Docket: IMM-5102-15
Citation:
2016 FC 703
Ottawa, Ontario, June 22, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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ITOHAN UKINEBO,
ASMAO ASHAT SANI, RABIETU SAKIRATU SANI and DAUDA SALAMI SANI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision by the Refugee Appeal Division [the RAD] setting
aside the Refugee Protection Division [RPD] decision and finding that the Applicants
are neither Convention refugees nor persons in need of protection in the
meaning of sections 96 and 97(1) of the Act. The Applicants are seeking an order
quashing the RAD’s decision and to have the matter sent back for redetermination.
[2]
For the reasons that follow, the application is
dismissed.
II.
Background
[3]
The principal Applicant in this matter is Itohan
Ukinebo. She is the designated representative of the other Applicants, her two daughters,
Asmao Ashat Sani and Rabietu Sakiratu Sani, respectively aged 6 and 4, and her
son Dauda Salami Sani, aged 2. The Applicants are all citizens of Nigeria.
[4]
The principal Applicant alleges that around
September 24, 2014, Boko Haram militants attacked the Christ Solution Ministry
Christian Church where her husband, Mr. Sani, was a Minister. She claims that
her husband was at the church at the time of the attack and has not been seen
since. As a result of these events, the Applicants claim they fear being killed
by the extremist group Boko Haram.
[5]
On October 5, 2014, the Applicants left
Nigeria and travelled through the Netherlands before arriving in Canada undetected
with the aid of an agent.
[6]
In November 2014, the Applicants made a refugee
protection claim, which was accepted by the RPD on January 14, 2015 recognizing
the Applicants as Convention refugees based upon a conclusion that the Applicants
were credible.
[7]
On February 20, 2015, the Minister appealed the
RPD decision to the RAD regarding the identity of the Applicants based on alleged
evidence demonstrating that the identity documents provided to the RPD by the
principal Applicant were counterfeit or probably counterfeit.
[8]
Both parties introduced new evidence not before the
RPD. The Minister’s request for a hearing was accepted. On October 8, 2015, the
appeal was considered and on October 15, 2015, the RAD set aside the RPD’s
decision.
III.
Impugned Decision
[9]
With respect to the issue of the identity of the
principal Applicant, based on the Minister’s new evidence which consisted of a
Document Analysis Report undertaken by the Canadian Border Services Agency
[CBSA] of the identity documentation provided by the Applicants, the RAD
concluded that the key corroborative identity evidence was counterfeit and that
the birth certificates were also most likely counterfeit. However, the RAD also
accepted the Applicants’ newly introduced identity documents consisting of new
passports. Based upon documentation taken from the Nigerian Immigration Service
website, it concluded that the identity of the principal Applicant and her
children was established.
[10]
However, the RAD proceeded to assess the
credibility of the principal Applicant, concluding that the positive RPD
conclusion on credibility was an error. The RAD found that there were
credibility issues with regard to the Applicants’ identity documents provided
to the RPD which were not known to it. The RAD also concluded that the
principal Applicant was not credible before the RAD when testifying that she
obtained her identity card from the Nigerian National Identity Management
Commission [NIMC] in 2005 as Nigerian government documentation indicates that
the NIMC was only established in 2007.
[11]
The RAD made a negative credibility finding based
on the principal Applicant’s testimony that she had never applied for a
passport or handled the passport used to access Canada when the documentary
evidence demonstrated that the principal Applicant paid the Nigerian government
$250USD, which is a penalty fee for a lost passport, instead of the normal
$30USD fee for a new passport or renewal. As a result, the RAD found the
principal Applicant not credible on a balance of probability.
[12]
The RAD found further credibility issues arising
from the principal Applicant’s documents used to secure her passport that
indicated that she was an “indigene” of Benin City in the south of Nigeria,
rather than Shaffa city in Borno State where she indicated she was living and
where Boko Haram is present. This questioning was raised in the context of why
the principal Applicant did not move to Benin City, rather than undertaking the
expensive migration initiative from Nigeria to Canada. It found the principal Applicant’s
evidence that her travel was arranged outside of her control and knowledge by
persons she was unable to specifically identify not credible. The RAD also did
not find her explanation that she returned to Benin City to obtain her passport,
because she wished to investigate her origins to let her know her “status,”
credible.
[13]
Despite recognizing the RPD’s positive
credibility conclusion, the RAD set aside its decision. Given the record of falsified
documentation and misleading testimony, the RAD concluded that there were no
credible substantive allegations in the file relating to residency and that the
Applicants were neither Convention refugees nor persons in need of protection.
IV.
Issues
[14]
The Applicants raise the following issues:
1.
Did the RAD breach procedural fairness by proceeding
with the credibility assessment when the Minister had only appealed on the
issue of identity and by relying upon country documentation only provided at
the hearing as a basis for some of its negative credibility findings?
2.
Did the RAD err in failing to consider
corroborative evidence?
V.
Standard of Review
[15]
Procedural fairness issues are reviewed on a
correctness standard while findings of facts, which include credibility findings,
are reviewed on a reasonableness standard: Dunsmuir v New Brunswick,
2008 SCC 9.
VI.
Analysis
A.
Breach of Procedural Fairness
[16]
The Applicants submit that the Minister’s appeal
rested on the issue of identity, as such, the Applicants were “ambushed” when
the RAD proceeded to continue a hearing on the issue of credibility after
having established the Applicants’ identities. I reject this submission because
the evidence clearly indicates that the RAD gave more than two months advance
notice that in addition to the identity issue, it would also consider the
issues of credibility and internal flight alternative.
[17]
Moreover, the principal Applicant was advised in
advance that the Minister would be arguing that the corroborative objective
documentation relied upon by the Applicants before the RPD was counterfeit.
This obviously raises a significant credibility issue.
[18]
In addition, the RAD gave notice of its
intention to hold a hearing pursuant to subsection 110(6) of the Act. Hearings
may only be held in respect of new documentation “that
raises a serious issue with respect to the credibility of the person who is the
subject of the appeal.” The Court also notes that the principal Applicant,
although represented, did not object to the RAD delving into the credibility. This
undermines the seriousness of the argument: Linares Morales v Canada
(Minister of Citizenship and Immigration), 2011 FC 1496 at paragraph 13 (Linares
Morales).
[19]
The Applicants further submit that the RAD did
not afford them procedural fairness by its failure to provide an advance
warning of its intention to rely on documents from the Nigerian government
website concerning passport applications and identification documents in
Nigeria. They were used to undermine the credibility of the Applicants.
[20]
I also reject this argument inasmuch as the RAD
member gave a copy of the documentation, which was not extensive, to the
Applicant’s lawyer at the commencement of the hearing indicating his intention
to ask questions regarding the documents relating to passports and IDs.
Thereafter, the RAD member recessed the proceedings to allow the Applicant’s
counsel time to consider the documentation. Upon returning, the Applicants
raised no objection to the documents. The Applicants also did not object when
the RAD member posed questions based on the documentation during the hearing,
or afterwards before the decision was rendered, thereby again undermining the
seriousness of the argument: Linares Morales.
B.
Failure to consider corroborative evidence
[21]
The Applicants submit that there was
corroborative documentary evidence that runs counter to the RAD’s findings. As
such, they contend that the RAD erred in failing to properly refer to this
evidence in its reasons. It is well established that a decision-maker is not
required to make an explicit finding on each constituent element leading to its
final conclusion, so long as the tribunal’s reasons adequately explain the
bases of its decision: Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraphs 16-18.
Nor is there a duty to mention all of the evidence submitted by a party: Singh
v Canada (Minister of Citizenship and Immigration), 2008 FC 408 at paragraph
18.
[22]
In this matter, I am satisfied that given the
seriousness of a credibility failure based on an intention to mislead the
tribunal by the introduction of counterfeit documentation, and the failure to
provide any corroborative evidence on the place of residence from which the flight
was said to take place, along with those concerns arising from the evidence
that was provided on that issue, the reasons are reasonable in finding that the
Applicants are not Convention refugees or persons in need of protection.
VII.
Conclusion
[23]
The application is dismissed and there are no
questions requiring certification.
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