Date: 20050304
Docket: IMM-1984-04
Citation: 2005 FC 319
Ottawa, Ontario, this 4th day of March, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
OSITA IKECHUKWU OBI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Mr. Osita Obi, is a citizen of Nigeria who claims a well-founded fear of persecution and to be at risk of cruel and unusual treatment or punishment because of his membership in a specific social group, as the son of the Chief Priest of his hometown.
[2] The Applicant claims that upon the death of his father, it fell to him to fill the role of Chief, a role he was not willing to accept because of his Christian faith. He alleges that his failure to fill the role traditionally passed to the eldest son has resulted in death threats against him from his community. He arrived in Canada on December 14, 2000 and claimed protection. In a decision dated February 12, 2004, a panel of the Immigration and Refugee Board (Refugee Protection Division) (the "Board") determined that the Applicant was neither a Convention refugee nor a person in need of protection. He seeks judicial review of that decision.
ISSUE
[3] The Applicant raises a single issue:
1) Did the Board err in law by failing to consider relevant evidence and basing a negative credibility finding on such a failure?
DECISION
[4] The Board accepted that the claimant was a citizen of Nigeria and that there was an expectation that he would succeed his father as Chief. However, based on inconsistencies and implausibilities in the evidence, the Board did not accept the Applicant's allegations that his life was at risk as a result of his refusal to step into his father's role. Alternatively, the Board found that adequate state protection is available to the claimant within Nigeria.
ANALYSIS
[5] The standard of review for a finding of credibility or of the existence of adequate state protection is patent unreasonableness. That is, the Court should only intervene if the decision is unsupported by the evidence.
[6] In this case, the issue of the availability of state protection is determinative. Accordingly, I need only consider the Board's conclusion that state protection was adequate. If the Board did not err in that conclusion, the decision will stand, even if the Board erred in its assessment of the Applicant's claim that his life was at risk as a result of his refusal to step into his father's role.
[7] The Applicant submits that the Board erred in its finding that the Applicant had access to state protection. The basis of this error is that the Board failed to understand the evidence of the Applicant around the police not wanting to be involved in religious matters.
[8] In its decision, the Board stated:
The panel finds that the claimant did not attempt to file a complaint with a higher ranking police officer at the station, that he did not try to file a complaint at a different station or branch and that he also did not try to pursue the matter in the courts.
[9] The Applicant submits that the evidence was that the police would not get involved with the required investigations and take appropriate action to protect the claimant and/or pursue claims against the villagers and that the Board misunderstood this assertion.
[10] The Board is entitled to make findings based on common sense and rationality (Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.) at para. 2). The evidence before the Board was that the Applicant spent between half an hour to an hour with the police officer, pleading for help, but was told that the police do not get involved in religious matters. They would, however, turn him over to the group of people (the village elders) making death threats against him. It was not unreasonable for the Board to find these statements to be contradictory and to not accept the Applicant's explanation.
[11] The Applicant submits that the Board erred when it found that the matter should have been pursued in the courts. The Applicant argues this is a criminal matter and not something for the Applicant to bring into court. In making this argument, the Applicant focuses on only one portion of the sentence that is set out above. When read as a whole, I can see no error.
[12] On the issue of state protection, the onus is on the Applicant to rebut the presumption of a state's ability to afford protection (Canada (Minister of Citizenship and Immigration) v. Bob Smith, [1999] 1 F.C. 310 (T.D.) at para. 26). As stated in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 (F.C.A.):
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 is in some way prevented from giving it.
[13] The testimony of the Applicant demonstrates that he did not try to talk to another police officer or an officer of a higher rank; he did not try to go to another police station; he did not identify by name the people threatening him; and he could not remember if the police officer made any notes while they were talking. A claimant must do more than simply show that he went to see some members of the police force and that his efforts were unsuccessful (Kadenko v. Canada (Solicitor General) (1996), 206 N.R. 272).
[14] Given the evidence, it is reasonable for the Board to conclude that the claimant either made no claim or made an inadequate attempt to get state protection, including not pursuing the matter in the Courts.
[15] In addition, I note that the Board considered the documentary evidence that acknowledged difficulties within the police force, while noting that the initiatives taken by the government have led to improved law enforcement. Overall, the Board found that state protection was adequate. It is not for this Court to re-weigh that evidence (Bandula v. Canada (Minister of Citizenship and Immigration), 2003 FC 1062 at para. 19).
[16] For these reasons, I am of the view that the decision of the Board was not patently unreasonable and should stand. The application will be dismissed.
[17] Neither party submitted a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
The application is dismissed; and
No question of general importance is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1984-04
STYLE OF CAUSE: OSITA IKECHUKWU OBI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING: March 1, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: March 4, 2005
APPEARANCES:
Ngozi A. Oti FOR APPLICANT
John Loncar FOR RESPONDENT
SOLICITORS OF RECORD :
Ngozi A. Oti FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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