Date: 20020118
Docket: IMM-6617-00
Neutral Citation: 2002 FCT 37
Between:
JAMES OLANUSI AKINDELE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated December 8, 2000, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, (the Act) and that his story did not have a credible basis pursuant to subsection 69.1(9.1) of the said Act.
[2] The claimant, James Olanusi Akindele, is a citizen of Nigeria. He claims to have a well-founded fear of persecution based on his religious beliefs.
[3] The Board determined the claimant not to be Convention refugee by concluding : "Given the panel does not find the claimant credible as regards either his testimony or his written story, and given the untrustworthiness of the documents he adduced to support his claim, the panel cannot but conclude to a general lack of credibility". The following reasons were noted:
- The claimant's testimony was generally vague, hesitant and most confusing. He was not spontaneous and repeated his written story often textually. His written story also lacked coherence which made it difficult for the panel to discern exactly what the basis of his claim actually was.
- The claimant was unable to describe his Church in a coherent manner even though he said it was well known in Nigeria. He even had problems in the spelling of its name, as can be seen by the liquid paper correction to question 10 on his Personal Information Form.
- The Information Centre of the Immigration Refugee Board did not find any information on the "Zayon Church" nor the Emmanuel Bible College in Nigeria.
- After careful examination of the identification documents presented by the applicant, it was concluded the driver's license reveals a print typical of counterfeit documents. As well, the school attestation is a computer-generated document including the seal which imitates a rubber stamp.
- The panel does not believe that the Church the applicant named exists nor can it be certain that the claimant is in fact truly from Nigeria.
- The claimant could not give coherent details concerning his arrests by the military in 1993 or in 1999.
[4] The applicant alleges that the Board's conclusions are absurd, arbitrary and without regard to the evidence before the tribunal. It has been confirmed that the Board is entitled to infer that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and that its reasons are set out in "clear and unmistakable terms" (Hilo v. Canada (M.E.I.), 15 Imm.L.R. (2d) 199 (F.C.A.)). As well, unless the contrary is shown, the Board is assumed to have considered all the evidence presented to it, regardless of whether it was mentioned in its reasons (Hassan v. M.E.I. (1992), 147 N.R. 317 at 318 and Florea v. Canada (M.E.I.), [1993] F C.J. No. 598 (F.C.A.)(QL)). Here, upon reviewing the evidence, I am not convinced that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[5] The applicant further alleges that the documents he submitted were rejected without justification. Justice Joyal stated in Culinescu v. Canada (M.C.I.), [1997] F.C.J. No. 1200 (T.D.) (QL), which was confirmed in Hossain v. Canada (M.C.I.), [2000] F.C.J. No. 160 (T.D.) (QL), that the issue of credibility is a question of fact that is within the expertise of the Board members who may question the authenticity of a document when there is enough evidence supporting this conclusion. Here, the Board founded its conclusion on the knowledge of a specialized expert as well as on several inconsistencies and improbabilities that were evident in the documentation provided by the applicant.
[6] The applicant also argues that the Board did not assess the evidence in light of the true situation in Nigeria. It appears to me that the applicant in this case is asking this Court to substitute its assessment of the evidence for the decision of the Board. However, this is not the role of the Court in an application for judicial review (see Tawfik v. M.E.I. (1993), 137 F.T.R. 43 at 46). I am of the view, given the circumstances, that the Board's perception that the applicant is not credible in fact amounts to a conclusion that there was no credible evidence to justify his claim to refugee status (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.)).
[7] The applicant further alleges that the Board failed to act impartially throughout the hearing. I am not persuaded by this argument. The Federal Court of Appeal in Arthur v. Canada (Procureur général), [2001] F.C.J. No. 1091 (QL), confirms the following:
. . . Une allégation de partialité, surtout la partialité actuelle et non simplement appréhendée, portée à l'encontre d'un tribunal, est une allégation sérieuse. Elle met en doute l'intégrité du tribunal et des membres qui ont participé à la décision attaquée. Elle ne peut être faite à la légère. Elle ne peut reposer sur de simples soupçons, de pures conjectures, des insinuations ou encore de simples impressions d'un demandeur ou de son procureur. Elle doit être étayée par des preuves concrètes qui font ressortir un comportement dérogatoire à la norme. Pour ce faire, il est souvent utile et même nécessaire de recourir à des preuves extrinsèques au dossier. C'est pourquoi ces preuves sont admissibles en dérogation au principe qu'une demande de contrôle judiciaire doit porter sur le dossier tel que constitué devant le tribunal.
[8] Here, Mr. Istvanffy, counsel for the applicant, does not provide concrete and serious examples or make reference to extrinsic evidence specific to this file that would indicate a partial attitude on behalf of the Board members. I cannot accept Mr. Tello's affidavit as concrete evidence considering he is a colleague of counsel for the applicant, which does not convince me of an objective opinion. Furthermore, Mr. Tello does not state that he was himself present at this particular hearing. On this issue, the applicant has not satisfied me that an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude that the Board might have decided the matter without objectivity (Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369). I find Mr. Istvanffy's allegation of bias on the part of the Board to be totally unfounded.
[9] The applicant finally submits that the Board's decision and his consequent deportation are in violation of the Canadian Charter of Rights and Freedoms as well as of several rights protected by international law. I consider these arguments without merit on the basis that they are premature and should therefore be rejected. This position finds support in the following comments of Justice Teitelbaum who, in Cota v. Canada (M.C.I.), [1999] F.C.J. No. 872 (T.D.) (QL), refused similar arguments at paragraph [30]:
This argument is without merit. The Federal Court of Appeal held in Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3, that it was premature to determine whether the plaintiff's deportation was cruel and unusual since the Minister had not yet determined whether the plaintiff represented a danger to the public placing him in imminent danger of deportation. It follows that it is equally premature to determine whether a decision refusing to grant the plaintiff refugee status infringes s. 12 of the Charter.
[10] For the foregoing reasons, the application for judicial review is dismissed.
[11] This matter does not raise a question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
January 18, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6617-00
STYLE OF CAUSE: JAMES OLANUSI AKINDELE v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: December 05, 2001
REASONS FOR ORDER of The Honourable Mr Justice Pinard DATED: January 18, 2002
APPEARANCES:
Mr. Stewart Isvanffy FOR THE APPLICANT
Mr. Daniel Latulippe FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Stewart Istvanffy FOR THE APPLICANT Montréal, Québec
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada