IMM-3968-96
B E T W E E N:
SHOLA RASHIDAT ARIGBABU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD, J.:
The applicant seeks to set aside the decision of the Immigration and Refugee Board (the "Board") dated October 4, 1996, wherein the Board determined that the applicant is not a Convention refugee.
The first issue raised by the applicant is whether the Board misstated or misapprehended material evidence properly before it to the extent that the Board committed an error of law. This issue turns around the Board's conclusion that the applicant had fabricated her MOSOP involvement to bolster her claim. The panel noted that there was no mention of MOSOP in her point-of-entry notes, and that the applicant offered no specific explanation regarding this important omission which relates to the very basis of her claim. MOSOP is the Movement for the Survival of the Ogoni People. Her fiance, with whom she lived, was an active member of MOSOP and the record discloses that she claimed that she was involved in its activities.
Although the applicant made reference to the National Conscience Party (NCP) in her port-of-entry notes, she made no reference to MOSOP although she claimed in her PIF that:
| (a) that as a Christian in Kano, she experienced repeated harassments and threats from Muslim fundamentalists who enjoy the complicity of the state; |
| (b) that in June, 1995, she was arrested and detained for three days with nine other members of her church when they attended at the office of the Military Administrator of Kano State to protest the killing of the pastor of their church; she said they were mistreated while detained; |
| (c) that she was involved in political activities to promote the cause of democracy and minority rights in Nigeria; that her fiance was Ogoni and an activist; that she attended meetings of the Movement for the Survival of the Ogoni People ("MOSOP") which were held in her fiance's home; that she began to live with her fiance, Clement Tosima, in December, 1994 and that on September 25, 1995, she was beaten when security agents came to arrest him, prompting her to move back into her parent's home; on October 29, 1995, security agents, looking for Clement Tosima, arrested and detained the Applicant for two days, during which time she was beaten and denied food; that on November 13, 1995 she participated in a demonstration to protest the hanging of nine prominent leaders of MOSOP; that she was arrested by security agents and detained for two days, during which time she was raped by a security agent; |
| (d) that she was released from detention on November 15, 1995 but collapsed as she tried to leave the police station; she regained consciousness in a hospital and was released from the hospital on November 16, 1995; she fled Nigeria, arriving in Canada on November 25, 1995. |
When the RCO drew her attention that there was no mention of MOSOP or of the problems related to her fiance's membership in MOSOP in her point-of-entry notes, she claimed that she explained every thing to the Immigration Officer. The RCO then remarked that none of that information was in the notes. The applicant certified at the time the notes were made that they were true and accurate. Applicant's counsel argued that there was no space for such information on the form and that the Board disregarded her answer to the RCO. However, the applicant did not give a specific explanation as to why there was an omission. She did mention the NCP, but not MOSOP which is central to her claim.
It was open to the Board to reach the conclusion it did concerning her involvement in MOSOP.
The applicant also took issue with the Board's conclusion that there was discrepancy testimony regarding her release from the police station on November 15, 1995. In her oral testimony she claimed that she had been asked to sign a release form by a police officer, but had not done so. No mention of the request to sign a release was made in her PIF. The applicant claimed that her failure to sign the release led to her decision not to return to her home. It is the applicant who made this allegation material to her claim of risk and the Board was entitled to take account of the discrepancy in reaching its conclusion that it was an attempt to bolster her claim.
The second issue raised by the applicant is whether the Board's overall assessment of the totality of the evidence is patently unreasonable.
The Board did not believe that she was actively sought by the police. It was open to the Board to reach this conclusion based on all the evidence before it. The Board found that there was no conclusive evidence to indicate that any specific conditions of release were imposed on her; she left the hospital freely and decided to move in with her friends. There was no persuasive evidence of surveillance or active pursuit against her by the authorities.
The panel also found that the applicant had an internal flight alternative (IFA) and could live safely in southern Nigeria. In reaching this conclusion the Board examined the circumstances particular to the applicant. It considered the applicant's concerns. Its finding in this respect is open to it on the evidence.
Counsel for the applicant submitted that the applicant was a member of a particular social group because she is a victim of rape. In Ward v. Canada (M.E.I.) (1993), 20 Imm. L.R. (2d) 85, the Court found that membership in a particular social group should fall into three categories:
| 1. groups defined by an innate or unchangeable characteristic; |
| 2. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and |
| 3. groups associated by a former voluntary status, unalterable due to its historic permanence. |
On the facts of this case, the applicant does not fall into any of the three enumerated categories.
Accordingly, the application for judicial review is dismissed.
"John D. Richard"
Judge
Toronto, Ontario
May 8, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3968-96
STYLE OF CAUSE: SHOLA RASHIDAT ARIGBABU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: MAY 6, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: RICHARD, J.
DATED: MAY 8, 1997
APPEARANCES:
Mr. Kingsley Jesuorobo
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD:
Kingsley Jesuorobo
65-2300 Finch Avenue West
North York, Ontario
M9M 2Y3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-3968-96
Between:
SHOLA RASHIDAT ARIGBABU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER