Ottawa, Ontario, Wednesday this 14th day of September 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
ADEBAYO ADEYINKA ADERETI (AKA: ADEYINKA ADEBAY ADERETI)
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Adebayo Adeyinka Adereti is a citizen of Nigeria who says that he has a well-founded fear of persecution in Nigeria by members of the Gani Adams faction of the Oodua People's Congress ("OPC"). Mr. Adereti's claim to refugee status and protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board ("RPD"). Mr. Adereti brings this application for judicial review of that negative decision.
[2] Mr. Adereti asserts two reviewable errors on the part of the RPD. First, he says that it allowed the Refugee Protection Officer ("RPO") to commit tortious actions at the hearing, thereby denying him natural justice. Second, he says the RPD erred by failing "to assess Brazil as a country of reference & country conditions in Brazil in terms of assessing the claimant's credibility".
Did the RPD allow the RPO to commit tortious actions at the hearing, thereby breaching natural justice?
[3] Mr. Adereti submits that his hearing overstepped the bounds of proper decorum. He asserts that while his counsel attempted to protect him from the abusive behaviour of the RPO, the RPD neither protected him nor disciplined its staff. Mr. Adereti swears in his affidavit, "I had to testify in a poisonous atmosphere. I would never have imagined that in Canada, one would be interrogated in a manner common to most dictatorships". He asserts that "civil servants" spent hours badgering him, the RPO did not let him answer questions, and at one point the RPO was hardly four inches away from his face, screaming at him. Mr. Adereti says that the RPO came towards him so violently that he believed she was going to hit him. He claims to have felt the fear of torture he had undergone at home and, from that moment on, became "psychologically disconnected" from the hearing process.
[4] I have carefully read the transcript of the proceedings before the RPD. There is nothing in the transcript to indicate that the questioning by the RPO was conducted inappropriately or differently from the questioning conducted by Mr. Adereti's own counsel. There is nothing to show that Mr. Adereti was badgered or prevented from answering any question. The RPO was entitled to question Mr. Adereti in order to clarify his evidence. I am satisfied that the RPO asked appropriate and reasonable questions and that nothing in the transcript indicates any inappropriate behaviour.
[5] I acknowledge, and have considered, that things such as the volume, tone and cadence of the questions and the proximity of the questioner to the witness are not recorded in the transcript. However, Mr. Adereti was represented by counsel at the hearing. Notwithstanding Mr. Adereti's assertion that his counsel tried to protect him, it is telling that the transcript shows that Mr. Adereti's counsel made only one objection during the RPO's examination of Mr. Adereti. His counsel had objected that a question had previously been asked and answered. It is also, in my view, telling that Mr. Adereti made no comment or otherwise gave any indication on the record that he was uncomfortable.
[6] I find that there is no merit in this ground of review and there was no breach of natural justice.
Brazil
[7] This issue, with respect, was not well developed by Mr. Adereti. In oral argument, his counsel confirmed that the issue really incorporates two separate aspects. First, did the RPD err in law by failing to consider Brazil to be a country of reference? Second, did the RPD err by making adverse findings of credibility on the basis of Mr. Adereti's time in Brazil?
[8] Before dealing with these two issues it is necessary to situate factually Mr. Adereti's involvement with Brazil within the context of his refugee claim.
[9] At the Port of Entry, Mr. Adereti stated that he was a citizen of Sierra Leone, and he arrived with an identity card from Sierra Leone. However, in his Personal Information Form ("PIF"), Mr. Adereti claimed to be a citizen of Nigeria and of no other country. He testified before the RPD that he had made the false declaration about Sierra Leone upon arrival in Canada because he was told to do so by the agent who helped him come to Canada. Mr. Adereti said that, after consulting legal counsel in Canada, he told the truth when making his PIF. The RPD accepted this explanation as reasonable and found, on the basis of this explanation and the two Nigerian passports provided at the hearing, that Mr. Adereti was a citizen of Nigeria.
[10] At the Port of Entry, Mr. Adereti also said that his father was a journalist and human rights activist in Sierra Leone who had been detained for six years, that his parents were alive but his father's death was staged and his mother was in prison. In his PIF, Mr. Adereti originally wrote that he left Nigeria on April 7, 2002, arrived in Canada about five days later and made a refugee claim on April 12, 2002.
[11] However, at the opening of the refugee hearing, Mr. Adereti amended his PIF to show that he left Nigeria in March 1998 for Sao Paulo, Brazil and spent four years in Brazil before arriving in Canada in April of 2002. He testified that the story about his father being a journalist and human rights activist in Sierra Leone was also concocted by the agent who assisted him in departing for Canada.
[12] The RPD found, however, that Mr. Adereti's PIF was 'rife with omissions' and that he had consciously omitted any mention of his four years in Brazil. When asked to explain why he had done so, Mr. Adereti said he was trying to forget that period of his life and that he did not associate with any Nigerians. The RPD said that when pressed further on this point, Mr. Adereti was unable to explain concretely why he wanted to forget that period of his life, and was not able to explain why mentioning his time in Brazil at the Port of Entry or in his PIF would put him in any danger. The RPD noted that Mr. Adereti changed other information in his PIF to match the omission of the Brazilian sojourn: he forwarded only pages 1 to 3 of his passport, omitting the page with the Brazilian visa, and he changed his alleged date of departure as well as his route to Canada.
[13] The RPD determined that Mr. Adereti's sojourn in Brazil was an indication of a lack of subjective fear. He had made no claim for refugee protection there. He had legal status in Brazil, allowing him to work as an English instructor, and he could have become a permanent resident after five years in Brazil. The RPD found it to be not credible that Mr. Adereti would have left his secure status in Brazil for the unknown circumstances of arriving in Canada in a clandestine manner, if he truly feared persecution in his home country. In the RPD's view, Mr. Adereti's explanation for leaving Brazil, that he feared OPC members in that country because he refused to support them financially, was not substantiated in any way and was not plausible. The RPD stated that Brazil is an enormous country and Mr. Adereti made no effort to secure any protection there.
Did the RPD err in failing to consider Brazilto be a country of reference?
[14] Mr. Adereti argues that, as a matter of law, the RPD must investigate whether a claimant is unable or unwilling to avail himself or herself of the protection of each and every country of nationality (see, to this effect, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 751). In consequence, the RPD's failure to consider whether Mr. Adereti is unable or unwilling to seek protection in Brazil is said to be a reviewable error.
[15] I disagree for the following reasons.
[16] First, because Mr. Adereti was found to have no well-founded fear of persecution in Nigeria, it was not necessary for the RPD to consider conditions in Brazil since he could safely be removed to Nigeria. Any concern now arising from Mr. Adereti's potential removal to Brazil from Canada is properly dealt with on an application for a pre-removal risk assessment.
[17] Second, the concept of a country of reference is one that generally is used to restrict surrogate protection on the ground that there is another reference country that the claimant should approach for protection.
[18] While there was some ambiguity in the evidence as to whether Mr. Adereti had permanent resident status in Brazil, there is no suggestion in the evidence that he is a citizen of Brazil. This Court has held that claimants must only seek the protection of countries in which they can claim citizenship. (See: Basmenji v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 292. See also: Waldman, Immigration Law and Practice, looseleaf (Markham, ON: Butterworths, 1992) at pages 8.224 to 8.230 and 8.234 to 8.236. Given that Mr. Adereti had no legal status as a citizen in Brazil, there was, in my view, no obligation to assess whether adequate state protection existed for him in Brazil.
Did the RPD err in its assessment of credibility?
[19] Mr. Adereti points to the fact that the RPD believed that he was not a citizen of Sierra Leone and accepted his evidence that he made a false declaration to that effect upon his arrival to Canada because he was told to do so by the agent who helped him come to Canada. However, he argues that this same explanation was not acceptable to the RPD when it decided that he was not credible because of his past background in Brazil, and that the RPD erred by making inconsistent credibility findings.
[20] I am not persuaded by Mr. Adereti's submission. The RPD did accept Mr. Adereti's explanation as to why he lied about being a citizen of Sierra Leone, and did find his testimony that he was a citizen of Nigeria to be truthful, particularly as that testimony was corroborated by his Nigerian passports. This, however, did not preclude the RPD from dismissing other aspects of Mr. Adereti's testimony.
[21] The RPD relied upon Mr. Adereti's admitted sojourn in Brazil to be an indication of a lack of subjective fear. The RPD found that Mr. Adereti's evidence described a fairly stable and secure life in Brazil; if he truly feared being returned to Nigeria, Mr. Adereti would not have risked his secure status in Brazil by travelling to Canada. The RPD did not make an inconsistent credibility finding because it accepted the truth of Mr. Adereti's evidence that he lived and worked in Brazil.
[22] Mr. Adereti has not established that any credibility finding made by the RPD was patently unreasonable.
[23] It follows that the application for judicial review will be dismissed.
[24] Counsel posed no question of general importance for certification, and I agree that no question arises on this record.
ORDER
[25] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9162-04
STYLE OF CAUSE: ADEBAYO ADEYINKA ADERETI (AKA: ADEYINKA ADEBAY ADERETI) v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: August 17, 2005
REASONS FOR ORDER AND ORDER: DAWSONJ.
APPEARANCES:
SOLICITORS OF RECORD:
JOEL ETIENNE
BARRISTER & SOLICITOR
TORONTO, ONTARIO FOR APPLICANT
JOHN H. SIMS, Q.C.