Toronto, Ontario, February 7, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Christian Akoji, is an adult male national of Nigeria who claims refugee status in Canada under the provisions of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA). That claim was refused in a decision of a Member of the Immigration and Refugee Board, dated January 20, 2006. The Applicant seeks judicial review of that decision and asks that it be quashed and returned to a different member of the Board for re-determination. For the Reasons that follow I find that the Application is to be dismissed.
[2] In his submissions to the Board, the Applicant alleged a well-founded fear of persecution by agents of the ruling party or the government, the People’s Democratic Party (PDP) on the grounds of his political opinion and his membership in a particular social group, namely, the All Nigerian People’s Party (ANPP). The Applicant further alleged that if he is removed to Nigeria, he would be subjected to a danger of torture within the meaning of Article One of the Convention Against Torture and to a risk to his life or to cruel and unusual treatment and punishment.
[3] I find in coming to its decision, the Board accepted the Applicant’s evidence that he was an active member of a political party, the All Nigerian People’s Party (ANPP). It was accepted that the Applicant was beaten up in December 2004, and reported the matter to the police who did nothing about his complaint until the next day when he returned accompanied by two high profile people. Further, it was accepted that in March 2005, in a second incident, persons unknown to the Applicant entered his apartment, removed some property and furniture, tore up some ANPP posters and left a note threatening to kill the Applicant. The Applicant did not report this second incident to the police, rather he sought refuge with a friend in Logos Nigeria and ultimately came to Canada where he claimed refugee status.
[4] As to the first incident, that of December 2004, the Board found that the evidence of the claimant was not reasonable as to why he did not follow up with the police as to why his compliant was not investigated. The Board found that the claimant’s evidence as to the identity of his alleged attackers and their motive to be a matter of speculation, that it lacked factual premise and accorded it no weight.
[5] As to the second incident, the break-in of March 2005, the Board was unable to conclude that it bore the signature of any opposing political party. The Board found that it was not reasonable for the Applicant to conclude that the police would be unable to help him. The Board found that the inability of the police to assist the Applicant on the earlier occasion was due to the inability of the Applicant to furnish sufficient information to lead them to the perpetrators.
[6] The Board considered the issue of state protection. It considered that there was a presumption that the Nigerian state is able to provide protection to its citizens in the circumstances and that such presumptions needed to be displaced by clear and convincing evidence to the contrary. The Board found that the Nigerian police does act within the limits of its scare resources to protect its citizens and that serious efforts were made in that regard. The protection was adequate, although not perfect.
[7] The Board found that the police acted in a manner toward the Applicant that was consistent with their duty and responsibility in the enforcement of crime and that the Applicant’s action in deciding that the police were unable or unwilling to help him was unreasonable and perverse. They found the Applicant’s actions were contrary to that expected in cases such as Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. It concluded that there was no clear and convincing evidence of lack of state protection. Thus the Applicant’s claim was rejected.
[8] The Applicant has raised a number of issues which can be reduced to two:
1. Were the factual findings of the Board patently unreasonable?
2. Did the Board err in law in not considering whether Nigeria protects members of the Applicant’s particular social group rather than just its citizens generally?
[9] As to the first issue, the findings of fact, the law is clear that this Court as a Court of judicial review, is not called upon to re-weigh evidence. The function of this Court is to determine if the findings of fact by the Board were patently unreasonable. Having looked at the findings and considering the submissions made by Applicant’s counsel, I do not find that the factual findings of the Board were patently unreasonable. Its conclusions as to the lack of evidence as to the Applicant’s assailants in the first incident and the lack of an indication of motive of his assailants in the second cannot be faulted on that standard nor can the conclusion that the applicant acted unreasonably in not complaining to the police in respect of the second incident. Further, the findings that the Nigerian police offer adequate if not perfect protection is not patently unreasonable.
[10] The second issue is a mixed issue of fact and law, thus less deference is afforded to the finding of the Board, the standard being that of reasonableness.
[11] It is recognized as a point of law that Ward, supra established that the state’s inability to protect is an integral component of the notion of a Convention refugee. As the Federal Court of Appeal said in Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021, at paragraphs 13 and 14:
13 It has now been established in the case of Canada (Attorney General) v. Ward that state's inability to protect is an integral component of the notion of a Convention refugee, particularly in the light of the words well-founded." The onus is on the claimant to establish this inability. La Forest J. makes it clear in Ward that "[a]bsent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant". Unless there is an admission by the state that it cannot afford protection, a claimant must provide "clear and convincing confirmation of a state's inability" to protect him. La Forest J. gave examples as to how a claimant may do this:
... 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.
14 The case at bar does not appear to be one of a "complete breakdown of state apparatus". The question the Board members should address in assessing the evidence as a whole is whether, on the facts as shown, it can still be assumed that the state of Peru is able to protect the claimant or whether such a presumption has been rebutted by him. Isolated cases of persons having been victimized may not reverse the presumption. A state of profound unrest with ineffective protection for the claimant may, however, have reversed it. In such a case, as I understand La Forest J., a "subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded."
[12] The kind of evidence that would be “clear and convincing” would be that that would show that similarly situated individuals were let down or past personal incidents which do not materialize in protection. To quote again from Mendivil at paragraph 19:
19 In the present case, the evidence does not show that the situation is one of "complete breakdown of state apparatus". Therefore, in order for the appellant to overcome the presumption that the state is capable of protecting him, he had to advance clear and convincing confirmation of the state's inability to do so. Such proof might consist, for example, of testimony that "similarly situated individuals [were] let down by the state protection arrangement" or of "past personal incidents in which state protection did not materialize".
[13] The Board reviewed the evidence before it in this case and found that the personal experience of the Applicant did not provide “clear and convincing” proof nor did any other evidence as to more general activity against members of the ANPP provide such proof of a well founded fear. The Applicant’s counsel drew attention to certain allegations in the Applicant’s PIF and oral testimony not specifically mentioned by the Board in its Reasons in which allegations were made that certain members of his political party had been attacked or killed. The Board is not required to itemize every piece of evidence before it in its Reasons. The conclusions of the Board, that the Nigerian police does act within the limits of its scarce resources and provides adequate, if not perfect, protection, is not unreasonable. The Board was not required to state that it had specifically considered the class of persons to which the Applicant alleges he belongs, the ANPP since there was no evidence of a complete breakdown in state apparatus. The Board said that the Nigerian states are making serious efforts to protect its citizens.
[14] I find, therefore, no basis for quashing the decision of the Board.
[15] That there is no question for certification. There is no order as to costs.
JUDGMENT
FOR THE REASONS PROVIDED:
THE COURT ADJUDGES THAT:
1. The Application is dismissed;
2. There is no question for certification; and
3. No Order as to costs.
“Roger T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-846-06
STYLE OF CAUSE: CHRISTIAN AKOJI v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 7, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES J.
DATED: February 7, 2007
APPEARANCES:
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Boniface Ahunwan |
FOR THE APPLICANT |
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Gordon Lee |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Boniface Ahunwan Toronto, Ontario |
FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |