Date: 20011012
Docket: IMM-3046-01
Neutral Citation: 2001 FCT 1111
Ottawa, Ontario, this 12th day of October 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
ELIZABETH ONWUTUEBE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PELLETIER J.
[1] These are the reasons for my decision dismissing a stay of execution of the removal of Elizabeth Onwutuebe. The motion for a stay of execution was heard and decided on June 21, 2001 at which time oral reasons were given with written reasons which are the following.
[2] Mrs. Onwutuebe admits that she came to Canada from Nigeria with a false passport. She says that she was driven to this by the abusive treatment she received at the hands of her husband. The material which she filed in support of her motion for a stay of execution provides many details of the abuse to which her husband subjected her. He beat her, belittled her, and eventually beat her severely with a wooden instrument. Mrs. Onwutuebe had a friend who put her in touch with an agent who provided her with a false Swaziland passport. According to her affidavit, the agent told her that she should "get inside [Canada] first before making a refugee claim" as she would simply be turned back if she made a claim at the airport. Armed with this document and those instructions, Mrs. Onwutuebe left Nigeria and arrived at Pearson International Airport on Monday, May 7, 2001.
[3] The Immigration Officer who first spoke to Mrs. Onwutuebe was suspicious of the fact that while Mrs. Onwutuebe claimed to be a visitor, she had no idea of what she wanted to see in Canada. She had no family or friends in Canada, no hotel reservations and only a relatively small amount of cash on her ($800). The agent asked her to produce her airline ticket which showed no reference to Swaziland from which Mrs. Onwutuebe said she had come. The flight which brought her to Canada was a Korean Airlines flight which originated from Seoul, South Korea.
[4] In light of all of the above, the Immigration Officer required Mrs. Onwutuebe to attend for a more detailed interview with a second officer. That officer, Mr. Dan Hunziker, determined that the passport upon which Mrs Onwutuebe was travelling was a fake since the security stamps on the passport rubbed off on contact, as they were above the laminated surface of the passport rather than below it. Mr. Hunziker questioned Mrs. Onwutuebe for a period of time about various other matters and concluded that she was not a genuine visitor to Canada.
[5] In the course of the interview, Mrs Onwutuebe declared that there was no reason why she could not return to her country of origin. When told of the fact that she would be excluded from Canada and detained, Mrs. Onwutuebe asked to be allowed to contact her husband before she signed any forms. She declined the opportunity to contact consular officials. A removal order was made against her.
[6] After the making of the removal order and after retaining a lawyer, Mrs. Onwutuebe disclosed the details of her allegations of abusive treatment at the hands of her husband. She applied for an exemption from the requirement that applications for landing must be made from abroad (H & C application). The basis of the application was the risk of harm to the applicant if she is returned to Nigeria.
[7] In support of her application for a stay, Mrs. Onwutuebe produced a medical report from an hospital and maternity home in Nigeria which recited that Mrs. Onwutuebe registered with the hospital "some years back". The report goes on to state that "her major complaint is bruises all over her body as a result of quarrels and fighting with her husband, though occasionally she comes in with acute fever, cough and general body pains. Sometimes she was admitted for over six weeks (6 wks) because of fractures she sustained during one of their fights". She also produced a report of a psychologist whose opinion it is that she suffered from chronic depressive disorder as well as displaying symptoms of Post Traumatic Stress Disorder. Based upon the information provided by Mrs. Onwutuebe, the psychologist attributed these conditions to "the abuse this woman has suffered at the hands of her husband".
[8] The tripartite test for a stay is well-known. The particular circumstances of an application for a stay pending from the refusal of a removal officer to defer removal were set out in Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 295 where I found that the judge hearing the motion could inquire into the merits of the underlying application since granting the stay had the effect of giving the applicant that which the removals officer had denied her.
[9] The serious issue in this case is the legitimacy of returning the applicant to Nigeria in circumstances where she alleges a fear of harm at the hands of her husband. According to the applicant, her husband has been physically abusing her for years to the point where she fears for her life. There is jurisprudence in this Court to the effect that removal to a place where risk of harm is alleged without a risk assessment having been performed is contrary to law.[1] I refer to the decision of Gibson J. in Saini v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 982, (1998), 150 F.T.R. 148 and to my own decision in Wang, supra. However, this can only be an issue if there is a factual basis to support it.
[10] Ordinarily an interlocutory motion is not the place where questions of credibility should be determined. There is no opportunity to hear the applicant. In many of these cases, there is no opportunity for cross-examination on the affidavits. On the other hand, there must be a credible foundation for an order preventing the Minister of Citizenship and Immigration from executing a valid removal order.
[11] The elements which detract from the credibility of the applicant's version of events are the following:
1) she did not advance the version of events upon which she now relies when she was questioned at the airport, even when she was advised that, on the basis of what she had said to date, she would be denied entry to Canada and removed to Nigeria.
2) she asked to call her husband for advice when she was told that she would be subject to detention and removal. The notes of the immigration officer show that she made this request in preference to a call to consular officials.
3) her explanation for her failure to tell her version of events at the airport is an improbable story about what her agent told her to do.
[12] The elements which support her position are:
1) a medical report obtained from a Nigerian hospital after she was in detention. The report is addressed "To whom it may concern" and is quite general in its comments. However it does refer to domestic abuse occurring over a period of time.
2) a psychologist's report which sets out a diagnosis of chronic depression and symptoms of post-traumatic stress disorder. The diagnosis does not prove the facts which are said to underlie it. In other words, the applicant may be depressed for reasons other than an abusive relationship. The psychologist must rely upon what he was told but the fact that a particular version of events was told to a psychologist does not enhance its credibility.
[13] On balance, I find that the applicant's request to call her husband when she was told she would be detained is fundamentally inconsistent with a fear of harm at his hands. This is confirmed by her failure to tell her story at the airport, even after she knew she would be refused admission to Canada. I discount the medical report in the absence of an explanation as to the circumstances of how it was obtained.
[14] In the circumstances, I find that there is no factual basis for the application for a stay of execution.
[15] The application for a stay of execution is dismissed.
"J.D. Denis Pelletier"
Judge
[1] This is the expression I used at the time of rendering my decision. Upon reflection, I believe that it would be more correct to say that judges of this Court have stayed removal orders where no risk assessment had occurred.