Ottawa, Ontario, October 18, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR ORDER AND ORDER
[1] The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that the respondent is a Convention refugee. The Minister takes issue with the board's decision and more specifically with respect to its conclusions regarding the respondent's identity and credibility.
BACKGROUND
[2] The respondent arrived in Canada with a Nigerian passport. He claims to be a deacon of the Redeemed Baptist Church in Lagos, Nigeria. In April 2004, he allegedly went to Jos, a city in central Nigeria, along with two pastors. In early May, a church member in Jos accidentally struck and killed a Muslim person with his car. Angry Muslim youths burned the church member's car, vandalized the church, and threatened to kill the church elders in retribution. One of the pastors was murdered. The respondent, angered by police inaction, sent a letter to the Inspector General of the Police and to President Obasanjo criticizing the police, alleging corruption, and accusing the President of mismanaging the country. After returning to Lagos, the respondent claims that he fled the country in fear of his life. He states that since his arrival in Canada he has contacted his mother in Lagos and she told him that the police had been to her home looking for him and had taken his brother for questioning.
THE DECISION
[3] The analysis portion of the reasons of the RPD on the issues of "identity" and "credibility" is as follows:
Identity
The claimant presented educational certificates and demonstrated adequate knowledge of country conditions. The panel is satisfied, on a balance of probabilities, that he is who he says he is and that he is a citizen of Nigeria.
Credibility
The claimant testified in a straightforward manner and presented a letter from his church in Lagoscorroborating his story. In my view, none of the material facts of the claimant's testimony was internally inconsistent, inconsistent with the documentary evidence, nor inherently implausible.
ISSUE
[4] The issue is narrow and can be summarily stated. Is the board's decision based on erroneous findings of fact - with respect to both identity and credibility - made in a perverse or capricious manner or without regard for the material before it? In other words, are the findings "patently unreasonable"?
THE ARGUMENTS
[5] The applicant argues that the Minister submitted significant documentation to the RPD that it completely ignored. Its failure to mention this evidence (the specifics of which will be referred to later in these reasons) implies that it ignored the evidence. The Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the Refugee Protection Rules (the Rules) mandate that a claimant's identity be established through documentation. Identity is a critical factor in assessing a claim.
[6] The applicant contends that it is patently unreasonable for the RPD to have found the respondent to be credible. It failed to weigh evidence of the applicant's criminal convictions, his various assumptions of an alias, and his name change prior to coming to Canada in its assessment of credibility.
[7] In sum, the applicant submits that the Court can infer that a tribunal made an erroneous finding of fact without regard to the evidence from its failure to mention evidence contradictory to its decision. The more important the evidence, the more willing the Court should be to infer from its silence that the board made an erroneous finding.
[8] The respondent relies on a plethora of authority standing for the proposition that questions of credibility and the weight to be accorded the evidence afford no legal basis upon which the Court can properly interfere with the decision of the RPD.
[9] He asserts that he voluntarily disclosed his convictions in the United States as well as his reasons for changing his name. Additionally, he produced identity documents in the form of his passport, his university degrees and (post hearing) an independent letter from the Redeemed Baptist Church corroborating his claim.
[10] The RPD found his testimony to be straightforward and it was within the board's discretion to make such a finding. According to the respondent, this application evinces nothing more than the applicant's disagreement with the board's findings and, as such, is neither an adequate nor an appropriate justification for the Court's intervention.
ANALYSIS
[11] The parties agree that the appropriate standard of review is that referred to in these reasons under the heading "Issue". This standard insulates, but does immunize, the factual findings of the RPD from judicial review.
[12] It is correct that the respondent was convicted of offences (fraud, possession of stolen mail and larceny) in the United States and served a sentence of 14 months in a state penitentiary before being deported from the United States to Nigeria. It is also correct that he disclosed his criminal background both in his personal information form (PIF) and at the hearing of his claim. It is true that he used various names and it is also true that he provided an explanation regarding the use of at least some of those names in a statutory declaration. Oddly, there is no reference to any of this evidence in the board's reasons.
[13] The Minister submitted information that was not insignificant, regarding the respondent, to the RPD. That information, among other things, included:
• a copy of a United States permanent residence card bearing the respondent's photograph that had been seized by United States Homeland Security;
• a copy of a customs declaration card, completed by the respondent, indicating a different date of birth than that shown on his PIF;
• a listing of eight alias names used by the respondent;
• an admission by the respondent, during an interview (recorded in writing), that he had not been truthful at the port of entry (POE);
• a copy of the section 44 report review (report on inadmissibility) regarding the respondent;
• a Citizenship and Immigration Canada (CIC) document outlining the circumstances giving rise to the respondent's convictions in the United States;
• a number of different documents indicating differing dates of birth for the respondent;
• item 3.11 of the standard disclosure package (response to the information request) detailing the availability of false documents in and from Nigeria (such as school transcripts, lawyers' affidavits, drivers' licences, birth certificates and passports);
• two statutory declarations of the respondent where information in one contradicted information in the other.
[14] The jurisprudence of this Court establishes that where there is material evidence that supports a conclusion contrary to that reached by the board, the information should be expressly dealt with in the board's reasons. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), Mr. Justice Evans, then of the Trial Division as it was then constituted, discussed the applicable principles at paragraphs 14 to 17. He stated:
[14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 741 (F.C.T.D.).
[15] The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
[16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration)(1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[15] The issue of identity is identified in the IRPA and in the Rules. Section 106 of the IRPA provides:
| Immigration and Refugee Protection Act, S.C.C. 2001, c. 27 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. |
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Loi sur l'immigration et la protection des réfugiés, L.R.C. 2001, ch. 27
106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer. |
[16] Rule 7 states:
| Refugee Protection Division Rules, SOR/2002-228
7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. |
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Règles de la Section de la protection des réfugiés, DORS/2002-228
7. Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer.
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[17] These provisions signify the importance that Parliament attached to this issue. The emphasis on identity in the legislative scheme was discussed by my colleague, Mr. Justice Lemieux, in Canada (Minister of Citizenship and Immigration) v. Gill (2003), 242 F.T.R. 126 (F.C.) at paragraph 23.
[18] The failure of the RPD to acknowledge and refer to the evidence submitted by the Minister is, in my view, reason to remit the matter for redetermination. There is absolutely no indication on the face of its reasons that the board considered any of the Minister's documents. In view of the contents of those documents and the explicit provisions contained in the IRPA and the Rules, it was incumbent on the RPD to refer to and comment on the Minister's evidence. Ignoring it cannot be an option. Consequently, the determinations of the RPD regarding identity and credibility, notwithstanding that they are factual findings, must be considered to have been arrived at without regard to the evidence and they are therefore patently unreasonable.
[19] For the foregoing reasons, the application for judicial review will be allowed. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted Refugee Protection Division of the Immigration and Refugee Board.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10488-04
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
ELOHO IDISI ARAH
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 13, 2005
REASONS FOR ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
| Robert Bafaro
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| Adetayo G. Akinyemi |
SOLICITORS OF RECORD:
| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
Adetayo G. Akinyemi Barrister and Solicitor North York, Ontario
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FOR THE RESPONDENT |
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