Date: 20071023
Docket: IMM-1042-07
Citation: 2007 FC 1097
Ottawa, Ontario, October 23,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CHRISTOPHER AYALOGU
EVELYN AYALOGU
FRANCIS-XAVIER AYALOGU
KATE AYALOGU
ELIZABETH AYALOGU
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal applicant, Christopher Ayalogu, his wife, Evelyn Ayalogu, and their
children Francis-Xavier Ayalogu, Kate Ayalogu, and Elizabeth Ayalogu, bring
this application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated January 31,
2007 and signed February 21, 2007. In that decision the Board concluded that
the applicants were not Convention refugees or persons in need of protection pursuant
to sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
FACTS
[2]
The
applicants are citizens of Nigeria. The principal
applicant is 65 years old and has been a dedicated Nigerian police officer and
public servant for over four decades. The applicants came to Canada in 1998 when
the principal applicant commenced work as an Administrative Attaché at the
Nigerian High Commission in Ottawa. After retiring from the Nigerian public
service in 2003, the applicants remained in Canada and, in May
2003, commenced an application for permanent residence.
[3]
In
October 2004, the principal applicant received a telephone call from a friend
in Nigeria alerting him
to the death of his brother, who had died on September 15, 2004 from a head
injury and trauma resulting from assault. The principal applicant alleges in
his “Personal Information Form” that his brother was “assassinated by the
hirelings” of the Nigerian government, and that the October 2004 telephone call
warned him “that the bounty killers are also on my lookout.”
[4]
On
November 25, 2004, in light of this information, the applicants filed claims
for refugee protection. The claims were first heard on April 13, 2005. On April
29, 2005, the Board rejected the claims on the ground that the applicants
“failed to provide sufficient credible evidence that they have a well-founded
fear of persecution for any ground in the definition of a Convention refugee.”
The Board concluded that the applicants were “economic migrants who want to
stay in Canada to continue on living ‘the better life that they have come to
know, rather than return to Nigeria.’”
[5]
On
March 26, 2006, Chief Justice Lutfy found that the Board failed to consider the
“relevance and probative value” of a letter that the applicants attempted to
introduce at their hearing before the Board. Accordingly, Chief Justice Lutfy granted
the applicants’ application for judicial review and ordered that the matter be
sent back to the Board for “rehearing and re-determination.”
The refugee claim
[6]
The
principal applicant claims that his life would be in serious danger should he
return to Nigeria because he is a member of the Igbo tribe, which he alleges has
been subject to a government-led campaign of persecution as a result of rumours
that “the Igbos were planning to organize anew their efforts to recreate the
State of Biafra by founding the movement MASSOB (Movement to Actualize the
Sovereign State of Biafra).”
[7]
The
principal applicant also bases his claim on the argument that, as a former
soldier in the Biafran Army who fought for Biafra from
1967-1970 in the civil war, he is perceived by the government as being a leader
and organizer behind the MASSOB. The principal applicant claims that former soldiers
are “now being systematically hounded and assassinated” by the government, and
that “bounty killings have become the order of the day.” The principal
applicant points to the 2004 death of his brother, also an ex-Biafran soldier,
as being one such example.
[8]
The
claims of the principal applicant’s family are premised upon his claim.
Decision under review
[9]
On
January 8, 2007, the applicants’ claim for refugee protection was heard by a
different Board member.
[10]
On
January 31, 2007, the Board concluded that the applicants were neither
Convention refugees nor persons in need of protection. The Board found many
discrepancies between the principal applicant’s testimony and the documents he
adduced in support of his claim, concluding that these discrepancies “undermined
his credibility as regards the danger of return to his country for himself and
the members of his family.”
[11]
The
Board held that the applicant did not submit any evidence from an “independent
and credible source” to support that his brother’s death a
politically-motivated assassination. At the hearing, counsel for the applicant
submitted that the medical certificate was independent and credible evidence on
this fact.
[12]
With
respect to the principal applicant’s fears of persecution associated with his
Igbo ethnicity, the Board stated that “although documentary evidence indicated that
there were serious inter ethnic problems in Nigeria and that
active members of the MASSOB, were often the object of police harassment, there
was no indication that the President of the country was presently carrying out
a ‘genocide’ as he alleged against the Igbos.”
[13]
With
respect to the principal applicant’s fears of persecution associated with his
service in the Biafran Army, the Board held that he had not submitted “any
clear evidence either that he was himself an ex-Biafran soldier [or] that these
older [soldiers] were behind the MASSOB.”
[14]
Finally,
the Board also found that the applicants’ delay in filing their refugee claims
– from the principal applicant’s March 2003 retirement until their November
2004 refugee claims were made – impacted negatively on their credibility. As
the Board stated:
The tribunal noted that his work
terminated in March 2003 and that his brother died in October of the following
year. The claimant explained he was in the process of requesting permanent
residency in Canada and that his request was
still pending. The tribunal understands the claimant’s efforts to try and
remain in Canada, however his behaviour and
his delay in claiming refugee status does not reflect that of a person whose
life and safety are truly in danger. The renewal of the family’s passports in Canada does not indicate that the
claimant feared the authorities in his country. His delay in claiming asylum
undermines his subjective fear.
Applicants’ basis to the
Federal Court application
[15]
At
the hearing, the applicant challenged three credibility findings of the Board
as being patently unreasonable. The applicant alleges that it was patently
unreasonable to find:
1.
the applicant “did not submit any other evidence from an
independent and credible source to support that his brother’s death was indeed
an assassination for political reasons”;
2.
the applicant did not submit any “clear and convincing evidence to
support his allegations that the current government was carrying out systematic
persecution against the Igbos in his country” or that the applicant, himself,
was “an ex-Biafran soldier”; and
3.
the applicant’s “delay in claiming asylum undermines his
subjective fear” of persecution.
ISSUE
[16]
The
only issue raised in this application is whether the Board made patently
unreasonable credibility findings.
STANDARD OF REVIEW
[17]
With respect to the Board’s factual findings, including
determinations of credibility, the appropriate standard of review is patent
unreasonableness. Only if the Board’s findings are unsupported by the evidence
before it will the decision under review be patently unreasonable. Otherwise,
the Court will not revisit the facts or weigh the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration),
2001 FCA 127, 270 N.R. 293 at paragraph 16.
ANALYSIS
Issue: Did the Board err
in making patently unreasonable credibility findings?
[18]
The
Board’s decision to reject the applicants’ refugee claims centred on the
finding that the principal applicant’s story was not credible. As the Board
stated:
The tribunal found several credibility
issues with the claimant’s story and the documents he adduced in support of his
claim. The answers he gave to the tribunal’s questions were not satisfactory.
The many discrepancies between his story, his testimony and the documents he
adduced in support of his claim undermined his credibility as regards the
danger of return to his country for himself and the members of his family.
The Board is in the best position to “gauge
the credibility of an account and to draw the necessary inferences”: Aguebor
v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). As I recently stated
in Olal v. Canada (Minister of
Citizenship and Immigration), 2007 FC 811, [2007] F.C.J. No. 1067 (QL)
at paragraph 13:
¶ 13 The Board has complete
jurisdiction to determine the plausibility of testimony, gauge the credibility
of a claimant’s account and draw the necessary inferences
Accordingly, the Board can conclude that
the principal applicant was not credible on the issues, and such a finding will
not attract judicial intervention unless found by the Court to be patently
unreasonable.
[19]
The
applicants submit that the Board’s decision is patently unreasonable because
there were no contradictions in the applicant’s evidence and that such uncontradicted
evidence “must be considered credible,” and “does not require corroboration”: Lachowski
v. Canada (Minister of
Employment and Immigration) (1992), 18 Imm. L.R. (2d) 134 at 144. I am not
persuaded by this argument and, in this regard, I prefer the statements made by
Mr. Justice MacKay in Akinlolu, above, where he stated at paragraphs
13-14:
¶ 13 Questions
of credibility and weight of evidence are for the [Board] panel in considering
refugee claims. Thus, the panel may reject uncontradicted evidence if it is not
consistent with the probabilities affecting the case as a whole, or where
inconsistencies are found in the evidence or it is found to be implausible.
Particularly where there has been an oral hearing and the panel’s assessment
appears clearly dependent, as in this case, at least in part, upon seeing and
hearing the witness, this Court will not intervene unless it is satisfied that
the panel’s conclusion is based on irrelevant considerations or that it ignored
evidence of significance. In short, its decision must be found to be patently
unreasonable on the basis of the evidence before the panel.
¶ 14 Where
the determination of the panel ultimately turns on its assessment of
credibility, an applicant for judicial review has a heavy burden, as the
reviewing Court must be persuaded that the determination made by the panel is
perverse or capricious or without regard to the evidence before it. Thus, even
where the reviewing Court might itself have come to a different conclusion on
the evidence it will not intervene unless the applicant establishes that the
decision of the panel is essentially without foundation in the evidence.
[20]
Accordingly,
the Court concludes that the Board’s decision was not patently unreasonable. I
am satisfied that the Board properly weighed and considered all of the evidence
before it, and that it was entitled to conclude that the principal applicant’s
story was not credible on the evidence. I also agree with the Board’s
conclusion that it is difficult to comprehend how the principal applicant could
be “targeted as a dangerous person by his government after a long career as a
member of the Nigerian Police Force and as a civil servant with the Ministry of
Foreign Affairs.”
[21]
In
particular, the Board’s credibility finding is not patently unreasonable with
respect to the medical certificate, which makes no reference as to whether the
brother’s death was caused by criminality, accident, or any other reason.
Accordingly, the medical certificate is not an “independent and credible
source” to support the allegation that the death was a politically-motivated
assassination.
[22]
The Court agrees that the applicant did not submit any clear evidence
that he was an ex-Biafran soldier or that there exists objective evidence that
ex-Biafran soldiers were being systematically persecuted by the Nigerian
government.
[23]
As well, the applicant’s delay in claiming refugee status undermines his
subjective fear of persecution. The applicant had no sense of any danger of
persecution prior to his brother’s death. Moreover, he was an employee of the
government until he retired in 2003 after a 40-year career as a government
employee, first as a police officer and then as a diplomat.
[24]
For
these reasons, this application for judicial review must be dismissed.
CERTIFIED QUESTION
[25]
Both parties advised the Court that this case does not raise a
serious question of general importance that should be certified for an appeal.
The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial
review is dismissed.
“Michael
A. Kelen”
Email this Content