Docket: IMM-3160-17
Citation:
2018 FC 105
Ottawa, Ontario, January 31, 2018
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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NGOMBA LINDA
NANYONGO
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Ngomba Linda Nanyongo seeks judicial review of a
decision of the Refugee Protection Division [RPD] of the Immigration and
Refugee Board. The RPD found that Ms. Nanyongo was neither a Convention refugee
nor a person in need of protection. The RPD also found that her claim was
manifestly unfounded, pursuant to s 107.1 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, I conclude that the
RPD’s adverse credibility findings, only some of which are challenged in this
application for judicial review, were supported by the evidence. Despite the
lack of care and attention given to the RPD’s finding that the claim was
manifestly unfounded, I am satisfied that this determination was reasonable.
The application for judicial review is dismissed.
II.
Background
[3]
Ms. Nanyongo is a citizen of Cameroon. She
claims to be a member of the Southern Cameroons National Council [SCNC], an
organization that advocates for the independence of anglophone southern
Cameroon from the predominantly francophone Republic of Cameroon. Ms. Nanyongo
testified before the RPD that she joined the SCNC in 2014, and was arrested and
detained twice: once in September 2015, and again in October 2016.
[4]
Ms. Nanyongo entered Canada on December 20, 2016,
and claimed refugee protection on March 16, 2017. She says that she will be
arrested, detained and tortured if she returns to Cameroon, due to her
affiliation with the SCNC.
III.
Decision under Review
[5]
On June 22, 2017, the RPD held that Ms. Nanyongo
was neither a Convention refugee nor a person in need of protection, and that
her claim was clearly fraudulent. The RPD based its decision on the following
findings:
(a)
Ms. Nanyongo provided two different birth
certificates, one of which must have been fraudulent, and did not provide an
adequate explanation;
(b)
Ms. Nanyongo stated that her student card would
confirm she was elected as secretary of the university’s union, but in fact it
did not, and no other documents were provided to substantiate this claim;
(c)
Ms. Nanyongo admitted to signing a false visa
application, in which she untruthfully and inexplicably claimed that she was
unmarried, even though she had been married to her husband since 2005, and that
she had two sisters, even though she said in her Basis of Claim Form [BOC] that
she had only one sister;
(d)
various documents provided by Ms. Nanyongo,
including the Recognizance of Surety, the Release Orders, the Arrest Warrants,
the medical report and the Undertaking, were fraudulent, given numerous
spelling errors that could not be explained;
(e)
the letter from the chairman of the SCNC was
entitled to little weight, given Ms. Nanyongo’s lack of credibility, and
the false and misleading documents she had submitted;
(f)
the affidavit from Ms. Nanyongo’s lawyer in
Cameroon was not properly sworn, or written in the first person – it amounted
to a hearsay account of what Ms. Nanyongo’s husband had allegedly endured;
(g)
the husband’s affidavit contained irregularities
that reduced the weight that could be given to the document; and
(h)
Ms. Nanyongo travelled to Canada using an
Ethiopian passport, and could not establish her Cameroon identity except with a
fake identity card.
[6]
The RPD’s original Notice of Decision stated
that Ms. Nanyongo’s claim had no credible basis and was manifestly unfounded.
This was subsequently amended by the Registrar to indicate that the claim was
manifestly unfounded.
IV.
Issues
[7]
This application for judicial review raises the
following issues:
A.
Were the RPD’s adverse credibility findings
reasonable?
B.
Did the RPD reasonably conclude that Ms.
Nanyongo’s claim was manifestly unfounded?
V.
Analysis
[8]
The RPD’s determinations of credibility are
subject to review against the standard of reasonableness (Nweke v Canada (Citizenship and Immigration), 2017 FC 242 at para 18 [Nweke]). A finding
by the RPD that a claim is manifestly unfounded is also subject to review
against the standard of reasonableness (Nweke at
para 18). The Court will intervene only if the decision falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
A.
Were the RPD’s adverse credibility findings
reasonable?
[9]
The RPD found that there were discrepancies
between Ms. Nanyongo’s visa application and her BOC. Ms. Nanyongo acknowledged
the discrepancies, but says that she had no control over her agent’s actions
and lied in order to save her life.
[10]
The RPD rejected Ms. Nanyongo’s explanation as
follows:
[10] … When asked
for an explanation, the claimant took a long pause without answering, before
finally stating that she lied because her life was at stake. There was no
explanation provided by the claimant as to how making a false declaration about
not being married could save her life better than if she had stated the truth.
[11] In the family information form which
formed part of the claimant’s visa application, she listed two brothers and two
sisters. When signing and certifying her BOC, however, the claimant only
indicated one sister and two brothers. The claimant was asked to explain the
discrepancy, but she could provide no satisfactory answer, even though she had
signed and certified both documents as being true and complete.
[11]
Ms. Nanyongo is asking the Court to re-weigh the
evidence, and to substitute its view for that of the RPD. That is not the role
of the Court on an application for judicial review (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 61).
[12]
Ms. Nanyongo also takes issue with the RPD’s
finding that she said her student card would confirm she was secretary of the
student union. The relevant portion of the transcript reads as follows:
Q. So, in
2012 you said you were like the secretary of the student’s union?
A. Yes,
sir.
Q. And do
we have evidence of that?
A. Yes,
sir.
Q. Where,
what do you have?
A. Sir, I
have, but they have not come yet. I have the student card.
Q. It’s
going to be a student card and it’s going to say on there that you’re the
secretary of the union?
A. Yes,
sir, and I have an attestation to that.
[13]
Ultimately, the student card did not corroborate
this assertion. Nor did any other documentation provided by Ms. Nanyongo. The
RPD’s adverse credibility finding was therefore supported by the evidence.
[14]
More generally, Ms. Nanyongo complains that the
RPD unreasonably rejected her documentary evidence by failing to consider
objective reports that spelling errors are common in official Cameroon
documents. She also says that the RPD unreasonably accorded little weight to
the affidavit of the Cameroon lawyer and the letter from the chairman of the
SCNC.
[15]
The objective reports cited by Ms. Nanyongo
indicate that official English Cameroon documents may contain spelling and
grammatical errors. However, several of the documents adduced by Ms. Nanyongo
contained spelling and grammatical errors in French. Egregious spelling and
grammatical errors were also found in non-official English documents, such as a
medical report, that were prepared to support her claim. While it would have
been preferable for the RPD to acknowledge the objective reports submitted by
Ms. Nanyongo, I am not persuaded that they undermine the RPD’s findings.
[16]
An applicant’s lack of credibility may extend to
the documentary evidence submitted (Huang v Canada (Citizenship and
Immigration), 2015 FC 1250 at para 15). In Cao v Canada (Citizenship and
Immigration), 2015 FC 315, Justice Simon Noël held at paragraph 20 that it was reasonable for the RPD to find that
a document was fraudulent and to afford the document no weight based on the applicant’s
lack of credibility, and the prevalence of fraudulent documents in the country
of origin. By the same token, it was open to the RPD to accord little weight to
the hearsay affidavit from the Cameroon lawyer and the letter from the chairman
of the SCNC, given the numerous adverse findings of credibility and fraudulent
documents. Ms. Nanyongo is again asking the Court to re-weigh the evidence.
[17]
Ms. Nanyongo does not challenge the remaining
adverse credibility findings made by the RPD.
B.
Did the RPD reasonably conclude that Ms.
Nanyongo’s claim was manifestly unfounded?
[18]
A claim is manifestly unfounded when it is
clearly fraudulent (IRPA, s 107.1). A claim is clearly fraudulent when “the decision maker has the firm conviction that refugee
protection is sought through fraudulent means, such as falsehoods or dishonest
conduct that go to the determination of whether or not refugee protection will
be granted” (Warsame v Canada (Citizenship and Immigration), 2016
FC 596 at para 31). A finding that a claim is manifestly unfounded deprives an
applicant of an appeal to the Refugee Appeal Division, and the benefit of a
statutory stay of removal (Nagornyak v Canada (Citizenship and Immigration),
2017 FC 215 at para 13).
[19]
In its brief discussion of whether Ms.
Nanyongo’s claim was manifestly unfounded, the RPD stated that she had used an
Ethiopian passport to enter Canada, and provided only a fake national identity
card to establish her Cameroon citizenship. The RPD observed that she was more
likely to be a citizen of Ethiopia.
[20]
These findings are baffling. The paragraph in
question appears to have been copied from a different, unrelated decision. At
paragraph 4 of the decision under review, the RPD acknowledged that Ms.
Nanyongo provided a certified copy of the first page of her Cameroon passport,
and accepted that she is a citizen of Cameroon. The Respondent does not dispute
this finding.
[21]
It is clear that the RPD’s analysis of whether
the claim was manifestly unfounded was prepared without due care and attention.
Nevertheless, a decision of a tribunal is reasonable if “the outcome is acceptable and defensible on the basis of
reasons that could have been given or reasons that when viewed in light of the
record must be seen as implicit” (Canada (AG) v Shakov, 2017 FCA
250 at para 103). Even if an erroneous finding is made, a decision should be
upheld if there were other facts on which the decision maker could have
reasonably based the ultimate decision (Stelco Inc v British Steel Can Inc,
[2000] 3 FC 282 at para 22 (FCA)).
[22]
In the unusual circumstances of this case, I
reluctantly conclude that the RPD’s finding that Ms. Nanyongo’s claim was
manifestly unfounded was reasonable, even though the single paragraph that
explains the RPD’s reasoning appears to have been copied from an unrelated
decision. The RPD’s many adverse credibility findings, only some of which are
challenged in this application for judicial review, provide sufficient support
for this determination.
VI.
Conclusion
[23]
The application for judicial review is
dismissed. Neither party proposed that a question be certified for appeal, and
none arises in this case.
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