Date: 20110616
Docket: IMM-6869-10
Citation: 2011 FC 711
Toronto, Ontario,
June 16, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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AKANBI NOAH OTAPO
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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 ORDER AND ORDER
[1]
The
present Application concerns a claim for refugee protection by a citizen of
Nigeria who identifies his persecutor as the police in Nigeria because of his
failure to pay them a bribe. The Applicant’s claim was rejected by the Refugee
Protection Division (RPD) on the basis of a global negative credibility finding,
which is dependent on two principal implausibility findings.
[2]
With
respect to the implausibility findings made, I find that the RPD reasonably
applied the correct approach as stated by Justice Muldoon in
the decision of Istvan Vodics v. Minister of Citizenship and Immigration,
2005 FC 783:
The tribunal adverts
to the principle from Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305, that when a
refugee claimant swears to the truth of certain allegations, a presumption is
created that those allegations are true unless there are reasons to doubt their
truthfulness. But the tribunal does not apply the Maldonado principle to
this applicant, and repeatedly disregards his testimony, holding that much of
it appears to it to be implausible. Additionally, the tribunal often
substitutes its own version of events without evidence to support its
conclusions.
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]
[3]
On the
basis of verifiable documentary evidence, the RPD properly established the
expectations that, because the Applicant did not pay a bribe he would be
arrested and would be beaten in custody, and his family would be arrested and
detained if he fled. In applying these expectations the RPD made the factual
findings that “neither in his oral nor written evidence did [the Applicant]
suggest that he was beaten or otherwise mistreated during his confinement
(Decision, para. 5), and “no member of the claimant’s family, including his
14-year old daughter has been arrested or detained by the police since he
absconded” (Decision, para. 10). The factual findings form the basis of the
implausibility findings.
[4]
With respect
to the first factual finding, the Applicant in his PIF states that he “was
beaten and intimidated by the police and two criminals” while in custody (Applicant’s
Application Record, p. 36), and with respect to the second factual finding, there
is no direct evidence on the record before the RPD concerning police misconduct
vis a vis members of the Applicant’s family. On the latter point I
accept Counsel for the Applicant’s argument that the issue of such conduct was
simply not engaged in the course of deciding the Applicant’s claim. As a
result, I do not accept Counsel for the Respondent’s argument that no
misconduct can be inferred from the fact that there is no evidence of such
misconduct on the record. As a result, I find that the factual findings are unsubstantiated.
[5]
As a
result, I find that the decision under review is unreasonable because it is not
defensible on the facts.
ORDER
THIS COURT ORDERS that:
The decision under review is
set aside and the matter is referred back to a differently constituted panel
for redetermination.
There is no question to
certify.
“Douglas
R. Campbell”
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