IMM-2441-96
BETWEEN:
MICHAEL
OLUGBENGA OJO,
Applicant,
-
and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION,
Respondent.
REASONS
FOR ORDER
HEALD D.J.
This is an application for judicial
review of a decision of the Convention Refugee Determination Division (the
"C.R.D.D.") dated June 18, 1996. By that decision, the C.R.D.D.
found the applicant not to be a Convention refugee.
THE FACTS
The applicant was born and raised in
Nigeria. His oral evidence may be summarized as follows: He joined a group
called the Concerned Professionals (the "C.P.") in April of 1993.
This group of 400 elite professionals were sited throughout Nigeria. It was a
legal organization and was not engaged in clandestine activities. Its objectives
were, inter alia, to promote human rights. The C.P. formed a symposium
to discuss the political impasse that was pushing the country to the brink.
The symposium had just commenced when the military arrested the applicant and
other members of the C.P. The applicant said that he was detained and tortured
for three weeks. Between late July of 1994, when he was released, and November
of 1994, soldiers came to his home and his office several times and questioned
him concerning his activities with the C.P. They also searched his computer
where they found numerous names of prominent Nigerians. He was then detained,
questioned again, and released the next day. He continued to be fearful of
further military investigation. He obtained a Nigerian passport on January 3,
1995 and a Canadian visa on January 24, 1995. He left Nigeria on January 28,
1995 and arrived in Canada on the following day. On his departure from
Nigeria, he said that he bribed the Nigerian customs officer by presenting cash
along with his passport. He applied for Convention refugee status on June 21,
1995.
THE DECISION OF THE C.R.D.D.
The C.R.D.D. found the applicant not
to be a Convention refugee. The rationale for this decision was based solely
on the issue of credibility. The C.R.D.D. found that the applicant's oral
testimony and his PIF differed materially from the documentary evidence before
the tribunal.
The tribunal found the following
inconsistencies in the applicant's evidence:
(a)The
applicant was not certain as to whether the C.P. symposium was held on June 30,
1994 or early in July of 1994. He also said he was arrested, detained and
tortured on the date of the symposium. The panel found that it was not
plausible that the applicant could not remember the exact date of the symposium
given that he was arrested at the same time. The panel believed that the
claimant has fabricated his testimony in this respect and did not give it any
credence.
(b)The
applicant said that he was tortured in detention. However, the evidence is
that he returned to work within a couple of days and did not require medical
treatment.
(c)The
applicant said that after his first release, he was frequented by the military
at work and at home. However, the panel points out that he made no attempt to
leave his work or his home or the city of Lagos where he lived. The panel
found this action to be inconsistent with his alleged fear of persecution from
the military.
(d)The
applicant did not seek help from the C.P. even though he remained in Nigeria
for a considerable period of time before leaving. The panel found this
circumstance to be inconsistent and unreasonable.
(e)The
panel also found that the five month delay in making his refugee claim after
arrival in Canada was inconsistent with the applicant's alleged problems in
Nigeria.
ISSUES
The applicant raises two issues:
(a)The
panel's adverse findings with respect to the applicant's credibility is not
supported by the record herein; and
(b)The
applicant's counsel was incompetent and failed to properly represent him at the
hearing before the C.R.D.D.
ANALYSIS
(a) Adverse Credibility Findings
My perusal of this record persuades
me that the panel's adverse credibility findings were properly based on
discrepancies and inconsistencies between the documentary evidence and the
applicant's testimony. The panel clearly articulated its reasons for rejecting
the applicant's oral testimony and for preferring the documentary evidence.
The documentary evidence was objective in nature. The panel gave the applicant
the opportunity to explain the discrepancies and inconsistencies in his oral
evidence when compared to the documentary evidence. The applicant was unable
to explain these inconsistencies.
On the record, I have no difficulty
in concluding that the tribunal's adverse findings of credibility with respect
to the applicant's evidence was reasonably open to it.
(b) Fundamental Justice
The applicant submits that in the
circumstances of this case, the principles of fundamental justice have been
breached and, accordingly, the intervention of the Court is warranted.
The applicant was represented before
the C.R.D.D. by legal counsel. The applicant states that his counsel only
conferred with him for approximately 45 minutes prior to the hearing. The
hearing record establishes that the applicant was questioned by his counsel for
approximately two hours. Counsel for the applicant intervened frequently
during the applicant's testimony to protect his interests. On this record, I
am not persuaded that the applicant was inadequately and improperly represented
by counsel.
CONCLUSION
Accordingly, and for all the above
reasons, the within application for judicial review is dismissed.
CERTIFICATION
The applicant has proposed six
questions for certification:
1) Does section 7 of
the Charter include a refugee claimant's right to the effective
assistance of counsel, if the claimant wishes the assistance of counsel?
2) If a refugee
claimant wishes the assistance of counsel and obtains the services of counsel,
but counsel fails to provide effective assistance is there a breach of the
applicant's section 7 rights?
3) If so, what is the
remedy and can the Federal Court provide a remedy, under the Federal Court
Act?
4) Does Gould v.
Yukon Order of Pioneers, [1996] 1 S.C.R. 571 overrule wholly or in part, or
otherwise affect the holding concerning the reviewability of implausibility
findings in Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)?
5) With respect the
issue of the Applicant's delay in making a refugee claim, can the Applicant's
explanation of seeking legal advice within a reasonable amount of time ever be
found to be an unsatisfactory explanation, as the Refugee Division found in
this case? [sic]
6) Is the requirement
that the Refugee Division consider explanations of the Applicant that a rule of
law? [sic]
The first three questions are not dispositive of
this case, since the facts do not establish a lack of effective counsel.
Similarly, question four does not arise since this case does not turn on the
degree of deference owed to findings of implausibility. I have held that the
findings of the tribunal were reasonable in view of the arguments and evidence
before the tribunal. The finding referred to in question five was simply not
made by the tribunal. Question six raises no question of general importance
since it is well established that the tribunal must consider the totality of
the evidence. Accordingly, I will not certify any of the questions posed by
counsel for the applicant.
Darrel
V. Heald
Deputy
Judge
Ottawa, Ontario
July 23, 1997
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