Date: 20020430
Docket: IMM-2873-01
Neutral citation: 2002 FCT 496
Ottawa, Ontario, this 30th day of April, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
IYARE ABEL EFESE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated May 16, 2001, wherein the Board determined that the applicant is not a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the Board and directing the same panel, or any other panel, of the Board to declare that the applicant is a Convention refugee.
[3] In the alternative, the applicant seeks an order setting aside the decision of the Board and referring the matter back for reconsideration by a differently constituted panel of the Board.
Background
[4] The applicant, Iyare Abel Efese, is a citizen of Nigeria. The applicant alleges a well-founded fear of persecution on grounds that the Ogboni cult physically attacked him, threatened to kill him and would persecute him if he returns to Nigeria.
[5] A more detailed description of the applicant's claim is as follows. The Ogboni cult is a very influential secret society in Nigeria. The Ogboni cult is hierarchical and has members who are very influential people, including police officers, judiciary, military, governors general, and even kings. The applicant's father, who was a poor farmer, rose within the Ogboni organization to be second in command for all of Nigeria. When the applicant's father died in 1998, the applicant was asked by a member of the Ogboni to become a member so that he could attend the Ogboni burial of his father. Had the applicant chosen to join the Ogboni and allowed them to bury his father, the Ogboni allegedly would have removed his father's tongue, eyes, and private parts, and perform a ritual where the applicant would have been required to eat some of these parts. The applicant refused to join and buried his father before the Ogboni could assemble to do their burial. The Ogboni found out and were furious with the applicant. Members of the Ogboni attacked the applicant in four different incidents, and caused the applicant to be fired from his job. Although the police initially appeared to be receptive to the applicant's complaints, a police officer later told the applicant that he was a member of the Ogboni and that he could not help him. The applicant fled to Canada claiming that the Ogboni will kill him if he returns to Nigeria.
[6] The Board found that the applicant was not credible. The Board rejected the applicant's allegations about the Ogboni, in part, on the basis that the documentary evidence indicates that the Ogboni are not associated with violent crimes. In particular, the Board did not find the applicant to be credible in his allegation that the Ogboni cult physically attacked him, threatened to kill him and would persecute him if he returns to Nigeria.
[7] This is the judicial review of the Board's decision.
Applicant's Submissions
[8] The applicant submits that the applicant suffered persecution of a variety of forms which made his fear genuine and objectively well-founded.
[9] The applicant submits that the affidavit of Austin Biosah was a critical piece of evidence provided to the Board in support of the applicant's claim. The Biosah affidavit states that the Ogboni cult are rumoured to engage in rituals involving blood, and sometimes threaten violence against unwilling targets for recruitment or persons who have run afoul of cult members.
[10] The applicant submits that the Board acted unreasonably when it relied on its own documentary evidence over the evidence provided by the applicant. The applicant submits that the Board's documentary evidence was more relevant to Port-Harcourt and not to Benin City where the applicant's claim arose. The applicant submits that the Board acted unreasonably when it dismissed the Biosah affidavit.
[11] The applicant submits that the Board appeared to hold the applicant to a reasonable doubt standard but that the applicant was only required to demonstrate his testimony about the Ogboni cult was true on a balance of probabilities.
[12] The applicant submits that the Board has accepted in past decisions, on a balance of probabilities, that a Convention refugee claimant was persecuted by state agents acting on behalf of the Ogboni cult. The applicant submits that a recent decision of the Federal Court in Brown Nosakhare v. Minister of Citizenship and Immigration, 2001 FCT 772 per Tremblay-Lamer J. acknowledges that the Ogboni cult can be an agent of persecution.
[13] The applicant submits that the inconsistencies regarding when the applicant was fired from his job is not critical to the applicant's claim and, on its own, is not a reasonable basis for rejecting the applicant's claim.
Respondent's Submissions
[14] The respondent submits that the Board found the applicant not to be credible, noting that:
1. The central allegations of the applicant's story were inconsistent with the documentary evidence;
2. The applicant's testimony was inconsistent with his own documentary evidence on a material point, for which he could not provide a reasonable explanation; and,
3. There was a significant omission from the applicant's written narrative that the applicant could not satisfactorily explain.
[15] The respondent submits that the Board carefully analysed the documentary evidence and gave cogent reasons why it assigned more weight to the documentary evidence that it considered reliable and trustworthy, and less weight to the Biosah affidavit. The respondent submits that the Board is entitled to rely on documentary evidence in preference to the testimony provided by the claimant.
[16] The respondent submits that each Convention refugee claim is assessed on its own facts, so previous decisions of the Board do not demonstrate that the Board committed any error in assessing the evidence in this case.
[17] The respondent submits that the applicant failed to demonstrate that the Board erred in any manner in assessing the credibility.
[18] The respondent submits that the credibility decision of the Board can only be overturned by this Court where the findings of fact may be construed as perverse, capricious or made without regard to the material before it. The applicant submits that the Board's decision is reasonable and accordingly, this judicial review should be dismissed.
[19] Issues
1. Was the decision of the Board unreasonable?
2. Are the remedies sought available?
Relevant Statutory Provisions and Regulations
[20] The Immigration Act, R.S.C. 1985, c. I-2, as amended, defines a Convention refugee as follows:
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"Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or |
« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, |
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(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[21] Issue 1
Was the decision of the Board unreasonable?
The Board found that the applicant was not credible. As the trier of facts in Convention refugee claims, questions of credibility are within the jurisdiction of the Board. The level of deference given to credibility findings of the Board is referred to by Blanchard J. in the decision of Tariq v. Canada (M.C.I.) [2001] F.C.J. No. 738 (QL); 2001 FCT 465 at paragraphs 5 and 6 as follows:
Turning first to the issue of credibility, this Court has held that findings of credibility by the Refugee Division are given much deference. It is the Refugee Division who has the benefit of observing witnesses directly and are in the best position to determine credibility. As the Federal Court of Appeal states in Aguebor v. Canada (M.C.I.), (1993), 160 N.R. 315:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
In my view, the Refugee Division's finding of credibility cannot be characterized as patently unreasonable. The Refugee Division pointed to unclear answers given by the applicant, inconsistencies in the written and oral evidence, and supporting letters provided by the PPP which do not mention that the applicant was detained on a number of occasions for being a member of the PPP. The inference drawn from this evidence by the Refugee Division, that the applicant is not entirely credible, is not so unreasonable as to warrant intervention by this Court.
[22] The Board wrote:
The panel does not find it credible that the Ogboni are trying to kill the claimant because his allegations are inconsistent with the documentary evidence.
. . .
The panel also finds the following inconsistency significant because it concerns the sequence of events that are central to the claim - specifically, the timing of the Ogboni attacks. The claimant's letter from Joe-Phillips Technical Services, a former employer, was inconsistent with his oral testimony and his Personal Information Form (PIF) regarding the date when he was fired from his job. According to his oral testimony, the first attack took place on July 31 or August 1, 1998; the second on August 14, 1998; and the third on August 21, 1998. According to his PIF and oral testimony, he was fired some days after the third attack. However, the reference letter from Joe-Phillips Technical Services states that he worked there from October 15, 1998 to August 20, 1999. According to this letter, the claimant would have been working at Joe-Phillips for a year after his PIF states that he was fired from that company. When it was put to the claimant that he testified that he was fired after the third attack in August 1998, he said he didn't think he said something like that. The panel does not find this explanation reasonable.
[23] The Board pointed out that his Personal Information Form ("PIF") and his oral testimony stated that he was fired some days after the third attack by the Ogboni which was stated to have occurred on August 21, 1998. His reference letter from his employer, Joe-Phillips Technical Services stated that he worked there from October 15, 1998 until August 20, 1999. Thus, he would have been working for about one year after he stated in his PIF that he was fired. The applicant, when questioned about this, offered no reasonable explanation. In assessing credibility, the Board can take internal inconsistencies into account.
[24] The Board also noted in their decision, that the applicant did not state in his PIF that he complained to the police in August, 1999, after a cult member returned to ask for his father's body. The applicant stated to the officer at the port of entry that the members returned on August 1, 1999 demanding his father's body. He stated that he reported this to the police and the police told him not to come back. When he was asked why this was not in his PIF, the applicant said he could not recall that and could not explain that.
[25] As I have stated earlier, it is within the Board's jurisdiction to make findings on credibility. Based on the Board's explanation of the evidence, I am of the opinion that the Board did not err in making its credibility findings.
[26] The Board also stated that it preferred certain documentary evidence to the affidavit evidence of Nkai Biosah and gave the reasons why it preferred this evidence. The Board is entitled to do this and did not make an error in this respect.
[27] I am satisfied that the Board did not make any reviewable error in finding that based on the credible evidence before it, that the Ogboni were not trying to kill the applicant.
[28] The application for a judicial review is therefore dismissed.
[29] As I have not granted the application for judicial review, I did not address Issue 2 dealing with remedies.
[30] Neither party wished to submit a serious question of general importance for certification.
ORDER
[31] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 30, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2873-01
STYLE OF CAUSE: Iyare Abel Efese v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 21, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MR. JUSTICE O'KEEFE
DATED: April 30, 2002
APPEARANCES
Mr. Kingsley I. Jesuorobo FOR THE APPLICANT
Mr. Stephen Gold FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Kingsley I. Jesuorobo FOR THE APPLICANT North York, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada