AKANBI NOAH OTAPO Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 711

Federal Court Cour fédérale Date: 20110616 Docket: IMM-6869-10 Citation: 2011 FC 711 Toronto, Ontario, June 16, 2011 PRESENT: The Honourable Mr. Justice Campbell BETWEEN: AKANBI NOAH OTAPO Applicant and THE MINISTER OF CITIZENSHIP ANDIMMIGRATION Respondent REASONS FOR ORDER AND ORDER [1] The present Application concerns a claim for refugee protection by a citizen of Nigeria who identifies his persecutor as thepolice in Nigeria because of his failure to pay them a bribe.

The Applicant’s claim was rejected by the Refugee Protection Division(RPD) on the basis of a global negative credibility finding, which is dependent on two principal implausibility findings. [2] With respect to the implausibility findings made, I find that the RPD reasonably applied the correct approach as stated byJustice Muldoon in the decision of Istvan Vodics v. Minister of Citizenship and Immigration, 2005 FC 783: The tribunal adverts to the principle from Maldonado v.

M.E.I., (FCA), [1980] 2 F.C 302 (C.A.) at 305, that when arefugee claimant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasonsto doubt their truthfulness. But the tribunal does not apply the Maldonado principle to this applicant, and repeatedly disregards histestimony, holding that much of it appears to it to be implausible. Additionally, the tribunal often substitutes its own version of eventswithout evidence to support its conclusions.

A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn canbe reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented areoutside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not havehappened in the manner asserted by the claimant.

A tribunal must be careful when rendering a decision based on a lack of plausibilitybecause refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standardsmight be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON:Butterworths, 1992) at 8.22]

[ 3 ] On the basis of verifiable documentary evidence, the RPD properly established the expectations that, because the Applicant did not pay a bribe he would be arrested and would be beaten in custody, and his family would be arrested and detained if he fled.

In applying these expectations the RPD made the factual findings that “neither in his oral nor written evidence did [the Applicant] suggest that he was beaten or otherwise mistreated during his confinement (Decision, para. 5), and “no member of the claimant’s family, including his 14-year old daughter has been arrested or detained by the police since he absconded” (Decision, para. 10).

The factual findings form the basis of the implausibility findings. [ 4 ] With respect to the first factual finding, the Applicant in his PIF states that he “was beaten and intimidated by the police and two criminals” while in custody (Applicant’s Application Record, p. 36), and with respect to the second factual finding, there is no direct evidence on the record before the RPD concerning police misconduct vis a vis members of the Applicant’s family.

On the latter point I accept Counsel for the Applicant’s argument that the issue of such conduct was simply not engaged in the course of deciding the Applicant’s claim. As a result, I do not accept Counsel for the Respondent’s argument that no misconduct can be inferred from the fact that there is no evidence of such misconduct on the record. As a result, I find that the factual findings are unsubstantiated. [ 5 ] As a result, I find that the decision under review is unreasonable because it is not defensible on the facts.

ORDER THIS COURT ORDERS that: The decision under review is set aside and the matter is referred back to a differently constituted panel for redetermination. There is no question to certify. “Douglas R. Campbell” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6869-10 STYLE OF CAUSE: AKANBI NOAH OTAPO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO , ONTARIO

DATE OF HEARING: JUNE 16, 2011 REASONS FOR ORDER AND ORDER BY: CAMPBELL J. DATED: JUNE 16, 2011 APPEARANCES : RICHARD ODELEYE FOR THE APPLICANTS MONMI GOSWAMI FOR THE RESPONDENT SOLICITORS OF RECORD : RICHARD ODELEYE BARRISTER & SOLICITOR TORONTO, ONTARIO FOR THE APPLICANT MYLES J. KIRVAN DEPUTY ATTORNEY GENERAL OF CANADA TORONTO , ONTARIO FOR THE RESPONDENT