Ottawa, Ontario, March 17, 2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) with respect to a decision of Michel Faure of the Refugee Protection Division (RPD) denying Uwadinesu Ogiriki's (Applicant) claim for refugee protection. In its decision dated April 29th, 2005, the RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection as per section 96 and 97 of the IRPA. The decision is based on the lack of credibility of the Applicant.
[2] The Applicant is allegedly a citizen of Nigeria. He submitted that he was arrested a short time after he participated in a demonstration. He claims that he fears to be returned to his country because he was badly treated in detention.
[3] The only issue is whether the RPD committed any error of fact in reaching its conclusion regarding the credibility of the Applicant. The following elements were noted by the RPD:
- The claimant failed to establish his identity because:
(1) He could not give a credible explanation as to why it took close to a year to obtain the birth certificate (the certificate was issued in January 2004 and he allegedly received it in November or December 2004);
(2) The Applicant hesitated when asked the date on which he received his birth certificate;
(3) There are no security features on the birth certificate.
- No documents were provided to establish the Applicant's itinerary and he was unable to provide details during his testimony;
- Generally, the Applicant was improvising and unable to be straightforward;
- During his testimony, when asked to describe his arrest, the Applicant omitted to mention that he was hit with a gun;
- The Applicant testified that a little boy died in jail but did state in his Personal Information Form that "some detainees" died in custody;
- The Applicant hesitated and contradicted himself as to the exact address where he allegedly went in hiding after he escaped from jail;
- There are discrepancies between the Applicant's narrative, PIF and testimony as to the dates he was detained, and the justifications he gave regarding these were not credible.
[4] In addition, the RPD rejected the medical certificate submitted mainly on the ground that the Applicant was not credible.
[5] The standard of review as to the assessment of credibility of an applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada(Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at para. 4). The same standard of review applies to the determination of the validity of identity documents (Kosta v. Canada (Minister of Citizenship and Immigration), 2005 FC 994 [2005] F.C.J. No. 1233, at para. 28, Gasparyan v. Canada (Minister of Citizenship and Immigration), 2003 FC 863, [2003] F.C.J. No. 1103, at para. 6).
[6] The Applicant emphasized the wording of the latter part of section 106 of the IRPA
| 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. |
106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer.
|
[7] In P.K. v. Canada (Minister of Citizenship and Immigration), 2005 FC 103, [2005] F.C.J. No. 130, Justice Shore summarized the meaning of section 106:
What section 106 basically states, is that the claimant has the burden of proving his or her identity and if he or she fails to do so in a satisfactory manner, this can affect credibility.
[8] In my view, the RPD gave sufficient explanations to justify its decision to reject the birth certificate provided by the Applicant, and having read the transcript of the hearing (tribunal's file, p. 157 to 164) and the relevant documentation, I agree with the observations made by the panel member. The Applicant has not succeeded in meeting his burden of proving his identity. There are no reasons to intervene on this point.
[9] Since the RPD made other determinations, I will make further comments. I read the transcript of the hearing and I find that the RPD neither erred in finding that the Applicant was vague in his explanations about his itinerary (tribunal's file, p. 181 to 184), nor in finding that he was vague and hesitant through his testimony as a whole. As a matter of fact, I come to the same conclusion. His answers were hesitant, incomplete and in some situation needed some probing.
[10] Counsel for the Applicant contends that the vagueness of the Applicant's testimony with respect to the death of a little boy in jail is too insignificant to weaken the Applicant's credibility. Having read the description that the Applicant gave of the time he spent in jail (tribunal's file, p. 170 to 174), I agree with him that the contradiction is relatively minor, but not to the point that it is patently unreasonable. In his testimony, the Applicant mentioned the death of the little boy, but did not say at any point that this little boy was the only person who died in detention. However, it is still odd that the Applicant did not, when given the opportunity at the hearing, mention the death of other co-detainees.
[11] The Applicant's counsel finally argued that the RPD erred in rejecting the Applicant's medical certificate. The certificate (tribunal's file, p.117) indicates that the Applicant suffers "severe pain in his right hip area" since he was beaten during his arrest in February 2003. In the Applicant's view, it was incorrect for the RPD to note that "the doctor does not suggest [in the medical certificate] x-rays or any other examination to investigate the origin of the pain". Although I agree with the Applicant that medical knowledge is not within the purview of the RPD, I do not think that it was patently unreasonable for the RPD to reach such a conclusion. There is no need to be an expert in medicine to express reservations about the pain the Applicant allegedly suffers, given that the physician chose not to investigate further the causes of "severe pain" that the patient experienced for more than a year and a half. In addition, the RPD was under no obligation to justify its rejection of the medical certificate. Where a refugee is found to be not credible, the RPD can reject the evidence provided by an Applicant solely on this basis. In Hamid c. Canada, [1995] F.C.J. No. 1293 (F.C.A.), at para. 21, Justice Nadon wrote :
Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.
This decision has been followed by the Federal Court (see Al-Shaibie v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1131, 2005 FC 887, at para. 21; Saha v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1117, at paras. 32-33).
[12] I do find that the RPD erred when it determined that the Applicant was wrong in giving the address of his uncle as 10 Obi Street while he supposedly declared that it was1 Obi Street in his PIF (question 20). This is not factual. Because of the other findings made, I do not think that this error is important enough to impact the case.
[13] In conclusion, the RPD decision is reasonable taken as a whole and should stand, even if a few "weaknesses" were identified by the Applicant. In Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282, [2000] F.C.J. No. 286, at para. 22, Justice Evans wrote:
[E]ven if the Tribunal committed a reviewable error on some of its findings of fact, its decision to rescind will still be upheld if there were other facts on which it could reasonably base its ultimate conclusion.
[14] This ruling was applied by the Federal Court on applications for judicial review of RPD decisions (See Agbon v. Canada (Minister of Citizenship and Immigration), 2005 FC 1573, [2005] F.C.J. No. 1936, at para. 10; Jarada v. Canada (Minister of Citizenship and Immigration), 2005 FC 409, [2005] F.C.J. No. 506, at para. 22). In other words, even if one of several reasons on which a decision lies is found to be wrong, a conclusion reached by a specialized tribunal should not be quashed if other facts could support this conclusion. I also note that three of the numerous adverse findings on credibility made by the RPD remain undisputed, namely:
- There is a minor inconsistency as to the exact address where the Applicant allegedly went in hiding after he escaped from jail (tribunal's file, p. 19, 176 and 177);
- The Applicant omitted to mention in his narrative that he was hit by a gun, as included in his medical certificate mentions (tribunal's file, p. 117) and his testimony (tribunal's file, p. 169);
- The Applicant provided conflicting versions as to the alleged period of detention (tribunal's file, p. 17, p. 32, p. 143, p. 175)
[15] Both counsels were invited to submit a question for certification. No questions were submitted.
[16] For these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed and no questions are certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3197-05
STYLE OF CAUSE: UWANDINESU OGIRIKI
Applicant
And
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: March 15, 2006
APPEARANCES:
Kingsley Jesuorobo
Jamie Todd
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Barrister & Solicitor
North York, ON
John H. Sims, Q.C.
Deputy Attorney General of Canada