Docket: IMM-3545-13
Citation:
2014 FC 1105
Ottawa, Ontario, November 25, 2014
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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CHRISTOPHER OSA EVBUOMWAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
In 2012, Mr Christopher Evbuomwan, fearing
persecution based on his sexual orientation, fled Nigeria and sought refugee
protection in Canada. A panel of the Immigration and Refugee Board found Mr Evbuomwan’s
claim to be credible, yet denied it on the basis that he had failed to provide
adequate proof of his identity.
[2]
Mr Evbuomwan argues that the Board failed to
apply the proper standard of proof, ignored relevant evidence, and improperly
faulted him for failing to obtain a Nigerian passport. He asks me to order the
Board to conclude that he is a refugee or, in the alternative, to order another
panel to reconsider the issue of identity. Mr Evbuomwan also requests an order
of costs against the Minister.
[3]
In my view, the Board’s treatment of the issue
of identity was unreasonable and, therefore, I must allow this application for
judicial review. However, I would return the matter to another panel of the
Board for reconsideration; I would not narrow the issues before the Board or
direct it how to decide Mr Evbuomwan’s claim. Further, I would make no order
relating to costs.
[4]
While Mr Evbuomwan has raised a number of
discrete issues, I believe the essential question before me is whether the
Board’s decision was unreasonable.
II.
The Board’s Decision
[5]
On the issue of identity, the only documentary
evidence Mr Evbuomwan had provided to the Board was his birth certificate.
While this showed that Mr Evbuomwan was born in Nigeria in 1993, it did not,
according to the Board, prove that he is currently a citizen of Nigeria.
[6]
The Board also noted that Mr Evbuomwan had not
obtained better evidence of citizenship, such as a passport or National
Identity Card. The Board stated in its reasons that, after the hearing, it had
given Mr Evbuomwan three weeks to obtain better evidence in the form of a
Nigerian passport from the High Commission in Ottawa and, perhaps, some school
documents from Nigeria.
[7]
Mr Evbuomwan provided school documents, but no
passport. The Board concluded that those documents confirmed Mr Evbuomwan’s
presence in Nigeria for a number of years but did not definitively establish
his Nigerian citizenship. Since Mr Evbuomwan had not provided a passport as
requested, or an explanation for why he could not obtain one, the Board found
that he had not proved his citizenship. Therefore, it was unnecessary to
consider whether Mr Evbuomwan was entitled to refugee protection.
III.
Was the Board’s decision unreasonable?
[8]
The Minister argues that the Board properly
described the onus on the applicant and reasonably concluded that Mr Evbuomwan
had not established his Nigerian citizenship.
[9]
I disagree. There are three problems with the
Board’s decision.
[10]
First, while the Board did not apply the wrong
legal standard of proof, it misdescribed the evidentiary burden on Mr Evbuomwan.
It did not, therefore, commit an error of law; rather, it unreasonably
discounted the evidence in Mr Evbuomwan’s favour. (For a discussion of the
distinction between the legal burden and the evidentiary burden, see Flores
Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, at
para 16-30.)
[11]
The Board stated that Mr Evbuomwan had not discharged
the burden of establishing his citizenship. The Board correctly identified the
legal burden on Mr Evbuomwan – the ordinary civil standard – but also stated
that he had not provided “all relevant evidence”
of his citizenship, and that his school documents did not provide “definitive” proof. In my view, the Board
mischaracterized the evidentiary burden on Mr Evbuomwan. His obligation was to
provide “acceptable documents” relating to
identity (according to the Rules in force at the time of the hearing, the Refugee
Protection Rules, SOR/2002-228, s 7 – see Annex). Presumably, “acceptable” documents are ones that are genuine and
probative on the issue of citizenship. Here, Mr Evbuomwan did provide some
acceptable documents, but he obviously did not provide “all
relevant documents” or any that constituted “definitive”
proof of citizenship.
[12]
In my view, the Board unreasonably overstated
the evidentiary burden on Mr Evbuomwan by requiring him to provide “all relevant documents” relating to, and “definitive” proof of, his identity.
[13]
Second, the Board seemingly did not consider all
of the evidence relating to Mr Evbuomwan’s citizenship. As mentioned, it found
that Mr Evbuomwan’s school documents were not definitive. But it apparently did
not consider that evidence along with Mr Evbuomwan’s birth certificate, his
written narrative in which he explained that his parents were both Nigerian
citizens, and his uncontradicted testimony at the hearing. According to the
Nigerian Constitution, which formed part of the evidence before the Board, a
person is a citizen of Nigeria if he or she is born there and has at least one
parent who is a citizen. In my view, the Board was obliged to consider the
evidence relating to identity as a whole before concluding that Mr Evbuomwan
had failed to prove it.
[14]
Third, the Board faulted Mr Evbuomwan for not
obtaining a Nigerian passport even though he had been given time after the
hearing to obtain one. In fact, according to the transcript of the hearing, the
Board twice told Mr Evbuomwan that he would be given time to obtain “either school documents or a passport or both” (my
emphasis). Mr Evbuomwan obtained the school documents but not the passport.
[15]
The Board’s instruction created a reasonable
expectation that school documents would allay its concerns about Mr Evbuomwan’s
identity, presumably because they would show that he was not only born in
Nigeria but spent much of his life there. It was unreasonable, therefore, for
the Board to state in its decision that Mr Evbuomwan should have provided a
passport as evidence of his identity when it specifically told him that he
could provide either school documents or a passport. Further, it was
unreasonable for the Board to discount the probative value of the school
documents without explanation, having given the impression that they would
provide adequate proof of citizenship.
IV.
Conclusion and Disposition
[16]
The Board’s treatment of the issue of Mr Evbuomwan’s
identity was not transparent, justifiable or intelligible. I must, therefore,
allow this application for judicial review.
[17]
However, I cannot grant the remedy Mr Evbuomwan
seeks – an order directing the Board to find that he merits refugee protection,
or an order confining the reconsideration of his claim to the issue of
identity. While Mr Evbuomwan was found to have given credible evidence
supporting his claim, there has yet to be a finding that his claim for refugee
protection has been made out. In my view, the matter must be returned to the
Board to make that determination.
[18]
Further, I see no special reasons that would
merit an award of costs. The respondent opposed Mr Evbuomwan’s request for an
extension of time and this application for leave and judicial review, as it was
entitled to do. I see no basis for Mr Evbuomwan’s contention that his
application was opposed at all costs, improperly, or in bad faith. The fact
that the respondent might have been in a position to help expedite these
proceedings and failed to do so is not a basis for an award of costs.
[19]
Finally, neither party proposed a question of
general importance for me to certify, and none is stated.
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