Docket: IMM-3940-13
Citation:
2014 FC 960
Ottawa, Ontario, October 9, 2014
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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HELEN OGBEIFUN (A.K.A. OGBEIFUN, HELEN EHIGIAMUSOE OMOIGUI)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application brought pursuant to
section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27
[the IRPA] for judicial review of a decision of the Refugee Protection Division
of the Immigration and Refugee Board [the Board], dated April 24, 2013, in
which it concluded that Helen Ogbeifun [the applicant] was not a Convention
refugee under section 96 nor a person in need of protection under section 97 of
the IRPA.
[2]
The applicant is a 44 year-old female citizen of
Italy who is originally from Nigeria. In 1993, her father forced her to marry
a powerful man in Nigeria, to settle an unpaid debt that her father owed to
this man. When she went to live with her new husband, she discovered that he
kept multiple wives who he considered to be his property. He raped and beat her
on multiple occasions and told her that she could only obtain her freedom if
she repaid her father’s debt.
[3]
Then another man from her community offered to
help the applicant escape to Italy allegedly to work for his sister, Diana, as
a babysitter. In January 1995, the applicant travelled to Rome, Italy, with this man. Once there, she learned that she had been duped and sold into prostitution and
would be required to work for Sister Diana to pay off her debt.
[4]
The applicant met her current husband, an
Italian citizen, who convinced her to leave prostitution and provided her with
employment as a domestic worker in his home. The two married in August 1999 and
relocated to Torino, Italy. They had a child together in 2002.
[5]
The applicant received Italian citizenship in
2003.
[6]
While she thought she had left her previous life
behind, Sister Diana was looking for her in Torino and had promised to kill
her. In 2004, she received a phone call from her brother in Nigeria who explained that her father had died after a beating by members of her first
husband’s gang.
[7]
Thereafter the applicant claims she began
receiving strange phone calls, messages and threats from Sister Diana. It
appears that in 2004 she contacted the police and provided them with
information about Sister Diana and her first husband, but the police were unable
to track them down. The applicant believes these people are using fake names.
[8]
In 2006, the applicant opened a business in Torino. She claims that people working for Sister Diana robbed the business on multiple
occasions. She reported two of these robberies to the police, one in 2007 and
one in 2008, but the robbers were not caught.
[9]
During this period, the applicant’s family in Nigeria continued to experience threats and turmoil at the hands of her first husband and
his gang. The applicant returned home to Nigeria in 2010 to try and resolve the
matter. She claims that while she was there, she had to hide because people
were looking for her to kill her. She stayed for approximately five weeks and
returned to Italy in December 2010.
[10]
At one point, the applicant and her husband
decided to leave Torino to stay with her husband’s cousin in Vercelli. One day
when she was leaving the doctor, she saw a girl she used to work with who told
her that Sister Diana was planning to harm her and her family. The applicant
then began to see a number of people in her area. At this point, she and her
husband decided they should relocate because the police had been unable to help
them. The Applicant decided to visit Canada because she feared she would be
killed by Sister Diana and her gang if she remained in Italy.
[11]
The applicant travelled to Canada, leaving behind her husband and daughter, on May 3, 2012, using her Italian citizenship
and passport and made a refugee claim.
[12]
The Board found issues with her credibility
including several inconsistencies in her statements upon entering Canada and at the hearing. The Board also found that state protection is Italy was “effective”. The applicant attacks both findings asking that they be set aside on
the basis of reviewable errors.
[13]
On the issue of adequate state protection, the
parties agree that the presumption of state protection may only be rebutted by “clear and convincing proof” as established by Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689.
[14]
The applicant points to three pieces of
information to meet the test and argues review should be granted because they
are not identified in the Board’s reasons:
1.
A report to the police concerning threats made
against her and her family in Nigeria including the murder of her father in
2004. Police were not able to find the person making the threats because as the
applicant says “we were not sure of the name he was
using”. There is no complaint that the police refused to act, rather
that the police were not successful given the limited information about the
identity of the alleged perpetrator. A sworn letter from the applicant’s
husband appears to relate to the same incident in 2004 or so. The husband
concluded the report was “useless” because the name of the perpetrator was not
traceable. He also noted the applicant’s company was robbed in 2007 and 2008,
and while reported to police, the crime was not solved. In fact, the applicant
filed police reports in this connection, such reports not being filed in
respect of the other alleged police contacts. The applicant also testified on
this matter at the hearing and supplemented the above by adding that police
advised her that such reports were “regularly” made and that “they had nothing to do that would be of assistance” to the
applicant.
2.
A report from Flinders University on Human
Trafficking from Nigeria to Italy for Prostitution concluding that: “Although Italian law is supposed to punish traffickers and
give their victims an incentive to go to the police, it is not enforced with
any conviction.”
3.
A report dated January 1, 2011 stating that “500 Nigerian victims of forced prostitution killed in Italy” in recent years.
[15]
The applicant argues that threatening calls
continued. It appears that the Board accepted that allegation in finding that
she was the victim of “criminality”. However, what is relevant to the issue of state
protection is the fact that the applicant offered no evidence that she made any
other requests for assistance from Italian authorities. We are left with only three
approaches to the police to support the present claim for refugee status: (1)
the 2004 request referred to above re theft from her store; (2) a report made
on June 21, 2008 for allegations of fraud; and (3) another made on June 30,
2008 for allegations of theft.
[16]
The Board delivered oral reasons for rejecting
the applicant’s claim at the hearing on February 21, 2013. A written decision,
dated April 24, 2013, was issued on May 15, 2013.
[17]
The Board concluded that the applicant is not a
Convention refugee because she “fears a criminal
organization and that is not a nexus to a Convention ground”. She also
rejected the applicant’s claim under paragraph 97(1)(b) of the IRPA because the
applicant’s fear of criminality “is generalized and not
particular, not targeted to her”. The Board did not take issue with the
applicant’s identity and accepted her story regarding how she was duped and
forced into prostitution, and later in 2003, became a citizen of Italy.
I.
Issues
[18]
The determinative issues are the applicant’s
credibility in relation to her subjective fear of persecution in Italy, and whether the applicant displaced the relatively strong presumption of state
protection with clear and convincing evidence. For her judicial review to
succeed, the applicant must succeed on both.
II.
State Protection
[19]
On the issue of state protection, the Board
concluded that the applicant failed to provide “clear and
convincing evidence of a lack of state protection”. The Board noted that
despite the applicant’s submission that “illegal’s [sic]
from Nigeria cannot get state protection”, the applicant was not an
illegal and in fact is and has been an Italian citizen for many years. The
Board referred to documents that confirm Italy is a democracy and a member of
the EU, with a Ministry of Interior and Defense that “maintain[s]
effective control over police”. The Board also noted that the police
responded when the applicant complained about the theft at her business, indeed
the applicant filed police reports in this regard.
[20]
I accept the law on state protection as recently
summarized by Justice De Montigny in Bari v Canada (Minister of Citizenship and Immigration), 2014 FC 862 at para 21:
[21] It is well established that a state
is presumed to be able to provide protection to its citizens unless it is in
complete breakdown. The burden is on the applicant to rebut the presumption of
adequate state protection by providing clear, convincing and trustworthy
evidence that satisfies the board, on a balance of probabilities, that state
protection is inadequate: Minister of Citizenship and Immigration v Flores
Carrillo, 2008 FCA 94 at para 30. It is also clear from the jurisprudence
of this Court that when assessing the ability of a country to provide
protection to its citizens, one must not only consider the best efforts to
provide such protection, but also the actual effectiveness and real adequacy of
these measures. As summarized by my colleague Justice Zinn in Orgona v Canada (Minister of Citizenship and Immigration), 2012 FC 1438 at para 11, “[a]ctions,
not good intentions, prove that protection from persecution is available”. See
also: Bors v Canada (Minister of Citizenship and Immigration), 2010 FC
1004 at paras 59ff; Hercegi v Canada (Minister of Citizenship and
Immigration), 2012 FC 250 at para 5; Kemenczei v Canada (Minister of
Citizenship and Immigration), 2012 FC 1349 at paras 55ff; Majoros v
Canada (Minister of Citizenship and Immigration), 2013 FC 421 at para 18; Burai
v Canada (Minister of Citizenship and Immigration), 2013 FC 565 at para 21;
Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854 at
paras 33-36.
[21]
I also note the following excerpt in Zhuravlvev
v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 3 at para
31: “Local failures to provide effective policing do not
amount to lack of state protection.”
[22]
On judicial review such as this, the issue is
whether the conclusion comes within the parameters set out in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir], where
the Supreme Court of Canada explained:
[47] … A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[23]
This Court should approach the Board’s decision
as an organic whole, without a line-by-line treasure hunt for error: Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34, [2013] 2 S.C.R. 458, at para 54.
[24]
In my respectful view, the Board’s findings on
the adequacy of state protection were within the range of reasonable outcomes. The
Board is not obliged to refer to every piece of evidence before it (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para 16 [Newfoundland Nurses]).
The Board is presumed to have considered the entire record before it (Herrera
Andrade v Canada (Citizenship and Immigration), 2012 FC 1490 at para 11). Courts
may “look to the record for the purpose of assessing the
reasonableness of the outcome” (Newfoundland Nurses at para 15).
[25]
The Board had the submissions of the applicant
noted above. Indeed the Board questioned and heard the applicant’s evidence on
this very point. The Board had the documentary evidence referred to in its
reasons. The onus was on the applicant to establish with “clear
and convincing evidence” that the presumption of Italian state
protection is rebutted. The Board found that the applicant had failed to
overcome her legal burden. I am not asked to find whether state protection in Italy is adequate or not. I am asked to determine whether the Board’s conclusion on state
protection was reasonable. In my respectful opinion, the Board’s finding on
adequate i.e., effective state protection falls within the range of possible,
acceptable outcomes that are defensible in respect of the facts and law per Dunsmuir.
Therefore the application for judicial review must be dismissed on this ground
alone.
III.
Credibility
[26]
In the circumstances it is not necessary to deal
with Board’s concerns with the applicant’s credibility but I will note that findings
of credibility are the heartland of the Board’s jurisdiction: Giron v Canada (Minister of Employment and Immigration) (1992), 143 NR 238 at 239 (FCA), and
that the Board noted inconsistencies.
IV.
Conclusion
[27]
I therefore conclude that this application must
be dismissed without costs. No question was submitted by the parties, and I
find there is no question of general importance to certify.
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