Date: 20040813
Docket: IMM-6540-04
Neutral citation: 2004 FC 1130
BETWEEN:
AGU EUGENE NNEMEKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
& SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
Introduction
[1] The Applicant is a Nigerian citizen who has been subject to removal due to his failed refugee claim. He now alleges that, during his detention pending removal, he has become a homosexual. As a result, he challenges his negative PRRA decision and seeks a stay on the basis that he fears return to Nigeria where the legal system and societal values condemns homosexual behaviour.
[2] The Applicant's removal is scheduled to occur sometime before August 23, 2004. He seeks a stay of the deportation order dated August 9, 2004. That removal had originally been scheduled for August 12, 2004.
Background
[3] The Applicant had claimed refugee status on the grounds that he feared his uncle who wanted to take over the Applicant's land inheritance. The refugee claim was denied and leave was also denied.
[4] The Applicant requested a PRRA while he was being held in detention as a flight risk. In his PRRA application he claimed that he had discovered that he was homosexual and would be subject to persecution upon return to Nigeria.
[5] For purposes of his PRRA, the Respondent assumed for those purposes that he was homosexual but did not make any such finding. By treating the Applicant in this manner, the PRRA officer was not required to hold a hearing. The officer noted that the Applicant "did not show in a probative manner that he inf act became homosexual while being detained by Immigration".
[6] The PRRA officer, after reviewing all the available evidence, concluded that, despite legislation which would prohibit homosexual practices, there was no evidence that the legislation was enforced against gays or that gays were persecuted. The officer concluded that the Applicant had not discharged his burden of proving that he would be arrested and jailed for his sexual orientation or that he would be otherwise persecuted.
[7] The Applicant has filed for leave for judicial review and judicial review of this PRRA decision as well as seeking a stay of the deportation order which followed the PRRA decision.
Analysis
[8] The threefold test in Toth is well known. In this instance, if the Applicant succeeded on either the serious issue test or the irreparable harm test, he would succeed on the balance of convenience test.
[9] With respect to the "serious issue" test, the Applicant contends that the PRRA decision is patently unreasonable. Although the Applicant has not filed his Record in the leave application, (and therefore it is premature to reach any conclusion on the leave) on the material presently before the Court, the Applicant has not made out a case of patent unreasonableness.
[10] However this case can be determined on the grounds of failure to establish irreparable harm. To meet that test the Applicant must establish that, on the balance of probabilities, he (a) is a homosexual; (b) will be subjected to persecution between the time of removal and the disposition of his challenge to the PRRA decision.
[11] The Respondent's acceptance of his claim of homosexuality for purposes of the PRRA analysis does not bind this Court to a finding of fact that he is a homosexual. The only evidence of his new-found orientation is his own statement. There is no corroboration, an important factor where this Applicant's record for untruthfulness and for deceit is significant. His record in this regard ranges from multiple use of false documents to lying about material facts related to his claim.
[12] The timing of his disclosure of sexual orientation, his general lack of credibility and the absence of any supporting evidence leads to the conclusion that he has failed to establish, for purposes of this motion, that he is a homosexual.
[13] Even if it could be said that one must accept his claim of sexual orientation, he has failed to establish that he would suffer irreparable harm if he were to be returned to Nigeria.
[14] The Applicant has not established that he is in immediate danger upon his return to Nigeria. There is no evidence that Nigerian authorities know or would likely know of his sexual orientation, unless he were to tell them. The same lack of knowledge can be ascribed to local and religious authorities. The Applicant has failed to establish that the legislation prohibiting homosexual acts is being enforced.
[15] This case is remarkably similar to the decision of Aire v. Canada (Minister of Citizenship and Immigration) 2004 FC 41 rendered in January, 2004. In that case Von Finckenstein J. upheld a Board conclusion that the same Nigerian law at issue was rarely enforced and was not persecutorial.
[16] While that decision is not binding on this Court as regards the facts found by the Board, it does show that the PRRA officer's conclusions have a basis in reality. The Applicant has not shown that he would be in any different situation from Mr. Aire.
[17] Finally the Applicant says that the PRRA officer failed to secure evidence from the Nigerian Embassy, as well as other sources, as to the enforcement of the particular law. The Applicant, on whom the burden of proof rests, likewise failed to produce that evidence.
[18] For these reasons I find that the Applicant has not satisfied all the requirements for a stay. The application for a stay will be dismissed.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6540-04
STYLE OF CAUSE: AGU EUGENE NNEMEKA v. MINISTER OF CITIZENSHIP AND IMMIGRATION & SOLICITOR GENERAL OF CANADA
MOTION DEALT IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
DATE OF HEARING: August 11, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Phelan
DATED: August 13, 2004
SOLICITORS ON THE RECORD:
I.E. Amana FOR THE APPLICANT
Ms. Caroline Cloutier FOR THE RESPONDENT