Montreal, Quebec, March 26, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) rendered July 6, 2006, wherein the applicant was found not to be a Convention refugee or a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the Act).
[2] The applicant, a citizen of Nigeria, claims to have a well-founded fear of persecution by reason of her religion (Christianity) and her membership in a particular social group (women in Nigeria). She alleges that after her father died, an older man to whom her father owed 200,000 nairas wanted her to marry him in payment for the loan. Her mother and some friends accompanied her to his house on August 10th, 2000. After staying there for a few days, the applicant fled to Kano state, but was found by women belonging to the Izala group after a week. After bringing her back to the man’s house, they threatened to kill her if she attempted to leave him.
[3] The applicant alleges that she ran away to Kaduna, where she started seeing a man from Benue state named Stephen Ogwuche. After bringing her to his village, he forced her to have sexual relations with his brother, according to the custom in that area. After she ran away to Kaduna, Ogwuche threatened her and beat her. She was able to escape to Lagos, where she converted to Christianity. However, after hearing this news, women from the Izala group threatened to kill her for converting and for refusing to marry the older man. After spending two months in Senegal, she traveled to Morocco and arrived in Canada on November 22, 2004 where she claimed refugee status.
[4] The Board rejected the applicant’s claim. It found that she had failed to establish her identity. It also found that she lacked credibility, specifically on her whereabouts from 2000 to the time of her departure from her country in September of 2004, and on her subjective fear. In particular, the Board did not find it plausible that the alleged incident of rape had occurred and also found there was insufficient evidence to establish that she had converted to Christianity.
[5] The applicant now challenges the Board’s findings on three grounds. First, the applicant contends that the Board erred in finding that she had failed to establish her identity and her religious affiliation. Second, she submits that the Board erred in its assessment of her credibility. Third, she contends that the Board did not properly address the fact that she would face persecution upon her return to Nigeria due to her status as a single mother.
[6] Section 106 of the Act provides that with respect to the credibility of a claimant, the Board must take into account whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. Furthermore, Rule 7 of the Refugee Protection Division Rules, SOR/2002-228 provides that the claimant must provide acceptable documents establishing identity. A claimant who is unable to do so must explain why they were not provided and what steps were taken to obtain them.
[7] In the case at bar, in support of her identity, the applicant provided an affidavit that was faxed to the Nigerian High Commission (NHC) located in Ottawa in which the deponent, identifying himself as her uncle, states her date of birth as being December 31st, 1985. Before the Board, however, the applicant testified that it was her brother-in-law who had sworn the affidavit. When the Board questioned the applicant about this contradiction, she provided what the Board considered “a confusing response”, saying that she did not know what her brother-in-law told the NHC and that she did not know whether they had spoken in English or in Hausa. The Board acknowledged that confusion could sometimes arise due to language barriers, but that this was not the case here, as the affidavit had been prepared in Nigeria and consequently, no conversation would have taken place between the NHC and her brother-in-law in preparing the affidavit. The Board pointed out that none of the sisters listed on the applicant’s Personal Information Form (PIF) carried the deponent’s last name. It also found it implausible that a document of this nature would be unsigned. Moreover, the documentary evidence was to the effect that it is easy to obtain fraudulent documents in Nigeria. Based on this evidence, the Board concluded that the affidavit had been fraudulently obtained and assigned no probative value to it.
[8] Given that the applicant’s emergency travel certificate (ETC) had been issued based on this affidavit, the Board also found that this document had been fraudulently obtained and disregarded it. As for the applicant’s employment card, the Board noted that it was missing security features, such as authorized signatures, the date of issue, the applicant’s date of birth, as well as her signature. The Board found that this third document had also been fraudulently obtained. In the absence of no other reliable identity documents, the Board did not believe the applicant was the person she claimed to be, except that she was a Nigerian citizen.
[9] The applicant now contends that the Board placed too much emphasis on the fact that the affidavit was unsigned and that she should not have to explain a clerical error that was committed by the state judiciary. She also points out that the NHC issued the applicant’s ETC on the basis of the affidavit. Therefore, it is plausible to assume that an unsigned affidavit is acceptable to the government of Nigeria.
[10] Although in matters relating to the establishment of identity, the Board must not be so strict that the acceptance of exhibits filed by a refugee claimant must depend on North American logic and reasoning, it can certainly draw an unfavourable conclusion regarding the applicant’s credibility if on their very face, it is apparent that the documents have various anomalies and that the applicant is unable to give satisfactory explanations in this regard (Umba v. Canada (Minister of Citizenship and Immigration), 2004 FC 25, at para. 45; Yogeswaran v. Canada (Minister of Citizenship and Immigration), 2001 FCT 48 at paras. 28-30 (F.C.T.D)(QL)).
[11] Apart from the three documents mentioned above, the applicant did not provide any other documents. She testified that she had lost her birth certificate in a fire during the Sharia crisis in 1995 when she was 16 or 17 years old. The Board pointed out that as she had been born in 1985, she would have been ten years old at the time. She also testified that she could not obtain any school records, as she had to obtain these in person and the college did not keep records of students’ marks. The Board found it implausible that a college would not keep such records and pointed out that in any event, the applicant had not made any efforts to obtain them. Lastly, the Board noted that the applicant did not provide any evidence proving that she had converted to Christianity, such as a baptism certificate or a letter from her church. In sum, the Board was not satisfied by the applicant’s explanations for the lack of documentation and did not find that she had taken reasonable steps to obtain the documentation.
[12] Consequently, the Board had doubts as to the applicant’s identity and religious affiliation. These findings were supported by the evidence and I find them reasonable under the circumstances.
[13] Before this Court, applicant’s counsel referred to the fact that the applicant had been detained by the immigration authorities after her arrival in Canada for the purpose of establishing her identity. Three detention reviews were held (November 30, 2004, December 24, 2004 and January 19, 2005). She was finally released after the Minister was satisfied of her identity: “They verified with the High Commission of Nigeria in Canada and they clarified your identity…” (decision of the Immigration Division, dated January 19, 2005, certified tribunal record, page 197). Accordingly, applicant’s counsel submitted at the hearing before this Court that the Board should have accepted the affidavit as valid proof of her true identity. I indicated to counsel at the hearing that I would not consider this entirely new argument as it was not raised in the applicant’s memorandum. Be that as it may, even if I would have accepted applicant’s submission that a reviewable error was made by the Board with respect to the applicant’s identity, the applicant has not satisfied me that the Board’s reasons for disbelieving the applicant’s story, including her religious affiliation, are patently unreasonable.
[14] It is now trite law that the Board has expertise in the determination of questions of fact, particularly in the evaluation of credibility and the subjective fear of persecution of the applicant (Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (F.C.T.D.)(QL); Cepada-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14 (F.C.T.D.)(QL). It is entitled to draw negative inferences on an applicant’s credibility based on implausibilities in the applicant’s story (Aguebor v. Canada (Minister of Employment and Immigration), [1993] 160 N.R. 315 (F.C.A.). As such, the Court will not substitute its decision for that of the Board’s when the applicant has failed to prove that the Board’s decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or that the decision was made without regard for the material before it. The standard of review for such findings of credibility is therefore that of patent unreasonableness.
[15] In my view, the Board’s general finding that the applicant is not credible is based on the evidence on record and is not patently unreasonable. Indeed, the Board set out in clear and unmistakable terms in its decision why it did not believe the applicant. It considered the applicant’s Personal Information Form (PIF) and her testimony and noted significant omissions and implausibilities. For example, the applicant failed to provide addresses in her PIF relating to the period starting August 2000 to September 2004 and the Board mentions at the end of the decision that it is drawing a negative inference from the fact that she failed to establish her whereabouts “since 2000 to the time of her departure from her country in September 2004”. When the Board confronted the applicant about this, she testified that she was in Kaduna from September 2000 to July 2003, and then in Lagos until September 2004, but was unable to provide any evidence to support this claim except for her employment card, which was undated. The Board drew a negative inference from this omission and in my view, it was open to the Board to do so.
[16] The applicant has argued in her memorandum that she should not be penalized for following the instructions of her former counsel, who had informed her that this aspect of her story was unimportant. I note that no evidence has been tendered by her to the effect that former counsel was incompetent. At the hearing, applicant’s new counsel insisted on the fact that since the applicant was detained, her former counsel had not had the time to clarify the missing information with the applicant. Be that as it may, I note that this was not the only aspect of the applicant’s claim that the Board considered questionable. Indeed, the Board also found that the fear of persecution was not justified and was based largely on speculation. For example, the applicant testified that while she was staying with a friend in Lagos, suspicious people came by while she was away. Her neighbour informed her friend of this incident and identified them as being Muslim, but the applicant admitted that her friend never spoke with them and she did not tell her how many people there were or how the neighbour knew they were Muslim. She also testified that they never returned after this incident. In addition, she never informed police of this occurrence. As such, the Board was not satisfied that her fear of persecution was justified. In my view, this finding was open to the Board and is not patently unreasonable.
[17] Towards the end of the hearing before the Board, it became known that the applicant had given birth in Canada to a boy and that the child’s father, a Canadian of Haitian origin, refused to assist her in any way. The applicant submitted that she would face persecution in her country because she is an unwed mother. In this regard, the Board observed that although documentary evidence had been presented to the effect that discrimination against women exists in Nigeria, it did not specifically address the situation of unwed mothers.
[18] Lack of supporting documentary evidence is sufficient to rebut the presumption that the claimant’s sworn testimony is true (Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (F.C.A.); Diadama v. Canada (Minister of Citizenship and Immigration), 2006 FC 1206; Kahiga v. Canada (Minister of Citizenship and Immigration), 2005 FC 1240 at para. 10; Oppong v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1187 at para. 5). Consequently, in these particular circumstances, it was not patently unreasonable for the Board to draw an adverse inference from a lack of information in documentary evidence that might reasonably be expected to be mentioned in the circumstances.
[19] Finally, the applicant submits, albeit summarily, that the Board did not properly evaluate state protection and apply the criteria set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. Given my conclusion that the Board was well founded in finding that the applicant had failed to establish a fear of persecution, there is no need to proceed further with an evaluation of the availability of state protection (Ayub v. Canada (Minister of Citizenship and Immigration), 2004 FC 1411 at para.13).
[20] Accordingly, this application for judicial review is dismissed. No question of general importance was proposed and none shall be certified by the Court.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4120-06
STYLE OF CAUSE: MARIA OBIANUJU MORKA v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 7, 2007
REASONS FOR ORDER AND ORDER: MARTINEAU J.
APPEARANCES:
Eric Freedman FOR THE APPLICANT
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eric Freedman FOR THE APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec