Date: 20070207
Docket: IMM-846-06
Citation: 2007 FC 147
Toronto,
Ontario, February 7, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
CHRISTIAN
AKOJI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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”
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