Elemah v. Canada (Minister of Citizenship and Immigration), 2001 FCT 779

Date: 20010710

Docket: IMM-2238-00

                                                    Neutral Citation: 2001 FCT 779

BETWEEN:

                             PAUL OMOROGBE ELEMAH

                                                                                         Applicant

AND:

         THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                     Respondent

                                  REASONS FOR ORDER

ROULEAU, J.

[1]    This application is for judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("the Board") dated April 4, 2000 and communicated to Paul Omoragbe Elemah ("the Applicant") on April 13, 2000 wherein it determined him not to be a Convention Refugee.

[2] Paul Omaragbe Elemah is a citizen of Nigeria. He bases his claim on his political opinion and on his membership in a particular social group, namely persons belonging to the auto parts traders association who, by virtue of their membership participated actively in NADECO's struggle for democracy in Nigeria.

[3] The Applicant alleges that on May 1, 1998, he participated in a peaceful demonstration carried out by members of his association together with other pro-democracy groups and individuals to protest the continuance of military government in the country and the detention of political opponents of the government. It is alleged that many people were arrested, including the leader of NADECO, Chief Bola Ige, the Applicant and other members of his association.

[4] According to the Applicant, he was first taken to the military barracks at Ibadan but later transferred to Dondan Barracks in Lagos where he was tortured and interrogated for six days. He was allegedly released by two sympathetic officials who instructed him to hide.

[5]         The Board found that the Applicant was not a Convention Refugee as his claim was not objectively well-founded. It also concluded that his claim was not a case in which subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") was applicable.

[6]         In particular, the Board accepted that the Applicant was active in the pro-democracy movement and was imprisoned for his actions, however, it concluded that he would not draw the attention of authorities in the current political environment in Nigeria. The Board stated that the documentary evidence revealed that there was a steady progression to the rule of law in Nigeria under a civilian government capable of affording state protection to its citizens. It found that these changes were sufficiently durable to meet the test set out in Yusuf. Accordingly, it found that there was not more than a mere possibility that the Applicant would be persecuted were he to return to Nigeria.

[7]         With regards to subsection 2(3) of the Act, based on the Applicant's testimony and medical note and medical report, the Board accepted that he had suffered maltreatment, including torture during his detention and that he continues to this day to suffer physical and psychological effects resulting from that torture. However, it concluded, stating that it was bound to apply the test set out in Obstoj, that the mistreatment he suffered although persecutory,

did not reach a level to qualify as "atrocious" and "appalling".

[8]         The Applicant submits that the Board did not doubt his credibility and the fact that he was persecuted and that this led to his flight from Nigeria.

[9]         The Applicant further submits that the Board misunderstood the evidence and consequently its decision was not based on the totality of the evidence but on its own speculations and unwarranted inferences. It misconstrued the facts and failed to take into consideration vital evidence.

[10]       The Applicant contends that the applicability of changes in country conditions is not a general panacea against persecution but an issue of fact which should be determined in relation to an applicant's specific case. Moreover, the Board misunderstood the applicable jurisprudence.

[11]       The Applicant argues that the Board negligently overlooked documentary evidence which showed that despite changes in the country of origin, the continuing cases of human right abuses coupled with the past experience make him suitable for grant of status pursuant to subsection 2(3) of the Act.

[12]       The Applicant contends that in the Board's application of subsection 2(3) of the Act, it misdirected itself as to the relevant facts it should have taken into consideration and therefore came to the erroneous conclusion that he had not suffered appalling and atrocious persecution.

[13]       The Respondent, on the other hand, submits that there is no evidence to suggest that the Board refused to consider any evidence, or that it ignored evidence, or that it made an erroneous finding with respect to the evidence.

[14]       The Board simply determined that, despite the Applicant's evidence of mistreatment in Nigeria, conditions in that country had improved to the point where he no longer had a well-founded fear of persecution. This is a question of fact. Its analysis of this issue does not suggests that it made any perverse or capricious findings of fact, or ignored any evidence. Rather, its reasons demonstrate a grasp of the pertinent issues and of the relevant evidence.

[15]       The Respondent submits that the Board did not err in its finding that the Applicant had not suffered "appalling" persecution which would bring him within the ambit of subsection 2(3) of the Act. Rather, it analysed the issue carefully, with regard to all of the relevant evidence, the Applicant's personal circumstances and the appropriate legal test.

[16]       The Respondent further submits that it is not every Applicant who suffers mistreatment, even severe mistreatment, who fall within subsection 2(3) of the Act.

[17]       The issues, therefore, are whether the Board applied the appropriate principles in assessing the changed country conditions and subsection 2(3) of the Act.

[18]       It is trite law that the question of whether or not there has been a change in circumstances in the country of origin sufficient to negate what had been a well founded fear of persecution at the time the applicant fled his country, is a question of fact to be determined by the Board. In Yusuf v. Canada (Minister of Employment & Immigration) (1995), 179 N.R. 11 (Fed. C.A.), leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 102, the Federal Court of Appeal stated the following at page 12:

We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrong in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of the return there. That is an issue for factual determination, and there is no separate legal test by which an alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention refugee in s. 2 of the Act: does the claimant now have a well founded fear of persecution? Since there was, in this case, evidence to support the Board's negative finding on this issue, we would not intervene.

[19]      As discussed by Cullen J. in Chkiaou v. Canada (Minister of Employment & Immigration) (1995), 92 F.T.R. 49 (T.D.) at p. 52, the Court must be reluctant to intervene unless the Board's finding is truly erroneous:

Given the direction that a change of country circumstances is a finding of fact, this court should be reluctant to intervene unless that finding is truly erroneous. In the case at bar, I am troubled by the fact that the Board gave so little consideration to the oral evidence of the applicant and documentary sources which indicated that political instability persisted in Moldova. However, I am unable to say that finding was truly erroneous. Although I might not agree with the result reached by the Board, I am unable to conclude that the Board's decision is unsupported by, or ignored the documentary evidence.

[20]      In order to assess the changes in the country conditions, one must determine if there were actual changes in the government's conduct and not "mere declarations" (See Ahmed v. Canada (Minister of Employment & Immigration)(1993), 156 N.R. 221(Fed. C.A.).

[21]      In the case at bar, the Board found that there had been a change in circumstances which vitiated his fear. The Board provided clear reasons for determining that the well founded fear that the Applicant experienced in the past, no longer existed and supported its finding by referring to documentary evidence.

[22]      Although there is some documentary evidence in the Record to the effect that prison conditions are still deplorable and there are still incidents of violence, the documentary evidence does reasonably support the Board's finding that there have been substantial changes in the political environment since the presidency of Abubakar and the subsequent election of President Obasanjo which have the effect of vitiating the Applicant's fear of persecution. Furthermore, there is no conclusive evidence in the Record to suggest that the changed country conditions were not sustainable.

[23]      Subsection 2(3) of the Act provides the following:

[24]      In Minister of Employment & Immigration v. Obstoj, [1992] 2 F.C. 739 (Fed. C.A.), Mr. Justice Hugessen held the following at paragraphs 19 and 20 with regards to subsection 2(3) of the Act:

On any reading of subsection 2(3) it must extend to anyone who has been recognized as a refugee at any time, even long after the date of the Convention. It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.

The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. [Emphasis mine]

[25]      Recognizing the principles enunciated in Obstoj, supra, the Court stated the following in Hassan v. Minister of Employment and Immigration (1994), 77 F.T.R. 309 at p. 312 with regards to the scope of subsection 2(3) of the Act:

While many refugee claimants might consider the persecution they have suffered to fit within the scope of s. 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Section 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.

[26]      Mr. Justice Lemieux in Ogbebor v. MCI, [2001] F.C.J. No. 770 (T.D.) (QL), citing the above-cited passages from Obstoj, supra, and Hassan, supra, recently surveyed the relevant jurisprudence with regards to subsection 2(3) of the Act:

The Federal Court of Appeal recently considered a question related to subsection 2(3) of the Act in Yamba v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 457.

In Yamba, supra, Robertson J.A. concluded the Refugee Division is under an obligation to consider the applicability of subsection 2(3) of the Act once it is satisfied refugee status cannot be claimed because of a change in country conditions under paragraph 2(2)(e). He added this:

This conclusion does not detract from the fact that subsection 2(3) imposes the evidentiary burden on the claimant to "establish that there are compelling reasons" for not returning to the country in which the past persecution arose. [emphasis mine]

Justice McKeown in Arguello-Garcia v. Minister of Employment and Immigration (1993), 64 F.T.R. 307, considered the purpose and scope of subsection 2(3) of the Immigration Act.

As to its purpose, Justice McKeown looked to the UNHCR Handbook for the proposition subsection 2(3) is based on a general humanitarian principle which permits a person who has suffered serious past persecution to retain and obtain Convention Refugee status despite fundamental changes in his country of origin. He quoted the Handbook as follows at paragraph 10:

It is frequently recognized that a person who - or whose family - has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in attitude of the population, nor, in view of his past experiences, in the mind of the refugee.

Justice McKeown, picking up on the word "atrocious" forms of persecution in the UNHCR Handbook and Justice Hugessen's words in Obstoj, supra, of a person who had suffered such appalling persecution, examined the meaning of these two words (atrocious and appalling) and said this at paragraph 12:

In my view, the torture and sexual assault experienced by the applicant qualify as "atrocious" and "appalling" ... the right not to be subject to torture and cruel, inhuman, and degrading treatment is a fundamental right which enjoys the highest international protection.

(In the case, Justice McKeown found the applicant had been detained for 45 days, suffered serious physical abuse, suffered sexual abuse and had experienced the killing of relatives).

Justice KcKeown also found the tribunal failed to consider the negative or psychological effect of past persecution. He said there was ample evidence before the tribunal to show the applicant continued to suffer severe psychological hardship as a result of the serious persecution he and his family members had suffered in El Salvador and he noted a psychiatric report entered in evidence at the hearing stated the applicant was suffering from Post-Traumatic Stress Disorder related to his personal and family history of violent persecution, torture and massacre.

Justice Noël in Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 89 F.T.R. 106, concluded his analysis by saying this at paragraph 25:

It seems clear, having regard to Obstoj and Hassan, supra, that the Board erred in construing s. 2(3) as requiring ongoing fear of persecution. The Board, once it embarked upon the assessment of the applicant's claim under s. 2(3), had the duty to consider the level of atrocity of the acts inflicted upon the applicant, the repercussions upon his physical and mental state, and determine whether this experience alone constituted a compelling reasons not to return him to his country of origin ... While I have serious doubts as to whether the claimant can, in this instance, meet the high threshold established by the case law, this is a matter for the Board to decide after consideration of the relevant factors.

[27]      In the case at bar, the Board concluded, correctly in my view, that as a result of changed circumstances in Nigeria, there was no longer any objective basis for his fear that he would be persecuted should he be returned. Accordingly, the Board appropriately examined the issue of whether or not the nature of the Applicant's persecution brought him under the ambit of subsection 2(3) of the Act.

[28]      However, the Board erred in stating that it was bound by the test stated in Obstoj, supra. The Court, in Obstoj, supra, did not establish a test which necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling". Rather, the Board must thoroughly consider all the documentary and oral evidence, including the nature of the incidents of torture and the medical reports provided by the parties in order to assess, as is stated in the legislation, if there are "compelling reasons" not to return him.

[29]      In the case at bar, the Board found the Applicant's evidence credible. Therefore, the Board should have thoroughly examined this evidence in order to make a proper assessment with regards to subsection 2(3) of the Act. Remarkably, the Board chose to state, in a cursory manner, the evidence it considered. It failed to sufficiently deal with a detailed medical report prepared by Dr. J. Pilowsky which clearly stated that the Applicant suffered from symptoms of Post-Traumatic Stress Disorder and depression. In particular, Dr. J. Pilowsky's diagnosis was as follows:

Mr. Elemah is clearly suffering from some symptoms of depression, which are secondary to his current situation of uncertainty, and to his experience of torture and abuse. Part of his depression is connected to his concern about his pain, and he is very fearful that as he grows older, he will not be able to walk. There is some indication of somatic preoccupation in this respect, as Mr. Elemah told me that he goes to his doctor every month with some physical complaint.

Additionally, Mr. Elemah is suffering from symptoms of Posttraumatic Stress Disorder (309.81 in the DSM IV). PTSD is a very serious and often-chronic condition marked by anxiety responses to a life threatening traumatic stressor. As with most PTSD patients, Mr. Elemah suffers from thematically related nightmares and ruminations about his trauma, as well as several symptoms of hyperarousal: insomnia, jumpiness, generalized anxiety. He is also avoidant in his behaviours, a tactic used to avoid emotionally arousing situations.

PTSD is a condition where the afflicted persons are highly susceptible to retraumatization, and should Mr. Elemah be deported, his symptoms may well escalate.

[30]      Based on the above, it is clear that the Board erred in its application and interpretation of the jurisprudence and the legislation. Accordingly, the decision of the Board is set aside and the application is referred back for redetermination by a different Board.

     JUDGE

OTTAWA, Ontario

July 10, 2001