Toronto, Ontario, November 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Agbon has twice been found by a panel of the Immigration and Refugee Board, not to have a credible claim for protection. The first determination was overturned because a transcript of the hearing was not available to assess whether the Board made reviewable errors (see Agbon v. Canada(Minister of Citizenship and Immigration) 2004 FC 356). The second finding should be set aside, Mr. Agbon submits, because the panel member made serious factual errors in his reasons for decision. These are my reasons for concluding that the errors are not material to the Board's central findings and the application must be dismissed.
[2] The applicant, a citizen of Nigeria, claimed he was a victim of political persecution and that he was arrested and detained by a vigilante group acting on behalf of state authorities. The claimant alleges that the authorities mistook him for his brother-in-law Onefe, a student, who had participated in a protest demonstration. The brother-in-law allegedly borrowed the applicant's car which was found close to the protest. The applicant stated in his personal information form and oral testimony that he was abducted and detained on two occasions. On one occasion, his family paid a bribe to secure his release from detention. Following the second detention, he remained in hiding until arrangements were made for him to flee Nigeria. The applicant left Nigeria in January 2002 and made a claim for refugee protection upon his arrival in Canada.
[3] The issue in these proceedings was whether the Board misapprehended the evidence before it in arriving at the negative credibility findings underlying its decision.
[4] Decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of the witnesses. Credibility determinations lie within "the heartland of the discretion of triers of fact" and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts. (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. No. 732 (F.C.A.) (QL); Siad v. Canada(Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), 2001 FCT 773 (F.C.T.D.); Sivanathan v. Canada (Minister of Citizenship & Immigration), 200 FCT 500 (F.C.T.D.)).
[5] It appears that the Board may have confused, at least in part and initially, the facts of two different claims in preparing its reasons for decision. The first paragraph of the Board's decision under the heading "Allegations" is entirely incorrect on the face of the record. In particular, the decision states that "[t]he claimant asserts a well-founded fear of persecution based on his perceived political opinion i.e., Movement for the Actualizations of Sovereign State of Biafra (MASSOB)" and that the applicant alleged that he was detained in October 2003 and came to Canada in November 2003. Based on the testimony of the applicant and his narrative as laid out in his PIF this is entirely incorrect. Nowhere in his application does the applicant allege that he was a perceived member of MASSOB and in fact, the applicant came to Canada in January 2002, not November 2003 as the reasons of the Board state.
[6] The applicant submits that the error about his membership in MASSOB, which also appears elsewhere in the decision, is material as it "tainted" each of the negative credibility findings supporting the member's decision.
[7] The Board made four key credibility findings:
1. The applicant had no knowledge about the basic information relating to the demonstration in which his brother-in-law allegedly participated, e.g., when it took place. The Board found it not credible that the applicant made no efforts to get specific details of the incident that led him to flee his country of nationality;
2. There was no credible or trustworthy evidence to show the applicant truly had a brother-in-law named Onefe. The Board determined the applicant could have reasonably obtained a sworn declaration from his common law spouse or another relative to this effect;
3. There was no credible or trustworthy evidence to establish the applicant's marital status or the existence of his common law spouse. The Board noted that this relationship was central to the claim as all of his alleged problems stem from the relationship; and
4. There were contradictions in the medical evidence presented by the applicant, explanations which the Board found were excuses to fabricate his claim.
[8] None of these findings are undermined by the erroneous references in the decision to membership in MASSOB. They were all drawn to the applicant's attention during the hearing. After hearing his explanations, it was within the Board's expertise to draw adverse inferences in a determination of the applicant's credibility. The negative decision regarding credibility was stated in Aclear and unmistakable terms@ as required in Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[9] Having closely reviewed the transcript and the remainder of the record, I am satisfied that the central credibility findings are based on the evidence that was before the Board and are not patently unreasonable.
[10] As was held in Akhter v. Canada (Minister of Citizenship and Immigration) 2004 FC 409 at paragraph 9, when the Board's overall credibility finding is sufficiently supported by reasons which withstand judicial review on a patently unreasonable standard, that finding is not overridden by others that do not meet the standard. See also Stelco Inc. v. British Steel Can. Inc.,[2000] 3 F.C. 282 (F.C.A.).
[11] Accordingly, this application is dismissed. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that this application is dismissed. No questions are certified.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-653-05
STYLE OF CAUSE: CHARLES KEHINDE AGBON
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 9, 2005
APPEARANCES:
| Kingsley I. Jesuorobo
|
|
| Allison Phillips
|
SOLICITORS OF RECORD:
| KINGSLEY I. JESUOROBO Barrister & Solicitor North York, Ontario
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|