Date: 20051109
Docket: IMM-810-05
Citation: 2005 FC 1529
Toronto, Ontario, November 9, 2005
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
MOSHOOD ESHINKLOKUN ADARAMASHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for clarification and precision)
[1] This is an application for judicial review of the January 11, 2005 decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") where the Applicant was held to neither a Convention Refugee nor a person in need of protection.
[2] The Applicant, Moshood Eshinklokun Adaramasha, is a Christian Nigerian national. He claims to have a well-founded fear of persecution based on his political opinion. He claims to have a fear of the People's Democratic Party (PDP) of which he allegedly was a member and the Alliance for Democracy (AD) which rules his state, Lagos. Allegedly the AD is pursuing him because he was instrumental in mobilising people for the PDP. On the other hand, the PDP considers him a traitor and is after him for that reason.
[3] The Board was satisfied that the claimant is a citizen of Nigeria but found that one of the central issues to the claim was to determine whether the Applicant was an active member of PDP and was being targeted by the AD party members.
[4] In its decision the Board made the following finding.
The panel has valid reasons to doubt the claimant's assertions that he was a member of the PDP and that members of the AD party were targeting him.
The claimant presented a number of documents to support his contentions. The claimant presented a faxed copy of the PDP card to show that he was a member of the party. The original card was not presented at the refugee hearing but the panel accepted counsel's application post hearing but the panel accepted counsel's application post hearing to submit the original card. The claimant testified that his brother/cousin travelled to Jos to look for his documents and found his membership card in his shop and immediately faxed it to him. The panel notes that his card lacked specific information pertaining to the claimant, i.e. when he joined the PDP. According to the claimant's testimony he joined the PDP in 1999, however columns on this card start with the year 2001. When this information was pointed out, the claimant stated that it must be because he had his card renewed after he went to Jos. The panel does not find the claimant's explanation to be reasonable because the card makes no reference if it was renewed. The panel notes that the top corner on the right hand side of the card states the year as follows 2001, 2002, 2003, 2004 and provides space for each quarter. Although the claimant stated that he paid 1,000 naira membership fees every quarter, all the rows are blank and there is not sign that the claimant paid his dues. When this information was pointed out, the claimant initially failed to provide any explanation. Shortly after, he said that it might be intended to mark the presence of the people who attended the meetings.
Given the claimant's alleged profile that he was an active member since 1999 and had held the position of a leader of his constituency, the panel does not find it credible that the claimant had no knowledge about what information is provided on the membership card. Furthermore, the photograph on the top left corner of this card is totally blackened and is not recognisable. The panel notes that this document is completely silent as to when the claimant joined the PDP, his current standing within the party the claimant's address, etc. The panel does not find credible that a membership card would not mention the basic information needed to identify a person. This document is significant and goes directly to the basis of the claimant's alleged fear of persecution in Nigeria given that the claimant's entire problems stem from his PDP membership. There is insufficient credible or trustworthy evidence before the panel to find that the claimant was a member of the PDP. Given the earlier credibility concerns, the panel does not give any probative value to this card.
[5] There is no dispute between the parties that the standard of review for the assessment of identity documents is patent unreasonableness. (See De Connick v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 207; Chen v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 203; Acosta v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1291.)
[6] The Board allowed the Applicant to furnish the PDP membership card subsequent to the hearing. He did this via fax on December 29, 2004, indicating that the original was available for inspection if required. 2
[7] The Board had no evidence before it as to the nature of party membership cards in Nigeria. However, in the above cited excerpt from its decision it made the following findings:
1. The card lacked a date showing when the Applicant joined.
2. The card did not indicate that it was a renewal card.
3. The card did not display that the Applicant made quarterly payments, assuming the squares in the upper right hand are made for that purpose.
4. The card did not indicate the Applicant's standing in the party, when he joined, nor did it display his address.
5. The photo was totally blacked out and it was impossible to ascertain whether it was the Applicant or not.
[8] Given the total lack of evidence before the Board as to what a Nigerian membership card in a political party looks like, observations 1 to 4 amount to nothing more that unwarranted assumption. The board is imposing its conception as to what information a Nigerian political membership card should contain.
[9] The Respondent argues that the board is merely applying common sense. I fail to see what is common sense about assuming a membership card must display the Applicant's address, his status in the party, when he joined, or whether it is a renewal card.
[10] As to the photo, it was a faxed copy of the original. If there was any doubt about the photo, the Board could have asked for the original. Given that it is a picture of a black African man, it is not too surprising that his features are substantially unrecognisable in the faxed copy of the original. Although the Applicant offered to furnish it upon request, the Board never availed itself of that offer.
[11] Given the Board's admission that the finding concerning membership in the PDP was central to the Applicant's claim, I have to conclude for the reasons outlined above, the Board's finding amounted to unwarranted assumptions or speculation and thus does not pass the patently unreasonable test.
[12] Accordingly this application will succeed.
ORDER
THIS COURT ORDERS that the decision of the IRB dated January 11, 2005 is set aside and that the matter is referred back for reconsideration by a differently constituted panel.
"K. von Finckenstein"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-810-05
STYLE OF CAUSE: MOSHOOD ESHINKLOKUN ADARAMASHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 8, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: NOVEMBER 9, 2005
APPEARANCES:
Kingsley Jesuorobo FOR APPLICANT
Stephen Jarvis
John Pro FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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