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Date: 20060825

Docket: IMM-326-06

Citation: 2006 FC 1028

OTTAWA, ONTARIO, August 25, 2006

PRESENT:     The Honourable Mr. Justice von Finckenstein












[1]               The Applicant is a citizen of Nigeria and arrived in Canada on April 10, 2001.  On February 19, 2002, the Applicant was granted refugee status on the basis of persecution due to political opinion and sexual orientation.


[2]               A fingerprint check of the Applicant was conducted by the FBI and Canada Border Services Agency (CBSA) was advised that they matched an “Andrew Dede” who had a criminal record in the United States. When the Applicant was interviewed by CBSA on April 4, 2004, he admitted to being “Taiye Paddy Aluyi”, “Osakewe Joseph Aluyi” and “Andrew Dede”.  He further admitted to concealing his US criminal convictions.  He had resided in the US from 1990 until his deportation back to Nigeria in October 2000.  He further admitted that all information contained in his PIF narrative was false up to paragraph 15 and except for his sexual orientation.


[3]               The Minister applied on April 30, 2004 to vacate the Applicant’s refugee status pursuant to s. 109 of IRPA.  Given that the Applicant conceded he misled the panel about his OPC membership, only his sexual orientation was argued.


[4]               The Refugee Protection Division of the Immigration and Refugee Board of Canada (the “Board”) found that it did not trust the Applicant’s testimony.  It was self-serving and the Applicant has repeatedly demonstrated that he is a liar: he is a convicted fraudster, lied to US authorities about his citizenship, lied to US authorities about his identify, lied to Citizenship and Immigration Canada, lied to the original panel, and lied to CBSA when interviewed in 2004.


[5]               Given this, the evidence about his sexual orientation must come from corroborating sources. The Board looked at eight pieces of evidence that might corroborate (without reliance on the Applicant’s testimony) the contention that the Applicant is homosexual.  The Board found no support (independent of the Applicant’s testimony) in any of these documents to corroborate the Applicant’s allegations regarding his sexual orientation.


[6]               The Applicant is now seeking judicial review of that decision.


[7]               Section 109 of Immigration and refugee protection Act, S.C. 2001, c.27 as amended (“IRPA”) states:

Applications to Vacate


Vacation of refugee protection


109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.


Rejection of application


(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.


Allowance of application


(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.


[8]               The section 109 process was succinctly described by Justice Blanchard in Canada (Minister of Citizenship and Immigration) v. Pearce, 2006 FC 492 at paragraph 21:

There are two issues that must be considered by the Board in the context of an application to vacate. These matters are essentially raised by the operation of subsections 109(1) and (2) of the IRPA and require the Board to make factual determinations. First, under subsection 109(1), the Board must determine if the positive decision was obtained as a result of direct or indirect misrepresentation or withholding of material facts relating to a matter relevant to the refugee claim. Second, the Board notwithstanding the misrepresentation or withholding may still reject the application to vacate if it finds that there is sufficient "other evidence," untainted by the misrepresentation or withholding of evidence, to justify refugee protection.


[9]               There is no dispute between the parties that in cases involving s. 109, given that the key issue is credibility, the standard of review must be patently unreasonable (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A).


[10]           The Applicant, in essence, argued only one point before me. The Board has to weigh the Applicant’s credibility and has to come to a reasonable conclusion on the basis of the Applicant’s testimony and the corroborating evidence. Here, the Board began with finding the Applicant not credible and found the evidence proffered by him sufficiently unreliable to establish his sexual orientation. By taking that initial position, the Board in effect prejudged the case, created an insurmountable presumption against the Applicant.  Consequently it did not employ the process mandated by s. 109 of IRPA and therefore the decision is not tenable.


[11]           I cannot agree with this submission. The Board understood the s. 109 process as described by Blanchard J. in Pearce supra, reiterated it and followed it.


[12]           The Board had ample reasons not to find the Applicant credible given his past history and his admissions of duplicity. Therefore it stated at the outset that understandably the Board did not believe anything the Applicant had stated. However, far from prejudging the case, it then looked at all the evidence presented to see whether there was something not based upon the Applicant’s testimony (‘other evidence’ in the words of Pearce supra) that would support his allegations. Its analysis revealed that none of the evidence, short of anything that originated from the Applicant, was found to be convincing evidence to corroborate his statement regarding his sexual orientation. In a case such as this one, where there is nothing to give the Board any reason to accept the credibility of the Applicant, this is the appropriate procedure to be followed. 


[13]           The Board’s reasoning was logical and amply supported by the evidence of this case.  The facts as admitted by the Applicant establish that he had relationships with women in Nigeria, Vancouver and California as well as having fathered a child.  By contrast the evidence as to his alleged homosexuality was weak, conflicting and/or lacked credibility.


[14]           I cannot find anything unreasonable in the Board’s conclusions. Nor do I find that it followed an incorrect process.


[15]           Accordingly, this application cannot succeed.




THIS COURT ORDERS that this application be dismissed.


“Konrad W. von Finckenstein”









DOCKET:                                          IMM-326-06


STYLE OF CAUSE:                          Taiye Paddy Aluyi (a.k.a. Osakewe Joseph Aluyi)

                                                            v. The Minister of Citizenship and Immigration


PLACE OF HEARING:                    Vancouver, British Columbia


DATE OF HEARING:                      August 24, 2006



ORDER AND ORDER:                   von FINCKENSTEIN J.


DATED:                                             August 25, 2006







D. Blake Hobson


Helen Park





Hobson and Company


John H. Sims, Q.C.

Deputy Attorney General of Canada



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