Date: 20121019
Docket:
IMM-8603-11
Citation:
2012 FC 1221
Ottawa, Ontario,
October 19, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
ANTONIO CAMILO AYONG ANGUE ONDO
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
applicant challenges the decision of the Refugee Protection Division of the
Immigration and Refugee Board that found that he was not a Convention refugee
or person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27. For the reasons that follow,
his application is dismissed.
Background
[2]
The
applicant is a citizen of Equatorial Guinea. He claims that the government of
Equatorial Guinea is attempting to detain or assassinate him because of his
involvement in an opposition political party, the Progress Party, which began
in 1992 when he claims to have been detained without charge for two weeks and
tortured for having participated in a student protest. In subsequent years, he
held positions of increasing leadership within the party.
[3]
The
applicant says that his father was jailed, without a fair trial, from 1995 to
1998 for speaking out against electoral irregularities. His father’s physical
and emotional health were broken in prison, and he believes that his father’s
death in 2007 was a direct result of this imprisonment and his treatment.
[4]
The
applicant also says that his mother died when her house was fire-bombed by
government supporters in March 2005. At the hearing, though not in his
Personal Information Form (PIF), he stated that he believed that the attackers
thought he was with his mother that day, and that he was the real target of the
attack.
[5]
In
April 2005, the applicant claims to have been arrested and held without charge
for three days during which time he was beaten. He says that he was released
when townspeople convinced the military chief that he was not engaging in any
political activities. This arrest and beating were not mentioned in the PIF.
[6]
At
the hearing, he stated that in 2006 to 2007 he started working at a bank but
was fired because of his involvement in the party. In his PIF, he claimed that
he worked there in 1993 to 1995.
[7]
The
applicant also claims he was arrested for one night in January 2007, but was
released because he did not have any opposition party materials with him. This
arrest was not mentioned in the PIF.
[8]
On
the night of March 21, 2008, the applicant claims he was visited at his home by
a Lieutenant Colonel in the police who gave or showed him a list. The list,
dated March 20, 2008, was on the letterhead of the Office of the President of
Equatorial New Guinea (the March 2008 List). It reads as follows and states
that the persons named were forbidden from leaving the country:
Through this document, the members of the Progress
Party of Equatorial Guinea, whose names appear below, are accused of holding
clandestine meetings and possessing weapons as well the issuance of personal
documents to them is prohibited: passports, N.I.D. at all national police
agencies. This communiqué is forwarded to all security forces and institutions
of the State, and they are forbidden from leaving the country, until further
notice.
“Antonio Camilo Esono Ayong Angue Ondo”
was one of the eight individuals on the March 2008 List.
[9]
At
the hearing, the applicant stated that his fear arose upon seeing the March
2008 List because an individual on that list was killed.
[10]
The
applicant submitted the March 2008 List as documentary evidence, although he
was not asked nor did he testify as to how he came to have a copy of the
document. Hand-written notations were placed after each name except for the
applicant’s name which had none. Each had the word “jail” after it, except for
one which had the phrase “assassinated 02/05/08” after it.
[11]
Immediately
after being shown the list, the applicant left Equatorial Guinea for one week,
travelling to and around Cameroon. Thereafter, he returned to Equatorial
Guinea. He did not return home but stayed on a farm near Malabo for eight
months while he obtained the documents necessary to get out of the country.
[12]
On
November 30, 2008, once travel documents were arranged, the applicant left for
Spain, where he remained for two months while he could raise the money and make
the other arrangements necessary to leave Spain. In his PIF, the applicant
stated that he “knew [he] could not stay [in Spain] because of the rising
insecurity for Equatorial Guineans living in Europe.” He provided a similar
explanation at the hearing.
[13]
The
applicant also submitted a memorandum purportedly from the Ministry of National
Security, dated November 27, 2008, ordering that the applicant be eliminated
(the Kill Memo). It reads as follows:
All security forces and institutions of the State
located at the borders of Equatorial Guinea are ordered to physically eliminate
the General Coordinator of the Sub-Saharan Area of the Progress Party of
Equatorial Guinea, D. Antonio Camilo Esono Ayong Angue Ondo. In case of flight,
shoot to kill.
A hand-written note directed to the
applicant was at the bottom of the Kill Memo. It reads:
Brother: If at all possible, leave Spain as soon as
possible as those bastards are coming there to look for you in France and in
Spain. Do everything possible to leave Spain.
[14]
On
February 1, 2009, the applicant departed Spain for Italy, en route to Canada
where he arrived on February 3, 2009.
[15]
The
Board rejected the applicant’s claim for protection on the basis of its finding
that he lacked credibility, he had no subjective fear of persecution, and he
had no personalized risk.
Credibility
[16]
The
Board mentioned several credibility concerns.
[17]
First,
although the applicant testified that his father was released from the jail at
Evinayong around 1998, the death certificate showed that his father died at the
public jail of Evinayong, in 2007.
[18]
Second,
the Board found the applicant’s testimony to be inconsistent with the arrest
warrant he provided. The arrest warrant, dated August 27, 2004, ordered the
national security forces to capture the applicant and others. However, he
testified that he had two brief periods of arrest after this warrant was issued
but both times he was quickly released. This was found to be inconsistent with
the warrant or the notion that the applicant was wanted for his political
activity.
[19]
Third,
the Board also did not believe that the applicant would have been able to work
in plain sight at two family businesses up until March 2008 if he was a target
of the government.
[20]
Fourth,
the Board found the applicant’s testimony regarding being fired from a bank in
2007 to be remarkably inconsistent with his PIF in which stated he worked at
that bank in roughly 1993 to 1995. It did not accept his explanation at the
hearing that he was simply “confused.”
[21]
Fifth,
the Board also cast doubt on the March 2008 List, which allegedly triggered the
applicant to depart from Equatorial Guinea. The Board assumed that the
hand-written notation “02/05/08” listed beside the “assassinated” individual
was May 2, 2008, and it found it “implausible that the list [dated March 20,
2008]… would have foretold of a murder that took place more than 5 weeks
later.”
Subjective
Fear
[22]
The
Board found that the applicant’s travels subsequent to March 2008 were inconsistent
with a subjective fear of persecution. Regarding his week-long stay in
Cameroon, the Board found that Cameroon had a “robust refugee program which
grants asylum to tens of thousands of persons” and noted that the applicant had
travelled freely throughout the country between major centres while he was
there. Similarly, the Board found his return to Equatorial Guinea for eight
months, to a location nearer the capital, to be inconsistent with a subjective
fear of persecution.
[23]
Regarding
his time in Spain, the Board felt that if the applicant was truly at risk, he
would have claimed protection there, noting the documentary evidence as to
Spain, and the lack of objective evidence presented to support his claim that
Spain was not a safe place to claim asylum. The Board noted the explanation at
the hearing that he did not remain in Spain because it was not a safe place for
nationals of Equatorial Guinea but further observed that Italy would have been
another safe destination and saw that the failure to claim there was another
indicator that the applicant did not have a subjective fear of persecution.
Personalized
Risk
[24]
The
Board found that the applicant had not established that he faced a personalized
risk. The evidence of his treatment and dealings in Equatorial Guinea ran
counter to any finding of personalized risk according to the Board:
Notwithstanding an allegedly long-standing political
involvement in a banned political party, for which he was known to the police,
and actively sought for arrest and detention from 2004, [the applicant]
continued his life largely untrammelled until March 2008 and again for 8 months
in the vicinity of the national capital from March until November 2008.
Issues
[25]
The
applicant raises four issues:
1.
Did
the Board breach the duty of fairness by not giving the applicant a chance to
respond to issues it identified in both the March 2008 List and the father’s
death certificate?
2.
Were
the Board’s credibility findings unreasonable in light of the evidence?
3.
Did
the Board err in determining that the applicant’s failure to claim protection
in Cameroon, Spain, and Italy and his reavailment implied a lack of subjective
fear?
4.
Was
the Board’s assessment of the applicant’s risk made without regard to the
evidence?
1. Duty of Fairness
[26]
The
applicant submits that fairness dictates that the Board was required to give
him an opportunity to respond to its concerns about the March 2008 List and his
father’s death certificate.
[27]
He
says that the Board assumed that the “02/05/08” inscription on the March 2008
List meant May 2, 2008, which led to its implausibility finding but says that
the inscription could have referred to February 5, 2008, which pre-dated the
preparation of the March 2008 List. He states that had he been given the opportunity
to address this issue, “he would have been able to explain to the Board Member
the date-writing convention of Equatorial Guinea and thereby [resolve] the
issue for him.” He continues saying that:
He would also have been able to address any other
credibility concerns the Board Member might have had about the document in
question such as how he came to have a copy of the document in Canada, who made
the hand-written annotations on it and when, and other questions that generally
get asked about a claimant’s documentary evidence. (This line of questioning
may have been especially significant as the Applicant testified both at the
hearing and in his PIF that he was only shown the list in March, 2008,
and that it was not actually given to him until he obtained the copy of it
later which he presented in evidence.) [emphasis in original]
[28]
I
find these submissions less than convincing. First, it is noted that the
applicant does not suggest or present any evidence that there is a different
convention as to dates in Equatorial Guinea. Indeed, a statement to this
effect is conspicuously absent. Second, although he argues that the Board
should have fully questioned him about how he came to have the list, who made
the inscriptions on it, etc. he ignores that this was not the Board’s
obligation. It was his burden to adduce evidence relevant to his claim. His
counsel did not ask him any questions about how he came into possession of this
list, or indeed about many other important issues, nor does he presently provide
any answers to these questions. Third, the suggestion that the inscribed date
may have been February 5, 2008, is equally problematic because the list was
prepared on March 20, 2008, and one must question the genuineness of a
state-prepared list that includes the name of an individual it assassinated a
month and a half earlier. Fourth, despite the assertion that the applicant
“testified both at the hearing and in his PIF that he was only shown the
list in March, 2008” which carries with it the implication that the
hand-written annotations could have been made after that, it is clear that the
annotations must have been on the list at the time it was shown to him. This
is because he testified at the hearing that he became afraid when he realized
that one of the people on the list had already been assassinated. His current
suggestion that the hand-written assassination annotation might not have
been on the list at the time it was shown to him in March 2008 flies in the
face of the evidence he gave at the hearing.
[29]
Even
if the Board incorrectly assumed that the date inscribed was May 2, 2008 – and
there is presently no allegation that the Board in fact erred in so doing, only
the mere possibility that it so erred – its finding nevertheless fell within a
range of reasonable outcomes having regard to the evidence before it because
the March 2008 List would have been no more credible if the inscribed date was
February 5, 2008.
[30]
The
applicant also submits that he should have been given an opportunity to respond
to the Board’s concern about the place of death on his father’s death
certificate, the Evinayong jail, in light of the testimony given at the hearing
that his father had been released from that jail nine years earlier. He says
that his father “could, for instance, have been a visitor, a chaplain, or an
employee of the jail” at the time of his death and that his testimony was not,
therefore, necessarily contradictory. The applicant does not actually attest
that his father was a “visitor, chaplain, or employee” of that jail. Moreover,
he testified at the hearing that his father was an employee of the Post Office
his whole life and accordingly, his present suggestion that his father “might”
have been an employee at the prison at this time of his death therefore flies
in the face of his own testimony before the Board.
[31]
In
Kumarasekaram v Canada (Minister of Citizenship & Immigration), 2010
FC 1311, at paragraph 14, this Court said that “[a] visa officer is not
required to bring to an applicant's attention every adverse conclusion that the
officer may draw from the evidence submitted by the applicant. Such a duty
could arise when the adverse inferences arise from facts or information not
otherwise known or available to the applicant.” Although decided in a different
context, the same rationale is applicable here. The striking coincidence as to
the prison term and time and place of death were, or ought to have been known
by the applicant. He submitted his father’s death certificate into evidence
and he would have known that his father died at that very same jail. Had the
Board realized the apparent discrepancy at the time of the hearing, it would,
of course, have been preferable that the issue be raised. However, a negative
inference was clearly and reasonably open to the Board.
2. Unreasonable Credibility
Findings
[32]
The
applicant submits that the Board’s credibility findings were unreasonable. He
focuses on the Board’s negative finding regarding the state’s inconsistent
arrest behaviour toward him (which he submits was based on plausibility), and
on ignored evidence. He says that plausibility findings “should be made only
in the clearest of cases, i.e. if the facts as presented are outside the realm
of what could reasonably be expected, or where the documentary evidence
demonstrates that the events could not have happened in the manner asserted by
the claimant:” Valtchev v Canada (Minister of Citizenship and Immigration,
[2001] FCJ No 1131, at para 7.
[33]
He
says that the material before the Board showed that it is not unusual in
Equatorial Guinea for political opponents to be subjected to periods of fairly
minor harassment, punctuated by occasional incidents of serious persecution.
He points out that “what may seem implausible here [in Canada] is clearly not so
in Equatorial Guinea” and that the Board erred by importing its own western
notions into the plausibility assessment.
[34]
I
am not persuaded. I agree with the applicant, the documentary evidence does
indeed show that political opponents may be subjected to periods of fairly
minor harassment, punctuated by occasional incidents of serious persecution.
However, there is no evidence that political opponents subject to an arrest
warrant are arrested on multiple occasions, held briefly, and then released.
Had there been such evidence in the record, then the applicant’s submission
that the Board was importing western notions in its assessment of the evidence
may have been given some weight.
[35]
Further,
the Board made several other reasonable negative credibility findings. As
noted above, it made negative credibility findings about the March 2008 List,
which with the father’s death certificate were pivotal pieces of evidence for
the applicant. It also made a negative credibility finding about the
significant discrepancy in dates the applicant provided relating to his
employment at the bank, a discrepancy that he presently describes as “minor.”
It was not minor. The applicant relied on his dismissal from the bank both in
his PIF and at the hearing as evidence of hostility by the state toward him.
Accordingly, the discrepancy was of serious importance.
[36]
The
applicant also submits that the Board ignored the Kill Memo in its decision.
As noted above, the hand-written note directed to the applicant made at the
bottom of the Kill Memo said:
Brother:
If at all possible, leave Spain as soon as possible as those bastards are
coming there to look for you in France and in Spain. Do everything possible to
leave Spain.
[37]
When
asked by the Board why he left Spain, the applicant made no reference to the Kill Memo as one might have expected.
Instead, he stated that he did so because the Spanish government is more
interested in the oil in Equatorial Guinea than human rights. When probed
later whether he had any evidence that the government was still interested in
him in 2011, he said:
Yes,
there is a document that was sent to me from Spain which they tell me that.
Those who are interested in finding me, you know, finding anyone, they come to
Spain or to France. And when it comes to me, they could come to Spain or
France to kill me.
[38]
This
apparently oblique reference to the Kill Memo is unconvincing. First, it has
nothing to do with 2011, but deals with 2008. Second, while the applicant says
the document was sent to him from Spain, it appears that the document
was sent from outside of Spain, i.e. from Equatorial Guinea because the
relevant portion of the hand-written note says: “… leave Spain as soon as
possible as those bastards are coming there to look for you …
[emphasis added].”
[39]
The
applicant did not testify at the hearing as to how or when he came across the
Kill Memo, or who sent it to him, either in response to the Board’s questions,
or voluntarily. Nor did he allude to receiving such an alarming communication
in his PIF. On the contrary, the PIF only indicates that there was “rising
insecurity” for Equatorial Guineans living in Europe. However, the Kill Memo,
if genuine, would have been alarming and distinctly memorable: it purported to
be a direction to execute the applicant, and was apparently sent to him while
he was in Spain. But he never cited this alarming communication as a reason
why he left Spain. The Board was entitled to give little or no weight to the
Kill Memo.
3. Lack of Subjective Fear
[40]
The
Board found that the travel pattern of the applicant after receiving the March
2008 List was not indicative of subjective fear. He submits that his
particular explanations as to his post-March 2008 travel pattern were either
ignored or unreasonably rejected and thus that the finding of subjective fear
was made unreasonably.
[41]
There
is no disagreement between the parties as to the potential relevance of
the applicant’s failure to claim protection in Cameroon, Spain, and Italy.
However, the Board based its finding of a lack of subjective fear both on the
applicant’s travel to these countries and his failure to make a claim for
protection and on its concerns about the credibility of his evidence
including whether the March 2008 List was genuine. The applicant provided explanations
as to why he did not claim protection in any of these three countries; however,
it was open to the Board to assess those explanations in light of the evidence
he gave as to the existence of persecution or risk in the first place, which
was found to be not credible.
4. Lack of Personalized Risk
[42]
The
applicant submits that he provided evidence as to the risk facing him, namely
the March 2008 List and the 2005 and 2007 arrests. The Board reasonably found
that his allegations as to the risk facing him since at least 2004, especially
the March 2008 List, were not credible. It was entitled to find that he did
not face a particularized, forward-looking risk, and did not need to repeat its
reasoning in relation to the credibility of his evidence.
Conclusion
[43]
The
Board’s decision was reasonable and procedurally fair. Accordingly, the
application must be dismissed.
[44]
Neither
party proposed that a question be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is dismissed and no
question is certified.
"Russel W.
Zinn"
Email this Content