Date: 20120604
Docket: IMM-7355-11
Citation: 2012 FC 680
Ottawa, Ontario, June 4,
2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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TESLIM OLATUNBOSUN ADEOYE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Teslim Olatunbosun Adeoye seeks judicial review of the decision of a
Pre-Removal Risk Assessment officer who found that Mr. Adeoye was not likely to be at
risk of being tortured, mistreated or killed if sent back to his country of
origin, Nigeria.
[2]
Mr.
Adeoye sought protection in Canada in 1999 based on his involvement in a
student group in opposition to the government. The claim was rejected and he
returned to Nigeria in 2001. In
2008 his step mother and brother were involved in two car accidents, the second
of which resulted in their deaths. The applicant says he was accused of
witchcraft and illegally detained at the
request of his father. He escaped with the
help of his mother and came to Canada. He was informed that he could not make a
second refugee claim. He is now married to a Canadian citizen and a sponsorship
application is pending.
[3]
The
Pre-Removal Risk Assessment (PRRA) officer gave little weight to letters from a
medical centre and a police inspector and affidavits from the applicant’s
brother and mother tendered in support of the application. The officer
acknowledged that belief in witchcraft is widespread in Nigeria but found
that the applicant had adduced insufficient
evidence to demonstrate the insufficiency of state protection in his own
country and had not made reasonable efforts to seek such protection.
[4]
The
issues raised on this application are:
a. was the
officer required to grant the applicant a hearing?
b. was the
decision reasonable?
[5]
The
evaluation of the evidence by a PRRA officer attracts the standard of review of
reasonableness: Matute Andrade v (Minister of Citizenship
and Immigration),
2010 FC 1074 at para 23.
[6]
Justice
Bédard analysed the issue of the applicable standard of review to questions
involving s.167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (hereafter the Regulations) in Matute Andrade at paragraphs 19-22. After
reviewing the jurisprudence she concluded:
[22] Here, I am of the view that whether the PRRA officer made
findings on the applicant's credibility and, if so, whether he was required to
hold a hearing based on the factors prescribed in section 167 of the
Regulations are questions of mixed fact and law that are subject to the
standard of reasonableness (Borbon Marte v. Canada (Minister of Public
Safety and Emergency Preparedness), 2010 FC 930, [2010] F.C.J. No. 1128).
[7]
The
applicant here did not ask for a hearing. Had he done so, the officer would
have been obliged to evaluate whether a hearing was warranted: Montesinos Hidalgo v Canada (Citizenship
and Immigration), 2011 FC 1334. The context here is similar to that in Matute
Andrade.
The Court must determine whether a credibility finding was made, explicitly or
implicitly, and if so, must determine if the issue of credibility was central
to the decision. Since s.167 of the Regulations deals with a question of mixed
fact and law, and the exercise of discretion, I agree with Justice Bédard that
the standard of review should be reasonableness.
[8]
Although
the officer did not make any explicit credibility findings, his scepticism
about the applicant’s claim and supporting documents is apparent from the
decision. If
the applicant had been believed, specifically in relation to his illegal
detention, the officer may have arrived at a different conclusion with respect
to the availability of state protection. In my view, the officer should have
considered whether the criteria set out in s.167 applied and either convene a
hearing or clearly indicate why a hearing was not necessary.
[9]
I
agree with the respondent that the officer was not obliged to refer the
applicant’s documents for forensic testing as to their authenticity. And it was
open to the officer to question the affidavits as the attestations are unclear.
It is trite law that the officer may determine the weight to be given to the
evidence. In this instance, the officer found that all of the evidence adduced
by the applicant had little probative value.
[10]
Some
of the officer’s conclusions appear to be wrong on the face of the record. The
letter from the medical centre, for example, does corroborate the applicant’s
narrative to the extent that he claims to have suffered mistreatment, contrary
to the officer’s finding. And it is unreasonable to expect that a medical
report would go further to identify the aggressor. The brother’s affidavit is
not vague, as the officer finds, as it contains statements which, if believed,
clearly corroborates the applicant’s claim.
[11]
The
officer found that the letter from the police inspector was of little weight
because it did not represent the views of the national police force. Apart from
non-material misdescriptions of the country and police force concerned, this
finding was unreasonable. The letter indicates that the inspector personally
witnessed the illegal detention of the applicant on instructions from his
father. Further, the PRRA officer does not explain why it would have been
necessary for the letter to express the official position of the national
police force.
[12]
The
decision contains a number of grammatical and syntax errors. These, in
themselves, are not material but they point to the lack of attention the
officer appears to have given to this decision. It leaves the impression of
having been produced in a rush.
[13]
The
officer had a duty to assess the evidence which contradicted his finding and
explain why it did not alter his conclusion: Kovacs v Canada (Minister of
Citizenship and Immigration), 2010 FC 1003 at paras 57-61; and Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35 at paras 15-17.
His confusing analysis of the documentary evidence does not support his
findings with regard to the state’s efforts to suppress secret cults and how
that applied to the applicant’s situation. From the record, it appears that
those efforts are aimed at state institutions, such as universities, and that
the police continue to be ineffective or complicit in dealing with witchcraft
at the local level.
[14]
The
officer’s conclusion that the presumption of state protection was not overcome
failed to take into account the applicant’s claim that the police were
complicit in his mistreatment.
[15]
I
find the decision is not based on the evidence and lacks intelligibility,
justifiability and transparency: Dunsmuir v New
Brunswick,
2008 SCC 9 at para 47.
It is, therefore, unreasonable and must be overturned.
[16]
No
questions were proposed for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review of the pre-removal risk assessment dated September 20, 2010 is granted
and the matter is remitted for reconsideration by a different officer. No
questions are certified.
“Richard
G. Mosley”
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