Toronto, Ontario, September 28, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
IMMANUEL OLURANTI TUNDE-SOBIYE
(IMMANUEL OLURAN TUNDE-SOBIYE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated November 29, 2004 wherein the Board determined that Mr. Immanuel Oluranti Tunde-Sobiye (the applicant) was not a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a 39-year-old well educated citizen of Nigeria. His claim to refugee protection is based on his membership in an organization in Nigeria referred to as the Odua Peoples Congress (OPC) which he joined in June of 1998.
[3] The applicant asserts in his Personal Information Form (PIF) to have been attacked on three occasions by police and other members of the security forces due to his affiliation with the OPC.
[4] The three incidents mentioned but not described in the applicant's PIF are discussed in detail in his oral testimony. The first attack occurred in October 1999, at an OPC meeting when police started arresting and beating people. The second incident occurred a week later when three men came to search the applicant's house and left with a warning not to participate in OPC activities. The third incident occurred on November 8, 1999 at a meeting in Shumulu when the police began shooting into the crowd.
[5] In his oral testimony the applicant also makes reference to the two subsequent attacks described in his PIF. In August 2000, the applicant's home was attacked when he was not there, but his brother was severely beaten and later died from his injuries. In October 2000, the applicant claims to have been attacked by three "plain clothed" men following a presentation to an OPC meeting in Abeokuta, Ogun State.
[6] The applicant asserts that he left Nigeria on November 28, 2000, for Ghana, where he stayed for approximately two months, until February 2001. He arrived in Canada on February 10, 2001, and made a refugee claim some seven days later.
ISSUES
Did the Board err in making patently unreasonable credibility or plausibility findings?
ANALYSIS
[7] The Board has direct access to the testimony of the applicant due to its specialized nature in determining refugee claims. As a result, the Board is usually in the best position to assess the credibility of the applicant. Accordingly, it has been determined that the standard of review for findings of credibility made by the Board is that of patent unreasonableness. In Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A.) the Federal Court of Appeal stated at paragraph 4:
[...]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
This Court has found that the Board is entitled to make reasonable findings on credibility based on implausibilities, common sense and rationality (see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.). With that being said, Justice Reed in Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 para 11, makes reference to a list of established criteria to be utilized in determining when it would be appropriate to set aside a credibility finding of the Board. Part two of that list, which is outlined below, includes decisions based on implausibilites:
1. The Board did not provide valid reasons for finding that an applicant lacked credibility;
2. The inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. The decision was based on inferences that were not supported by the evidence; or
4. The credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
[8] Further in her decision Justice Reed specifically addresses decisions based on implausibilities and how they may be less immune from review by this Court. She states at paragraph 11:
[...]the statement therein that a decision based on implausibilities may be less immune from review than one in which credibility is questioned as a result of demeanour or evasiveness or conflicting evidence. This is because a reviewing court, depending upon the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
[9] The applicant claims that the Board made 6 unreasonable plausibility findings which in turn corresponds to grounds for the granting of judicial review. Each one of the claimed unreasonable findings will be analysed below.
[10] The first finding deals with theBoard concluding that it was unlikely for the applicant to undergo a background check in order to become a member of the OPC. The applicant submits that he did undergo a background check and that the Board based its decision on pure speculation. However, I find the Boards decision not to be patently unreasonable because clear justification is provided as to why it made the decision it did. As stated on page 6 of the decision, the Board's conclusions were based on the documentary evidence provided with regards to the OPC being declared an illegal organization composed of violent thugs.
[11] The second finding deals with the applicant's amendment to his PIF. In his original PIF, the applicant wrote that he feared OPC members as well as the Nigerian security forces and police. He later amended his PIF to remove his stated fear of OPC members. The applicant submits that the amendment was due to a typographical error and the Board's failure to properly take this into consideration is unreasonable. However, I am of the opinion that the Board gave satisfactory reasons for putting into doubt the credibility of the applicant based on the PIF amendment. The Board states in its decision on page 7:
That the reference is a simple error is difficult to accept, however, given the clear manner in which the agent of persecution is spelled out in the narrative, the claimant's high level of education, his fluency in English (the language of the PIF), and the fact he singed it as true.
[12] The third finding deals with the Board doubting why the applicant would tell three secret agents working for the government that he was an OPC member. The applicant submits that in making this determination the Board ignored the evidence he provided by oral testimony, whereby he stated that it was only after January 2000 that the police started openly repressing OPC members because of an issued government directive to do so. The applicant suggests that telling three secret agents that he was a member of the OPC was entirely credible seeing as he did it before January 2000. However, I agree with the Board's reasons when they say at page 8:
This is highly implausible, as the claimant was aware at the time that other members were being detained and brutally treated. In his own narrative, he alleged to have refrained from making a complaint to the police, out of fear of being associated with the OPC and beaten and detained as a result.
[13] Due to the applicant's own knowledge of the risks associated with belonging to the OPC, I find the Board was not patently unreasonable in doubting that the applicant would confess his membership to the secret police.
[14] The fourth finding concerns the applicant's explanation in justifying why the police came to look for him one year after their original visit to his home. As previously mentioned, the applicant submits that the police only became concerned about the OPC in January 2000, well after the initial visit to the Applicant's home and only a few months before coming again and killing his brother. As previously stated, the applicant mentions that a directive had been issued in January of 2000 for the police to repress OPC members. It is alleged by the applicant that such a directive explains why the police came to the applicant's house. In the transcript the Board mentions the directive and I am satisfied that they took it into consideration when making their decision. As such, I believe that their plausibility finding with regards to this matter was not patently unreasonable.
[15] The fifth finding deals with the Board's credibility judgement based on the applicant's brother's address. The Board found it suspect that the death certificate filed for the applicant's brother showed he lived at a different address from that of the applicant. The applicant submits that the Board should have been satisfied with the explanation that his brother had been residing with him at the time. However, I find that it was not patently unreasonable for the Board to question why the brother would be at the applicant's home if the address of his death certificate indicated he lived elsewhere. Reviewing the transcript, I also find that the applicant was not clear about where he and the other members of the family were living. (see page 540 and page 574 of the transcript)
[16] The final finding that I will address concerns the difference between the applicant's PIF and his oral testimony regarding when and where the alleged attacks took place. The applicant submits that there was no discrepancy between the PIF and the Applicant's oral testimony and that the Board erred in misconstruing the evidence.
[17] On this finding I agree in principle with the applicant, so does the respondent. In his PIF the applicant mentions being attacked three times. Unfortunately, he does not go into detail in describing those attacks but does go on to describe two subsequent attacks. The oral testimony differs from the PIF in that it describes the initial three attacks. The first occurred October 8, 1999, at a meeting in which the applicant was able to escape. The second occurred on or around October 16, 1999, in which the State and Secret Service came to the applicant's home. The third occurred one month later when the applicant was at a conference in Shumulu. After describing these first three initial attacks, the applicant then proceeded to mention the two subsequent attacks he had described in his PIF.
[18] The Board mistakenly misunderstood the applicant's oral evidence as being different from that of the PIF. It did not take into consideration that there were five attacks mentioned, only that the initial three in the PIF did not seem to correspond to the initial three mentioned in the applicant's oral testimony. I am of the opinion that the Board erred in making an adverse credibility finding based on a perceived difference in the PIF and oral testimony.
[19] Although it appears that the Board erred in a finding of plausibility, such an error is inconsequential given most of the Board's other negative findings of credibility and plausibility. Indeed, the Board listed numerous elements of the applicant's story which it either disbelieved or found to be implausible. One such story, as previously mentioned has to do with the applicant trying to explain that it was not him but an imposter who had applied for a CVV in 1999. As such the Board could not determine when the applicant actually arrived in Canada.
[20] On a cumulative basis, the plausibility and credibility findings of the Board were supportable on the evidence, and therefore, I am not persuaded that a basis has been shown for interfering with the Board's decision.
ORDER
THIS COURT ORDERS that
The application for judicial review be dismissed. Neither counsel suggested question for certification.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10492-04
STYLE OF CAUSE: IMMANUEL OLURANTI TUNDE-SOBIYE
(IMMANUEL OLURAN TUNDE-SOBIYE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 28, 2005
.
APPEARANCES:
Ronald Poulton For the Applicant
John Loncar For the Respondent
SOLICITORS OF RECORD:
Ronald Poulton
Barrister & Solicitor
Toronto, Ontario For the Applicant
Deputy Attorney General of