Date: 20030211
Docket No.: IMM-4344-01
Neutral Citation: 2003 FCT 144
Ottawa, Ontario, this 11th day of February, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
RAYMOND IZUFIOLLIS EZEBUO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In this application, the applicant seeks to set aside the decision of the Immigration and Refugee Board of Canada (IRBC) dated August 14, 2001.
[2] The applicant is a 28 year old citizen of Nigeria who arrived in Canada on January 31, 1999, and immediately declared his intention to make a Convention refugee claim. In support of his application, the applicant raised a fear of persecution from the "Ogboni" who sought him out, beat and tortured him because the family of Mr. Eze Ego, the deceased leader of the Ogboni who died in an accident, blamed him for this death. The applicant also argued that the Nigerian government and the police were not able to protect him since some of the members of the Ogboni were members of the government and influenced the conduct of the police. The Ogboni are referred to in the material before the tribunal as a secret society or a cult.
[3] The IRBC found that the applicant was not a Convention refugee mainly because they found no nexus between the applicant's claim and the Convention grounds. The IRBC concluded that even if they accepted the applicant's claim of kidnapping and torture by the Ogboni at the request of Mr. Eze Ego's family, these acts were based on personal vendetta and criminal in nature; they did not amount to persecution within the definition of Convention refugee under the Immigration Act, R.S.C. 1985, c. I-2. The IRBC also found that the applicant failed to seek state protection before fleeing Nigeria and that he would have adequate state protection from the Ogboni if he returned to his country.
[4] The applicant raised two issues to be considered by this Court:
(i) The IRBC misconstrued the evidence and misapplied the definition of Convention refugee by finding that there was no nexus between the applicant's claim and the Convention grounds.
(ii) The IRBC erred in deciding that adequate state protection is available to the applicant in Nigeria given that some of the documentation on file did show that the police could not protect citizens from inter-ethnic, inter-religious, communal and criminal violence. Other extracts in the record also disclosed that on several occasions dealing with incidences of disappearances and murders, individuals often do not report to the police for fear of reprisal and those who are bold enough to file complaints do not often get guarantees of protection from the police.
Analysis
[5] There is no doubt that the situation in which the applicant found himself merits sympathy but as stated in Canada (MEI) v. Villafranca (1992) 18 Imm.L.R. (2d) 130 (F.C.A.) at 132-133, this does not automatically qualify him as a Convention refugee. In order to consider his claim, the IRBC had to determine whether the applicant was "a person who by reason of a well-founded fear of persecution for reason of race, religion, nationality, membership in a particular social group or political opinion" was outside of his country of nationality... [Section 2(1), Immigration Act, see now s.96 of the Immigration Protection Refugee Act S.C. 2001 c. 27 (the "IRPA")].
[6] In Canada v. Ward [1993], 2 S.C.R. 689, the Supreme Court reviewed how social groups can be defined in order to find membership as a basis for refugee status. Justice La Forest described three categories of "social groups" falling within the definition of Convention refugee:
(1) Groups defined by an innate or unchangeable characteristic;
(2) Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they could not be forced to forsake the association; and
(3) Groups associated by a former voluntary status, unalterable due to its historical permanence.
[7] The applicant claims that he falls within the first category described above. The applicant argues that being a member of a group persecuted by the Ogboni is an innate and unchangeable characteristic because, inter alia, once targeted by the Ogboni, all members of this group will always fear persecution.
[8] In contrast, the respondent argues that the applicant's victimization by the Ogboni is a "plastic mutable state of affairs" which could end at any time and which does not exist independent of the persecution itself. The respondent referred the Court to evidence on the record which could constitute a reasonable basis for the IRBC to find that the persecution of the applicant could cease at any time. The applicant himself testified that he was told by his mother and by a cult member that the persecution would subside after the burial of Mr. Eze Ego. Therefore, according to the respondent, the IRBC's findings were not unreasonable.
[9] In Serrano v. Canada (M.C.I.) (1999), 166 F.T.R. 227, Sharlow J. (as she then was) said:
The notion that a particular social group can be identified solely by the fact of persecution would give no effect to the words "for reasons of " in the definition of Convention refugee. I agree with this comment of McHugh J. in A v. Minister for Immigration and Ethnic Affairs, 1997, 142 A.L.R. 331 at 358:
The only persecution that is relevant is persecution for reasons of membership in a group which means that the group must exist independently of, and not be defined that, the persecution....
[10] This Court has also already indicated that the following characteristics are not acceptable as defining a particular social group:
· People who refuse to be extorted (Karpounin v. MEI (1995), 92 F.T.R. 219 (T.D.)).
· Law abiding citizens of Mexico (Serrano v. MCI) (1999), 166 F.T.R. 227, [1999] F.C.J. No. 570 (T.D.)),
· Persons of high moral fibre who oppose the drug trade (Mason v. Canada (Secretary of State) [1995], F.C.J. 815 (T.D.)),
· Victims of organized crime (Calero v. Canada (MEI) [1994] F.C.J. 1159 (T.D.)).
[11] I find that the applicant has not demonstrated that the social group of which he claims to be a member can be defined by an innate or unchangeable characteristic or by a characteristic existing apart from the very persecution he fears. Thus, the IRBC's decision that there was no nexus between the Convention refugee ground claim and the applicant's situation was not unreasonable.
[12] This case deals with non-state actors as alleged persecutors. In Zhuravlev v. Canada (MEI) [2000], 4 F.C. 3, Pelletier J. (as he then was) held that where the agent of persecution is not the state, the "lack of state protection has to be assessed as a matter of state capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance."
[13] This places a high burden on the applicant (Canada (MCI) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.)). In Sultan v. Canada (MCI) [2002] F.C.J. 1513 (T.D.), Layden-Stevenson J. held at paragraph 12 that "The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid or that the government itself is in some way prevented from giving it."
[14] It is not enough for the applicant to point to some extracts in the documents before the IRBC supporting his position to establish that the IRBC erred in its decision. Clearly, the IRBC did consider the document cited by the applicant but it chose to rely on other sections which did indicate that the situation in Nigeria was improving and that overall adequate state protection would be available to the applicant.
[15] I am not convinced that the IRBC's finding of fact in that respect was made in a perverse or capricious manner or without regard for the material before it. (Section 18.1(4)(c) Federal Court Act, 1985 R.S.C. c. F-7).
[16] In view of the foregoing, the application for judicial review is dismissed.
[17] Neither party suggested that this case raised any question for certification pursuant to paragraph 74(d) of the IRPA.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Johanne Gauthier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4344-01
STYLE OF CAUSE: Raymond Izufiollis Ezebuo v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 4, 2003
REASONS FOR ORDER AND ORDER: GAUTHIER J.
DATED: February 11, 2003
APPEARANCES:
Donald M. Greenbaum Q.C. FOR APPLICANT
Stephen Jarvis FOR RESPONDENT
SOLICITORS OF RECORD:
Donald M. Greenbaum, Q.C. FOR APPLICANT
258 Wilson Avenue
Toronto, Ontario, M3H 1S6
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6
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