Date: 20030930
Docket: IMM-384-02
Citation: 2003 FC 1124
Ottawa, Ontario, this 30th day of September 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
FRANK CHRISTIAN IKEGWUONU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] The applicant seeks judicial review of the negative decision of the Refugee Division of the Immigration and Refugee Board (the "Board") rendered January 2, 2002.
Background
[2] Frank Christian Ikegwuonu is a 29-year old male from Nigeria. He claims to have a well-founded fear of persecution based on his membership in a particular social group, gay males in Nigeria.
[3] The applicant states that he was humiliated as a boy in the town of Jos, when he was confronted in a compromising position with another boy. The incident was reported to the boy's mother, who notified the local priest. As a result, the applicant's father, a clergyman, was relocated to another town, Kaduna.
[4] In his Personal Information Form ("PIF"), the applicant writes that his father, upon discovering he was gay, publicly denounced him as his child. The applicant further alleges in his PIF, that the chief priest in his town, told everyone that they should avoid him and that he was an abomination to African culture.
[5] The applicant states that he finished his schooling, but did not proceed to university because of threatening anti-gay letters he received. He testified that he started his own business in Jos in 1998 because he grew up there and people knew him and his father. The applicant added, that he could live comfortably there and no one knew his partner, Peter. He worked with Peter in an auto mechanic shop. The two were harassed by locals, and they complained to police, who took no action. The applicant says that the police told them to leave or they would be locked up in jail.
[6] The applicant moved to Kaduna hoping things would get better. He states that in February 2000, he and his family were attacked by Islamic fanatics in Kaduna. He claims that he escaped and that his father, a strong opponent to the adoption of Islamic Sharia law, claimed refuge at the military barracks and is still missing.
[7] In his narrative, the applicant states that he and his partner fled Kaduna for Lagos, but suffered continual harassment, and within one month were advised, by their landlord, to leave their apartment. They reported the incident to the Police, and the applicant's evidence is that the Police not only did nothing, but threatened to charge them if they did not leave the community. The applicant made arrangements to leave Nigeria.
Board's Decision
[8] The Board did not find the applicant's allegations, that he was gay, to be credible, and concluded that he was not a Convention refugee. The Board based its conclusion on inconsistencies in the applicant's evidence and omissions from his PIF.
[9] The Board found that the applicant had given conflicting accounts, of the February 2000 incident, in which he was involved in a demonstration. The Board noted that in the applicant's PIF he stated that, "he and his partner were attacked when Islamic fanatics attacked them during a demonstration in which 5000 people took part in February 2000". This appears to be in error, since the information in that sentence comes from the applicant's testimony at the hearing, and not from his PIF. However, in his PIF the applicant stated that, "...in February 2000, my family and I were attacked by the Islamic fanatics in Kaduna." and made no reference to the demonstration. When questioned, the applicant at first did not describe his family's involvement, the Board, consequently, held that the testimony about the attack was untrustworthy. In addition, the Board found it implausible that the applicant and his partner would be singled out for assault among 5000 people, since the documentary evidence states that violence in Kaduna in February 2000 erupted over the imposition of the Sharia law. The Board, therefore, found it implausible that Muslim fanatics would single the applicant out, because of his sexual orientation, since the violence at the demonstration erupted because of religious differences.
[10] The Board noted that the Nigerian Criminal Code prohibits "carnal knowledge against the order of nature". The Board found implausible the notion that his playmate's mother would report his homosexual activities to the local priest, since she would subject the child to criminal prosecution. It did not accept the applicant's explanation that the mother did not like her son.
[11] The Board noted that the applicant stated that he had been stoned by fellow students, who had discovered his sexual orientation despite his attempt to keep it a secret. The Board did not find it credible that the applicant would then complain to police that he was being harassed due to his sexual orientation, since he had previously kept this secret, and because he would thereby open himself up to prosecution. In addition, the Board did not find it credible that the applicant would move back to Jos, where people "knew him and his father" and where he could live comfortably, since these statements contradicted his initial story of being forced to relocate from Jos as a result of a boyhood sexual scandal.
[12] The Board also doubted the applicant's story that he complained to police about sexual orientation harassment when his landlord forced him and Peter out of their apartment in Lagos. Given the Board's conclusion that the Kaduna riot was prompted by religious sentiment rather than protest against the applicant, the Board stated that it did not believe that the applicant went to Lagos at all.
[13] The Board held that it did not believe that the applicant was homosexual as alleged, and concluded that he was not a Convention refugee.
Issue
[14] Did the Board commit a reviewable error in making its negative credibility findings?
Standard of Review
[15] The standard of review for findings of credibility is patent unreasonableness: Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). The Board's findings should not be disturbed absent a patently unreasonable finding of fact: Pushpanathan v. M.C.I., [1998] 1 S.C.R. 982.
Analysis
[16] The Board's conclusion concerning the plausibility of the applicant's boyhood friend's mother reporting her son's homosexual activities to the local priest are in my view perverse. The rational offered by the Board for its conclusion is that, given the age of the boys, it was unreasonable to believe that a mother would report on such activities, leaving the child open to prosecution. Firstly, the Board erred in stating that the boy was ten years old when the incident occurred. The evidence shows that the boy was twelve years old at the time. Further there is no evidentiary basis upon which the Board could conclude that reporting the incident to the priest would lead to criminal charges. There is no evidence to suggest that the priest is an agent of the state, or of the police. There was no reason to infer that the boys would be subjected to prosecution by reason of the mother approaching the local priest. The plausibility finding is perverse and the Board erred in so determining.
[17] While the Board erred in making the above discussed plausibility finding, I am of the view that the error is inconsequential to the ultimate decision. Taken in its entirety, the evidence supports the Board's finding that the applicant is not credible.
[18] Notwithstanding the apparent misstatement by the Board, mentioned in paragraph 9 of these reasons, that the initial reference to the PIF should be to the applicant's oral testimony, there were considerable inconsistencies between the applicant's PIF and his oral testimony on this issue. It is well established that discrepancies between a claimant's PIF narrative and oral testimony can be used as a basis for a negative credibility findings, see Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (T.D.)(QL).
[19] I am satisfied, that notwithstanding the Board's misstatement of some of the facts, as discussed above, there were ample reasons for the Board to find the applicant not credible and to deny his claim.
[20] After, reviewing the transcript and the applicant's PIF, it is clear the the applicant left many other key events out of his PIF as well. His PIF made no mention of his partner Peter who played a critical role in the events he described in his oral testimony. Nor does the PIF refer to his family's move from the town Jos to Kaduna in the 1980s, a move the applicant alleges was necessary because of his homosexual behaviour.
[21] Further, some of the applicant's testimony was contradictory . He claims that he returned to Jos with his partner in the late 1990s to start a business there because he was well-known in Jos. It was open to the Board to find it implausible that the applicant would return to Jos, along with his partner, when he had been forced to leave Jos due to his homosexuality. It was reasonable for the Board to conclude that the applicant did not have any problems in Jos and that he and his family had not relocated to Kaduna in the 1980s.
Conclusion
[22] For the reasons set out above, the application for judicial review will be dismissed.
[23] Neither party proposed a question for certification. The Court declines to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the negative decision of the Refugee Division of the Immigration and Refugee Board rendered January 2, 2002, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-384-02
STYLE OF CAUSE: Frank Christian Ikegwuonu v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, August 27, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: September 30, 2003
APPEARANCES BY:
Mr. Kingsley Jesuorobo For the applicant
Ms. Claire LeRiche For the respondent
SOLICITORS OF RECORD:
Mr. Kingsley Jesuorobo For the applicant
318 - 1280 Finch Avenue West
Toronto, Ontario M3J 3K6
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT OF CANADA
Docket: IMM-384-02
BETWEEN:
FRANK CHRISTIAN IKEGWUONU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER