Date: 20020306
Docket: IMM-5222-00
Neutral citation: 2002 FCT 249
Toronto, Ontario, Wednesday the 6th day of March 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
KINGSLEY AKHIGBE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Kingsley Akhigbe is a citizen of Nigeria who claims a well-founded fear of persecution because of his political opinion. He brings this application for judicial review from the September 14, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found him not to be a Convention refugee.
[2] Mr. Akhigbe testified that he joined the Niger-Delta Youth Movement ("NDYM") in February, 1996 and was appointed to the position of a regional co-ordinator of a zone in May of 1997. As a regional co-ordinator Mr. Akhigbe presided at meetings of the NDYM once per month, provided advice on pollution issues, negotiated with government officials regarding economic and environmental issues arising out of oil exploration in the Niger-Delta area, and submitted reports to the state co-ordinator of the NDYM.
[3] On September 8, 1998 Mr. Akhigbe presided over a zone meeting of NDYM, attended by approximately 200 people. Mr. Akhigbe testified that the meeting was raided by a special government military squad and Mr. Akhigbe was arrested along with others. Mr. Akhigbe was detained in a police station for two weeks, transferred to a military camp for another two weeks, and managed to escape through bribery in late October, 1998. Mr. Akhigbe then went into hiding in Lagos.
[4] On January 5, 1999, with the assistance of the smuggler, Mr. Akhigbe left Nigeria. Mr. Akhigbe noted in his Personal Information Form ("PIF") that the smuggler provided false stamps in Mr. Akhigbe's passport, including a false Temporary Evidence of Lawful Admission for Permanent Residence in the United States, and a false employment authorization stamp.
[5] The CRDD was not satisfied that Mr. Akhigbe provided credible or trustworthy evidence on the material facts of his claim and found that the "issue germane to this claim is credibility".
[6] The CRDD did not find it credible that Mr. Akhigbe could not recall the names of four other important groups working in the Niger-Delta area in circumstances where Mr. Akhigbe had testified that he was co-ordinator for the NDYM for the Rumukoro/Rumusi Zone from May, 1997 to September, 1998.
[7] The CRDD drew adverse inferences from Mr. Akhigbe's failure to present documentary evidence to corroborate the existence of the NDYM, the September 8, 1998 incident, or the death of 12 NDYM members three weeks after Mr. Akhigbe's escape from prison.
[8] The CRDD drew an adverse inference from Mr. Akhigbe's failure to recount in his PIF that: the police took his NDYM membership card when he was arrested in September, 1998; a lawyer tried unsuccessfully to obtain his release from jail; his passport also contained false arrival and departure stamps; and Mr. Akhigbe used a second false passport to go through customs at the Lagos airport.
[9] The CRDD found it implausible that: Mr. Akhigbe would hide in Nigeria for three months instead of travelling on his passport by land to Ghana; neither his siblings nor the state co-ordinator of the NDYM faced serious problems after Mr. Akhigbe's escape from detention; and the NDYM did not know of Mr. Akhigbe's escape from jail and so three weeks after the arrest conducted a demonstration to protest the arrest of Mr. Akhigbe and other members of the NDYM executive.
[10] The CRDD cited no internal inconsistencies in Mr. Akhigbe's oral testimony and no inconsistencies between his oral testimony and his PIF. Neither did the CRDD refer to the country condition documentation which, among other things, reported:
... large numbers of soldiers and paramilitary Mobile Police were deployed across the delta throughout the year. The security forces both failed to protect civilians from violence in many cases, and also themselves carried out serious violations of human rights, including summary executions. As elsewhere in Nigeria, security force action was often indiscriminate, or targeted at those who had not committed any crime but had protested oil operations in exercise of their rights to freedom of expression, assembly, and association. During a military crackdown in late December 1998 and early January 1999 in response to largely peaceful protests in support of the Kaiama Declaration, dozens of young men were killed, most of them unarmed. Others were tortured and inhumanely treated; many were arbitrarily detained for several weeks.
And:
Elsewhere in the oil producing areas of the Niger Delta, police and solders responded to any threat of protest against oil company activity with arbitrary arrests, beatings, and sometimes killings.
[11] It is for the CRDD to assess the weight to be given to evidence, and not for this Court to simply substitute its own view of the evidence. Findings of fact made by the CRDD are to be reviewed on the most deferential standard of review, and should only be interfered with if made in a perverse or capricious manner or without regard for the material before the CRDD.
[12] At the same time, certain principles govern the treatment to be given to evidence by the CRDD. Some, relevant to this application, are:
i) When a claimant swears to the truth of certain allegations, a presumption exists that those allegations are true, unless there is reason to doubt their truthfulness. Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.);
ii) The CRDD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and is entitled to reject uncontradicted evidence if not consistent with the probabilities affecting the case as a whole. Aguebor v. Canada (Minister Of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.);
iii) While the CRDD may reject even uncontradicted testimony, the CRDD cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding. Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.);
iv) Where the CRDD finds a lack of credibility based on inferences, including inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences. Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (F.C.T.D.);
v) In the absence of evidence to contradict the evidence of a claimant, it is an error for the CRDD to require documentary evidence corroborating the claimant's allegations. Ahortor v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 137 (F.C.T.D.); Lachowski v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. 134 (F.C.T.D.); and
vi) The omission of a significant or important fact from a claimant's PIF can be the basis for an adverse credibility finding. Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (F.C.T.D.); Lobo v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 597 (F.C.T.D.).
[13] Applying those principles to the present case, I am satisfied that the CRDD was, on the basis of Mr. Akhigbe's testimony as to his involvement in the NDYM, entitled to draw an adverse inference from Mr. Akhigbe's failure to recall the names of other important groups operating in the Niger-Delta area.
[14] However, I am not satisfied that it was open to the CRDD to make a negative credibility finding on the basis of Mr. Akhigbe's failure to corroborate the existence of the NDYM, the September 1998 incident, or the deaths of other NDYM workers. Such testimony was neither inherently contradictory nor in conflict with the documentary evidence. There was not a basis for ignoring the presumption of truthfulness.
[15] As for the omissions from Mr. Akhigbe's PIF, as noted, the CRDD is entitled to draw a negative inference from the failure of an applicant to set out in his or her PIF important or significant facts. This is consistent with question 37 on the PIF which requires an applicant to set out in chronological order "all the significant incidents" which led the applicant to seek protection.
[16] The CRDD is, however, not entitled to draw a negative inference on the basis of an applicant's failure to omit from the PIF minor or elaborative details.
[17] In the present case, I am satisfied that the taking of the NDYM membership card, the inability of the lawyer to secure Mr. Akhigbe's release from jail, and the failure of Mr. Akhigbe to list all of the false stamps in his passport, are elaborative details of information contained in the PIF so that no inference should have been drawn from their omission from the PIF.
[18] The failure to mention the fake passport used at the airport is a more significant factor to have been omitted from the PIF, and in my view, that omission was capable of supporting the CRDD's negative inference.
[19] As for the plausibility findings of the CRDD, the first related to Mr. Akhigbe's failure to leave Nigeria by land for Ghana. Mr. Akhigbe gave an explanation for that failure, namely that he was not sure of protection in Ghana due to Nigeria's influence there. The CRDD erred by rejecting that evidence without explanation. The CRDD was obliged to deal with Mr. Akhigbe's explanation for his conduct before finding it implausible that he would hide in Nigeria for three months awaiting false documents so as to be able to leave Nigeria by air.
[20] The second plausibility finding was premised on the fact that neither Mr. Akhigbe's siblings nor the state co-ordinator of the NDYM faced serious problems after Mr. Akhigbe's escape from detention. Where the CRDD finds a lack of credibility based on inferences, as in this case where it inferred that siblings and the state co-ordinator ought to have encountered difficulty, there must be a basis in the evidence for the inference. The CRDD cited no evidence on which its inference was based. Given the evidence before the CRDD, referenced above, that security force action was often indiscriminate or arbitrary, I conclude that the CRDD's second plausibility finding was not based on the evidence.
[21] The final plausibility finding was premised on the assumption that the NDYM should have known of Mr. Akhigbe's escape from jail on the payment of a bribe. I can find no evidentiary basis for that assumption, nor was any basis cited by the CRDD.
[22] For these reasons I am satisfied that some errors were made by the CRDD in the assessment of the evidence before it. While some of the CRDD's conclusions as to credibility were reasonably open to the CRDD on the evidence, I am not satisfied that there was in the reasons of the CRDD a sufficient basis for its adverse finding of credibility. Therefore the application for judicial review will be allowed.
[23] Counsel posed no question for certification and no question is certified.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the CRDD dated September 14, 2000 is hereby set aside. The matter is remitted for redetermination before a differently constituted panel of the Convention Refugee Determination Division of the Immigration and Refugee Board.
2. No question will be certified.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
March 6, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5222-00
STYLE OF CAUSE: KINGSLEY AKHIGBE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, FEBRUARY 6, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: WEDNESDAY, MARCH 6, 2002
APPEARANCES BY: Mr. Bola Adetunji
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Mr. Bola Adetunji
Barrister & Solicitor
Carlton on the Park
120 Carlton Street
Suite 313
Toronto, Ontario
M5A 4K2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020306
Docket: IMM-5222-00
BETWEEN:
KINGSLEY AKHIGBE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER