BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated January 11, 2006, wherein the Board found that the applicant is not a “Convention refugee” or a “person in need of protection” as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Osamuyimen Oviawe (the applicant) is a citizen of Nigeria and a Christian.
[3] The applicant shared an apartment with Mr. Abu, a Muslim man, during a year in Kano State.
[4] In February 2005, a friend of Mr. Abu came to their apartment and was flabbergasted when he noticed that his friend was living with a Christian man. He spoke to Abu in the applicant’s absence. Unexpectedly, Abu’s attitude towards the applicant changed after that conversation, and Abu then appeared distant, cold and somewhat distaining.
[5] The police were informed that the applicant had sexually molested Mr. Abu.
[6] On February 15, 2005, the applicant was arrested, imprisoned and tortured by the police for almost three months. During this imprisonment, two of his lower front teeth were removed with pliers.
[7] On May 3, 2005, a sympathetic Christian warden in the prison helped him to escape from jail.
[8] On May 4, 2005, the applicant went to Abrya and hid there for two weeks with a friend named Peter Maxwell, whom he had met in university. In due course, with the help of an agent, Maxwell got the applicant out of the country and he eventually wound up in Canada on June 18, 2005 and made a claim for refugee status.
[9] The applicant was not charged with any offence, nor did he appear in Court before a judge.
[10] The applicant fears that if he returns to Nigeria, the police, who are still seeking him according to what his mother has told him, will arrest him again because he escaped from prison. If he is found guilty of homosexuality with Abu (which he denies), he could be sentenced for up to 14 years in jail by the regular courts or be stoned to death as directed by the Shariah Court.
* * * * * * *
[11] The Board was satisfied that the applicant was a Christian and found that he was credible about the incidents that led him to leave his country. However, the Board concluded that the applicant did not have an objective basis to his claim according to the documentary evidence.
Standard of Review
[12] In Aire v. Minister of Citizenship and Immigration, 2004 FC 41, my colleague Justice von Finckenstein wrote:
[8] The standard of review for a Board's decision as to whether or not the facts suggest that an applicant faces a risk of prosecution rather than persecution is patent unreasonableness (Simonifi v. Canada (M.C.I.), [2002] F.C.J. No. 1162). The Court will only interfere with the Board's findings of fact if they are made in a manner which is perverse or capricious (Kamalanathan v. Canada (M.C.I.), [2001] F.C.J. No. 826).
Internal Flight Alternative
[13] The applicant submits that the Board erred in determining that he had an Internal Flight Alternative (IFA) in southern Nigeria because the documentary evidence showed clearly that Nigerian society (North and South) is very intolerant of people identified as engaging in homosexual conduct.
[14] However, although the Board’s reasons refer to areas of Nigeria where homosexuals are comparatively safer (Lagos and the southern states), the Board made no finding regarding an IFA. Since the Board found no objective basis for persecution, it was unnecessary for it to go on to consider the existence of an IFA. The references in the reasons to areas of lesser persecution seem to be included merely to make the point that homosexuality is treated differently in areas where the Shariah Courts are predominant. However, as a Christian, the applicant would not be subject to the Shariah Courts in any case.
[15] Perhaps the confusion stems from the fact that other Federal Court cases have upheld a finding of an IFA in Lagos for Nigerian homosexuals (Aire, supra; Zakka v. Minister of Citizenship and Immigration, 2005 FC 1434; Nwokomah v. Minister of Citizenship and Immigration, 2005 FC 1535).
Objective Evidence
[16] Instead of finding that the applicant had an IFA, the Board found that the applicant could likely rely on his own innocence to avoid prosecution and/or persecution. The Board wrote, at page 8 of its decision:
Even if the court were to prosecute the claimant on his return to Nigeria for a non-consenting homosexual act, the claimant could produce evidence from his other friends, family, and his pastor and parishioners that he is a God-fearing Christian, that he never was nor has ever been a homosexual, and that the evidence against him was trumped up by Abu and his friend only because Abu’s friend was disgusted with Abu for living with the claimant, who is a Christian person.
As in most criminal trials, the onus would be upon Abu to prove beyond a reasonable doubt that the claimant committed the sodomy offence without his consent. With the passage of time and from the documents that I have read, the evidence appears unlikely that either the Shariah or the Federal Court would pursue him or even prosecute him.
It is interesting to note from these reports that for unlawful sexual intercourse (between a male [and] female) there need[s] to be four male Muslim eyewitnesses to prove the guilt of the male. Therefore, men are not often convicted for this offence because it is quite difficult to prove their guilt [emphasis in original].
[17] In the last paragraph, the Board fails to make it clear that the eyewitness requirement only exists under Shariah law. Though not stated specifically, this can be gleaned from the Tribunal Record at page 93. Confusingly, however, the Board had already found that the applicant was not subject to Shariah law, being a Christian. It is unreasonable to use the fact that Shariah law does not apply to the applicant as a way of showing there to be no risk of persecution, and then use one of the tenets of Shariah law to show that the applicant would likely win a court case.
[18] Moreover, I think the first two paragraphs, excerpted above, show the Board engaging in speculation as to what would likely happen if the case against the applicant went to court. The Board imagines an easy case for the applicant, saying that all he has to do is bring his family and friends forward. The fact that Abu’s friends and family might invent a contradictory story does not seem to trouble the Board.
[19] The Board’s speculation on this point is remarkably optimistic, considering it has already found as fact that the applicant has had two of his front teeth removed with pliers while incarcerated for homosexuality in Nigeria. The Board found the applicant’s evidence credible, yet it appears to become oblivious to this when considering what would likely happen at a trial.
[20] The applicant has the burden of proof, however, and though the optimism of the Board is a little surprising, the Board is entitled to find that the existence of past persecution/torture does not necessarily mean that the applicant would be given an unfair trial. The Board is in the best position to weigh the risk to the applicant, and it is not the job of a reviewing court to re-weigh that evidence.
[21] Though the Board’s decision is not perfect, I do not believe that the Board’s decision is so patently unreasonable that “no amount of curial deference can justify letting it stand” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52).
[22] The Board was entitled to find, based on the evidence before it, that there was no real risk of persecution. The Board explicitly found that the applicant is not subject to Shariah law, therefore there is no risk of a capital sentence even if the applicant were to be convicted. This leaves the applicant with the Nigerian Criminal Code, under which the maximum penalty is 14 years in prison.
[23] The Board may have erred in assuming that the applicant’s trial in Nigeria would go smoothly for the applicant, but even if the Board did err on this point, there would not be persecution, according to the jurisprudence of the Federal Court. In Aire, cited above, von Finckenstein J. considered the case of a man who faced application of the same homosexuality laws in Nigeria. He wrote at paragraphs 12 to 16:
[12] While the applicant describes this as a law against homosexuality, it is actually a law against certain types of conduct. No evidence was provided to explain what is meant by the words "against the order of nature." Nonetheless, the wording of the section makes it clear that the prohibited conduct, however the words 'against the order of nature' are interpreted, is not tolerated between any citizens, regardless of their sexual orientation.
[13] Moreover, in Birsan v. Canada (M.C.I.), [1998] F.C.J. No. 1861, Pinard, J. held:
It is certainly not unreasonable to conclude that the mere existence of a law prohibiting homosexuality in public cannot prove, if it is not enforced, that homosexuals are persecuted.
[14] A report from the UK Immigration and Nationality Directorate contained at page 323 of the Tribunal Record states
"Nigeria like many former British colonies has laws dating back to the Victorian era that make sodomy punishable up to 14 years in prison. While these laws are rarely applied, they contribute to the climate of intolerance towards homosexuals."
(underlining added)
No other persuasive evidence was before the Board regarding the manner and frequency with which section 214 of the Nigerian Criminal Code is enforced. Therefore, Pinard J.'s reasoning equally applies in this case.
[15] Laws against certain types of sexual conduct under specific circumstances exist in many countries. They are not, per se, "persecutory." In Canada, for instance, we have provisions against incest and anal intercourse in certain circumstances contained in Sections 155 and 159 of our Criminal Code which can lead to prison terms of 14 and 10 years, respectively. However no one suggests that our Criminal Code is a persecutorial law.
[16] The Board in this case considered all of the evidence before it. I find no reason to interfere with the Board's conclusion that a law of general application which was rarely enforced and which prohibited certain types of sexual behaviour was not a persecutorial law.
[24] Since the Board has explicitly found, in the case at bar, that there is no real risk of the applicant being convicted for a crime that he did not commit, the possibility of persecution through conviction of the innocent does not arise. Since this conclusion was rationally available to the Board on the facts of this case, it is my opinion that it should not be interfered with on judicial review.
[25] Although I have some trouble with the Board’s reasoning in this case, the deferential standard of review militates in favour of dismissing this application.
[26] Consequently, the application for judicial review is dismissed.
Ottawa, Ontario
September 25, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1104-06
STYLE OF CAUSE: OSAMUYIMEN OVIAWE v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 23, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: September 25, 2006
APPEARANCES:
Mr. Idorenyin Amana FOR THE APPLICANT
Mr. Alexandre Tavadian FOR THE RESPONDENT
SOLICITORS OF RECORD:
Idorenyin E. Amana FOR THE APPLICANT
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada