Fagbemi v. Canada (Minister of Citizenship and Immigration)

Fagbemi v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-09-11
Neutral citation
2006 FC 1083
File numbers
IMM-1374-05
Decision Content
Date: 20060911
Docket: IMM-1374-05
Citation: 2006 FC 1083
Vancouver, British Columbia, September 11, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ISRAEL OYEJIDE GBOLAHAN ADISA FAGBEMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Israel Fagbemi has been in Canada since 1986. He claims to be a citizen of Nigeria who fled to Canada to escape political persecution. He pursued various means of staying in Canada over the years, but his claim for refugee protection was not dealt with on its merits until 2005. A panel of the Immigration and Refugee Board denied Mr. Fagbemi’s claim because of a lack of credible evidence and because he failed to prove his identity. Mr. Fagbemi argues that the Board had no jurisdiction to hear his claim and made serious errors in dismissing it. However, I can find no basis for overturning the Board’s decision and must, therefore, dismiss this application for judicial review.
I. Issues
[2] Mr. Fagbemi raised two main issues:
1. Did the Board have jurisdiction to hear and decide Mr. Fagbemi’s refugee claim?
2. Did the Board err when it found that Mr. Fagbemi had failed to prove his identity?
[3] Mr. Fagbemi also disputed some of the Board’s credibility findings but, in light of my conclusions on the first two issues, it is unnecessary for me to address those arguments.
II. Analysis
A. Did the Board have jurisdiction to hear and decide Mr. Fagbemi’s refugee claim?
[4] Mr. Fagbemi argues that because immigration officials found that his refugee claim had a “credible basis” in 1993, the Board had no authority to re-open his case and come to a contrary conclusion in 2005.
[5] The Board found that Mr. Fagbemi had applied for refugee status in 1987 and, in 1993, passed the paper screening process that existed at that time. Under normal circumstances, Mr. Fagbemi would have been granted landed status in due course. However, he was subsequently found to be inadmissible to Canada because he was receiving social assistance. As the merits of Mr. Fagbemi’s original refugee claim were never fully considered, the Board concluded that it had jurisdiction to entertain his fresh application, which had been filed in 2001.
[6] I can find no error in the Board’s conclusion that it had jurisdiction to hear and decide Mr. Fagbemi’s refugee claim.
B. Did the Board err when it found that Mr. Fagbemi had failed to prove his identity?
[7] Mr. Fagbemi concedes that he no longer possesses documents proving his Nigerian citizenship. The only document he presented to the Board was a photocopy of an admittedly fake Nigerian passport issued in 1986. However, he argues that the Board treated him unfairly by insisting on better identity documents. He claims that his other documentation was unlawfully destroyed by immigration officials.
[8] The Board noted that Mr. Fagbemi had been advised that identity would be an issue at his hearing. Nevertheless, he did not attempt to obtain supporting documentation from Nigeria, even though he had been in Canada since 1986 and had had plenty of time to assemble the necessary proof. The Board denied him a further adjournment for that purpose.
[9] Mr. Fagbemi relied on guidelines regarding retention of immigration and refugee documents. He cited one guideline applicable to immigration cases which states that “standard case files” should be kept for ten years after the proceeding. Regarding the files of the Refugee Protection Division, the applicable guideline states that they should be kept for six months after final action has been taken, and then for a further twenty years in National Archives. Mr. Fagbemi concludes from these guidelines that the Board was in violation of its own rules and, therefore, should not have drawn an adverse inference against him regarding his lack of identity documents.
[10] Assuming that these guidelines are mandatory, I cannot conclude that they were breached. Mr. Fagbemi originally sought refugee status in 1988. However, he did so through a process that did not involve the Refugee Protection Division. Accordingly, officials might have been bound to keep his documents for ten years, but not twenty, as he maintains. Further, I have no evidence before me indicating that Mr. Fagbemi had supplied good evidence of his identity even in 1988. He referred me to a document included in his original file and suggested that it shows that he submitted fifteen attachments to his original claim. In fact, as I read the form, it indicates how many attachments and exhibits accompany the claim, with numbers running from 1 to 15. No number is circled on Mr. Fagbemi’s form and, therefore, I cannot conclude from it that he had submitted the maximum number, or even any, attachments or exhibits. He also conceded in his oral testimony that he had previously filed photocopies, not originals, with his original application. He retained the original documents, which were subsequently lost or stolen.
[11] I cannot conclude from these circumstances that the Board erred when it found that Mr. Fagbemi had failed to supply adequate proof of his identity. Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. This application for judicial review is dismissed;
2. No question of general importance is stated.
“James W. O’Reilly”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1374-05
STYLE OF CAUSE: FAGBEMI v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 7, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: O’REILLY J.
DATED: September 11, 2006
APPEARANCES:
Israel Fagbemi
FOR THE APPLICANT/SELF-REPRESENTED
David Joseph
FOR THE RESPONDENT
SOLICITORS OF RECORD:
ISRAEL FAGBEMI
Brampton, ON
FOR THE APPLICANT/SELF REPRESENTED
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, ON
FOR THE RESPONDENT