Date: 20090323
Docket: IMM-3544-08
Citation: 2009 FC 305
Ottawa, Ontario, March 23, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
STANLEY CHIDIEBERE IGBO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a judicial review of a decision of the Refugee Protection Division rejecting
the applicant’s claim for refugee protection. For the reasons that follow, the
application is allowed.
Background
[2]
Stanley
Chidiebere Igbo is a 34-year old citizen of Nigeria of Ibo ethnicity. In Nigeria,
Mr. Igbo was vocally opposed to the Movement for the Actualization of the
Sovereign State of Biafra (MASSOB). He claims that as a result, he began to
receive threatening phone calls from MASSOB, and went into hiding by sleeping
away from his home in Lagos. Armed men invaded his home in October, 2006, but
left when they discovered that he was not there. They returned nine days later
and threatened to shoot the applicant’s family if they did not produce him.
Since Mr. Igbo felt unable to obtain police protection, and had nowhere else
safe to go in Nigeria, he fled to Canada. He has been in Canada since December
2, 2006.
[3]
The
applicant was self-represented at his refugee hearing due to a failed legal aid
application. The RPD found that Mr. Igbo was neither a Convention
refugee nor a person in need or protection. The Board notes significant
credibility concerns and inconsistencies within the applicant’s narrative. Because
of these concerns, the Board accepted the objective evidence, which differed
from the applicant’s evidence, that MASSOB is a non-violent organization.
Furthermore, it was found that the applicant did not attempt to seek protection
from Nigerian authorities, and could not offer “clear and convincing proof” of
the state’s inability to protect him. The Board was of the opinion that since
MASSOB members are typically persecuted by Nigerian authorities, there was
insufficient evidence to show that an anti-MASSOB protester would have been
unable to seek state protection in Nigeria.
Issues
[4]
The
applicant raises three issues:
1. Whether
the Board erred in misstating the evidence and, as a consequence making
an adverse credibility finding;
2. Whether the Board erred in failing to fully apprise the
applicant of his right to counsel; and
3.
Whether the Board erred in failing to grant an implied request for an
adjournment.
I find no merit in the second and
third issues raised; however, there is merit to the first issue raised.
Analysis
CredibilityFinding
[5]
The
applicant submits that the Board erred in his appreciation of some of the
evidence at the hearing which he then relied upon to make an adverse
credibility finding. The Board writes:
Finally,
I note that in his PIF (signed December 18, 2006) the claimant
identified his Nigerian passport as a document he has or could obtain for the
hearing; however, at the hearing the claimant alleged that he destroyed the
passport while he was in Austria (November 26 to December 2, 2006). Although
the claimant was unfortunately not asked about this at the hearing, the
information provided is clearly inconsistent.
[6]
In
fact, there is no inconsistency as the passport that the applicant says he
could obtain from Nigeria was his “expired Nigerian passport”, not the current
passport that he destroyed in Austria.
[7]
The
credibility finding is significant because the Board relies, in part, on its
finding that the applicant was not credible when it turned to consider
whether MASSOB is or is not a violent group. The Board writes:
Given the
numerous credibility concerns identified above and the objectivity of the IRB’s
Research Directorate, I prefer the objective documentation (including the lack
of any indication that MASSOB members are violent in dealing with dissident Ibos)
to the subjective testimony of this claimant. I therefore find on a balance of
probabilities that state protection is available for the claimant.
[8]
The
respondent concedes that the Board erred in its analysis of the testimony regarding
the passports but submits that this error did not impact the decision reached
because there were other reasons offered as to why the Board found that the
applicant was not credible.
[9]
In
addition to the passport issue, on which the Board erred, it found five other
inconsistencies. There are worth examining individually.
[10]
The
first has to do with an inconsistency between the applicant’s PIF and his
evidence concerning his parents. The Board writes:
In
his PIF, the claimant neglected to list any parents. Under questioning, the
claimant alleged he has parents who are now American citizens living in Minnesota, United States of America, (U.S.A.).
He said the PIF omission was “a mistake”.
[footnote omitted]
[11]
The
use of the words, “under questioning” suggests that the evidence was not
forthcoming from the applicant; in fact, it was. The transcript reveals
that the Board member, who did all of the questioning, stated to the applicant
that the PIF did not mention his parents and he then inquired of the applicant
as to whether they were alive. The applicant responded that they lived in Minnesota.
If the applicant wished to hide his parents or provide testimony consistent
with the PIF, he would have lied. He did not. He was frank about their
existence and, when asked the reason for not listing them on the PIF, stated that
he thought the question asked only to list siblings, which he did. When it was
pointed out to him by the Board member that it asks that all immediate family
be listed, he responded “Oh so I made a mistake on my part.” I do not consider
this oversight to be as damning as the Board member apparently did.
[12]
The
second inconsistency relates to his period of work in Nigeria. The Board member
describes the inconsistency as follows:
In
his PIF the claimant wrote that the worked in Nigeria
from November 2000 until October 2006; however, in the hearing the claimant
said he last went to work sometime towards the end of September. Asked about the
inconsistency he replied that he had a boy who worked for him taking care of
his business (and by implication doing so in October). However, the claimant
soon thereafter stated that he sold all his cars in September except for one,
to raise the money to come to Canada. I note that “taking care of his
business” implies doing considerably more than selling one automobile.
[footnote omitted]
[13]
The
applicant was self-employed selling cars. He was asked when he last
went to work and he responded as follows:
It was, can I remember the date?
It was sometime in September, it was the end of September, I can’t remember
exactly the date.
[14]
The Board member then notes that the PIF indicates that he worked
to October 2006, and he responds “Yeah, because my business was still on.” He
goes on to explain that he had one car left to sell and that he had someone who
worked for him who “was taking care of the business”. I see no serious
inconsistency, if there is any at all. The PIF asks “list all employment,
including full-time, part-time, temporary and self-employment, beginning with
the most recent” and provides a from and to date column. One is self-employed
as long as the business operates even if one is not actually attending that
workplace.
[15]
The
third inconsistency is related to his timing of his decision to leave Nigeria. The Board member
writes:
More
importantly, I note that by saying he sold all his cars except for one in September
so he could come to Canada, the claimant is in effect alleging that he made his
decision to come to Canada based upon the anonymous oral threats he
received (including by telephone); his sister’s home was not invaded for the
first time until October 1, 2006. This testimony is not only inconsistent with
a natural reading of the PIF narrative that tacitly indicates the invasions
were a significant component of the claimant’s decision to leave Nigeria, but
it also raises a plausibility concern about the claimant deciding to flee his
country because of some threats for which he could not even identify the
perpetrators, other than that they were apparently members of MASSOB.
[16]
The
transcript indicates that the applicant’s evidence was that he was first
confronted by unknown persons in September 2006, in the marketplace and “they
told me, if I don’t stop the public campaigns, I would be dead”. He testified
that he took them seriously. He then began to sleep away from his sister’s
house where he lived. This, he testified, was on September 28, 2006, shortly
before the first time that they came to his sister’s house. They came a second
time on October 10, 2006, and made threats. He testified that he had stopped
buying new cars because he knew he was leaving Nigeria and that he had three
cars to sell; two were sold in September and one was left to sell, which it did
in October.
[17]
At
no time did the Board member put to the applicant that there was any
inconsistency in this evidence. On a fair reading of the transcript I am hard
to put to say that there is more than the possibility of a minor inconsistency
in the evidence. In fact, if he sold two of the cars in the last few days of
September, there is no inconsistency in his evidence. The Board member never
put that question to him. Thus, to suggest that there is an inconsistency is
unfair and unreasonable.
[18]
The
fourth basis for the credibility finding dealt with his lack of knowledge of
MASSOB. The Board member wrote:
The
claimant provided very little evidence other than his personal assertions to
establish his profile as a political activist who would be so outspoken against
MASSOB to incur their undying enmity. His knowledge of MASSOB was very
limited; he could not remember when MASSOB was formed and he incorrectly said
MASSOB is a very violent group, a comment that will be addressed more fully
below.
[19]
While it is true that the only evidence the applicant offered to
support his assertion that he was outspoken against the MASSOB was his own,
there was no evidence to the contrary. The applicant, I note, never called
himself a “political activist” – that was the Board member’s term. The
applicant gave the reason why he was opposed to the MASSOB, and it was based on
his understanding of the troubles the country had previously experienced when
that movement was active. He was not asked by the Board member to give
detailed knowledge of that organization and his reason for being opposed to
them did not require such knowledge. The Board member relies on the fact that
he did not know the date that MASSOB was founded. How is that relevant? How
many Canadians, whether supporters or opponents of any of our political parties,
know when they were founded? Lastly, on this issue, he relies on the “fact”
that the applicant states that they are a violent group. As noted above, the Board
member says this because he found the applicant not to be credible. His
reasoning on this latter point is circular: ‘I find that he is not credible
because he says they are violent and I find they are not violent because he is
not credible’.
[20]
The
last basis for the credibility finding relates to the fact that the applicant
did not go to get documents from his father’s home in Owerri before he left Nigeria. He writes:
The
claimant’s account of how he spent his time in Nigeria
after the first attach on his sister’s house defies credulity. He had already
said he sold his cars in September to raise money to come to Canada, when he stayed indoors after October 10, 2006 to get the
documents [sic] to leave the country, although he acknowledged he already had
his Nigerian passport. The only documents he seems to have obtained during the
approximately two-month period are the Nigerian driver’s license and a visa to Austria. I note he did not produce the school documents that he
alleged at the hearing were back in his home in Owerri in Imo State, although
there was no specific testimony as to why he could not have gone himself to
Owerri to obtain these and other documents.
[21]
The
issue of documents arose only because the Board member asked at the
commencement of the hearing whether he had any more documents to submit. The
applicant was not represented and the transcript makes it clear that the
initial reference to school documents was from the Board member saying that
they were the sort of documents that he was looking for. No doubt had the
applicant known that these would be important he would have tried to get them
before he left. There is nothing to indicate that he knew or had any reason to
know they would be important or relevant; thus there was no reason for him to
seek them out while he was in hiding.
[22]
In
summary, the Board member, in my view, conducted a microscopic review of the
evidence on which to base his credibility concern. In my view, his conclusion
on credibility, based on the record is unreasonable and does not meet the test
of transparency, set out by the Supreme Court in Dunsmuir v. New
Brunswick,
2008 SCC 9.
[23]
The
decision is unreasonable in this regard. It is not possible to assert with any
assurance that the same result would have occurred but for this unreasonable
finding. As a consequence, the application must be allowed. Neither party
proposed a question for certification, and there is none.
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