Federal Court Decisions

     IMM-551-96

B E T W E E N :

     GRACE ADEFUNKE AKINLOLU

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

    

     Respondent

     REASONS FOR ORDER

MacKAY J.:

     This is an application for judicial review of, and an order setting aside, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated February 1, 1996, that the applicant is not a Convention refugee as defined in s-s. 2(1) of the Immigration Act, R.S.C. 1985, c.I-2, as amended.

     The application was heard in Toronto on February 19, 1997 when decision was reserved. Having had opportunity to consider further the submissions then made and to review the record of the CRDD proceedings, an order is issued dismissing the application. These are reasons for that order.

     The applicant is a woman, a citizen of Nigeria, who arrived in Canada on January 5, 1995 and claimed Convention refugee status. The basis of her claim is a fear of persecution by reason of her political opinion and membership in a particular social group, the Market Women's Association.

     When her claim was considered, the CRDD panel was not satisfied that the evidence adduced did establish good grounds on her part for fearing persecution if she were to return to Nigeria. In reaching that conclusion the panel found that her testimony was neither credible nor trustworthy and by reason of numerous implausibilities was unworthy of belief. Relying upon the decision of the Court of Appeal in Sheikh v. M.E.I., [1990] 3 F.C. 238 at 244 (C.A.), the Court found such a lack of credibility that even without disbelieving every word of the claimant there was no credible or trustworthy evidence relevant to the claim on which it could be upheld.

     That decision is contested on a number of grounds including the claim that the applicant's evidence was consistent and without internal contradictions or without contradiction by other evidence, and that implausibilities relied upon by the panel in finding her evidence not credible were not put to her with an opportunity to respond in the course of the hearings. In particular, it is said that a key to the decision of the panel was its finding that it was implausible that the applicant held the position of leadership within the Market Women's Association that she claimed, and that finding, it is urged, was unreasonable.

     In brief outline the applicant's story is that she was engaged as a business woman, selling wares in a market, after 1988. In 1992 she was elected president of the Nigeria Market Women's Association, Estate Branch IPAJA, in Lagos and was re-elected to the post in 1994. The local organization consisted of some 150 members and it was one of many branches throughout the country. Because of her position she represented the local organization and was actively involved with the national association in support of the election of Chief Abiola in June 1993. When that election was annulled by the military dictatorship in Nigeria the national association, with other organizations, participated in public protests and in these the applicant claims to have played a role representing her local group.

     After Chief Abiola was arrested in 1994, the national association with participation of local groups led further protests against the military regime. At the end of July the applicant claims to have travelled with others from Lagos to Abuja to show support for Chief Abiola at a court appearance scheduled there. On this occasion demonstrators at the court were attacked by police and troops with tear gas and with shooting. Four persons protesting are said to have been killed, but the applicant was able to return to Lagos where she later participated in local demonstrations. In October 1994 she was arrested at her home because she was the leader of the local Market Women's Association and she was detained at an army prison for over two months without any charges against her or any opportunity for legal representation. She was beaten and mistreated by soldiers in the prison. On the day of her arrest her eldest daughter was present and she told her to go and seek assistance from the applicant's friends. One of her friends ultimately arranged for her escape, on payment of a bribe to one of her jailers. She was assisted out of the jail by a man posing as her husband, in the middle of the night, in early January 1995, aided by the bribed jailer. From there she was taken briefly to a hotel where she was permitted to clean up and was fed, then taken to the airport where, with fake travel documents she was permitted to leave. She travelled to the United States and then to Canada, and here she claimed refugee status.

     It is true that a key factor in the panel's decision was its finding that it was implausible that the claimant was ever president of her Estate branch of the Market Women's Association. She had not served as an officer or apparently in any other capacity prior to 1992 and the panel thought it implausible that she would be elected president then without first serving in some less prominent role. She claims she was elected because she was considered better educated than many of her fellow traders, but the panel surmised that if this was so, she would have been asked previously to undertake an executive role, less than that of president.

     It is urged that this conclusion is based on a conception of organizations known in the western world and that the panel did not bring its reservations about this to the attention of the applicant during the course of the hearings with an opportunity for her to respond. I am not persuaded that every reservation held or implausibility found in reflecting upon the applicant's, testimony as a whole must be brought to the applicant's attention before its decision is made. The burden of establishing a refugee claim is on the applicant, including the burden of persuading that the claim to fear of persecution is well-founded.

     The panel also found that the applicant's testimony in regard to her executive role contrasted sharply with the well written description included with her PIF form. The latter provided a clear and comprehensive picture of what the organization stood for, a picture not orally described by the applicant despite questions by her counsel. In the panel's view, someone who had served for more than two years as president of the local association would have responded more spontaneously and fully.

     These assessments led the panel to conclude that the applicant was not politically active in the association and that the rest of her story did not take place. It found implausibilities that did not support her testimony with respect to her alleged arrest, mistreatment in prison and subsequent escape. In particular, the panel found the testimony with respect to her escape from custody to be implausible. After her arrest she emphasized she had no contact with anyone outside the detention facility that was located within a military encampment. She was not able to explain how her friend was able to arrange for her escape or how the friend would determine where she was held and who might be bribed to assist her.

     Moreover, key details of her escape were also found to be implausible. Finally, the panel's decision notes that even if it is mistaken and the applicant was a supporter and political activist in support of Chief Abiola's election, and in subsequent protests when that was annulled, there was still no basis for finding a well-founded fear of persecution. On the basis of documentary evidence, the panel concluded that, despite widespread arrests of opposition leaders and protesters following the annulment of elections, most of those arrested appear to have been released and there was no persuasive evidence to suggest that the claimant's profile was such that she would have been arrested as she claimed, or, had she been so arrested, that the police would still have any current interest in her. A letter filed in support of the applicant, purportedly from her friend who is said to be looking after her children, written in July 1995 after she came to Canada, emphasizes that persons of her position in Nigeria were then routinely hunted down and incarcerated. The letter exhorts her not to return to Nigeria. That letter was not accepted as genuine by the panel because, though said to be written by her friend who was looking after her children, it makes virtually no reference to the children and does not refer to any of them by name.

     Questions of credibility and weight of evidence are for the CRDD 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.

     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.

     In my opinion, the panel in this case appears to have been sensitive to the particular circumstances of the applicant in this case. In its decision, the panel noted that:

In making this negative assessment of the claimant's testimony, the panel also considered the difficulty of giving testimony through even the best of interpreters, cultural differences, and the nervousness that can be induced in a witness, in even non-adversarial proceedings as these surely were, conducted in what for her is an alien environment and whose outcome has serious implications for the claimant. Further, given the nature of the claimant's alleged brutalization at the hands of her army warders during the course of over two months imprisonments which contributes to her fear, the panel also considered the Chairperson's Guidelines on Women Refugee Claimant's Fearing Gender-Related Persecution, both with respect to the procedural and substantive aspects of the claim.

     That said, the panel's decision is based on its general assessment that the applicant's testimony was not credible or trustworthy and was unworthy of belief. Its findings are in essence factual findings based on that negative assessment of the applicant's testimony.

     I am not persuaded that the applicant has met the high burden of establishing that the decision of the CRDD panel was perverse, or capricious or without foundation in the evidence (Federal Court Act, s. 18.1(d)(4)). Thus, my Order goes, dismissing this application for judicial review.

     ______________________________

     JUDGE

OTTAWA, Ontario

March 14, 1997.