Federal Court Decisions

Date: 19971230

Docket: IMM-4812-96

BETWEEN:

     ABIODUN AYODELE

                                         Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                         Respondent

     REASONS FOR ORDER

GIBSON J.:

[1]      These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that term by subsection 2(1) of the Immigration Act¹. The decision is dated the 21st of November, 1996.

[2]      The applicant is a citizen of Nigeria. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Nigeria, by reason of the interrelated grounds of his membership in a particular social group, his family, and his perceived political opinion.

[3]      The factual background on which the applicant's claim is based, as testified to by the applicant, may be briefly summarized as follows. The applicant's father was employed in the office of a former Prime Minister of Nigeria. In mid-March 1995, the Nigerian military government arrested a wide range of individuals in connection with what it considered to be an aborted coup against the government. The applicant's father's employer was among those arrested. Late in the afternoon of March 20, 1995, the applicant's father disappeared. That night, military personnel attended at the applicant's family home. The applicant, who was then 19 years of age, was questioned and taken into detention at a military facility. There, he was interrogated about his father and "slapped around". On the 5th day of his detention, he was allowed to walk away from the military facility in the company of a friend of his father. At the behest of the friend, the applicant went into hiding in a village. He stayed in hiding for four months. At the end of that period, the friend provided the applicant with a passport and plane ticket, advised the applicant that it would be safer for him if he left Nigeria, and accompanied the applicant to Canada where the applicant asserted his claim to refugee status.

[4]      In its reasons for decision, the CRDD commenced its relatively brief analysis with the following paragraphs:

The panel has identified credibility and the well-foundedness of the claimant's fear as the central issues in determining this claim.

For the following reasons, the panel does not believe the claimant's account of events.

[5]      The CRDD disbelieved the assertion that the claimant's father was associated with the former Prime Minister. In support of this disbelief, it cited the "scant detail" that the applicant was able to provide regarding his father's work and the nature of the business in which he worked. It noted the applicant's difficulty in recalling his father's work history. In this regard, it cited two examples of what it considered to be inconsistencies in the applicant's testimony, neither of which was put to the applicant to provide him with an opportunity to explain the perceived inconsistencies. The CRDD simply did not believe the applicant's evidence that military officers attended at his home and took him into custody. After a review of documentary evidence regarding the actions of the government in relation to the aborted coup, the CRDD concluded that it simply was not plausible that the military would have attended at the applicant's home in search of his father and documentation which might connect the father to the alleged coup attempt. The CRDD further found it implausible that the applicant would have continued to be held in detention after the former Prime Minister's release from detention, albeit the latter's release was under house arrest. It is worthy of note that the applicant testified to the effect that he made good his walk-away from detention within only a few days of the release of the former Prime Minister. The CRDD found the applicant's tale of his walk-away from custody also to be implausible.

[6]      The CRDD cited two other aspects of the applicant's testimony that were of "concern" to it. The applicant was unable to state the name of the village where he allegedly remained in hiding for some four months. Further, it had concerns regarding the applicant's explanation for how he came to be in possession of his birth certificate.

[7]      In the result, the CRDD concluded:

For all of the above reasons, the panel is not satisfied that the events, as described by the claimant, ever occurred. Accordingly, they cannot constitute an objective basis for the claimant's alleged fear of persecution in Nigeria.

[8]      Counsel for the applicant urged that the CRDD's bases for determining that the applicant's account of events was not believable were so flawed that the decision should be set aside. By contrast, counsel for the respondent urged that, while the CRDD's reasons for its decision might not be a model of perfection, nonetheless, read as a whole, they were consistent with the testimony and other evidence before it and were entirely sufficient to support a conclusion that the decision of the CRDD was reasonably open to it.

[9]      I am in agreement with the position of the respondent and therefor will dismiss this application for judicial review.

[10]      That being said, two points made in argument before me are, I think, worthy of particular note.

[11]      Counsel for the applicant referred me to Gould v. Yukon Order of Pioneers² where, at page 585, Mr. Justice Iacobucci wrote:

I note that the Board of Adjudication heard no testimony. Apart from two facts which were agreed upon orally at the hearing, all of the evidence was in written form. Moreover, the evidence of the parties was presented entirely by admission and agreement. In these circumstances, where the issue is not the facts themselves but rather the inferences to be drawn from agreed facts, the policy considerations which ordinarily militate in favour of deference are significantly attenuated:...[citation omitted]; [underlining added by me for emphasis.]

[12]      Counsel urged that this passage exposes implausibility findings to greater scrutiny on judicial review than was contemplated in Aguebor v Minister of Employment and Immigration³ where Mr. Justice Décary wrote:

It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.

[13]      First, it must be noted that the Supreme Court had before it in the Gould case a matter where all of the evidence that was before the Tribunal was in written form. There were no issues on the facts but rather only on the inferences to be drawn from agreed facts. When this is borne in mind, I conclude that there are no inconsistencies between the Gould and Aguebor passages cited above and that Aguebor remains a central authority on the review of implausibility findings.

[14]      Second, counsel for the applicant urged that, to the extent that the CRDD based its credibility finding on inconsistencies in the applicant's testimony without drawing those inconsistencies to the attention of the applicant and providing him an opportunity to explain them, the CRDD erred in law and on that ground alone its decision should be set aside. For this proposition, counsel cited as an example of current jurisprudence Guo v Canada (Minister of Citizenship and Immigration)⁴ where Mr. Justice Heald wrote:

The relevant jurisprudence establishes that inconsistencies in the claimant's evidence from which a board may find a refugee claimant not credible must be put to the claimant and the claimant afforded an opportunity to explain the alleged inconsistencies. ... A review of this record indicates that this applicant was not confronted with the alleged inconsistencies in her evidence and given an opportunity to respond, as is required by the rules of natural justice. Specifically the applicant should have been given the opportunity to explain the alleged inconsistency with respect to her evidence relating to her Chinese work unit card and the PSB list of seized items. A failure to afford such an opportunity to the claimant constitutes an error in law.      [underlining added by me for emphasis]

[15]      For the highlighted propositions, Mr. Justice Heald cites Gracielome v. Canada (M.E.I.)⁵.

[16]      With great respect, at least on the facts of matters such as this, I am not satisfied that Gracielome goes as far as counsel for the applicant would have me find. In that decision, Mr. Justice Hugessen wrote:

It is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority after the fact, from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than is this Court.

[17]      On the face of the material before me there is nothing that would indicate that here the contradictions were uncovered by a "painstaking analysis of the transcripts of the evidence." The hearing of this matter took place in one, apparently rather brief, sitting. I was not able to find anything in the certified tribunal record to indicate that the panel members relied on a transcript. Further, the applicant was represented by counsel. I think it is fair to assume that any contradictions in the applicant's testimony would have been as apparent to counsel as to the CRDD members. In such specific circumstances, to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. To reiterate, the Applicant was represented. Presumably, counsel was attentive to the testimony. It was open to counsel to examine or reexamine his or her client on any perceived inconstencies without coaching from the CRDD members.

[18]      As indicated earlier, this application for judicial review will be dismissed.

[19]      Counsel for the applicant recommended certification of a question on the issue of the impact of the Gould decision on the Aguebor decision. Counsel for the respondent recommended against certification of such a question. Counsel for the respondent recommended certification of a question regarding the interpretation of Gracielome represented by Guo. Counsel for the applicant opposed certification of such a question. Neither of the questions proposed are central to my decision which is based entirely on my conclusion that, read as a whole, the decision of the CRDD in this matter was reasonably open to it. In light of the foregoing, no question will be certified.

                                 __________________________

                                     Judge

Ottawa, Ontario

December 30, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      [1996] 1 S.C.R. 571

     ³      (1993), 160 N.R. 315 (F.C.A.)

     ⁴      [1996] F.C.J. No. 1185 (QL)

     ⁵      (1989), 9 Imm.L.R. (2d) 237 (F.C.A.)