Date: 20070822
Docket: IMM-4191-06
Citation: 2007
FC 848
Montréal, Quebec,
August 22, 2007
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
TUNJI DIRAN LEKE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Tunji
Diran Leke applies for the judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board), dated
July 18, 2006, which determined that he was not a Convention refugee or a person
in need of protection in that his removal to Nigeria would not subject him
personally to a risk to his life or to a risk of cruel and unusual treatment or
punishment.
Issue
[2]
Did
the Board err in fact or in law in concluding that the applicant did not
establish his sexual orientation and would therefore not be at risk of cruel
and unusual treatment or punishment should he return to Nigeria?
Facts
[3]
The applicant, Mr. Tunji Diran Leke, was
born on August 13, 1977 in Osa Oke, Nigeria. Raised in a devoutly
Christian home, he was expected to succeed his father, Reverend John Leke.
Although he would eventually become a Minister like his father and marry a
preacher’s daughter who bore him two sons, the applicant led a double life all
along, for he was truly not a heterosexual.
[4]
The
applicant realized he was a homosexual during his final year in high school and
had his first homosexual experience in 1993 with a classmate at the Polytechnic
school in Ibadon. Between 1996 and 2000, he was involved in three homosexual
relationships.
[5]
On
September 24, 2005, the applicant and his male partner, Kunle Oba were caught
having sex in Mr. Oba’s apartment. The landlord, who caught them in the act,
and onlookers beat and humiliated the applicant and his partner. The applicant
escaped and Kunle Oba was handed over to the police who later visited the
applicant’s home and church looking for him. The next day, the applicant fled
to Lagos, where a
friend gave him refuge. It was in Lagos that the applicant was
introduced to an agent who provided him with passage to Canada. He arrived
in Toronto on October
6, 2005 and immediately claimed refugee protection based on his sexual
orientation.
[6]
The
applicant took up residence at 321 Jarvis Street, in Toronto and became a
member of the 591 Church Street Community Centre, which serves members in the
heart of the gay, lesbian, as well as the transsexual and transgendered
communities in that city. The applicant’s refugee claim was heard on May 19,
2006 and a negative decision rendered on July 18, 2006. This negative decision is
the object of the present application for judicial review.
[7]
In
support of his application for judicial review, the applicant provided an
affidavit from Debo Abdul Dean Salam sworn on January 28, 2007. The affiant
swears that he is gay and was in a same-sex relationship with the applicant
when his refugee claim came up for hearing on May 19, 2006. Mr. Salam further
swears that he attended the hearing, and when asked by the Board member the
purpose of his presence at the hearing, he indicated that he was the
applicant’s partner and he was there to give him moral support.
Decision under review
[8]
The
Board found that the applicant was not a Convention refugee or person in need
of protection because there was no substantial basis to believe that his sexual
orientation would be readily identifiable by people in Nigeria, such that
he would be at personal risk of detection or exposed to the risk of torture.
First, while the applicant alleged that others in Nigeria including
the police, a landlord, his family and in-laws now know that he is a
homosexual, it was not possible for the Board to conclude that others in Nigeria would
perceive the applicant to be either homosexual or bisexual. He did not look
like a gay person. The Board noted as follows:
Having observed the claimant throughout
the hearing, I do not find that there is anything to be gleaned from the
claimant’s facial expressions, tone of voice or his physical that would, in and
of themselves create an impression that this claimant was either homosexual or
bisexual.
[9]
Moreover,
the Board acknowledged that since it did not have a test
result to ascertain the claimant’s sexual orientation, it had to rely on
an assessment of credibility in order to determine whether the applicant’s
allegations of his sexual orientation were probable. In this regard, the Board
found that there were several factors that, in its view, undermined the
applicant’s fears that public perceptions would lead others to conclude that he
was indeed a homosexual or bisexual and thus expose him to a risk of
persecution upon his return to Nigeria.
[10]
First,
the applicant is an ordained pastor and it is not probable that a perceived
homosexual would be allowed to become a church pastor in Nigeria where
“disapproval of homosexuality remains strong” and the ordination of gays is a
controversial issue. Second, the applicant had a common-law spouse. Third,
this common-law union bore him two sons born in 2000 and 2004 respectively. The
Board held that it was highly improbable that a homosexual would father two
sons. As a result of this conclusion, the Board was of the view that it was
extremely difficult to identify the claimant’s sexual identity as an innate
characteristic. In arriving at this conclusion, the Board considered the
following factors:
·
the
applicant’s situation in Canada, a country more accepting of different sexual
orientations than Nigeria;
·
during
testimony, the applicant was reticent to describe explicitly the intimate
sexual act he and Kunle Oba were performing when the landlord forced himself
into the apartment and caught them in the act;
·
the
applicant acknowledged that he was not currently involved in a homosexual relationship
in Canada;
·
in
support of his claim, the applicant provided a letter from Pastor (Dr.) Amos
Dada of the Christ Apostolic Church in North
York, which makes no mention of the applicant’s problems in Nigeria or his
sexual orientation;
·
the
applicant submitted a membership card from the 519 Church Street Community
Centre, which is characterized as a community centre in the Toronto region and
asked the Board to consider this as evidence of sexual orientation. The Board
was unable to lend any credence to the applicant’s membership card from the 519 Church
Street
Community Centre as proof of his sexual orientation and this for two reasons.
First, the 519
Church Street
Community Centre serves a diverse community even though it does serve gays and
lesbians. Second, the Board drew an analogy and stated that the simple
possession of a library card does not provide evidence that the cardholder is
literate since libraries offer a variety of services, including video and audio
recordings and do not set out literacy tests for patrons.
[11]
Finally,
the Board concluded that innate characteristics are unchangeable and immutable
and establish membership in a particular social group as set out in Canada
(Attorney General of Canada) v. Ward, [1993] 2 S.C.R. 689. Consequently,
since the applicant has failed to establish that others in Nigeria would
probably identify him as a homosexual, he was not a Convention refugee as
described in section 96 of the Act.
Relevant legislation
[12]
The
Board found that the applicant did not establish that others in Nigeria would
probably identify him as a homosexual, the result being that he was not a
Convention refugee as described in section 96 of the Act. The relevant passages
of this section provide as follows:
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
[. . .]
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
[. . .]
|
[13]
The
Board also considered refugee protection as set out in section 97 of the Act, which
states:
|
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail himself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
|
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie
ou au risque de traitements ou peines cruels et inusités dans le cas suivant
:
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Analysis
Standard of Review
[14]
At
the outset, the Court must determine the standard of review applicable in this
wholly fact based matter anchored in the applicant’s credibility. Where a
finding of fact and credibility is at issue, judicial review is only warranted
when the reviewing Court is satisfied that the decision is patently
unreasonable. See: Aguebor v. Canada (Minister of
Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.), where Mr.
Justice Décary stated as follows:
[3] It is correct, as the Court said in
Giron, that it may be easier to have a finding of implausibility reviewed where
it results from inferences than to have a finding of non-credibility reviewed
where it results from the conduct of the witness and from inconsistencies in
the testimony. The Court did not, in saying this, exclude the issue of the
plausibility of an account from the Board's field of expertise, nor did it lay
down a different test for intervention depending on whether the issue is
"plausibility" or "credibility".
[4] There is no longer any doubt that
the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the
tribunal are not so unreasonable as to warrant our intervention, its findings
are not open to judicial review. In Giron, the Court merely observed that in
the area of plausibility, the unreasonableness of a decision may be more
palpable, and so more easily identifiable, since the account appears on the
face of the record. In our opinion, Giron in no way reduces the burden that
rests on an appellant, of showing that the inferences drawn by the Refugee
Division could not reasonably have been drawn. In this case, the appellant has
not discharged this burden.
[15]
To
succeed, the applicant must demonstrate therefore that the inferences drawn by
the Board could not reasonably have been drawn.
Did the Board err in
fact or in law?
[16]
There
are several shortcomings in this decision which stem from erroneous findings of
fact that appear to have been made in a perverse and capricious manner without
regard to the evidence before the Board.
[17]
First,
as counsel for the applicant correctly points out, the Board misinterpreted,
misunderstood or misapplied the documentary evidence pertaining to the
treatment of homosexuals in Nigeria.
[18]
The
evidence before the Board established that the applicant led a double life. He
lived an openly normal life in the image of his father as an ordained pastor,
with a wife and two young sons on the one hand. All the while however, he was
carrying on in secret a series of homosexual relationships in Nigeria until caught
in the act. And the applicant testified that he led this double life because of
his fears of homophobia in Nigeria and that he fled his
country only after he was caught and beaten for having sexual relations with a
man.
[19]
The
Board acknowledged that unlike Canada, Nigeria has zero
tolerance towards homosexuals; indeed it is a criminal offence to engage in
same-sex relationships. The Board stated as follows:
While the claimant has reminded the Board
that homosexuality is illegal in Nigeria,
the Board finds that the claimant is not a person in need of protection as
described in this section of the Act. The Board does not accept that the
claimant has been perceived as a homosexual male in Nigeria nor would he be so perceived in the
future for reasons set out above. Although homosexuality remains an anathema
in Nigerian culture, has been described as an “assault to basic values of
humans and human society” and is admittedly illegal, the Board is also aware
that Amnesty International has stated that Nigerian courts rarely impose
sentences for homosexuality. Nonetheless, since others in Nigeria probably would not identify
this claimant as a homosexual consideration of cruel and unusual treatment,
punishment or tortures are theoretical and abstract.
[20]
It
was patently unreasonable for the Board to find that the applicant was not a
homosexual because it was highly improbable that a homosexual would father two
sons. The Board provided no explanation and no basis for this inference in
spite of the evidence before it that homosexuals in Nigeria are forced
to live double lives for fear of the consequences of living openly in same-sex
relationships. Since the Board did not reach an adverse conclusion regarding
the applicant’s credibility, it was patently unreasonable to disregard this
evidence before it and conclude that it was highly improbable that a homosexual
would father two sons.
[21]
In
addition to this blanket statement, the Board misapprehended the evidence
before it by stating that it is not probable that a perceived homosexual would
be allowed to become a church pastor in Nigeria where “disapproval
of homosexuality remains strong.” While it was reasonably open to the Board
to conclude that it did not observe any outward indications in the applicant’s
appearance, or manner of conducting himself, all the while acknowledging that
it did not have a litmus test to determine homosexuality, it was perverse to
disregard the facts before it that the applicant is now wanted by the police
for homosexuality and is considered a disgrace to his children, wife, family,
church and community.
[22]
Moreover,
the Board made significant errors of fact about the evidence provided to
support the applicant’s homosexuality in Canada. First, the
Board clearly erred by stating that during his testimony the applicant
acknowledged that he was not currently involved in a homosexual relationship in
Canada. At no point in the transcripts of the hearing does the applicant make
any such acknowledgment. In fact, there is no indication in the transcripts
that the Board or counsel put that question to the applicant, such that he
would affirm or deny that he was in a same-sex relationship in Canada at the time
of the hearing.
[23]
In
this regard, the transcripts do show the presence of an observer in the room
during the hearing. This individual identified himself to the Board as Mr. Debo
Abdul Dean Salam. Mr. Salam provided an affidavit sworn on January 28, 2007, in which he states
among other things, that he was gay and the same-sex partner of the applicant.
[24]
The
transcripts indicate no evidence that the applicant was in a homosexual
relationship in Canada at the time of the hearing, except for the
affidavit provided by the applicant’s same-sex partner. In fact the affiant Salam
corroborates this when he states that he spoke to the Board member and
indicated that he was the same-sex partner of the applicant and that he was not
there to testify but rather to provide moral support.
[25]
While
Mr. Salam’s presence was noted for the record, no testimony was given regarding
his relationship to the applicant. Even if a discussion (inaudible for
transcription purposes) took place between Mr. Salam and the Board member
regarding his relationship to the applicant, this discussion would not
constitute sworn evidence that the Board could consider to assess the applicant’s
claim. Mr. Salam was obviously present and could have testified on the applicant’s
behalf but did not.
[26]
Nevertheless
the Board mistakenly noted that the applicant acknowledged that he was not
involved in a homosexual relationship in Canada at the time of the hearing, and
this error on this issue is material since the Board clearly indicated that the
applicant’s lack of identification as a homosexual in Canada was a
determinative factor in its decision.
[27]
The
Court has no reason to doubt the affiant’s account of what transpired, since
the explanation provided in the affidavit is corroborated by the transcription,
in that there is clearly an intervention by an unidentified speaker off
microphone, which is inaudible. Also, it is clear from the Board member’s
acknowledgment of this unidentified person that she had foreknowledge of this
observer including his four names.
[28]
Furthermore,
the Court finds it incongruent that the Board would invite the applicant to
accord permission to this observer and not ascertain beforehand the identity of
this person. However, the exchange is indeed inaudible. Notwithstanding, and in
light of the circumstances and the important error of fact on the part of the
Board with respect to the unsubstantiated statement attributed to the applicant,
the Court finds that this error is significant especially since the affidavit
is duly sworn and signed before a Commissioner of the Bar of Ontario.
[29]
In
addition to this affidavit, the applicant provided a copy of his membership
card at the 519
Church Street
Community Centre as evidence of his association with an organization in Toronto that serves
the gay, lesbian, transsexual and transgendered communities among other
minorities in the City and thus supports his alleged sexual orientation. The
Board rejects this evidence for two reasons.
[30]
First,
while the 519
Church Street
Community Centre does indeed serve members of the City’s gay and lesbian
communities, the Board took judicial notice of the fact that this community
centre serves a diverse community, including Latinos, the arts, and theatre and
film festivals. Second, by analogy, the Board claims that the mere possession
of a library card does not provide evidence that the cardholder is literate
because the library provides a variety of services to meet the needs of
different people. Similarly, the mere possession of a membership card at the 519 Church
Street
Community Centre does not provide evidence that a member of this particular community
centre is gay or lesbian.
[31]
There
are problems with the Board’s misapplication of the facts that steer it in
error such as to invite the intervention of the Court. First, it is clear from
the documentary evidence before the Board, and in particular from the Personal
Information Form (PIF) that the applicant resides at 321 Jarvis Street which falls
within the dominantly gay community in the heart of which the 519 Church
Street
Community Centre is located. Second, the Board states that it took judicial
notice by reviewing the 519 website at “ http//www:the519.org/programs/groups/arts/index.shtml”
[32]
A
careful review of this complex and detailed website reveals that over and
beyond the programs, groups and arts listed on the website, their predominant
clientele and users are members of the gay and lesbian communities. In fact,
even a cursive review of this website highlights the fact that the 519 Church
Street Community Centre is devoted to the needs and concerns of this specific
community in all its diversity whether Latino, or of any other immigrant and
minority group. In the history of the community centre on the same website, the
Court notes the following on the 519 Church Street Community Centre Web
Site at: http//www.the519.org/about/history.shtml:
Gays
and lesbians living in The 519's catchment area have been among the most active
and visible members and users of the community centre. Most groups are run by
volunteers, and the group members appreciate the safe environment, the
accessibility, and The 519's role within the community.”
[33]
The
Court is satisfied that it was patently unreasonable for the Board to dismiss
the applicant’s membership in the 519 Church Street Community Centre as proof
of his membership in an organization that serves minorities like him in and
near the City’s Gay Village. As such, the Board erred by its disregard or
misapprehension of the evidence before it.
[34]
For
all these reasons, the Court finds that the Board erred in fact or in law in
concluding that the applicant did not establish his sexual orientation and
would therefore not be at risk of cruel and unusual treatment or punishment
should he return to Nigeria. Therefore the application for judicial review
shall be allowed.
[35]
The
parties were invited to present questions of importance for certification but
declined.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
- The application for judicial review
is allowed, with costs;
- The matter be returned to a differently
constituted Board for re-determination; and
- No question is certified.
“Maurice E. Lagacé”
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