Ottawa, Ontario, January 23, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application is for judicial review pursuant to subsection 72(1) 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 May 10, 2006. The Board found that the applicant is excluded from refugee status and protection due to his complicity in serious non-political crimes, by virtue of article 1F(b) of the United Nations Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (the Convention).
ISSUE
[2] Did the Board err by concluding that the applicant is excluded from refugee status and protection by virtue of article 1F(b) of the Convention.
[3] For the following reasons, the response to this question is negative. Consequently, the present application shall be dismissed.
BACKGROUND
[4] The applicant is a 25-year-old male student and a citizen of Nigeria. On June 19, 2005, the applicant arrived at the P.E. Trudeau Airport in Montreal. He did not produce any identity documents, although a driver’s licence was found in his shoe. The applicant was detained until November 29, 2005 due to concerns about his identity and his desire to travel to the United States, which constituted a flight risk.
[5] The applicant submitted two Personal Information Forms (P.I.F.) consisting of two very different narratives. The first one was signed on June 29, 2005, and the second one on October 10, 2005.
First P.I.F. dated June 29, 2005
[6] The applicant stated in his P.I.F. of June 29, 2005 that he belonged to a university cult organization called the “Black Movement of Africa (Black Arks)”. The organization is in fact called the Black Axe, and not the Black Arks as the applicant wrote. The applicant described the history of how the cult organizations came into being, with their roots dating back to the days of colonial apartheid. He claimed that he was intimidated physically by this organization, which he joined after a friend persuaded him that he would not experience harassment from the cult if he was a fellow member. The applicant stated that he was wanted as a member because of the financial support he received from his father.
[7] The applicant wrote that when he joined, he believed the organization to be non-violent, and, that after being a member for approximately seven months, he became third in command. He said that the position was given to him because he was financially contributing to the organization more than any other member of the organization.
[8] The applicant also stated that when he discovered that the organization was engaging in violent activities, and using his funds to do so, he told the organization that he did not want to be a member any longer. The applicant claimed to have advised other members that they were on the organization’s death list. Shortly after this, the organization suspected the applicant was informing other members of the death list and put the applicant on their death list. He was notified of this and went into hiding. The applicant alleged that some police members were also members of cult organizations, thus could not be trusted. He declared that his father, mother and sister were taken hostage, and his sister was raped by members of the Black Axe. According to the applicant, the authorities did nothing about this incident. The applicant met an agent who brought him out of the country.
[9] Notes of a detention hearing of August 19, 2005 state that, during the applicant’s interview of August 11, 2005, the claimant maintained that he was third in rank in the Black Axe cult (Tribunal Record, p. 236). However, notes of a detention hearing of October 7, 2005 indicate that the claimant declared during the September 23, 2005 interview that his previous allegation of being third in command was not true, but that he was a simple member of the cult and the rest of his P.I.F. was true.
[10] The applicant now claims that the June 29, 2005 P.I.F. is a false narrative. He says that, while he was waiting for processing by Immigration Canada at the airport, he was counselled by another man from Nigeria, who shares the same ethnicity (Ibo) as the applicant. According to the applicant, this man told him that he had been deported through the immigration process in Canada before and advised the applicant not to make a refugee claim based on being a political activist, but that he should instead claim protection as a former member of a student cult. The applicant alleges that, fearing for his life, he followed the advice of this man.
Second P.I.F. dated October 10, 2005
[11] In his P.I.F. dated October 10, 2005, the applicant states that he is a student of Ibo ethnicity and a member of the MASSOB. He mentions that he became a member in September 2000 and that the movement is involved in “peaceful voicing for a sovereign state for Ibo people in Nigeria”.
[12] In his second P.I.F., the applicant describes activities MASSOB engages in, and also past activities that he participated in. He writes that the MASSOB members were attacked by Nigerian police and military during rallies and marches. In particular, the applicant contends that in November 2004, Nigerian State Security Service, while hunting for MASSOB members, broke into his house and battered his parents and sister. He also pretends that the State Security Service arrested 15 MASSOB members and executed them. The applicant went into hiding and eventually left Nigeria.
[13] In support of this P.I.F., the applicant provided an undated copy of his membership card, which was sent by his parents from the “zonal coordinator” of MASSOB; a letter to the applicant from MASSOB administrator Zeph Njoku; a letter to the applicant from his father, and a “Rustication Notification” to the applicant from the registrar of Enugu State University of Science and Technology.
The Minister of Public Safety and Emergency Preparedness’ Intervention
[14] On October 19, 2005, counsel for the Minister of Public Safety and Emergency Preparedness (Minister) submitted a notice of the Minister’s Intervention in the Board proceedings, raising the issue of the applicant’s exclusion from refugee protection on the grounds of the applicant’s membership in the Black Axe.
DECISION UNDER REVIEW
[15] The Board’s decision is based on the applicant’s credibility. The Board found that the timing of the applicant’s submission of his second P.I.F. coincided with the applicant becoming aware of the Minister’s interest in seeking the applicant’s exclusion from refugee protection on the grounds of the applicant’s membership in the Black Axe. The Board states as follows at paragraphs 6 to 8:
In his written submission, counsel wrote that, at the oral hearing, the claimant confessed to the falsehood of his initial declaration to his immigration officer before the exclusion issue was ever raised by the Minister (Par. 18). The tribunal has described earlier the sequence of events, as can be seen from the transcripts of the detention reviews. It is clear that it is only after the claimant had been made aware of the CBSA’s interest in seeking his exclusion that the claimant stated that he was a simple member of the Black Axe followed later by his conversion to the Massob story.
At the hearing, the claimant was questioned about the timing of his submission of his second narrative. He explained that, when he told his first counsel, Me Jack Hendler, that not everything was true and he wanted to change his PIF, Me Hendler told him that his credibility would be affected. He explained that, as Me Hendler did not want to listen to him, he changed his lawyer. (counsel at the hearing is the third one). Since the second PIF was received on October 19, 2005, the claimant was asked, but could not remember the month he changed counsel. He could also not remember how much time had gone by between the time that he prepared the second PIF and the Division receiving it. The PIF bears the signature date as being October 10, 2005, but the claimant said that he wrote the PIF 2-3 weeks earlier in September. He said that, at that time, his counsel told him to leave out the date. He explained further that the information about him, his identity, was true, but everything else in his first story, all 11 pages were false. Even the alleged rape of his sister in his first narrative (Page 7 line 52) is false. The story about him, with his father, saving Muslims from being killed (Page 10) is also false.
The tribunal notes the blame on the absent first lawyer, the onus placed on the second lawyer who is alleged to have told the claimant to not write the date when signing his PIF and the claimant’s forgetfulness about the date he prepared that second PIF, yet saying that it was written 2-3 weeks earlier than the date actually shown in the PIF. The detention review shows that the making of a second PIF was mentioned only about ten days before it was received. The tribunal finds this issue of the making up of a second PIF worth considering because the claimant is attempting to narrow the gap between the time he found himself forced to face the possibility of exclusion and his coming up with a second story as if it had always been there, just waiting to be told. The tribunal considers in its assessment the extent and length to which the claimant went in writing his first PIF that includes the alleged false allegations and the inconsistent and vague explanations for the making of the second one.
[16] The Board gave more probative value to the first P.I.F. than to the second. In particular, the Board stated as follows at paragraph 9:
The tribunal finds that those earlier declarations concerning the cults are more spontaneous, filled with abundant details as can be expected from a person very knowledgeable in the workings of the organisation in question and, therefore, should be given more probative value than the later ones.
[17] As well, the Board found that it was not plausible for the applicant to follow the advice of someone he did not know to fabricate a story that he was a member of a violent organization. Thus at paragraphs 10 and 11, the Board concluded as follows:
The claimant said that the man told him not to write his true story that he was a member of Massob, but to describe himself as belonging to the Black Axe; fearing to be deported back, the claimant stated that he was a member of the Black Axe. At the hearing, when he was asked why he would listen to someone he did not know and describe himself, not a member of a peaceful organisation, as Massob is perceived, but instead as a member of a violent organization, he explained again that the man at the airport told him not to refer to political problems. When he was confronted further with his being a university student, yet he would be declaring that he belonged to a group that kills people, he explained that he was then in a state of confusion.
The tribunal does not find plausible, much less reasonable, that a university student would listen to someone he does not know, who would have advised him not to tell an alleged true story of political persecution, but fabricated a story making the claimant a member of a violent organization, with which he was to apply for refugee protection. Moreover, in addition to the numerous details in the first narrative about the Black Axe, the narrative refers to other cults in Nigerian universities. The tribunal recalls that the detention review of August 19, 2005 (Exhibit A-3) indicates that, as the claimant told that he was third in rank in the Black Axe cult, he was informed that the CBSA would intervene to seek his exclusion from refugee protection. The tribunal finds that it is the first version, the one where the claimant admits having been a member of the Black Axe that should be granted probative value, the version about Massob being Plan B, a less than reliable story to which the tribunal, in following the reasoning behind the Taleb decision, does not grant any probative value.
RELEVANT LEGISLATION
[18] The relevant section of the Act states as follows:
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Exclusion — Refugee Convention 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
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Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. |
ANALYSIS
Standard of review
[19] Where questions of credibility are involved in assessing decisions to exclude applicants on the basis of section 98 of the Act, the standard of review is patent unreasonableness. The Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (F.C.A.) (QL) reviewed a decision by the Board to exclude an applicant on the basis of his membership in an organization involved in crimes against humanity and at paragraph 14, Justice Robert Décary stated:
In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase “patently unreasonable”). […]
Did the Board err by concluding that the applicant is excluded from refugee status and protection by virtue of article 1F(b) of the Convention.
[20] There is no dispute among the parties that the crimes committed by the Black Axe are serious non-political crimes. Thus, the main issue is whether the Board erred in finding that the applicant belonged to the Black Axe organization.
[21] The applicant argues that the Board erred by completely ignoring the applicant’s documentary evidence regarding his MASSOB membership. The applicant relies on Taleb v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 743 (F.C.T.D.) (QL) where the Court stated at paragraphs 4 to 7:
In the case at bar the tribunal noted contradictions, inconsistencies and omissions in his testimony as to the facts set out in the two P.I.F.s entered into evidence. In his first P.I.F., he stated that in July 1994 he was requested by the F.B.I. to organize the arrest, kidnapping and delivery to the U.S. authorities of the terrorist Hassan Ezzedine in return for $2 million and U.S. citizenship for himself and his family. In his second P.I.F. he only mentioned a proposal of surveillance, not kidnapping.
The tribunal considered that the first P.I.F. was closer to the facts since it was supported by other documentary evidence which confirmed that the applicant had had the responsibility of organizing the kidnapping of the terrorist.
It is for the Refugee Division, as a specialized tribunal, to assess the applicant’s credibility. In the circumstances, there is no doubt that the latter’s credibility was seriously comprised by his contradictions.
It was entirely appropriate for the tribunal to choose the version it found the more credible, especially as that version was supported by the documentary evidence. In these circumstances, the Court is not authorized to interfere in the tribunal’s assessment of the applicant’s credibility.
[emphasis added]
[22] The respondent submits that the Federal Court of Appeal in Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL) held that a “tribunal is assumed to have weighed and considered all the evidence presented to it, unless the contrary is shown”.
[23] The respondent also adds that the Board gave reasons why it preferred the content of the first P.I.F. over the second one, based on the evidence. It found the first one more credible, more spontaneous and closer to the facts than the later one. It also relied on the notes of the detention hearing of August 19, 2005, relating to the applicant’s interview of August 11 when the applicant maintained that he was third in rank in the Black Axe cult.
[24] The Board gave more probative value to the first P.I.F. and wrote detailed reasons for its conclusions on this subject. It has to be noted that it is only after more than three months that the applicant indicated that his first story was false. The evidence shows also that it is only after the applicant had been made aware that he could be excluded that he changed his story. Even though the applicant was in detention, he was always represented by a lawyer.
[25] The Court finds that it was entirely appropriate for the Board to conclude that it was the applicant’s first account which was credible and gave cogent reasons for preferring it (Rathinasigngam v. Canada (Minister of Citizenship and Immigration), 2006 FC 988, [2006] F.C.J. No. 1247 (F.C.) (QL) at paragraphs 21 to 26). It is in the inherent jurisdiction of the Board to weigh or assess the evidence. It is not the role of this Court to intervene unless important or pertinent evidence have been ignored or not considered, which is not the case here.
[26] Therefore, the Court’s intervention is not warranted.
[27] The parties did not submit questions for certification.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
« Michel Beaudry »
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3121-06
STYLE OF CAUSE: JONES ONYEKWERE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 11, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: January 23, 2007
APPEARANCES:
Annick Legault FOR APPLICANT
Normand Lemyre FOR RESPONDENT
Zoé Richard
SOLICITORS OF RECORD:
Annick Legault FOR APPLICANT
Montreal, Quebec
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec