Vancouver, British Columbia, May 31, 2007
PRESENT: THE CHIEF JUSTICE
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] In its finding that Nigeria could afford state protection to the applicant's particular social group, persons accused of witchcraft, the Refugee Protection Division noted:
Among other things,…an overall assessment stating that, despite apathy and reluctance on the part of the police, people have been arrested by the police and convicted before judges! 13
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13 Exhibit C-3, disclosure, dated November 17, 2005, REFINFO NGA39321.E, Page 31
[2] The Tribunal relied on this country conditions document as evidence of the availability of state protection for persons accused of witchcraft. In fact, the document is evidence of the state prosecuting witchcraft practitioners. It cannot constitute evidence of state protection of persons wrongly accused of witchcraft.
[3] After some hesitation, I have concluded that the state protection analysis cannot withstand "a somewhat probing examination": Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56.
[4] I am also concerned that the Tribunal had some doubts with respect to the applicant's credibility without stating so directly and without explaining itself "in clear and unmistakable terms": Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (T.D.) at paragraph 6.
[5] The applicant has a right to a new hearing. Of course, it is up to the Refugee Protection Division, and not this Court, to make the determination as to whether the applicant is in fact a Convention refugee.
[6] The application for judicial review will be granted. No serious question of general importance will be certified.
ORDER
THIS COURT ORDERS that this application for judicial review is granted. The decision of the Refugee Protection Division, dated June 6, 2006, is set aside and the matter is referred back for rehearing and redetermination before a differently constituted panel.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3634-06
STYLE OF CAUSE: ISRAEL AYODEJIOYELAMI v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
AND ORDER BY:
APPEARANCES:
Mr. Boniface Ahunwan
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Ms. Margherita Braccio
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SOLICITORS OF RECORD:
Boniface Ahunwan Barrister & Solicitor Toronto, ON
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John H. Sims, Q.C. Deputy Attorney General of Canada |