A Nigerian woman has managed to stave off deportation from Canada by arguing that she feared a powerful businessman in her homeland who wanted to make her his mistress.
Amina E-Osmund Ekpo was slated to report for removal from Canada earlier this week. But a Federal Court judge granted her an urgent stay Tuesday while the 47-year-old waits to see if another judge will grant a review of an immigration officer’s refusal to give Ekpo a pre-removal risk assessment (PRRA) — her last-ditch bid to stay in Canada.
“She had alleged to fear a powerful businessman who was interested in her to become his mistress,” Justice Negar Azmudeh wrote in a June 16 decision.
“The businessman was well-connected and was using the state machinery, including the courts, to issue baseless summons or evict her from her apartment to ultimately force her into submissions.”
Lawyers for Immigration Minister Lena Diab recommended the court reject Ekpo’s “unnecessarily long” argument, said the judge. “However, given the high stakes of an urgent stay motion, it is not in the interest of justice for this court to give more weight to form over substance,” Azmudeh said.
Ekpo “was ineligible to plead her refugee case before the Immigration and Refugee Board of Canada but was able to apply for a PRRA,” said the judge.
The judge found “that there is a serious issue in this case,” said her decision.
“It appears that the officer accepted the applicant’s allegation to be credible but rejected the claim on the basis of the lack of corroborative evidence.”
Azmudeh agreed with Diab’s lawyers that “the onus is always on a refugee claimant to prove their claim.”
The judge cited another decision from the Federal Court of Appeal that “stated that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness.”
The United Nations High Commissioner for Refugees’ Procedures and Criteria for Determining Refugee Status notes “there is no general requirement for a claimant to provide corroborating documents,” said the judge.
“This is because a refugee may have been forced to flee their home on little or no notice, taking little or nothing with them, and such circumstances of flight render it impossible or unreasonable to expect them to provide supporting documentary evidence.”
Requiring corroboration without explaining why Ekpo’s evidence lacked credibility “would effectively reverse the presumption” that she was telling the truth, said the judge.
“Alone, the absence of corroborating evidence cannot ground an adverse credibility finding,” Azmudeh said.
“An adverse finding against credibility must first find that independent reasons exist to doubt an applicant’s claim, and the board must then consider absence of corroboration as a reason to doubt a claim’s credibility.”
The officer who denied Ekpo a PRRA “did not make adverse credibility findings based on independent reasons to doubt the applicant’s claim, even though they interviewed the applicant,” Azmudeh said.
“They framed their decision with the rubric of sufficiency, despite stating that the lack of corroboration made the evidence insufficient.”
Ekpo “argued that the determinative issue for the officer was (her) prospective risk,” said the decision.
“However, the officer’s prospective-risk analysis was based solely on facts rejected for a lack of corroboration. Therefore, the analysis remains flawed because the officer used veiled credibility findings, disguised as conclusions on the sufficiency of evidence, to infer an absence of prospective risk.”
Azmudeh found that “reversing the onus on (Ekpo) raises a serious issue that is neither frivolous nor vexatious.”
Deporting Ekpo before another judge can give the “final determination” on the immigration officer’s decision to deny her a PRRA when that officer’s “error can expose (her) to a serious possibility of gender-based persecution … or a personal risk of harm … amounts to an irreparable harm,” Azmudeh said.
She found “that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding amounts to irreparable harm in this case.”
According to the judge, “the only real inconvenience” to Diab if Ekpo wasn’t deported this week and her application for judicial review is dismissed would be to delay her removal from Canada.
“Her removal will only be delayed and not frustrated entirely,” Azmudeh said.
“On the other hand, the potential prejudice to (Ekpo) is losing the right to a meaningful remedy. This is significant and irreparable. In the circumstances of this case, this outweighs the public interest in the immediate enforcement of the removal order.”
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