Docket: IMM-1429-11
Citation: 2011 FC 1427
Ottawa, Ontario, December 14, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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GABRIEL IGBINOSA
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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
Introduction
[1]
This
decision arises out of an application for judicial review of a decision by the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board)
which found that the applicant was neither a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA). For the reasons
that follow, the application is granted.
Facts
[2]
The
applicant is a citizen of Nigeria. He attended and
graduated from the Gateway Bible College in Benin City, Edo State, Nigeria. Upon
graduation, he worked as an assistant pastor at God’s Plan Bible Church in Benin City, Nigeria. He was
assigned to start a branch of the God’s Plan Bible Church in Oleten Village,
located approximately 45 minutes from Benin City. Upon arrival the
applicant experienced great success in his evangelical activities and converted
many individuals to Christianity, however, he also drew the ire of other
community members because many of the converted burned idols and various
objects traditional to their former religion.
[3]
Shortly
following this conversion, residents of the village of Oleten were struck
with an epidemic. Many of the non-converted elders believed this was the
result of the applicant’s evangelism, efforts at conversion, and insolence
towards traditional religious practices. As a result, they apparently
kidnapped him in the middle of the night, tied him to a tree in what the
applicant claimed was referred to as the “evil forest,” and left him there for
three days until he was freed by another member of the Church.
[4]
The
applicant returned to Benin City where he sought refuge
in a church. The elders and some youth of Oleten Village demanded
that he be turned over to them or else they threatened to burn down the Benin City church. The
applicant thus fled to another Nigerian city, Kaduna. In Kaduna,
the applicant was discovered again by the Oleten Village elders and
youth and they once again demanded that he be turned over. He managed to
escape from the church in Kaduna and to the home of one the church elders. The
church elders eventually learned that a member of their church was informing
the villagers of the applicant’s whereabouts and thus suggested that he leave Nigeria.
Issue
[5]
The
issue in this case is whether the decision of the Board is reasonable per Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. As stated by Binnie J. in Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59:
Reasonableness is a single standard that takes its colour
from the context. One of the objectives of Dunsmuir was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism. Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of
the appropriate solution, but must rather determine if the outcome falls within
“a range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir, at para. 47). There might be more
than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
Analysis
[6]
There
is a reviewable error with respect to the Board’s finding that there was no
nexus between the persecution suffered by the applicant and a Convention
ground. Secondly, I find that the determination as to the existence of an
internal flight alternative (IFA) to be unsustainable in light of the evidence
before the Board.
[7]
The
Board’s conclusion with respect to whether or not the applicant was persecuted
by reason of his religious beliefs and preaching is unreasonable given the
facts it found. The Board wrote:
The claimant alleges that he is being
persecuted because of his religious beliefs. In fact, as he indicates in his
Personal Information Form (PIF) narrative, when he first came to Oleten village
he sought and was given permission by the “Elders and the District head for the
use of classrooms in evenings on Sundays for prayer meetings and bible
studies.” He also conducted a very successful and public three-day prayer
crusade, not only without any problems, but also with a great deal of wide
acceptance in Oleten village. It was only when a widespread epidemic hit the
village resulting in a number of deaths that he encountered difficulties –
being held responsible for the destruction of traditional idols and icons by
many of the villagers during his three-day crusade. The panel concludes that
he would have been blamed for the epidemic, even if the destruction of the
traditional totems of worship had not been a result of the prayer crusade.
The fact that the traditional items of
worship were destroyed during a religious event was incidental to the
destruction of the items. Had the traditional items been destroyed as part of
a political or social gathering, for example, led by the claimant and an
epidemic had ensued, the claimant would still have been held responsible.
Ultimately, the claimant was targeted because he had the misfortune of having
conducted his crusade, where the totems of traditional beliefs were destroyed,
just before an epidemic hit the village.
[8]
Unequivocal
findings on the existence of a nexus to a Convention ground of persecution are
essential to analysis of any refugee claim. Here, the meaning of these two
paragraphs was the subject of considerable argument. I will not repeat the
competing interpretations as, at best, they support the conclusion that the
finding of a nexus was unclear. The stronger and preferred interpretation is
that the Board found, on the evidence before it, evidence of persecution. The
Board then proceeded to discount or negate the finding because, to put it
colloquially, the applicant was at the wrong spot at the wrong time.
[9]
The
decision must be set aside as the Board rejects the finding of persecution on
religious grounds using the wrong legal analysis. The Board concedes that had
the same events occurred by reason of the preaching of “a political or social
gathering” persecution would have been established. It makes no difference, on
the facts as found by the Board, that the persecution arose by virtue of the
preaching of a religious, as opposed to political, message. A nexus to
Convention ground was established. As Justice Danièle Tremblay-Lamer said in Nosakhare
v Canada (Minister of
Citizenship and Immigration) 2001 FCT 772 at paras 11 - 12:
It is clear from this definition that there must be a nexus
between the persecutory conduct and one of the five grounds provided therein;
the existence of such nexus is a question of fact which falls clearly within
the Board's expertise and is not subject to judicial review unless made in a
perverse or capricious manner or without regard to the material before it (See,
e.g., Mia v. M.C.I., [2000] F.C.J.
No. 120). I am satisfied that the Board erred in its findings of fact.
The evidence clearly demonstrates that the kidnapping and
beating endured by the applicant were acts carried out by a religious group as
a result of the religious belief of the applicant. Thus, I am satisfied that
based on the record before the Board there was a nexus between the applicant's
claim and one of the five convention grounds.
[10]
A
second error arises in the analysis of the nexus and that is that the
persecution is both a subjective and objective test. The fact that the
villagers unfairly and incorrectly attributed the epidemic to his preaching is
irrelevant. What is relevant to the persecution analysis is that the villagers
perceived him as the precipitating factor and attributed their misfortune to
him and his religious belief. It was reasonable, in light of the facts found,
for the applicant to fear them and to believe that they perceived him as the
precipitating factor behind their misfortune.
[11]
The
conclusion that the Board erred in not finding a nexus between the persecutory
conduct and a Convention ground has implications for its reasoning with respect
to an IFA. A correct definition of the nature of the risk is integral to the
IFA and state protection analysis. The viability of a safe place to hide from
persecution requires, as a matter of logic, a correct understanding of that
from which the individual is seeking to hide. I note as well the statement of
the Board:
The panel recognizes some of the
potential challenges the pastor might face if he were to return to Nigeria and resume his work as a
pastor. Nonetheless, the panel also notes that the two times he was
tracked down, were both in places where his church had a presence and, in
both case, it was with the assistance of his own Church members. Were he
to move to an area where his church did not have a branch or a presence, as a
Pentecostal pastor he could begin working with another Pentecostal church,
given that Pentecostalism is one of the fastest growing Christian sects in Nigeria.
[Emphasis added]
[12]
This
conclusion fails the test of justification and intelligibility in Dunsmuir.
There is a logical gap in concluding that by starting to preach in another area
that did not have a church, he would avoid persecution but could then resume
preaching.
[13]
I
turn last to the findings of credibility. It is well established that the
findings of credibility must be made in clear and precise terms. The findings
do not meet that standard. The Board said it “had a few concerns” and that “it
must question the authenticity of the entire police report”. These concerns
pale in contrast to the Board’s acceptance of significant and material elements
of the applicant’s testimony. In consequence, it is not clear what, if any,
conclusions are to be drawn from these findings and their implication for the
claim.
[14]
Findings
of credibility must be clear and precise: Sadeora v Canada (Citizenship
and Immigration, 2007 FC 430. In this case they are not and the
decision must be set aside.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back to the Immigration Refugee Board to be redetermined by
a differently constituted panel. No question for certification has been
proposed and the Court finds that none arises.
"Donald
J. Rennie"
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