[1] Ope Abiodun Okutubo (the "applicant") is a citizen of Nigeria. He seeks a stay of his removal from Canada pending determination of his leave and judicial review application challenging the January 23, 2002 decision of Immigration Officer M. Couracos who turned down his request on humanitarian and compassionate grounds for an exemption from the requirements of subsection 9(1) of the Immigration Act. (the Act) The immigration officer, who is also a post-claims determination officer had, the previous day, that is January 22, 2002, completed a risk opinion in the context of the applicant's H & C request.
[2] The applicant arrived in Canada on February 6, 1999, and, that same day, claimed refugee status. On May 10, 2000, the Refugee Division refused his claim. The applicant did not file an application for judicial review.
[3] On May 14, 2000, the applicant filed an application for recognition as a member of the Post-Determination Refugee Claimants in Canada Class ("PDRCC") but made no submissions in support of that application. On November 2, 2001, a PCDO refused his application on the following grounds:
- no evidence/information provided to support that the Nigerian authorities have detained any of the applicant's relatives in an effort to induce pc to surrender or that the applicant's remaining relatives, in Nigeria, have been subjected to abuse as a result of their filial relationship with pc.
- insufficient persuasive evidence to support that the current Nigerian authorities have a continued interest in him, his whereabouts or in seeking reprisals against him.
- insufficient persuasive evidence to support that Ope Abiodun Okutubo would be subject to an objectively identifiable risk, pursuant to the pdrcc mandate, if required to return to Nigeria.
- insufficient persuasive evidence, in the circumstances of this case, to accord pc inclusion in the pdrcc class.
The applicant did not seek leave for judicial review of this negative PDRCC application.
[4] The applicant had, on July 7, 2000, filed an H & C application. In that application, he advanced two grounds for exemption: his establishment in Canada and his risk of return. In terms of his risk of return, the applicant stated he was arrested on two occasions in Nigeria as a result of his association with the Oodua People's Congress ("OPC") stating OPC members had been threatened and many killed by the authorities. He states he was injured at the time of his second arrest and, as a result, was transferred to a military hospital for treatment. He was released by his family paying a bribe. He remained in hiding until friends and relatives made arrangements for his departure. He states the authorities, including the police, the army and the State Security Service have harassed his family for his whereabouts.
[5] As noted, the immigration officer who refused his H & C application was a PCDO who completed a risk assessment on January 22, 2002.
[6] The Refugee Division, in its May 10, 2000 decision, accepted, on the balance of probabilities, his evidence he was a member of the OPC, detained by the Nigerian authorities and subsequently released as alleged.
[7] The Refugee Division found because of his lack of accurate knowledge about the OPC and the scant information he provided, it was not persuaded the claimant had a meaningful profile within the OPC which would lead the authorities to have an interest in him although they were continuing to investigate OPC activities.
[8] The Refugee Division was not persuaded he had been arrested. It discounted his testimony in which he stated his brother had told him the Nigerian authorities were continuing to go to his house in his pursuit. It found his testimony around this particular issue to be contradictory and that the applicant had invented that story to bolster his claim. The Refugee Division referred to an order by the Lagos Police Commissioner to stop the indiscriminate arrest of persons suspected to be members of the OPC and concluded that if the applicant was not involved in any violent activity as he alleged, there was no basis for his fear the authorities would still be interested in him.
[9] A review of Marie Couracos' risk opinion of January 22, 2002, reveals it is based on the CRDD reasons for decision, the US DOS Country Reports on Human Rights Practices for Nigeria 2000, the Amnesty International Reports for 1999, 2000 and 2001, as well as two IRB responses to information requests dated May 24, 2001 and June 28, 2001.
[10] In particular, immigration officer Couracos referred to the IRB response to information request of May 24, 2001 which states the Nigerian police have targeted their action against members of the OPC involved in violence and that ordinary members generally appear to be able to express their views without harassment. She concluded, that given the applicant's testimony before the CRDD panel that he did not participate in any violent activities as a result of his membership in the OPC, it was her opinion the applicant, as an ordinary member of the organization, would not be at risk in Nigeria.
[11] She acknowledged the applicant had testified he was released from detention on reporting conditions until his arraignment indicated he was facing prosecution (versus persecution) and that prosecution is not a risk factor.
[12] She acknowledged the documentary evidence confirmed the relationship between the authorities and the OPC was marked with violent clashes.
[13] However, she concluded there was insufficient credible information linking the applicant to country conditions or that his profile was such the authorities would currently be interested in his whereabouts or in targeting him for harm.
[14] She added the applicant may have been arrested for his participation in an OPC meeting but was of the view, however, his release on reporting conditions was indicative of the authorities' lack of evidence to continue his detention, and otherwise supported by insufficient persuasive evidence he was at risk of persecution rather than prosecution.
[15] She stated the documentary evidence consulted confirmed the practice of detaining family members and other relatives in order to induce the alleged suspect to surrender himself for arrest to the police. She noted, however, amongst the limited incidents reported, the suspects in question were not considered ordinary members of the OPC but rather held high ranking positions such as some OPC factional leaders and the OPC principal leader. On this point, she concluded given the lack of objective evidence to establish he was more than an ordinary member of the OPC, there was insufficient compelling evidence to reasonably conclude the authorities were or continued to be interested in targeting the applicant's family to induce his surrender.
[16] She concluded, based on all the evidence before her, there was less than a mere probability the applicant would be at risk in Nigeria.
[17] In her supplementary record in support of this stay application, counsel for the applicant filed two IRB reports. The first one concerns the OPC including its goals, origins, factions, regions of activities and leaders. It is dated March 6, 2000. The second one is dated February 14, 2001 on the subject of reports of women being arrested in connection with the OPC during the period January 2000 to February 2001.
ANALYSIS
[18] The case put forward by counsel for the applicant was twofold. First, she asserts the applicant was denied procedural fairness because the respondent did not disclose the basis of the negative risk assessment before making a decision and, as a result, the applicant had no opportunity to respond and correct it. Second, the immigration officer was unreasonable in reaching the conclusion concerning the extent of the applicant's establishment and integration in Canadian society.
[19] In my view, the fundamental perspective of this application -- whether objectively the applicant would be at risk in Nigeria -- impacts both on the serious issue prong and the irreparable harm prong of the tripartite test which the applicant must meet in order to obtain a stay of his removal (whose legality is not contested) pending a determination of his application for leave and judicial review.
[20] I conclude, the applicant has not pointed to any defect in the risk opinion which is sought to be challenged and, hence, no case of irreparable harm has been established.
[21] The risk opinion completed by Marie Couracos is based on the Refugee Division's decision which was not challenged and is buttressed by recent documentary evidence she considered.
[22] That evidence reveals the OPC is split into two factions, one of which commits acts of violence against the government and the other which is peaceful. Before he fled, the applicant, according to his testimony before the Refugee Division, stated he never participated in any violent activities.
[23] The documentary reports also indicate there are clashes between the OPC and the authorities but those clashes against OPC members are with those who are violent; ordinary members, not so engaged, can express their opinions without fear from the Nigerian authorities. The immigration officer, as did the Refugee Board, determined the applicant was an ordinary member.
[24] The immigration officer, in her risk analysis, looked to the future to determine whether the applicant would objectively be at risk if returned to Nigeria and concluded the Nigerian authorities would not be interested in him because of his profile and because of his lack of violent activities in the past.
[25] The immigration officer addressed the issue of his possible arrest. I note the Refugee Division accepted he had been detained but was not persuaded he was otherwise at risk because he would not have been released if he had been considered a threat to the security of his community.
[26] As I see it, the immigration officer looked to the Refugee Division's determination on this point to find his release was indicative of the authorities' lack of evidence to continue his detention as well as their interest in him.
[27] I carefully examine the two IRB reports adduced by the applicant in support of his stay application. Although the IRB Document Centre acknowledges some arrests and detention of OPC members, these IRB reports do not detract from the documentary evidence referred to by Marie Couracos. Indeed, the IRB reports relied upon by the applicant predate a subsequent IRB report to the effect the Nigerian police only targets OPC members engaged in violent activities.
[28] As mentioned, counsel for the applicant also challenged that aspect of the immigration officer's determination she erred when she concluded the applicant had not made out a case for establishment and integration in Canada. She states he has two jobs: one full-time and one part-time, both authorized by the respondent. He has assets in Canada, he maintains a bank account and has started a retirement savings plan. He is a member of the Christian International Fellowship Church and owns his own car.
[29] The immigration officer considered this evidence and felt the applicant had provided some evidence of establishment and integration into Canadian society but that this was considered insufficient to warrant a waiver of subsection 9(1) of the Immigration Regulations. It noted he has family and siblings in Nigeria to provide support until he re-established himself.
[30] The applicant has not persuaded me of a serious issue relating to this aspect of the immigration officer's determination.
[31] My conclusion the applicant has not succeeded in making out a serious issue and in demonstrating irreparable harm (and also as a result, has not satisfied the third prong of balance of convenience) on the merits of his leave application disposes of this stay application.
[32] It obviates my necessity of considering the respondent's submissions on the fairness issue and, in particular, whether the Federal Court of Appeal's decision in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407, is confined to cases where, in the context of an H & C claim, the immigration officer seeks and receives from another officer a risk assessment report a copy of which the immigration officer must provide the applicant an opportunity to respond to before the final decision is made.
[33] As noted, in this case, the immigration officer did not seek a risk assessment report from another officer but rather, being a PCDO herself, conducted her own risk analysis. (Contrast Soto v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 818 and Mia v. Minister of Citizenship and Immigration, [2001] F.C.T. 1150 in the context of a PDRCC application).
[34] For all of these reasons, the applicant's stay application is dismissed.
"François Lemieux"
J U D G E
WINNIPEG, MANITOBA
FEBRUARY 12, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-364-02
STYLE OF CAUSE: Ope Abiodun Okutubo v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 7, 2002
REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE LEMIEUX
DATED FEBRUARY 12, 2002
APPEARANCES
Stella Iriah Anacle for the Applicant
Angela Marinos for the Respondent
Department of Justice
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, ON M5X 1K6
SOLICITORS OF RECORD
Stella Iriah Anacle for the Applicant
Barrister and Solicitor
4950 Yonge Street
Suite 1800
North York, ON M2N 6K1
Morris Rosenberg for the Respondent
Deputy Attorney General of Canada
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