Date: 20051123
Docket: IMM-502-05
Citation: 2005 FC 1581
Ottawa, Ontario, November 23, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
OLUSEGUN BANKOLE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Bankole, a citizen of Nigeria, seeks judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, (the Board) wherein the Board determined that he was not a Convention refugee or a person in need of protection.
[2] Mr. Bankole claimed that he was a member of the Alliance for Democracy (AD) party but switched his allegiance prior to the 2003 general elections to the Peoples Democratic Party (PDP). He claims that because of this, he was harassed by members of his former party on two occasions. On July 16, 2003, he was confronted and verbally assailed but there was no physical violence. On August 20, 2003, he was physically attacked by members of the AD at a gas station, which resulted in personal injuries and damage to his car. Mr. Bankole says that he was admitted to hospital and the incident was reported to the police but they took no action.
[3] In November 2003, unknown persons entered Mr. Bankole's residence disguised as robbers. These individuals destroyed his belongings but took nothing. The applicant believes that these persons were in fact not robbers but people intent on eliminating him because of his political opinion and his political involvements in Nigeria. The applicant did not report the incident to the police, but claims that his party, the PDP did. Shortly thereafter, Mr. Bankole decided to leave his country and left his family behind in Nigeria. He arrived in Canada on December 7, 2003 and made a claim for protection on December 10, 2003.
[4] The Board determined that the applicant's claim had no credible basis and offered detailed reasons for this decision, including implausibilities in his testimony, testimony inconsistent with the documentary evidence on country conditions in Nigeria, unreliable supporting documentation, and contradictory testimony. The Board also found that adequate state protection was available to the applicant from the police authorities in Nigeria.
ISSUES
[5] Two issues were raised by the applicant in these proceedings.
1. Did the Board make findings which were capricious or perverse?
2. Whether the conduct of the Board failed to observe the principles of natural justice and procedural fairness?
STANDARD OF REVIEW
[6] The applicable standard for the review of the Board's factual determinations is that defined in paragraph 18.1(4)(d) of the Federal Court Act. The Court can only intervene if it considers that the Board "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it." This corresponds to the standard of patent unreasonableness. (Mugesera v. Canada(Minister of Citizenship & Immigration), [2004] 1 F.C.R. 3, 2003 FCA 325)
[7] When considering an allegation of a denial of natural justice, a court need not engage in a pragmatic and functional analysis of the standard of review. The content of the duty of fairness is for the Court to decide; Mugasera, above, at paragraph 37; Demirovic v. Canada(Minister of Citizenship and Immigration), 2005 FC 1284. In other words, was there a breach of the duty amounting to a denial of natural justice in the particular circumstances of the proceeding under review.
Did the Board make findings which were capricious or perverse?
[8] The applicant submits that the Board was overzealous and microscopic in scrutinizing his evidence and did not consider that the difficulties found might stem from his cultural perspective and milieu of origin: Valtchev v. Canada (Minister of Citizenship and Immigration), (2001) 208 F.T.R. 267, 2001 FCT 776 at para. 7.
[9] Moreover, the applicant contends, as stated in Attakora v. Canada (Minister of Employment and Immigration.) (1989), 99 N.R. 168 at 170 (F.C.A.): "[w]hether or not the applicant was a credible witness...does not prevent him from being a refugee if his political opinions and activities are likely to lead to his arrest and punishment." The applicant submits that even where a Board makes negative findings of credibility it is required to consider credible evidence pertaining to the objective basis of the claim. (Tharmalingam v. Canada (Minister of Employment and Immigration.), [1994] F.C.J. No. 1227 (F.C.T.D.) (QL); Seevaratnam v. Canada (Minister of Citizenship and Immigration), (1999) 167 F.T.R. 130 (F.C.T.D.))
[10] Further, the Board failed, in the applicant's submission, to take into account certain documentary evidence which supported the applicant's claim. In particular, the applicant refers to evidence respecting the actions of police towards members of the ruling party, politically motivated violence and killings in Nigeria against members of the ruling PDP and evidence regarding state protection and the corruption of the police in general.
[11] The respondent cites several findings by the Board supporting the overall determination that his claim was not credible: 1) he was not a high profile member of the AD political party prior to his switch to the PDP; 2) his medical documentation was not reliable and had little probative value; 3) information in a police report was inconsistent with the applicant's testimony about the attacks; and 4) the applicant's testimony was inconsistent with the objective documentary evidence concerning the political situation in Nigeria.
[12] The respondent further submits that in the absence of clear and persuasive evidence to the contrary, the Board is presumed to have considered all of the evidence on the record:Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.) and Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL).
[13] In my view, it was open to the Board to make the findings which it reached regarding the implausibility of certain of the applicant's explanations and the inconsistencies and contradiction in his evidence. None of these findings were patently unreasonable. Nor did they stem from cultural differences or misperceptions. They were firmly grounded in the frailties of the evidence tendered by the applicant in attempting to meet his burden. This was essentially conceded by the applicant in arguing that, notwithstanding its credibility findings, the Board should have found that his fear of persecution was made out on the objective evidence.
[14] Having determined that there was no credible or trustworthy evidence to link the applicant's claim to his story of alleged persecution and to the objective evidence regarding political life in Nigeria, I am not convinced that the Board was then obliged to assess the claim against all of the documentation on human rights in that country: Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537, 2002 FCA 89. Nonetheless, I am satisfied that the Board did carefully consider the objective evidence before arriving at its decision.
[15] There are no grounds for finding reversible error in the Board's treatment of the evidence.
Was there a breach of procedural fairness?
[16] The applicant submits that the Board member's statements and questions at various times during the hearing demonstrated a hostile attitude towards him and gave rise to an apprehension of bias. He submits that the member prevented him from answering the questions in an organized manner. While the applicant was responding to a question, for example, the member would cut him short thus preventing him from elaborating on a matter that was important to the proceeding.
[17] The respondent contends that rather than interfering with the applicant's efforts to present his evidence, the Board member frequently intervened on behalf of the applicant to assist him in adducing aspects of his claim. He adjourned the proceedings on one occasion to allow the applicant to secure additional evidence.
[18] While the member may appear from the transcript to have expressed frustration at times, the respondent says, this was entirely due to the difficulty encountered in obtaining responsive answers from the applicant to relevant and uncomplicated questions about his claim. Indeed, the applicant's counsel at the Board hearing conceded in his final submissions that his "evasive" answers had made the proceedings more difficult than might otherwise have been the case.
[19] It is apparent from the transcript that the Board member took a very active role in the proceedings before him. His comments, at times, could be interpreted as sarcastic, impatient or condescending. An example can be found at page 325 of the Certified Tribunal Record when the claimant had stated that he feared a return to Nigeria because of "indiscriminate" killing. That might suggest that the applicant's fear was related to a general level of violence in the country rather than to persecution against him specifically, a relevant line of inquiry. The following exchange occurred when the member asked him to explain what he meant by "indiscriminate":
Claimant: What I mean, indiscriminate is with respect to myself or what I did, or helped my new party to win, it felt I was (inaudible) help my new party to win. So, that is why I was being discriminated against.
Presiding Member: Okay, but discrimination is not the basis for a refugee protection claim. I hate to rain on your parade.
At the end of a protracted line of questioning of a similar nature the member then says:
Presiding Member: Thank you. Twelve questions later we finally got it out of you. Answer the questions. Never mind the political speech, or anything else, just answer the question. That's all it takes. Twelve questions it took to get that out of you. It doesn't feel very good; does it? It's a lot of extra work over here for your counsel; it's a lot of extra work for me; and it's a long [sic] of agony for you. Answer the questions. It's so simple for you.
[20] While the Board member correctly attempted to elicit a clarification from the applicant on this point, the manner in which he pursued this line of questioning was, in my view, inappropriate. There are other examples in the tribunal record where the member spoke sharply to the applicant where his answers appeared to be circuitous or unresponsive. But do these excerpts, which read in isolation appear troubling, indicate a denial of natural justice or an apprehension of bias when the entire record of the hearing is considered ?
[21] I note that no objection was raised during the hearing about the manner in which the member conducted the proceedings. To the contrary, as noted above, the applicant's hearing counsel chose to characterize his client's answers as evasive and unhelpful. The failure to object at the hearing can amount to an implied waiver of any breach of natural justice that might have occurred: Yassine v. Canada(Minister of Employment and Immigration) (1994) 27 Imm. L.R. (2d) 135, 172 N.R. 308 at para.7 (F.C.A).
[22] In determining the content of the duty of fairness owed by an administrative tribunal, the Court must guard against imposing a level of procedural formality that would unduly encumber efficient administration: Ha v. Canada(Minister of Citizenship and Immigration), [2004] 3 F.C.R 195, 2004 FCA 49;Khan v. Canada(Minister of Citizenship and Immigration), [2002] 2 F.C. 413, 2001 FCA 345.
[23] A panel hearing a claim for refugee status must be allowed reasonable latitude, consistent with its statutory mandate, in questioning a claimant. Extensive and energetic questioning alone will not, in itself, give rise to a reasonable apprehension of bias: Osorio v. Canada (Minister of Citizenship and Immigration) 2005 FC 1459; XXXX v. Canada(Minister of Citizenship and Immigration) 2005 FC 1499.
[24] Questioning which amounts to a "badgering" cross-examination of the claimant will amount to a denial of a fair hearing, particularly where coupled with other procedural irregularities: Herrera v. Canada (Minister of Citizenship and Immigration), 2004 FC 1724; Sandor v. Canada (Minister of Citizenship and Immigration) (2004), 266 F.T.R. 311, 2004 FC 1782.
[25] Having reviewed the transcript closely, I am not persuaded that the manner of questioning in this case amounted to a denial of procedural fairness in the conduct of the hearing despite my concerns about specific excerpts. Overall, the transcript discloses that the member went to considerable lengths to obtain the applicant's complete evidence and to attempt to clarify the contradictions and inconsistencies in his testimony. The hearing as a whole, while flawed, was not unfair.
[26] The test for an apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker consciously or unconsciously would not decide the matter fairly: [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 395, (1976) 68 D.R.R. (3d) 716. I am unable to arrive at that conclusion. The applicant has not satisfied me that the test has been met.
[27] The parties submitted no questions of general importance for consideration and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No questions are certified.
" Richard G. Mosley "
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