Canada (Minister of Citizenship and Immigration) v. Asaolu, docket IMM-237-98

Date: 19980731

Docket: IMM-237-98

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     DANIEL OLUWAFEMI ASAOLU

     Respondent

     REASONS FOR ORDER AND ORDER

CAMPBELL, J.

[1]      This case concerns the application of the concept of refugee sur place, which according to the UNHCR¹ Handbook is defined as follows:

94.      The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee sur place.

95.      A person becomes a refugee sur place due to circumstances arising in his country of origin during his absence. Diplomats and other officials serving abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their residence abroad and have been recognized as refugees.

96.      A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities. [Emphasis added]

[2]      The importance of the refugee sur place concept arises from the fact that in this case, prior to the hearing before the CRDD, Citizenship and Immigration Canada (CIC) sent the claimant's story and photograph to a visa officer in Lagos Nigeria to facilitate an investigation of the respondent's claim of persecution in that country. The issue on this judicial review is whether the actions taken on the investigation meet the UNHCR test, and in particular the portion italicized in the quotation above.

[3]      The CRDD concluded that the respondent was a refugee sur place on the basis of the evidence it had but it would have liked to have had more information regarding the circumstance of the investigation. However, CIC failed to comply with the requests for information regarding what transpired in Nigeria when CIC investigated the respondent. Without this evidence, the CRDD relied on the respondent's evidence and evidence regarding the country conditions in Nigeria and found as follows:

---

Given the abysmal human rights conditions that exists in Nigeria today, it is reasonable for the panel to conclude that on a balance of probabilities, and given CIC's failure to provide information regarding how they conducted their investigation of the claimant in Nigeria, that the claimant has established that he is a refugee sur place.

[4]      In my opinion, the CRDD made no reviewable error in coming to this conclusion. Accordingly, this application is dismissed.

                         "Douglas R. Campbell"

                         Judge

Toronto, Ontario

July 31, 1998

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-237-98

STYLE OF CAUSE:                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                             - and -

DANIEL OLUWAFEMI ASAOLU

                            

DATE OF HEARING:                  THURSDAY, JULY 30, 1998

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER BY:              CAMPBELL, J.

DATED:                          FRIDAY, JULY 31, 1998

APPEARANCES:                     

                             Ms. Susan Nucci

                                 For the Applicant

                             Mr. Laurence M. Cohen

                                 For the Respondent

SOLICITORS OF RECORD:             

                             George Thomson

                             Deputy Attorney General

                             of Canada

                                 For the Applicant

Laurence M. Cohen

                             Barrister & Solicitor

                             902-347 Bay Street

                             Toronto, Ontario

                             M5H 2R7

                             

                                 For the Respondent

---

                            

                             FEDERAL COURT OF CANADA

                                 Date: 19980731

                        

         Docket: IMM-237-98

                             Between:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

                             - and -

DANIEL OLUWAFEMI ASAOLU

                        

     Respondent

                    

                            

            

                                                                                     REASONS FOR ORDER

                                 AND ORDER

                            

__________________

     ¹      Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1998, p.22.