Docket: IMM-2852-11
Citation: 2012 FC 36
Ottawa, Ontario, January
11, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ANTHONY ARUBI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application by Anthony Arubi (the Applicant), pursuant to section 72(1)
of the Immigration and refugee Protection Act, SC 2001 [IRPA],
for judicial review of the decision of the Immigration and refugee Board (the
Board) dated April 11, 2011, concluding that the Applicant is neither a Convention
refugee nor a person in need of protection under sections 96 and 97 of the IRPA.
[2]
For
the reasons that follow, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant was born on June 7, 1969, in Delta State, Nigeria.
[4]
In
1999, the Applicant started working as an assistant in his uncle’s private
investigation business.
[5]
In
June 2004, the Applicant was introduced to Nuhu Ribadu, Chairman of the
Economic and Financial Crime Commission [EFCC] of Nigeria by an
acquaintance, Ahmed Bello, who worked for the EFCC. At the time, the Applicant was
investigating mostly cheating spouses or dishonest employees.
[6]
Mr.
Ribadu offered him a contract position to work on cases involving corrupt
government officials. According to the Applicant, he was hired because the EFCC
needed agents that were not corrupted. One of his assignments was to collate
information on former Delta State Governor, Chief James Onanefe Ibori, and more
specifically his corrupt practices during his tenure as governor. The
information would then allow convicting Mr. Ibori on charges of money laundering
and misuse of public funds.
[7]
The
Applicant started gathering evidence to establish that Mr. Ibori was involved in
illegal money transfers to different companies used as covers for money
laundering. The Applicant then submitted his findings to Mr. Ribadu through Mr.
Bello, who was supervising his work.
[8]
In
2008, the Applicant started to receive strange calls and death threats from
Julius Agambi. Mr. Agambi vowed to kill the Applicant for his role in bringing
charges of corruption against Mr. Ibori.
[9]
In
September 2008, the Applicant was shot at in a car, by men that were following both
him and his friend. The Applicant managed to protect himself by crawling and
hiding into a gutter. The attack occurred close to the Applicant’s residence on
Victory
Avenue,
in Warri. After the shooting, the Applicant went to the police to file a statement
but he was turned back because there was no officer to take his statement. The
Applicant returned to the station a second time but was told that it was
probably the act of armed robbers.
[10]
The
Applicant felt that his identity was compromised. Mr. Bello, his immediate
supervisor at the EFCC, suggested he move to Makurdi, in Benue State. One
evening, the Applicant went out with Mr. Bello for a drink. While in the
washroom, Mr. Bello was shot and killed by unidentified men. The Applicant
witnessed the scene and managed to escape the bar. He did not go to the police
because he felt they would not be of any help.
[11]
Believing
that his life was in danger, the Applicant fled to Lagos where
arrangements were made for his flight to Canada. In Canada, the Applicant
filed a refugee protection claim.
[12]
The
Board found that the Applicant was neither a Convention refugee nor a person in
need of protection in light of the many issues concerning the Applicant’s
credibility and inability to provide persuasive evidence to support his
allegations.
[13]
The
Board also determined that the Applicant did not demonstrate, on balance of
probabilities, that he would face harm under subsection 97(1) of the IRPA
if he were to return to Nigeria.
III. Legislation
[14]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or political
opinion,
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96. A qualité de réfugié
au sens de la Convention — le réfugié — la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions politiques
:
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(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
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a) soit se trouve hors
de tout pays dont elle a la nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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b) soit, si elle n’a pas
de nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in
need of protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
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97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
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(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
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a) soit au risque, s’il
y a des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à
sa vie ou au risque de traitements ou peines cruels et inusités dans le cas
suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by the person in every
part of that country and is not faced generally by other individuals in or
from that country,
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(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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Person in need of protection
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Personne à protéger
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(2) A
person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issues and standard of review
A. Issues
1. Did
the Board err in finding that the Applicant was not credible?
2. Did
the Board misconstrue the Applicant’s evidence or misrepresent certain facts?
B. Standard of
review
[15]
A
credibility finding is a question of fact that is reviewable on a standard of
reasonableness (see Lawal c Canada (Minister of
Citizenship and Immigration), 2010 FC 558, [2010] FCJ No 673 at para
11).
[16]
It
is also clear that questions of fact finding and assessment of the evidence fall
within the Board’s area of expertise and are reviewable on a standard of
reasonableness (see Theophile v Canada (Minister of Citizenship and
Immigration), 2011 FC 961, [2011] FCJ No 1177 at paras 16-17; Dunsmuir
v New-Brunswick, 2008 SCC 9 at paras 51 and 53 [Dunsmuir]).
The reviewing Court must determine “whether the decision falls within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (see Dunsmuir, cited above, at para 47).
V. Parties’
submissions
A. Applicant’s
submissions
[17]
The
Board writes, in paragraph 10 of its decision, that “As well, if indeed the
EFCC Director, Nuhu Ribadu, had concerns with having his staff investigate
James Ibori, he could have turned to the Criminal Investigation Department of
the Nigerian Police, who conduct investigations into fraud, as opposed to
relying on an inexperienced person, like the claimant, to do the work”. It is
submitted by the Applicant that the Board’s inference, with respect to the EFCC
appointing an inexperienced person to conduct an investigation instead of
referring Mr. Ibori’s case to the Nigerian police, is an exhibition of ignorance
of the process and powers of the EFCC in Nigeria.
[18]
The
Applicant alleges that the Board misconstrued evidence when it writes, in
paragraph 8 of its decision, that “the [Board] finds it implausible that the
Director of a high profile national agency would hire a 25 year old
inexperienced private investigator, whose experience essentially was made up of
spying on cheating spouses and dishonest employees, to investigate a senior
government official suspected of committing major fraud and misuse of public
funds”. It is submitted by the Applicant that he was actually 35 years old when
he was employed by the EFCC. The Applicant further submits that he already had
5 years of experience as a private investigator prior to receiving his
assignment for the Commission.
[19]
The
Board comments on the evidence adduced by the Applicant, in paragraph 9 of its
decision, that :
the letter … does not provide any dates
as to when the claimant actually performed these duties on behalf of the EFCC
or the period he was employed by the EFCC. The letter itself does not appear to
be authentic. The EFCC logo on the letter appears to be cut off at the top and
is visibly different from the logo as it appears both in an article in one of
the claimant’s exhibits, as well as, on the EFCC official website. The address
line in the letterhead has the city of Port harcourt spelled with the “h” in lowercase as
opposed to uppercase, as it appears in official references to the city. The
claimant’s counsel argued that the problems with the letter are simply a
reflection of the lower standards in Nigeria … The Panel is not persuaded that
a national agency such as the EFCC would not care about, or be able to ensure
the quality of its official stationary.
[20]
The
Applicant argues that the Board applied the Canadian standard to the Nigerian
system in its assessment of the authenticity of his letter.
[21]
The
Applicant claims the Board made a clerical error when it wrote, in paragraph 4,
that “James Agambi vowed to kill the [Applicant]” instead of Julius Agambi. As
much as it may be a minor error, the Applicant alleges that this confusion, with
respect to Mr. Agambi’s name, is a clear indication of the quality of the
Board’s decision.
[22]
In
paragraph 15 of its decision, the Board states that “no evidence was presented
to allow the Panel to conclude that the subsequent shooting of Ahmed Bello in
Makurdi, in anyway, involved the claimant, or that he was also targeted … One
would have expected assassins to have struck either before or after the
claimant left to go to the washroom if in fact he was also being targeted”. The
Applicant alleges that the Board is making unreasonable assumptions that assassins
all work the same way by making sure their target is where they anticipated it
would be.
[23]
The
Applicant submits that he established a reasonable likelihood of persecution
(see Adjei v Canada (Minister of Employment
and Immigration), [1989] FCJ No 67, [1989] 2 FC 680).
[24]
Finally,
the Applicant alleges that the Board failed to properly consider the
Applicant’s fear of the influence that James Ibori and his followers have in Nigeria.
B. Respondent’s
submissions
[25]
The
Respondent submits the Board reasonably determined that the Applicant’s
allegations of persecution were not credible.
[26]
The
Respondent alleges that given the nature of the Applicant’s experience as a
private inspector, it was open for the Board to find that it is implausible
that the Chairman of the EFCC would have hired him to investigate a state
governor for money laundering and misuse of public funds. Respondent further
reminds the Court that the Board is entitled to rely on common sense in
assessing the plausibility of an Applicant’s allegations.
[27]
The
Respondent argues that it is unlikely that the Chairman of the EFCC would have
relied on the Applicant to investigate Mr. Ibori as opposed to turning to the
Criminal Investigation Department [CID] of the Nigerian Police, who specializes
in investigating economical crimes.
[28]
The
Respondent underlines the shortcomings and irregularities in the letter filed
by the Applicant to corroborate his employment with the EFCC. The Board noted
several shortcomings in the letter. Firstly, it failed to provide the date of
the Applicant’s employment. Secondly, the EFCC’s logo appeared to be cut off of
the letter and was visibly different from the logo of the EFCC’s official
website and several exhibits submitted by the Applicant. Finally, the city of Port
Harcourt
was spelled in the lowercase “h”. The Respondent argues that the Board properly
weighed and assessed the veracity of the document and reasonably concluded that
it was not authentic.
[29]
Furthermore,
no evidence was presented before the Board to establish that the shooting in
Makurdi involved the Applicant. Respondent claims the Board reasonably
concluded that the Applicant would also have been struck before or after he
went to the washroom if he really was targeted.
[30]
Applicant’s
testimony was rejected and his documentation was found to be unreliable by the
Board. Thus, the Applicant’s claim of persecution must fail since it is
impossible to establish a link between his claim and the evidence adduced.
[31]
The
Applicant argues that the Board misconstrued evidence and misrepresented facts
as his age is incorrect in the decision and James Ibori’s agent is not James
Agambi but Julius Agambi. However, the Respondent responds that the Board’s
errors are minor and immaterial as it is clear that it understood and grasped
the issues raised by the Applicant’s claim. These errors do not affect the
reasonableness of the decision as a whole.
[32]
Finally,
the Respondent submits that, in rejecting the Applicant’s claim under section
96 of the IRPA, the Board found there was no nexus between the harm
feared by the Applicant and one of the Convention grounds. The Board concluded that
the attack in Warri was anything other than an act of criminality. That finding
is not challenged by the Applicant.
VI. Analysis
1. Did
the Board err in finding the Applicant was not credible?
[33]
The
Board found that the presence of credibility issues in areas central and
material to the claim were sufficient to refuse the Applicant’s written
narrative and oral testimony with respect to the events on which he based his
claim. The Applicant’s lack of credibility lead the Board to determine there was
no nexus to Convention grounds under section 96 of the IRPA.
[34]
One
of the most important issues dealt with the authenticity of the letter corroborating
the Applicant’s employment with the EFCC. The Applicant argues that the Board
applied the Canadian standard to the Nigerian system when it concluded that the
letter presented several discrepancies. In Rasheed v Canada (Minister
of Citizenship and Immigration), 2004 FC 587, [2004] FCJ No 715, Justice
Martineau writes, in paragraph 19 of his decision: “I am ready
to accept that the basic rule in Canadian law is that foreign documents
(whether they establish the identity or not of a claimant) purporting to be
issued by a competent foreign public officer should be accepted as evidence of
their content unless the Board has some valid reason to doubt of their
authenticity”. In order for the Board to doubt of the authenticity of a
document, “there must be some evidence before the Board on which to base a
finding that a document is not genuine, unless the problem is apparent on the document’s
face (Kashif v Canada (Minister of Citizenship and Immigration),
2003 FCT 179)” (Jacques v Canada (Minister of Citizenship and
Immigration), 2010 FC 423, [2010] FCJ No 487 at para 14 [Jacques]. In
Jacques, Justice O’reilly writes, at para 16:
[16] As I read these cases, they stand for the simple proposition
that in deciding whether a document is genuine, the Board must rely on some
evidence. In some cases, the evidence will come from other documentary evidence
or testimony at the hearing. In others, the necessary evidence will be on the
face of the document itself. In either case, the essential question will be
whether the Board's conclusion was reasonable in light of whatever evidence was
before it”…
[35]
The
facts in the present case are somewhat analogous to the ones in Jacques which
dealt with the authenticity of a letter of corroboration. The Board based part
of its finding on imperfections in the appearance of the letter and clerical
errors that are not necessarily determinative in the assessment of a fraudulent
document. The Board did not impose a Canadian standard to the Nigerian system,
but it failed to take in consideration that clerical errors are possible even
in countries where public administration have access to vast resources. The
Court acknowledges that the Board made an error but it is not sufficiently
material to completely undermine the Board’s decision.
[36]
As
to the issue of Applicant’s experience as a private investigator, the Board
concluded that it is “implausible that the Director of a high profile agency
would hire a 25 years old inexperienced private investigator, whose experience
essentially was made up of spying on cheating spouses and dishonest employees,
to investigate a senior government official suspected of committing major fraud
and misuse of public funds”. “A lack of credibility can be based on implausibilities,
contradictions, irrationality and common sense” (see Sun v Canada (Minister of
Citizenship and Immigration), 2008 FC 1255, [2008] FCJ No 1570 at para
5). In this case, this conclusion was open to the Board.
[37]
The
Board’s credibility findings with respect to the shooting in Warri is also
reasonable. In Kaur v Canada (Minister of
Citizenship and Immigration), 2006 FC 1120, [2006] FCJ No 1399 at para
9, Justice Lemieux writes that :
[9] It is settled law that credibility
findings made by the Refugee Protection Division are findings of fact where the
reviewing court can intervene only if it finds the tribunal "based its decision or order
on an erroneous finding of fact that it made in a perverse or capricious manner
or without regard to the material before it" as set out in subsection
18.1(4)(b) of the Federal Courts Act, a standard
which is equivalent to the standard of patent unreasonableness.
[38]
The
Board’s conclusion is reasonable since there was no evidence brought forward by
the Applicant to demonstrate that an attempt was made on his life in Warri. The
Applicant alleges he went to the police but no police report was issued. They
advised him that the men who attacked him were likely armed robbers. It was
reasonable for the Board to conclude that the Applicant was unable to provide
any persuasive evidence to support his allegations.
[39]
This
issue is central to the Board’s credibility finding as it demonstrate that,
even if the Applicant had worked for the EFCC, he did not face any risk to his
life. It also supports the Board’s conclusion on Applicant’s claim under section
97 of the IRPA.
[40]
The
Board concluded the Applicant had failed to demonstrate that, it is more likely
than not, that he would face a risk to his life, a risk of cruel and unusual
treatment or punishment, or a danger of torture should he return to Nigeria.
The Board determined the Applicant was not involved in the attacks in Warri or
in Makurdi. The Board also noted the Applicant’s presence in the washroom when
Mr. Bello was assassinated in Makurdi. It consequently concluded that the
Applicant was not targeted since he would have been shot by the assassins.
[41]
The
Board was entitled to rely on common sense and rationality to reject evidence
that is not consistent and improbable (see A.M. v Canada (Minister of
Citizenship and Immigration), 2011 FC 964, [2011] FCJ No 1187 at para
50). It was reasonable for the Board to determine that assassins would have
struck at the same time if indeed the Applicant was targeted.
[42]
According
to the Board, the Applicant would not be subjected to an individualized risk of
harm under section 97(1) of the IRPA. The Board’s finding is reasonable
and falls within the range of possible and acceptable outcomes.
2. Did
the Board misconstrue the Applicant’s evidence or misrepresent certain facts?
[43]
The
Board did not err in its assessment of the evidence and did not misrepresent
certain facts.
[44]
The
Applicant alleges that the Board erred in its decision when it misrepresented
certain facts of the case. The Board writes that the Applicant has 25 years of
age instead of 35. It also writes that James Agambi vowed to kill the Applicant
instead of Julius Agambi.
[45]
These
errors are not misrepresentation of the facts of the case. The Board
incorrectly referred to the Applicant as being 25 years old rather than 35. Its
reasoning with respect to the implausibility that the EEFC would have hired the
Applicant is based more on his lack of experience in investigating high profile
public official than his age. Similarly for Mr. Agambis first name. These errors
are not determinative in the Board’s decision and do not undermine its
conclusion.
VII. Conclusion
[46]
The
Board’s errors do not ultimately affect its decision. Consequently, the Board’s
decision is reasonable and the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
this
application for judicial review is dismissed; and
2.
there
is no question of general importance to certify.
"André
F.J. Scott"
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