal from a negative RPD decision and a PRRA officer must respect the
original RPD decision.
[30]
Here,
the Officer reasonably placed low probative weight on the evidence the
Applicant submitted to show he is homosexual. The Applicant has not shown why
the Officer’s treatment of the letters from Olugbade and Asaolu was
unreasonable. The Applicant has not met his burden to show these letters can
overcome the RPD’s findings. The Officer also considered how the Rykens Letter
addressed the credibility finding and reasonably concluded it did not
constitute new evidence. The Applicant’s continued attendance at the 519 Center
did not overcome the RPD’s negative credibility assessment.
[31]
It
was also reasonable for the Officer to put low weight on the Arowojobe and
Akomolede Affidavits. The Applicant has not said why the weight the Officer put
on these affidavits was unreasonable. There was no evidence corroborating the
allegations in the Arowojobe Affidavit. Although Arowojobe’s arrest and the
search by the Nigerian police for the Applicant because of his homosexual
activities would be new evidence, it was insufficient to overcome the RPD’s
negative credibility finding. The Officer’s findings were open to her on the
evidence, so the Court should not interfere.
ANALYSIS
[32]
The
RPD found “on a balance of probabilities that the claimant is not gay.” The
basis for this conclusion was a series of negative credibility findings and a
general finding that “the claimant is not a credible or trustworthy witness.”
[33]
Because
the Applicant was unable to convince the RPD that he was gay, the RPD did not
analyze the risks faced by homosexuals in Nigeria: “In light of the panel’s
assessment of the credibility of the claimant, there is no reliable evidence to
establish, on a balance of probabilities, that the claimant has a personalized
fear of this nature.”
[34]
In
the Decision before me, the PRRA Officer appears to accept that homosexuals are
at risk in Nigeria:
I have considered country conditions and acknowledge
that conditions in Nigeria are not favourable for lesbian, gay, bisexual or
transgendered persons. However, in the case before me, I find that I have
insufficient persuasive evidence to allow me to arrive at a different
conclusion from the Board.
[35]
So
the Applicant’s problem is that he could not convince the PRRA Officer that he
is gay, just as he could not convince the RPD that he is gay. Both decisions
suggest that, if he could establish this fact, and overcome the RPD’s initial
credibility concerns, then he may well face section 96 persecution or section
97 risk in Nigeria.
[36]
The
Officer concedes that the Applicant presented “new evidence” that she was
obliged to consider under subsection 113(a) of the Act. The Officer then
proceeds to address each document in turn. In doing so, I think that the
Officer commits several reviewable errors, including a failure to consider the
evidence in its totality.
[37]
First,
the Officer’s treatment of the Arowojobe Affidavit is unreasonable. The
question before the Officer on the PRRA application was whether, based on the
evidence before her, the Applicant was at risk of harm in Nigeria. The Arowojobe Affidavit speaks to crucial aspects of the risk the Applicant faces
in Nigeria. First, the Nigerian police believe the Applicant is homosexual and,
second, they are seeking him because of his “gay activities.” However, the Officer
found this affidavit “is an attestation of new developments in a claim that was
already rejected by the [RPD] over credibility.” The Officer reasons that,
because the RPD did not believe the Applicant was homosexual, he could not be
at risk in Nigeria on this basis.
[38]
What
the Officer fails to consider is that what mattered with respect to the
Arowojobe Affidavit was not whether the Applicant is homosexual, but that the
authorities in Nigeria believe he is homosexual. This affidavit contained
relevant, sworn evidence of the risk the Applicant faces in Nigeria. As a sworn document, the Arowojobe Affidavit was entitled to the presumption of
truth. See Maldonado v Canada, (Minister of Employment and
Immigration), [1980] 2 FC 302. Whether the RPD found the Applicant
credible or not about his homosexual activities in Canada had no bearing on
whether the Arowojobe Affidavit establishes a risk in Nigeria. This affidavit clearly establishes that the Nigerian police are looking for the
Applicant because they believe his is homosexual.
[39]
It
is true that the Officer gives the Arowojobe affidavit little weight because of
the absence of corroborative evidence, “such as evidence of a police warrant,
the name of the ‘Investigation Police Officer,’ or evidence that Mr. Arowojobe
was in fact arrested and detained.” The evidence that Mr. Arowojobe was
arrested and detained is the affidavit itself, and there is no reason to
suspect that Mr. Arowojobe is not telling the truth, at least no reason that
the Officer cared to mention. As for the lack of a police warrant or the name
of the “Investigation Officer,” the Officer is being wilfully blind in
expecting normal formalities in a country where, as the documentary evidence
before the Officer makes very clear, homosexuality is not tolerated and the
authorities are not likely to treat gay people with any kind of formal respect
or due process.
[40]
In
my view, then, the rejection of the Arowojobe Affidavit for the reasons given
by the Officer is unreasonable. That affidavit says quite clearly that the
authorities in Nigeria perceive the Applicant to be homosexual and that they
are seeking him for this very reason. This important factor should also have
been borne in mind by the Officer when she considered the other new evidence
before her.
[41]
The
Court is mindful of the difficulties that PRRA officers face when dealing with
claimants who assert a risk of harm because of their sexual orientation. Claimants
bear the onus of satisfying the officer evaluating their application they have a
profile that will put them at risk.
[42]
At
the same time, the acts and behaviours which establish a claimant’s homosexuality
are inherently private. When evaluating claims based on sexual orientation,
officers must be mindful of the inherent difficulties in proving that a
claimant has engaged in any particular sexual activities. Claimants may not be
in contact with past sexual partners for various reasons, including
relationship breakdown, distance, or simply the passage of time.
[43]
In
this context, it is my view that the Officer’s treatment of the letters the
Applicant submitted in this case was unreasonable. The Officer gave the Asaolu
Letter low probative weight because “[t]he author of the letter provides no
explanation as to how he knows [the Applicant is homosexual], and if he has
first hand knowledge of the Applicant’s sexual activities and orientation.”
This was an unreasonable basis upon which to assign the letter low probative
weight. The Asaolu Letter says that Mr. Asaolu knows the Applicant is gay
“because we have been living in the same apartment since 2007.” It may lack
details, but it cannot be said that Mr. Asaolu “provides no […] explanation as
to how he knows” the Applicant is gay. He knows it because he has lived in the
same apartment as the Applicant since 2007.
[44]
The
Officer also did not adequately consider Mr. Asaolu’s relationship with the
Applicant in assigning weight to his letter. The letter says that Mr. Asaolu
and the Applicant live together. Two people who live together would have some
idea as to each other’s sexual orientation, particularly in a case like this
where the Applicant was in a relationship with another man. The Officer’s
analysis ignores this. The Officer’s statement that “the author of the letter
provides no explanation as to how he knows [the Applicant is homosexual]” fails
to account for the fact that Mr. Asaolu knows the Applicant is homosexual
because they live together.
[45]
The
Officer’s treatment of the Olugbade Letter was also unreasonable. The Officer
gave this letter little probative weight because Mr. Olugbade did not set out
which “‘behaviours and actions’ have persuaded him the [Applicant] is gay.” Mr.
Olugbade wrote that he believed the Applicant was homosexual because he saw the
Applicant “with a guy who I believe is his girlfriend [sic].” Although Mr.
Olugbade did not mention any specific sexual acts he had witnessed, he had
observed the Applicant with another man and, based on that observation, had concluded
the Applicant was homosexual. It was clearly erroneous for the Officer to
conclude Mr. Olugbade had no basis for his belief. The explanation for how he
knows is that he has observed his “behaviours and actions” generally and has
witnessed him with another man who is regarded as his “girlfriend.”
[46]
The
Officer’s reasoning on this point also suggests that she had in mind a set of
actions or behaviours which would convince her that the Applicant is
homosexual. It is inappropriate for officers to rely on stereotypes when
evaluating whether or not a person has established any ground of risk,
including sexual orientation. See Ponniah v Canada (Minister of Citizenship
and Immigration) 2003 FC 1016 at paragraph 10 and Herrera v Canada (Minister of Citizenship and Immigration) 2005 FC 1233 at paragraphs 12 through
20.
[47]
The
Respondents have pointed out that any new evidence which is presented on a PRRA
application must address the deficiencies in the evidence which was before the
RPD. I agree. The Olugbade and Asaolu Letters were both directed at addressing
the RPD’s concern the Applicant had not adequately documented his
homosexuality.
[48]
In
addition, however, the Rykens Letter of 2 December 2010 attested to the
Applicant’s continued membership and participation with the gay community in Toronto and that he has shared his story at “Coming Out Being Out meeting […].”
[49]
This
letter seems to suggest that the Applicant has gone beyond simple membership at
the 519 Center and has now come out and shared his story. So there would appear
to be something new here for the Officer to consider that goes beyond the RPD’s
concerns and findings, and it is more than just “continued membership,” a fact
which the Officer neglects to mention or deal with.
[50]
Perhaps
each piece of new evidence, when viewed in isolation does not overcome the
RPD’s concerns about whether the Applicant is gay. But when we look at the
complete picture, it seems that the Applicant:
a.
Is
regarded as homosexual by the man he lives with;
b.
Has
been observed “with the guy who I believe is his girlfriend [sic]”;
c.
Has
continued his activities with the gay community in Toronto and has shared his
coming out story at an organization that assists gay people;
d.
Is
wanted by the Nigerian police who believe he is gay, so that he faces a
significant risk if he is returned to Nigeria.
[51]
I
do not think the Officer considered the complete picture before her. This is a
reviewable error. In particular, I do not think the Officer considered that,
whether or not the Applicant has established his homosexual identity in Canada to the Officer’s satisfaction, he is regarded as homosexual in Nigeria and the authorities
are looking for him for this reason.
[52]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different PRRA officer.
2.
There
is no question for certification.
“James
Russell”