Date: 20071003
Docket: IMM-4605-06
Citation: 2007 FC 1012
Ottawa, Ontario, October 3, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SAMUEL
OLUWALANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated June 23, 2006, which found that the applicant was neither a
Convention refugee, nor a person in need of protection.
Background
[2]
The
applicant, Samuel Oluwalana, is a citizen of Nigeria. He alleged
having a fear of persecution in Nigeria on the basis of his
religion. The circumstances which led to his claim for refugee status were set
out in his Personal Information Form (PIF) narrative.
[3]
In
2000, the applicant became a Pastor’s assistant at a Christian church in Lagos, Nigeria. In March
2002, he joined a crusade to convert Hausa Muslims to Christianity. During the
crusade, the son of a Muslim cleric confessed that he had embraced
Christianity. Members of the Muslim population objected to the conversion, and
a nation-wide “fatwa”, or death sentence was declared against the applicant and
his group.
[4]
In
April 2002, the applicant was proclaiming the gospel when a group of armed
Islamic fanatics allegedly charged the group. The majority of the group
escaped, but two people were beaten to death. The incident was reported to the
police, however, the investigation did not result in any arrests. A similar
incident took place in August 2002, and the applicant was injured during this attack.
He was taken to a hospital and discharged after five days.
[5]
The
applicant no longer felt safe in Lagos; therefore, he decided to move to Port-Harcourt,
Nigeria. Five days
later, his home was set on fire. The applicant escaped and reported the fire to
the police, who conducted an investigation. The applicant then decided to
return to Lagos. In April
2003, the applicant was shot at while riding in a car. He was not hit, but was
scared by the incident. He made a report to the police and decided to return
to Port-Harcourt in order to live with his Christian colleagues. Before he left
Lagos, he found
out that one of his colleagues had been shot and another had gone into hiding. As
a result, he chose to stay in Lagos and keep a low profile.
[6]
In
September 2004, the applicant was abducted and attacked. This incident was also
reported to the police. The applicant was advised by a friend that he was being
trailed by extremists and something serious could happen to him. His friend
escaped to Europe and the applicant went into hiding until he was able to flee Nigeria. The applicant
arrived in Canada on October
18, 2005 and immediately claimed refugee protection. The refugee hearing was
held on May 4, 2006, and the Board refused his claim by decision dated June 23,
2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[7]
The
Board found that the applicant was neither a Convention refugee nor a person in
need of protection, given that state protection was available to him in Nigeria. The Board
believed the applicant’s claim that he was being pursued by extremists due to
his involvement in the movement to convert Muslims to Christianity. The Board
cited Canada (Attorney
General)
v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1, wherein the
Supreme Court of Canada stated the following at paragraph 52:
A
subjective fear of persecution combined with state inability to protect the
claimant creates a presumption that the fear is well-founded. The danger that
this presumption will operate too broadly is tempered by a requirement that
clear and convincing proof of a state’s inability to protect must be advanced.
[8]
The
Board acknowledged documentary evidence which indicated that the
Muslim/Christian conflict in Nigeria was ongoing and had
resulted in many deaths. However, the evidence did not show that the police
were complicit in these conflicts. The Board accepted that the Nigerian police
force was understaffed and considered corrupt. However, in this case, the
applicant had been interviewed by the police, the allegations were investigated
and reports were taken. The Board noted that Nigeria was a
democratic country with an organized police force and a judiciary. The
applicant was unable to provide evidence that he had requested protection from
the state and had been denied it.
Issue
[9]
The
applicant submitted the following issue for consideration:
Did the Board err in finding
that state protection was available to the applicant in Nigeria?
Applicant’s Submissions
[10]
The
applicant submitted that where the Board: (1) proceeded on improper principles;
(2) based its decision upon erroneous factual findings made in a perverse
manner; (3) made a decision based upon an error of law, or (4) made its
decision in bad faith, its decision was liable to be quashed. It was submitted
that where the Board drew unreasonable inferences, its decision should be
overturned.
[11]
The
applicant noted the Board’s finding of state protection and submitted that
despite his uncontradicted testimony, the Board drew an erroneous inference
that went to the heart of his claim. It was submitted that the Board’s
decision was therefore based upon speculation and unwarranted inferences. The
applicant submitted that the Board erred in finding that the presumption of
state protection had not been rebutted. It was submitted that the presumption
was rebutted by documentary evidence which showed that Christians were being
killed by extremists in Nigeria and that no arrests
were being made. The applicant submitted that despite minor efforts by the
police in his case, the Nigerian state was unable to protect him from the
extremists (see Badran v. Canada (Minister of
Citizenship and Immigration) (1996), 111 F.T.R. 211 (F.C.T.D.)). It was
submitted that the Board failed to point to any evidence that police efforts
had yielded positive results for the applicant, or for similarly situated
persons.
[12]
The
applicant submitted that the Board failed to consider the particular
circumstances of his case, given that he was under a “fatwa”, when finding that
state protection was available (see Mendivil v. Canada (Secretary of
States) (1994), 167 N.R. 91, 23 Imm. L. R. (2d) 225 (F.C.A.)). The
applicant submitted that he should not be forced to risk his life in order to
prove that the state would provide him with ineffective protection (see Ward
above).
Respondent’s Submissions
[13]
The
respondent submitted that the standard of review with respect to state
protection was bifurcated. It was submitted that the Board’s factual findings
on this issue were subject to review on the standard of patent
unreasonableness. The respondent submitted that the question of whether the
facts constituted clear and convincing evidence of the state’s inability to
protect was a question of mixed fact and law (see Hanna v. Canada
(Minister of Citizenship and Immigration), 2006 FC 580).
[14]
The
respondent submitted that the applicant had failed to show that the Board made
a patently unreasonable error in rejecting his claim for refugee protection. In
Ward above, the Supreme Court of Canada held that refugee claimants must
provide clear and convincing evidence of a state’s inability to protect in
order to rebut the presumption of state protection. The respondent noted that Nigeria was not in a
state of civil war, invasion or internal collapse. It was noted that the
applicant went to the police, and that the police took reports and investigated
his allegations.
[15]
In
Canada (Minister of Employment and Immigration) v. Villafranca
(1992), 99 D.L.R. (4th) 334, 150 N.R. 232 (F.C.A.), the Federal Court of Appeal
found that state protection need not be perfect, and that serious efforts to
protect citizens, even if not always successful, may be enough. As a result,
it was submitted that the Board did not make a patently unreasonable error in
concluding as it did. In Smirnov v. Canada (Secretary of State),
[1995] 1 F.C. 780 (T.D.), Justice Gibson of the Federal Court stated that the
Court should not impose on other states a standard of effective protection that
police forces in our own country sometimes only aspire to.
[16]
The
respondent noted that the Board was aware that a “fatwa” had been declared
against the applicant. It was submitted that it was open to the Board to find
that state protection was available to the applicant even though he was being
pursued by religious fanatics, given the police actions and investigation, the
documentary evidence regarding state protection, and the fact that Nigeria was
not in a state of complete breakdown (see Akoji v. Canada (Minister of Citizenship and
Immigration), 2007 FC 147).
Analysis and Decison
Standard of Review
[17]
The
standard of review applicable to the Board’s findings of fact with respect to
state protection is patent unreasonableness. The Board's findings on the
adequacy of state protection is a question of mixed fact and law that is
reviewable on a standard of reasonableness (see Hanna above).
[18]
Issue
Did the Board err in finding
that state protection was available to the applicant in Nigeria?
The applicant submitted that the
Board erred in finding that he could obtain state protection in Nigeria, given the ineffectiveness
of the police and the fact that a “fatwa” or nation-wide death sentence had
been declared against him. The respondent submitted that the applicant had
failed to rebut the presumption of state protection, given that Nigeria was a democratic
country and the police had investigated his allegations.
[19]
The
Board’s decision noted the applicant’s claim that a “fatwa” had been declared
against him in March 2002. The Board was persuaded that the applicant was being
pursued by Muslim extremists in Nigeria, but found that he had failed to rebut the
presumption of state protection. The Board stated the following regarding state
protection:
The
panel is cognizant of the fact that the Nigerian Police Force is understaffed
and often considered corrupt and ineffective. However, in the claimant’s
circumstances, he has been unable to discharge the presumption that state
protection was available to him as the police, interviewed the claimant, wrote
reports and investigated the allegations.
…
Counsel
for the claimant submitted that state protection is not available to this
claimant because the Nigerian Police Force is ineffective and corrupt. While
that may be so in some circumstances, there is no evidence to support that the
police and/or state is ineffective in all circumstances.
…
Nigeria is a democratic country…
The
claimant has not persuaded that state protection was denied in his particular
circumstances. In fact, he has demonstrated in his testimony the willingness of
the police to get involved. The claimant did not provide the panel with any
evidence that he had requested protection from the state and it had been
denied.
Having
considered all of the evidence, the panel finds that the claimant has not
demonstrated a lack of state protection in Nigeria
in his circumstances…
[20]
The
applicant’s evidence indicated that he had contacted the police after the
incidents he had suffered at the hands of those pursuing him. I would note that
the police responded by taking reports and investigating the applicant’s
allegations. The Board acknowledged the applicant’s criticism of the Nigerian
police force, but found no evidence that he had requested protection from the
state and been denied it. In my view, the Board’s finding of state protection
cannot be characterized as unreasonable, given the fact that the applicant had
obtained a response from the Nigerian police force.
[21]
The
application for judicial review is therefore denied.
[22]
Neither
party wished to submit a serious question of general importance for my
consideration for certification.
JUDGMENT
[23]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27.:
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1)
A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
Email this Content