Osayande v. Canada (Minister of Citizenship and Immigration)

Between:

MAXWELL OSAYANDE

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent.

REASONS FOR ORDER

KELEN J.:

[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), dated June 7, 2001. The CRDD found that the applicant was not a convention refugee.

[2] The issues in this matter are:

· whether the CRDD erred in finding that the applicant is excluded under Article 1 F (a) of the United Nations Convention Relating to the Status of Refugees; and,

· whether the CRDD erred in coming to a negative finding regarding the applicant's credibility.

[3] In view of the evidence and the standard of review, the CRDD did not err and this application for judicial review is denied.

FACTS

[4] The applicant, born September 3, 1966, is a citizen of Nigeria. He arrived in Canada on January 27, 2000 and claimed refugee status.

[5] The applicant served voluntarily as a member of the Nigerian army for ten years, allegedly as a cook. Allegedly, he was arrested and beaten following a riot in which his mother's aunt and uncle died, and accused of supplying weapons to a paramilitary group. He escaped from prison and made his way to Canada.

[6] At the CRDD hearing, as evidence the applicant submitted the front page of a Nigerian newspaper reporting that he was wanted "dead or alive". The respondent representative obtained a copy of the same paper, as of the same date, that did not mention the applicant.

DEFINITION OF CONVENTION REFUGEE

[7] "Convention Refugee" is defined in section 2 of the Immigration Act as follows:

"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and

"réfugié au sens de la Convention" Toute personne:

a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:

is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se rééclamer de la protection de ce pays,

(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;

(b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).

Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celleci dont le texte est reproduit à l'annexe de la présente loi.

STANDARD OF REVIEW

[8] The CRDD is a specialized tribunal and has complete jurisdiction to determine the credibility and plausibility of testimony. This Court will not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. Mr. Justice Blanchard succinctly summarized the law in this regard in Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 901, 2001 FCT 583 (F.C.T.D.), at paragraph 9:

It is important to note at the outset that, generally, findings of credibility by the CRDD are given much deference. It is the CRDD who have the benefit of observing witnesses directly and are in the best position to determine credibility. As the Federal Court of Appeal states in Agubor v. Canada (M.C.I.):

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position that the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

This Court should not intervene in the findings of credibility of the CRDD unless they are patently unreasonable. [emphasis added]

In regard to questions of fact and fact and law the standard is that of reasonableness simpliciter, as illustrated in Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), where Evans J. stated at paragraph 45:

On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.

DECISION OF THE CRDD

[9] At the hearing, which took place over three dates in February, April and May 2001, the Minister's representative put forward the submission that the applicant was a voluntary member of the Nigerian army, which has a well documented history of human rights violations. This opened the possibility of the applicant's exclusion based on the exclusion clause at Article 1F(a) of the United Nations Convention Relating to the Status of Refugees as adopted by Canada.

[10] The CRDD took account of the facts that the applicant served in the Nigerian army for ten years, that the applicant admitted he was aware of the army conducting human rights violations, and that while the applicant claimed to have been a cook, his description of his duties were vague. The CRDD found that he was more likely to have been a regular soldier, and an accomplice to the violations committed by the army. In making this finding the CRDD applied the test of Ramirez v. M.C.I. (1992), 2 F.C. 306 (F.C.T.D.).

[11] The applicant had submitted a page from a Nigerian newspaper that included an article identifying him and stating that he was wanted "dead or alive". The Minister's representative obtained from the Canadian High Commission in Accra, Ghana, the actual page from the same newspaper from that date, which did not have any reference to the applicant. The CRDD made reference to this piece of documentary evidence as having affected its finding regarding applicant's credibility.

[12] Based on these findings of fact and credibility, the Panel denied the application for Convention Refugee status.

ANALYSIS

(3) Exclusion under the United Nations Convention

[13] Article 1 of the United Nations Convention Relating to the Status of Refugees defines to whom the definition of "refugee" shall apply. However, Article 1F(a) excludes from the scope of its protection:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

[14] The CRDD correctly applied the test in Ramirez in finding that the applicant's involvement with the Nigerian Army was sufficient to place the applicant in the category of inadmissible individual. I find that it was reasonably open to the CRDD to conclude, based on the evidence before it, that the Nigerian army has repeatedly committed acts which are well documented and of a clearly inhumane nature, and to draw a negative inference from the applicant's ten year association with that army and lack of credible testimony about his involvement. As per the decision of the Federal Court of Canada, Appeal Division in Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (F.C.A.) at paragraphs 31-32:

¶ ¶ 31 Our Court never required [...] that a claimant be linked to specific crimes as the actual perpetrator or that the crimes against humanity committed by an organization be necessarily and directly attributable to specific acts or omissions of a claimant.

¶ ¶ 32 Indeed, short of that kind of direct involvement and of evidence supporting it, our Court accepted the notion of complicity defined as a personal and knowing participation in Ramirez, [1992] 2 F.C. 306, as well as complicity through association whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors.

[15] I take notice of the decision of Gibson J. in Osagie v. M.C.I. (2000), 186 F.T.R. 143 (F.C.T.D.) wherein the Nigerian Army was found to fall within the class of organizations contemplated in Ramirez. In circumstances similar to the present case, an alleged librarian in the Nigerian army was excluded on similar grounds. Gibson J. held:

¶ ¶ 16 The documentary evidence that was before the CRDD clearly establishes that at all times relevant to this matter, the Nigerian military was a military enterprise that engaged in detention, torture and murder. One of its "common objectives" was to retain political power unto itself and it was prepared to resort to whatever measures it considered necessary to achieve that objective.

¶ ¶ 17 The evidence before the CRDD clearly established that the applicant voluntarily joined the military, that he was aware that it was prepared to resort to and did resort to inhumane measures to achieve one of its common objectives, and that he nonetheless remained a member of the Nigerian military for many years during which he had opportunities to disassociate himself. In the end, he only disassociated himself when he felt that he might be personally at risk. Once again in the words of Mr. Justice McGuigan, the applicant "...was a part of the operation, even if he personally was in no sense a "cheering section."" He shared in a fearful common purpose of the Nigerian military. That sharing, from no matter how remote an element of the military, and here the remoteness was not physical but merely operational, clearly constituted complicity.

[16] The applicant only ended his association with the army after an extended period of time when he was allegedly forced to leave, and the evidence before the Board indicated he was at the very least aware of the human rights violations the army committed. In view of the applicant's ten years long association with the Nigerian army, I find that it was reasonably open to the panel to conclude that the applicant would be familiar with and therefore complicit in the conduct of that army.

[17] For the foregoing reasons, the CRDD decision that the applicant was excluded is reasonable.

(4) Evidence and Credibility

[18] At the CRDD hearing the applicant introduced as Exhibit P-4, a document which looked like a real newspaper from Nigeria titled The Observer, and dated December 14, 1999. On the first page there was an article about the applicant along with his picture. It stated that the applicant was "wanted dead or alive". The detailed article stated that the applicant was responsible for supplying weapons and ammunition to a gang.

[19] The CRDD held that this evidence, if genuine, "would have fully corroborated the claimant's allegations". At the hearing, the respondent produced the real first page of The Observer dated December 14, 1999. This document was identical to the exhibit introduced by the applicant, except that the article about the applicant was missing. The CRDD concluded that the newspaper produced by the applicant was fake. Upon questioning the claimant was at a loss to explain. The CRDD concluded that the story in the newspaper about the claimant being wanted by Nigerian authorities "is a fabrication designed to deceive the Tribunal". In plain English, the applicant was caught in a blatant lie designed to deceive the CRDD with respect to the main issue. This showed the applicant, in no uncertain terms, to be a liar.

[20] It is trite law before this Court that an administrative panel such as the CRDD need not make specific reference to all evidence available before coming to a finding regarding the credibility of an applicant. Further, findings of credibility are reasonably open to the panel to make and will not be overturned by the court unless found to have been made in a perverse or capricious manner.

[21] In the present matter, the false newspaper document, its falsity not in issue before this Court, was taken into account by the CRDD, along with the other available evidence, and the tribunal came to a finding that the applicant was not credible. Where a witness before the CRDD is found to have severely damaged his own credibility in a specific instance, such as supplying a false document to the CRDD, that can reflect on other findings regarding his credibility.

[22] It is plain from the decision that the CRDD evaluated the credibility of the applicant, considered the evidence before it, and made an informed and reasonable decision that the applicant was not credible.

[23] In view of the foregoing, this application for judicial review is denied.

(signed) Michael A. Kelen ___________________________

JUDGE

OTTAWA, ONTARIO

April 3, 2002

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FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.: IMM-3780-01

STYLE OF CAUSE: MAXWELL OSAYANDE v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: WINNIPEG, MANITOBA

DATE OF HEARING: MARCH 26, 2002

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN DATED: APRIL 3, 2002

APPEARANCES:

Me ODARO OMONUWA FOR THE APPLICANT

Me ALIYAH RAHAMAN FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

ODARO OMONUWA FOR THE APPLICANT WINNIPEG, MANITOBA

MR. MORRIS ROSENBERG FOR THE RESPONDENT DEPUTY ATTORNEY GENERAL OF CANADA