Date: 20050125
Docket: IMM-3786-04
Citation: 2005 FC 107
Ottawa, Ontario, the 25th day of January 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Christopher Chigozie NWAMMADU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] In light of its institutional memory, experience and specialized knowledge, findings as to identity and credibility assessments are the responsibility of the panel of first instance. This Court intervenes only when there is a patently unreasonable error (or omission).
NATURE OF JUDICIAL PROCEEDING
[2] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act(the Act) of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) rendered on January 27, 2004. The reasons for decision were signed on February 4, 2004. In its decision, the Board held that the applicant is neither a Convention refugee within the meaning of section 96 nor a person in need of protection within the meaning of subsection 97(1) of the Act.
FACTS
[3] A citizen of Nigeria, the applicant, Mr. Christopher Chigozie Nwammadu, alleges that he has a well-founded fear of being persecuted by his neighbours in two Nigerian villages where his father was chief. In 1984, Mr. Nwammadu's father was poisoned and died as a result of a dispute over the family's right to govern a certain village. In 1996, Mr. Nwammadu took over the business his father had left him.
[4] In 2002, the possibility of Islamic Sharia law being instituted in Nigeria led to tensions between Christians and Muslims and, ultimately, to riots in Kaduna, where houses, businesses and churches belonging to Christians were ransacked. Mr. Nwammadu's business was among those that were burned down. After the riot, Mr. Nwammadu took refuge in a church. He met a woman from South Africa who helped him escape. According to his testimony at the hearing, the applicant left his country on September 22, 2002, for South Africa. On December 30, 2002, he left South Africa and arrived in Canada on December 30 or 31, 2002. He immediately made a claim for refugee protection.
IMPUGNED DECISION
[5] The Board dismissed Mr. Nwammadu's claim on the grounds that he had not established his identity and that he was not credible.
ISSUES
[6] 1. Should the application for judicial review be heard despite the fact that it was not filed within the prescribed time limit?
2. Is the Board's determination with respect to the applicant's unestablished identity and lack of credibility patently unreasonable?
ANALYSIS
1. Should the application for judicial review be heard despite the fact that it was not filed within the prescribed time limit?
[7] According to the record, the Board's decision was sent to Mr. Nwammadu on February 24, 2002. According to subsection 35(2) of the Refugee Protection Division Rules (the Rules), the decision was considered to be received by Mr. Nwammadu seven days after it was mailed, that is, on March 2, 2004. Paragraph 72(2)(b) of the Act stipulates that an application for leave for judicial review is to be filed and served within 15 days after the day on which the applicant is notified of or otherwise becomes aware of the matter. Mr. Nwammadu therefore should have filed his application for leave by March 17, 2004. However, he maintains that he became aware of the Board's determination only on April 19, 2004, and it was only on April 22, 2004, a little over a month after the time limit described in paragraph 72(2)(b) of the Act, that he filed and served his application for leave.
[8] The Court agrees with the respondent that an extension of time should not be granted in this case, because, as explained below, Mr. Nwammadu failed to demonstrate that he was unable to meet the time limit described in paragraph 72(2)(b) of the Act.
[9] In Canada (Attorney General) v. Hennelly, the Federal Court of Appeal enunciated the criteria to be met by a party seeking an extension of time:
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[10] It cannot be said that there is a reasonable explanation for the delay in this case. Only an unanticipated event that is beyond the control of the applicant can justify an extension of time [Chin v. Canada (Minister of Employment and Immigration), at paragraph 8]. Mr. Nwammadu argues that he was in the process of moving when the notice of his decision was sent. Nevertheless, a move is not an unanticipated event that is beyond the applicant's control, such as illness. A move can be prepared and organized. It is therefore reasonable to expect a diligent person, especially a refugee claimant who is expecting a negative decision (the Board had rejected his claim for refugee protection from the bench at the hearing on January 27, 2004), to organize his move so as to ensure that everything goes as planned and he receives his mail [Dimenene v. Canada (Minister of Citizenship and Immigration), at paragraph 11]. Nevertheless, the only evidence on record indicates that Mr. Nwammadu did not notify the Board of his move until March 31, 2004, a month and a half after the fact. This is not exercising due diligence. Since Mr. Nwammadu failed to provide any explanation that could have justified bending the rules, an extension of time is inappropriate in this case. This finding alone is sufficient reason not to analyse the case any further. The Court will nevertheless deal with the second issue.
2. Is the Board's determination with respect to the applicant's unestablished identity and lack of credibility patently unreasonable?
[11] It is well established that, with respect to issues of fact and credibility such as those in this case, the Board's error must be patently unreasonable for the Court to intervene [Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.); Pissareva v. Canada (Minister of Citizenship and Immigration); Singh v. Canada (Minister of Citizenship and Immigration)].
[12] The Board determined that there was an absence of acceptable proof of Mr. Nwammadu's identity. The Board also found that the applicant was not credible, because he had limited knowledge of events that took place between 2000 and 2002 in Kaduna, a city in which he claims he was persecuted, and was unable to provide evidence related to his exact date of departure from Nigeria.
[13] The only piece of photo identification that Mr. Nwammadu provided was his driver's licence. However, the Board found that information on this piece of identification contradicted other evidence submitted: his address, his height and the remark that he had no scars. It was reasonable for the Board not to give any probative weight to the driver's licence, since the evidence adduced was sufficient to question the authenticity of the licence. The finding that Mr. Nwammadu failed to establish his identity was sufficient reason not to analyse the claim any further [Ibnmogdad v. Canada (Minister of Citizenship and Immigration)]. In addition, according to the Board's decision, Mr. Nwammadu had a Nigerian passport; however, he did not submit it at the hearing, alleging that it was in South Africa. Under the circumstances, the Board was perfectly at liberty to find that this undermined Mr. Nwammadu's credibility even more.
[14] Second, it was reasonable for the Board to find that Mr. Nwammadu was not credible in light of his limited knowledge of events that took place between 2000 and 2002 in Kaduna. The panel largely based its determination on the following facts. Mr. Nwammadu said he left Kaduna after his stall was destroyed in September 2002 during deadly riots. The documentary evidence, however, indicates that the rioting took place in November 2002. Furthermore, Mr. Nwammadu was unable to say when the 2000 and 2001 riots occurred. He also did not know anything specific about the Kaduna riots in 2001. He said about 300 people had been killed, whereas the documentary evidence showed there were ten times that number of deaths. Mr. Nwammadu's limited knowledge of the events he allegedly witnessed and experienced gave the Board reasonable grounds to doubt his credibility.
[15] Third, the evidence Mr. Nwammadu provided with respect to his date of departure from Nigeria is contradictory. He testified he left on September 22, 2002, whereas his Personal Information Form indicates that he left on September 20, 2002. Lastly, in his statement to a Citizenship and Immigration Canada officer, he said his departure was on October 2, 2002. The Board therefore had every right to find that Mr. Nwammadu was not credible.
[16] Upon judicial review, the applicant may not simply repeat the explanations and evidence already heard and considered by the Board, as he has done in this case. These explanations and evidence have already been taken into account by the Board, which rendered its decision accordingly. In the absence of a patently unreasonable error, the Court will not intervene.
CONCLUSION
[17] For these reasons, the Court answers both questions at issue in the negative. The application for judicial review is therefore dismissed.
ORDER
THE COURT ORDERS the this application for judicial review be dismissed. There is no question to be certified.
"Michel M.J. Shore"
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3786-04
STYLE OF CAUSE: CHRISTOPHER CHIGOZIE NWAMMADU
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 18, 2005
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE SHORE
DATED: JANUARY 25, 2005
APPEARANCES:
Éveline Fiset FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR THE APPLICANT
Montréal, Quebec
John H. Sims FOR THE RESPONDENT
Deputy Attorney General of Canada
(1999) 244 N.R. 399, [1999] F.C.J. No. 846 (QL) at para. 3.
(1993) 22 Imm. L.R. (2d)136 (F.C.T.D.), [1993] F.C.J. No. 1033 (QL).
2001 FCT 1101, [2001] F.C.J. No. 1525 (QL).
(1993) 160 N.R. 315, _1993_ F.C.J. No. 732 (QL).
(2001) 11 Imm. L.R. (3d) 233, _2000_ F.C.J. No. 2001 (T.D.) (QL).
(2000) 173 F.T.R. 280, _1999_ F.C.J. No. 1283 (T.D.) (QL).
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