Federal Court Decisions

Date: 20060216

Docket: IMM-9820-04

Citation: 2006 FC 163

Ottawa, Ontario, February 16, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

JONES EGBOKHEO

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]                Negative credibility findings are properly made as long as the tribunal gives reasons in clear and unequivocal terms.

Simply alluding to discrepancies is not enough, such findings require illustrations of inconsistencies or outright contradictions.

JUDICIAL PROCEDURE

[2]                This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated November 2, 2004, wherein it was decided that the Applicant is not a Convention refugee nor a person in need of protection.

BACKGROUND

[3]                The Applicant, Mr. Jones Egbokheo, is a citizen of Nigeria. He is seeking refugee protection pursuant to sections 96 and 97 of IRPA. He claims to have a well-founded fear of persecution on the basis of his membership in a particular social group (member of the Ijaw Youth Council (IYC)) and political opinion.

[4]                Mr. Egbokheo alleges that he belongs to the Ijaw tribe. He has 18 years of formal education and was working as a salesman. In 1999, Mr. Egbokheo alleges that he began to associate with people of his tribe and was introduced to the IYC whose main objective is to inform the population through seminars, awareness programs, rallies and media coverage on the devastation caused by the activities of the oil companies.

[5]                In June 2001, Mr. Egbokheo launched a local chapter of the IYC with his cousin and he was elected Public Relations Officer. He alleges that because of the activities of the organisation, he was questioned by the police. On June 16, 2002, he organized a rally which was dismantled by two truckloads of mobile policemen. When he learned that the President of the IYC and two of his friends had been arrested, he fled to Lagosand went into hiding. Through his aunt, Mr. Egbokheo later learned that the police authorities went to his house, ransacked it and left a message for him to turn himself in. With the help of a smuggler, he decided to leave Nigeria and arrived in Canada on July 7, 2002.

DECISION UNDER REVIEW

[6]                The Board concluded that Mr. Egbokheo is not a Convention refugee or a person in need of protection. The Board found that Mr. Egbokheo was not credible because of the many inconsistencies and contradictions in his testimony.

[7]                More specifically, the Board found that Mr. Egbokheo did not provide adequate identity documents and therefore did not establish his identity. The explanations that he provided concerning how he obtained his identity documents were very confusing and only served to undermine the authenticity of the documents.

ISSUES

[8]                Is the Board's negative credibility finding patently unreasonable?

ANALYSIS

Standard of review

[9]                Credibility finding of the Board are entitled to the highest degree of deference. The standard of review for findings of credibility is that of patent unreasonableness. (Aguebor)[1]

[10]            The standard of review for the assessment by the Board of identity documents is also patent unreasonableness.

The appropriate standard for reviewing the Refugee Division's assessment of identity documents is patent unreasonableness: Adar v. Canada(Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 at para. 15; and Mbabazi v. Canada(Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623, 2002 FCT 1191 at para. 7. The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area. (Gasparyan)[2]

Is the Board's negative credibility finding patently unreasonable?

[11]            Mr. Egbokeo alleges that the Board harassed and intimidated him in order to confuse him. However, he has not provided any concrete examples to support this allegation. The transcript does not show anything resembling harassment or intimidation. The Board member and the Refugee Protection Officer asked Mr. Egbokheo many questions in order to clarify the inconsistencies and contradictions in his evidence. The transcript of the hearing did not demonstrate any harassment or intimidation on their part, they simply tried to understand his story and clarify his allegations when necessary. No indication appears that his counsel made any objections nor are there any grounds of review regarding this allegation. As Mr. Justice Michael Phelan recently held in Quiroa v. Canada(Minister of Citizenship and Immigration)[3]:

Neither RPD members nor judges are required to sit in monk-like silence throughout a proceeding. It is more than legitimate for a member to ask questions to clarify testimony or to address issues which are relevant to the RPD's determination. There is a procedure for this and a tone and demeanor required to ensure that the member is not seen to have reached a conclusion prematurely.

...

It is important to note that the Applicants had counsel - allegedly experienced immigration counsel - who did not object to the questioning or its tone. While failure to object is not necessarily fatal, this fact combined with a review of both versions of the transcript show that there is no grounds for review on this issue.

[12]            The Federal Court of Appeal has held that negative decisions on a person's credibility are properly made as long as the tribunal gives reasons in "clear and unmistakable terms." In other words, a panel cannot couch its findings of credibility in vague and general terms; rather a finding should be supported by examples which led the Board to doubt the testimony. (Hilo)[4]

[13]            The Board provided clear, detailed reasons to support its finding that Mr. Egbokheo lacked credibility. The Board did not find Mr. Egbokheo's testimony credible because there were many inconsistencies, divergences and contradictions in his written and oral account. The Board provided many examples of the problems it found in his testimony and his explanations.

Passport

[14]            Mr. Egbokheo produced a Nigerian passport which post-dated his departure from Nigeria. The manner in which he obtained the passport was inconsistent with the documentary evidence which indicates that one must apply in person for a passport and receive their passport in person. He testified that his brother sent him forms which he filled out and mailed back. Some time later, his brother sent him a passport by mail. Mr. Egbokheo stated that he did not know how his brother obtained it but that notwithstanding the documentary evidence before the Board, it was possible to obtain a passport through an agent. In addition, the photograph was digitally made. The Board doubted the authenticity of the passport and concluded that if it was issued by the state of Nigeria, it was obtained illegally.

[15]            It has been held that identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise. (Mpoli)[5] Although the documentary evidence before the Board stated that it was necessary to apply in person for a passport, the Board had no proof that Mr. Egbokheo's passport was not issued by the government of Nigeria.

[16]            Contrary to Mr. Egbokheo's assertions, there is no obligation for the Board to send out an identity document for forensic testing. (Yogeswaran; Hossain; Culinescu; Gasparyan above at para. 7)[6]

In the case at bar, the applicants contend that the panel committed an unreasonable error in finding that their claims concerning legal proceedings were implausible. Their argument is based on the fact that there was no evidence that contradicted their testimony or that could have caused it to be implausible. They submit that it was the Board's duty to have the documents they filed in evidence studied by experts, especially if it doubted their authenticity.

The Board had no such duty. It is enough that there be sufficient evidence before it to cast doubt on the authenticity of the order to stand trial to find that the applicants' testimony was implausible. In the case at bar, the documentary evidence was convincing enough to support the Board's findings. Its findings are accordingly not perverse, capricious or patently unreasonable so as to justify the Court's intervention. I would like to add that the Board's record contains no evidence capable of vitiating the panel's findings. (Culinescu above at paras. 14-15)

[17]            The Board's finding that Mr. Egbokheo's passport was false was not patently unreasonable as it was supported by documentary evidence properly before it and by clear reasons. However, the fact that Mr. Egbokheo might have had false identity documents is not necessarily a problem in itself. Even with false documents, an applicant could be found to be credible.

Schooling

[18]            Mr. Egbokheo produced an Age Declaration Certificate which was dated November 1999 which raised questions about his education history. In his oral testimony, Mr. Egbokheo testified that this was his second Certificate which was requested by the University at the time of his admission and graduation. He testified that he started university in 1998 and that his program lasted four years and he presented a final degree document dated October 2000. However, in his written evidence, Mr. Egbokheo declared that he commenced university in 1995. He stated that he received the Age Declaration Certificate from his brother approximately six months before the hearing.

[19]            He also produced a Birth Attestation letter issued on September 2, 2003. This letter post-dated the Age Declaration Certificate. Mr. Egbokheo could not explain why the document was issued on that date or how his brother obtained the document.

[20]            The Board found Mr. Egbokheo's written and oral evidence concerning the Age Declaration Certificate and the Birth Attestation confusing and the authenticity of the documents questionable.

[21]            Once again, this Court wants to point out the fact that even if Mr. Egbokheo may have had false identity documents, this is not necessarily proof of a lack of credibility. However, based on the confusion between the oral and written evidence given by Mr. Egbokheo, and the discrepancies in the dates concerning his schooling, it was open to the Board to find that Mr. Egbokheo's explanations were not credible.

Member of the Ijaw tribe

[22]            Mr. Egbokheo stated that he is a member of the Ijaw tribe. However, he doesn't speak the main language spoken by the tribe. When asked which languages the tribe spoke, he identified a language that is not spoken by the tribe at all. It was open to the Board to question Mr. Egbokheo concerning his knowledge of the Ijaw tribe when trying to establish his tribal membership.

[23]            Mr. Egbokheo claimed to be a member of the IYC since 1999. He produced a membership card which he testified was produced by the headquarters of the organization. However, the card was signed by the branch chairman and not the headquarters. When asked about this, Mr. Egbokheo could not explain what the Board perceived to be a discrepancy.

Alleged detention and police mistreatment

[24]            Mr. Egbokheo declared in his Personal Information Form that he was detained and vigorously questioned. In his statements to immigration officials he said he never was detained nor incarcerated. In his oral testimony, he testified that he was tortured by police. These inconsistencies led the Board to conclude that Mr. Egbokheo's testimony was dramatized.    It was open to the Board to conclude that Mr. Egbokheo's testimony was not truthful based on these discrepancies and inconsistencies.

Alleged hiding

[25]            In his oral testimony Mr. Egbokheo stated that he went into hiding on June 20, 2002 because he believed the police were looking for him. He further testified that he called his aunt on June 25, 2002 and then called the house of the President of IYC. However, in his written evidence, Mr. Egbokheo declared that on June 25, 2002, after the sister of the President of IYC informed him that the President had been arrested, he fled to Lagos and went into hiding. While in hiding, he received the news that the police had gone to his residence in Benin City.

[26]            When Mr. Egbokheo was given the opportunity to explain these discrepancies, he failed to provide a satisfactory explanation. The Board found his account to be fabricated. This finding was open to the Board based on the evidence before it.

CONCLUSION

[27]            Given the Board's conclusion that Mr. Egbokheo's testimony seriously lacked credibility, the Board found he was not a Convention refugee or a person in need of protection. It is clear that once the Board determines that a claimant has failed to put forward clear and convincing evidence regarding their identity, it is not necessary or even possible for the Board to examine the claimant's risk of persecution if returned to their country of origin.

...In my respectful view, once the Board had concluded that identity had not been established or that the main applicant had not proven who she allegedly is, it was not necessary for the Board to analyze the evidence any further. Identity was central to the case. The main applicant's failure to prove that she belonged to a persecuted clan effectively undermined any claim of a well-founded fear of persecution. (Husein)[7]

[28]            It is trite law that on an application for judicial review this Court is not to substitute its decision for that of the Board, particularly where the Board has made a finding of credibility after it has heard and seen the testimony of the claimant. In any judicial review of the factual determinations of a first instance tribunal such as the Refugee Protection Division, the primary question to be asked is whether the finding was one that could reasonably have been made on the evidence before the Board. If the finding is reasonable, it must stand. Furthermore, such review must only take place where the findings of fact may be construed as perverse, capricious or made without regard to the material before it.

[29]            There are no reviewable errors in the Board's decision. The decision was not patently unreasonable. It was open to the Board to conclude that Mr. Egbokheo was not credible based on the evidence before it. Since there are no reviewable errors and the findings of fact cannot be construed as perverse, capricious or made without regard to the material before the Board, there is no reason to interfere with the decision. This application for judicial review is dismissed.

ORDER

THIS COURT ORDERS that

1.         The application for judicial review be dismissed;

            2.         No question be certified.

"Michel M.J. Shore"