Date: 20040113
Docket: IMM-4920-03
CALGARY, Alberta, Tuesday, the 13th day of January, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
PRINCE MCTONY AIRE
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
[1] The applicant is a 33 year-old man from Nigeria. He alleges that he has a well-founded fear from Islamic extremists and security forces in the country due to his membership in a particular social group, namely bisexual men. He submits that he has been detained, tortured and issued death threats.
[2] In a decision dated June 10th, 2003, the Board found that the applicant had a viable internal flight alternative (IFA) in Lagos. The key part of its decision is as follows:
...I find that if the claimant is removed to Nigeria he stands to face trial in the courts. Documentary evidence, however, indicates that the penalty for conviction of engaging in homosexual behaviour varies from a maximum of 14 years imprisonment, according to one source (Gay Rights Info n.d.), to "three months to three years imprisonment or a fine and/or corporal punishment," according to a UK Home Office report (Mar. 1999, 31). I find that what the claimant faces in this case is lawful sanction. A claimant is not a person in need of protection if the risk of punishment he faces is inherent or incidental to lawful sanction unless those sanctions are imposed in disregard of accepted international standards. There is no evidence before me to suggest that such is the case in this instance. The claimant testified that he was released on bail, which indicates that the authorities in Nigeria operated according to the law in the claimant's case. Based on the foregoing I find that the claimant has a viable Internal Flight Alternative in Lagos. He left Nigeria by flying out of Lagos airport. His removal to Nigeria would take him directly to Lagos. He can face the legal sanction there....
ISSUES
[3] The applicant raises two issues:
1. Did the Board fail to consider the risk of persecution which the applicant faces from the police?
2. Did the Board err in finding that Nigerian laws against homosexual behaviour constitute lawful sanction?
Issue 1. Did the Board fail to consider the risk of persecution which the applicant faces from the police?
Standard of Review
[4] In order to find that an IFA exists, the Board must be satisfied on a balance of probabilities that (1) there is no serious possibility of the applicant facing persecution in the IFA and (2) in all of the circumstances, it is not unreasonable for the applicant to seek refuge there (Rasaratnam v. Canada (M.E.I.), [1991] F.C.J. No. 1256 (C.A.). The standard of review for the Board's findings in this regard is patent unreasonableness (Mohammed v. Canada (M.C.I.), [2003] F.C.J. No. 1217).
Analysis
[5] The applicant's Personal Information Form (PIF) contained a recollection of his treatment by the police in Zaria and he testified extensively on the subject at his hearing before the Board. The Board did not question the truth of these statements. However, after considering the treatment which he received from the police, the Board, concluded that there was no serious possibility that he would face this or another form of persecution in Lagos, where it appears he permanently resided before coming to Canada. The Reasons in this regard state on pp 6-7:
His problems outlined in the allegations above arose from his relationship that he developed while visiting Zaria.... The claimant was detained by police in northern Nigeria which is in an area predominantly Muslim and, after, Muslim extremists detained and beat him.....
[6] The evidence on the record suggests that the applicant experienced persecution in Zaria, where Shi'i law is practised by communities. Regrettably, it appears that police officials participated in the persecution in this area.
[7] Nonetheless, the applicant has not directed this Court to evidence of persecution by the police in Lagos nor that it would be unreasonable for him to seek refuge there. In light of this, it was reasonable for the Board to conclude that he faced an IFA in this city.
Issue 2. Did the Board err in finding that Nigerian laws against homosexual behaviour constitute lawful sanction?
Standard of Review
[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).
Analysis
The Board. at page 3-4 of its Reasons, stated :
I find that what the claimant faces in this case is lawful sanction. A claimant is not a person in need of protection if the risk of punishment he faces is inherent or incidental to lawful sanction unless those sanctions are imposed in disregard of accepted international standards. There is no evidence before me to suggest that such is the case in this instance.
[9] The Court of Appeal in Zolfagharkhani v. Canada (M.E.I.), [1993] F.C.J. No. 584, found that laws of general application are presumed to be valid and neutral unless an applicant demonstrates that they constitute persecution on a Convention ground.
[10] However, simply because a law is one of general application does not mean that it is not persecutory. In Cheung v. Canada (M.E.I.), [1993] F.C.J. No. 309, the Court of Appeal considered whether or not mandatory sterilisation laws persecuted against Chinese women. At 323, Linden J.A. concluded:
Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. In Padilla v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 1 (F.C.A.) the Court held that even where there is a law of general application, that law may be applied in such a way as to be prosecutory. . . . if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law.... This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less prosecutory. Brutality in furtherance of a legitimate end is still brutality.
(underlining added)
[11] Unfortunately, the Tribunal Record does not contain a complete version of the Nigerian law in issue. A partial excerpt of this law is found at page 320 of the Tribunal Record as follows:
The laws of the Federation of Nigeria and Lagos, Chapter 42 of the Criminal Code, section 214, states that any person who "has carnal knowledge of any person against the order of nature" or "permits a male person to have carnal knowledge of him or her against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years" (24 May 1999).
[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 ere that make sodomy punishable up to 14years 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.
[17] Accordingly, this application will be dismissed.
ORDER
IT IS HEREBY ORDERED that:
This application is hereby dismissed. .
"K. von Finckenstein"
J. F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4920-03
STYLE OF CAUSE: Prince McTony Aire v. The Minister
of Citizenship and Immigration
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: January 12, 2004
REASONS FOR ORDER AND ORDER : von FINCKENSTEIN, J.
DATED: January 13, 2004
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT