Date: 19990831
Docket: IMM-6440-98
OTTAWA, ONTARIO, THE 31st DAY OF AUGUST 1999
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
IBIYINKA WASIU THANNI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
M. Iveson
Date: 19990831
Docket: IMM-6440-98
Between:
IBIYINKA WASIU THANNI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board, in which the panel determined that the applicant is not a Convention refugee, as defined in subsection 2(1) of the Immigration Act.1
[2] The applicant, a citizen of Nigeria, claims a well-founded fear of persecution based on political opinion and in particular on the fact that he is an active member of an organization called EGBE OMO YORUBA (EOY) which militates for the autonomy of the YORUBA people.
[3] He was allegedly arrested on two occasions. During his first arrest on November 10, 1996, he was purportedly beaten and questioned about his membership in the EOY. He says that he was freed after his wife bribed the prison officials with a large sum of money.
[4] The applicant claims not to have had any problems with the Nigerian authorities until March 3, 1998. He says that on that date he participated in a pro-democracy demonstration and had pamphlets to promote the EOY in his possession. The applicant states that he was arrested during a security check conducted while he was using public transportation. He was allegedly detained for 9 days and was released after his wife once again bribed the prison authorities.
[5] The applicant claims that after his release, he went from village to village until the leaders of the EOY arranged for his escape to the Republic of Benin on March 21, and then to Ghana where he boarded a plane for New York on May 2,1998, and finally claimed refugee status in Canada on May 6, 1998.
[6] The panel found the applicant"s story implausible because of several contradictions in his testimony. It stated, however, that they were not important enough individually to result in an adverse finding. It was only the cumulative effect of these contradictions which led to this finding.
[7] Although I generally do not intervene in decisions involving an applicant"s credibility, I found only insignificant contradictions in the applicant"s testimony after carefully re-reading the PIF, the transcript and in particular the applicant"s explanations. The applicant answered the members" questions in detail; his explanations were reasonable and, in my view, could not justify the finding that his story was implausible.
[8] This situation is similar to the one in Attakora v. Minister of Employment and Immigration2 in which a zealous panel made a microscopic examination of the applicant"s testimony looking for contradictions, even though the explanations which had been provided were perfectly reasonable.
[9] Furthermore, I note that the panel said nothing about the evidence directly related to the claim. Two letters from the EOY were filed in evidence which confirm that the applicant was a member of this group. They also provided details about the persecution faced by the members of opposition groups.
[10] As this Court stated in Berete,3 "evaluation of the evidence is a matter within the panel's jurisdiction. However, the panel must first consider the record evidence and comment on it when it may have a serious impact on an applicant's claim. If the panel decides to disregard the evidence, it must clearly state the reasons why it placed no weight on it ".4
[11] I am also in complete agreement with the remarks of my colleague, Mr. Justice Evans, in Cepeda-Gutierrez: "the . . . burden of explanation increases with the relevance of the evidence in question to the disputed facts".5
[12] Moreover, although the panel may determine that there is a lack of credible evidence when it believes that a claimant is not credible and the only evidence before it emanates from his or her testimony,6 the panel (as I stated in Seevaratnam7 and Vijayarajah8) is nevertheless required to consider relevant evidence that does not emanate from the claimant"s testimony and that can establish a direct link between the claimant and the persecution. This was not done in the instant case.
[13] For these reasons, the application for judicial review is allowed. The matter is referred back for redetermination by a newly constituted panel.
[14] Neither counsel recommended that a question be certified.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
August 31, 1999.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6440-98
STYLE OF CAUSE: IBIYINKA WASIU THANNI v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 19, 1999
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED AUGUST 31, 1999
APPEARANCES:
MICHELLE LANGELIER
FOR THE APPLICANT
FOR THE RESPONDENT
PATRICIA DESLAURIERS
SOLICITORS OF RECORD:
MICHELLE LANGELIER
FOR THE APPLICANT
PATRICIA DESLAURIERS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 R.S.C., 1985, c. I-2.
2 99 N.R. 168 (F.C.A.).
3 Sire Berete v. Minister of Citizenship and Immigration (March 3, 1999), IMM-1804-98 (F.C.T.D.).
4 Ibid. at p. 4.
5 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (October 6, 1998), IMM-596-98, at para. 17 (F.C.T.D.).
6 Sheikh v. M.E.I., [1990] 3 F.C. 238 (F.C.A.).
7 Sukunamari Seevaratnam et al. v. MCI (May 11, 1999), IMM-3728-98 (F.C.T.D.).
8 Sasitharan Vijayarajah v. MCI (May 12, 1999), IMM-4538-98 (F.C.T.D.).
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