Date: 20050125
Docket: IMM-3755-04
Citation: 2005 FC 102
Ottawa, Ontario, the 25th day of January 2005
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
ABRAHAM OLUFEMI ASASHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Assessment of evidence issues necessitate due deference to the knowledge of the specialized tribunal unless the assessment is manifestly unreasonable.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on March 25, 2004, dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[3] The alleged facts are described by the Board. A citizen of Nigeria, the Applicant, Mr. Abraham Olufemi Asashi, is from the town of Ibese, a local area in Ekorodu, Lagos State. He described himself as originating from a pagan family which strongly believes in idol worship. In March 2002, the Crown Chief of Asashi died, and, according to the tradition, the eldest male in the family is the member who is next in line to be crowned chief within six months. Mr. Asashi alleged to be the first son, was therefore placed in the position of being designated as the next chief of the Asashi family; however, as he does not believe in the religious practices of his family, as a Christian who strongly believes in God; he therefore refused the chieftaincy, and alleges that this refusal placed his life in danger. Fearing for his life, Mr. Asashi went into hiding between May and November of 2002. Through the help of an agent, he was able to obtain a false British passport, and fled Nigeria on November 2, 2002 and arrived in Canada on November 3, 2002. According to immigration documents, he requested Canada's protection on November 13, 2002.
DECISION UNDER REVIEW
[4] The Board found Mr. Asashi not to be credible as he did not provide acceptable evidence with respect to his identity, nor his departure from Nigeria, nor his journey to Canada as based on the core event which, in fact, was to have triggered his decision to flee his country. In addition, he demonstrated a lack of knowledge with respect to the Christian faith which he adopted in 1999.
ISSUES
[5] 1. Was it patently unreasonable for the Board to conclude the Applicant was not credible?
2. Did the Board err in not taking into account the general documentary evidence on Nigeria?
3. Did the Applicant have a fair hearing before the Board?
ANALYSIS
1. Was it patently unreasonable for the Board to conclude the Applicant was not credible?
[6] Where credibility is at stake, the Board's mistake must be patently unreasonable for this Court to intervene [Aguebor v. Canada (Minister of Employment and Immigration),[2] Pissavera v. Canada (Minister of Citizenship and Immigration),[3] Singh v. Canada (Minister of Citizenship and Immigration)[4]].
[7] The Board listed many elements that, assessed as a whole, considerably undermined Mr. Asashi's credibility. Mr. Asashi testified that a birth certificate was issued to him but that he did not present it to the Board. He submitted a document issued on August 30, 2002 by the Lagos Mainland Local Government to establish his date of birth. He also filed a driver's licence issued on October 15, 2002. These two government documents were issued to Mr. Asashi who, while in hiding, left his hiding place to obtain the documents at night. That does not appear feasible as government offices are open only during the day. Mr. Asashi also testified that he travelled with two sets of identity papers (a false British passport and his Nigerian papers), which was considered dangerous and therefore improbable by the Board. Mr. Asashi did not provide the Board with his false passport and travel documents. The Board found that if Mr. Asashi had really feared the chiefmakers, he would have left his country earlier than November 2002 (the Crown Chief died in March 2002; Mr. Asashi hid in his country from May to November 2002). Once in Canada, Mr. Asashi, only claimed refugee status ten days after his arrival. Mr. Asashi filed an article allegedly published in the Nigerian newspaper, "The Punch", it described the death of the Crown Chief in Ibese and mentioned that, according to tradition, Mr. Asashi was to become the next Chief. The original of the article had not been provided to the Board, only one page of the newspaper was submitted and it was not dated. The Board had doubts that Mr. Asashi adopted the Christian faith; he gave vague explanations as to the process he underwent to become a Christian while, according to the Board, "it is universally recognized that converts to one of the Christian religions or churches must go through a phase of religion instruction before being accepted and/or baptized". Furthermore, the Board found that Mr. Asashi should have been able to identify himself with one of the recognized Christian branches or denominations (Roman Catholic, Greek Orthodox, Baptist, Anglican, Episcopalian, etc.) but merely stated his branch as "Cherubin and Seraphin". Finally, the objective evidence in regard to the general situation in Nigeria indicated that, although religious differences do exist, Christians can and do live throughout the country.
[8] Mr. Asashi points out individual elements listed by the Board (e.g. delay in claiming refugee status once in Canada) and argues that these are not sufficient to amount to a lack of credibility. That may be so but the accumulation of inconsistencies, contradictions, etc., taken as a whole, can rightly lead the Board to conclude that an applicant's credibility is fatally undermined.
[9] (Though not determinative, in and of itself, due to the lack of credibility in other areas which was clearly demonstrated, it would appear appropriate for the Board to recognize that recent converts to any faith do not necessarily have a comprehensive knowledge of the doctrines, traditions and structures of their newly adopted faith. It is reasonable to think that a new convert would not necessarily know to which general branch or denomination his religious affiliation adheres, recognizing the multiplicity of denominations and sects.)
2. Did the Board err in not taking into account the general documentary evidence on Nigeria?
[10] The Applicant argues that the Board erred by failing to assess Mr. Asashi's credibility in the context of his country conditions. The Court cannot agree. A general finding of lack of credibility can extend to the whole of the testimony and the situation described in the objective documentary evidence on the country of nationality cannot be deemed to apply to the non-credible applicant unless there is a personal link between the applicant and the general documentary evidence. That is what the Federal Court of Appeal stated in Sheikh v. Canada (Minister of Employment and Immigration)[5]:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. (Emphasis added)
3. Did the Applicant have a fair hearing before the Board?
[11] Mr. Asashi alleges that he did not receive a fair hearing. In his affidavit, he expresses his feeling that the Board was only looking for ways to contradict him or doubt him rather than looking for the truth. He also states that the impression one has from the decision is that the Board knows nothing about Africa and is not interested in learning anything either.
[12] By failing to raise the alleged breach of fairness when such failure occurred, Mr. Asashi waived his right to raise the violation at the judicial review stage. Mr. Asashi says he could not raise the issue before the Board as it is only after the hearing that he realized how biased the Board's attitude was. The Court can only conclude that, since the alleged breach was not even noticed during the hearing, it could not have been important enough to warrant the intervention of this Court.
[13] In any case, the case law established that mere speculation, suspicion or impression of bias or unfairness is insufficient to ground a claim for judicial review based on biais [Committee for Justice and Liberty v. Canada (National Energy Board)[6]].
CONCLUSION
[14] For these reasons, the Court answers the first two questions at issuein the negative and the last one in the affirmative. Consequently, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. There is no question to be certified.
"Michel M.J. Shore"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3755-04
STYLE OF CAUSE: ABRAHAM OLUFEMI ASASHI
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 20, 2005
ORDER AND ORDER: The Honourable Mr. Justice Shore
DATE OF REASONS FOR
ORDER AND ORDER: January 25, 2005
APPEARANCES:
Mr. Stewart Istvanffy FOR THE APPLICANT
Ms. Marie Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE APPLICANT
Montreal (Quebec)
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] S.C. 2001, c. 27.
[2] (1993) 160 N.R. 315 (F.C.A.), _1993_ F.C.J. No. 732 (QL).
[3] (2001) 11 Imm. L.R. (3d) 233 (F.C.T.D.), _2000_ F.C.J. No. 2001 (QL).
[4] (2000) 173 F.T.R. 280 (F.C.T.D.), _1999_ F.C.J. No. 1283 (QL).
[5][1990] 3 F.C. 238 at p. 240 (F.C.A.).
[6][1978] 1 S.C.R. 369.