Docket: IMM-4876-16
Citation:
2017 FC 1055
Ottawa, Ontario, November 20, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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IKEMEFUNA
AYALOGU
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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
I.
Overview
[1]
Mr. Ayalogu brings this application seeking review
of a Minister’s Delegate’s [Delegate] finding that he is not likely to face
personalized risk under section 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA] if returned to Nigeria. The Delegate’s decision
renders enforceable a removal order against Mr. Ayalogu as a person described
under paragraph 112(3)(a) of the IRPA due to his involvement in organized
criminality. Mr. Ayalogu has not been convicted of any criminal offence.
[2]
Mr. Ayalogu argues that the evidence
demonstrates that if returned to Nigeria his life would be in danger and he is
at risk of torture or cruel and unusual treatment or punishment. He submits
that in reaching the opposite conclusion the Delegate relied on conjecture and
speculation, rendering the decision unreasonable. He raises the following
issues:
A.
Did the Delegate engage in speculation, rather
than logical inference, in finding it not likely Mr. Ayalogu would face a
personalized risk? and
B.
Did the Delegate err in failing to consider
subsection 12(2) of the Nigerian Criminal Code Act?
[3]
A 2007 Pre-Removal Risk Assessment [PRRA] concluded
that Mr. Ayalogu would, on a balance of probabilities, be subject to a risk of
torture or mistreatment in police custody if returned to Nigeria. The Delegate
completed a second PRRA in September 2016 reaching a different conclusion. The
2016 PRRA decision is before this Court for review: in this second PRRA the Delegate
relied on the passage of time and the standing of Mr. Ayalogu’s family within
Nigerian society to conclude it was unlikely that he would be detained and
mistreated on return to Nigeria.
[4]
Mr. Ayalogu submits, and I agree for reasons set
out below, that the Delegate’s conclusions were grounded in speculation and conjecture,
rendering the decision unreasonable. The application is granted.
II.
Background
[5]
Mr. Ayalogu was born in Nigeria in 1982 and is a
citizen of that country. He came to Canada with his family in 1998, when he was
sixteen. His father was assuming the position of administrative attaché at the
Nigerian embassy in Ottawa. Mr. Ayalogu claimed refugee status on January 15,
2002. The other family members were granted permanent residence in Canada based
on humanitarian and compassionate [H&C] grounds in 2008.
[6]
On May 4, 2004 an IRPA section 44 report issued against
Mr. Ayalogu expressing the opinion that he was inadmissible to Canada due to
participation in organized criminality [the Section 44 Report]. The Immigration
Division of the Immigration and Refugee Board [ID] found him inadmissible for
organized crime on October 22, 2004 and issued a deportation order against him.
That order was subsequently quashed on judicial review before this Court, and
the matter was sent back for redetermination by a different decision-maker.
[7]
On redetermination the ID again found Mr.
Ayalogu inadmissible for organized crime under paragraph 37(1)(a) of the IRPA.
[8]
A PRRA was initiated in August 2007 [2007 PRRA].
The PRRA Officer found on a balance of probabilities that Mr. Ayalogu would
face risk to life, danger of torture or risk of cruel and unusual punishment or
treatment if returned to Nigeria and was a person in need of protection under IRPA
section 97.
[9]
The 2007 PRRA found that the Canada Border
Services Agency [CBSA] had provided the Section 44 Report to the Nigerian High
Commission in Ottawa. The Section 44 Report discloses Mr. Ayalogu’s involvement
with organized crime, details the group’s criminal activity, and indicates Mr.
Ayalogu was involved in directing others in the group.
[10]
The 2007 PRRA then addressed the claim that the
Nigerian government would take harsh retribution against the son of a former
Nigerian diplomat for disgracing the country and that in Nigeria, criminal
responsibility applies to a Nigerian citizen even if the criminal activity
occurred outside Nigeria. The PRRA Officer considered the documentary evidence
and found on a balance of probabilities the Nigerian authorities had access to
the contents of the Section 44 Report and would arrest and detain Mr. Ayalogu upon
return to Nigeria. The Officer then considered the documentary evidence relating
to the treatment of detained individuals in Nigeria, finding that it
demonstrated a pattern of widespread torture of suspects in police custody which
sometimes resulted in death. The PRRA Officer concluded that on a balance of
probabilities Mr. Ayalogu would face a risk to life, danger of torture or risk
of cruel and unusual punishment or treatment if returned to Nigeria.
[11]
In December of 2013, the process to conduct a
restricted risk assessment in accordance with IRPA paragraph 113(d)(ii) was
commenced with disclosure being provided to Mr. Ayalogu. Submissions were made
on Mr. Ayalogu’s behalf in February 2014.
[12]
In July 2016 Mr. Ayalogu’s counsel was advised by
the Delegate that a final decision would be made on the PRRA for Mr. Ayalogu.
Counsel was invited to update the submissions made in 2014 with respect to both
the PRRA and an outstanding H&C application.
[13]
Further submissions were made. On October 31,
2016 Mr. Ayalogu was advised that his H&C application had been refused. On
November 7, 2016 he received the decision that is now before the Court, the refusal
of the second PRRA application.
III.
Decision under Review
[14]
The Delegate addressed claims of risk arising
out of Mr. Ayalogu’s medical condition, the disclosure of the Section 44 Report,
and his claim of bisexuality. The Officer’s conclusions as they relate to risk
arising out of Mr. Ayalogu’s medical condition and claimed bisexuality are not
in issue.
[15]
With respect to the risk arising out of the
disclosure of the Section 44 Report, the Delegate found no more than a mere
possibility that Nigerian authorities would arrest and mistreat him upon return
for the following reasons:
A.
Mr. Ayalogu is a member of the elite in Nigerian
society and “the elite in
Nigeria are provided with a degree of immunity from the normal consequences of
the law due to a system riddled with ingrained nepotism”;
B.
even if he were to be subjected to the normal
consequences of the law as reflected in Nigerian “Decree 33”
permitting the additional punishment of those found guilty of drug offences
overseas, “Decree 33” only applies to those convicted of offences. As his submissions
confirm, there is no indication in the Section 44 Report that Mr. Ayalogu was
prosecuted or convicted for any offences; and
C.
it was unlikely that Nigerian authorities would
have retained the Section 44 Report from 2007.
IV.
Standard of Review
[16]
The parties do not dispute that the Delegate’s
decision is reviewable against the standard of reasonableness (Thamotharampillai
v Canada (Citizenship and Immigration), 2016 FC 352 at para 18; Kandel v
Canada (Citizenship and Immigration), 2014 FC 659 at para 17). A reviewing
Court must consider whether the decision-making process reflects the elements
of justification, transparency and intelligibility, and whether the outcome
falls within the range of possible acceptable outcomes based on the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
V.
Analysis
[17]
As a preliminary matter the respondent submits
the Delegate’s jurisdiction to assess the risk in this case was not circumscribed
by the assessment conducted by the PRRA officer in 2007. I agree. The
jurisprudence requires that the Delegate assess the evidence and information
available at the time of the decision and render a decision as to whether an
applicant would be at risk if removed from Canada on the basis of that
assessment (Placide v Canada (Citizenship and Immigration), 2009 FC 1056
at paras 58, 63 and 70).
A.
Did the Delegate engage in speculation, rather
than logical inference, in finding it not likely Mr. Ayalogu would face a
personalized risk?
[18]
The respondent submits that the Delegate’s conclusions
were permissible inferences that could logically and reasonably be drawn from the
following established facts: (1) the Nigerian High Commissioner personally contacted
Mr. Ayalogu’s father regarding his alleged gang related activities in 2007;
(2) Mr. Ayalogu’s father was a Nigerian diplomat; and (3) the Nigerian High
Commission did not issue a passport in 2007 when proceedings to remove Mr.
Ayagolu from Canada were underway. These established facts were, the respondent
argues, sufficient to allow the Delegate to draw the following inferences:
A.
the Nigerian High Commission was inclined to
help Mr. Ayalogu and “attempted to frustrate legitimate
deportation proceedings in 2007”;
B.
it was unlikely that the Nigerian authorities
would have retained the Section 44 Report; and
C.
Mr. Ayalogu would be shielded from mistreatment
if the Section 44 Report had been shared with other Nigerian authorities as he
was a member of the Nigerian elite.
[19]
I am unpersuaded by the respondent’s
submissions. Inferences may be drawn by a decision-maker where the primary
facts underpinning the inference have been established and the inference can be
reasonably and logically drawn from those established primary facts. Where the
primary facts have not been established or the inference cannot logically and reasonably
be drawn from the primary facts any attempt to draw an inference will be
nothing more than impermissible speculation (R v Munoz (2006), 205 CCC
(3d) 70 at paras 26 and 28, 86 OR (3d) 134(Ont Sup Ct)). That is what has
occurred here.
[20]
While the Delegate’s conclusions may be
plausible, plausibility is not sufficient to support an inference. For example,
inferring that the High Commission was seeking to assist Mr. Ayalogu and
frustrate a legitimate deportation is one, but only one, plausible explanation
for the facts that the High Commissioner contacted a former diplomat regarding
his son’s pending deportation and that a passport was not issued. It is equally
plausible, albeit also speculative, that the High Commissioner would contact any
former member of the diplomatic staff where a child is involved simply as a
matter of courtesy. One might also speculate that the passport application did
not progress because neither Mr. Ayalogu nor CBSA actively pursued it.
[21]
Similarly, the conclusion that the Section 44 Report
was not retained is based on the passage of time and the fact that a passport
was not issued. This too is plausible, but absent some information relating to
past experience or Nigerian recording-keeping practices there is no factual
foundation from which to logically or reasonably draw the inferences required to
reach that conclusion. One might also infer the report was retained in light of
the information it contained. As such the conclusion is again conjecture and
speculation.
[22]
Finally the Delegate concluded that Mr. Ayalogu’s
social status would shield him from the application of Nigerian law and in turn
from mistreatment. This conclusion is linked to a single fact: the phone call
his father received from the High Commissioner. As noted above there are other plausible
explanations for this call and there is no established fact that evidences why
the call was made. For the Delegate to infer the motivation behind the call and
to then rely on that inference to conclude Mr. Ayalogu is a member of the
Nigerian elite who will be shielded from the law is pure conjecture. The
Delegate also fails to address Mr. Ayalogu’s estrangement from his father and
the passage of time, both of which might logically impact upon his ability to benefit
from any status his father may have in Nigeria.
B.
Did the Delegate err in failing to consider
subsection 12(2) of the Nigerian Criminal Code Act?
[23]
The respondent submits that the Delegate did not
err in failing to address the alleged risk arising from the Nigerian
Criminal Code Act [Code] because the wording of subsection 12(2) demonstrates
the provision only applies to acts or omissions that constitute an offence in
Nigeria and that suspected involvement with a criminal organization would not
be captured. Again I disagree.
[24]
I recognize that a decision-maker need not
address or refer to every argument an applicant may raise (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 16). However, where a decision-maker fails to address evidence
that is of direct relevance to the issues in dispute a Court may be more
willing to conclude a finding has been reached without regard to that evidence
(Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35 at para 17, 1998 CanLII 8667 (FCTD)).
[25]
In this case subsection 12(2) of the Code provides
for prosecution in Nigeria where an “act and omission
occurs elsewhere.” The Delegate does not address what risk (if any)
arose from this provision. Respondent’s counsel has advanced an interpretation
of the Code to explain why the Delegate did not err in failing to address any
risk arising out of this provision. However, the risk, if any, arising out of
the Code was an issue for the Delegate to address in reasons not for counsel to
advance on judicial review.
VI.
Conclusion
[26]
The Delegate’s decision is based on speculation
and conjecture and fails to address all aspects of the risk alleged. The
decision does not reflect the required elements of justification, transparency
and intelligibility.
[27]
The parties agreed in the course of hearing that
no question of general importance arises. I agree.
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