Ako v. Canada (Minister of Citizenship and Immigration), 2005 FC 7

Date: 20050106

Docket: IMM-179-04

Citation: 2005 FC 7

Ottawa, Ontario, this 6^th day of January, 2005

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                         

BETWEEN:

                                                   CATHERINE EFUNDEM AKO

                                                                                                                                            Applicant

                                                                           and

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                Ms. Catherine Ako claimed refugee protection in Canada after fleeing her native Cameroon in 2001. She says that a secret cult of which her father had been high priest wanted her to undergo genital mutilation and use her blood in a ritual sacrifice.

[2]                Ms. Ako presented her claim to a panel of the Immigration and Refugee Board, but the Board found it to be implausible. The Board gave three reasons for its conclusion. Ms. Ako argues that the Board erred on all three grounds and asks me to order a new hearing. I agree that the Board's conclusion was based on factual errors and must, therefore, grant this application for judicial review.

I. Issue

Was the Board's decision supported by the evidence?

II. Analysis

[3]                I can overturn the Board's decision only if I find that it was patently unreasonable, in the sense that it was entirely unsupported by the evidence.

[4]                The Board gave three reasons for its conclusion that Ms. Ako's version of events was implausible. First, the Board found it strange that Ms. Ako did not seem to know much about her father's cult. For example, according to the Board, she said at one point in her testimony that genital mutilation had nothing to do with the cult, yet she later said that cult members wanted her to undergo the procedure in order to use her blood for ritualistic purposes.

[5]                In her testimony before the Board, Ms. Ako stated that young girls were routinely circumcised in her village. This practice was not directly connected to the cult. She also said that she knew the cult used the blood of the high priest's daughter in rituals but she did not know exactly what purpose it served. She said she knew that according to tradition the blood used in rituals had to come from a circumcision.

[6]                In my view, the Board relied on a contradiction in Ms. Ako's evidence that does not appear in the record.

[7]                The Board's second reason for disbelieving Ms. Ako related to her personal profile. Ms. Ako had studied at university. She had lived and worked in Douala, a major metropolis, for two years. The Board said that "[g]iven this profile, the panel cannot believe her story or the fact that she sought refuge as far away as Canada to escape from a few villagers participating in a secret cult".

[8]                However, the Board did not seem to take account of the full picture Ms. Ako described. She said that she could not find a job in Douala after completing her studies and could not support herself. She thought it wise to return to her village to set up a small business there. In addition, her sister, who lived in the village and was the primary caregiver for Ms. Ako's nine-year-old daughter, was very ill. In these circumstances, she felt she had to go back to her village. The problems with the cult did not arise until two years later when her father became high priest. She felt she would not be safe anywhere in Cameroon.

[9]                It was certainly open to the Board to find that Ms. Ako's story was implausible. However, before it did so, it had to consider the overall scenario she described and take account of her explanations for her conduct. It did not.

[10]            The Board's third reason for doubting Ms. Ako's claim arose from a discrepancy in her testimony about the timing of her departure from Cameroon. The Board noted that she said she left her village on October 8, 2001 and hid for three days in a nearby village. She then stayed with a group of nuns for a further ten days. The following day, she went to Douala and departed Cameroon by plane. According to this chronicle of events, Ms. Ako should have left Cameroon on October 22^nd or 23^rd. In fact, in her personal information form (PIF), she said that she left on November 10^th. Her testimony left eighteen or nineteen days unaccounted for.

[11]            In her testimony before the Board, Ms. Ako clearly stated that she left her village on October 15^th, not October 8^th. Still, there were eleven or twelve days missing. The Board was entitled to draw an adverse inference from this discrepancy. However, this was a minor error. It could not, on its own, justify the Board's complete rejection of Ms. Ako's credibility; this is particularly so in circumstances where the Board itself made an error of almost equivalent magnitude.

[12]            Counsel for the respondent argued that, even I were to find that the Board erred in respect of the reasons it gave for dismissing Ms. Ako's claim, I should not disturb its conclusion. He suggested that there were other contradictions and discrepancies in Ms. Ako's testimony, not cited by the Board, that showed that her evidence was untrustworthy. I did not permit counsel to direct me to those alleged irregularities. In my view, the Board's decision and reasons must stand on their own. It is not open to the respondent to find alternative grounds, not recognized by the Board, for its conclusions. The Board's decision cannot be sustained on grounds it did not even mention.

[13]            In Ms. Ako's case, the Board gave just three reasons for its dismissal of her claim and erred in respect of at least two of them. In these circumstances, I must allow this application for judicial review and order a new hearing before another panel of the Board. Neither party proposed a question of general importance for me to certify, and none is stated.

                                                                   JUDGMENT

THIS COURT'S JUDGMENT IS that:

1.          The application for judicial review is granted and a new hearing before a different panel of the Board is ordered;

2.          No question of general importance is stated.

                                                                                                                             "James W. O'Reilly"           

                                                                                                                                                   Judge                    

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-179-04

STYLE OF CAUSE:               AKO v. MCI

PLACE OF HEARING:                     TORONTO, ON.

DATE OF HEARING:                       November 25, 2004

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                              January 6, 2005

APPEARANCES BY:

Mr. Solomon Orjiwuru              FOR THE APPLICANT

Mr. Lorne McClenaghan                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

SOLOMON ORJIWURU                    FOR THE APPLICANT

Toronto, ON

MORRIS ROSENBERG

Deputy Attorney General of Canada

Toronto, ON                                         FOR THE RESPONDENT