Date: 20050913
Docket: IMM-7136-04
Citation: 2005 FC 1247
Ottawa, Ontario, this 13th day of September, 2005
Present: The Honourable Mr. Justice Russell
BETWEEN:
ONYEMA OPARANYAMELE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
APPLICATION
[1] This is an application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act ("Act") S.C. 2001, c. 27, of the decision made by the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated July 22, 2004 ("Decision"). The Board found that the Applicant was not a Convention refugee or a person in need of protection.
BACKGROUND
[2] The Applicant, Onyema Oparanyamele, is a citizen of Nigeria. He was born in Nigeria on March 10, 1958. He worked as a nurse in Nigeria and, since his arrival in Canada, has passed a professional examination and obtained a certificate designating him a Registered Nurse in Ontario. He claims to be a Convention refugee, and a person in need of protection, due to his sexual orientation. He is a homosexual man who says that homosexuality is illegal and strongly persecuted in Nigeria.
[3] The Applicant says he always kept his sexual orientation secret. His family, not knowing of his homosexuality, set up an arranged marriage with a woman in Nigeria. On the morning of February 13, 2003, the Applicant says his bride to be caught him sleeping in bed with his male lover, Ignatius Anosike. The woman started shouting and ran into the street, attracting attention. Mr. Anosike ran into the bush, and the Applicant says he was attacked by the crowd drawn by the woman=s shouts. He claims he was beaten, sliced with a sharp object, and stoned. He lost consciousness and awoke three (3) days later in a hospital. He remained in the hospital for thirteen (13) days.
[4] After being discharged from the hospital, the Applicant says he went into hiding at the home of a local Chief he had assisted in the past. The Chief informed the Applicant that the police were searching for him and his male lover in order to arrest them. The Applicant says the Chief helped arrange for a Visitor=s Visa which the Applicant used to escape from Nigeria and come to Canada.
[5] The Applicant came to Canada on August 8, 2003, and has since become an active member of GLAD (Gays and Lesbians of African Descent) and Egale. He provided a letter from Egale as evidence of his active status in the homosexual community in the Toronto area.
[6] The Applicant applied for refugee status on August 28, 2003, and the Board returned a negative decision on July 22, 2004.
DECISION UNDER REVIEW
[7] The Board found that the Applicant was not a credible witness because his testimony was not spontaneous and contained implausibilities and contradictions.
[8] The Board found the incident with Mr. Anosike implausible. In testimony, the Applicant said he wrapped a towel around his waist and opened the door. The woman was able to see the bed containing his lover. The Board found it implausible that, given his fears of his sexual orientation being discovered, the Applicant would open the door without making any attempt to hide his partner.
[9] The Board went on to note that, based on its own specialized knowledge, it is not uncommon for two males to share a room, or even sleep in the same bed, in Nigeria. The Board questioned why the woman=s response to seeing a man sleeping in the Applicant=s bed was to automatically assume that he was homosexual. The Applicant explained to the Board that he had not made any advances toward the woman, despite the fact that he was supposed to marry her, and this led her to accuse him of homosexuality.
[10] The Board went on to discuss the actual attack on the Applicant and impugned his credibility because he could not accurately recall the details of the attack. The Board said that "The claimant was not able to provide details of the attack on him before he allegedly lost consciousness."
[11] The Board then discounted the medical certificate provided by the Applicant, stating that there were contradictions between the Applicant=s testimony and the certificate. The contradictions of concern to the Board relate to the Chief who brought the Applicant unconscious to the hospital and who, according to the certificate, reported the cause of the injuries. The Board questioned how the Chief was able to give a detailed account of the attack when he had not been present when it happened. The Board gave no weight to the medical certificate.
[12] The Board acknowledged that the Applicant has many scars on his body, as detailed in the documentary evidence he provided, but the Board did not believe that the injuries were suffered in the circumstances alleged by the Applicant.
[13] The Board also discussed the legal framework surrounding homosexuality in Nigeria and noted that, although there are laws forbidding male homosexuality, they are old and are "not reinforced [sic] by the authorities for a long time."
[14] The Board discounted a police report provided by the Applicant because the text of the certificate was written on a photocopied letterhead with a blurred logo and "bleeding" color lines, and because there was no police stamp on the document.
[15] The board also challenged the Applicant's Personal Information Form (PIF). In his PIF, the Applicant claimed that he had lived at the same address from 1993 to August 2003. The Board noted that, in his testimony, the Applicant stated he was hiding out at the Chief=s house for his last six months in Nigeria. The Applicant explained that he had indeed been hiding in the Chief=s house, but this did not prevent him from using his own residence as the address in his PIF.
[16] The Applicant also indicated that he worked at a hospital until August, 2003. The Board noted that the Applicant testified that he had accumulated leave, and did not go to the hospital for the last six months that he was in Nigeria. The Board found that the Applicant was "visibly improvising" in answering questions regarding his PIF.
[17] Finally, the Board dealt with the Applicant=s testimony about his life as a homosexual in Nigeria and found it full of contradictions. The Board concluded that, since the Applicant could not remember what year he met his first homosexual partner (at different times, he stated that he met his former partner Longinus in high school, nursing school, between school and work, or when he started working), his testimony lacked credibility.
[18] The Board also went on to reject all of the documentary evidence submitted by the Applicant because it had found his testimony not to be credible. The Board found that the Applicant is not a homosexual, and was not persecuted in Nigeria as such. Because the Board found the Applicant lacking in credibility, it found him not to be a Convention refugee, or a person in need of protection.
ISSUES
[19] The Applicant raises the following issues:
(a) A reviewable error was committed by the Board in that the Decision was made without regard for the material before it; and
(b) There was a reasonable apprehension of bias in the Board=s conduct or in the Decision.
ARGUMENT
The Applicant
[20] The Applicant argues that the Board asked him impossible questions and made a decision without proper regard to the evidence before it. He also says that the Board impugned his credibility for not knowing who brought him to the hospital, even though he testified that he was unconscious for three days. He says that the Board ignored uncontradicted evidence in a way that makes the Decision patently unreasonable.
[21] As an example, the Applicant says that the Board ignored medical reports from Nigeria and Canada, and completely rejected the medical documentary evidence he provided.
[22] In fact, the Applicant argues that the Board was so highly opinionated that there is a reasonable apprehension of bias. The Applicant claims that the Board completely discounted the anti-homosexuality laws in Nigeria without the support of any documentary or other evidence for doing so. He says that the Board intervened on many of the questions asked by the Refugee Protection Officer, as well as by the Applicant=s counsel. He alleges that this intervention amounted to intimidation.
[23] The Applicant also refers specifically to the Board=s rejection of the police letter from Nigeria. He argues that the Board failed to keep in mind his country of origin when considering the evidence, and certainly did so in rejecting the police letter.
[24] The Applicant further notes that the Board did not comment on his profession, yet the Board used his PIF evidence regarding his job to impugn his credibility. He points out that he has become a certified Registered Nurse in Ontario since his arrival in Canada.
[25] Finally, the Applicant argues that the Board completely neglected to deal with the evidence that he is an active member of the homosexual community in Canada. The Applicant points out that the Board has a duty to make clear findings and refer to material evidence in its reasons.
The Respondent
[26] The Respondent relies on the Board=s reasoning, including the implausibilities and contradictions raised by the Board with respect to the Applicant=s evidence and testimony. The Respondent says that no part of the Board=s analysis is so unreasonable as to warrant intervention by the Court.
[27] The Respondent says the Applicant has failed to demonstrate that the inferences drawn by the Board were not reasonably open to it on the record.
[28] The Respondent also argues that there are no statements on the record that give rise to a reasonable apprehension of bias. The Applicant does not specify what he finds racist about the question, "who directed you to black people are church in Mississauga Ontario for help when you arrived from Nigeria?" which is a quote from the Applicant=s memorandum, but the phrase is not a direct quote from the transcript. The Respondent also points out that there was no evidence of bias in the hearing on the part of the presiding member or the Refugee Protection Officer.
[29] The Respondent reminds the Court that the onus is on the Applicant to show that people similarly situated to himself are at risk from the police in Nigeria, and submits that the Applicant has not satisfied this onus.
[30] All in all, the Respondent submits that the Board=s Decision was reasonable and should not be disturbed by this Court.
ANALYSIS
[31] The Applicant alleges that the Board showed a reasonable apprehension of bias and was pre-disposed to disbelieve the Applicant's narrative. Hence, its credibility findings are patently unreasonable.
[32] To support this allegation, the Applicant points out that the Board intervened aggressively at the hearing to test the Applicant's testimony, that mistakes were made as regards the Applicant's evidence, that the transcript of the hearing shows racial innuendo, and that the Board was so interventionist that the Applicant's counsel was cowed and failed to act with the required competence.
[33] I have examined each of the allegations made by the Applicant against the record. I can find no real evidence of racial prejudice or that Applicant's counsel was ineffective to the point of incompetence. But mistakes were made.
[34] I accept that the Applicant did no testify that he had met Longinus in "high school" rather than nursing school.
[35] I also accept that it was entirely inappropriate for the Board to cast aspersions upon Applicant's counsel at the hearing and to suggest that the credibility of the Applicant may be suspect because of previous cases brought by that counsel:
Q. Well, but, sir, how not being interested in this particular woman makes you homosexual I'd like to know? Because it happened that the family introduces us to a person and we are not interested in this person. In what way that makes you homosexual in the eyes of the community? (sic)
A. Your honor, the community did not know that I'm homosexual because
I've been hiding it for a long time. I was mentally, physically abused as a child growing up.
Well, that's the belief of your counsel. Every single claimant your counsel brings to us was abused in childhood and that's why he became homosexual. The science says that it doesn't have anything to do with the abuse. Usually it's a different thing.
[36] In the context in which it is made, this comment by the Board is certainly gratuitous. But the Applicant says it suggests that the Board has previous experience of Applicant's counsel at the hearing (who was not a lawyer), and that the Board is assessing the credibility of the Applicant's evidence on the point of his homosexuality against the Board's estimate of counsel.
[37] This is problematic because of the Board's finding that "I do not believe that he is a homosexual and that he was persecuted in Nigeria as such."
[38] The Applicant says this finding is central because the Board says "Since I do not believe that the claimant is homosexual, I do not believe that there is a reasonable possibility that he would be persecuted as such should he go back to Nigeria."
[39] However, read in the context of the whole transcript of the hearing and the Decision, I do not believe that the comment was material to the Decision. The comment is merely a gratuitous rejection of childhood abuse as a cause of homosexuality. The issue that the Board was exploring with the Applicant was "why not being interested in this woman [his fiancée] would make you homosexual in the eyes of the community," and why her discovery of another man in his room would give rise to an impression that he was homosexual, when it is common in Nigeria for men to share the same room and even the same bed. The Board does explore and assess the Applicant's general narrative in an independent way that is not related to the comment concerning his counsel.
[40] I believe there was sufficient implausibility and inconsistency in the Applicant's evidence as a whole to support the Board's eventual findings on credibility. Although the Board made a mistake regarding the Applicant's testimony about meeting one of his partners at "high school," and although the Board's reference to the Applicant's counsel and his theories on homosexuality was entirely inappropriate in the circumstances, I do not believe that these issues provide sufficient material grounds for the Court to intervene with the Decision. The Applicant's narrative had other inconsistencies and implausibilities at key points and the Board' active questioning was an attempt to highlight its credibility concerns and to give the Applicant an opportunity to explain them. This doesn't mean that the Court would have come to the same conclusions as the Board on the evidence before it. But it is not the purpose of this review to have the Court substitute its opinion on the evidence for that of the Board.
[41] The Board is entitled to decide adversely with respect to an Applicant's credibility on the basis of contradictions and inconsistencies in the Applicant's story and between the claimant's story and other evidence before the Board. Moreover, the Board is entitled to make an adverse finding regarding credibility on the basis of the implausibility of the Applicant's testimony alone.
[42] A review of the reasons reveals that the Board provided an explanation as to why it found the Applicant's testimony implausible in certain fundamental areas. None of the analysis is, to quote Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 "so unreasonable as to warrant ¼intervention."
[43] The Applicant has failed to demonstrate to this Court that the inferences drawn by the Board were not reasonably open to it on the record.
ORDER
THIS COURT ORDERS THAT:
1. The Application is dismissed.
2. There is no question for certification.
"James Russell"
|
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7136-04
STYLE OF CAUSE: ONYEMA OPARANYAMELE
V.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: JULY 6,2005
AND ORDER: THE HONOURABLE MR.JUSTICE
RUSSELL
APPEARANCES:
APPLICANT: MR.MUNYONZWE HAMALENGWA
RESPONDENT: MR.MICHAEL BUTTERFIELD
SOLICITORS ON THE RECORD:
MUNYONZWE HAMALENGWA
BARRISTER & SOLICITOR
TORONTO, ONTARIO
FOR APPLICANT
JOHN H.SIMS,Q.C.
DEPUTY ATTORNEY GENERAL
OF CANADA
FOR RESPONDENT