Date: 20030303
Docket: IMM-4985-01
Neutral citation: 2003 FCT 266
BETWEEN:
JOHN KENNETH ANDZAYIE AJIEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of, and an order setting aside, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated September 20, 2001, which determined that the applicant is not a Convention refugee.
[2] A number of issues were raised in the application. Four of these relate to the panel's assessment of the evidence, and the others relate to the matter of state protection. In addition, at the hearing and in written submissions thereafter, counsel dealt with a procedural issue, that is, whether matters not referred to specifically in the application for judicial review may be introduced and referred to in argument at a hearing of the application. I deal with the substantive issues first, after summarizing the background.
Background
[3] The applicant is a senior Christian minister actively involved in evangelism and the work of his church throughout Nigeria for a number of years. He was living in Jos, in Plateau State, with his family. There, after a prison visitation ministry which included conversion of an imprisoned Muslim to Christianity, he was attacked by militant Muslims. He escaped from them. A second attack by Muslim fanatics was committed in Bauchi, in Bauchi State of Nigeria, where the fanatics attacked his place of fellowship and burned it down. Seven persons died in the attack, but the applicant luckily escaped. In February 2000 in Kaduna, Islamic fanatics, taking advantage of an evolving political/religious crisis over a government attempt to introduce Sharia law, sought to target key Christian ministers, including the applicant. This was the third attack upon him within a year. The applicant escaped to Badagry in Lagos State where he was also attacked. He then decided to leave Nigeria. He went to Ghana where he applied for a visa to come to Canada to attend a religious conference in Toronto. Having obtained the visa, he then returned to Nigeria to obtain funds to finance his trip and he departed from Nigeria on May 4, 2000 enroute to Canada, travelling on a Nigerian passport, with a visitor's visa to enter Canada.
[4] He arrived in Toronto in May 2000 to attend the religious conference. Shortly after that, he claimed refugee status in this country, claiming that he feared to return to Nigeria because he would be targeted and killed there. He believed that the government of Nigeria was incapable of protecting him. Because of that belief, and an earlier unhappy experience with police, who he says were Muslims, and had detained and ill-treated him following his refusal to pay a bribe, demanded when he took a complaint to the police, he had left Nigeria for Canada without seeking protection of the police or other representatives of the Nigerian government.
[5] The CRDD panel considered documentary evidence concerning the efforts of the state government, particularly in Kaduna, and of the national government in Nigeria to deal with communal and religious clashes in that country in the year 2000. Among other measures, the government initiated mediation efforts with traditional and religious leaders, and Christian and Muslim associations had collectively denounced outbreaks of violence.
[6] While the panel noted that documents indicated that tensions continued in the North and that peace within Nigeria was fragile, the actions of both federal and state governments there led the panel to conclude it was reasonable to expect governments would control religious clashes throughout the country. Moreover, it found that the applicant could seek assistance from the Christian Association of Nigeria, a non-governmental Christian organization with which he was already associated, that is active in working with government and other organizations to settle ethnic and religious crises. I note that potential assistance from a non-governmental agency is unlikely to be accepted as a satisfactory substitute for state protection.
[7] The panel did not question the applicant's general credibility, but it did not accept his explanation for his return to Nigeria from Ghana after obtaining his visa to come to Canada. He had returned briefly he said, to obtain money that his bank had refused to permit to be withdrawn unless he did so in person, money needed for his travel to Canada. The panel states that it simply did not believe that explanation, since it was reasonable to expect, i.e., it was more plausible, presumably in light of his expressed fear of persecution, that the applicant would make suitable arrangements not to place himself in further danger by returning to the site of his alleged persecution. The act of reavailment was said by the panel's decision to show "a lack of subjective fear."
[8] With reference to his failure to seek state protection, the panel noted that some seven years had elapsed since his alleged bad experience with the police and it noted the work of the state in efforts to curb crime "which the government admits is on the increase." It concluded, "The panel finds that the claimant has an obligation to seek state protection in his country before seeking international protection."
[9] Finally, the panel concluded that Nigeria is a state with effective control of its territory with military, police and civil authorities in place, making serious efforts to protect its citizens from terrorist activities. In support of that conclusion, the panel relied on Canada (Minister of Employment and Immigration) v. Villafranca, (1992), 18 Imm.L.R. (2nd) 130 (F.C.A.) at 132-133, where the Court noted that "no government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times." In the result, the panel concluded that adequate state protection was available to the applicant in Nigeria.
Assessment of the Evidence
[10] For the applicant, it is urged that the panel's assessment of the facts was patently unreasonable in light of the totality of the evidence, particularly since its decision accepted the general credibility of the applicant. Yet, the basis for this general submission was not fully articulated by the applicant.
[11] It was urged at the hearing that certain evidence supportive of the applicant's claim of persecution of Christian church leaders, like himself, was ignored by the panel, yet the one reference to specific evidence made at the hearing was to a report of the U.S. Department of State on Nigeria for 2000, including reference to numerous ethnic and other clashes that had occurred in that year. Then police and security forces are reported to have failed to respond to many criminal acts in a timely manner and were said to be unable to protect Christians and Muslims caught in sectarian unrest in Kaduna, Kano, Lagos, and Abia States. As an example, it referred to late February 2000 problems at Kaduna, including at the Baptist Theological Seminary there, where five persons were killed in two days of rioting after police had declined to intervene because they were too busy to respond to further calls. The same report does also indicate the action taken by governments, both national and state, to prevent and deal with further unrest in the year 2000. It is, of course, well settled that failure to refer to particular evidence in a decision does not in itself mean that the evidence was overlooked by the decision maker.
[12] The other example of the claimed failure to base conclusions on the totality of evidence concerns the panel's assessment, said to be without reasons, of the evidence given by the applicant about his return to Nigeria before setting off for Canada. In my opinion, the panel did, however, explain the basis for not believing the applicant's testimony about reasons for his return, that is, that the panel found it implausible, if he feared persecution as he claimed, that he would return to Nigeria without making other arrangements for obtaining funds when his only effort was to have an acquaintance seek to withdraw funds from his account. In the circumstances, the panel found his return to Nigeria to be an act of reavailment which indicated a lack of subjective fear. In my view, after review of the transcript of evidence before the panel (at pp. 158, 159 of the tribunal record), where the only explanation of the applicant's return to Nigeria is offered, the conclusion of the panel cannot be said to be patently unreasonable, even though the basis for not accepting the applicant's testimony was simple implausibility. His trips to Ghana and later to Canada were, after all, not his first trips abroad and he must have had experience in arranging for funds when he was not in Nigeria.
State Protection
[13] The applicant raises a number of concerns about the panel's finding that adequate state protection was available to him in Nigeria. After reviewing much of the documentary evidence before it, with particular reference to governments' efforts in Nigeria to deal with communal and inter-religious unrest, the panel concluded "that Nigeria is a state in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens from terrorist activities." The panel's decision makes reference to Canada (Minister of Employment and Immigration) v. Villafranca, supra and the statement there that "no government . . . can guarantee the protection of all of its citizens at all times." While the reference to Villafranca may be somewhat less than felicitous in that it may be read as the basis of the panel's conclusion that adequate state protection was available to the applicant, my reading of the panel's decision is that that conclusion was based on its earlier review of the evidence before it. I am not persuaded that conclusion was unreasonable on the evidence.
[14] In Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 at 724, 725, Mr. Justice LaForest commented for the Court that "absent a complete breakdown of state apparatus . . . it should be assumed that the state is capable of protecting a claimant," and a "claimant will not meet the definition of 'Convention refugee' where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities". I agree with the applicant's submissions that Ward does not require a refugee claimant to establish that he did seek state protection before leaving his own country (see LaForest J. at p. 724). Further, in Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021 (QL) (C.A.), the Court noted that persons specifically targeted may still fear persecution even if a state is capable of protecting ordinary citizens where it is incapable of protecting members of a particular social group. That was, of course, the basis of the applicant's claim in this case, but the panel was not persuaded that the evidence supported the conclusion that the state of Nigeria was unable to protect ordinary citizens generally or of protecting Christian and other religious leaders in the country.
[15] Moreover, the applicant's refusal to approach police or other state authorities about his situation, was based on an earlier incident some six years before, when he had been detained and beaten by some local police after having made a complaint about robbery. The decision of the panel makes reference to documentary evidence of the efforts made by government since 1999, seeking to curb crime in Nigeria and to contain violent unrest. In those circumstances, the panel did not accept the applicant's explanation as a reasonable basis for failing to seek state protection in his own country.
[16] After considering carefully the submissions of the applicant, I am not persuaded that the panel erred in law in its treatment of the principles of state protection and its application of those to the facts as it found them in this case.
Matters not Referred to in Written Submissions for Judicial Review
[17] When this matter was heard, counsel for the respondent raised objection to a number of submissions made by the applicant, which it was said were new and for which inadequate notice was provided by written submissions in advance of the hearing. I am not persuaded that any of the issues raised by counsel were of significance in considering this application. The Court was invited by the applicant's counsel to consider newspaper articles of events in Nigeria since the decision of the CRDD panel, but these were not directly relevant to the applicant's circumstances and the Court declined to consider those. It is, of course, well settled that without leave of the Court, evidence that concerns incidents after the decision in question on judicial review, is not admissible.
[18] The Court invited written submissions following the hearing with relation to the respondent's concern about new submissions. Having considered those written submissions carefully, I am not persuaded that the applicant's counsel did seek to introduce new matters not within the ambit of the general written submissions in support of the application for judicial review, except for the newspaper reports already referred to. I am not persuaded that counsel for the respondent was at any disadvantage at the hearing. This is not a case where, for special reasons, costs ought to be awarded to either party, as counsel suggested in post-hearing written submissions.
Conclusion
[19] In my opinion, the facts found by the CRDD panel decision are supportable on the evidence that was before the panel. I am not persuaded that the panel erred in finding facts or made any error in law that would warrant intervention by the Court. In the circumstances, the application is dismissed by separate order.
[20] No question was proposed for consideration as a serious question of general importance within paragraph 77(d) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, as amended. No question is certified.
"W. Andrew MacKay"
JUDGE
Ottawa, Ontario,
March 3, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4985-01
STYLE OF CAUSE: JOHN KENNETH ANDZAYIE AJIEH
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, December 4, 2002
REASONS FOR ORDER MacKAY J.
APPEARANCES:
Kingsley Jesuorobo
FOR APPLICANT
Stephen Jarvis
FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley I. Jesuorobo
3rd Floor
968 Wilson Avenue
North York, Ontario
M3K 1E7
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT