Date: 20070123
Docket: IMM-3121-06
Citation: 2007 FC 61
Ottawa,
Ontario, January 23, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JONES
ONYEKWERE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application is for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board) dated
May 10, 2006. The Board found that the applicant is excluded from refugee
status and protection due to his complicity in serious non-political crimes, by
virtue of article 1F(b) of the United Nations Convention relating to the
Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (the Convention).
ISSUE
[2]
Did
the Board err by concluding that the applicant is excluded from refugee status
and protection by virtue of article 1F(b) of the Convention.
[3]
For
the following reasons, the response to this question is negative. Consequently,
the present application shall be dismissed.
BACKGROUND
[4]
The
applicant is a 25-year-old male student and a citizen of Nigeria. On June 19,
2005, the applicant arrived at the P.E. Trudeau Airport in Montreal. He did not
produce any identity documents, although a driver’s licence was found in his
shoe. The applicant was detained until November 29, 2005 due to concerns about
his identity and his desire to travel to the United States, which
constituted a flight risk.
[5]
The
applicant submitted two Personal Information Forms (P.I.F.) consisting of two
very different narratives. The first one was signed on June 29, 2005, and the
second one on October 10, 2005.
First P.I.F. dated June
29, 2005
[6]
The
applicant stated in his P.I.F. of June 29, 2005 that he belonged to a university
cult organization called the “Black Movement of Africa (Black Arks)”. The
organization is in fact called the Black Axe, and not the Black Arks as the
applicant wrote. The applicant described the history of how the cult organizations
came into being, with their roots dating back to the days of colonial
apartheid. He claimed that he was intimidated physically by this organization, which
he joined after a friend persuaded him that he would not experience harassment
from the cult if he was a fellow member. The applicant stated that he was
wanted as a member because of the financial support he received from his
father.
[7]
The
applicant wrote that when he joined, he believed the organization to be
non-violent, and, that after being a member for approximately seven months, he
became third in command. He said that the position was given to him because he
was financially contributing to the organization more than any other member of
the organization.
[8]
The
applicant also stated that when he discovered that the organization was
engaging in violent activities, and using his funds to do so, he told the
organization that he did not want to be a member any longer. The applicant
claimed to have advised other members that they were on the organization’s
death list. Shortly after this, the organization suspected the applicant was
informing other members of the death list and put the applicant on their death
list. He was notified of this and went into hiding. The applicant alleged that
some police members were also members of cult organizations, thus could not be
trusted. He declared that his father, mother and sister were taken
hostage, and his sister was raped by members of the Black Axe. According to the
applicant, the authorities did nothing about this incident. The applicant met
an agent who brought him out of the country.
[9]
Notes
of a detention hearing of August 19, 2005 state that, during the applicant’s
interview of August 11, 2005, the claimant maintained that he was third in rank
in the Black Axe cult (Tribunal Record, p. 236). However, notes of a detention
hearing of October 7, 2005 indicate that the claimant declared during the
September 23, 2005 interview that his previous allegation of being third in
command was not true, but that he was a simple member of the cult and the rest
of his P.I.F. was true.
[10]
The
applicant now claims that the June 29, 2005 P.I.F. is a false narrative. He says
that, while he was waiting for processing by Immigration Canada at the
airport, he was counselled by another man from Nigeria, who shares
the same ethnicity (Ibo) as the applicant. According to the applicant, this man
told him that he had been deported through the immigration process in Canada before and
advised the applicant not to make a refugee claim based on being a political
activist, but that he should instead claim protection as a former member of a
student cult. The applicant alleges that, fearing for his life, he
followed the advice of this man.
Second P.I.F. dated
October 10, 2005
[11]
In
his P.I.F. dated October 10, 2005, the applicant states that he is a student of
Ibo ethnicity and a member of the MASSOB. He mentions that he became a member
in September 2000 and that the movement is involved in “peaceful voicing for a
sovereign state for Ibo people in Nigeria”.
[12]
In
his second P.I.F., the applicant describes activities MASSOB engages in, and
also past activities that he participated in. He writes that the MASSOB
members were attacked by Nigerian police and military during rallies and
marches. In particular, the applicant contends that in November 2004, Nigerian
State Security Service, while hunting for MASSOB members, broke into his house
and battered his parents and sister. He also pretends that the State
Security Service arrested 15 MASSOB members and executed them. The applicant
went into hiding and eventually left Nigeria.
[13]
In
support of this P.I.F., the applicant provided an undated copy of his
membership card, which was sent by his parents from the “zonal coordinator” of
MASSOB; a letter to the applicant from MASSOB administrator Zeph Njoku; a
letter to the applicant from his father, and a “Rustication Notification” to
the applicant from the registrar of Enugu State University of Science and
Technology.
The Minister of Public
Safety and Emergency Preparedness’ Intervention
[14]
On
October 19, 2005, counsel for the Minister of Public Safety and Emergency
Preparedness (Minister) submitted a notice of the Minister’s Intervention in
the Board proceedings, raising the issue of the applicant’s exclusion from
refugee protection on the grounds of the applicant’s membership in the Black
Axe.
DECISION UNDER REVIEW
[15]
The
Board’s decision is based on the applicant’s credibility. The Board
found that the timing of the applicant’s submission of his second P.I.F. coincided
with the applicant becoming aware of the Minister’s interest in seeking the
applicant’s exclusion from refugee protection on the grounds of the applicant’s
membership in the Black Axe. The Board states as follows at paragraphs 6 to 8:
In his written submission, counsel wrote
that, at the oral hearing, the claimant confessed to the falsehood of his
initial declaration to his immigration officer before the exclusion issue was
ever raised by the Minister (Par. 18). The tribunal has described earlier the
sequence of events, as can be seen from the transcripts of the detention
reviews. It is clear that it is only after the claimant had been made aware of
the CBSA’s interest in seeking his exclusion that the claimant stated that he
was a simple member of the Black Axe followed later by his conversion to the
Massob story.
At the hearing, the claimant was
questioned about the timing of his submission of his second narrative. He
explained that, when he told his first counsel, Me Jack Hendler, that not everything
was true and he wanted to change his PIF, Me Hendler told him that his
credibility would be affected. He explained that, as Me Hendler did not want
to listen to him, he changed his lawyer. (counsel at the hearing is the third
one). Since the second PIF was received on October 19, 2005, the claimant was
asked, but could not remember the month he changed counsel. He could also not
remember how much time had gone by between the time that he prepared the second
PIF and the Division receiving it. The PIF bears the signature date as being
October 10, 2005, but the claimant said that he wrote the PIF 2-3 weeks earlier
in September. He said that, at that time, his counsel told him to leave out
the date. He explained further that the information about him, his identity,
was true, but everything else in his first story, all 11 pages were false.
Even the alleged rape of his sister in his first narrative (Page 7 line 52) is
false. The story about him, with his father, saving Muslims from being killed
(Page 10) is also false.
The tribunal notes the blame on the
absent first lawyer, the onus placed on the second lawyer who is alleged to
have told the claimant to not write the date when signing his PIF and the
claimant’s forgetfulness about the date he prepared that second PIF, yet saying
that it was written 2-3 weeks earlier than the date actually shown in the PIF.
The detention review shows that the making of a second PIF was mentioned only
about ten days before it was received. The tribunal finds this issue of the
making up of a second PIF worth considering because the claimant is attempting
to narrow the gap between the time he found himself forced to face the
possibility of exclusion and his coming up with a second story as if it had
always been there, just waiting to be told. The tribunal considers in its
assessment the extent and length to which the claimant went in writing his
first PIF that includes the alleged false allegations and the inconsistent and
vague explanations for the making of the second one.
[16]
The
Board gave more probative value to the first P.I.F. than to the second. In
particular, the Board stated as follows at paragraph 9:
The tribunal finds that those earlier
declarations concerning the cults are more spontaneous, filled with abundant
details as can be expected from a person very knowledgeable in the workings of
the organisation in question and, therefore, should be given more probative
value than the later ones.
[17]
As
well, the Board found that it was not plausible for the applicant to
follow the advice of someone he did not know to fabricate a story that he was a
member of a violent organization. Thus at paragraphs 10 and 11, the Board
concluded as follows:
The claimant said that the man told him
not to write his true story that he was a member of Massob, but to describe
himself as belonging to the Black Axe; fearing to be deported back, the
claimant stated that he was a member of the Black Axe. At the hearing, when he
was asked why he would listen to someone he did not know and describe himself,
not a member of a peaceful organisation, as Massob is perceived, but instead as
a member of a violent organization, he explained again that the man at the
airport told him not to refer to political problems. When he was confronted
further with his being a university student, yet he would be declaring that he
belonged to a group that kills people, he explained that he was then in a state
of confusion.
The tribunal does not find plausible,
much less reasonable, that a university student would listen to someone he does
not know, who would have advised him not to tell an alleged true story of
political persecution, but fabricated a story making the claimant a member of a
violent organization, with which he was to apply for refugee protection.
Moreover, in addition to the numerous details in the first narrative about the
Black Axe, the narrative refers to other cults in Nigerian universities. The
tribunal recalls that the detention review of August 19, 2005 (Exhibit A-3)
indicates that, as the claimant told that he was third in rank in the Black Axe
cult, he was informed that the CBSA would intervene to seek his exclusion from
refugee protection. The tribunal finds that it is the first version, the one
where the claimant admits having been a member of the Black Axe that should be
granted probative value, the version about Massob being Plan B, a less than
reliable story to which the tribunal, in following the reasoning behind the
Taleb decision, does not grant any probative value.
RELEVANT LEGISLATION
[18]
The
relevant section of the Act states as follows:
|
Exclusion —
Refugee Convention
98. A person
referred to in section E or F of Article 1 of the Refugee Convention is not a
Convention refugee or a person in need of protection.
|
Exclusion
par application de la Convention sur les réfugiés
98.
La personne visée aux sections E ou F de l’article premier de la Convention
sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à
protéger.
|
ANALYSIS
Standard of review
[19]
Where
questions of credibility are involved in assessing decisions to exclude
applicants on the basis of section 98 of the Act, the standard of review is
patent unreasonableness. The Federal Court of Appeal in Harb v. Canada
(Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No.
108 (F.C.A.) (QL) reviewed a decision by the Board to exclude an applicant on
the basis of his membership in an organization involved in crimes against
humanity and at paragraph 14, Justice Robert Décary stated:
In so far as these are findings of fact
they can only be reviewed if they are erroneous and made in a perverse or
capricious manner or without regard for the material before the Refugee
Division (this standard of review is laid down in s. 18.1(4)(d) of the
Federal Court Act, and is defined in other jurisdictions by the phrase
“patently unreasonable”). […]
Did the Board err by
concluding that the applicant is excluded from refugee status and protection by
virtue of article 1F(b) of the Convention.
[20]
There
is no dispute among the parties that the crimes committed by the Black Axe are
serious non-political crimes. Thus, the main issue is whether the Board
erred in finding that the applicant belonged to the Black Axe organization.
[21]
The
applicant argues that the Board erred by completely ignoring the applicant’s
documentary evidence regarding his MASSOB membership. The applicant relies on Taleb
v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 743 (F.C.T.D.) (QL) where
the Court stated at paragraphs 4 to 7:
In the case at bar the tribunal noted contradictions,
inconsistencies and omissions in his testimony as to the facts set out in the
two P.I.F.s entered into evidence. In his first P.I.F., he stated that in July
1994 he was requested by the F.B.I. to organize the arrest, kidnapping and
delivery to the U.S. authorities of the terrorist Hassan Ezzedine in return for
$2 million and U.S. citizenship for himself and
his family. In his second P.I.F. he only mentioned a proposal of surveillance,
not kidnapping.
The tribunal considered that the first
P.I.F. was closer to the facts since it was supported by other documentary
evidence which confirmed that the applicant had had the responsibility of
organizing the kidnapping of the terrorist.
It is for the Refugee Division, as a
specialized tribunal, to assess the applicant’s credibility. In the
circumstances, there is no doubt that the latter’s credibility was seriously
comprised by his contradictions.
It was entirely appropriate for the
tribunal to choose the version it found the more credible, especially as that
version was supported by the documentary evidence. In these circumstances, the
Court is not authorized to interfere in the tribunal’s assessment of the
applicant’s credibility.
[emphasis added]
[22]
The
respondent submits that the Federal Court of Appeal in Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL) held
that a “tribunal is assumed to have weighed and considered all the evidence
presented to it, unless the contrary is shown”.
[23]
The
respondent also adds that the Board gave reasons why it preferred the content
of the first P.I.F. over the second one, based on the evidence. It found the
first one more credible, more spontaneous and closer to the facts than the
later one. It also relied on the notes of the detention hearing of August 19,
2005, relating to the applicant’s interview of August 11 when the applicant
maintained that he was third in rank in the Black Axe cult.
[24]
The
Board gave more probative value to the first P.I.F. and wrote detailed reasons
for its conclusions on this subject. It has to be noted that it is only after
more than three months that the applicant indicated that his first story was
false. The evidence shows also that it is only after the applicant had been
made aware that he could be excluded that he changed his story. Even though the
applicant was in detention, he was always represented by a lawyer.
[25]
The
Court finds that it was entirely appropriate for the Board to conclude that it
was the applicant’s first account which was credible and gave cogent reasons
for preferring it (Rathinasigngam v. Canada (Minister of Citizenship and
Immigration), 2006 FC 988, [2006] F.C.J. No. 1247 (F.C.) (QL) at paragraphs
21 to 26). It is in the inherent jurisdiction of the Board to weigh or assess
the evidence. It is not the role of this Court to intervene unless important or
pertinent evidence have been ignored or not considered, which is not the case
here.
[26]
Therefore,
the Court’s intervention is not warranted.
[27]
The
parties did not submit questions for certification.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review is dismissed. No question is certified.
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