Date: 20010514
Docket: IMM-2364-00
Neutral Citation: 2001 FCT 476
BETWEEN:
JOHN UZOELUE CHUKWURAH
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application to set aside the decision of the Convention Refugee Determination Division (the "CRDD") dated April 7, 2000 wherein it was held that the applicant is not a convention refugee.
[2] Mr. Chukwurah, a citizen of Nigeria, bases his claim for Convention refugee status on political opinion, fearing persecution, including physical harm at the hands of agents of the Nigerian government. A hearing took place with respect to his claim before the CRDD on February 16, 2000.
[3] By decision dated April 7, 2000 the tribunal held that Mr. Chukwurah was not a Convention refugee. It found that country conditions in Nigeria have changed to such an extent that the applicant does not have objective grounds for his claim. The panel relied on a number of factors to support this conclusion such as the release of political prisoners; the return of exiled persons; democratic elections in 1998 and 1999; the transition from military to civilian rule; Nigeria's election to the United Nations Human Rights Commission; and, the lifting of sanctions by the European Union.
[4] The CRDD then considered whether the applicant fell within the exception contained in subsection 2(3) of the Immigration Act, insofar as he had suffered such appalling persecution that his experience alone was a compelling enough reason not to return him to Nigeria . After reviewing his medical and psychological reports the tribunal concluded that the application of the exempting provision was not warranted in Mr. Chukwurah's case, stating its reasons as follows:
Based on his testimony, on the documents in Exhibit C-4, and on a balance of probabilities, we accept that the claimant was maltreated at the time of his July 1997 arrest and during a thirty-five day detention. A physician's letter reports:
"He was beaten and tortured on several occasions until he managed to escape in 1997. He sustained multiple injuries and scars all over his body. Most of the scars are on the chest, back and shoulders, but the worst ugly scars are on both knees and lower legs, especially on the left side. Both knees look terrible with scars, which are consistent with one kneeling and crawling on sharp gravel. There are also several scars on both lower legs which are consistent with boot kicks."
The medical report accords with the claimant's evidence before us that during his detention, he was interrogated outdoors by guards, forced him to kneel on gravel and that guards kicked him with their boots. The documentary evidence supports his testimony of horrendous prison conditions. Nor are his allegations of mistreatment, including the above, as well as serious beatings of his father and him by security officers and his own horsewhipping by guards, beyond the documented violent human rights abuses by Nigerian security forces. Based on the above and on a balance of probabilities, we accept, as the claimant maintains, that his father died two weeks after being released and that maltreatment at the time of his arrest and during his twenty-five day detention were contributing factors.
While we find the treatment afforded the claimant to have been deplorable, given the documentary evidence, it was, lamentably, not unusual for persons running afoul of security forces in Nigeria at that time.
Following Arguello-Garcia, we have considered the particular psychological susceptibilities of the claimant. According to the claimant, while he is aware of changes in Nigeria, so strongly does he fear a reversion to the previous situation, that returning him to Nigeria would mean his death sentence – either the authorities will kill him or he will kill himself. Based on the report of the examining psychologist, we accept that he continues to have psychological after-effects, including post-traumatic anxiety and depressive symptoms and that the results of her tests show the levels of both to be severe. Her diagnosis is that:
"his psychological symptoms are entirely secondary to his experience in Nigeria. Mr. Chukwurah's depression can be attributed to his hopelessness and to his isolation from his family. He is also mourning the death of his father, which he connects to the entire traumatic incidents he experienced."
The opinion of the examining psychologist is that "Mr. Chukwurah is at risk for suicide, particularly if deported. He is very isolated here in Canada, and this is often a factor that can contribute to suicidal attempts." It is her professional opinion that returning the claimant to Nigeria will mean the escalation of all of his symptoms.
The standard for application of compelling reasons is set out in Obstoj. We are bound to follow the guidance set by the Federal Court of Appeal. We find the mistreatment the claimant suffered to have been persecutory. Nevertheless, and including the reported fragility of the claimant's psychological state, it does not in our view, reach a level to qualify it as "atrocious" and "appalling". Accordingly, it does not bring the claimant over the standard set in Obstoj for the application of "compelling reasons.
[5] The applicant now seeks to have that decision set aside on the grounds that he does meet the test for falling within the exemption contained in subsection 2(3) of the Act and the CRDD erred in law in its interpretation of the legal standard envisaged by the subsection. It is submitted that the panel incorrectly used the Obstoj decision as an automatic legal bar to assessing whether the applicant's torture and psychological state met the requirements for applying subsection 2(3) of the Act.
[6] I am satisfied that the impugned decision should be set aside for the following reasons.
[7] There is no controversy here surrounding the facts. It is clear from its decision that the CRDD accepted the applicant's evidence regarding the physical and psychological trauma which he had endured at the hands of Nigerian government agents and that he was continuing to struggle with the effects of that persecution. After reviewing the evidence before it, the panel then examined the jurisprudence under subsection 2(3), noting that it was bound by the Federal Court of Appeal decision in Canada (M.E.I.) v. Obstoj, [1992] F.C.J. 422. It is my view however, that the CRDD proceeded to incorrectly use that decision as an automatic legal bar from assessing the facts before it against the test under subsection 2(3).
[8] What the tribunal was required to do was to assess the evidence before it and to determine whether or not the persecution in question constituted appalling or atrocious persecution. These principles of law have been most recently set out by this Court in Igbalajobi v. Minister of Citizenship and Immigration, IMM-2230-00, April 18, 2001 as follows:
The Board must analyse why the torture, if so found, or other reprehensible treatment, does nor does not fit the requirements of subsection 2(3) of the Immigration Act. In Blakona v. Canada (MCI) (1999), 164 F.T.R. 220 (T.D.), Teitelbaum J. stated at paragraphs 45 to 48 that:
[45] These two words mean to me, acts that are vile or revolting. Therefore, it would appear that the Commission is satisfied that the treatment of the applicant during her detention in Zaire in December 1996 was both vile and revolting. The Commission is satisfied the applicant's treatment was reprehensible but did not fit the special requirements of subsection 2(3) of the Act without stating why they so concluded.
[46] The Commission refers to the decision of Obstoj (supra) but does not say why the vile or revolting acts committed upon the applicant do not fit within the "compelling reasons" of subsection 2(3).
[47] Surely, if the acts are revolting or vile and reprehensible, the Commission should state, in the circumstances of the present case, why the acts committed cannot be considered compelling reasons. This, the Commission failed to do.
[48] The application for judicial review is allowed and the matter is returned to be heard before a newly appointed Board.
[9] That reasoning is equally applicable to the case at bar. For these reasons, the application is allowed and the CRDD's decision of April 7, 2000 is set aside. The matter is referred back to a newly constituted panel for redetermination in accordance with these reasons.
JUDGE
OTTAWA, Ontario
May 14, 2001