Date: 20040623
Docket: IMM-2580-03
Citation: 2004 FC 905
Toronto, Ontario, June 23rd, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
VICTORIA ADEFUNKE ADEWOYIN
(a.k.a. VICTORIA ADEFUN ADEWOYIN)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Victoria Adefunke Adewoyin, a 23 year old citizen of Nigeria, sought review of the decision of the Refugee Protection Division, Immigration and Refugee Board (the "Board"), dated March 20, 2003, in which the Board determined that she was not a Convention refugee or a person in need of protection. For the reasons below, the application is dismissed.
BACKGROUND
[2] Ms. Adewoyin claimed Convention refugee status in Canada by reason of her fear of persecution due to her membership in a particular social group, namely fear of persecution on gender grounds as a woman who would be forcibly subjected to female genital mutilation ("FGM") and forced marriage. The Board also considered whether she was a person in need of protection, pursuant to the grounds set out in section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[3] The applicant claimed that her mother died when she was a baby and when she turned 15 her stepmother and father wanted to have FGM performed upon her. When the applicant refused to submit to this surgery, her father informed the elders of their community.
[4] In February 1999, the applicant claimed that she was arrested and detained by the police for one week because she would not be circumcised. She alleged that while she was in detention she was beaten and tortured. Her father was able to secure her release from detention and he changed his mind about her having to undergo the circumcision.
[5] In February 2000, the applicant's father died of cancer. The applicant says that she was blamed by the community for her father's death because she had not been circumcised. After her father's funeral, she returned to her studies at the University of Akure. Then in April 2000, the applicant claimed, while at home on Easter holidays her stepmother informed her that she was to marry a man 35 years her senior. She was forced to go to this man's house where she was locked in a room as a ritual before FGM was to be performed. On the third day she was able to escape with the help of a friend of her mother and went to one of her father's friends. Her stepmother threatened this friend of her father's for hiding the applicant. She was taken to Lagos, and eventually to Benin in May 2000 until arrangements were made for her to travel to the United States where she spent approximately one week in that country. She then came to Canada on June 7, 2000. She initiated her refugee claim one month after her arrival in Canada.
The Board's Decision
[6] The Board found that key aspects of Ms. Adewoyin's claim were not credible. First, the Board drew an adverse inference with respect to her credibility because several important aspects of her claim that she related in oral testimony were not in her Personal Information Form ("PIF"). The Board did not find the applicant's explanation, that she had simply summarized her allegations in her PIF and desired to provide details personally at the hearing, to be a reasonable one in explaining the following omissions:
- Her stepmother demanded that she work as a prostitute and when she refused her stepmother attempted to kill her with a knife;
- She testified that she was arrested by the police in April 2000 because her stepmother had informed them that she refused to undergo FGM;
- She testified that the local government in Akure mailed her two notices giving her a specified period of time to make up her mind whether to be circumcised, as the local government kept a record of all girls born and circumcised in the area;
- The fact that she had to sleep on the streets for two days after the wife of her father's friend refused to give her further refuge after being threatened by her stepmother.
[7] The Board also found that the applicant's allegation that a friend of her father's helped her escape but then later informed the stepmother of the applicant's whereabouts was implausible. The Board also made a number of findings with regards to the subjective component of the applicant's claim, that is, that the applicant provided an unreasonable explanation for not making a refugee claim in the United States and she provided a contradictory and unreasonable explanation for her one-month delay in making her refugee claim once in Canada.
[8] The Board further concluded that the applicant's allegations were inconsistent with the documentary evidence regarding forced marriages in Nigeria, such evidence indicating that educated women in the urban centres, particularly those in their 20s, in the east and south of Nigeria are not generally forced into marriage. The Board also noted that there was no persuasive, credible evidence to suggest that local governments kept records on the number of girls who had undergone FGM or that the government pressures girls to undergo FGM. The Board preferred this documentary evidence over the applicant's claims.
[9] The Board stated that it considered a medical report of Dr. Golden but that it gave it no weight because the Board did not believe that the applicant's symptoms of depression and anxiety were the result of the ill treatment of her stepmother and a fear of forced marriage and forced FGM.
ISSUE
[10] Did the Board commit any reviewable error in its review of the evidence on the risk of forced marriage and FGM?
ANALYSIS OF SUBMISSIONS
[11] The applicant argued that the Board misconstrued the evidence before it primarily with respect to the role of her tribe and family, as opposed to the state, as the source of her fear of persecution. The applicant testified that she was from a rural part of the City of Akure and the documentary evidence was that for the applicant's tribe, the Yoruba, forced marriages were no longer prevalent in urban areas such as Lagos, however, they continued to occur.
[12] The applicant also argues that the documentary evidence cited by the Board is silent with regards to forced marriages for those over 18. The applicant refers to two other Response to Information Requests not mentioned by the Board that state that the government views marriage as a domestic affair and will not interfere unless the case involves physical abuse, such abuse from parents not being as common as it was in the past and more often ostracisation of the woman who refuses to be involved in an arranged marriage occurs. The applicant also says that the evidence cited by the Board supports the fact that she, being 22-years of age at the time of the Board's decision, was considered in Nigerian society to be of marriageable age.
[13] The applicant next submits that the Board failed to accurately assess her claim that she was about to be forced into undergoing FGM, since the documentary evidence indicates that FGM may be practised in rural areas and that it is often imposed just prior to marriage. The applicant says that both these factors existed in her situation and support her claims.
[14] The respondent however submits that the applicant's evidence was "riddled with" credibility problems, in that the reasons set out at least ten examples of omissions and implausibilities with the applicant's evidence. The applicant has failed to challenge nine of the ten credibility findings of the Board. The Board's reasons clearly set these out and the applicant has failed to show that the credibility findings are perverse or capricious.
[15] The respondent also argues that the Board did not err in its review of the documentary evidence. The respondent notes that the Board made one typographical error in referring to a Response to Information Request that stated that parents who force their children to be circumcised can be prosecuted, when the source footnoted by the Board with regard to this evidence dealt with forced marriages and states that parents can be prosecuted for forcing their children into marriage. The respondent submits that this is not a reviewable error.
[16] In my view, the applicant's submissions are without merit, as they essentially request this Court to re-weigh the evidence that was before the Board and come to different factual findings. The Board referred to the documentary evidence that it found credible. This evidence indicated that women in urban centres in the east and south of Nigeria who have been educated are not usually forced into marriages. The Board's preference to this documentary source over the sources cited by the applicant is not a reviewable error. Further, the typographical error noted by the respondent does not vitiate the Board's decision, as it is footnoted and clear from the context where it is found in the reasons that the Board intended to write that parents who force their children into marriage can be prosecuted.
[17] The Board's reasons do not indicate that it misconstrued the fact that the applicant was from a rural area. In fact, the transcript of the hearing reveals that the applicant's testimony is inconsistent and at times contradictory as to whether she lived in the city of Akure, as stated in her documents, or whether she lived in a village outside of Akure called Ondobye Pass. She also testified that Akure is a city composed of many villages and she went to high school and university in Akure. She testified that the house of the older man where she was held was in the city of Akure. (See pages 199 and 267-273 of the tribunal record). These statements indicate that the applicant was educated in an urban setting and spent a good deal of her life in the city, and that the place where her forced confinement took place was an urban area. Therefore, I cannot find that the Board made a patently unreasonable finding in applying documentary evidence that distinguished those who have lived in urban centres and were educated in south-eastern Nigeria from those who lived in rural areas, in that the former group were not generally forced into marriages against their will.
[18] Moreover, the many negative inferences drawn by the Board with regards to the omissions from the applicant's PIF show that the applicant's claims simply were not believed by the Board. It is well-established that when relevant and important incidents are not included in the PIF and then are revealed at a later stage in the refugee proceeding, the Board may view this negatively against one's credibility, if a reasonable explanation is not provided: see Bakare v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 31 (T.D.)(QL) and Akhigbe v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 332 (T.D.)(QL). Further, the Board had valid reasons to doubt the subjective component of her claim, and these were clearly set out in the reasons. As noted by the respondent, the applicant does not challenge the credibility findings based on the PIF omissions or the findings relative to the subjective component.
[19] Finally, the Board did not fail to consider the documentary evidence before it, despite the fact that it did not find the applicant credible. The Board's reasons are clear and intelligible, and after citing its credibility concerns with the applicant's allegations, set out the documentary evidence that it found persuasive. The Board's reasons do not indicate that it became "so centered on its concern regarding the credibility of the applicant" that there is a reasonable apprehension that it did not consider all of the documentary evidence that was before it and not specifically alluded to in its reasons. Therefore, this case differs from the decision of Mylvagnam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195 (T.D.)(QL) paragraphs 9-10, relied upon by the applicant.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2580-03
STYLE OF CAUSE: VICTORIA ADEFUNKE ADEWOYIN
(a.k.a. VICTORIA ADEFUN ADEWOYIN)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 22, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Mr. Ronald Schacter
FOR THE APPLICANT
Ms. Ann Margaret Oberst
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ronald Schacter
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040623
Docket: IMM-2580-03
BETWEEN:
VICTORIA ADEFUNKE ADEWOYIN
(a.k.a. VICTORIA ADEFUN ADEWOYIN)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER