Docket: IMM-4590-15
Citation:
2016 FC 601
Ottawa, Ontario, May 31, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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BUNMI AGNES EZE
RICHARD
CHUKWUEMEKE EZE
OLUCHI MERCY
EZE (MINOR)
KELECHI
EMMANUEL EZE (MINOR)
AMARACHI CHRISTABEL
EZE (MINOR)
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Applicants
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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
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (“RPD”) of the Immigration and
Refugee Board of Canada (“IRB”), dated September 23, 2015, finding that the
Applicants are neither Convention refugees nor persons in need of protection
pursuant to s 96 or s 97, respectively, of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”) and also finding that the
Applicants’ claim had no credible basis.
Background
[2]
The Applicants are husband (“Male Applicant”)
and wife (“Female Applicant”) and their three minor children who are all
citizens of Nigeria. In his Personal Information Form (“PIF”) narrative, the
Male Applicant claimed that after the birth of his first daughter his mother
and kinsman told him that female children are to be circumcised before the age
of seven. He informed his mother that, as a Christian, he was opposed to this
practice but his mother insisted as it was part of their culture.
[3]
In January 2009, after the birth of their second
daughter, the Male Applicant’s mother reminded him that the girls were to be
circumcised. In February 2009, the Male Applicant’s uncle, who had previously
expressed jealousy of the Applicants’ comfortable lifestyle, and his mother
tried to forcibly remove the children, but neighbours intervened. The Male
Applicant reported the incident to the police but they refused to become
involved. In July 2009, a group of the Male Applicant’s family members again
came to the Applicants’ home and said they would take his daughters whether he
allowed it or not. He again reported this to the police to no avail.
[4]
In 2010, the family moved to another location
within Lagos and did not contact his family. Two years later, in July 2012,
the Male Applicant’s brother informed him that there had been a meeting of the
extended family and that they were considering hiring professional kidnappers
to abduct his daughters and to kill anyone who stood in their way. The Male
Applicant reported the threat of kidnapping to the police and was again told to
follow his family’s traditions. The family fled to Canada on September 25,
2012.
[5]
On July 10, 2015 and August 5, 2015, the
Applicants submitted updated PIF narratives and further evidence, to support
their claim that it remains unsafe for them to return to Nigeria.
Decision Under Review
[6]
The RPD denied the Applicants’ claim, finding
that the determinative issue was credibility and that the Applicants’ claim had
no credible basis.
[7]
The RPD found that despite indications in the
country documents that female circumcision continues to be prevalent in
Nigeria, most Nigerian women are not circumcised and most Nigerian men and
women are now opposed to the practice. The RPD noted evidence stating that parents
can refuse to have their daughters circumcised, especially if both parents
agree, which was the circumstance in the subject claim. Further, female
genital mutilation (“FMG”), which includes circumcision, has now been banned in
12 states throughout the country.
[8]
The RPD found it improbable that the Male
Applicant’s mother would regularly travel over 500 kilometers from where she
lived to the Applicants’ home to harass them. The RPD also noted discrepancies
between statements made by the Applicants at the port of entry (“POE”) and
their PIF narrative and testimony. Further, the RPD noted that the Male
Applicant’s allegedly jealous uncle was not mentioned at the POE, nor was there
evidence that he exists; it found that the uncle was likely introduced to
bolster the claim with threats from male family members in Nigeria’s paternalistic
society. The RPD found that no mention was made of the three attempts to make
police reports at the POE and that it was improbable that the police would not
have produced a report during one of the Applicants’ three visits. The RPD
noted a Response to Information Request (“RIR”) dated November 2012, entitled
“Nigeria: Whether parents can refuse female genital mutilation for their
daughters; protection available to the child” (“2012 RIR”) which stated “most likely, police will also consider it a family affair
and refuse to interfere”. However, the RPD noted that this document was
three years old and that recent trends in Nigeria suggest less support for FGM.
For these reasons, the RPD found there was insufficient trustworthy evidence
to support the claim that the Applicants’ family in Nigeria is adamant about
circumcising the adult Applicants’ daughters or that they hired professional
kidnappers.
[9]
The RPD also found inconsistencies regarding the
Applicants’ subjective fear. It noted that the adult Applicants left their
children in Nigeria with the Female Applicant’s sister while they left the
country for vacations in 2009 and 2011. This was in contrast to the Female
Applicant’s testimony that between 2010 and 2012, the Male Applicant’s family
would visit two to three times a week to try and take their daughters. The RPD
found this suggested that the adult Applicants were not concerned that the
children were in any danger and further undermined the Applicants’ credibility.
Further, at the POE interview, the Male Applicant also stated that he
travelled to Europe with his daughters in April 2012 but did not mention this
in his PIF or at the hearing, nor did he claim protection in any of the
European countries through which they travelled.
[10]
The RPD also determined that the psychological
reports concerning both adult Applicants were not persuasive as the doctor was
not in a position to determine that their mental and emotional states resulted
from their alleged problems in Nigeria. The RPD noted that psychological
reports cannot serve as a cure-all and that opinion evidence is only as valid
as the truth of the facts on which it is based (Rokni v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 182; Danailov v Canada
(Minister of Employment and Immigration), [1993] FCJ No 1019) and gave them
no weight. On the basis of its concerns with the Applicants’ credibility and
the availability of fraudulent documents in Nigeria, the RPD also gave no
weight to the documents from Nigeria produced by the Applicants to corroborate
their allegations.
Issues
[11]
Although the Applicants raise a number of
issues, in my view this matter can be determined on the reasonableness of the
RPD’s assessment of the Applicants’ credibility and its no credible basis
finding.
Standard of Review
[12]
The RPD’s credibility findings, described as the
“the heartland of the Board’s jurisdiction”, are
essentially pure findings of fact that are entitled to deference and have
previously been determined to be reviewable on a reasonableness standard (Behary
v Canada (Citizenship and Immigration), 2015 FC 794 at para 19 [Behary];
Pournaminivas v Canada (Citizenship and Immigration), 2015 FC 1099 at
para 5 [Pournaminivas]; Zhou v Canada (Citizenship and Immigration),
2013 FC 619 at para 26; Dunsmuir v New Brunswick, 2008 SCC 9 at para 62
[Dunsmuir]). Reasonableness is concerned with the existence of
justification, transparency and intelligibility, and whether the decision falls
within a range of possible, acceptable outcomes (Dunsmuir at para 47; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).
Analysis
[13]
I have carefully considered the parties’ written
and oral submissions.
[14]
In this case, the RPD based its decision
primarily on four negative credibility or plausibility findings. The RPD found
it improbable that the Male Applicant’s 70 year old mother who lives over 500
kilometers away would continue to pose a threat to the family over the years
since the birth of his first daughter. I agree with the Applicants that there
was no evidence that his mother was making this journey on a regular basis or
that this was a necessary aspect of their claim given the alleged involvement
of other family members.
[15]
The RPD also found that the Applicants had not
gone to the police with their concerns because it is “improbable
that the police would not have produced some sort of report”. However,
the RPD referred to no evidence to support this as is required for plausibility
findings (Valtchev v Canada (Citizenship and Immigration), 2001 FCT 776
at para 7; Ye v Canada (Citizenship and Immigration), 2014 FC 1221 at
para 29; Lubana v Canada (Minister of Citizenship and Immigration), 2003
FCT 116 at para 9). Further, the documentary evidence quoted in the RPD’s
decision states that the police would likely treat FGM issues as familial and
refuse to intervene. This is excerpted from the 2012 RIR prepared by the Research
Directorate of the Immigration and Refugee Board of Canada, the RPD’s own
research document.
[16]
Although the RPD notes that this source is three
years old and that recent trends indicate less support for FGM, the evidentiary
basis for this finding is unclear as is the relevance of trends to the police making
reports. Perhaps the RPD intended to suggest that, with changing attitudes,
police might take FGM cases more seriously. However, the Respondent rejects
this interpretation, submitting instead that the RPD was simply noting
attitudinal trends. Regardless, decreasing public support for FGM does not
necessarily correlate with improved police response. Such an inference would
require an evidentiary foundation which is not present in the RPD’s decision. Further,
the Male Applicant’s testimony was that the police told him that they don’t
involve themselves in such matters and that they did not make any written
reports, which is consistent with the documentary evidence. Accordingly, the
RPD’s negative plausibility finding in this regard is also unreasonable.
[17]
However, in my view, the RPD’s finding of a lack
of subjective fear was reasonable. The evidence was undisputed that the adult
Applicants travelled abroad without their children following an alleged
attempted abduction in 2009. Further, based on their PIFs, it is also apparent
that members of the family traveled to Europe on several other occasions while
the Male Applicant’s family members were allegedly visiting their home two to
three times a week in an effort to take the female children and subject them to
FGM. At no point did the Applicants claim asylum in any of the countries they
visited. It is of note, however, that the RPD referred to the Applicants’ lack
of subjective fear in the context of its broader credibility findings, determining
that it further undermined their credibility, but did not make a determinative
finding based on subjective fear. A lack of subjective fear would alone
suffice to defeat the Applicants’ claim under s 96 of the IRPA (Zaied v
Canada (Citizenship and Immigration), 2012 FC 771 at para 17; Farfan
v Canada (Citizenship and Immigration), 2011 FC 123 at para 16; Perez
v Canada (Citizenship and Immigration), 2010 FC 345 at para 33; Ghasemian v
Canada (Minister of Citizenship and Immigration), 2003 FC 1266 at para 14).
[18]
The RPD also found that the jealous uncle was
invented to bolster the Applicants’ claim as he was not mentioned in the POE
interview and there was no evidence that he exists.
[19]
As stated by Justice Russell in Cetinkaya v
Canada (Citizenship and Immigration), 2012 FC 8 [Cetinkaya], the RPD
should be careful not to place undue reliance on POE statements when
considering differences between it and testimony at a hearing, given the
circumstances surrounding the taking of the notes and their purpose:
It is an error of the RPD to impugn the
credibility of the Applicant on the sole ground that the information provided
by the Applicant at the POE interview lacks details. The purpose of the POE
interview is to assess whether an individual is eligible and/or admissible to
initiate a refugee claim. It is not a part of the claim itself and,
consequently, it should not be expected to contain all of the details of the
claim (see also Hamdar v Canada (Minister of Citizenship and Immigration),
2011 FC 382 at paragraphs 43 through 48, and Jamil v Canada (Minister of
Citizenship and Immigration), 2006 FC 792 at paragraph 25) (at para 51).
[20]
And, as stated by Justice Fothergill in Kusmez
v Canada (Citizenship and Immigration), 2015 FC 948 [Kusmez] at para
22, POE statements are to be treated with caution by the RPD (citing Cetinkaya
at paras 50-51). Nevertheless, inconsistencies between an applicant’s
statements at the POE and those given before the RPD may support an adverse finding
of credibility (Arokkiyanathan v Canada (Citizenship and Immigration),
2014 FC 289 at para 35) if the omission concerns an element that is central to
the claim (Jamil v Canada (Minister of Citizenship and Immigration),
2006 FC 792 at para 25; Sava v Canada (Minister of Citizenship and
Immigration), 2005 FC 356; Kusmez at para 22). In this matter, although
both the Male and Female Applicants noted their fear of the Male Applicant’s
mother at the POE, neither mentioned the uncle or any other family members who
became part of the narrative in their PIF.
[21]
In my view, while the nub of the Applicants’
claim was captured in the POE interview, that the daughters are at risk of FGM
if returned to Nigeria, the omission of the uncle and other family members as
agents of persecution was not an insignificant omission nor was this a mere
detail that could later be provided to flesh out the claim.
[22]
However, and significantly, the Applicants also
submitted in their supporting documentation threatening emails from the uncle
and affidavits from the Male Applicant’s brother swearing to the uncle’s role
in harassing the family. The RPD made no reference to these emails and
mentioned the affidavits only in passing. While the RPD is not required to
refer to every piece of evidence before it, where the evidence contradicts the
RPD’s findings, more than a blanket statement will be required to demonstrate that
the RPD considered the evidence, otherwise it may be open to the Court to infer
that the decision was made without regard to the evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), (1998) 157 FTR 35 at
paras 16 and 17). In this case, the RPD found that there was no evidence of
the existence of the uncle and that he had been fabricated to bolster the
Applicants’ claim. However, the emails and affidavit evidence contradict this
finding.
[23]
The RPD also made a blanket finding giving no
weight to any of the Applicants’ supporting documents because of its serious
concerns with the Applicants’ credibility and because fraudulent documents are
prevalent in Nigeria. It referred to much of that evidence, including corroborating
affidavits from family members, by listing it in a footnote to its blanket
finding.
[24]
A general finding of a lack of credibility may
conceivably extend to all evidence emanating from the applicant’s testimony (Li
v Canada (Citizenship and Immigration), 2008 FC 266 at para 19). However,
in this matter, given my finding above that some of the RPD’s credibility
findings are unreasonable, it follows that so too is its assessment of the
Applicants’ documents as it assigned them no weight based on its flawed
credibility findings. Further, although the RPD noted that fraudulent
documents are prevalent in Nigeria, presumably as a further basis for affording
the documents no weight, this is not a relevant consideration unless the RPD
intended to impugn the authenticity of the documents, which is not apparent
from its decision. If that was the intent, a more thorough assessment of this
issue was required. As is well-established in this Court’s jurisprudence, the prevalence
of fraudulent documents in a country is not, by itself, sufficient reason to
reject foreign documents as forgeries (see Chen v Canada (Citizenship and
Immigration), 2015 FC 1133 at paras 12-13; Cheema v Canada (Minister of
Citizenship and Immigration), 2004 FC 224 at para 7; Lin v Canada
(Citizenship and Immigration), 2012 FC 157 at paras 52-55).
[25]
While the RPD did make errors in its credibility
findings, viewed in whole, and in particular considering the failure to
identify the Male Applicant’s uncle as an agent of persecution in the POE and the
RPD’s credibility finding regarding subjective fear, its finding that the Applicants
were not credible may be reasonable.
[26]
However, to find that the Applicants lacked
credibility is different from saying that their claim had no credible basis.
The threshold for a no credible basis finding is high because it removes
important procedural rights provided to claimants under the IRPA (Wu v Canada
(Citizenship and Immigration), 2016 FC 516 at para 12 [Wu]; Pournaminivas
at para 9; Behary at para 58; Rahaman v Canada (Minister of
Citizenship and Immigration), 2002 FCA 89 at para 51). The RPD must,
before reaching a conclusion of no credible basis, look to the objective
documentary evidence for any credible or trustworthy support for an
applicant’s claim (Behary at para 58; Wu at para 12).
[27]
As a result of an error in the RPD’s credibility
assessment as set out above, the RPD rejected, without assessment, the
Applicants’ supporting evidence that potentially could have supported their
claim. Additionally, there was also at least some objective documentary
evidence in the record that may have provided some support for the Applicants’
claim which was not assessed. Accordingly, in these circumstances, the no
credible basis finding was unreasonable.
[28]
For these reasons, and although upon
reconsideration the Applicants may face a challenge with regard to subjective
fear and other elements of their claim, I must allow the application for
judicial review and remit it for reconsideration by another member of the RPD.
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