Ijagbemi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 883

                                                                                                                                             Date: 20010816

                                                                                                                                  Docket: IMM-4915-00

                                                                                                                   Neutral Citation: 2001 FCT 883

Between:

                                                OLUSHOLA IJAGBEMI

                                                                                                                        Applicant

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                    Respondent

                                                REASONS FOR ORDER

PINARD J.:

[1]         The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated August 11, 2000, in which the Board determined she was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

[2]         The applicant, a 31-year-old citizen of Nigeria, claims to have a well-founded fear of persecution because of her membership in a particular social group. More precisely, the applicant claims that Mr. Dagbolu, the senior herbalist in her village, wants her to become his wife against her will.

[3]         The Board found the applicant lacked credibility on the basis of the following observations:

-           The Board found it not credible that, despite her allegation that Mr. Dagbolu was feared by the whole community because of his voodoo powers and the atrocities he had committed, the applicant would have continued to live in her village several months. It found the applicant's story of fetishism not credible for the same reason.

-           The Board doubted the applicant's allegation that Mr. Dagbolu had sent her mother away because she objected to the marriage because there was no evidence that the applicant, her brother or cousin made any effort to obtain assistance to find her.

[4]         Mr. Istvanffy's allegation of bias on the part of the Board, in his submissions filed on behalf of the applicant, is totally unfounded. He has not seen fit to refer the Court to a single instance in the evidence that would tend to show such bias. As recently reminded by the Federal Court of Appeal in AndréArthur v. Le Procureur général du Canada (July 4, 2001), A-333-99, allegations of bias are serious and should not be expressed lightly. At the very least, such affirmations should be founded on the evidence before the Court.

[5]         With respect to the Canadian Charter of Rights and Freedoms issues raised in paragraphs 34 to 38 of the Applicant's Observations, considering the number of cases in which similar arguments were raised by Mr. Istvanffy, the applicant's counsel, and consistently rejected by this Court on the basis that they were premature, these tired arguments are without any merit and should be rejected. This position finds support in the following comments of Justice Teitelbaum who, in refusing counsel's similar arguments in Cota v. Canada (M.C.I.), [1999] F.C.J. No. 872 (QL), at paragraph 30, stated:

This argument is without merit. The Federal Court of Appeal held in Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3, that it was premature to determine whether the plaintiff's deportation was cruel and unusual since the Minister had not yet determined whether the plaintiff represented a danger to the public placing him in imminent danger of deportation. It follows that it is equally premature to determine whether a decision refusing to grant the plaintiff refugee status infringes s. 12 of the Charter.

[6]         Finally, with respect to credibility and evidence, it is well established that a reviewing court should not interfere with the credibility findings of a Board, provided such findings are properly founded on the evidence. The Board is entitled to infer that an applicant is untrustworthy because of implausibilities in his or her evidence as long as its inferences are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 at 316 (F.C.A.)) and its reasons are set out in "clear and unmistakable terms" (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 at 201 (F.C.A.)).

[7]         Unless the contrary is shown, the Board is assumed to have considered all the evidence presented to it, regardless of whether it was mentioned in its reasons: see Florea v. Minister of Employment and Immigration (June 11, 1993), A-1307-91 (F.C.A.) and Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 at 318 (F.C.A.). However, where the Board has failed to refer to evidence which is directly relevant to the central issue in its decision, its decision may be susceptible to review: Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73, per Gibson J.

[8]         In the case at bar, I am concerned with the fact that the Board did not discuss either the rapes or the beatings purportedly suffered by the applicant at the hands of her captor, Mr. Dagbolu. This is even more disconcerting in light of the fact that the Board's assessment was based purely on so-called implausibilities rather than specific internal inconsistencies in the applicant's evidence, and in light of the documentary evidence on the situation in Nigeria including ritual killings and gender inequalities.

[9]         Since the applicant's claim centred entirely on these allegations of violence, I am of the opinion that the Board's omission to have addressed these issues in its reasons was sufficiently serious to warrant the intervention of this Court.

[10]       Consequently, the application for judicial review is allowed, the Board's decision is set aside and the matter is remitted for rehearing by a differently constituted panel.

       JUDGE

OTTAWA, ONTARIO

August 16, 2001

                                                                                                                                             Date: 20010816

                                                                                                                                  Docket: IMM-4915-00

Ottawa, Ontario, this 16^th day of August, 2001

Present: The Honourable Mr. Justice Pinard

Between:

                                                OLUSHOLA IJAGBEMI

                                                                                                                        Applicant

                                                              - and -

                                       THE MINISTER OF CITIZENSHIP

                                                  AND IMMIGRATION

                                                                                                                    Respondent

                                                             ORDER

The application for judicial review is allowed. The decision of the Refugee Division of the Immigration and Refugee Board dated August 11, 2000, in which it determined the applicant was not a Convention refugee, is set aside and the matter is remitted for rehearing by a differently constituted panel.

       JUDGE