Ottawa, Ontario, August 28, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Blessing Ngozi Otti, came to Canada from Nigeria in July, 2003. She travelled here under a study visa to permit her to undertake a five-month program at St. Francis Xavier University. A previous visa application to enter Canada in 2000 to visit relatives had been denied.
[2] In December, 2003, shortly before the completion of her educational program, Ms. Otti claimed refugee protection in Charlottetown, Prince Edward Island. Her claim was based upon allegations that, if she returned to Nigeria, she would be forced to accept an arranged marriage as a second wife to a much older man. The further alleged consequences of this marriage included an obligation to submit to female genital mutilation (FGM) and to give up her child from an earlier out-of-wedlock relationship with a so-called “outcast”.
[3] Ms. Otti’s claim for protection was dismissed by the Immigration and Refugee Board (Board) in a short decision rendered on January 20, 2006.
The Board Decision
[4] The Board accepted that Ms. Otti was a Christian and a member of the Ibo tribe from Avia State in Nigeria. Beyond these basic findings, the Board appears to have accepted little else of Ms. Otti’s narrative.
[5] It is clear that the Board did not believe Ms. Otti’s claims of apprehended persecution and it found her testimony to be untrustworthy. This adverse credibility conclusion was based upon a number of perceived evidentiary contradictions and implausibilities made up of the following:
· Ms. Otti’s failure to produce a birth certificate for her son;
· Ms. Otti’s failure to mention her son in her two visa applications;
· Ms. Otti’s reliance on a “suspicious” ultrasound report to confirm her pregnancy;
· Ms. Otti’s attempt to “nuance” the importance of her relationship with her Nigerian boyfriend (Friday Udu);
· the implausibility that Ms. Otti’s Christian family would force her into a polygamous marriage;
· the threat of FGM as a pre-marital “purification rite” was inconsistent with the already-performed arranged marriage and Ms. Otti had no explanation for this perceived inconsistency; and
· Ms. Otti’s fear of a forced adoption for her son was implausible because, notwithstanding her arranged marriage, the child remained in the care of Ms. Otti’s mother in Nigeria.
[6] As an alternative basis for rejecting Ms. Otti’s claim, the Board found that she had failed to rebut the presumption of state protection with clear and convincing evidence.
Issues
1. What is the appropriate standard of review?
2. Does the Board decision meet the required standard?
Analysis
[7] It is common ground that the factual, credibility and plausibility findings made by the Board are entitled to great deference on judicial review and that the standard of review is patent unreasonableness. The Court’s intervention is only justified where it finds that the Board made a palpably erroneous finding of material fact without regard to the evidence before it. This test was
further clarified by Justice John Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35; [1998] F.C.J. No. 1425 (QL) (T.D.) where he stated at paragraph 15:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
[8] There are a number of serious problems with the Board’s decision in this case.
[9] It is noteworthy that the Board’s adverse credibility conclusions are, in the main, concerned with peripheral questions and not directly with Ms. Otti’s central concerns of an arranged marriage and the risk of FGM. This failure to address the central aspects of Ms. Otti’s claim may not undermine the Board’s analysis but its collateral findings must be of sufficient import and reliability that they would support the rejection of her key allegations. Here, that was not the case.
[10] The transcript of Ms. Otti’s evidence indicates that she gave a detailed and coherent account of her situation in Nigeria before coming to Canada. She claimed to have had a relationship with a man in Lagos out of which a son was born in 1998. That relationship did not continue and, by 2003, Ms. Otti was in a newly-formed but serious relationship with Friday Udu. Ms. Otti acknowledged that she had not told Mr. Udu about her son before leaving for Canada but intended to do so upon her return to Nigeria. Ms. Otti’s visa application noted Mr. Udu as her fiancé but did not record the existence of her son. Indeed, in the 2000 visa application, Ms. Otti had similarly not disclosed her dependant child. Ms. Otti gave an explanation for this. She said that in Nigeria the social and family stigma associated with the out-of-wedlock birth of a child (particularly with a man from a lower caste) was profound. She said that this status and the perception of promiscuity were what made her particularly vulnerable to an arranged marriage and to the threat of FGM. This was also the stated motivation for keeping a low profile with respect to the existence of her child. Although her son’s existence was not a secret to those who knew them, she said that she was not inclined to draw unnecessary attention to the issue or to expose him to ridicule. These were Ms. Otti’s reasons for both failing to advise Mr. Udu about her son and for not declaring her son on either of her visa applications.
[11] It appears to be the case that the Board accepted that Ms. Otti had given birth to a child but not in the circumstances she alleged. The Board was concerned about Ms. Otti’s failure to produce a birth certificate and it gave no weight to a corroborative ultrasound report because of a dating inconsistency on its face. The ultrasound report recorded Ms. Otti’s last menstrual period (LMP) as December 23, 1997 but the report itself is dated March 12, 1997. The Board concluded that this dating error rendered the document suspicious and it completely rejected it.
[12] Ordinarily the weight ascribed by the Board to the evidence is unimpeachable on judicial review but, in this case, the Board failed to address the significance of an important and related medical report authored by Dr. L. J. Matheson of Planned Parenthood in Halifax. Dr. Matheson commented on the apparent reliability of the Nigerian ultrasound report and described the significance of the dating inconsistency as follows:
I fully expect that the LMP date simply made the report writer be in “1997” mode causing the report date to be of the wrong year. This is a mistake I have made not infrequently, especially in the first few months of a new year.
[13] It is implicit that the Board found the ultrasound report to be a fabrication on the basis of the dating mistake. Whether such an error was more likely to be evident in a forgery than in a legitimate medical record is, in the absence of other evidence, highly speculative and the Board had an obligation to at least consider Dr. Matheson’s report before concluding that this evidence was fabricated. The Board’s failure to mention this important piece of evidence which contradicted its finding supports an inference that the Board failed to take this evidence into account. Its finding, therefore, was one made without regard to the evidence and is patently unreasonable: see Cepeda-Gutierrez, above; Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228; (1991), 130 N.R. 236 (F.C.A.) and Terigho v. Minister of Citizenship and Immigration, [2006] F.C.J. No. 1061; 2006 FC 835.
[14] Although the Board expressed a concern about the nature and characterization of Ms. Otti’s relationship with Mr. Udu, it is not at all clear how or why that concern would be relevant to her claim or important to the assessment of her credibility. Indeed, the Board’s expressed concern on this point is confusing. Ms. Otti had testified that her relationship with the father of her son had ended and that, two months before leaving for Canada, she began to see Mr. Udu. None of this appears troubling or unusual yet the Board described its concern in the following terms:
Then there is the question of the claimant’s civil status. It is the claimant’s contention that she was a thirty-three year old single mother. She had lost contact years before with the father of her child, whom the claimant alleges is a lower cast. Yet in two places of her Canadian visitor’s visa application, the claimant lists an individual, Friday Udu, as someone whom she is either engaged with or is customarily married to. When confronted, the claimant did not provide a credible explanation. For example, with respect to her son, she stated that she did not want the general population to know of his existence because of the fact that he is born out of wedlock. Yet she gave no evidence that this was a secret. With respect to her relationship, the claimant attempted to nuance its importance. These inconsistencies in the claimant’s evidence cast serious doubt on the believability of her allegations.
It is not clear from this passage what the Board required in the way of a credible explanation. Ms. Otti had given detailed explanations for all of the Board’s concerns. While it was open to the Board to make the findings it did about her dependant child, it was also incumbent upon the Board to explain why Ms. Otti’s explanations were found lacking. It is not enough for the Board to express a bare credibility conclusion or to rely upon vague concerns or non-sequiturs. It has an obligation to rationally explain why a claimant’s evidence is considered unreliable. By failing to provide valid reasons for its finding that Ms. Otti lacked credibility, the Board’s decision is patently unreasonable: see Offei v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2000; 2005 FC 1619.
[15] The Board also doubted Ms. Otti’s claim that an arranged polygamous marriage had been performed in Nigeria after her departure to Canada and that she faced a risk of FGM if she returned. The Board questioned the marriage allegation on the ground that polygamy is not recognized in the Christian faith. The Board also doubted that she would be at risk of FGM because it was supposedly a pre-marital rite and, therefore, unlikely to be carried out after the traditional marriage ceremony had taken place.
[16] Although it is correct that Ms. Otti confirmed that polygamy is contrary to the official teachings of the Christian faith in Nigeria, she also said that the practice of polygamy by Christians continued and, by way of example, she said that her own father had two wives. The Board also had documentary evidence before it that forced marriages were often imposed upon unmarried women with children born out-of-wedlock. This was the situation Ms. Otti claimed to be in and yet the Board failed to note this important evidence in its decision or to explain why it found it unhelpful. It was an error for the Board to conclude that an arranged polygamous marriage was unlikely in Ms. Otti’s religious circumstances without taking some account of this contrary evidence.
[17] The problem with the Board’s finding concerning the likelihood of Ms. Otti being subjected to post-marital FGM is that Ms. Otti claimed to have been married in absentia and said that a commitment to submit to FGM as a supposed “purification rite” had already been made by her family. Her testimony on this point was, in part, as follows:
Yes, that is why if I go back now, I would still do all those things. They collected my [bride price]. That means that there’s a commitment to it. So if I go back now I would go to all these processes that I was supposed to go through before eventually, you know – before my marriage was supposed to have gone (inaudible). So I would still go through all those processes. It’s not like I’m not going to go through them. So if I go back – and because this man has already paid my bride price, so it is now his own – he will enforce it to his own benefit and also my family has accepted that. They have given him the support to make sure that I go through all this pre-marital process in order to – say that was why I refused to come back. So anytime I come back I would still go through all those processes.
[18] In addition, the Board had documentary material before it that FGM was “a cultural tradition that [in 2004] is widely practised in Nigeria” and that it was carried out for different reasons or motives.
[19] Nowhere in the Board’s decision does it explain why Ms. Otti’s evidence with respect to FGM was considered unreliable. While FGM may be most frequently performed as a pre-marital rite, the Board still had an obligation to consider Ms. Otti’s testimony that it is also performed in other circumstances and sometimes as a supposed means of dealing with perceived promiscuity. The procedure could not be carried out while Ms. Otti remained in Canada, so if a marriage had been performed in absentia, the only time when the FGM procedure could be carried out would be after her return to Nigeria. All of this evidence required a careful evaluation by the Board; however, there is no indication that the Board even considered Ms. Otti’s testimony or the corroborating documentary evidence which had been submitted on her behalf. This additional failure to mention material evidence which was important to Ms. Otti’s claim supports an inference that the Board failed to consider the evidence and that its FGM conclusion was patently unreasonable.
[20] The same problem arises with respect to the Board’s state protection conclusion. Ms. Otti gave a very detailed explanation as to why she believed she would be at risk if she returned to Nigeria, all of which the Board unfairly reduced to the following: “[t]he claimant alleges the authorities would not assist her. Yet the claimant has not rebutted the availability of state protection with clear and convincing evidence”.
[21] The above characterization of Ms. Otti’s testimony is grossly inadequate. She had offered a detailed description of the circumstances which would confront her upon a return to Nigeria including the loss of the protection of her family which was critical to her economic and physical well-being. She explained that she would be forced by circumstance to submit to an unwanted polygamous marriage and to its attendant consequences, and that no other realistic options were open to her in Nigeria. This evidence was deserving of greater attention and evaluation than the Board gave to it. This failing renders the Board’s finding with respect to state protection patently unreasonable.
[22] It is necessary for this matter to be remitted to a differently constituted Board for a redetermination on the merits.
[23] Neither party proposed a certified question and no question arises.
JUDGMENT
THIS COURT ADJUDGES that this matter is to be remitted to a differently constituted Board for a redetermination on the merits.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-929-06
STYLE OF CAUSE: BLESSING NGOZI OTTI and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: August 17, 2006
AND JUDGMENT BY: Justice Barnes
APPEARANCES:
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Ms. Lori A. Hill
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Ms. Melissa R. Cameron
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SOLICITORS OF RECORD:
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Halifax Refugee Clinic Halifax, Nova Scotia
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John H. Sims, Q.C. Deputy Attorney General of Canada
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