Date: 19990623
Docket: IMM-1326-98
BETWEEN:
HELEN IYEKEORETIN OSAROGIAGBON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.:
[1] The applicant seeks an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that found her not to be a convention refugee. Counsel argues that the cumulative effect of the errors and misstatements of evidence found in that decision leads to the conclusion that it must be set aside.
[2] The applicant's claim is a derivative one. She claims to be the object of persecution because her boyfriend, Captain John Ojo, was among those individuals sought by the military government of Nigeria for complicity in the coup attempt of 1995.
[3] The Board found the applicant lacked credibility because in its view she knew little about Captain Ojo. The Board doubted his existence because he was not mentioned in news reports, and particularly in a list prepared by Amnesty International, as a person who was sought or detained as a result of the alleged coup attempt.
[4] It is conceded by the respondent that the Board erred when it treated the documentary evidence as containing an exhaustive list of those persons who were sought or detained. It is clear on the face of the relevant document that it was not intended to be such, and indeed there are references in many of the documents to the fact that the identity of all persons falling into the above described categories was not
known.
[5] In addition, at least one of the pieces of information that the Board found the applicant did not know about Captain Ojo, appears to be a misstatement of the evidence. The Board states that the applicant did not know his age. Her evidence was that he was about 38-40 but that she did not know his exact age because in Nigeria men did not like to disclose their age or be questioned about it. The Board also placed a great deal of importance on the fact that while she had looked for Captain Ojo, after his escape, when she was in Nigeria, she had not continued any efforts to find him once she came to Canada. Part of her explanation as to why she did not continue to search for him, was because she was in Canada, not Nigeria. This does not seem to be an unreasonable explanation.
[6] At the same time, the fact that she did not know what military college he had graduated from, the name of his battalion or the type of military work and he did lends credence to the Board's decision, as does the contradictory evidence she gave concerning whether she visited Captain Ojo "occasionally" or "daily". Also, her first explanation that she did not continue to search for Captain Ojo, in Canada, because she was afraid her whereabouts would become known does not have the ring of credibility.
[7] I personally have a great deal of difficulty believing that this applicant would be arrested, kept in jail for such a long period of time, and allegedly abused as she was because her boyfriend (to whom she was not formally engaged) could not be located, and his whereabouts were unknown. Nevertheless, the Board has more experience in judging these cases than I, and that part of her story was not determined to be, on its own, impeachable. A judge is not entitled, on review, to rewrite the decision the Board gave.
[8] The decision to be made is whether the errors in the Board's decision, and particularly that relating to the evaluation of the documentary evidence, requires a setting aside of the Board's decision.
[9] The test is set out in subsection 18.1(4) of the Federal Court Act. The question to be asked is whether the CRDD:
| based its decision... on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. |
The CRDD summarized its decision as follows:
| The Refugee Division determines Helen Osarogiabon [sic] not [to] be a Convention refugee for the following reasons. The panel found the claimant's testimony not to be credible because of inconsistencies and implausibilities. The existence of a Captain Ojo who was detained and escaped is also not supported by the documentary evidence. |
[10] I must conclude that the subsection 18.1(4) test has been met and the decision should be set aside. An order will issue in accordance with these reasons.
"B. Reed"
Judge
TORONTO, ONTARIO
June 23, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1326-98
| STYLE OF CAUSE: HELEN IYEKEORETIN OSAROGIAGBON |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, JUNE 22, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: WEDNESDAY, JUNE 23, 1999
APPEARANCES: Mr. Munyonzwe Hamalengwa
For the Applicant
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD: Munyonzwe Hamalengwa
Barrister & Solicitor
2 Sheppard Avenue East, Suite 900
North York, Ontario
M2N 5Y7
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990623
Docket: IMM-1326-98
Between:
HELEN IYEKEORETIN
OSAROGIAGBON
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER