Date: 20050425
Docket: IMM-5565-04
Citation: 2005 FC 557
Ottawa, Ontario, April 25, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
NIMOTA SHOKUNBI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Refugee Protection Division of the Immigration and Refugee Board (the "Board"), in its decision from the bench delivered April 30, 2004, determined that the Applicant, Nimota Shokunbi, is not a "Convention refugee" nor a "person in need of protection". The conclusion was based on its finding that the Applicant has failed to establish her identity and that her evidence was not credible with respect to her assertions of physical abuse by her husband. The Applicant seeks judicial review of the decision on the basis that the Board, having misconstrued and misapprehended the evidence made a perverse and capricious determination.
[2] The Applicant, Nimota Shokunbi, is a citizen of Nigeria who alleges that, in 1991, at the age of 17 years agreed to live with the son of her father's friend on the understanding he would take care of her education. After the birth of her second child, the Applicant claims that her spouse started physically abusing her and bringing other women into their home. The Applicant allegedly fled Nigeria when her spouse insisted that she cut tribal marks on her children. With the help of a smuggler, she arrived in Canada on November 2, 2003, and claimed asylum the next day.
[3] The Applicant sought protection as a Convention refugee and as a person in need of protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA").
[4] In addition to the Applicant's testimony, the following evidence was adduced before the Board: the Applicant's Personal Information Form ("PIF"), the Applicant's personal documents, including her driver's licence, her birth certificate and photos, the birth certificates of the Applicant's children, and documents on country conditions in Nigeria.
[5] The Board afforded no probative weight to the Applicant's identity documents, namely: her driver's licence, her birth certificate, her children's birth certificates and certain photographs. The Board concluded that she had not discharged the burden of proof as to her identity.
[6] As for credibility, the Board stated, that the Applicant was vague and evasive all along the testimony and especially when asked to explain when and how the beatings took place. The Board found her answers superficial and that she seemed to improvise the description of events. Further, the Board found it highly unlikely that when she passed before the Immigration Officers be it in Amsterdam or in Canada, she was never asked any question. Finally, the Board noted that the Applicant could not produce her plane ticket, boarding pass, or passport with which she travelled. The Board determined that it was not possible to know where the Applicant came from or where she lived prior to her arrival in Canada.
[7] Finally, in light of the fact that the Board determined the Applicant to be not credible, it did not apply the guidelines for women victims of abuse, since it found they only apply to credible victims.
ISSUES
[8] This application turns on two issues. First, whether the Board erred in finding that the Applicant did not establish her identity and second, whether the Board erred in making its credibility findings.
STANDARD OF REVIEW
[9] The applicable standard of review in respect to identity determinations is patent unreasonableness. See Gasparyan v. Canada (Minister of Citizenship and Immigration), 2003 FC 863; Adar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695, online: QL; Mbabazi v. Canada (Minister of Citizenship and Immigration), 2002 FC 1191. The same standard of review applies for credibility determinations. See Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 732, online: QL; R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FC 116; Khaira v. Canada (Minister of Citizenship and Immigration), 2004 FC 62.
ANALYSIS
Identity
[10] The identity of the Applicant is the central issue in this judicial review application. The Board considered and afforded no probative value to the following identity documents, namely:
the Applicant's driver's licence, the Applicant's birth certificate and the Applicant's children's birth certificates. I will deal with each of these in turn.
[11] In respect of the driver's licence, the Board noted that the Applicant first testified that she had only one driver's licence and later claimed that she had two. The Board also noted certain discrepancies between copies of the said licences, namely the date of issue and the Applicant's name. The Board concluded that the Applicant's driver's licence could not be considered evidence of her identity for a number of reasons, namely:
- her lack of knowledge of the basic rules of the road;
- her explanation that her school obtained the driver's licence after she filled out a form;
- her explanation that she took the picture that is on the driver's licence herself but then claimed that it was taken at a government office;
- the fact that the signature on the driver's licence does not resemble her signature on the PIF.
[12] The evidence before the Court in respect to the Applicant's driver's licence is anything but clear. The tribunal record contains two very poor copies of what appear to be two different driver's licences. One is purported to be a photocopy of a driver's licence seized from the Applicant at the Port of Entry by Immigration Canada. The Board had before it the very copy that is contained in the tribunal record and not the original. The second document in the tribunal record is a facsimile copy, indeed a copy of a second driver's licence which is also of such poor quality that it is nearly illegible. Given the poor quality of the copies of these documents, it is impossible to determine the dates of issue and other details on the face of the document. It is safe to say, however, that they are two different documents. Given the Applicant's testimony that she had only one driver's licence, the Board concluded that this undermines the Applicant's credibility and gave no probative weight to the driver's licence as evidence to establish her identity.
[13] While it is true that in response to a direct question, the Applicant stated she had only one driver's licence, a careful review of the transcript of evidence of the Applicant's testimony clearly establishes that she was referring to two separate documents namely, an initial temporary licence issued for "some time" which was followed by a permanent licence. There is no material inconsistency in the Applicant's evidence. This evidence does not justify rejecting the driver's licence as probative evidence in respect of the Applicant's identity.
[14] I am satisfied, upon a careful review of the evidence and the transcripts of testimony before the Board, including that testimony in respect to the Applicant's driving skills and knowledge of the rules of the road, that the Board's decision to reject the applicant's driver's licence as probative evidence of identity was patently unreasonable.
[15] The Board also rejected the Applicant's birth certificate and afforded it no probative value on the basis that "the name is not quite the same as in her PIF." The Board rejected the Applicant's explanation that she adopted a "diminutive" version of her name, "Nimotallahi," because her name is long and complicated. The Board failed to explain why the applicant's explanation was unacceptable, it simply stated that the Applicant failed to discharge the burden of proof as to her identity. Given that the first six letters of the name appearing on the birth certificate reflect the Applicant's name, her explanation would appear not only plausible but reasonable. No other issues were identified in respect to the Applicant's birth certificate. In my view, it was patently unreasonable for the Board to reject the birth certificate as a probative evidence of the Applicant's identity for the reasons advanced by the Board.
[16] I recognize that the Board's other findings in respect to the Applicant's children's birth certificates and her inability to present her travel documents may have been reasonably open to the Board.
[17] However, in this case the Board based its credibility findings to a significant extent on its determination that the Applicant failed to adduce credible evidence to establish her identity. Having determined that the Board erred in its treatment of two critical documents, her driver's licence and her birth certificate, the Board may have concluded differently on the application had these documents been assessed properly in respect to the Applicant's identity. It is not for a Court sitting in judicial review to speculate on the result.
[18] In consequence, the judicial review application will be allowed. The matter will be referred back for reconsideration before a differently constituted panel.
[19] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed. the matter is referred back for reconsideration before a differently constituted panel.
2. No question is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5565-04
STYLE OF CAUSE: Nimota Shokunbi v. M.C.I.
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: February 17, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: April 25, 2005
APPEARANCES BY:
Claudette Menghille For the Applicant
Daniel Latulippe For the Respondent
SOLICITORS OF RECORD:
Claudette Menghille For the Applicant
10 Notre Dame E - Suite 700
Montréal, Qc H2Y 1B7
514-289-9611 facsimile: 514-289-9885
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
Montréal, Qc H2Z 1X4
514-283-6484 fax: 514-496-7876