Date:20010425
Docket: IMM-5480-99
Neutral Citation: 2001 FCT 385
BETWEEN:
OLABISI JAMES and
MARGARET KEHINDE JAMES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
INTRODUCTION
[1] Olabisi James and Margaret Kehinde James (the "Applicants") seek judicial review of the decision of the Convention Refugee Determination Division, Immigration and Refugee Board (the "Board") dated October 25, 1999. In its decision, the Board granted the application of the Minister of Citizenship and Immigration (the "Respondent"), pursuant to section 69.2 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") to reconsider and vacate the prior determination of the Board that the Applicants were Convention refugees.
FACTS
[2] The Applicants applied on September 26, 1990 for Convention refugee status in Canada. Personal Information Forms were signed in the names of Olabisi James and Margaret James on January 20, 1992. The male Applicant indicated that he had never presented himself under other names, that he was a member of the Yoruba Tribe and was born in Lagos, Nigeria on May 1, 1964.
[3] The female Applicant stated that she was a nursery school teacher and was in her mother's village when her husband was arrested while participating in an aborted coup.
[4] On June 23, 1992 the Applicants were determined to be Convention refugees. In July 1992, the Applicants applied for permanent residence in Canada and were encouraged to attempt to obtain identity documents to support their applications for permanent residence.
[5] On September 1, 1992, one Shola Adekola was arrested and detained by Canadian Immigration authorities on the basis that he had failed to show up for inquiry on October 10, 1991. That inquiry had been set in motion in response to out of status reports which had been completed by Immigration authorities with respect to Shola Adekola and Bukola Adekola. Those reports indicated that the couple were Nigerian nationals who spoke fluent Yorba, and had stated that they entered Canada on December 13, 1990 at Mirabel Airport in Montreal.
[6] On September 2, 1992 the male Applicant appeared in court in connection with seven fraud related charges. On September 20, 1992, he pleaded guilty to one count of possession of a stolen credit card. On September 24, 1992, he was charged with welfare fraud.
[7] On December 30, 1997 the Respondent filed an application for reconsideration and vacation of the Convention refugee status which had been granted to the Applicant. Leave was granted on February 3, 1998. Several months elapsed before the Respondent did anything further about the matter but on March 17, 1999 and July 19, 1999, the vacation hearing was held before the Board.
[8] During the course of that hearing, the Board heard evidence from eight witnesses and examined documents, including photographs. The Board found that Shola Adekola and the male Applicant are the same person, and that the female Applicant had represented herself to the Immigration authorities as Bukola Adekola. The Applicants were receiving social assistance from January 1991 under the name of Adekola. In September 1992, the male Applicant was charged and later convicted of welfare fraud. Although the female Applicant was not charged with welfare fraud, the Board found on the balance of probabilities that she had knowledge of it.
[9] The Board also found that the male applicant represented himself to the Immigration authorities under the name of Yisa Cohen Ogunniyi and that the male Applicant sought Convention refugee status in Canada under that identity as well.
[10] Moreover, the Board found that the Nigerian passports issued to the Applicants were obtained in an irregular manner and were not reliable documents.
[11] The Board found that the birth certificate issued to the male Applicant in the name of "Olabisi James" was genuine. The Board accepted, on the balance of probabilities, that the Applicants are indeed Olabissi James and Margaret James.
[12] The Board concluded that there were grounds to vacate the Convention refugee status granted to the Applicant. The Board found that the use of multiple identities by the Applicants during the period when their refugee claims were being reviewed was a crucial omission which would have raised serious questions in the minds of the panel members about the credibility of the Applicants. It found that the concealment of the multiple identities was material to their refugee claims because it had the effect of foreclosing or averting further inquiries into the well-foundedness of those claims.
[13] The Board concluded that the Applicants were "not persons who concerned themselves about whether or not they tell the truth" and accordingly concluded that this was not a case for exercising its discretion to determine if there was other sufficient evidence upon which the refugee determination was or could have been based.
ISSUE
[14] The only issue to be considered upon this application is whether the Board erred in determining that the Applicants obtained Convention refugee status by fraudulent means, misrepresentation, suppression or concealment of material facts.
APPLICANTS' SUBMISSIONS
[15] The Applicants concede that the male Applicant was guilty of welfare fraud but submits that it is clear that that crime was committed to collect money, not to assist him in prosecuting his refugee claim. The Applicants say that these criminal activities are insufficient to support vacation of his Convention refugee status.
[16] The Applicants also argue that the primary reason why the Respondent sought reconsideration and vacation of their refugee status was doubt that the Applicants were in fact Olabisi James and Margaret James, and that the evidence used to support these identifies was fraudulent.
[17] The Applicants argue that the Board specifically accepted the identities of the Applicants. They argue that this finding undermines the basis for which the vacation hearing was sought in the first place and consequently, the Board should not have vacated their status.
[18] Next, the Applicants argue that the Board erred in rejecting the authenticity of their passports since the issuing authority, that is the Nigerian Government, had stated that the passports were genuine. The Applicants argue that it is unreasonable for a Canadian authority to rule that the passports were not genuine when they had been determined otherwise by the issuing authority.
[19] The Applicants argue that in their case, the use of multiple names was a collateral matter and unrelated to their claims for status as Convention refugees.
[20] The Applicants submit that there was no proper reason for the Board to distinguish their case from the situation in Olutu v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 1704. The fact that the Applicants had actually made refugee claims in other names, as opposed to the situation in Olutu, supra, where those claimants had not made multiple refugee claims in different names, is an irrelevant distinction. Consequently, the Applicants argue that the principle at work in Olutu, supra, should apply here as well. They suggest that the Board should have considered the relationship between the misrepresentations and the claim for Convention refugee status, and that the failure to do so is a reviewable error.
[21] Finally, the Applicants argue that the Board has decided, in effect, that a person who otherwise qualifies for Convention refugee status, as appears from the finding made in June 1992, could not qualify for that status as the result of committing welfare fraud and filing refugee claims in false names, because that person could not possibly be found credible.
RESPONDENT'S SUBMISSIONS
[22] The Respondent argues that Olutu, supra stands for the principle that where material misrepresentations have been made with respect to refugee claims, for example, the submission of multiple refugee claims under different names, that a Board may properly vacate Convention refugee status on the basis of the impugned credibility of the claimant.
[23] In Olutu, supra the Court found that the Board in that case had based its credibility findings on the allegation that the claimant had made two other claims, a fact that counsel for the Minister conceded was erroneous. In the present case, the Board had evidence to weigh with respect to the other refugee claims by the Applicants under several different names and accordingly, was in a position to distinguish the present case from the facts in Olutu, supra.
[24] In response to the arguments raised by the Applicants concerning the fact that the Board found on the balance of probabilities that the Applicants were likely Olabisi James and Margaret James, and that they should retain refugee status since they had proved those identities, the Respondent submits that the issue of multiple identities was not the basis of the Board's decision. Rather, the Board relied on an assessment of the Applicants' credibility in determining that their Convention refugee status should be vacated.
[25] The Respondent next submits that the Board found no remaining credible evidence on which to base their decision or to exercise their discretion pursuant to section 69.3(5) of the Act.
[26] The Respondent argues that until an Applicant is determined to be a Convention refugee pursuant to section 2 of the Act, he carries the burden to provide clear and convincing proof as to the well-foundedness of his claim. The Respondent says that there was insufficient credible evidence remaining before the Board to support the exercise of discretion. Furthermore, the Respondent says that the Board is limited to considering the evidence prior to the initial determination of Convention refugee status, not evidence as to subsequent events.
ANALYSIS
[27] The point of departure in considering this application is the applicable standard of review.
[28] It is well accepted that the standard of review of a decision of the Board, even considering an application for reconsideration and vacation, is patent unreasonableness;
see De Connick v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 207 and Chen v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 203.
[29] In the present case, the only question is whether the Board properly distinguished the decision in Olutu, supra, since it is apparent that the Board had sufficient evidence to conclude that these Applicants had made more than one claim for Convention refugee status under different names.
[30] In my opinion, the Board properly distinguished the decision in Olutu, supra. In that case, the Applicant had used different names to obtain welfare but had not made multiple applications in different names for Convention refugee status. In the present case, the male Applicant employed different identities both to obtain welfare benefits and to invoke the protection of Convention refugee status. It is not clear why the Applicants chose to act in this manner.
[31] However, the fact that they ultimately obtained Convention refugee status under their own names does not diminish the negative impact on their credibility in relation to pursuit of Convention refugee status.
[32] In my opinion, the Board was justified in concluding that multiple applications for Convention refugee status under multiple different names was a basis for reaching a negative assessment of the overall credibility of these Applicants.
[33] Accordingly, I conclude that there is no basis to interfere with the decision of the Board, either with respect to its general negative credibility findings or with the manner in which they decline to exercise the discretion afforded by section 69.3(5) of the Act.
[34] Counsel did not submit a question for certification.
[35] The application for judicial review is dismissed.
"E. Heneghan"
Ottawa, Ontario
April 25, 2001