Date: 20011011
Docket: IMM-6021-00
Neutral Citation: 2001 FCT 1102
Between:
Adebayo Olaitan ATANDAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated October 18, 2000, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a 40-year-old citizen of Nigeria who claims to have a well-founded fear of persecution due to an imputed political opinion.
[3] The Board determined that the applicant was not a Convention refugee due to a lack of credibility. In arriving at this determination, it noted a certain number of inconsistencies and implausibilities.
[4] In my view, the Board committed at least one significant error that immediately jumps to my attention. The Board placed a great deal of weight on a purported contradiction with respect to the applicant's brothers Olusegun and Olatunde. In its decision, the Board writes:
The claimant was questioned about his family. He was asked what his brother Olusegun did for living? He replied that he was a businessman and that he had an electronics store and a Cocao (sic) business. He was asked where that brother is now? He then said: he was dead. He was reminded that in earlier testimony and in his PIF, he had said that his brother Dolapo had been killed. At first, he said that he had not said that, then he replied that he made a mistake. He said he thought we had been talking about Olatunde Dolapo. Since the names Olatunde Dolapo and Olusegun did not sound at all alike and we were working through an interpreter, I did not find the claimant's explanation for this contradiction to be satisfactory. I considered this to be an important contradiction which undermined the claimant's credibility.
[5] It is evident in the above excerpt alone, that the applicant misunderstood the Board and believed that he was being questioned about his brother Olatunde, rather than Olusegun. Immediately preceding this line of questioning, the transcript reveals nearly thirty pages of questioning by the Board with respect to the applicant's brother Olatunde. Upon then being asked what Olusegun did for a living, he described his brother Olatunde's endeavours. The transcript reveals the applicant's confusion:
Board Tell me what your ... what does Olusegun do?
[. . .]
Applicant He has an electronic store. He's cocoa produce merchant.
Board Now, who are we talking about here? We're talking about ...
Applicant Olusegun, that's what you have.
Board Is he the fellow you worked for?
Applicant Is my brother that I work for.
Board This is the brother that belonged to all these parties?
Applicant Yes.
Board Okay. And his current whereabouts are where?
Applicant He's a dead man. He was the one that was killed in November 1999.
[6] In fact, earlier in the transcript the applicant clearly stated that his brother Dolapo Olatunde had died in November 1999. All of these answers are consistent with the belief that the applicant was being asked about his brother Olatunde, that is to say, that the Board was pursuing the same line of questioning as before. When the Board signalled the discrepancy, the applicant confirmed that he was in fact speaking of his brother Olatunde:
Board You said earlier that Dolapo was the brother that was killed.
Applicant When you look at my book, he is the man that is called Dolapo Olatunde.
[. . .]
Board Okay, sir, let's slow it right down here. At the beginning of testimony today, we established Dolapo called you to say he was going home from Cote D'Ivoire and that, then you got news that he was killed. Now you're saying it's the other one that was killed.
Applicant You asked me about Olusegun now?
Board Yeah. And you, sir, listen to me. So far today you now have said that two brothers, two different brothers have been killed.
Applicant No.
Board Sir, I'm sorry, but that's what you testified to. It's on the record. So, can you explain why right now you're saying Olusegun was killed and earlier when your counsel was questioning you you said that Dolapo had been killed.
Applicant We were talking about my brother. I thought you are making reference to Olatunde.
[7] Upon rereading the transcript as well as the Board's decision, I am convinced that the Board fundamentally misunderstood the applicant's evidence on this point.
[8] As such, I am of the opinion that the above error, being material to the finding of lack of credibility, was sufficient to taint the Board's entire decision (see, for example, Katalayi v. Minister of Citizenship and Immigration (October 31, 1997), IMM-179-97, at paragraphs 6 and 7). In the circumstances, I do not consider that the Court ought to substitute its appreciation of the facts to that of the Board, had the errors not occurred.
[9] Consequently, the application for judicial review is allowed, the decision of the Board quashed and the matter remitted for rehearing by a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
October 11, 2001
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