Docket: IMM-6224-10
Citation: 2011 FC 1194
Ottawa, Ontario, October 20,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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LEKAN AKINOSHO
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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]
This
is an application for judicial review by Lekan Akinosho challenging a decision
by a Pre-Removal Risk Assessment Officer (Officer) which denied his claim to
humanitarian and compassionate (H & C) relief. In a collateral decision,
the Officer also rejected Mr. Akinosho’s application for a pre-removal
risk assessment (PRRA).
[2]
Mr. Akinosho
arrived in Canada from the United
States
in 2002. Within a short time, he sought refugee protection on the basis of allegations
of political persecution arising from his work as a journalist and human rights
advocate critical of the governing regime in Nigeria.
[3]
The
Immigration and Refugee Board (Board) rejected Mr. Akinosho’s claim to
protection on the basis that he lacked credibility and because he failed to
produce reasonably expected corroborating evidence. Of particular concern to
the Board was Mr. Akinosho’s failure to produce copies of his supposedly
frequently published criticisms of the Nigerian authorities. The Board
rejected Mr. Akinosho’s evidence that this omission was an innocent
mistake and concluded that the missing evidence was readily accessible to
Mr. Akinosho. The Board also doubted his explanation for not producing it because
he had been able to produce press clippings to verify his role in the student
union between 1986 and 1990. The Board also found his explanation for failing
to produce a press card that he had left with his father in Nigeria to be
unreasonable because he had known to produce evidence from Canada describing
him as a journalist in exile. The Board dismissed this evidence from Canada because it
failed to verify the sources relied upon and because it was self serving.
[4]
Because
of the lack of reliable corroborating evidence from Nigeria, the Board
did not believe that Mr. Akinosho was a journalist or a human rights
activist. It also found, in the alternative, that because of a political
regime change, he would not be at risk if he returned to Nigeria.
[5]
The
Board also did not believe Mr. Akinosho’s evidence of arrest and torture
in 1989, 1992 and 2001. The Board based that finding on several omissions,
contradictions and inconsistencies in the evidence he produced. These included
a failure to recall details of the material events in 2001, a contradiction
about the source of an injury to his eye, a failure to mention in his Personal Information Form
(PIF) that he had been tortured in custody, an absence of documentary evidence
to verify his involvement in serious rioting in Lagos in 2001 and a
contradiction about whether he was in hiding after being released from
custody. These testimonial deficiencies were of sufficient significance that
the Board found Mr. Akinosho not to be credible and it rejected his
evidence of persecution.
[6]
Mr. Akinosho’s
applications for a PRRA and for H & C relief were based on precisely the
same risk narrative that he had unsuccessfully advanced to the Board. The only
difference was that he attempted to bolster his evidence by providing
corroborative evidence to the Officer in the form of his Nigerian Press Card,
copies of additional press clippings he had written, accounts of persecution of
other journalists in Nigeria, a letter from his mother and correspondence from
Amnesty International which purported to verify his Nigerian history as a
journalist and human rights activist.
[7]
Mr. Akinosho’s
PRRA was rejected because he had failed to produce any new evidence in the form
of materials that were not reasonably available at the time of his refugee
hearing. The Officer correctly held that most of the documentary evidence Mr. Akinosho
had presented (ie. Amnesty International letters, press clippings, press
card) could have been put to the Board and, therefore, could not be considered
in a subsequent PRRA. The additional materials he presented dealing with the
risks faced by journalists in Nigeria and his mother’s letter
were found to be inapplicable to his personal circumstances or insufficient to
overcome the Board’s previous adverse credibility findings.
[8]
Counsel
for Mr. Akinosho contends that the Officer had a duty in the context of
the H & C application to consider the new evidence of risk, whether or not
it was admissible in the PRRA. He maintains that, in the absence of any
specific reference, this evidence must have been overlooked. He also argues
that the Officer confused the tests for assessing risk as between a PRRA and a
H & C application. Finally, he argues that the Officer’s decision was
perverse in the sense that it was inconsistent with the evidence that
Mr. Akinosho was a journalist in Nigeria and, therefore,
remained at risk there. None of these arguments have merit.
[9]
I
accept that had the Board been given the information apparently later obtained
by Mr. Akinosho, it may have come to a different conclusion about the
extent of his journalistic activity in Nigeria. But this
evidence would not have rehabilitated his credibility with respect to many of
the material contradictions, omissions and inconsistencies identified by the
Board in his evidence.
[10]
The
Officer was entitled to pay deference to the Board’s credibility findings and,
indeed, it is well established that, like a PRRA, a H & C application is
not a back-door appeal from a failed refugee claim. This point was addressed
by Justice Marc Nadon in the following passage from Hussain v Canada (MCI), 97 ACWS
(3d) 726 at para 12 (FCTD), [2000] FCJ no 751 (QL):
12 I should note that before Mr. St.
Vincent on their H&C application, the Applicants proceeded on the basis
that Mr. Hussain was a member of the MQM, notwithstanding the clear findings
made by the Refugee Board and by the PDRCC Officer to the contrary. The
Applicants seem to be of the view that if they continue to add documents to the
record, the credibility findings of the Refugee Board are somehow going to be
"reversed" or "forgotten". In my view, that is a mistaken
view because the officer who hears an H&C application does not sit in
appeal or review of either the Refugee Board or the PDRCC Officer's decision.
Thus, on the H&C application, Mr. St. Vincent could not proceed on the
basis that Mr. Hussain was an MQM member, given the Refugee Board's
findings in that respect. In short, the purpose of the H&C application is
not to re-argue the facts which were originally before the Refugee Board, or to
do indirectly what cannot be done directly -- i.e., contest the findings of the
Refugee Board.
Also see Nkitabungi v Canada (MCI),
2007 FC 331 at para 8, [2007] FCJ no 449 (QL) and Potikha v Canada (MCI), 2008 FC 136
at paras 49-54, [2008] FCJ no 167 (QL).
[11]
Here
the Officer clearly reviewed the fresh evidence provided by Mr. Akinosho
but found that it did not sufficiently substantiate his allegations of personal
risk or overcome the substantial credibility problems identified by the Board.
Although the Officer did not specifically refer to the Amnesty International
letter in his H & C decision, it was clearly referenced in the PRRA
decision along with much of the supposedly new evidence that Mr. Akinosho
could easily have submitted to the Board. I am satisfied that the Officer
considered this evidence in the context of the H & C assessment because it
is referenced in the following passage:
In assessing his PRRA Application, I
found that the submissions made by the applicant did not rebut any of the
findings of the IRB. I did not find the applicant provided sufficient objective
evidence that would be indicative of new risk developments in either country
conditions or his personal circumstances which have arisen since the date of
the RPD decision.
The applicant contends that his writings
and commentaries on the political events in Nigeria are well-known to the government. He
states emphatically that he remains a person of interest to Nigerian
authorities. However, I do not find sufficient objective evidence has been
provided to corroborate these assertions.
[12]
It
is also clear that the Officer understood the requirement to analyze the
evidence of risk in the H & C assessment through the lens of hardship and
not persecution. In the end, though, the Officer found the evidence before him
to be insufficient to overcome the Board’s adverse credibility findings. That
finding was reasonably available to the Board on this record and it cannot be
set aside on judicial review simply because a different view of the evidence
might have been adopted.
[13]
Mr. Akinosho
also contends that the Amnesty International letter established conclusively
that he was a person of interest to the Nigerian police and remained at risk of
arbitrary detention. The Amnesty International letter referenced information
supposedly obtained from a reliable Canadian source, Dr. Owens Wiwa, the
brother of the noted Nigerian writer Ken Saro-Wiwa. Mr. Akinosho
characterized this evidence as being so compelling that the Officer’s contrary
conclusion was perverse.
[14]
The
Officer reasonably concluded that this evidence deserved little weight. The
supposedly corroborating information in the Amnesty International letter is
reported in a way that supports the Officer’s decision to reject it. The opinion
in the letter that Mr. Akinosho remained at risk was based on statements
attributed to an unidentified source (it may have been Mr. Akinosho) who
had presumably spoken to Dr. Wiwa. Dr. Wiwa is reported to have contacted
other unnamed sources in Nigeria about
Mr. Akinosho. The nature of the information that was supposedly obtained
by Dr. Wiwa is not mentioned in the Amnesty International letter and there
would be no way for anyone to verify its reliability and probative value.
Presumably, Dr. Wiwa could easily have provided a letter detailing the
results of his enquiries and identifying his sources. Mr. Akinosho’s reliance
on vague and thrice removed hearsay is, nevertheless, unexplained.
[15]
The
Officer also reviewed the news articles that Mr. Akinosho had authored and
found that their content did not substantiate his claim to be a high profile
political activist and writer whose work would draw adverse attention from the
authorities. That, too, was a reasonable interpretation of the evidence which
cannot be overturned on judicial review.
[16]
I
can identify no reviewable error in the Officer’s decision and therefore this
application for judicial review is dismissed.
[17]
The
Applicant proposes the following three questions for certification:
1. Does an immigration
officer assessing an H&C application breach procedural fairness if he does
not specifically mention pertinent documentary evidence provided in support of
the application, containing information relevant to the disputed facts but instead
proceeds to adopt reasons from the applicant’s IRB decision and the PRRA
decision of which he was the decision maker, knowing that the relevant
documentary evidence before him was not provided in support of the IRB and PRRA
applications?
2. Does the
credibility concern raised by the IRB panel member absolve an officer assessing
an H&C application from reviewing the evidence before him and making his
own assessment of the extent of hardship that may be suffered by the applicant
based on the evidence before him?
3. In a situation
where the basis of the H&C application, PRRA application and the Refugee
claim is the same, does the officer assessing the H&C application have the
obligation to base his decision on his own review of the evidence provided to
him in support of the H&C application and to specifically mention any
evidence that may be relevant to any fact in dispute and to assess the
applicant’s application based on the hardship that he may suffer if returned to
his country of origin or is it sufficient for the officer assessing the H &
C application to adopt the reasons of the IRB panel and the PRRA officer
despite the fact that most of the evidence before him (H&C officer) were
not before the IRB panel and the PRAA officer?
[18]
The
Respondent opposes the certification of a question in this case on the grounds
that no issue of general importance arises on this record and that the issues
raised by the Applicant are well settled in the jurisprudence. I agree with
the Respondent and decline to certify a question. The determinative issues in
this case are all evidence-based and do not give rise to an issue of general
legal importance.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
"R.L.
Barnes"
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