Docket: IMM-2243-02
Ottawa, Ontario, this 8th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MICHAEL DUKEFE
MABEL MILCAH TONWE
MELISSA DUKEFE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated April 19, 2002, wherein the applicants were denied the Convention refugee status.
[2] The applicants, two spouses and their minor daughter, are all citizens of Nigeria. They allege a fear of persecution based on their membership in a particular social group, namely, women forced to submit to the Female Genital Mutilation (FGM). The adult applicants fear for their lives because they refuse to submit their daughter to FGM, and because Ms. Tonwe refused to undergo excision, as it is traditionally done in the tribe of her spouse Mr. Dukefe, but not in hers.
[3] The applicants claimed that they already lost a daughter in 1994 when she bled to death due to FGM.
[4] In 1995, Mr. Dukefe' s father, the chief of the Iuhrobo tribe, died. Therefore, the male applicant was supposed to take over as chief of the tribe. He always refused to take this position.
[5] In February 2000, Mr. Dukefe's family and the elders of the village went to the applicants' house and asked that their younger daughter, Melissa, be taken for female circumcision. The applicants refused and the mother and the daughter moved out of their house and went into hiding.
[6] On three occasions, the mother and daughter's hiding places were discovered and they were forced to move. The last time, when the female applicants were staying in Lagos, five men allegedly came to their place and tried to take Melissa away. Unable to do so, they beat and raped Ms. Tonwe.
[7] After that attack, the women left Nigeria while Mr. Dukefe was hiding from his family and the elders at a friend's place. He was however discovered and therefore he decided to run away. He first went to the North of Nigeria, then on April 25, 2001, he went to Spain and finally, on September 15, he came to Canada.
[8] The Board rejected the applicant's story as having been invented. It based this conclusion on serious implausibilities, omissions, and contradictions in the testimonies of both adult applicants. The Board made the remark that they both improvised on several occasions in the course of their testimonies.
[9] The Board also mentioned that in analysing the claim, it took into consideration the Chairperson's Guidelines of the Immigration and Refugee Board concerning gender-related claims, as well as international conventions concerning the welfare of children.
[10] The applicants submitted that the Board wrongly evaluated their credibility and that its conclusions are absurd, arbitrary, and were made without regard to the evidence before it. Counsel claimed that the applicants were victims of cross-cultural bias and complained of Board members who are not willing to understand the African reality.
[11] As submitted by the respondent, these allegations are not supported by any evidence. The applicants suggested that the main points used to attack the applicants' credibility were some minor omissions from the Personal Information Forms ("PIF"). However, the central element of their application, the fear that their daughter be circumcised, is not mentioned in the PIF. In my opinion, it was not unreasonable at all for the Board to conclude that this is an omission that greatly affects the applicant's credibility. The applicants' explanation was considered by the Board, but was found insufficient and unsatisfactory, with reason. The Board committed no error in this regard.
[12] The applicants also claimed that their story is highly consistent with the submitted objective documentary evidence on the situation in Nigeria and on FGM, and that this objective documentation was not considered by the Board.
[13] In respect of this allegation, this Court has previously, concluded not only that the evidence related to a country is not sufficient to demonstrate a well-founded fear, but also that the objective and subjective components of the fear are both absolutely necessary. If a refugee claim could be determined solely on documentary evidence relating to country conditions, then anyone could read a story in it and make it theirs. Here, the Board did not find the applicants credible therefore it could not find a positive subjective fear if it did not believe the applicants' story. Moreover, since both subjective and objective fear are needed to demonstrate a well-founded fear, the determination of an objective fear in Nigeria was unnecessary.
[14] Furthermore, the applicants argued that there has been a violation of principles of procedural fairness, as they alleged that there has been a violation of their right to a fair hearing. Indeed, counsel for the applicants submitted that the Board member constantly interrupted the presentation of the case, showing a very negative and intimidating attitude at all times.
[15] The applicants did not refer me to evidence or specific examples from the transcript that the conduct of hearing breached their right to a fair hearing. In any event, I have read the transcript of the hearing and I did not detect a negative attitude nor did I see a degree of intervention which would be out of the ordinary.
[16] I noted that the Board made a factual error when it mentioned that the applicants had not moved even though threats were made and security was at stake. The record shows that they did move to different locations. However, in itself, this error is not sufficient to justify an intervention of the Court. I have read attentively the other conclusions and the evidence to support them and I conclude that they are well founded on their own.
[17] Finally, the applicants submitted that their removal would be in violation of the Canadian Charter of Rights and Freedoms Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("the Charter"), and other international instruments. Regarding the applicant's third argument that his deportation would violate the Charter, this Court has addressed this issue before. It has confirmed on numerous occasions that the Board did not have the jurisdiction to apply the international instruments alleged by the applicant regarding his removal. In fact, the Court wrote that it was simply premature to invoke them at a stage where the only jurisdiction of the Board was to determined whether or not a claimant is a refugee according to the Convention [Sandhu v. Canada (M.C.I.) (2000), 258 N.R. 100 (C.A.), Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3, Arica v. Canada (M.E.I.), [1995] F.C.J. No. 670, Kofitse v. Canada (M.C.I), [2002] F.C.J. No. 1168].
[18] For all the above reasons, I find that the Board did not commit any patently unreasonable error, therefore the Court will not intervene in the Board's decision.
[19] No question was proposed for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed and no question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2243-02
STYLE OF CAUSE: MICHAEL DUKEFE ET AL v. MCI
PLACE OF HEARING: Montreal
DATE OF HEARING: March 18th, 2003
REASONS FOR : Mr. Justice Martineau
DATED: April 8th, 2003
APPEARANCES:
Me Stewart Istvanffy FOR PLAINTIFF / APPLICANT
Me Guy Lamb FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Me Stewart Istvanffy FOR APPLICANT
1070, Bleury
Suite 503
Montreal, Quebec
H2Z 1N3
Me Guy Lamb
Federal Justice Department FOR RESPONDENT
Quebec regional Office
200 West, René-Lévesque Blvd.
East Tower, 5th Floor
Montreal, Quebec
H2Z 1X4