Ottawa, Ontario, this 31st day of May, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 2, 2003, wherein it was determined that the applicant is not a Convention refugee nor person in need of protection.
[2] The applicant seeks an order:
1. To review and set aside the Board's decision;
2. To determine the applicant to be a Convention refugee or a person in need of protection; or in the alternative, refer the matter back to the Board with a direction that the same panel or in the alternative, any other panel of the Board should determine the applicant to be a Convention refugee or person in need of protection; and
3. In the alternative, should the application for judicial review be granted, the impugned decision set aside and the matter referred back to a differently constituted panel for redetermination.
Background
[3] The applicant, Mark Okechukwu Nnawuihe,is a citizen of Nigeria who claims a well-founded fear of persecution based upon political opinion and membership in a particular social group, the Movement for the Actualisation of the Sovereign State of Biafra ("MASSOB").
[4] The applicant claimed that after joining MASSOB, he participated in MASSOB activities including attending meetings, making financial contributions and distributing pamphlets to members of the public. The applicant owned a large electronics store in Nigeria.
[5] Because of his involvement with MASSOB, on November 6, 2002, security agents ransacked both his shop and his house, assaulted his wife and terrorised his children. Fortunately he was not at home at the time.
[6] Fearing for his life, the applicant went into hiding and left the country. He arrived in Canada on December 6, 2002, and claimed protection on December 10, 2002.
[7] The applicant's claim was heard on September 10, 2003 and denied on December 2, 2003. This is the judicial review of that decision.
Reasons of the Board
[8] The Board stated that the main issue in the claim was whether or not the applicant was a member of MASSOB. The Board did not find the applicant to be credible and concluded that the applicant had not discharged his burden of proof as to his identity, nor did he establish his membership in MASSOB. The Board noted significant discrepancies in the documents.
[9] Different Addresses
The Board found that there were significant discrepancies in the applicant's addresses on the identity documents:
- The address on the certificate of registration of the applicant's business was 10 New Market, Owerri Imo State.
- The address on the cash receipt from MASSOB bore another address, Emma College Ward 1, Owerri Municipal.
- On question 14 of his PIF, the applicant listed his wife's address as 56, Tetlow Road, Owerri Nigeria. It is the same address listed in Questions 20 of the PIF, as the applicant's residence from December 1990 to November 2002. It is also the address which the applicant listed in question 7 of the Background Information, but in that document the dates of residency are different: December 1992 to December 2002.
The address on the MASSOB membership card issued in 2003 is 3 Oneyche Street, Owerri, Imo State. It did not correspond to any other address given by the applicant. Confronted with this discrepancy, he explained that it was another address for his business. The Board held that the applicant had failed to explain in a satisfactory manner why the address on the back of the membership card is different from all the others. The Board also noted that the applicant claimed that the reason his picture was on the membership card issued after he arrived in Canada was that he had sent back a photo of himself.
[10] Error on the Business Card:
The Board noted that the applicant's first name was misspelled on the business card. It read "Mank" instead of "Mark". The Board did not accept the applicant's explanation as reasonable.
[11] Different Logos
The Board noted that there were different logos on the membership card (an eagle) and the cash receipt (a rising sun). The Board found that the applicant could not explain why the logos were different, considering that both documents were supposedly issued by MASSOB.
[12] The Board noted that an important modification to the PIF was made at the beginning of the hearing. The date when the applicant allegedly joined MASSOB was changed from 2001 to 1999. The applicant explained that the first date was a mistake. The Board found that his explanations were vague and inconclusive. The Board found that as this was a substantial change, it undermined the applicant's credibility.
[13] The Board noted that the applicant alleged that he had a driver's license in Nigeria, and tried to have it forwarded to Canada. He made "lots of phone calls", but the people he contacted could not find it.
[14] The Board also noted that according to his testimony, the applicant travelled with an improperly obtained passport which was not in his name and did not bear his picture. These documents are necessary to board a plane: a passport, a plane ticket and a boarding pass. The Board noted that when these documents are not available, it is not possible for the Board to know where the applicant is coming from, how he travelled, and how long he remained in Canada prior to claiming protection.
[15] The Board did not give weight to the documents submitted by the applicant, since it did not find him credible (see Hamid v. Canada (Minister of Citizenship and Immigration, [1995] F.C.J. No. 1293), the travel documents were unavailable (see Elazi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 212), and his identity was not established (Bhuiyan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 290).
[16] The Board concluded that the applicant did not discharge his burden of proof as to his identity, nor did he establish his membership in MASSOB, which was at the core of his claim.
Issues
[17] The applicant proposed the following issues:
1. Did the Board proceed on the wrong principles and properly guide itself as to the determination of the applicant's claim for Convention refugee status on the basis of the statutory language and case law principles on the definition of a Convention refugee and whether in its overall consideration of the applicant's claim, the Board rightly directed itself to relevant evidence presented by the applicant that substantiated his claim for refugee status?
2. Did the Board fail to take into account relevant evidence presented by the applicant?
3. Was the Board's overall assessment of the totality of the evidence patently unreasonable, perverse and capricious and/or did the Board unfairly and improperly assess the evidence?
Applicant's Submissions
[18] The applicant submitted that the Board misunderstood, and incorrectly assessed the evidence before it and thereby came to an erroneous decision. The Board referred to discrepancies in the documentary evidence produced by the applicant to show that the applicant had not produced credible evidence to support his claim.
[19] The Board referred to the applicant's certificate of registration as one of the pieces of evidence that showed the applicant was not credible. According to the Board, "the business address on it is 10 New Market, Owerri Imo State." A review of the certificate of registration shows that the address of the principal place of business is "Store No.10, New Market Owerri Imo State."
[20] The applicant's testimony was that the market is located at 3 Oneyche St. and that the address on the certificate of registration is the store number and not the address of the market. The Board clearly relied on this alleged inconsistency in addresses supplied by the applicant in making its credibility finding. The applicant submitted that this is a fundamental error.
[21] The applicant submitted that the Board also erred in making an issue of the typographical error on the applicant's business card. It is a non-issue and demonstrates a desire by the Board to find the applicant to not be credible.
[22] The applicant submitted that the Board further erred in its analysis of the receipts issued to the applicant by MASSOB. As to the issue of the different address on the receipt, the Board failed to address the applicant's explanation and indicate whether it considered his explanation to be satisfactory. Merely stating facts without also stating the explanation given by the applicant approximated to giving no reasons for the decision reached.
[23] The applicant submitted that the Board also erred in finding that the applicant failed to explain in a satisfactory manner, why the logo on the back of the membership card (eagle) was different from the logo on the back of the cash receipt (a rising sun), since both documents were supposedly issued by MASSOB.
[24] The Board failed to state the explanation given by the applicant and why it did not find the explanation reasonable. The Board failed to appreciate that the eagle was the logo of the MASSOB organization while the rising sun is the flag of the old Biafra Republic and the flag of the proposed New Biafra Republic.
[25] The applicant submitted that the Board further erred in finding that the applicant's explanation for amending his PIF at the beginning of the hearing was vague and inconclusive. The Board failed to appreciate that in the forms completed by the applicant, when the applicant first made his claim, he stated his date of membership in MASSOB as 1999. The applicant had a copy of this document when he completed his PIF. The error on the PIF was a clerical one. The applicant stated that he had told his counsel about it.
[26] The applicant submitted that the Board committed a reviewable error in not considering the merits of the claim. Instead, the Board concentrated on minor inconsistencies in the documents provided by the applicant, which were in fact satisfactorily explained by the applicant.
Respondent's Submissions
[27] The respondent submitted that the Board found a significant discrepancy between the applicant's alleged MASSOB membership card and his other identity documents, as well as his other evidence in general. Contrary to the applicant's argument, the Board did not err in it's discussion of the registration certificate. The Board recorded the applicant's explanation of the discrepancy as being that the business address on the membership card was another address for his business, not the same address stated differently.
[28] The respondent further submitted that the applicant is inviting the Court to re-weigh and reassess the identity evidence that was before Board. That is not the function of a reviewing court (see Zambo v. Canada (Minister of Citizenship and Immigration) 2002 FCT 414 and Rivan v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1326).
Analysis and Decision
[29] Standard of Review
The applicable standard of review in instances concerning the assessment of the applicant's identity is patent unreasonableness. The standard of review in cases involving credibility findings, which are factual issues, is also patent unreasonableness (see Mayuma v. Canada (Minister of Citizenship and Immigration) 2004 FC 1509).
[30] The Board made a number of findings relating to the applicant's identity and credibility. I will deal with these findings.
[31] Different Logos
At the hearing, the applicant was asked to describe the MASSOB logo and he referred to it as a semi-circle. The Board member described it as a rising sun and a semi-circle with arrows around. The RPO asked the applicant about the logo on the membership card and then asked about the logo on the cash receipt. The transcript reads in part as follows:
Q. What about the logo on the membership card?
A. The logo at the back
Q. What did you say? I apologize, I didn't hear.
A. I didn't get you please
Q. What is the logo on the back of the membership card?
A. It's an eagle
Q. It's an eagle?
A. Yes
Q. Why would they have an eagle on their membership card and a semi . . . half a sun on their cash receipt, on the receipt? Why would they have two different logos?
A. This is the . . . I can't explain it . . . I don't know what you're talking about, believe me
Q. Well we don't either sir, that's why we're asking you, sir.
As is evident from the transcript, the applicant could not explain why there were different logos. As a member of MASSOB, it would not be unreasonable to expect that he should have been able to provide an explanation for the different logos. The Board did not make a reviewable error on this issue.
[32] Discrepancy in the Address of the Store
The Board made a negative credibility finding based in part on the discrepancies between the addresses contained in his documents and on his MASSOB membership card. The address on the membership card did not correspond to any other address he had given. When asked about the difference, the applicant said that it was another address for his business. The Board did not accept the explanation given by the applicant. The Board did not commit a reviewable error in this respect.
[33] Mistake on Business Card
The applicant's first name on his business card read "Mank" while his first name is Mark. When asked by the Board member why would he have a business card with his name printed incorrectly and not have it changed, his answer was, "Actually, I told my . . . who printed this, because it was one of the good ones I had". In my view , in the absence of a reasonable explanation from the applicant, it was open to the Board to draw a negative credibility inference from the misspelling.
[34] Last Minute Amendment to the PIF
The applicant made a change to his PIF at the beginning of the hearing. The date when the applicant claimed to have joined MASSOB was changed from 2001 to 1999. The applicant claimed the first date was a mistake and that he first noticed the mistake in July 2003 and he told his lawyer. The applicant's testimony concerning this matter can be found at pages 216 and 217 of the tribunal record:
Q. When did you realize that there was a mistake in your Personal Information Form, sir? Regarding the line 10, "November 2001" date. When did you realize it was not November 2001, but 1999?
A. Okay. It was much later this year.
Q. When was that sir?
A. When this letter came to me
Q. You're talking about the July letter, sir?
A. Yes, yes, so I was . . .
Q. So you realized . . .
A. The July letter. When the letter came to me, so I was going through my PIF, and I found out there was a mistake there.
Q. Okay. So why did you wait until today to make the changes to the Personal Information Form regarding that date.
A. I told you (inaudible) error that (inaudible) explain.
Q. Pardon me?
A. I said he said it's a typing error, that he will explain, that's what I said. That he will correct it, that's what I said to him.
Q. But why did you wait until today to modify that error? This is my question?
A. I said when I received . . . When I looked this date, (inaudible), I told him (inaudible), I told him "look, ther's a mistake", he said "okay", that he will take care of it.
Q. Because normally, modifications to the Personal Information Form should be made at least 20 days in advance, before the hearing, and what is curious about this modification is that I t reflects more or less the date that you stated when you came here at your immigration I nterview.
A. Yes
Q. And we got the modification of this date on the day of the hearing after we sent you this documentation, which we sent within 20 days. So why wait until today for the modification? It's an important modification. You don't have any answer?
A. I don't have any answer, because I said I noticed it when . . . When I noticed it, I let him know about it.
[35] Given the fact that the applicant became aware of the error after he received the Board's disclosure which included a copy of the Refugee Intake Record of Examination that showed the applicant had joined MASSOB in October 1999, and given the fact that he waited until the date of the hearing to make the change, it was open to the Board to draw a negative credibility inference from the last minute significant amendment to the PIF. I am of the view that the Board did not make a reviewable error on this issue.
[36] I am of the opinion that the Board's finding that the applicant was not credible was open to it to make.
[37] The application for judicial review is therefore dismissed.
[38] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[39] IT IS ORDERED that the application for judicial review is dismissed.
J.F.C.
Ottawa, Ontario
May 31, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-77-04
STYLE OF CAUSE: MARK OKECHUKWU NNAWUIHE
- and
-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 12, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
APPEARANCES:
A. Emeka Nwoko
Tamrat Gebeyehu
SOLICITORS OF RECORD:
A. Emeka Nwoko
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General