Date: 20021023
Docket: IMM-5218-01
Neutral citation: 2002 FCT 1108
Toronto, Ontario, Wednesday, the 23rd day of October,2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
TIMOTHY EDOCHIE OKAFOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated October 9, 2001, wherein the CRDD determined that the Applicant is not a Convention Refugee.
[2] The Applicant, who is a citizen of Nigeria, claimed a well-founded fear of persecution on the basis of his religion as a Christian and his perceived political opinion; he claims that after delivering a lecture entitled "Morality and Godliness: Students and Campus Secret Cults", in which he expressed views opposing cult practices in Nigerian Universities, he was accosted and threatened. This led him to flee Nigeria and enter Canada as a refugee.
[3] The CRDD, while finding the Applicant credible and believing that he had given the speech, determined that in the absence of state protection, persecution of the claimant would be likely and the fear would be well-founded. However, the CRDD was not convinced that the Applicant qualified as a Convention Refugee because of the availability and adequacy of state protection to him in Nigeria.
[4] According to the Supreme Court of Canada in Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, in the absence of a complete breakdown of the state's apparatus, there exists a presumption of state protection. Therefore, a claimant must adduce "clear and convincing proof" of the state's inability to protect. The inability of a state of nationality to protect a claimant can be established where the claimant has actually approached the state and been denied protection in the past.
[5] The issue in the present application is whether the CRDD's evaluation of the evidence was committed in reviewable error, such as to have rendered the decision patently unreasonable.
[6] In reaching its decision, the CRDD relied extensively on the documentary evidence outlining the efforts by Nigerian authorities to combat university cults and the increasing effectiveness of those efforts. It also referred to evidence detailing efforts to reform and strengthen the police force in Nigeria. As a result, the CRDD determined that the state's facilities, though imperfect, were adequate to address the needs of the Applicant.
[7] Concerning the evidence, the CRDD made the following statement:
Further, while counsel puts forth documentary evidence to show that there are cult clashes and violence caused by cults on university campuses in Nigeria, this documentary evidence also shows that the police are involved in investigating these incidences of violence.
In addition, while the scourge of university cults continues, according to the Chief Executive Officer of Alliances for Africa, the Nigerian government has declared an "all-out war" on university cults.
In the panel's opinion, while not minimizing the problems faced by Nigeria in regard to university cults, the panel is mindful of the test as laid out in Villafranca and finds the claimant has not presented clear and convincing proof of Nigeria's inability to protect him. [Emphasis added]
[8] In reaching these conclusions, the CRDD accurately stated that the general conditions of state protection in Nigeria have improved. However, in my opinion, on the whole of the evidence on the record before it, the CRDD made a significant error on the adequacy of state protection in the university context. In particular, I agree with the Applicant's argument that the above-quoted statement that the "Nigerian government has declared an all-out war on university cults", which is intended to infer that state protection is available to those being persecuted by university cults, is taken seriously out of context. In fact, the whole of the expert opinion in which the quotation is found is as follows:
She stated that the government had declared an "all-out war" on university cults and that President Obasanjo has given the issue very high priority. However, in her opinion, government authorities are unable to protect students, despite the current expressed willingness. She said that a risk of exposure to cults is present at every tertiary institution, particularly at older institutions.
(Tribunal Record, p. 84) [Emphasis added]
[9] Consequently, in my opinion, this error renders the decision patently unreasonable.
ORDER
Accordingly, the CRDD's decision is set aside and the matter referred back for redetermination by a differently constituted panel with the direction that:
1) the redetermination is to be on the basis that the Applicant is credible; and
2) the only issue to be addressed on the redetermination is the availability of state protection, and in this respect the evidence to be considered is that on the record in the hearing presently under review, and any other evidence, including more current evidence, submitted by either the Applicant or Respondent.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of counsel and solicitors of record
DOCKET: IMM-5218-01
STYLE OF CAUSE: TIMOTHY EDOCHIE OKAFOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, OCTOBER 21, 2002
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, OCTOBER 23, 2002
APPEARANCES BY: Mr. Kingsley Jesuorobo
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Kingsley Jesuorobo
968 Wilson Ave
3rd Floor
North York, Ontario
M3K 1E7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20021023
Docket: IMM-5218-01
BETWEEN:
TIMOTHY EDOCHIE OKAFOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER