Date: 20020307
Docket: IMM-1276-01
Neutral citation: 2002 FCT 258
Toronto, Ontario, Thursday the 7th day of March, 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ADEGBOYEGA OLUSEYI ADEWUMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Adegboyega Oluseyi Adewumi is a 33 year old citizen of Nigeria who brings this application for judicial review from the February 5, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found Mr. Adewumi not to be a Convention refugee.
[2] I am satisfied that in so concluding the CRDD erred in its finding that there was no nexus between Mr. Adewumi's claim and a Convention ground. However, despite the thoughtful submissions of Mr. Adewumi's counsel, I am also satisfied that the CRDD's conclusion as to the existence of state protection in Nigeria was one reasonably open to it so that the application for judicial review should be dismissed.
THE FACTS
[3] Mr. Adewumi testified that as a result of speaking out against cultism to students and to university authorities, his car and home were vandalized, he was threatened by cult members with death, and he was beaten. Mr. Adewumi says that he reported these matters to the police, who did nothing until his third report, when they told him they would get back to him after their investigation. A few weeks later, Mr. Adewumi says that he was beaten and detained in a darkened room for one day by a group of men claiming to be law-enforcement agents. After his release he went into hiding until August 1999, when he left Nigeria for Canada.
[4] Mr. Adewumi says that he fears returning to Nigeria because he believes that there is no state protection available to him and he will be killed by the cultists. His claim to refugee status on Convention grounds is based on membership in a particular social group, namely victims of persecution from persons enjoying state complicity, and his political opinion.
[5] The CRDD found Mr. Adewumi's evidence to be credible and trustworthy. However, the CRDD found that Mr. Adewumi feared criminality at the hands of the cultists, so that there was no nexus to a Convention ground. Furthermore, the CRDD found that in any event there is state protection available to Mr. Adewumi against the threats of violence by the cultists, and that the government of Nigeria is making reasonable efforts to combat cult activities.
ANALYSIS
(i) Nexus to a Convention Ground
[6] The CRDD provided no analysis for its conclusion that Mr. Adewumi's fear did not arise on account of a Convention ground. After noting that it found Mr. Adewumi to be credible, and that the problem of violence perpetrated by members of cultists is pervasive on campuses throughout Nigeria, the CRDD simply stated that "based on the claimant's evidence of death threats and physical attack on him, the panel finds that what the claimant fears is criminality at the hands of the cultists. As a result, the panel finds that there is no nexus to a Convention ground".
[7] In Klinko v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 327 the Federal Court of Appeal considered whether persecution after a complaint was made to regional government authorities about widespread corruption among government officials was persecution resulting from the expression of a political opinion. The Court of Appeal concluded that where the corrupt elements so permeated the government as to be part of its very fabric, a denunciation of the existing corruption was indeed an expression of political opinion. Political opinion includes any opinion on any matter in which the machinery of state, government, and policy may be engaged.
[8] In the present case, Mr. Adewumi's evidence was accepted by the panel as being credible and trustworthy, and was to the effect that after he delivered an anti-cult lecture at the University of Benin where he condemned cult activities and criticized the police force and government for non-prosecution of serious criminal offenses, including murder, he was targeted by cult members.
[9] In view of the fact that Mr. Adewumi's criticism extended to the police and the government, and in view of the evidence before the CRDD as to the extent to which cult members are "highly connected to the people at the corridors of power" it may well be that speaking out against the non-prosecution of cult members was a matter which engaged the machinery of state, government and policy in Nigeria. At the least, analysis on the point was required and the CRDD erred in stating, unsupported by reason or authority, that what Mr. Adewumi feared was criminality.
(ii) State Protection
[10] The applicable legal principles are as follows:
i) In the absence of a complete breakdown of the states apparatus, there is a presumption of state protection. Therefore, a claimant must adduce clear and convincing confirmation of the state's inability to protect its subjects. By way of example, a claimant may advance testimony of similarly situated individuals which the state was unable or unwilling to protect, or may advance testimony of past personal incidents in which state protection did not materialize.
ii) Where the state is in effective control of its territory, has military, police and civil authority in place, and makes a serious effort to protect its citizens, the simple fact that it is not always successful will not be enough to establish that victims are unable to avail themselves of state protection.
See: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, especially at paragraph 57; Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
[11] In the present case, there was credible evidence before the CRDD that by late 1999 cult activities had decreased, with increasing numbers of students publicly denouncing their cult membership, and that off-campus activities of university based cults were limited.
[12] In correspondence with the Research Directorate of the Immigration and Refugee Board, the executive director of the Centre for Responsive Politics in Port Harcourt, Nigeria advised that on the whole the police system works, notwithstanding the perception of Nigerians, and that to the best of his knowledge reports of threats of violence, harm or death are promptly dealt with by the police. The Nigerian police force was noted to have several branches so that citizens dissatisfied with investigations or actions by one branch may request and obtain the transfer of their case to other branches. The executive director also advised that if a case is made out after investigation and is capable of prosecution, the police proceed to so prosecute or refer the matter to the Director of Public Prosecution for legal advice. The Director of Public Prosecution was said to prosecute if convinced of the existence of a prima facie case against the accused.
[13] The executor director acknowledged that the affiliation of a police officer might affect his reaction to a complaint, but noted that individual police officers did not take decisions unilaterally so that where a complainant believed that a police officer is a cult member or sympathiser, the complaint would be forwarded to higher police authorities. Finally, the executive director was quoted as saying that the majority of the police were trying to do their job, and that it was not sufficient any longer for an officer to simply obey orders because orders must also conform to the law.
[14] The executive director of the Constitutional Rights Project was quoted by the Research Directorate as having expressed the opinion that police were now more respectful of the rights of citizens, and that there was no longer a culture of impunity.
[15] On an application for judicial review the issue is not whether the evidence before the tribunal could have supported a different conclusion, but whether the tribunal's findings were made in a perverse or capricious manner or without regard to the material before the tribunal. The CRDD's finding that Mr. Adewumi had not provided clear and convincing evidence that the state was unwilling or unable to protect him was rationally supported by evidence before the CRDD and therefore cannot be said to be either perverse or capricious, or made without regard to the material before the CRDD.
[16] In so concluding, I have had regard to Mr. Adewumi's evidence that he did approach the authorities for protection and that they were unable to provide protection to him. Mr. Adewumi argued that this indicated the state's inability to protect him.
[17] While the police may have been nonchalant with respect to his complaints of vandalism and anonymous notes threatening death, after Mr. Adewumi's complaint of the beating the police promised to investigate his complaint and report back to him when their investigation was concluded. After this, Mr. Adewumi was not successful in obtaining an audience before the Commissioner of Police or the special panel on cultism. Mr. Adewumi did not then report the further serious incidents to the police.
[18] The CRDD considered this evidence and determined that it could not find the lack of police response to be due to the inability or unwillingness of the police to protect Mr. Adewumi because there was insufficient evidence to make that finding. In view of the fact that Mr. Adewumi left Nigeria not long after his report of the beating to the police, and in view of his failure to report the other incidents to the police, it was, in my view, open to the CRDD to conclude on the totality of the evidence before it, including the documentary evidence, that the evidence did not support a conclusion that the police were unable or unwilling to protect Mr. Adewumi.
[19] In the result, the application for judicial review will be dismissed.
[20] Counsel for Mr. Adewumi posed the following question for certification:
Where a claimant's evidence, which includes assertions of failed attempts at getting state protection, is deemed credible and trustworthy, could that satisfy the objective component required in the definition of a Convention refugee?
[21] The question as posed is open ended, and in my view raises no question of general importance. Each case must be determined on the totality of the evidence before the CRDD. No question will be certified.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
March 7, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1276-01
STYLE OF CAUSE: ADEGBOYEGA OLUSEYI ADEWUMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, DECEMBER 12, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: THURSDAY, MARCH 7, 2002
APPEARANCES BY: Mr. Kingsley Jesuorobo
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Kingsley Jesuorobo
Barrister
968 Wilson Avenue
3rd Floor
North York, Ontario
M3K 1E7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020307
Docket: IMM-1276-01
BETWEEN:
ADEGBOYEGA OLUSEYI ADEWUMI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER