Date: 20060911
Docket: IMM-1374-05
Citation: 2006 FC 1083
Vancouver, British
Columbia, September 11, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ISRAEL OYEJIDE
GBOLAHAN ADISA FAGBEMI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Israel Fagbemi has been in Canada since 1986. He claims to be
a citizen of Nigeria who fled to Canada to escape political persecution. He
pursued various means of staying in Canada over the years, but his claim for
refugee protection was not dealt with on its merits until 2005. A panel of the
Immigration and Refugee Board denied Mr. Fagbemi’s claim because of a lack of
credible evidence and because he failed to prove his identity. Mr. Fagbemi
argues that the Board had no jurisdiction to hear his claim and made serious
errors in dismissing it. However, I can find no basis for overturning the
Board’s decision and must, therefore, dismiss this application for judicial
review.
I. Issues
[2]
Mr. Fagbemi raised two main issues:
1.
Did the Board have jurisdiction to hear and decide Mr. Fagbemi’s refugee
claim?
2. Did the Board err when
it found that Mr. Fagbemi had failed to prove his identity?
[3]
Mr. Fagbemi also disputed some of
the Board’s credibility findings but, in light of my conclusions on the first
two issues, it is unnecessary for me to address those arguments.
II. Analysis
A. Did the Board have
jurisdiction to hear and decide Mr. Fagbemi’s refugee claim?
[4]
Mr. Fagbemi argues that because immigration officials found that his
refugee claim had a “credible basis” in 1993, the Board had no authority to
re-open his case and come to a contrary conclusion in 2005.
[5]
The Board found that Mr. Fagbemi had applied for refugee status in 1987
and, in 1993, passed the paper screening process that existed at that time.
Under normal circumstances, Mr. Fagbemi would have been granted landed status
in due course. However, he was subsequently found to be inadmissible to Canada
because he was receiving social assistance. As the merits of Mr. Fagbemi’s original
refugee claim were never fully considered, the Board concluded that it had
jurisdiction to entertain his fresh application, which had been filed in 2001.
[6]
I can find no error in the Board’s conclusion that it had jurisdiction
to hear and decide Mr. Fagbemi’s refugee claim.
B. Did the Board err when it
found that Mr. Fagbemi had failed to prove his identity?
[7]
Mr. Fagbemi concedes that he no longer possesses documents proving his
Nigerian citizenship. The only document he presented to the Board was a
photocopy of an admittedly fake Nigerian passport issued in 1986. However, he
argues that the Board treated him unfairly by insisting on better identity
documents. He claims that his other documentation was unlawfully destroyed by
immigration officials.
[8]
The Board noted that Mr. Fagbemi had been advised that identity would be
an issue at his hearing. Nevertheless, he did not attempt to obtain supporting documentation
from Nigeria, even though he had been in Canada since 1986 and had had plenty
of time to assemble the necessary proof. The Board denied him a further
adjournment for that purpose.
[9]
Mr. Fagbemi relied on guidelines regarding retention of immigration and
refugee documents. He cited one guideline applicable to immigration cases which
states that “standard case files” should be kept for ten years after the
proceeding. Regarding the files of the Refugee Protection Division, the applicable
guideline states that they should be kept for six months after final action has
been taken, and then for a further twenty years in National Archives. Mr.
Fagbemi concludes from these guidelines that the Board was in violation of its
own rules and, therefore, should not have drawn an adverse inference against
him regarding his lack of identity documents.
[10]
Assuming that these guidelines are mandatory, I cannot conclude that
they were breached. Mr. Fagbemi originally sought refugee status in 1988.
However, he did so through a process that did not involve the Refugee
Protection Division. Accordingly, officials might have been bound to keep his
documents for ten years, but not twenty, as he maintains. Further, I have no
evidence before me indicating that Mr. Fagbemi had supplied good evidence of
his identity even in 1988. He referred me to a document included in his
original file and suggested that it shows that he submitted fifteen attachments
to his original claim. In fact, as I read the form, it indicates how many
attachments and exhibits accompany the claim, with numbers running from 1 to
15. No number is circled on Mr. Fagbemi’s form and, therefore, I cannot
conclude from it that he had submitted the maximum number, or even any,
attachments or exhibits. He also conceded in his oral testimony that he had previously
filed photocopies, not originals, with his original application. He retained
the original documents, which were subsequently lost or stolen.
[11]
I cannot conclude from these circumstances that the Board erred
when it found that Mr. Fagbemi had failed to supply adequate proof of his
identity. Accordingly, I must dismiss this application for judicial review.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
This
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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