PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division dated October 18, 2005 (sic) wherein it was determined that the Applicant, who had claimed refugee protection, was not a Convention refugee nor a person in need of protection within the provisions of the Immigration and Refugee Protection Act (IRPA).
[2] The Applicant William Bai Sherman was born in Liberiain 1971 and remains a citizen of that country. He came to the United States of America with his mother in 1983 under a false name and remained in that country until 2004. The Applicant's father remained in Liberia apparently to this day. The Applicant has had no contact with his father.
[3] In 2004 the Applicant went to a United States Immigration office in order to regularize his status in that country. At that time he was informed that in 1992 an Order had been made for his deportation to Liberia. At that moment the Applicant fled from the office due to what he describes as an anxiety attack.
[4] While in the United States the Applicant formed a relationship in 1997 with a woman who was a Canadian citizen. He fathered two children by her. The relationship ended in 2001 and that woman returned to Canada with the two children. They continue to reside here. The Applicant married a United States citizen in 2004; that woman continues to reside in that country.
[5] After fleeing the United States Immigration office, the Applicant entered Canada. He says he was motivated to do so by a desire to reunite with his children. This entry was made under a false United States passport. The Applicant was detained by Canadian authorities and, after some four months in a detention centre, the Applicant claimed refugee status claiming to be a Convention refugee and person in need of protection under the provisions of sections 95 to 97 of IRPA.
[6] A hearing was conducted and a written decision, dated November 22, 2005, provided. This is the decision under review. The Notice of Application gives a date of October 18, 2005, however this is the date of the hearing not the decision. Nothing turns on this confusion of the dates. The Member, in that decision concluded that the Applicant had failed to provide sufficient credible evidence that he would be persecuted for any Convention ground in Liberia, thus it was found that the was not a Convention refugee. The Member further found that given the lack of credibility of the claimant's evidence, and the findings made with regard to generalized risk, the claimant was not a person in need of protection pursuant to section 97(1)(b) of IRPA.
[7] The position of the Applicant in this review proceeding is summarized at paragraph 4 of his Memorandum:
4. It is submitted that the Board: Misapprehended the evidence before it: Failed to consider relevant evidence: Raised the irrelevant facts: Either misstated or misunderstood the Applicant's argument: Ignored key evidence: Made conclusions that were arrived at based on conjecture and speculation: Provided no clear and unambiguous reasons for its negative finding with respect to the issue of the credibility of the Applicant's subjective fear of persecution: And improperly stated the test to be applied in the matter.
[8] Counsel are agreed that the standard of review for a decision such as this is either patent unreasonableness or reasonableness (simpliciter). That is, a somewhat probing examination of the Member's decision should be made.
[9] The first issue raised by the Applicant is whether the Member misapprehended the evidence that, since the Applicant left the United States where he had resided for several years, he came to Canada, his subjective fear must be put in doubt. This is not what the Member said, he said that while not determinative, this was a significant factor. The Member is entitled to consider this evidence and he gave it appropriate weight. He did not rely upon it conclusively, but as a significant factor.
[10] The second issue raised by the Applicant was whether the Member failed to consider relevant evidence, namely persecution of immediate family members, a father and uncle. The Member did make reference to the father saying that the Applicant said that he had heard through his sister that someone had abducted his father but that he had been released. No mention is made by the Member of an uncle nor is there such reference in the hearing record. In the transcript of the hearing the Applicant said that he had a cousin who was executed by a firing squad, apparently for political reasons. The Member makes no mention of this in his reasons.
[11] While the Member makes no specific finding as to credibility of the Applicant, it is clear in the Member's conclusions that he finds the Applicant's evidence not to be credible he says at page 8 of his Reasons:
I find that the claimant has failed to provide sufficient credible evidence that he would be persecuted for any Convention ground in Liberia. I find, therefore, that he is not a Convention refugee.
Given my finding regarding the lack of credibility of the claimant's evidence and the findings made with regard to generalized risk, I also find that the claimant is not a person who is in need of Canada's protection pursuant to section 97(1)(b) of the Immigration and Refugee Protection Act.
[12] While the reasons may have been more specific as to the findings of credibility with respect to each point of evidence, the Member's decision does withstand a "somewhat probing examination" (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247). The standard of review on findings of credibility are patent unreasonableness (Aguebor v. Canada (MCI) [1993] F.C.J. No. 732 (FCA)).
[13] I find, therefore, no basis for setting aside the Member's decision on this basis.
[14] The third issue raised by the Applicant was whether the Member took into account irrelevant facts when he made reference to the fact that the Applicant maintains no contact with his father. The Member did not base his decision on this fact. The transcript shows the fact to be true. What the Member found is that the Applicant has made no attempts to contact his father. The Member says that the Applicant who apparently relies on persecution suffered by his father, made no attempt to contact him. The Member remarked on the fact, he did not say that it was determinative as to his conclusions.
[15] The fourth issue raised by the Applicant is as to whether his assertion that there were an increasing number of armed militia groups who use intimidation for economic gains was misinterpreted or misunderstood. The Applicant argues that such groups will target him personally because of his family's past political affiliations.
[16] The Member did consider this issue, and balanced it against the other evidence, provided in the form of documents before the Board. He concluded, at page 5 of his Reasons that "the objective evidence does not support the claimant's subjective fear that he will be persecuted or at risk if he were returned to Liberiabecause of his family name."
[17] Adequate and proper consideration was given to these matters.
[18] The fifth issue is whether the Member disregarded key evidence such as persecution of members of the Applicant's family. This point is essentially the same as the second issue. The Member gave adequate consideration to this evidence.
[19] The sixth issue is whether the Member based his conclusions on conjecture and speculation in remarking that the Applicant's failure to claim refugee protection immediately. The Member's Reasons state at page 7:
It is of interest to note that the claimant only made his claim in Canadaafter he was arrested and detained by the Immigration Department for a number of months. (emphasis added).
He was illegal here. He had no alternative but to claim for protection or be sent back to Liberia.
[20] The Member did not rely upon this finding as determinative, it may well have affected his view as to credibility of the Applicant. No reversible error was made.
[21] The seventh issue is whether the Member failed to provide clear and unambiguous reasons for his negative finding as to credibility. The Member's Reasons could have been more skilfully crafted in this regard however as stated by Justice Joyal in Miranda v. Canada (MCI), [1993] F.C.J. No. 437, while a microscopic examination or a semantic autopsy might be conducted, the decision must be interpreted as a whole. Taken as a whole, it is clear here that the Member did not accept the Applicant's evidence as credible.
[22] The eighth and last issue is whether the Member erred in stating that the test under section 97(1)(b) of IRPA is whether the test is that of specialized risk and not that faced generally. That is exactly what that section states. Applicant's counsel withdrew his argument at the hearing of this review.
[23] In conclusion therefore, I find that while the Member's Reasons, particularly as to findings of credibility, could have been better stated, the Member made no reversible error in coming to the conclusions that he did. The Application is dismissed. No costs are ordered.
ORDER
UPON APPLICIATION made to this Court on Monday, the 5th day of June, 2006 for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division dated November 22, 2005 rejecting the Applicant's claim for refugee protection;
AND UPON reading the Records filed and hearing counsel for the parties;
AND FOR the Reasons given herein;
THIS COURT ORDERS that:
1. This Application is dismissed; and
2. No Order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7425-05
STYLE OF CAUSE: WILLIAM BAI SHERMAN v. MCI
PLACE OF HEARING: Ottawa, Ontario
AND ORDER: The Honourable Mr. Justice Hughes
APPEARANCES:
| Mr. Peter Steida
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| Ms. Lynn Marchildon
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SOLICITORS OF RECORD:
| Mr. Peter Stieda Ottawa, Ontario
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| Mr. Morris Rosenberg for the Respondent Deputy Attorney General of Canada
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