Ogbebor v. Canada (Minister of Citizenship and Immigration), 2001 FCT 490

Date: 20010516

Docket: IMM-275-00

                                                                                        Neutral Citation 2001 FCT 490

BETWEEN:

                                           MACAULEY JESSE OGBEBOR

                                                                                                                              Applicant

                                                                  - and -

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                         Respondent

                                                  REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]                Macauley Jesse Ogbebor (the "applicant"), a 23 year old male citizen of Nigeria, in this judicial review application, seeks to set aside a December 14, 1999 decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") which denied his claim for refugee status in Canada based on a well-founded fear of persecution from the Nigerian military authorities because of the political opinions he held as a supporter of the cause of democracy in Nigeria.

[2]                The context of this judicial review application is somewhat unusual because the applicant conceded at the opening of the hearing changed circumstances in Nigeria resulted in his having no well-founded fear of persecution should he return to Nigeria. Counsel for the applicant said he is still a Convention refugee, however, and invoked the exception contained in subsection 2(3) of the Immigration Act which essentially provides that a person does not cease to be a Convention refugee if the person establishes there are compelling reasons arising out of any previous persecution not to return to Nigeria.

THE APPLICANT'S CLAIM

[3]                In his Personal Information Form ("PIF"), the applicant recites in 1994, he started selling magazines and newspapers from his kiosk located in Benin City, Nigeria.

[4]                He tells of two men from the State Security Service coming to his kiosk on May 25, 1997 and arresting him because he was selling magazines and newspapers critical of the government of the day. He alleges he was kept in prison (Ogida Police Barracks) for over one year and was severely ill-treated.

[5]                On May 28, 1998, he wrote in his PIF he was able to persuade a new police officer to convey a message to his relatives to collect money for the payment of a bribe. His father paid the bribe; the applicant was released but on condition of going into hiding because he had not been officially released and it was risky for him to be caught. He then fled the country with the assistance of an agent.

THE TRIBUNAL'S DECISION

[6]                The tribunal assessed the applicant's subsection 2(3) Immigration Act claim -- compelling reasons not to return to Nigeria because of the harshness of his past persecution -- on the basis of credibility. It found the applicant's story neither credible nor trustworthy. In other words, it did not believe the applicant had been persecuted in the past and found he did not fit into the special and limited category of persons envisaged by the Federal Court of Appeal's decision in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (F.C.A.).

[7]                The tribunal "found the claimant's testimony laced with statements that contradicted his narrative and the information provided to the psychologist during a psychological assessment conducted on October 5, 1999". The tribunal found "the inconsistencies and gross contradictions inherent in the oral evidence of the claimant at the hearing led the panel to conclude that the claimant's story is neither credible nor trustworthy and, as such, does not support his claim that there is a serious possibility that he would be persecuted, should he return to Nigeria". [emphasis mine]

[8]                The tribunal provided these examples of contradictions or omissions:

(1)        In his PIF the applicant, while mentioning he was severely ill-treated in prison, did not mention any rape or provide any details about the physical mistreatment at the hands of his captors and inmates while in prison. However, he provided a detailed account of these alleged abuses during his testimony. The tribunal noted he had also provided substantial details to the psychologist in Canada. The tribunal said the applicant told the psychologist the inmates raped him. Yet, in oral testimony, he described how a guard raped him as did "the boss of the place". The tribunal saw a discrepancy, confronted him and found he "initially could not provide an explanation for the discrepancy, but later said he was raped by both." The tribunal was also concerned that despite having provided the psychologist with intimate details of the rapes, he had not mentioned them in his PIF. The tribunal noted his answer that he wanted to provide the details at the hearing.

          (2)        The tribunal said the applicant failed to mention the injury to his eye he received in prison, and that he told the psychologist he required surgery. However, the tribunal referred to his testimony that the first time he had consulted a doctor about his eye was three days before the hearing and was not told what the problem with his eye was. The tribunal found he was unable to provide it with an explanation for the discrepancy.

(3)        He told the Refugee Claims Officer ("RCO") at the hearing his family would kill him on his return to Nigeria because they blamed him for the death of their father who was said to have been killed in late 1998 by the Nigerian authorities because they could not find the applicant after his escape from prison. The tribunal referred to the applicant's testimony he first learned in February 1999 of his father's death through correspondence received from his sister, but, in earlier testimony, had stated his sister had phoned him about it on the evening his father died. The tribunal said the applicant could not provide any explanation for the discrepancy.

           It noted he completed his PIF in December 1998 indicating his father was then deceased. This contradicted his testimony he was informed of his father's death through his sister's February 1999 letter. Again, the tribunal found the applicant could not provide any explanation for the discrepancy.

           The tribunal summed up this way, at page 4 of its decision, the inconsistencies related to his communications with his sister and when he learned of his father's death:

The panel reminded him that his earlier testimony indicated that he was unable to contact his family before he received his sister's letter in February 1999 because he did not have her telephone number. The claimant responded that he knew about his father's death before he received the February 1999 letter because his sister had called him the night of his death. The panel notes that the letter begins with the words "This is to inform you that daddy is dead. He died at the early hours of yesterday 8^th November 1998". Why would the claimant's sister send him the letter with these words on November 9^th, 1999, when according to the claimant's testimony she had actually spoken with him the night of his father's death which was the night before? The panel finds the claimant's story implausible. In addition, the claimant could not explain how his sister was able to communicate with him in the first place since, according to the claimant's testimony, his family did not know his whereabouts.

(4)        The tribunal identified a discrepancy between which members of the family he feared. He told the psychologist he feared his younger brothers but in testimony only mentioned his older ones. It concluded he could not explain the discrepancy. The tribunal said the numerous inconsistencies in the applicant's testimony led it to question the validity of the claim. It said "[O]n the whole, the oral evidence submitted by the claimant was fraught with inconsistencies and contradictions" and "it was clear to the panel that the claimant was attempting to mislead us and was embellishing as he went along."

(5)        The tribunal then focussed on when the applicant received his identity documents which is tied up with his communications with his sister as noted above. The tribunal concluded he had changed his story from what he had previously testified as to when his sister was first able to contact him.

[9]                The tribunal concluded at page 5 of its decision:

Having taken into account the contradictions put forth in evidence by the claimant, and the absence of any reliable corroborative evidence pertaining to the actual circumstances of the claimant, the panel is not satisfied, on a balance of probabilities, as to the credibility of the claimant's account of events. Given that the panel does not believe the events as described by the claimant ever occurred, it finds that there is no credible or trustworthy evidence to establish an objective basis for his fear of persecution based on his political activities or his political opinion. [emphasis mine]

THE POSITION OF THE PARTIES

(a)        The applicant

[10]            Counsel for the applicant challenged some but not all of the credibility findings made by the tribunal.

[11]            He argued the tribunal misconstrued the medical report and his testimony as to who raped him. Counsel argued the psychologist's report and the applicant's testimony are clear: both the guards and the prisoners raped him. There was no contradiction.

[12]            Counsel concedes the applicant did not mention the abuse in his PIF and could have drawn an unfavourable conclusion but only if it had considered all of the evidence which included his statement to the psychologist he was "extremely ashamed".

[13]            In terms of his eye injury, counsel for the applicant says the tribunal misconstrued the evidence and made an irrational finding. He says the tribunal set up a contradiction when none existed.

[14]            A similar argument is put in respect of the tribunal's finding of who he fears -- his younger or older half brothers. He argued a review of the evidence clearly shows the applicant explained how the misunderstanding between he and his psychologist arose.

[15]            Counsel for the applicant then points to the following statement by the tribunal on the cumulation of inconsistencies:

Each one of these examples of lack of credibility alone may not have been sufficient to impeach the claimant's credibility in its totality. However, cumulatively, the panel found that the claimant's testimony was not credible or trustworthy. [emphasis mine]

[16]            Counsel for the applicant sums up his argument by submitting the question before me is whether these errors are enough to set aside the tribunal's decision and in order to answer this I must weigh its decision and decide, with these errors, whether the decision was inevitable.

(b)        The respondent's counter

[17]            The respondent reminded me the only issue before the Court was the proper application of the exception provided in subsection 2(3) of the Immigration Act, that is, based on Federal Court case law, whether the tribunal erred in finding there were no compelling reasons arising out of any previous persecution for the applicant to refuse to avail himself of the protection of Nigeria. The respondent argued subsection 2(3) should be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to the special and limited category of persons who have suffered such appalling persecution. Their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.

[18]            The respondent submitted the tribunal considered the psychological report submitted by the applicant but, however, in the light of its credibility concerns, it found it could not give much weight to it. Because it did not believe the entirety of his claim, there was nothing left for the tribunal to consider under subsection 2(3) of the Act not being persuaded he fell into the special and limited category of persons envisaged by that subsection.

[19]            The respondent argued there was no evidentiary basis upon which a subsection 2(3) claim could be established by the applicant because of the lack of underlying trustworthy evidence particularly in the light of what was behind the applicant's fear of returning to Nigeria: what he had undergone in prison.

[20]            The respondent conceded the tribunal had misconstrued the evidence in respect of the sexual assaults by raising a contradiction which did not exist: the rape by the guards versus the rape by the prisoners. Counsel for the respondent also agreed this contradiction had not been put by the tribunal to the applicant.

[21]            Notwithstanding these concessions, the respondent argued the tribunal's decision should stand because: (1) the applicant's PIF had not mentioned the rapes and the applicant could not explain the omission; (2) his explanation about his eye injury and his need for surgery did not satisfy the tribunal; (3) the confusion about who he feared in his family is supported by the evidence and while he did provide an explanation, the tribunal's conclusion on this point was not unreasonable considering the whole of the evidence; and (4) the findings which the applicant did not challenge, namely the contradiction surrounding his father's death and his communication with his sister.

ANALYSIS

(a)        The relevant legislative provisions

[22]            I set out below the relevant statutory provisions found in the Immigration Act relevant to this case:

(b)       The scope of subsection 2(3) of the Act

[23]            The tribunal relied upon Canada (Minister of Employment and Immigration) v. Obstoj, supra, to set the scope of subsection 2(3) of the Act.

[24]            In Obstoj, supra, an adjudicator and a member of the Refugee Division had determined Ms. Obstoj had a credible basis for her claim but given present day changed circumstances in Poland, there was no realistic possibility of her suffering persecution if she were returned there.

[25]            The credible basis tribunal in Obstoj, supra, went on to hold, in view of the evidence of her having been beaten by the Polish secret police during an interrogation which resulted in lasting injury to her kidneys, there were compelling reasons for her refusing to avail herself of the protection of Poland.

[26]            Justice Hugessen in Obstoj, supra, defined the purpose of subsection 2(3) as follows at page 748:

... that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.

The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. I can think of no reason of principle, and counsel could suggest none,why the success or failure of claims by such persons should depend purely upon the fortuitous circumstance of whether they obtained recognition as a refugee before or after conditions had changed in their country of origin. [emphasis mine]

[27]            The Federal Court of Appeal recently considered a question related to subsection 2(3) of the Act in Yamba v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 457.

[28]            In Yamba, supra, Robertson J.A. concluded the Refugee Division is under an obligation to consider the applicability of subsection 2(3) of the Act once it is satisfied refugee status cannot be claimed because of a change in country conditions under paragraph 2(2)(e). He added this:

This conclusion does not detract from the fact that subsection 2(3) imposes the evidentiary burden on the claimant to "establish that there are compelling reasons" for not returning to the country in which the past persecution arose. [emphasis mine]

[29]            Justice McKeown in Arguello-Garcia v. Minister of Employment and Immigration (1993), 64 F.T.R. 307, considered the purpose and scope of subsection 2(3) of the Immigration Act.

[30]            As to its purpose, Justice McKeown looked to the UNHCR Handbook for the proposition subsection 2(3) is based on a general humanitarian principle which permits a person who has suffered serious past persecution to retain and obtain Convention Refugee status despite fundamental changes in his country of origin. He quoted the Handbook as follows at paragraph 10:

It is frequently recognized that a person who -- or whose family -- has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in attitude of the population, nor, in view of his past experiences, in the mind of the refugee.

[31]            Justice McKeown, picking up on the words "atrocious" forms of persecution in the UNHCR Handbook and Justice Hugessen's words in Obstoj, supra, of a person who had suffered such appalling persecution, examined the meaning of these two words (atrocious and appalling) and said this at paragraph 12:

In my view, the torture and sexual assault experienced by the applicant qualify as "atrocious" and "appalling"... the right not to be subject to torture and cruel, inhuman, and degrading treatment is a fundamental right which enjoys the highest international protection.

(In the case, Justice McKeown found the applicant had been detained for 45 days, suffered serious physical abuse, suffered sexual abuse and had experienced the killing of relatives).

[32]            Justice McKeown also found the tribunal failed to consider the negative or psychological effect of past persecution. He said there was ample evidence before the tribunal to show the applicant continued to suffer severe psychological hardship as a result of the serious persecution he and his family members had suffered in El Salvador and he noted a psychiatric report entered in evidence at the hearing stated the applicant was suffering from Post-Traumatic Stress Disorder related to his personal and family history of violent persecution, torture and massacre.

[33]            Justice Rothstein in Hassan v. Minister of Employment and Immigration (1994), 77 F.T.R. 309, said this at paragraph 11:

While many refugee claimants might consider the persecution they have suffered to fit within the scope of s. 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Section 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants

[34]            Justice Noël in Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 89 F.T.R. 106, concluded his analysis by saying this at paragraph 25:

[ 25] It seems clear, having regard to Obstoj and Hassan, supra, that the Board erred in construing s. 2(3) as requiring ongoing fear of persecution. The Board, once it embarked upon the assessment of the applicant's claim under s. 2(3), had the duty to consider the level of atrocity of the acts inflicted upon the applicant, the repercussions upon his physical and mental state, and determine whether this experience alone constituted a compelling reason not to return him to his country of origin....While I have serious doubt as to whether the claimant can, in this instance, meet the high threshold established by the case law, this is a matter for the Board to decide after consideration of the relevant factors.

(c)        Assessment

[35]            As I read this Court's jurisprudence a tribunal, before considering the application of subsection 2(3), must find past persecution which, but for changed circumstances, would have entitled the claimant to refugee status.

[36]            I do not think there is any doubt the tribunal here refused to make a finding of past persecution of the applicant. It did not believe his story, namely, that he had been thrown in prison because of his political opinions and, while there, was brutalized.

[37]            This credibility finding was the lynchpin to its subsection 2(3) determination:

Since the panel does not believe the claimant's story in its entirety, there is nothing left to consider in relation to section 2(3) of the Act. In the present claim, given the panel's credibility findings, the panel is not persuaded that the claimant falls into the "special and limited category of persons" envisaged by section 2(3) of the Act.

The panel concludes that there is no serious possibility that the claimant would be persecuted in his country of origin.

[38]            In my view, the applicant can only succeed in this judicial review application if he can demonstrate the credibility findings made by the tribunal are not supportable at law -- were patently unreasonable.

[39]            Counsel for the respondent rightly conceded the tribunal had erred in finding a contradiction about who raped the applicant. The tribunal's finding was based on a serious and faulty misinterpretation of the evidence.

[40]            I am also of the view the tribunal was wrong to level a criticism at the applicant for not mentioning the rapes in the narrative portion of his PIF. In this respect, it ignored the psychologist's comment that "further probing revealed Mr. Ogbebor feels extremely ashamed about the fact that he was raped".

[41]            As for the eye injury, the tribunal was, I believe, too eager to find a discrepancy about this injury which he did not specifically allude to in his PIF. What the transcript reveals is he told the psychologist and his doctor his eyes were disturbing him and his doctor was setting up an appointment with a specialist. While he is not certain, he believes he may need surgery. There was no discrepancy.

[42]            The tribunal asked for a clarification of who he fears in his family. The tribunal said he was unable to provide an explanation. With respect, the applicant did provide an explanation and the tribunal should have commented on it before rejecting it, as it had the right to do.

(d)        Conclusion

[43]            Having found the tribunal had no evidentiary basis to make three of its five credibility findings, the issue is whether the Court's intervention is warranted because it is not any credibility finding which justifies sending a case for redetermination. The error must be central or material to the decision reached (Owusu v. Canada (Employment and Immigration Commission), [1988] F.C.J. No. 434 (F.C.A.); and Mahathmasseelan v. Minister of Employment and Immigration, 137 N.R. 1 (F.C.A.).

[44]            In my view, the tribunal's decision must be set aside for the following reasons:

(1)        The inconsistencies or implausibilities which were not supported by any evidence relate to aspects which are central to the applicant's fear: his having been thrown in jail and brutalized. The contradiction about who raped him in jail relates to this central aspect as does his eye injury.

(2)        I do not find the other unsupported credibility finding -- whether he feared revenge from his older or younger half brothers -- central to his fear.

(3)        The credibility findings which are sustainable in the record are not important to the core of his story when he received his identity papers and when he communicated with his sister.

(4)        I do find, however, and this was not challenged by the applicant's counsel, the applicant was not credible as to when he knew of his father's death, a central aspect of his claim because he is said to have been killed by the authorities because of the applicant's flight.

(5)        The tribunal acknowledged that each one of the examples it gave may not have been sufficient to impeach his credibility; it was the cumulation of them which led the tribunal to totally disbelieve the applicant.

[45]            In the circumstances, I am not in a position to determine whether, but for these errors, the tribunal's decision would not have been different.

DISPOSITION

[46]            This judicial review application is allowed, the tribunal's decision is set aside and the applicant's claim is to be redetermined by a differently constituted panel.

[47]            The certified question proposed by the applicant related to the obligation of the tribunal to give reasons for a section 69.1(9.1) of the Immigration Act finding do not arise in the circumstances. No certified question is formulated.

                                                                                            J U D G E           

OTTAWA, ONTARIO

MAY 16, 2001