Federal Court Decisions

Date: 20060327

Docket: IMM-2938-05

Citation: 2006 FC 387

Ottawa, Ontario, March 27, 2006

PRESENT:      The Honourable Mr. Justice von Finckenstein

BETWEEN:

CYPRIAN AKOEKOKOBE KEBBIANYOR

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

(Delivered orally from the bench and subsequently written for clarification and precision)

[1]                On May 4, 2005, the Immigration and Refugee Board (the "Board") denied the Applicant's application to reopen his refugee claim.

[2]                The original reasons of the Board's negative refugee decision, dated October 24, 2003, denied the Applicant's refugee claim on the basis of a lack of credibility. If found, inter alia:

To establish his identity, the claimant claimed that Citizenship and Immigration Canada (CIC) officers had seized two documents, a birth certificate and a driver's license. Since these documents do not appear on the record, the panel asked CIC to send them to it. CIC sent a copy of his birth certificate and stated that it had never seized his driver's license. The panel deduces from this that the claimant intended to mislead it. (Tribunal Record page 29)

[3]                On March 31, 2005, the Applicant met with Canada Border Services Agency ("CBSB") to finalize his removal arrangements. At that point, he was told that they had some of his documents in their possession. One of these documents was the driver's license which according to CIC at the Applicant's refugee hearing, had never been seized.

[4]                The Applicant then brought a motion to reopen his refugee claim pursuant to Rule 55(4) of the Refugee Protection Division Rules, SOR/2002-228 by reason of a breach of the rules of natural justice.

[5]                The motion was dismissed. The endorsement justifying the decision to dismiss read as follows:

The decision of RPD is not solely based on the driver license issue. The member refers to the destruction of the passport and alternatively to the possibility for the claimant to found refuge in another part of the country. I cannot find any breach of natural justice in the decision of the member because the driver license was not the central element of her decision, but rather, one of them.

[6]                Upon examining the original decision that denied the Applicant refugee status, it is apparent the Board based its decision on three points all of which touch on credibility. First, the Applicant was trying to mislead it by claiming his driver's license had been seized by CBSC when it had not. Two, the destruction of a passport was an action not to be expected from an educated person such as a lawyer and, thus, undermined his credibility. Three, the Applicant had an internal flight alternative in the city of Douala. As the panel stated:

The onus was on the claimant to discharge the burden of convincing the panel that his allegations were true. This was unfortunately not the case. The panel does not believe his story.

[7]                The Board clearly stated "The panel's negative decision was essentially based on credibility". The Applicant's credibility was hopelessly undermined by the following unjustified conclusion (unjustified in light of the facts as we now know them) of the Board:

Since these documents do not appear on the record, the panel asked CIC to send them to it. CIC sent a copy of his birth certificate and stated that it had never seized his driver's license. The panel deduces from this that the claimant intended to mislead it.

[8]                As the Board's original decision on the refugee claim was, in its own words, "essentially based on credibility", it would be a breach of natural justice to let the refusal to reopen the claim stand.

[9]                Accordingly, this application will succeed.

JUDGMENT

THIS COURT ORDERS that the application is allowed, and the matter is remitted to a differently constituted panel of the Board for reconsideration.

                                                                                                    "Konrad W. von Finckenstein"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-2938-05

STYLE OF CAUSE:                           CYPRIAN AKOEKOKOBE KEBBIANYORv. The Minister of Citizenship and Immigration

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       March 23, 2006

REASONS FOR JUDGEMENT

AND JUDGMENT:                           Justice von Finckenstein

DATED:                                              March 27, 2006

APPEARANCES:

Solomon Orjiwuru	FOR THE APPLICANT(S)
Sharon Stewart-Guthrie	FOR THE RESPONDENT(S)

SOLICITORS OF RECORD:

Solomon Orjiwuru	FOR THE APPLICANT(S)
John H. Simms, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT(S)