Date: 20051209
Docket: IMM-2778-05
Citation: 2005 FC 1677
OTTAWA, Ontario, this 9th day of December, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
KENNEDY LOFTY KANYA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated April 13, 2005, in which the Board found that the applicant was not a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA). The Board found that the applicant was excluded from the definition of Convention refugee under Article 1(F)(b) of the Convention on Refugees. The Board went on to analyse the applicant's claim to determine if exclusion was or was not applicable to the applicant's case; it found that the applicant's story was not credible, if he were included in the definition of Convention refugee.
[2] The applicant, Kennedy Lofty Kanya, is a citizen of Nigeria. He was a university student in Nigeria who claims a fear of persecution at the hands of the Black Axe Confraternity (the "Black Axe"), a student cult that existed at his university in Nigeria.
[3] The applicant claims that he was involuntarily initiated into the cult on May 16, 2003. He claims that he was an active member of the Student Union and was also active in protesting against cult activities on campus.
[4] The applicant claims that, after his forced initiation, he was tricked into attending two events, both at Eboni State University. At the first event, a student was attacked and killed at a university hostel. At the second event, the leader of a cult which rivalled the Black Axe was beheaded and a note was attached to the decapitated body. The killings caused a big crisis between the Black Axe and another cult group called the Vikings.
[5] The applicant alleges that he protested the activities of the Black Axe, as a representative of the Student Union, shortly after the killings. He claims that he was injured at a demonstration where he was hit in the waist with a piece of wood. The applicant claims that he is targeted by the Vikings, as he was forced to attend the events with the Black Axe, and by the Black Axe for his participation in the protest (through the Student Union).
[6] The applicant claims that he "cancelled" his membership in the Black Axe and went into hiding, as he feared for his life. He claims that all the evidence of his forced initiation, along with evidence of the killings, was stolen from his residence and his computer was tampered with.
[7] The applicant claims that the Black Axe were looking for him and, fearing for his life, he came to Canada on September 2, 2003. He travelled using a false passport and claimed refugee protection upon his arrival.
[8] The Board held two hearings, on May 11, 2004 and on February 24, 2005, and issued a negative decision on April 13, 2005.
[9] The purpose of the two hearings was to assess the possible exclusion of the applicant from the definition of Convention refugee, under Article 1(F)(b) of the Convention on Refugees. Article 1(F)(b) states as follows:
Article 1
[...]
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
[...]
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
[10] The first hearing was conducted to determine if exclusion would be considered and the second hearing was conducted approximately nine months later, giving the applicant time to prepare a defence for the exclusion consideration.
[11] In the decision issued by the Board, the Board found that the applicant was excluded from the definition of Convention refugee by virtue of Article 1(F)(b), as he was a member of the Black Axe Confraternity who was present at two killings. The Board found that the applicant's story about his forced initiation into the cult was not credible, and concluded that he was excluded by virtue of Article 1(F)(b) for having committed serious non-political crimes outside Canada.
[12] The Board went on to perform an analysis with respect to the inclusion of the applicant in the definition of Convention refugee. The Board concluded that the applicant had not given credible evidence with respect to his refugee claim and was therefore not a Convention refugee, or a person in need of protection, under sections 96 and 97 of the IRPA.
[13] The Board's decision regarding both exclusion and inclusion is lengthy and comprehensive. The Board based its decision on the implausibility of the applicant's story and also on contradictions and omissions. The contradictions consider the applicant's Point of Entry ("POE") notes, as well as his Personal Information Form ("PIF") and his two refugee hearings.
[14] The Board concluded that the applicant was excluded from the definition of Convention refugee under Article 1(F)(b) of the Convention. In the alternative, the Board concluded that the applicant was not a Convention refugee, or a person in need of protection, due to a lack of credibility in his evidence.
[15] The applicant submits three issues:
a. Whether the first hearing breached procedural fairness;
b. Whether the Board's decision was made in a perverse and capricious manner, without due regard to the evidence before the Board; and
c. Whether the Board erred in concluding that the applicant had committed a serious non-political crime outside Canada.
[16] The applicant argues that the first hearing breached procedural fairness because the Board is under a duty to notify the Minister if it is to consider exclusion and provide relevant information. The applicant argues that the consideration of exclusion was raised in the first hearing, without notice given to the Minister or adequate notice to the applicant or counsel.
[17] The respondent replies that the consideration of exclusion was not formally raised until towards the end of the first hearing and, at that point, the applicant had been given approximately nine months to prepare for the hearing focused on exclusion.
[18] The relevant section of the Refugee Protection Rules, SOR/2002-228, is section 23, which reads as follows:
23. (1) If the Division believes, before a hearing begins, that there is a possibility that sections E or F of Article 1 of the Refugee Convention applies to the claim, the Division must notify the Minister in writing and provide any relevant information to the Minister.
Notice to the Minister of possible exclusion -- during a hearing
(2) If the Division believes, at any time during a hearing, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, and the Division is of the opinion that the Minister's participation may help in the full and proper hearing of the claim, the Division must notify the Minister in writing and provide the Minister with any relevant information.
[19] The first hearing was conducted to determine if there was a possibility that Article 1(F)(b) could apply to the applicant, so the relevant rule is Rule 23(2). In the present case, the Board notified the applicant near the end of the first hearing that exclusion was a possibility, when the Board stated as follows, at page 181 of the Applicant's Record:
Sir, at this point, I am raising formally the issue of the provision 1Fb), which is the exclusion clause for people who are suspected to [sic] commit serious non-political crimes abroad by action or by complicity.
[20] I am of the view that the applicant's argument is persuasive with respect to the lack of procedural fairness. The first hearing was conducted in a restrictive manner as if it was, from the outset, an Article 1(F)(b) hearing. The following are the opening comments from the first hearing:
Q. The issues in this claim, for me, the most important is identity, credibility, and possibly internal flight alternative, if I understand the story. And also, I don't understand very well, but from what I can figure out from the narrative, it might be an issue [sic] exclusion on 1F-B.
A. If Madame Chairperson does believe at some point in time in the course of the hearing that there is the possibility of that issue, I would request that I be notified as quickly as possible so that I can...
Q. I'm...
A. ... so that I can ask for an adjournment in order to prepare my client for that issue, because there have been no discussions with him, other than because of a very brief conversation I had with Madame Chairperson earlier...
Q. Well, I will give you some time to discuss, I don't know if it will call for adjournment. We will see. As I said, the narrative is so unclear, and so confused, written in such a confused way, that it's very hard to figure out what really happened to the claimant.
A. That's one issue I wish my position to be stated very clearly, Madame Chairperson, if indeed there is at any point in time an intention to move towards exclusion, I will ask for an adjournment in order to adequately prepare my client for that issue, which has never been raised to us before, before today.
Q. Okay, we will see. Okay. So, if you don't mind, Counsel, I will start my line of questions.
A. Please.
[21] Under s. 23(1), the Board has a duty to notify the Minister if there is a "possibility" that Article 1(F)(b) should apply to a refugee claimant. The Board clearly indicated from the outset of the proceedings that there was a "possibility" that 1(F)(b) would apply to the applicant. The hearing should have been adjourned from the outset; the Minister should have been notified and the applicant should have been given time to prepare for an exclusion determination.
[22] Rather than adjourn the first hearing, the Board proceeded, thereby breaching procedural fairness under s. 23(1) of the Rules. Further, the Minister introduced a transcript from the first hearing to support his objective of pursuing exclusion under 1(F)(b). A cursory review of this testimony and the transcript make it quite evident that the whole proceeding was confused by the Chairperson and confusing to the applicant. There are so many "inaudibles" that it is very difficult to be properly informed of the circumstances surrounding the activities of this applicant. The Board should have adjourned the hearing and provided the applicant and his counsel an opportunity to prepare for the 1(F)(b) proceeding.
JUDGMENT
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Paul U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2778-05
STYLE OF CAUSE: KENNEDY LOFTY KANYA and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 6, 2005
REASONS FOR ORDER: Rouleau D.J.
DATED: December 9, 2005
APPEARANCES:
Joseph W. Allen/Pia Zambelli FOR APPLICANT
Daniel Latulippe FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Joseph W. Allen FOR APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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