Date: 20010523
Docket: IMM-4501-00
Neutral citation: 2001 FCT 517
BETWEEN:
JUSTIN SUNDAY NWAOZOR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated July 18, 2000, which determined that the applicant was not a Convention refugee.
[2] The applicant is a citizen of Nigeria. He claimed Convention refugee status based on an alleged fear of persecution by reason of his perceived political opinion and his membership in a particular social group, that being his family.
[3] The applicant, who was a football player for 10 years in Nigeria, alleges that his father, who was a Major in the Nigerian army, was killed in December 1997, after being accused of participating in a proposed coup against the Abacha regime earlier that month.
[4] The applicant and his family attempted to obtain information about the father's death by going to the Nigerian authorities and the father's close colleagues.
[5] He alleges that the Nigerian authorities then raided the family residence on three separate occasions between January 1998 and July 1998 where they were beaten and warned to discontinue making claims that the father was a victim of a government set-up, or suffer more severe consequences. His mother fled Nigeria to a still unknown destination in July 1998, while the applicant and his brother remained in hiding in Nigeria until the end of July 1998, at which time both were able to enter South Africa. He alleged that his brother was killed by gunmen who he believes were agents of the Nigerian government. The applicant then fled South Africa to come to Canada where he made his Convention refugee claim.
[6] At the outset of the hearing, counsel for the applicant conceded changes of circumstances, and that the sole issue for determination in the claim was whether or not there existed compelling reasons as provided in subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2.
[7] The applicant first submits a breach of natural justice regarding the Board's questioning of the applicant's subjective fear. A reading of the transcript reveals that the Board questioned the applicant on his activities in Nigeria as well as his mental and physical well-being in order to determine if there was a compelling reason not to return to Nigeria. Counsel for the applicant did not object to this line of questioning at the hearing and had no questions for redirect. Thus, in my opinion, it is not open for him to now challenge the approach taken by the Board at the hearing. Surely, all facts relating to the applicant's past persecution were relevant to assess whether or not there was a compelling reason not to return him to his country of origin.
[8] The Federal Court of Appeal has recognized that the exceptional circumstances envisaged by subsection 2(3) apply to only a tiny minority of claimants:
On any reading of subsection 2(3) it must extend to anyone who has been recognized as a refugee at any time, even long after the date of the Convention. It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.
The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. [...].
(Canada (M.E.I.) v. Obstoj, [1992] 2 F.C. 739 (F.C.A.) at 748.
[9] The applicant's only evidence as to past persecution was that his father was killed although he did not witness the death. His brother was shot in South Africa by unknown persons. He and other members of his family had been beaten and harassed by the Nigerian army on three occasions over a six month period. The Board found that these events do not meet the high standard of atrocious and appalling.
[10] In spite of the argument by counsel for the applicant, I am unable to conclude that this finding of fact is patently unreasonable.
[11] I agree with the Respondent that while the applicant may be genuinely afraid of returning to Nigeria, it does not bring him within the limited category of persons under subsection 2(3) of the Act.
[12] Finally, I am satisfied that the Board appropriately considered not only the level of atrocity of the acts inflicted upon the applicant, but the repercussions upon the applicant's physical and mental state in determining whether this experience alone constituted a compelling reason not to return him to his country of origin. (Shahid v. Canada (M.C.I.) (1995), 89 F.T.R. 130 (F.C.T.D.).
[13] For these reasons, the application for judicial review is dismissed.
[14] Counsel for the applicant has submitted the following question for certification:
If a compelling reason is identified as the sole issue for determination by the panel, could the panel raise and rely on other issues such as credibility and lack of subjective fear in its determination of the claim?
[15] The Court is not convinced that this is a serious question of general importance. Therefore, the question will not be certified.
"Danièle Tremblay-Lamer"
J.F.C.C.
Toronto, Ontario
May 23, 2001.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4501-00
STYLE OF CAUSE: JUSTIN SUNDAY NWAOZOR
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MAY 22, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: WEDNESDAY, MAY 23, 2001
APPEARANCES BY: Mr. Jesuorobo
For the Applicant
Mr. Loncar
For the Respondent
SOLICITORS OF RECORD: Kingsley I. Jesuorobo
Barrister & Solicitor
3rd Floor, 968 Wilson Ave.
North York, Ontario
M3K 1E7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010523
Docket: IMM-4501-00
Between:
JUSTIN SUNDAY NWAOZOR
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER