Date: 19990610
Docket: IMM-3457-98
BETWEEN:
GEOFFREY MIWA
Applicant
AND:
THE MINISTER
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division ("the Board") wherein the applicant was determined not to be a Convention refugee.
[2] The applicant is a citizen of Nigeria. He claims to have a well founded fear of persecution due to his political opinion and his membership in a particular social group. He claims that he is of Ogoni origin and that he is a member of the Movement for the Survival of the Ogoni People (MOSOP).
[3] He alleges that he was arrested during a protest march on November 15, 1995 and detained in Kpor until April 25, 1996 when he was transferred to a prison in Oko, Anambra State. During the detention in Kpor, he claims he was tortured. After almost a full year in Oko, the applicant escaped with the help of a warden and his twin brother. He went immediately to the Lagos airport and left for Canada the same day, April 5, 1997.
[4] To support his claim, the applicant submits, among other documents, a document from the National Population Commission (the "NPC document"), a birth certificate and a letter from MOSOP, dated May 23, 1996. The NPC document states that he is a native of "Elem in Taielem", which is in Ogoniland. However, his birth certificate states that he was born in Oba, Anambra State. When questioned on this apparent contradiction, the applicant explained that Nigeria is a patriarchal society, thus, his nationality is based on his father's origins, rather than his own place of birth.
[5] The Board concluded that the applicant did not provide credible testimony or evidence to support the claim that he had been detained because of his nationality, in this case, Ogoni, nor of his membership in MOSOP. The Board based its finding on the following points:
IDENTITY
[6] The Board found the authenticity of the NPC document was placed in doubt by the fact that it was contradicted by the birth certificate; this contradiction, in turn, cast doubt on the applicant's claim that he is Ogoni.
MEMBERSHIP IN MOSOP
[7] The Board rejected the applicant's explanation as to why he had not obtained a corrected version of the letter from MOSOP. The Board concluded that his explanation (he was afraid of placing his brother in jeopardy) did not fit with the fact that his brother had already obtained the original document and assisted in his escape from prison. The Board found that his explanation cast doubt on the authenticity of the document and, in turn, on the applicant's membership in MOSOP.
[8] The Board also pointed out to the fact that the applicant did not appear to know that "individuals do not belong to MOSOP per se, but to one of its constituent bodies"; (see Exhibit A-17: Response to Information Request No. GHA24863.E; Nigeria Information on whether the Movement for the Survival of Ogoni People issues membership cards to members and if so, a description of the card; DIRB, IRB, Ottawa, 3 September 1996).
[9] Finally, the Board indicated that it was not plausible that the applicant, who claimed to be a member of MOSOP, would not have been aware of the MOSOP demonstration on November 15, 1995, as he testified. He claimed that he only became aware of the protest when friends persuaded him to participate.
[10] The Board found that if he were indeed a bona fide member of MOSOP, one would expect him to have knowledge of such events, which he did not.
POSITIONS OF THE PARTIES
[11] The applicant submits that the Board erred in ignoring the cultural differences between Canada and Nigeria. According to the applicant, Nigeria is a patriarchal society and a person's nationality is based on the origins of the person's father, not on the individual's place of birth. the applicant indicates that he did not contradict himself or the documents.
[12] Secondly, the applicant argues that the Board ignored pertinent evidence, since the NPC document states that he is a native of the Ogoni region and there is other documentary evidence detailing the dangers facing the Ogoni people in Nigeria. As a result, he argues that the Board's conclusion was made without regard to the evidence before it.
[13] The applicant also submits that the situation in Nigeria is so dangerous that he would face certain torture and death upon his return.
[14] The respondent argues that findings of credibility are at the heart of the Board's jurisdiction and should not be interfered with by this Court. Furthermore, the Board's findings of implausibility and lack of credibility, with respect to crucial parts of the applicant's claim, namely his Ogoni nationality and his membership in MOSOP, were open to the Board to make.
[15] Secondly, the respondent contends that the Board's failure to specifically mention certain pieces of evidence in its decision does not prove that the evidence was not considered. In addition, finding that the applicant lacks credibility, the Board is entitled to reject any evidence emanating from his testimony.
ANALYSIS
[16] In the present case, the applicant states that he was born in Oba, Anambra State. In addition to his birth certificate, he submitted the NPC document which states he is a native of "Elem in Taielem" (or Ta-Eleme), in Ogoniland. When the Board attempts to establish his nationality, the following exchange takes place:
| A. I am from Ta-Eleme, but I wasn't born there. |
| Q. You weren't born there and you never lived there? |
| A. No. |
| Q. But this describes you as a native of that place. |
| A. That's the place I am from. |
| By presiding member (to person concerned) |
| Q. Well, when sir, when you say that's the place I am from, what do you mean? |
| A. It means that my father is from that place. |
| By refugee claim officer (to person concerned) |
| Q. Sir, I'm gonna start on a different topic altogether. |
[17] In its reasons, the Board defines the term "native" as meaning "having been born there". As a result, the Board questioned the authenticity of the NPC document, which states that the applicant is a native of Ogoniland, despite the fact that he was not born there and had never lived there. In my opinion, the applicant's explanation does not contradict the documentary evidence. It is clear from the above passage, which is the only time the applicant was questioned on this point, that the Board imported its own definition and failed to seek further clarification from the applicant. It would appear to me that where the applicant's testimony is consistent with the documentary evidence, procedural fairness would require the Board to seek further clarification, especially when there are cultural differences and the claimant is speaking through an interpreter.
[18] The applicant submits that Nigeria is a patriarchal society and that a person's nationality is based on the origins of his or her parents rather than the individual's place of birth. He is considered a native of Elem in Taielem, which is in Ogoniland, since that is where his father is from. This explanation appears to coincide with his testimony.
[19] The Board's finding that this applicant did not appear to know "that individuals do not belong to MOSOP per se but to one of its constituent bodies" is not supported by the evidence. To the contrary, on at least two other occasions when questioned, he clearly indicated that he knew that MOSOP was just an umbrella organization. I am satisfied that this is capricious finding in light of the transcript.
[20] The documentary evidence supports without a doubt the violation of human rights in the applicant's country of birth and more particularly in the Ogoni region.
[21] I am prepared to intervene. This decision is fraught with overriding error.
[22] The application for judicial review is allowed and the matter is hereby returned for redetermination by a newly constituted panel.
[23] The parties agreed that there is no serious question to submit.
JUDGE
OTTAWA, Ontario
June 10, 1999