Ottawa, Ontario, September 13, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a judicial review of an Immigration and Refugee Board (Board) decision in which the Board did not accept the Applicant’s identity as a Nigerian citizen.
[2] The Board did not go on to consider the merits of the refugee claim in any event.
[3] In the Board’s decision, the Member lists the documents submitted to establish national identity. The one document missing from the list was a Declaration of Age which is an affidavit sworn by the Applicant’s brother (and is used domestically like a birth certificate) attesting to the Applicant’s birth details.
[4] Not only was the document not listed but there is no discussion of the documents or anything else which would suggest that the Board considered the document.
[5] In addition to this “missing” document, the Board went on to consider the Applicant’s failure to obtain a passport from the Nigerian Embassy. As the transcript discloses, the Board assumed that a Nigerian citizen would be automatically entitled to a passport. Therefore, the failure to obtain one was considered as a negative factor in establishing national identity.
[6] The Applicant testified that the Nigerian Embassy advised him that pending his refugee claim, it could not help him until he produced the original of his driver’s licence and his Declaration of Age. Both these documents had been seized by Canadian immigration authorities and the Applicant was left with only certified copies, which were apparently insufficient for Nigerian passport purposes.
[7] There is nothing in the Board’s decision to suggest that it did not believe the Applicant’s testimony on his efforts at the Nigerian Embassy. There is simply an assumption that a passport should or would have been issued.
[8] The standard of review in respect of identity determinations has been held to be patent unreasonableness (Gasparyan v. Canada (Minister of Citizenship and Immigration), 2003 FC 863, [2003] F.C.J. No. 1103 (QL)). For purposes of this case, I am prepared to accept this high standard of deference because this case does not turn on the standard of review.
[9] While it is established law that the Board does not have to refer to every document it considered and there is a presumption that the Board has considered all the evidence before it, it is a rebuttable presumption.
[10] In my view, the presumption is rebutted on the evidence because the Declaration of Age went to the very root of the identity issue. The Board clearly rejected his claim of identity yet made no reference to this key documentary evidence. This omission is particularly telling against a background where other key documents and those of lesser significance were specifically mentioned and discounted.
[11] The Board also failed to consider or erred in its handling of the issue of the Applicant’s Nigerian passport. There was no general evidence before the Board as to the requirements for such a passport; the Member simply assumed without evidence that a passport should have been issued if the Applicant was truly a Nigerian citizen.
[12] The Board did not address the “Catch-22” situation, to which the Applicant testified, in being unable to obtain a passport because the original documents required by the Embassy were seized by Canadian authorities, and yet the Board makes an adverse finding because the Applicant cannot obtain a passport.
[13] With due respect to the Board, the failure to address key documentary evidence, the assumption of facts without evidence as to obtaining a Nigerian passport, and the failure to address the Applicant’s evidence as to the problems in obtaining such a passport, are factors which make the Board’s decision patently unreasonable.
[14] Therefore, this application for judicial review will be granted, the Board’s decision quashed, and the matter referred back for determination by a differently constituted panel of the Board. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, the Board’s decision quashed, and this matter referred back for determination by a differently constituted panel.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7348-05
STYLE OF CAUSE: OLUFERANMI AJAYI ADE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 7, 2006
APPEARANCES:
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Mr. Johnson Babalola
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Ms. Leanne Briscoe
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SOLICITORS OF RECORD:
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MR. JOHNSON BABALOLA Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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