Date: 20000626
Docket: IMM-1963-99
BETWEEN:
MATHEW LAWANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Board of the Immigration and Refugee Division (the "Board"), dated March 24, 1999, wherein the Board found that Mathew Lawani (the "Applicant") is not a Convention refugee.
[2] The Applicant is a citizen of Nigeria and alleges a well-founded fear of persecution based on an imputed political opinion. The Applicant claims to have been detained and tortured based on his cartoon-like drawings which were critical of the military regime of General Abacha.
[3] On October 30, 1997, the Applicant was arrested by policemen. He remained at the New Benin Police Station until his release on December 26, 1998. He was released and told to report weekly. He did not report as required, but fled to Lagos and then from Nigeria.
[4] The Board considered the Applicant"s particular circumstances in light of the documentary evidence before it pertaining to developments which have taken place in Nigeria since General Abacha"s demise in 1998. The Board was not persuaded that under the present circumstances the claimant has established an objective basis for a well-founded fear of persecution.
[5] Moreover, the Board was of the opinion that there is insufficient evidence that the Applicant"s persecution was sufficiently "atrocious" and "appalling" to warrant the application of subsection 2(3).
[6] Following a careful review of all the material submitted, I am of the opinion that the Board erred in its assessment under subsection 2(3) of the Immigration Act.
[7] Subsection 2(3) of the Immigration Act reads:
| 2(3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution.
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2(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
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[8] Although subsection 2(3) only applies in very rare cases, I am of the opinion that the Board erred in the present matter when after accepting the Applicant"s testimony as credible, the Board stated there was insufficient evidence that the Applicant"s treatment was sufficiently appalling and atrocious.
[9] I refer to page 23 of the Applicant"s Record where the Applicant deposes:
| I testified to the panel that I was brutally and severely ill-treated and tortured by agents of the Nigerian government while in detention. I explained that, while being detained, I was beaten everyday, threatened regularly and subjected to life-threatening ordeals, including being hung upside down for a long periods of time, being burnt with hot irons and cigarette fire, being whipped on my back and being made to expose my genitalia to the guards who inserted broom sticks and needles into my penis. |
[10] In light of the fact that the Board heard sworn testimony of this treatment and did not make a negative assessment as to the Applicant"s credibility, it is patently unreasonable for the Board to then state that there was insufficient evidence to warrant an application of subsection 2(3).
[11] Accordingly, the application for judicial review is granted. The matter is to be remitted to a differently constituted Board.
[12] Counsel for the parties have seven days from their receipt of these reasons to submit a question for certification.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
June 26, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MATHEW LAWANI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY , MAY 10, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: MONDAY, JUNE 26, 2000
| APPEARANCES BY: Mr. Kingsley I. Jesuorobo |
| SOLICITORS OF RECORD: Mr. Kingsley I. Jesuorobo |
Barrister & Solicitor
968 Wilson Avenue
3 rd Floor
North York, Ontario
M3K 1E7
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000626
Docket: IMM-1963-99
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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