Date: 20000120
Docket: IMM-2239-99
BETWEEN:
MICHAEL OSAGIE OSADOLOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant is a citizen of Nigeria who left his homeland in January, 1998 and came to Canada, and here claimed refugee status. Upon consideration of his claim, heard in February, 1999, by a decision rendered in April, 1999, a panel of the Convention Refugee Determination Division determined that he was not a Convention refugee. That decision the applicant now seeks to review.
[2] These are brief reasons for an order, now issued, which allows the application, sets aside the decision of the tribunal, and refers the matter back for reconsideration by a differently-constituted panel.
[3] In its decision the panel accepted that the applicant is a citizen of Nigeria and that it was satisfied on the basis of evidence presented by him that, on a balance of probabilities, the applicant feared persecution at the time he fled Nigeria in 1998. Nevertheless, it found that he no longer had good grounds for fearing persecution were he to return to Nigeria because, by the time of its decision in 1999, circumstances in Nigeria had changed in ways that the panel found were "sufficiently meaningful, effective and durable to render the fear of persecution of this particular claimant unreasonable and hence without foundation".
[4] The applicant urges that in reaching that conclusion the panel erred in three respects which are significant. First, it is urged that in reaching its decision the panel determined that the government would not still be interested in the applicant, a conclusion reached without assessing evidence that his brother, who had been arrested because of the applicant's perceived opposition to the regime, though subsequently released from detention, was still required to report to police on a monthly basis. Second, it is urged the panel was selective in referring to documentary evidence, relying on those reports supportive of its conclusions, without any reference at all to reports contrary to the conclusions it reached. Third, the panel erred, it is said, by reliance upon a decision of another CRDD panel in another case in reaching its conclusion about the change in circumstances in Nigeria.
[5] Without further comment on the first two grounds urged by the applicant, in my opinion the third issue raised, reliance on the decision of another panel, is the most serious issue in this case. It is the issue which, in the circumstances, warrants intervention by the Court and an order setting aside the panel's decision.
[6] The panel's decision does document numerous changes in the government, and its programs, in Nigeria since the applicant left there in January, 1998. The changes include the death of the former military dictator in June, 1998 and his replacement by another military general, as well as the death of Chief Abiola, who had been elected in 1993 as president but prevented from assuming office, and was imprisoned by the military. The panel also documented a number of important changes made by the new president following his assumption to office in July 1998, which set aside many of the practices of political repression and fostered free local elections as well as freeing hundreds of political prisoners. The panel then referred to the new president and the changes introduced under his leadership, with reference to a decision of another panel in another case, in the following terms:
| The panel grants that General Abubakar heads a military dictatorship. However, based on the documentary evidence, it finds that the changes to government and the move to civilian rule have had a substantial impact in reducing human rights abuses. In making this finding it adopts the reasoning of member Sangmuah in U98-00941. |
| That Nigeria has military rulers is not determinative. It is the intention of the head of state that matters. If he intends to succeed himself and uses the machinery of state for repression, as General Abacha did, human rights suffer accordingly. If the head of state is sincere, as General Obasanjo was in 1979 and as General Abubakar appears to be, civil liberties improve and the outlook for a successful transition to civilian rule becomes positive. |
| The panel has no doubt that there has been substantial change in Nigeria. It finds that the changes are sufficiently durable that they do not support a well-founded fear of persecution by this particular claimant. In the case cited earlier, member Sangmuah sets out reasoning regarding the durability that is on point with that of this panel. |
| Concerning what would happen after the return to civilian rule, it would be speculative to predict the return of the military rule soon after. The Refugee Division has no crystal ball and cannot engage in political or human rights astrology. Even if some general were to seize power later, no one knows who the new regime may target and whether in fact some individuals or groups would have good grounds to fear persecution on a Convention ground. |
| The panel concludes that there has been meaningful change in circumstances in Nigeria. |
[7] It is conceded by counsel for the respondent that no reference was made in the course of the panel's hearing, or subsequently prior to its decision, to the earlier decision upon which the panel relied and from which it adopted reasoning in reaching its conclusion that circumstances in Nigeria had changed since the applicant's departure so that his fear of persecution was not well-founded. It is urged for the applicant that the process followed by the panel was unfair in not providing an opportunity for the applicant to comment upon or to question reliance upon the earlier decision referred to in this case. It is urged that is particularly significant where the proceedings of the various panels of the CRDD are conducted in camera and there is no public record of the panel's proceedings or decisions, unless the decisions reached are subject to judicial review. Thus, there is no opportunity for the applicant to question the relevance of the earlier decision on the basis of the evidence that was before the earlier panel, when compared with the evidence before the panel in this case.
[8] While the respondent urges that the panel here simply relied on the reasoning set out in an earlier decision of another panel to support its own conclusion about changed circumstances in Nigeria, counsel for the respondent also conceded that reliance upon the other decision was significant in the decision of the panel here in question.
[9] In my opinion, the panel erred in its decision in this case by reliance upon an unreported decision in an earlier case, to which it had not provided opportunity for the applicant to comment. It did so in reaching its conclusion about a finding, of changed circumstances, which by jurisprudence is clearly a finding of fact. While the decision refers to adopting the reasoning of another panel, it does so in relation to the finding of fact that was crucial in this case. That is sufficient, in my view, to warrant intervention by the Court.
[10] An Order goes allowing the application for judicial review, setting aside the decision here in question, and referring the matter back for reconsideration by a differently constituted panel.
JUDGE
OTTAWA, Ontario
January 20, 2000.
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