Alli v. Canada (Minister of Citizenship and Immigration)

Between
Lukman Alli, applicant, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 621
2002 FCT 479
Court File No. IMM-1984-01

Federal Court of Canada - Trial Division
Toronto, Ontario
O'Keefe J.

Heard: January 30, 2002.
Judgment: April 26, 2002.
(24 paras.)

       Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution — Grounds, religion — "Particular social group" defined — Persecution, protection of country of nationality — Appeals or judicial review — Referral to board where decision quashed.

       Application by Alli for judicial review of decision of Immigration and Refugee Board that he was not a Convention refugee.  Alli was a member of a social group which carried on ritual murders to appease the gods in Nigeria.  He was in line to be the next chief which led the rituals.  He refused because he did not want to become involved with ritual violence and had converted to a religion which rejected it. The police took him to the local king who threatened him with death.  He went into hiding and fled to Canada.  He claimed refugee status on grounds of a well-founded fear that the local king and members of the group would use government influence to force him to become chief or kill him if he refused.  The evidence showed that the police did not guarantee protection from ritual violence but investigated and prosecuted it.  The Board accepted the evidence that the police did not guarantee protection, but dismissed Alli's application on grounds of availability of state protection since the police investigated and prosecuted ritual violence. Alli applied for judicial review on the ground that the Board erred in finding state protection was available because the police did not offer guarantees of protection.

       HELD:  Application allowed.  The Court set aside the Board's decision and referred the claim to a different panel. The Board erred in finding that state protection was available, as it accepted the evidence that the police did not offer protection and the police had taken Alli to the local king.

Counsel:

Bola Adetunji, for the applicant.
Stephen Jarvis, for the respondent.

REASONS FOR ORDER AND ORDER

1      O'KEEFE J.:—  This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated March 27, 2001 wherein the Board determined that Lukman Alli  was not a Convention refugee.

2      The applicant seeks one of the following orders:

1.                an order setting aside the decision of the Board, and direction to the Board to declare the applicant a Convention refugee;                                                                                                  

2.                an order setting aside the decision of the Board, and remitting the matter back to the Board for a new hearing of the same evidence by the Board for a determination not inconsistent with the reasons of the Court; or,        

3.                an order setting aside the decision of the Board, remitting the matter back to the Board for a new hearing before a differently constituted panel.                                                                                    

Background

3      The applicant is a citizen of Nigeria. The applicant claims Convention refugee status on the basis of his religion and membership in a particular social group, namely persons who are forced to participate in ritual murders and harmful practices.

4      The applicant is from Lagos where his grandfather and father have carried on the family tradition of being the Chief Oluwo Apeno. The Oluwo Apeno organizes various traditional practices and rituals, including sacrifices.  The applicant states that he was expected to assume his father's position. The applicant did not want to be an Apena because some of the rituals involve human sacrifices and the use of human blood as offerings. This refusal led to the applicant being disowned from his family and his conversion to Christianity.

5      Upon his father's death, the applicant's participation was required to perform the burial rituals. The applicant refused to participate because he did not want to participate in the rituals that would be performed and he feared that he would be compelled to become the next Oluwo Apena.

6      In 1998, there was heavy flooding in Lagos, which was attributed by some to spiritual causes. The State Governor contacted the local King to have rituals performed to appease the Gods.  At the request of the local King, the applicant was brought to the King's palace. Upon discussion with the local King, the applicant consented to his father's burial, but continued to refuse to become the new Oluwo Apena. A new person was subsequently appointed as the Oluwo Apena; however, the floods continued and the view was that the Gods were not accepting the new Oluwo Apena's sacrifices.

7      The local King summoned the applicant in January, 2000 and again asked the applicant to become the Oluwo Apena. The local King informed the applicant that the other Apenas would kill him if he did not agree. The applicant was told that the other Apenas believed that they could acquire the blessing of the Gods if they used the applicant's blood for further sacrifices. The applicant ran away, went into hiding, and left Nigeria for Canada.

8      The applicant made a Convention refugee claim based on his fear that the local King and other Apenas would use government influence to force him into becoming Oluwo Apena.  The applicant feared that if he continued to refuse, the Apenas will kill him to perform the necessary ritual sacrifices.

9      The Board determined that the applicant was not a Convention Refugee because of the availability of state protection.  The Board found that there was not a serious possibility that the applicant would be persecuted if he were to return to Nigeria.  The Board stated its principal finding as follows:

         Even if the panel were to find that a nexus has been established, and to find the claimant's story credible, it would find that adequate state protection would be available to the claimant.                               

10      The Board based its decision on the availability of state protection.

11      The applicant brings a judicial review of that decision.

Applicant's Submission

12      First, the applicant submits that the Board erred in making an adverse credibility finding with respect to the applicant's testimony.  These errors occurred because the Board failed to make a credibility finding in clear and unmistakable terms as per Ahmed v. M.C.I., 2001 FCT 237, [2001] F.C.J. No. 433 (QL).

13      Second, the applicant submits that the Board erred in its finding that there was no nexus between the applicant's situation and one of the Convention Refugee grounds.  The applicant states that the issue of the availability of state protection can only be determined after a finding that a nexus exists (Ahmed v. M.C.I., [2000] F.C.J. No. 651 (F.C.T.D.)). The Board erred in failing to address this primary issue and attempted to circumvent this analysis by only assessing the availability of state protection.

14      The applicant submits that the Board erred in its findings of fact regarding availability of state protection. The Board made perverse use of the documentary evidence regarding state protection.  The Board noted that people who fear ritual violence and contact the police "do not often get guarantees of protection from the police".  However, the Board subsequently concluded that the applicant could get state protection from the police. The applicant submits that the Board also misconstrued evidence of police complicity, and ignored evidence of the staggering number of ritual violence cases in Nigeria.

15      Finally, the applicant submits that the Board erred in failing to afford the applicant an opportunity to rebut its findings on the issue of state protection.

Respondent's Submissions

16      The respondent submits that the Board made a positive provisional finding regarding credibility and nexus. Consequently, the applicant's submissions on these issues are the result of a misapprehension and are not relevant.

17      The respondent submits that the Board's findings of fact regarding availability of state protection were not patently unreasonable.  The Board properly exercised its duty to consider the evidence before it and properly exercised its decision-making power to afford more weight to certain aspects of the evidence than others.

Issues

18

1.                Did the Board err in law by failing to address credibility in "clear and unmistakable terms"? 

2.                Did the Board err in law by failing to address whether or not there was a nexus between the applicant's situation and a Convention refugee ground?                                                                             

3.                Did the Board err in its findings of fact regarding the availability of state protection?

4.                Did the Board breach its duty of procedural fairness by failing to afford the applicant the opportunity to rebut its findings regarding state protection?                                                                            

Analysis and Decision

19      I propose to first deal with Issue 3.

       Did the Board err in its findings of fact regarding the availability of state protection?

       As submitted by the respondent, the standard of review for findings of fact is patent unreasonableness.  The Board's discussion on the issue of state protection reads as follows:

         The documentary evidence shows that there is a democratic civilian government in Nigeria, following the transition from military rule in June 1998.  Citizens had the right to exercise their right to change their government.  A national police force, which reports to the civilian government, is tasked with law enforcement.  The Constitution provides citizens with the right to assemble freely and the civilian government generally respect this right.  There is a large and vibrant domestic press that is frequently critical of the government.

         The documentary evidence also states that there are several occasions of published stories alleging that ritual violence, including ritual murders, are on the increase in Nigeria, individuals often do not make reports to the police for fear of reprisal from "gangsters," and those who are bold enough to file cases with the security agencies do not often get guarantees of protection from the police.  As well, people remain wary of the police, who are considered corrupt, inefficient and unreliable.  However, the panel finds that it would be reasonable for the claimant to seek police protection in view of the fact that he fears being killed by the local priests for his refusal to be an OA.  Furthermore, notwithstanding the claimant's stated fear of the police, it is clear that he fears that they may bring him back to the local King, and not that they would harm him directly.  The documentary evidence shows that the police do investigate and prosecute incidents of ritual violence.  Furthermore, the heads of several Nigerian human rights organizations cite improvements in the criminal justice system and state that victims of cult violence can pursue their complaint further up the police hierarchy if they are rebuffed initially.  Mr. Nimi Walson-Jack, founder of the Centre for Responsive Politics, a human rights and civic education organization, states that "many Nigerians have a feeling of distrust toward the police.  It is believed that the police is nobody's friend; that cases are compromised due to bribery and corruption."  However, "on the whole, the police system works" and "even the majority of the police are now trying to do their job.  Now you know that you don't just obey orders.  The orders must conform to what the law says."  Mr. Clement Nwankwo, executive director of the Constitutional Project, a group that promotes human rights and provides legal assistance to victims of human rights abuses, states that there is no longer an oppressive environment in contemporary Nigeria and there is no longer a culture of impunity.  Both Mr. Walson-Jack and Mr. Nwankwo are of the opinion that if an individual approaches a particular level of police and suspects that they have been induced to bury the complaint, he or she could take the complaint to a different level.  Mr. Walson-Jack goes on to state that cult-based cases can be pursued through the courts.

         The panel prefers the above-mentioned documentary evidence to the claimant's stated fears of being killed by the local priests and not being able to obtain protection from the police.  The documentary evidence is current and the sources are heads of established human rights organizations that do not have an interest in this claim.  The panel notes that there is no evidence that the claimant ever approached the police for protection. The claimant has failed to provide clear and convincing evidence of the state's inability to protect him.                                                            

20      The applicant submitted that the Board's reasons contain an inherent contradiction.  On the one hand, the Board accepts the documentary evidence that there are not guarantees of protection from the police, yet it finds that the applicant should have sought police protection.  The Board found as a fact that the police do investigate and prosecute incidents of ritual violence.  This is different from the police offering protection to persons such as the applicant.  By way of example, it would be of little comfort to the applicant to have his murder investigated and the perpetrators prosecuted. The applicant requires state protection and this is different than police investigation and prosecution.  I am satisfied from the Board's findings that it made a reviewable error with respect to the facts surrounding state protection as the documentary evidence also shows that state protection is not available from the police.  These facts are supported by the applicant's testimony in that the police took the applicant to the King.

21      Because of my finding with respect to Issue 3, it is not necessary that I deal with the remaining issues.

22      The application for judicial review is allowed and the matter is submitted to a different panel for redetermination.

23      Neither party wished to submit a serious question of general importance for certification.

ORDER

24      IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel for redetermination.

O'KEEFE J.