Date: 20120522
Docket: IMM-5625-11
Citation: 2012 FC 615
Ottawa, Ontario, May 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RICHARD PAULINUS AHONSI JOHNSON
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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
[1]
The
Applicant, Richard Paulinus Ahonsi Johnson, contests a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
August 10, 2011, finding that he was not a Convention refugee or person in need
of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27.
I. Facts
[2]
The
Applicant is a Nigerian citizen. His refugee claim in Canada is based on
a fear of his stepmother, who he alleged revenged the loss of her son with the
murder of his mother and sister. He claimed that this led him to go into
hiding and eventually flee the country. He also insists that his stepmother
took over his father’s estate.
II. Decision
Under Review
[3]
The
Board considered the determinative issue to be the Applicant’s credibility. He
did not provide clear and convincing evidence corroborating the murders of his
mother and sister. There were no witnesses or police report related to their
murder by members of the community at the direction of his stepmother. The
Board found it implausible that he would not have followed up with police on
these alleged murders. Moreover, the certificates of death did not indicate a
cause of death.
[4]
The
Board also determined it was implausible that as the Chief Executive Officer of
the family business, the Applicant “would simply allow his stepmother to attack
his mother and sister and then to ultimately take over the estate without any
response.” It was similarly improbable that the Applicant “would not enlist
the support of the police or lawyers in prosecuting or opposing his
stepmother.”
[5]
Despite
the Applicant’s claim that he would be recognized in other Nigerian cities of Ibadan and Port
Harcourt
because his family name is unique and extended family members live throughout
the country, the Board noted that there was no evidence to support these
assertions. It found an Internal Flight Alternative (IFA) would be available
to the Applicant in those cities.
[6]
Finally,
the Board gave little weight to the Applicant’s assertion that he did not
attempt to seek state protection because “police are easily bribed and that he
could not count on them for protection.”
III. Issue
[7]
The
application raises the following general issue:
(a) Is
the Board’s decision reasonable?
IV. Standard of Review
[8]
Issues
of fact and credibility are reviewed according to the reasonableness standard (see Aguirre
v Canada (Minister of
Citizenship and Immigration), 2008 FC 571, [2008] FCJ no 732 at paras
13-14). This standard also applies to the determination of an IFA (Galindo
v Canada (Minister of Citizenship and Immigration), 2011 FC 1114, [2011]
FCJ no 1364 at para 18) and state protection (see Mendez v Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at
paras 11-13).
[9]
In
considering reasonableness, this Court must have regard to “the existence of
justification, transparency and intelligibility” and whether the decision falls
“within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[10]
The
Applicant raises various concerns with the Board’s assessment of his credibility
as based on erroneous findings of fact. For example, the reasons state there
were no witnesses to the murder of his mother and sister, although the
Applicant testified that his neighbours were present and informed him of what
transpired while he was away. The Board refers to the death certificates of
his sister and mother as not listing a cause of death but did not address that
they had the same date, an indication that the death was not of natural causes.
The Board faulted the Applicant for not producing a police report without
mentioning his testimony that his uncle unsuccessfully followed up with police.
According to the Applicant, documentary evidence was also presented as to
related persecution in Nigeria.
[11]
I
agree that there are issues associated with these factual findings. While it
is open to the Board to attribute little weight to the some of the Applicant’s
evidence, these misstatements and lack of fulsome analysis raise questions
regarding the reasonableness of its approach.
[12]
The
Board suggests that much of the Applicant’s story is simply implausible. It is
appropriate to make implausibility findings based on rationality and common
sense (see Shahamati v Canada (Minister of
Employment and Immigration), [1994] FCJ no 415). However, this Court also stressed
in Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, [2001] FCJ no 1131 at para
7:
[7] A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear implausible
when judged from Canadian standards might be plausible when considered from
within the claimant's milieu. [see L. Waldman, Immigration Law and Practice
(Markham, ON: Butterworths, 1992) at 8.22]
[13]
Based
on this reasoning, I do not consider the Board’s credibility findings that
significant aspects of the story were simply implausible justified in the
circumstances. In light of the evidence, the facts and analysis remain
unclear.
[14]
I
also find the Board’s consideration of the availability of an IFA and state
protection unreasonable. Although the Board clearly considered and rejected
the Applicant’s responses, its basis for doing so without any reference to
documentary evidence as it relates to the suitability of the IFA and problems
of police corruption is not evident.
[15]
As
a whole, the Board’s decision does not demonstrate the existence of
justification, transparency and intelligibility.
VI. Conclusion
[16]
For
this reason, I am allowing the application for judicial review and remitting
the matter back to a newly constituted panel of the Board for reconsideration.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is allowed and the matter is remitted back to a newly constituted panel
of the Board for reconsideration.
“ D.
G. Near ”
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