[2]
In a
decision dated May 7, 2008, a panel of the Immigration and Refugee Board,
Refugee Protection Division (the Board) determined that the Applicant was not a
Convention refugee and was not a person in need of protection. Key
determinations by the Board were as follows:
·
Due
to contradictions, inconsistencies and omissions in the Applicant’s evidence,
the Board concluded that the Nigerian government did not have any particular
interest in the Applicant when he was in the country and had no more interest
in him since his departure.
·
With
respect to the Applicant’s claim that his fear was based on his identity as an
Igbo, the Board found no substantial evidence to establish that Igbos, as a
racial group in Nigeria, were persecuted on that basis.
·
With
respect to the Applicant’s claim under s. 97(1), the Board concluded that there
was no evidence—either personal or documentary—that would provide a foundation
for establishing a personal “risk” for the Applicant.
[3]
The
Applicant seeks an order setting aside this decision of the Board.
II. Issues
[4]
This
application raises the following issues:
1.
Did
the Board err in finding that the Applicant faced no objective risk of
persecution?
2.
Did
the Board err in assessing the applicant’s credibility?
3.
Will
the Applicant’s right to natural justice be denied if this Court proceeds with
this judicial review without a verbatim transcript of the refugee protection
hearing?
III. Analysis
A. Preliminary: Standard of Review
[5]
This
application raises issues relating to the Board’s credibility findings and its
assessment of the Applicant’s objective fear of persecution. Both are findings
of fact that are reviewable on a reasonableness standard of review (Zhan v. Canada (Minister of
Citizenship and Immigration.), 2008 FC 711 at para. 16, Choto v. Canada (Minister of
Citizenship and Immigration.), 2008 FC 631 at para. 16). Therefore, the
Board’s findings should not be disturbed so long as they do not fall outside
the “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).
[6]
With
respect to the natural justice issue, the appropriate standard is correctness.
B. Issue #1: Did the Board err
in finding that the Applicant faced no objective risk of persecution?
[7]
The
Applicant claimed refugee protection as a Convention refugee and a person in
need of protection on the basis of fear of persecution due to race (as an
Igbo), membership in a particular social group (MASSOB) and political opinion.
[8]
The
Applicant submits that the Board erred by imposing the wrong burden on him in
requiring him to prove that he was personally targeted by the Nigerian
authorities. This, the Applicant alleges, is an error in law because the Board applied
a higher standard than was needed under ss. 96-97. A claimant need not prove
that they are personally persecuted; it is sufficient to demonstrate that
reprehensible acts had been committed and will likely be committed against
members of the group to which the claimant belongs (Salibian v. Canada
(Minister of Employment and Immigration), [1990] 3 F.C.
250 at para. 19 (C.A.)). Here, the Applicant submits, there was ample
evidence to confirm that MASSOB members continued to be persecuted by the
Nigerian authorities.
[9]
In
addition, the Applicant submits that he had been persecuted personally as he
had been beaten and had come close to arrest. The Board ignored this evidence
and misunderstood the burden that had to be met.
[10]
The
Applicant has mischaracterized the issue. Based on my reading of the Board’s
decision, the error that had been committed by the RPD in Salibian is
not present here. Specifically, the Board did not require that the Applicant
prove that he had been personally persecuted. Rather, it found that membership
in MASSOB or as an Igbo did not necessarily result in persecution by state
authorities. In other words, the Board found that the Applicant’s claim was not
supportable on an objective basis. The real issue before me, then, is the
reasonableness of the Board’s conclusion.
[11]
I
begin by reiterating that the Board’s decision would only be unreasonable if,
based on the evidence put before it, its conclusion that the Applicant faced no
risk of persecution fell outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above,
at para. 47).
[12]
Significant
evidence was before the Board with respect to the alleged persecution of MASSOB
members and of the Applicant as an alleged MASSOB member. The Board made a
series of findings with respect to this evidence, none of which are disputed by
the Applicant.
[13]
Based
on the evidence before the Board, I cannot conclude that the Board’s conclusion
was unreasonable. The Board reasonably found that even though riots had
occurred during various MASSOB-organized protests, it did not necessarily
follow that MASSOB members were persecuted by the Nigerian authorities. Thus,
even if the Applicant had been a member of MASSOB, he had not persuaded the
Board that MASSOB members, in general, had a well-founded fear of persecution.
[14]
Moreover,
the Board was reasonable in rejecting the Applicant’s claim based on race, as
an Igbo. There was no suggestion that Igbos were persecuted, except insofar as
MASSOB was formed primarily of Igbos and riots had erupted between MASSOB and
the Nigerian authorities.
C. Issue #2: In assessing the
Applicant’s credibility, did the Board err by ignoring evidence?
[15]
The
Applicant takes issue with each of the three negative credibility findings made
by the Board. The gist of the argument is that the Board ignored the evidence
provided by the Applicant to explain the apparent omissions and discrepancies.
The concerns of the Applicant can be summarized in chart form as follows:
|
Negative credibility finding
|
Applicant’s explanation
|
What the Board did
|
|
Applicant
gave the wrong date for when he first joined MASSOB
|
He
was nervous because he distrusted authority figures based on his previous
encounters with them in Nigerian and the contradiction was given during his
first encounter with a Canadian official
|
In
its reasons, the Board summarized the Applicant’s explanation as “he was
nervous”
|
|
Applicant
could not recite MASSOB’s motto
|
He
never paid attention to the motto because he did not work with MASSOB
letterhead
|
In
its reasons, the Board summarized this explanation as “he never paid
attention to it”
|
|
Applicant
submitted letters from a friend and MASSOB secretary to corroborate his
alleged involvement with MASSOB. This conflicted with the country report
evidence, in which MASSOB’s lawyer stated that the organization did not
provide letters to support asylum claims. The Applicant also provided a
follow-up letter from the same MASSOB secretary in response to the MASSOB
lawyer’s statement.
|
The
MASSOB official policy did not necessarily extend to the local levels.
Furthermore, the letters did not substantiate the Applicant’s refugee claim;
they merely confirmed his membership
|
The
Board preferred the country report evidence over the support letters from the
MASSOB secretary, who was also one of the Applicant’s friends
|
[16]
It
is trite law that tribunals are afforded substantial deference in its findings
with respect to credibility (Zhan, above, at para. 16, Choto,
above, at para. 16). Further, it is also well-established that the Board
need not mention all of the Applicant’s evidence in its reasons, as tribunals
are assumed to have weighed all the evidence presented (Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at
para. 16 (T.D.)). However, the more important and personal a document is to an
applicant, the more likely it is that a court will imply that a document that
is not explicitly referenced was ignored (Cepeda-Gutierrez, above, at
para. 17).
[17]
In
my opinion, the Board did not ignore the Applicant’s evidence or his
explanations in reaching a reasonable conclusion on credibility. The Board
adequately summarized the Applicant’s explanations for the contradictions in
his evidence by noting that the Applicant had been “nervous” and “he never paid
attention [to the MASSOB motto]”. It was not necessary for the Board to also
address in their reasons why he was nervous and did not pay attention.
Moreover, I accept the Respondent’s submission that the Board is assumed to
have weighed all the evidence presented and, therefore, did not need to mention
all of the Applicant’s evidence in its reasons.
[18]
The
Applicant also submits that the Board erred by using evidence that had been
deemed to be not credible in order to further refute his credibility. The Board
allegedly did this by asking the Applicant to recite the MASSOB motto, as shown
on his support letters from the MASSOB secretary, in order confirm his
membership in MASSOB. Since the letters had been found to be not credible, the
Applicant submits that they should not have been used to further test his
credibility. I disagree. The Board rejected the support letters because their
content contradicted the official MASSOB policy as reported in the country
reports. It does not necessarily follow from this that the Board also
questioned whether the letters were written on genuine MASSOB letterhead. In
any case, if the Applicant is now suggesting that the MASSOB motto is, in fact,
something different or than that which was found on his own support letters,
then he had the opportunity to raise this issue before the Board. Thus, I
conclude that the Board did not unreasonably use the letters in reaching its
negative credibility finding.
[19]
Moreover,
it is important to note that the Board’s credibility findings in general were
directed to the issue of whether the Applicant was a member of MASSOB as he
claimed. After having found that the Applicant was not credible in detailing
his involvement with MASSOB, the Board nevertheless engaged in an analysis of
whether the Applicant faced a well-founded fear of
persecution even if it assumed that he was a
member of MASSOB. This is evident from paragraph 36 of the decision:
I
cannot conclude, on a balance of probabilities, that the claimant has, in the
past, been a target of persecution by the Nigerian government. Even if the
claimant were a youth leader in the group (which testimony I did not consider
credible) the experience of the Secretary of the same group which has not
included any persecution since the claimant left the country demonstrates that
there would be no more than a mere possibility of persecution of the claimant
if he were to return.
[20]
Therefore,
even if I am wrong in finding that the Board’s credibility findings were
reasonable, I would still dismiss the judicial review because the underlying
decision did not rest solely on the credibility findings.
D. Issue #3: Will the
Applicant’s right to natural justice be denied if this Court proceeds with this
judicial review despite not having a verbatim transcript of the refugee
protection hearing?
[21]
The
Applicant submits that the unavailability of a transcript of the refugee
hearing constitutes a denial of natural justice and that, therefore, a new
hearing should be ordered (See Toledo v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1572, (2005) 51 Imm.
L.R. (3d) 287, Ngugi v. Canada
(Minister of Citizenship and Immigration),
2004 FC 432, [2004] F.C.J. No. 532 (QL), Ortiz v. Canada
(Minister of Citizenship and Immigration),
2005 FC 346, [2005] F.C.J. No. 442 (QL)). Without a record of the transcript, the
Applicant argues that this Court cannot determine whether the Board’s
credibility findings were supported by the evidence in the record.
[22]
I
begin with the words of Justice Pratte in Kandiah v. Minister of Citizenship
and Immigration (1992), 141 N.R. 232 (F.C.A.), where he
stated that, “An otherwise fair hearing does not become unfair because
it is not recorded; in other words, a verbatim record of the proceedings is not
a condition precedent to a good trial and a good judgment”.
[23]
Justice
L'heureux-Dubé cited this case with approval in Canadian Union of Public
Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at para. 81, and went on
to state that:
In
the absence of a statutory right to a recording, courts must determine whether
the record before it allows it to properly dispose of the application for
appeal or review. If so, the absence of a transcript will not violate the rules
of natural justice. Where the statute does mandate a recording, however,
natural justice may require a transcript. As such a recording need not be
perfect to ensure the fairness of the proceedings, defects or gaps in the
transcript must be shown to raise a "serious possibility" of the
denial of a ground of appeal or review before a new hearing will be ordered.
These principles ensure the fairness of the administrative decision-making
process while recognizing the need for flexibility in applying these concepts
in the administrative context.
[24]
In
my view, this Court can properly dispose of the application for judicial review
in spite of the unavailability of the transcript. The Applicant made his claim
for refugee protection based primarily on his claim that, as a member of
MASSOB, he faced a risk of persecution. His claim was largely predicated on the
strength of his own evidence, as presented in his written and oral testimony.
Much of this evidence was repeated in his sworn affidavit. In the written
decision, the Board summarized the evidence that was before it and addressed
the elements of the Applicant’s claim, making specific references to omissions
and contradictions which led it to question the Applicant’s credibility. The
omissions and contradictions raised by the Board are sufficiently documented in
the Board’s decision, the Applicant’s affidavit and the written submissions of
counsel for both sides.
[25]
More
importantly, the Board noted in its decision that, even if it accepted the
Applicant’s version of events, there was still insufficient evidence to show
that he faced more than a mere possibility of persecution if he were returned
to Nigeria. In coming to this conclusion, the Board relied on findings of fact
which it made based on the country reports and the Applicant’s own submissions.
It is important to note that the Applicant did not take issue with any of these
findings of fact in this judicial review.
[26]
Taken
altogether, I am satisfied that there is, before me, a record of what the Board
considered in reaching its final conclusion and that that record is sufficient
for the purposes of this judicial review.
IV. Conclusion
[27]
For
these reasons, the application will be dismissed.
[28]
Neither
party proposed a question for certification; none will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The
application for judicial review is dismissed; and
2.
No
question of general importance is certified.
“Judith
A. Snider”
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