Date: 20030619
Docket: IMM-2913-02
Citation: 2003 FCT 761
Ottawa, Ontario, this 19th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
OGUEJIOFOR MARTIN ANUSIONWU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Anusionwu claims to have fled Nigeria after being pursued by a violent cult called the "Black Axe". He arrived in Canada in 2001 and claimed refugee status here. His claim was turned down by a panel of the Immigration and Refugee Board on the grounds that he failed to show that he was unable to obtain the protection of Nigerian authorities.
[2] On the whole, the Board found that Mr. Anusionwu's fear of persecution was genuine and justified. Apparently, there is a widespread and persistent problem with cults in Nigeria, particularly on university campuses. Cultists often target persons who speak out against them, which Mr. Anusionwu claims to have done. He says that his house was attacked and burgled. The perpetrators left behind a threatening note. Mr. Anusionwu sought the assistance of police, who said they would investigate the matter. The house was attacked again and another threatening note was delivered. The author of the note seemed to have been aware that Mr. Anusionwu had visited the police, and warned him that the police could not protect him.
[3] Mr. Anusionwu then went to his parents' village. He says that the cultists followed him there and beat his mother. Mr. Anusionwu once again visited the police. This time, he was told that it would be impossible for them to protect him. It was then that he decided to flee Nigeria.
I. Issue
[4] There is only one issue in this case - whether the Board made a serious error in its conclusion that state protection was reasonably available to Mr. Anusionwu in Nigeria.
A. The Test for State Protection
[5] The issue of state protection is inherent in the definition of a refugee.
[6] A refugee is a person who:
. has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion;
. is outside the country of his or her nationality; and
. is unable or, because of the fear, is unwilling to obtain the protection of that country.
(Immigration Act, R.S.C. 1985, c. I-2, s. 2(1); Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96.) (Emphasis added.)
[7] The issue of state protection usually arises when a person claims to have been persecuted by non-state agents. In this context, the question is whether the refugee claimant can show that he or she has been unable to secure the protection of the state by tendering proof of reasonable efforts to obtain that protection.
[8] Generally speaking, a refugee claimant must offer "clear and convincing" evidence that state protection is unavailable (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). That onus is relaxed where there has been a "complete breakdown of state apparatus", because state protection is obviously unavailable in such a situation (Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (QL) (C.A.)). However, at the other end of the spectrum, where the state has functioning democratic institutions, the burden of proof on the refugee claimant may be quite onerous: "the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her" (N.K. v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (QL) (C.A.)). In other words, a refugee claim may fail where there is reliable evidence of the existence of state protection of which the claimant did not take sufficient advantage or which the claimant simply did not try hard enough to secure.
[9] It is important to look at the circumstances of the state as a whole. After all, the broad question, in light of the overall purpose of the refugee protection system, is whether people arriving from elsewhere require the protection of Canada because their home state has failed to protect them. Accordingly, failure of the police in one locality of the foreign state does not necessarily prove failure of the state as a whole to provide protection (Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 507 (QL) (T.D.); N.K., above).
B. Application of the Test to Mr. Anusionwu
[10] The Board concluded that Mr. Anusionwu had failed to provide clear and convincing evidence that he was unable to obtain state protection in Nigeria. It reviewed documentary evidence showing that Nigeria was making serious efforts to improve law enforcement generally, and was taking specific measures meant to address the problem of cult violence. It found that some of those measures were effective. It also noted that there is a mechanism for seeking the intervention of more senior police officials if one does not obtain a satisfactory response to a request for help at the first level. It concluded that there was adequate state protection in Nigeria for persons in Mr. Anusionwu's situation, and denied his claim.
[11] The Board did not dispute Mr. Anusionwu's version of events. Indeed, it found that his evidence was credible and trustworthy, and that the problem with cults was well-documented. Nor did the Board dispute Mr. Anusionwu's claim that he had tried and failed to secure the assistance of police.
[12] The question, then, is whether the Board made a serious error in arriving at its conclusion that adequate state protection was available to Mr. Anusionwu, notwithstanding his failed attempt to obtain such protection.
[13] Counsel for Mr. Anusionwu argued that the Board applied the wrong legal test in arriving at its conclusion. He suggested that the test in Villafranca which makes reference to the situation of a "complete breakdown of state apparatus" was impliedly overruled by the Supreme Court of Canada in Ward in which there is no reference to such a test. It is clear to me that the holding in Villafranca is readily reconcilable with the approach of the Supreme Court of Canada in Ward and that the Board committed no error in referring to Villafranca in its reasons. In any case, it cited Villafranca for a different proposition entirely - that no government can guarantee the protection of all of its citizens at all times.
[14] Counsel also led me through portions of the documentary record in an effort to demonstrate that the Board had made a serious error in concluding that adequate state protection was available in Nigeria. He referred to a research document setting out the opinion of one expert who said that "government authorities are unable to protect students" from cults. Further, he referred to another document containing an expert's opinion that the Nigerian police are generally "ineffective and inefficient". Another expert said that sometimes the police "might not be able to do much."
[15] For his part, counsel for the Minister cited documentary evidence that was before the Board indicating the many serious measures that are being taken in Nigeria to curb cult activity and improve policing. The Board, after noting the pervasive problem of cults in Nigeria, referred extensively to this evidence.
[16] Having reviewed the record carefully, I find that the Board's treatment of the evidence was fair. Mr. Anusionwu did try to obtain the assistance of the Nigerian police and, on one occasion and in one locality, was told that protection was not available. Still, the Board's overall conclusion that the state of Nigeria was capable of providing protection was not inconsistent with the evidence before it.
[17] In effect, Mr. Anusionwu disputes the emphasis that the Board gave to certain evidence. However, this is not a sufficient basis for the Court's intervention. I can find no error in the Board's application of the legal test for state protection or its assessment of the evidence before it. Accordingly, I must dismiss this application for judicial review. No question of general importance was proposed for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-2913-02
STYLE OF CAUSE: OGUEJIOFOR MARTIN ANUSIONWU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 29, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: THURSDAY, JUNE 19, 2003
APPEARANCES BY:
Mr. Kingsley Jesuorobo FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Kingsley Jesuorobo
Barrister and Solicitor
968 Wilson Ave., 3rd Floor
North York, Ontario M3K 1E7 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT