Ottawa, Ontario, April 12, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Babatope Ideyonabe Atafo sought refugee protection in Canada based on his fear of persecution in Nigeria as a homosexual male. A panel of the Immigration and Refugee Board dismissed his claim. It found his account of the events that caused him to leave Nigeria implausible and his corroborating evidence suspect. Mr. Atafo argues that the Board misstated the burden of proof that falls on refugee claimants and mistreated the evidence before it. He asks for a new hearing.
[2] I agree that the Board erred in its treatment of key evidence and must, therefore, allow this application for judicial review.
I. Issues
- Did the Board misstate the burden of proof on a refugee claimant?
- Did the Board err in its treatment of evidence central to Mr. Atafo's claim?
II. Analysis
A. Did the Board misstate the burden of proof on a refugee claimant?
[3] I can overturn the Board's decision on this issue only if I find that it made an error of law. The Board found that it was "not persuaded that there exists a serious possibility of persecution". Elsewhere in its decision, the Board stated that it was "not persuaded, on a balance of probabilities, that there exists a serious possibility that the claimant would be persecuted by the authorities".
[4] In my view, the Board expressed the burden of proof correctly. A refugee claimant must prove, on a balance of probabilities, the facts on which he or she relies. Further, the claimant must establish that he or she will be exposed to a real risk of persecution, if returned home. The latter standard has been referred to in the cases as "more than a mere possibility", "a serious possibility", or "a reasonable chance": Alam v. Canada(Minister of Citizenship and Immigration), 2005 FC 4, [2005] F.C.J. No. 15 (FC) (QL). In my view, the Board expressed correctly the burden of proof on Mr. Atafo.
B. Did the Board err in its treatment of evidence central to Mr. Atafo's claim?
[5] Mr. Atafo alleged that he had been discovered in a homosexual act with his partner. Thereafter, religious extremists searched for him at various places and ransacked his law office twice. To support his testimony about the intrusion on his office, he presented letters from his brothers and his associate, as well as photographs of his office.
[6] The Board discounted the value of this evidence. Indeed, the Board gave these documents no weight whatsoever. Further, based on these findings, the Board rejected other documentary evidence presented by Mr. Atafo and concluded that "the alleged break-ins, which purportedly resulted from the discovery of the claimant's homosexuality, did not occur".
(i) The associate's letter
[7] The Board reviewed a letter from Mr. Atafo's associate that had been written on May 2, 2005. The alleged break-in had taken place on March 29, 2005. The Board found it odd that the letter did not mention the break-in especially since the associate had allegedly included photographs of the office in the same envelope. In fact, the associate did mention the break-in in his letter. He said that he had raised the matter with the Bar Association at its meeting of April 1, 2005: "I had raised at this meeting the issue of how Alhaje Bakare had the audacity to break into your office as a lawyer and come with the police ransacking your files and documents. I also showed them pictures taken as a result of this their act".
[8] Clearly, the Board made an error in respect of this piece of evidence.
(ii) The brother's letter and e-mails
[9] The Board considered a letter from Mr. Atafo's brother, Omozee, dated May 6, 2005 and e-mails dated April 11, 2005 and April 28, 2005. Omozee said in his letter that he learned about the break-in right after it took place and arranged for a photographer to take pictures of the office. However, in his earlier e-mails, he did not mention the break-in. The Board found it implausible that Omozee would not have informed Mr. Atafo of the break-in in his e-mails. The Board also noted a contradiction in Omozee's letter. Contrary to his statement that he learned of the March 29, 2005 break-in immediately afterwards, he also said that he heard about it from Mr. Atafo's associate on May 2, 2005.
[10] In fact, in his letter, Omozee said that he met with Mr. Atafo's associate on May 2, 2005, but he did not say that that was when he found out about the break-in. Admittedly, the letter is somewhat confusing, but it is not clearly contradictory. He said that the associate called him immediately after the break-in and asked him to get a photographer to take pictures of the office. The associate planned to show the photographs to the Bar Association. This part of Omozee's letter corroborates the associate's account of the Bar Association meeting of April 1, 2005. As for Omozee's e-mails, while it is true that he does not mention the break-in specifically, he does say that a religious leader had gone to Mr. Atafo's office, and interrogated and threatened his associate.
(iii) The Board's analysis
[11] It was open to the Board to assign these documents whatever weight it felt they deserved, so long as it explained its analysis. In my view, the Board did not cite any significant contradictions or implausibilities in this evidence that would justify giving it no weight whatsoever.
[12] Further, the Board relied on its assessment of these documents to find that other corroborative letters presented by Mr. Atafo were not credible, without analysing them. From there, it concluded that no break-ins had occurred, and that none of Mr. Atafo's allegations about his treatment in Nigeria were true. Obviously, the Board's assessment of the documentary evidence was at the core of its analysis of Mr. Atafo's refugee claim.
[13] In my view, the Board clearly erred in respect of its treatment of an important piece of corroborative evidence, and did not explain adequately its rejection of other key evidence. Accordingly, the Board's conclusion that none of the events Mr. Atafo described took place was not supported by the evidence before it. In the circumstances, I must allow this application for judicial review, and order a new hearing before a different panel. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted;
2. A new hearing is ordered before a different panel;
3. No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4649-05
STYLEOF CAUSE: ATAFO v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 26, 2006
REASONS FOR JUDGMENT: O'REILLY J.
APPEARANCES:
| Ms. Elvira Akinyemi
|
|
| Ms. Nicole Butcher
|
SOLICITORS OF RECORD:
| Mbong Elvira Akinyemi Toronto, ON
|
|
| John H. Sims, Q.C. Toronto, ON |