Date: 20040512
Docket: IMM-5861-02
Ottawa, Ontario, this 12th day of May, 2004
Present: The Honourable Justice James Russell
BETWEEN:
BARRY IFALUYI EDOBOR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision ("Decision") of the Refugee Protection Division ("Tribunal"), dated October 24, 2002 and signed by the Registrar on November 1, 2002, dismissing the Refugee Claim of Barry Ifaluyi Edobor ("Applicant").
BACKGROUND
[2] The Applicant is a 32-year-old Nigerian citizen who was born in the City of Benin. He is married to a permanent resident of Canada and indicates that his wife intends to sponsor his application for landing in Canada if the exclusion finding that is part of this application is set aside.
[3] The Applicant submits that his problems began in September, 2000 in Sokoto, which is in the northern part of Nigeria, when the pastor of his church was assaulted and hospitalized just prior to a church service. The Applicant notes that there have been continuing tensions between the predominant Muslims in Sokoto and the smaller Christian population. After the Applicant's pastor was assaulted a fight ensued between Muslims and Christians. The police intervened and many people were arrested, including the Applicant. He was bailed out by his grandmother with whom he lived at the time. Because she lived in a predominantly Muslim neighbourhood, she was afraid for the Applicant if he continued to live with her.
[4] The Applicant left Sokoto but returned a week later for his business. On his return, he was told by his friends that Christians were afraid to go out on the street because of the tensions. The Applicant became angry that Christians should be treated in this way and should have to live in fear. He indicates that, because he was recognized as wealthy, young people respected him and listened to what he had to say. He publically expressed his anger that Christians were not free to go about as they wished. He said they must resist the attempted imposition of Muslim Sharia law. He encouraged the Christian youth to exercise their right to be out and about on the streets and not to give in to Muslim threats. The Applicant and some young people got together as a Christian congregation and the Applicant expressed his thoughts at a meeting.
[5] The Applicant later learned that a group of Christians had attacked the mosque down the street from their church, and that the Qur'ans at the mosque had been set on fire. Within days, a youth from the Applicant's congregation was severely beaten by a group of Muslims. The youth was accused of having been involved in the burning at the mosque and, on pain of death, was forced to give the names of those who were youth leaders of the Applicant's church congregation. The Applicant was named as one of the leaders, and, upon learning that he had been identified as such, he fled from Sokoto to Lagos.
[6] In Lagos the Applicant learned that Muslims had visited his grandmother's home in Sokoto and were looking for him. They entered her house and threatened his grandmother with harm if she did not tell them where he was living. The Applicant's grandmother gave them his address in Benin City. The intruders also removed a picture of the Applicant from the house.
[7] The Applicant remained in Lagos for several weeks. After his experience in Sokoto, he felt anxious about the need to resist any dominance by the Muslims and was particularly concerned about the imposition of Sharia law. He became more active in the Oodua Peoples Congress ("OPC") which he believed would resist the Muslim influence and the imposition of Sharia law.
[8] In October 2000, the Applicant learned from his mother that some Muslims had come to his home in Benin City and had told her that they wanted him and that they were going to kill him. She told him there had been writing left on her house which said that the Applicant had violated Islamic law and that the penalty was death. At this point the Applicant became very afraid because it was now apparent that he was being sought outside of Sokoto. He hired some armed bodyguards to protect him and made plans to leave Nigeria. He did not believe that the police could protect him and he feared that some of the police were Muslims. The Applicant indicates that bodyguards are relatively inexpensive in Nigeria and are usually former policemen. He paid about USD200.00 per week for 24-hour protection. This provided him with two guards during the day and two guards at night.
[9] The Applicant paid approximately USD7000.00 to be smuggled across the river into Cameroon. His own Nigerian passport was in Benin with his pastor who had been trying to obtain visas for a group of parishioners who wanted to make a pilgrimage to Jerusalem. Because of his fear that he was being sought, the Applicant was reluctant to pick up that passport and he indicates that he was comfortable with taking a friend's passport from Lagos, which he kept with him in Cameroon. The Applicant asked the manager of the hotel where he was staying in Cameroon if there was some way to get out of Africa. The manager said that for a sum of money he could obtain the Applicant a visa to Cuba. He obtained a visa and the Applicant flew via Moscow to Cuba, where he stayed several days. From Cuba, the Applicant then made his way through Nicaragua, Honduras, Belize, and finally to Canada.
[10] The Applicant arrived on November 27, 2000 at Lester Pearson Airport where he made a refugee claim. He did not have a visa for Canada or a proper passport. After waiting for a couple of hours, the Applicant was sent for examination on November 27, 2000 to an immigration officer called Mr. George. At that examination, Mr. George decided to detain the Applicant and advised him of his right to counsel. At the examination, the Applicant discussed with Mr. George his fears about Muslim fundamentalists in Nigeria who were upset with him for counselling the youth of his church group to resist submission to Sharia law. The Applicant also explained that he was a member of the OPC. The Applicant also made it clear that, because of his social position and his ability as a soccer player, the youth group of his church looked up to him.
[11] The Applicant was subsequently detained at the Celebrity Inn Detention Centre and then brought back for continuing examination before Mr. George and a senior immigration officer at a second interview on November 28, 2000.
[12] The Applicant claims that he was not released from detention until he arranged to have his lawyer receive identity documents that satisfied an immigration adjudicator to release him.
[13] During the interview on November 28, 2000, the Applicant asked for legal counsel and says that he was not permitted to contact counsel until after his interview.
[14] The Applicant submits that his time in detention was very traumatic and affected his ability to complete his Personal Information Form ("PIF"), which he signed while still in custody.
[15] The Applicant points out that, prior to his hearing before the Tribunal, his counsel was provided with written notes made after the examination by Mr. George, together with a statement of the examination typed up by Mr. George in a question and answer format. The Applicant's counsel asked that Mr. George appear at the hearing to be examined on the written and typed notes.
[16] At the hearing, the Applicant says that Mr. George stated he could not recollect how long the interview examinations were with the Applicant and that he only wrote down what he considered relevant. He also said that he saw 50-60 clients a day and could not possibly remember what happened without notes. He had only been working as an immigration officer for a matter of months at the time of the Applicant's interview and he said he had no problems understanding the Applicant's accent. He also said that he typed up the questions and answers directly from his handwritten notes and that he could not recall specifically which officer had asked which questions, or which questions were put by way of suggestion, and that he did not know anything about the OPC prior to the second interview on November 28, 2000.
[17] The Applicant testified at the hearing that both the handwritten and typewritten notes were not recorded in context and that, at various times, he was told by Mr. George to shut up. He said that Mr. George also threatened him with an anal search.
[18] The Applicant indicates that, at the hearing, he testified that he was a member of the OPC-Faleshun Moderate Faction and that he had never claimed to be part of the Ganyi Adams faction. The Applicant submits that there was discussion by the senior immigration officer at his November 28, 2000 interview about the Adams Faction of the OPC, but the Applicant says he never claimed to be part of that faction.
[19] The Applicant submits that, upon request, he produced a letter from his church in Sokoto confirming that he was a member of the congregation.
DECISION UNDER REVIEW
[20] The Tribunal found that there were serious reasons to consider that the Applicant had committed crimes against humanity and should be excluded from refugee protection. The Tribunal also found that the Applicant's evidence was not credible. In deciding that the Applicant was excluded, the Tribunal relied on the notes of the examination made by Mr. George.
[21] The Tribunal found that the Applicant had joined various violent vigilante groups willingly, including the OPC Adams faction. The Tribunal also found that the Applicant was a leader of a faction of the OPC called the Oshody Fearless OPC. He was also considered to have formed an anti-Islamic group which resorted to violence. The Tribunal found that the Applicant participated in the delivery of weapons and was aware of their purpose and that there was no evidence that the Applicant was forced to participate in any of these activities.
[22] The Tribunal found that the Applicant clearly had knowledge of the crimes committed by the OPC, including violence promoted by him as evidenced by the ordering of the distribution of weapons to his followers.
[23] The Tribunal also found that the Applicant testified in a vague, evasive and convoluted manner. There was significant contradictory evidence between his testimony and the testimony of Mr. George and the documentary evidence.
[24] In addition to denying him refugee status on the exclusion ground under Article 1 F(a) of the Immigration Act, the Tribunal also found, as a separate ground, that the Applicant had not established he was a Convention refugee.
RELEVANT LEGISLATION
[25] The Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 2(1) (the "Act"), reads, in part, as follows:
| Definitions
2. (1) The definitions in this subsection apply in this Act.
"Refugee Convention" means the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that Convention, signed at New York on January 31, 1967. Sections E and F of Article 1 of the Refugee Convention are set out in the schedule. 2(2) |
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Définitions
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« _Convention sur les réfugiés_ » La Convention des Nations Unies relative au statut des réfugiés, signée à Genève le 28 juillet 1951, don't les sections E et F de l'article premier sont reproduites en annexe et le protocole afférent signé à New York le 31 janvier 1967. |
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[26] Section 10(b) of the Canadian Charter of Rights and Freedoms (the "Charter") reads as follows:
| Arrest or detention
10. Everyone has the right on arrest or detention
(a) to be Informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. |
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Arrestation ou détention
10. Chacun a le droit, en cas d'arrestation ou de détention:
a) d'être informé dans les plus brefs délais des motifs de son arrestation ou de sa détention;
b) d'avoir recours sans délai à l'assistance d'un avocat et d'être informé de ce droit;
c) de faire contrôler, par habeas corpus, la légalité de sa détention et d'obtenir, le cas échéant, sa libération. |
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[27] Sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees indicate as follows:
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
ISSUES
[28] The issues raised by the Applicant are as follows:
Did the Tribunal err in law by relying on notes of the Immigration Examination Officer which had been obtained in violation of the Applicant's rights to counsel under s. 10(b) of the Charter?
Did the Tribunal err in law by relying perversely, capriciously, or without regard to the totality of the evidence on the examination notes of the Immigration Examination Officer at the Port of Entry?
Did the Tribunal err in law by basing its Decision on an erroneous finding of fact that it made in a perverse or capricious manner without regard to the totality of evidence before it?
ANALYSIS
STANDARD OF REVIEW
[29] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. ...
[30] The Court should not seek to reweigh evidence before the Tribunal simply because it would have reached a different conclusion. As long as there is evidence to support the Tribunal's finding of credibility and no overriding error has occurred, the Decision should not be disturbed.
[31] Counsel agreed at the hearing of this matter that the appropriate standard of review to apply in this case is patent unreasonableness. Except for the first issue raised concerning the right to legal counsel which, in my opinion, raises a question of law that requires a correctness standard, I concur with the suggestions of counsel in this regard.
Did the Tribunal err in law by relying on notes of the Immigration Examination Officer which had been obtained in violation of the Applicant's rights to counsel under s. 10(b) of the Charter?
[32] The Applicant submits that his right to Counsel under s. 10(b) of the Charter was violated at the port of entry.
[33] The Applicant says that Mr. George had determined on November 27, 2000, to detain him under the Act. He provided the Applicant with a caution as to his right to counsel at this time. The Applicant did ask for counsel on November 28, 2000, but was not given immediate access. He says he was deprived of his right to counsel under detention pursuant to s. 10(b) of the Charter. The Applicant submits that the Supreme Court of Canada has recognized this right in R. v. Therens, [1985] 1 S.C.R. 613, in a customs related detention in R. v. Simmons, [1988] 2 S.C.R. 495, and in Dehghani v. Canada, 18 Imm L.R. (2d) 245.
[34] The Applicant notes that Mr. Dehgani, in Dehghani, supra, had been referred for a secondary interview only. He had not been sent to detention and brought back for examination as happened to the Applicant in this case. Hence, the Applicant feels that his case in even stronger than in Dehghani, supra.
[35] The Applicant submits that the proper remedy for such a violation of his s. 10(b) rights is to have the evidence of Mr. George excluded pursuant to s. 24(2) of the Charter. He submits that, after having detained the Applicant and cautioned him about his right to counsel, and after he asked for counsel and was refused, to allow Mr. George's evidence would bring the administration of justice into disrepute.
[36] The Applicant argues that if the evidence of Mr. George is excluded there can be no finding of exclusion against him for crimes against humanity, and his credibility on the inclusion issue may well have been decided differently.
[37] The Respondent takes the position that this issue is not the proper subject of review before this Court because it was not raised before the Tribunal. In addition, relying upon Dehghani, supra, the Respondent says that, even if the Applicant was in a position to raise this issue now, a secondary examination at a port of entry does not constitute "detention" within the meaning of s. 10(b) of the Charter. The Respondent also submits that when the Applicant was taken to the detention centre he was told about his right to counsel and advised that he would be examined the next day. The Respondent submits, therefore, that there was no violation of the Applicant's right to counsel.
[38] The Respondent argues that the Supreme Court of Canada has held that a secondary examination by an immigration officer at a port of entry does not constitute a "detention" within the meaning of s. 10(b) of the Charter. The questioning of the Applicant in the secondary examination was a routine part of the general screening process for persons seeking entry. It was purely for the purpose of processing his application for entry and for determining the appropriate procedures that should be invoked in order to deal with his Application (Dehghani, supra).
[39] The secondary examination was conducted in two steps. It started on November 27, 2000, and was continued on November 28, 2000. The examination on November 28, was a continuation or completion of the initial examination that took place at the airport upon arrival and remained a routine part of the general screening process.
[40] The Respondent submits that, in any case, the Applicant was told of his right to counsel on November 27, 2000, prior to being taken to the detention centre and he was also told that he would be examined the next day. The Respondent submits that the Applicant has failed to explain why, once in detention, he did not obtain counsel prior to the November 28, 2000, examination.
[41] I agree with the Respondent that the issue of the Applicant's rights under 10(b) of the Charter is not reviewable by this Court as part of this application. The issue was not raised by the Applicant with the Tribunal and is not an aspect of the Decision under review. The Applicant was represented by counsel at the Tribunal hearing and was well aware that Mr. George's notes would be a significant aspect of the Tribunal's deliberations. He chose not to raise the right to counsel issue at that time. Consequently, I do not believe that the Tribunal erred in law on this issue.
[42] The Applicant seeks to overcome this difficulty by saying that he raised the issue himself on November 28, 2000, when he asked for counsel at the second meeting with the immigration officials. In my opinion, this does not answer the objections against raising it now when it was not placed before the Tribunal. This Court cannot subject the Decision to judicial review on matters that were not before the Tribunal and where there was nothing to prevent the Applicant from placing them before the Tribunal.
[43] Even if I am wrong in this regard as discussed below, I am of the view that there is no reviewable error on the separate ground that the Applicant failed to establish Convention refugee status.
Did the Tribunal err in law by perversely, capriciously, or without regard to the totality of the evidence, relying on the examination notes of the Immigration Examination Officer at the Port of Entry?
[44] The Applicant submits that the Tribunal's finding on the conflict between his testimony and that of Mr. George was perverse and was made in a capricious manner and without regard to the totality of the evidence.
[45] Mr. George testified at the hearing before the Tribunal that he only had several months of experience as an officer. He also said that he saw 50 to 60 clients a day and that he could not remember which questions were put to the Applicant by way of suggestion and which were asked directly. He said that he wrote down what he considered relevant. The Applicant testified at the hearing that he had never claimed to be a part of the Adams Faction. He says there was a discussion by the senior immigration officer who was present about the Adams Faction but he never said he was part of it. He points out that the typed-up notes of Mr. George are obviously different from the handwritten notes from which they are supposedly taken and he says they are just not acceptable as evidence.
[46] The Applicant's principal point on this issue is that the typed notes are an unreliable re-creation (a kind of editorializing) in a context where Mr. George was seeing 50 to 60 people a day. The typed notes provide a question and answer format that is not obvious in the written notes. There are also expansions in the typed notes that go beyond the written notes.
[47] The Applicant alleges that what are reported to be his answers do not relate to the questions that were inserted in the typed version of the notes. He says that the typed version of the notes was, in the circumstances, entirely unreliable, and the Tribunal relied heavily in its exclusion decision on these typed notes. The typed notes also affected the credibility findings in the inclusion aspect of the claim.
[48] The Applicant submits that the preference by the Tribunal for the notes of Mr. George and the credibility accorded to those notes is a reviewable error, particularly with regard to the exclusion portion of the Decision where the burden of proof for exclusion rests on the Respondent.
[49] The Respondent takes the position that the Tribunal considered and weighed all of the evidence adduced by the Applicant, including his oral testimony and the oral testimony of Mr. George. The Tribunal found that the Applicant was not a credible witness because his testimony was vague, convoluted and evasive and there were also significant contradictions between the evidence of the Applicant and Mr. George as well as between the Applicant and the documentary evidence.
[50] The Respondent notes that the Applicant has taken issue with the reliability of Mr. George's notes. The Tribunal considered the very same issue and decided that the notes were reliable. In reaching its conclusion, the Tribunal considered the following factors:
(a) the content of the hand-written notes and the typed notes is virtually the same;
(b) the officer concerned was a Canadian government official who had no personal interest in the outcome of the refugee claim;
(c) the notes are detailed;
(d) the notes were recorded at the time of the interviews;
(e) the officer testified that page 1 of his typed notes was a summary of the hand-written notes from the initial interview, while the following six pages of typed notes were transcribed using the question and answer format.
[51] The Respondent submits that the Applicant, who did not take any notes of the interviews, testified that he could not remember exactly the questions posed by the officer, nor could he remember his own replies. While the officer was interviewing 50 to 60 clients a day and could not remember all the details, he did take detailed and contemporaneous notes of his interviews with the Applicant. The Respondent submits that, given these facts, it was reasonable for the Tribunal to prefer the evidence of Mr. George to that of the Applicant.
[52] In my opinion, it is for the Tribunal to assess the evidence that is brought forward. In this case, the Tribunal gave careful consideration to the concerns about the notes raised by the Applicant at the hearing. In its reasons the Tribunal is thorough and clear as to why it accepts the notes as evidence and why it prefers the evidence contained in the notes to the account provided by the Applicant. I can find nothing perverse, capricious or patently unreasonable in the Tribunals handling of this issue. In fact, it strikes me as eminently reasonable in the circumstances.
[53] The Applicant is naturally disappointed that his evidence was not preferred. But this is not a ground for judicial review.
Did the Tribunal err in law by basing its decision on an erroneous finding of fact that it made in a perverse or capricious manner without regard to the totality of evidence before it?
[54] The Applicant submits that the Tribunal made a number of factual errors in a perverse or capricious manner without regard to the totality of the evidence before it. He says that the accumulation of these errors renders the Decision patently unreasonable.
[55] The Applicant submits that the Tribunal made the following factual errors:
(a) at page 2 of its Decision, the Tribunal stated that Mr. George had testified that the Applicant had volunteered information that he was affiliated with the Gani Adams Faction of the OPC and that he had distributed arms. The Applicant submits that Mr. George testified that he could not recollect;
(b) at page 3 of its Decision, the Tribunal notes that counsel failed to ask to cross-examine other officers who were allegedly at the interview. The Applicant submits that it is the Respondent who has the burden of proof on exclusion matters and it was wrong for the Tribunal to make adverse inferences from the fact of Applicant's counsel not calling other officers;
(c) at page 6 of its Decision, where the Tribunal summarizes the documentary evidence, it stated incorrectly that the documentary evidence provides that there are two factions of the OPC who are trying to outdo each other in violence. The Applicant submits that the documentary evidence only indicates that one faction is violent in nature and that is the Gani Adams Faction. The Applicant submits that the documents show that the OPC had opposed the existing president of Nigeria, and the executive was blaming the OPC for many activities for which it had no proof;
(d) at page 11 of its Decision, the Tribunal set out that the Applicant could not find his 1999 OPC card. The Applicant submits that he did not get his membership until January, 2000, and this was done by way of letter that was filed at the hearing. He testified that his father had applied for him in 1999;
(e) at page 11 of its Decision, the Tribunal refused to accept that the January 3, 2000 letter from the OPC was genuine. The Applicant submits that the Tribunal provided no reasons for this refusal;
(f) at page 12 of its Decision, the Tribunal inferred that, when the Applicant was asked about the number of times police had been called, he mentioned one date in July, 2001. The Applicant submits that he testified that the police had been called a number of times, and when he mentioned the July, 2001 date this was at his first sitting date in August, 2001. He had testified that he spoke to his mother every three weeks or so, so this would have been the last occasion of speaking to his mother and the last reference of police being called. The Applicant submits that the Tribunal reached an incorrect conclusion from the Applicant's testimony on this issue;
(g) at page 13 of its Decision, the Tribunal stated that it did not accept the Applicant's explanation that he did not seek police protection because he believed Muslims were part of the police and because the police like money. The U.S. Country Reports filed at the hearing clearly set out that the police in Nigeria are weak and susceptible to bribery;
(h) at pages 13 and 14 of its Decision, the Tribunal stated that the Applicant did not mention in his PIF that his grandmother's house had been raided, and the Tribunal drew an adverse inference from this. The Applicant says he testified that the process of focussing on the PIF while in prison at the Toronto West Detention Centre was difficult because he was amongst men who were trying to rape and assault him. In any event, the Applicant says the notes of Mr. George taken on November 27, 2000, refer to his house being raided;
(i) at page 14 of its Decision, the Tribunal drew an adverse inference from a letter provided by the Applicant from his church in Sokoto. The Tribunal found that there was no mention of any problems faced by the Applicant. The Applicant submits that he was responding to a specific request of the Tribunal at his first sitting in August of 2001 that he obtain a letter from the church setting out that he is a member of that church. The Applicant was only following the Tribunal's instructions and he obtained what the Tribunal had requested.
[56] The Applicant submits that the accumulation of these errors led to a Decision that was perverse and capricious and that disregarded the totality of the evidence before the Tribunal.
[57] The Respondent submits that the Tribunal rejected the Applicant's evidence because it contradicted objective documentary evidence. The Respondent points out that every legitimate member of the Fasheun faction of the OPC (the faction that the Applicant claims to be a member of) carries a membership card signed by Dr. Fasheun.
[58] The Respondent says that an assessment of the Applicant's personal credibility is crucial to the decision making function of the Tribunal. The Tribunal would not be able to perform its function at the hearing if it could not assess the credibility of the oral testimony of the claimants (Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.).
[59] The assessment of the Applicants credibility by the Tribunal should not be disturbed by this Court where there was nothing perverse or capricious on any matter central to the Decision. As regards the specific errors raised by the Applicant the Respondent replies as follows:
(a) there is no evidence to support this submission;
(b) there was nothing to stop the Applicant from calling whoever he wanted to call as a witness, so that he could have called the other two officers had he wished. The Respondent admits that the burden of proof was on the Respondent concerning this issue, but it was not a significant aspect of the Tribunal's credibility finding;
(c) this was not a significant aspect of the Tribunal's credibility findings;
(d) the Tribunal rejected the Applicant's evidence because it was contradicted by objective documentary evidence. The documentary evidence on this point indicated that every legitimate member of the Fasheun faction of the OPC carries a membership card signed by Dr. Fasheun. Hence, the Tribunal's rejection of the Applicant's letter was reasonably open to it when this contradictory evidence was looked at in conjunction with other credibility concerns;
(e) the same rationale applies as for (c) above;
(f) there is no evidence in the Applicant's record to support his submissions in this regard;
(g) the conclusion was reasonably open to the Tribunal;
(h) it was open to the Tribunal to draw inferences from omissions in the PIF;
(i) the Tribunal did not draw an adverse inference on this issue but merely gave the Applicant's letter little weight.
[60] I have reviewed each of the issues raised by the Applicant on this ground. I agree with the Applicant that some mistakes were made by the Tribunal. For instance, the Minister did have the burden of proof on the exclusion issue and it was wrong for the Tribunal to draw adverse inferences from the Applicant's failure to call the other officers.
[61] However, when the objections are considered in their entirety and in the context of the Decision as a whole they either raise points that are open to debate and interpretation on the evidence before the Tribunal and so do not require the interference of this Court or, even when they are mistakes, they do not remove the principal material basis for the Tribunal's conclusions that the Applicant was excluded on the grounds that there were serious reasons to consider he had committed crimes against humanity and, as a separate ground, that he had not established a credible claim to convention refugee status.
ORDER
THIS COURT ORDERS that
1. This Application for judicial review is dismissed.
2. There are no questions for certification.
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JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5861-02
STYLE OF CAUSE: BARRY IFALUYI EDOBOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, NOVEMBER 27, 2003
REASONS FOR ORDER BY: RUSSELL, J.
APPEARANCES BY: Mr. Isak Grushka
For the Applicant
Ms. Negar Hashemi
For the Respondent
SOLICITORS OF RECORD: Mr. Isak Grushka
Barrister & Solicitor
979 Eglinton Avenue West,
Toronto, Ontario
M6C 2C5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040512
Docket: IMM-5861-02
BETWEEN:
BARRY IFALUYI EDOBOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER