Date: 20030425
Docket: IMM-5297-01
Neutral citation: 2003 FCT 522
Ottawa, Ontario, this 25th day of April, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
BENEDICT OSAMUDIAMEN IRHUEGBAE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board"), dated October 25, 2001, wherein it was determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order:
1. Reviewing and setting aside the decision of the Convention Refugee Determination Division wherein the Board determined that the applicant is not a Convention refugee, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2; and
2. Referring the matter back to the Immigration and Refugee Board with a direction that the same panel or in the alternative any other panel of the Immigration and Refugee Board should declare the applicant to be a Convention refugee; or
3. In the alternative, that this application for judicial review should be granted, the impugned decision set aside and the matter referred back to a differently constituted panel of the Immigration and Refugee Board for re-determination.
Background
Introduction
[3] The applicant is a citizen of Nigeria who alleges a well-founded fear of persecution.
The applicant claims he was active in the fight against student cultism while in the students' union of his university and a joint campus committee. He had earned a certificate of merit from Delta State University for his work.
[4] On September 23, 1998, the applicant delivered an anti-cult lecture at the University of Benin. The lecture angered cultists and a few hours later he received a threatening letter asking him to leave the campus within 48 hours or face certain and violent death. He had reported the threat to the police who told him that he should be prepared to identify at least two cult members before they could set up an investigation. The applicant testified that the police had been forbidden to enter the university without an invitation from the Chief Security Officer, who was the Vice-Chancellor and someone widely believed to be a member and financier of the Buccaneers cult.
[5] The applicant testified that two nights after his lecture, a lecturer was murdered and that this was followed by other murders at the University of Benin and other neighbouring campuses. As well, the applicant claims his residence and car had been vandalized in his absence and he was followed by the cultists.
[6] The applicant took these threats against his life seriously and he decided to flee Nigeria when a registrar of Delta State University, who had been promised protection by the university and the police, was murdered a few weeks later. This was followed by killings of members of the students' union of the University of Ife. The applicant claims his wife and new born, perished in an automobile crash while returning home from taking him to the airport.
[7] The applicant alleges that he cannot return to Nigeria because there is no state protection available to him and as a result, he will be killed.
Reasons of the Immigration and Refugee Board (Refugee Division)
[8] By reasons dated October 25, 2001, the Board determined the applicant not to be a Convention refugee.
[9] The Board found true the basis of the applicant's story respecting the violent actions of cult members on university campuses. Although documentary evidence showed that university campuses in Nigeria had been plagued by violence and death perpetrated by cult members, the Board found that adequate state protection was available to the applicant in Nigeria against these actions of cult members. The Board found that the documentary evidence showed that the Nigerian government had declared war on these cults and is determined to eradicate such criminality with President Obasanjo giving the issue very high priority.
[10] The Board did not find it credible that the applicant was told by the police that he would have to be prepared to identify at least two members who had threatened him before the police could set up investigations. The Board stated that the documentary evidence did not indicate that the police made this a requirement before investigating and that the documentary evidence showed that the police do investigate and prosecute incidents of criminality after investigations. If the applicant had been told this by the police, then the Board found that redress was probably available to him by lodging his complaint at another level of the police hierarchy.
[11] The Board found the documentary evidence further showed the government's actions in affording protection to its citizens. The Board acknowledged that there is a distrust of the police by the population. However, it found that initiatives have been undertaken by the government to reform and strengthen the police, such that their practices have improved, and the majority of the police are now trying to do their jobs, showing more respect for the rights of citizens.
[12] The Board preferred the documentary evidence over the applicant's evidence, as it found the contributing sources to the documentary evidence to be reliable, independent and without interest in the outcome of any claim.
[13] The Board acknowledged that while state protection in Nigeria is not perfect, it is however adequate. The Board found the applicant did not provide clear and convincing evidence that the government is unwilling or unable to protect him. The Board found there is not a reasonable chance or serious possibility that the applicant will be persecuted if he returns to Nigeria.
[14] This is the judicial review of the decision of the Board finding the applicant not to be a Convention refugee.
Applicant's Submissions
[15] The applicant submits that the Board's reasons for finding the applicant not to be a Convention refugee are perverse, capricious and patently unreasonable. It is submitted that the applicant's claim is based on his membership in a particular social group, namely, opponents of secret cults in Nigeria.
[16] The applicant submits the test which the Board applied in its determination of state protection is erroneous. It is submitted that the requirement in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (QL) (C.A.) of total breakdown as the condition for the absence of state protection was overruled in Canada (Attorney General) v.Ward, [1993] 2 S.C.R. 689. It is submitted that an applicant can apply for Convention refugee status if he demonstrates that despite best efforts by the state, it is unable to provide protection, and where there is also evidence that the applicant is likely to be treated differently. It is submitted that the applicant presented clear evidence establishing that the government of Nigeria is unable to protect him and that the Board ignored vital evidence supporting the absence of state protection.
[17] The applicant submits that the Board's assessment of the evidence supporting a lack of state protection is perverse and patently unreasonable. It is submitted that the Board's analysis of the levels of police and methods of prosecution is misdirected as the applicant's case is not a general case of the criminal process, but rather is based on the particular problem of student cults. It is submitted that the documentary evidence is clear that the government is unable to protect the victims of cults and that the decision of the Board was not based on the evidence before it.
Respondent's Submissions
[18] The respondent disagrees with the applicant's interpretation of Villafranca, supra. The respondent submits that the legal test for determining whether state protection is available is not whether there has been a total collapse of the state apparatus, but whether the state is making serious efforts to protect its citizens. The respondent also disagrees with the applicant's submission that Villafranca, supra and Ward, supra apply two different legal tests. The respondent takes the position that these two cases apply essentially the same test and that the "making serious efforts to protect" branch of the test in Villafranca, supra is essentially equivalent to the "clear and convincing confirmation" branch of the test in Ward, supra. The respondent submits the reasons of the Board demonstrate that it applied the correct legal test in determining whether adequate state protection was available to the applicant.
[19] The respondent submits the reasons of the Board demonstrate that it carefully considered the totality of the evidence. It is submitted that the Board's decision to give greater weight to the documentary evidence over the applicant's testimony was reasonable. It is submitted that the reasons of the Board demonstrate that its adverse credibility finding was not based on speculation, but was grounded in relevant documentary evidence. The respondent submits the applicant mischaracterized documentary evidence as only relating to general police practices in Nigeria when in fact it is case specific. The respondent submits the Board was under no obligation to summarize all of the relevant documentary evidence in its reasons which supported its determination that the applicant had adequate state protection available to him. It is submitted that the documentary evidence clearly and unequivocally establishes that although cult violence is a serious problem on university campuses, the state has made serious efforts to combat the problem thereby providing students with adequate state protection. The respondent submits the applicant's arguments amount to a disagreement with the manner in which the Board weighed evidence and affords no legal basis for the Court to interfere with the decision of the Board. As such, the respondent requests that the application for judicial review be dismissed.
Issues
[20] 1. Was the Board's overall assessment of the totality of the evidence patently unreasonable, perverse and capricious? Did the Board misstate and misapprehend material evidence properly before it to the extent that the Board committed an error of law?
2. Did the Board apply the wrong test in its determination of the availability of state protection to the applicant?
3. Did the Board err in concluding that the applicant's fear of persecution is not well-founded?
4. Did the Board misapprehend the evidence presented before it?
5. Is the decision of the Board based on the totality of the evidence before it?
Relevant Statutory Provision
[21] Subsection 2.(1) of the Immigration Act, supra, states:
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"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 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; |
« 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:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer 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 celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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Analysis and Decision
[22] I propose to first deal with Issue 2 which is:
Did the Board apply the wrong test in its determination of the availability of state protection to the applicant?
The Board, at page 3 of its reasons stated:
The panel acknowledges that while state protection in Nigeria is not perfect, it is however adequate. The panel finds that the claimant has not provided clear and convincing evidence that the government is unwilling or unable to protect him. According to Villafranca, no government can guarantee the protection of all its citizens at all times. The panel finds that Nigeria is a state which is exhibiting effective control of its territory. It has military police and civil authority in place, and is making serious efforts to protect its citizens.
Based on the foregoing, the panel concludes that there is adequate state protection available to the claimant in Nigeria, and that there is not a reasonable chance or serious possibility that he will be persecuted if he returns to Nigeria.
[23] The applicant submits the test applied by the Board in its determination of state protection is erroneous and that the applicant presented clear evidence showing that the Nigerian government is unable to protect him. The respondent submits the reasons of the Board demonstrate that it applied the correct legal test.
[24] In the 1992 decision of Villafranca, supra, the Federal Court of Appeal wrote at paragraphs 6 and 7:
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (...) or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration) ..., a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[25] In the 1993 decision of Ward, supra, the Supreme Court of Canada wrote at pages 724 to 726:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus such as recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
. . .
. . . A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. . . .
[26] The Supreme Court of Canada noted in Ward, supra that examples of clear and convincing confirmation of a state's inability to protect might include "testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize."
[27] The applicant provided evidence of similarly situated individuals let down by the state protection arrangement. He gave evidence that another lecturer was murdered two nights after the applicant gave his lecture. This lecturer was a fellow anti-cult activist (tribunal record page 19). The applicant, in his Personal Information Form ("PIF") stated that a registrar of Delta State University, the applicant's alma mater, told him in May 1999 that he had been offered police protection against the cultists. A few weeks later, the registrar was murdered. The Board did not state this evidence was not credible. As well, the Board found that the applicant had not provided clear and convincing evidence that the government is unable to protect him. However, in my opinion, the applicant did provide evidence of similarly situated individuals let down by state protection (e.g. the registrar at Delta State University who was killed). This evidence was mentioned in the Board's decision, but it was not addressed in the context of the state's inability to protect the applicant. As Ward, supra states, one of the ways to establish the inability of a
state to protect a person is by showing its inability to protect other similarly situated individuals. Therefore, this constitutes a reviewable error on the part of the Board.
[28] Because of my finding on Issue 2, I need not deal with the remaining issues.
[29] The application for judicial review is allowed.
[30] Neither party wished to propose a serious question of general importance for my consideration.
ORDER
[31] IT IS ORDERED that the application for judicial review is allowed and the matter is to be referred back for reconsideration by a differently constituted panel.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5297-01
STYLE OF CAUSE: BENEDICT OSAMUDIAMEN IRHUEGBAE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, January 7, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Kingsley Jesuorobo
FOR APPLICANT
Robert Bafaro
FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Third Floor
968 Wilson Avenue
Toronto, Ontario
M3K 1E7
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT