Date: 20050908
Docket: IMM-813-05
Citation: 2005 FC 1225
Vancouver, British Columbia, Thursday, the 8th day of September, 2005
Present: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
GEORGE CHIGOZLE ASHIEGBU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 13, 2005. In the decision, the Board found that the applicant was not a Convention refugee or a person in need of protection. The primary issues on which the Board found that the applicant was not a Convention refugee or a person in need of protection were credibility and internal flight alternative ("IFA").
[2] The applicant, George Chigozle Ashiegbu, is a 30-year-old citizen of Nigeria. He claims a fear of persecution in Nigeria due to his position as a well-known evangelist, and the alleged Fatwa (a religious direction issued by a Muslim leader) issued against him in Nigeria. He claims to have been involved in evangelical work in Nigeria since approximately the beginning of 1997.
[3] The applicant claims that his evangelical calling has led to him being targeted by Muslims in the northern state of Plateau. The applicant claims that his family home in Plateau was attacked in early May 2004. In the attack, he claims that his father was murdered and his mother and wife were taken captive. The applicant stated that he was out of state at the time of the attack, at an evangelical meeting in Taraba State. He returned home on May 8, 2004, and discovered the attack.
[4] On May 10, 2004, the applicant learned that the kidnapped women were being held in a mosque in Yelwa. The applicant, along with approximately 20 other members of the Christian Association of Nigeria (the "CAN") Youth Forum, went to the mosque that evening and rescued the women taken prisoner, including the wife and mother of the applicant. The women had been assaulted and were taken to the hospital for treatment. The mosque was allegedly burned down by a mob that had gathered as the applicant was leaving with the injured women. The applicant claims that, as a result of the rescue, the Muslim leadership placed a Fatwa against him, as a leader of the CAN Youth Forum.
[5] The applicant alleges that, as a result of the Fatwa, his life was threatened and he attempted to flee to the eastern part of Nigeria. He claims that the Muslim death squads followed him to the east.
[6] On May 16, 2004, the applicant claims that the Christian Community leadership informed him that they had a plan to send him, along with others who were at risk, to a safe place abroad. On May 22, 2004, the applicant travelled to Canada and landed in Vancouver.
[7] The applicant arrived in Canada with two passports, an American Passport and a Nigerian passport. Both passports contain the name Ubong Imose Etuk, which the applicant says is the name he travelled under. He does not claim that either passport is legitimately his.
[8] The applicant was detained until June 2, 2004, and was released when the following documents were provided: (a) a marriage certificate; (b) wedding photographs; (c) birth certificate; and (d) school documents.
[9] The applicant made a claim for refugee protection, which was denied by the Board on January 13, 2005. The Board's decision is the subject of this application for judicial review.
[10] The Board found that, on the balance of probabilities, the applicant was a Nigerian citizen and an active teacher of the Christian faith in the Nigerian community.
[11] The Board nevertheless delivered a negative decision. It determined that there was no evidence that evangelical Christians are generally in danger in Nigeria. The Board noted that all of the applicant's family is still in Nigeria, that the applicant has a family home in Imo State and family members in Abia, and has contacts within the church in Abia.
[12] The Board found that there was insufficient evidence to establish that the applicant was pursued outside the northern state of Plateau, and that the applicant could settle in his homeland or in one of the southeastern states of River State, Delta State, or Edo State.
[13] The Board determined that there was insufficient evidence to establish that there is a Fatwa issued against the applicant. Given the lack of a Fatwa, though the applicant is an evangelist and an active Christian, he would not face a serious possibility of persecution or risk to his life if he were to return to Nigeria. The Board notes that the applicant did not seek any form of protection at any time, nor did he report his problems to the authorities. The Board found that, should the applicant return home, he could avail himself of state protection.
[14] The Board concludes that the applicant is not a Convention refugee or person in need of protection, that he has not availed himself of state protection in Nigeria, and that he has a valid IFA in the states listed supra.
Argument
[15] The applicant argues that the Board only made one specific finding against his credibility. He claims that the Board found that he had omitted one detail from his PIF, which is insufficient to issue a negative decision. The applicant submits that the issue to be decided is not whether evangelical Christians are generally in danger in Nigeria, but rather whether the applicant's personal circumstance put him in danger.
[16] The applicant submits that the Board completely disregarded the documentary evidence both in the main finding and in the IFA finding, and that the Board did not refer to the documentary evidence provided by the applicant and thereby mischaracterized the situation which currently exists in Nigeria. He refers to an article from the New York Times, dated May 24, 2004, which details sectarian Muslim/Christian clashes in Yelwa that occurred in May of 2004, and states that the Board discounted evidence of general religious persecution in Nigeria. He argues that, even if the Board was right about the lack of general violence, his position as an evangelical teacher - which the Board does not dispute - gives him a well-founded subjective fear.
[17] The respondent replied that the decision is reasonable on both the credibility finding and the IFA finding; that the Board's decisions are entitled to the highest degree of curial deference and, given the level of deference, the decision should not be disturbed.
[18] The respondent argues that the Board did not find credible the applicant's allegations of a Fatwa or that he was being pursued by his persecutors in eastern Nigeria, and that these allegations were essential elements of the applicant's claim. He was unable to provide any documentation verifying that there is or was a Fatwa issued against him, or verifying that his father was murdered by Muslim extremists.
[19] Following a determination with respect to credibility, the Board concluded that state protection and IFA were reasonable in areas of Nigeria.
Analysis
[20] The analysis of the present matter should begin with an assessment of the Board's decision as it pertained to credibility and subjective fear. This Court noted in RKL v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116, [2003] F.C.J. No. 162, at paras 7-9:
¶ 7 The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
¶ 8 Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
¶ 9 Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms": see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) ("Aguebor"); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (QL) (C.A.); and Kanyai, supra, at para. 10.
[21] For the following reasons, I believe that the Board's decision on credibility and subjective fear was set out in clear and unmistakable terms. Further, the Board reasonably found that the applicant had not availed himself of state protection and that IFA was available. It accepts that the applicant is Nigerian and is an evangelical Christian, but does not accept that the applicant had sufficiently established his identity.
[22] The Board does not deny that there was sectarian violence in Nigeria, specifically in Yelwa, at the time that the applicant alleges his father was murdered and his mother and sister were abducted. However, due to a lack of supporting evidence, the applicant has not proven that there is a Fatwa issued against him. The Board notes that, from the documentary information produced concerning the state of unrest in Yelwa, the trouble is being perpetuated predominantly by Christian militants bringing about Muslim reprisals.
[23] Even if the Board's decision could be suspect as regards credibility and identity, the Board's decision regarding state protection and IFA must be left undisturbed. The applicant did not, at any time, attempt to access the state mechanisms available to him to deal with any of his alleged problems.
[24] On the issue of IFA, the Board notes that the applicant asserts that he has connections in the Church in Abia, as well as a family home.
[25] The test for a valid IFA comes from Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.): (i) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists; and (ii) conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there.
[26] The Board was satisfied on the balance of probabilities that the applicant could settle in Abia, River State, Delta State, or Edo State and I am satisfied that the Board's IFA finding was reasonable.
[27] Given the credibility, identity, state protection and IFA determination in the decision, the application for judicial review is hereby dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
(Sgd.) "P. Rouleau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-813-05
STYLE OF CAUSE: GEORGE CHIGOZLE ASHIEGBU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: September 7, 2005
REASONS FOR ORDER AND ORDER: ROULEAU J.
DATED: September 8, 2005
APPEARANCES:
Mr. Martin Bauer FOR APPLICANT
Ms. Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Martin Bauer FOR APPLICANT
Barrister & Solicitor
Burnaby, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON