Vifansi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 284

Date: 20030307

Docket: IMM-2366-02

Neutral citation: 2003 FCT 284

OTTAWA, ONTARIO, THIS 7^TH DAY OF MARCH, 2003

PRESENT:      THE HONOURABLE MADAM JUSTICE HENEGHAN

BETWEEN:

                                                         AKUMBAM WAM VIFANSI

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

        Mr. Akumbam Wam Vifansi (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") made on April 30, 2002. In its decision, the Board determined the Applicant not to be a Convention refugee.

[2]                 The Applicant is a citizen of Cameroon. In 1997, his parents were granted asylum in the United States of America as refugees, based on the ground of political persecution. The Applicant's mother was the first member of the family to arrive in the United States; she arrived, as a student, in 1994. Her husband joined her in 1996 and they made a successful claim for asylum. The Applicant, together with two sisters and a brother arrived in May 1998. Two other brothers did not accompany the family; they were studying in Canada.

[3]                 The Applicant was 18 years old when he arrived in the United States. On April 8 2001, he was charged by the police in Tippecanoe County in Lafayette, Indiana with certain offences, relating to the possession of a stolen car. The Applicant maintains that he is innocent of any such offence and that he had purchased the car as a second-hand vehicle from an acquaintance without conducting a search with any registry of motor vehicles. The Applicant took no steps to register the vehicle in his own name. The Applicant also claims that the police authorities in the U.S. treated him unfairly and were discriminatory in relation to these alleged offences because of his race.

[4]                 Following the charges being laid against him, the Applicant decided to visit his brother in Canada. He sought a period of reflection. He travelled by bus to Toronto towards the end of April 2001 and subsequently travelled to Halifax, Nova Scotia. He did not receive much support from his brother and obtained accommodations by moving around and staying with a number of unidentified acquaintances in Halifax. Apparently, his parents did not agree with the Applicant's plan to leave the United States. The Applicant said he had a falling out with his older brother and did not maintain contact with his parents in the United States.

[5]                 The Applicant spent several months in Halifax but in November 2001, he decided to return to the United States and "face the music". He initiated contact with the Halifax police on November 15, 2001 and stated that he wanted to "go home". He was detained and officials of Citizenship and Immigration Canada ("CIC") were called to determine his identity. The Applicant remained in detention for about three weeks. During this time, he was questioned by several immigration officers about his status in the United States.

[6]                 The notes maintained by CIC officers are included in the Tribunal Record and refer to the fact that inquiries were directed to the Immigration Naturalization Services ("INS") of the United States of America. It appears from the material gathered by CIC officials that the Applicant did not have a right to re-enter the United States and that he had forfeited his asylum protection in that country when he came to Canada, since he had failed to apply for a more permanent status in the United States and failed to obtain, prior to leaving the United States, the necessary permit to allow his re-entry to that country.

[7]                 After the Applicant was released from detention, the Applicant moved to St. John's, Newfoundland and Labrador. He had been informed that there was an organization there which would help him, that is the Association for New Canadians. He travelled to St. John's some time in early December 2001 and completed his Personal Information Form ("PIF") at the end of January 2002. He had first stated his intention to make a refugee claim in Canada while he was detained in Halifax.

[8]                 He based his refugee claim in Canada on the risks he would face if returned to Cameroon, alleging that he would face persecution as a result of the political activities carried out by his parents in Cameroon. In other words, his claim for Convention refugee status was based on imputed political opinion.

THE BOARD'S DECISION

[9]                 The Board found that the Applicant had "deliberately fled from U.S. justice". It further found that he had "official status" in the United States and consequently, he could not be determined to be a Convention refugee in Canada.

APPLICANT'S SUBMISSIONS

[10]            The Applicant challenges the decision of the Board on two main grounds. In the first place, he argued that the Board made a number of assumptions that were unsupported by the evidence before it. Each of these assumptions was detrimental to the plausibility and credibility findings made by the Board. When viewed in their totality, these assumptions show that the Board dealt with the facts in a capricious manner. For example, the Applicant points to the many instances where the Board comments upon the instances where his name was misspelled, an "a" appearing instead of an "o", which the Board relied upon to base a negative credibility finding against him.

[11]            As well, the Applicant argues that the Board made a reversible error in finding that he cannot be a Convention refugee in Canada because he has "official" status in the United States, when this finding is not supported by the evidence presented. The evidence shows that the Applicant had left the United States without proper documentation for a refugee and had consequently lost his status in that country and did not have the right to re-enter.

[12]            The Applicant says that the Board mistakenly found that he had official status in the United States because he was a member of the Indiana National Guard. According to the Applicant, this finding by the Board is misplaced, since it involved the making of a number of assumptions by the Board. First, this finding rests upon an assumption that the Board correctly interpreted American legislation concerning the eligibility of a person to join the National Guard. The Applicant says there was no evidence before the Board concerning the interpretation of the relevant legislation and furthermore, there was no evidence as to whether recruitment personnel in the United States had interpreted the legislation in the same manner as the Board.

[13]            The Applicant says that the Board's finding that he was ineligible to be found a Convention refugee in Canada implicitly rests upon Article 1(E) of the United Nations Convention Relating to the Status of Refugees (the "Convention"). There is no mention of Article 1(E) by the Board in its decision and furthermore, no reference was made to this Article in the hearing before the Board.

[14]            The Applicant submits that the case law has established that where the Board or the Minister seeks to rely on Article 1(E) of the Convention to exclude a refugee claimant, a series of criteria must be considered. In this regard, the Applicant relies on Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 241, Mahdi v. Canada (Minister of Citizenship and Immigration) (1995), 191 N.R. 170 (F.C.A.), Hamdan v. Canada (Minister of Citizenship and Immigration (1997), 38 Imm. L.R. (2d) 20 (F.C.T.D.), Wassiq v. Canada (Minister of Citizenship and Immigration) (1996), 112 F.T.R. 143, Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 102 and Canada (Minister of Citizenship and Immigration) v. Choovak (2002), 21 Imm. L.R. (3d) 184 (F.C.T.D.).

[15]            Pursuant to the criteria established in this jurisprudence, the Board should have considered whether the Applicant had the right to return to the United States, whether he had the right to work freely without restriction and the right to study and whether he had full access to the social services in the country of his former residence. The Applicant submits that an essential element of Article 1(E) as stated in Mahdi, supra, is that a person have the right to return to the country of his prior residence.

[16]            The Applicant argues that the Board did not undertake any clear or coherent discussion of any of the criteria that should be considered in an Article 1 exclusion case. This failure by the Board to examine the Applicant's rights and privileges in the United States, particularly his right to enter and remain in that country, amounts to an error of law.

RESPONDENT'S SUBMISSIONS

[17]            The Respondent generally takes the position that the Board is mandated to assess credibility and unless its conclusions are patently unreasonable, its decision should stand. Relying on Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), the Respondent submits that the Board is entitled to reject uncontradicted evidence if it is inconsistent with the probability findings affecting the case as a whole.

[18]            Further, the Respondent argues that the Board's reasons show a grasp of the relevant issues and relevant evidence. The fact that the reasons do not identify all the evidence which was submitted does not constitute an error of law; here the Respondent relies on Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).

[19]            The Respondent argues that the credibility and plausibility findings of the Board should be granted a high degree of deference by a reviewing court since the Board is in a better position to make such findings; see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). In this case, the Respondent argues that the Board found that there were several inconsistencies between the applicant's testimony and documentary evidence, and says that the Board's credibility findings should not be disturbed as they are reasonably supported by the evidence that was submitted.

[20]            The Respondent further argues that there was no nexus between the Applicant's claim and any enumerated ground in the Convention refugee definition, since there was no evidence that the Applicant was expressing a "political opinion" as discussed in Ward v. Canada, [1993] 2 S.C.R. 689 and Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327 (C.A.).

ANALYSIS

[21]            In my opinion, the Board erred in reaching its decision in this case and committed a reviewable error. It concluded that the Applicant was not a Convention refugee because he had deliberately fled the justice system in the United States and that he had "official status" in that country. Even if the Applicant had come to Canada to avoid prosecution on a criminal charge in the United States, this is irrelevant to his Convention refugee claim against Cameroon.

[22]            It is clear from his application for Convention refugee status in Canada that the Applicant was seeking refugee status on the basis he would likely face if returned to Cameroon. He did not raise a claim of persecution against the United States. The issue of a criminal charge in the United States is irrelevant to whether he is excluded from making a Convention refugee claim in Canada pursuant to Article 1(E) of the Convention. It is equally irrelevant to the question of possible persecution in Cameroon. In my opinion, the Board ignored the basis of the claimant's refugee claim, that is imputed political opinion in relation to Cameroon, and proceeded upon a misapprehension of this basic fact.

[23]            Second, although the Board never refers directly to Article 1(E) of the Convention, I infer that since the Board relied on the Applicant's "official status" in the United States as a reason that he "cannot" be determined to be a Convention refugee, means that the Board relied on Article 1(E) of the Convention to exclude him from consideration as a Convention refugee in Canada.

[24]            Article 1(E) is incorporated into the definition of "Convention refugee" found in the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act") , section 2(1) as follows:

Article 1 (E), set out in the Schedule to the former Act, reads as follows:

[25]            In Mahdi, supra, the Federal Court of Appeal made the following statement concerning the interpretation of Article 1(E), at paragraph 12:

...the real question that the Board had to decide in this case was whether the respondent [the refugee claimant] was, when she applied for admission to Canada, a person who was sill recognized by the competent authorities of the United States as a permanent resident of that country. (Footnote 5: Article 1E refers to "a person who is recognized", not a person who has been recognized "by the competent authorities of the country in which he has taken residence as having the rights and obligations which are to attach to the possession of the nationality of that country".) The evidence showed that the respondent, after becoming a permanent resident of the United States, had acted in such a way as to create a serious possibility, if not a probability, that the American authorities would no longer recognize her as a permanent resident and would, for that reason, deny her the right to return to the United States. Surely, that possibility had to be taken into account in deciding whether it was established on a balance of probabilities that the American authorities still recognized the respondent as a permanent resident. [Emphasis added]

[26]            In my opinion, the reasons of the Board in this case show that it did not properly or thoroughly deal with the exclusion issue. As noted above, Article 1(E) is not mentioned in the reasons and indeed, is not mentioned at all in the transcript of the hearing before the Board. Furthermore, the evidence gathered by officials of Canada Immigration relative to the Applicant's inability to return to the United States is not mentioned or dealt with by the Board.

[27]            The Board's reasons show that it relied upon the Applicant's "official status" in the United States to conclude that he could not be determined to be a Convention refugee in Canada. In law, a finding of "official status" does not determine the applicability of Article 1(E), since the jurisprudence requires that the Board inquire whether the Applicant has the right to return to his country of former residence, as well as to inquire, as per the wording of Article 1 (E) whether he has other rights which attach to the "possession of nationality" of that country. The criteria that a Board should consider in an Article 1(E) analysis was stated in Shamlou, supra, at paras. 35 and 36, as comprising whether a person has i) the right to return to the country of residence, ii) the right to work freely without restrictions, iii) the right to study, and iv) full access to social services in the country of residence.

[28]            The Board was required to make these inquiries and by not doing so, it erred in law. This error in law is sufficient to grant this application for judicial review and it is not necessary to deal with the other arguments raised by the parties. The matter is remitted to a differently constituted panel of the Refugee Protection Division, as the Board is now called, for redetermination in accordance with the law. Counsel advised that there was no question for certification arising.

                                                  ORDER

The application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel of the Refugee Protection Division in accordance with the law. There is no question for certification arising.

                                                                                           "E. Heneghan"

                                                                                                      J.F.C.C.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-2366-02

STYLE OF CAUSE: Akumbam Wam Vifansi v. Minister of Citizenship

and Immigration

PLACE OF HEARING:                                   St. John's, Newfoundland and Labrador

DATE OF HEARING:                                     February 20, 2003

REASONS FOR ORDER AND

ORDER:                     The Honourable Madam Justice Heneghan

DATED:                      March 7, 2003

APPEARANCES:

NICHOLAS SUMMERS                                        FOR APPLICANT

MELISSA CAMERON                                                                                          FOR RESPONDENT

SOLICITORS OF RECORD:

NEWFOUNDLAND LEGAL AID COMMISSION                                          FOR APPLICANT

ST. JOHN'S, NF

MORRIS ROSENBERG, Q.C.

DEPUTY ATTORNEY GENERAL OF CANADA FOR RESPONDENT