Federal Court Decisions

Date: 20070531

Docket: IMM-3634-06

Citation: 2007 FC 579

Vancouver, British Columbia, May 31, 2007

PRESENT:     THE CHIEF JUSTICE

BETWEEN:

ISRAEL AYODEJIOYELAMI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

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

__________________

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.

"Allan Lutfy"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-3634-06

STYLE OF CAUSE:                          ISRAEL AYODEJIOYELAMI v. THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, ON

DATE OF HEARING:                      May  2, 2007

REASONS FOR ORDER                 LUTFY C.J.

AND ORDER BY:

DATED:                                             May 31, 2007

APPEARANCES:

SOLICITORS OF RECORD: