Federal Court Decisions

Date: 20050125

Docket: IMM-6788-03

Citation: 2005 FC 120

Toronto, Ontario, January 25^th, 2005

Present:           The Honourable Mr. Justice John A. O'Keefe

BETWEEN:                           

                                                            OSARETIN OSAGIE

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an Application for Judicial Review of a decision of a Citizenship and Immigration Canada counsellor (the "officer") dated August 14, 2003 whereby the officer denied the applicant's Humanitarian and Compassionate ("H & C") application.

Background

[2]                The applicant is a citizen of Nigeria who arrived in Canada on April 13, 1988, having left Nigeria on April 12, 1998.

[3]                The applicant was a member of the Nigerian Army from January 1985 until March 1998 when he ran away or deserted the army. Following training, he was assigned to the Finance Corp Base in Lagos.

[4]                The same military complex that housed the Finance Corp Base was shared with the units of the Intelligence Corp and the Military Police. The areas of the complex occupied by the three groups were separate and discrete and separated by fences, but the members of the three units shared common barracks.

[5]                The applicant graduated from the Nigerian Army School of Finance and Administration and after graduation, he worked in the Army as a librarian and assistant lecturer.

[6]                Before the Convention Refugee Determination Division ("CRDD"), the applicant testified that he had privately expressed concerns about human rights abuses committed by the Nigerian military.

[7]                In December 1997, the military government announced that some persons within the military had been planning to violently overthrow the government. In February, two of the applicant's friends and colleagues were arrested in connection with the alleged coup plot. The applicant was temporarily relieved of his duties and was told to report daily to his superior's office. The applicant fled into hiding on March 2, 1998.

[8]                The applicant states that he was not involved in the alleged coup.

[9]                The applicant carried out guard duties while in the army, but he never performed guard duties in areas, or with groups, that were responsible for torturing or any other human rights abuses.

[10]            The applicant made a refugee claim which was rejected on June 2, 1999, primarily because he was excluded from the definition of Convention refugee pursuant to article 1(F)(a) of the Geneva Convention, being a person who was complicit in crimes against humanity. The Board also assessed the applicant's evidence concerning his military identity card.

[11]            The applicant's judicial review of his failed refugee claim was dismissed on July 13, 2000.

[12]            Neither Mr. Justice Muldoon, who granted leave in the judicial review application, nor Mr. Justice Gibson who denied the application, found the applicant to have committed any specific human rights violation.

[13]            On November 20, 2000, a post-claim determination officer rendered a negative risk opinion under the former Immigration Act, R.S.C. 1985, c. I-2.

[14]            The applicant met his present wife, Angela Yvonne Grant, in February 1999 and they have lived together since April 1999. The applicant and Ms. Grant were married on May 8, 2000.

[15]            The applicant's wife has a son (the applicant's stepson) from a previous marriage and she is a permanent resident of Canada.

[16]            The applicant's stepson, Orlando Grant, is a twenty-two year old student who is dependent on the applicant for financial assistance and who is also a permanent resident of Canada.

[17]            The applicant's stepson stated that he has a father-son relationship with his stepfather and that he lives with his mother and stepfather.

[18]            The applicant's stepson stated that without the applicant's financial assistance, it would be impossible for him to continue with his education.

[19]            The applicant is also considered a mentor by his stepson and according to Ms. Grant, the applicant has had a very positive effect on her son.

[20]            The applicant's wife works at two jobs and she stated that she could not continue to work at that pace for much longer.

Relevant Statutory Provisions

[21]            The relevant subsection of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") state:

[22]            Subsection 25(1) of IRPA provides for an exemption of this requirement on H & C grounds as follows:

Issues

[23]            The applicant, in his leave application, stated the issues as follows:

Issue A: Did the respondent err by relying solely upon the June 1999 findings of the IRB with respect to inadmissibility, and failing to consider the applicant's new evidence and submissions in this respect?

Issue B: Did the respondent err by relying solely upon the November 2000 findings of the PCDO with respect to risk, and failing to consider the applicant's new evidence and submissions in this respect?

Issue C: Did the respondent err in making unreasonable findings with respect to the harm faced by the applicant and his Canadian family should he be removed from Canada?

Issue D: If the Court holds that there is no serious issue (or, if leave is granted, that the findings are not reviewable) with respect to the findings of undue hardship, does that render the inadmissibility issue moot?

[24]            For the purpose of this decision, I would restate the issue as: Did the officer make a reviewable error in dismissing the applicant's H & C application?

Analysis and Decision

[25]            The applicant submitted that the officer erred in failing to consider the new evidence that was submitted after the CRDD decision and after the risk assessment. This new evidence included evidence concerning deserters, the military card, the sentence for desertion and prison conditions, as well as evidence with respect to the support of his family.

[26]            The respondent submitted that the officer considered all of the evidence, and what the applicant really wants is a reweighing of the evidence. The respondent also submitted that by virtue of section 15 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 the officer was bound by the exclusion finding. Section 15 of the Regulations reads:

15. For the purpose of determining whether a foreign national or permanent resident is inadmissible under paragraph 35(1)(a) of the Act, if any of the following decisions or the following determination has been rendered, the findings of fact set out in that decision or determination shall be considered as conclusive findings of fact: (a) a decision concerning the foreign national or permanent resident that is made by any international criminal tribunal that is established by resolution of the Security Council of the United Nations, or the International Criminal Court as defined in the Crimes Against Humanity and War Crimes Act;

15. Les décisions ci-après ont, quant aux faits, force de chose jugée pour le constat de l'interdiction de territoire d'un étranger ou d'un résident permanent au titre de l'alinéa 35(1)a) de la Loi: a) toute décision rendue à l'égard de l'intéressé par tout tribunal pénal international établi par résolution du Conseil de sécurité des Nations Unies ou par la Cour pénale internationale au sens de la Loi sur les crimes contre l'humanité et les crimes de guerre;

[27]            Dealing firstly with the evidence about desertion and the military identification card, the CRDD, when dealing with inclusion, found the applicant not to be a deserter primarily because he took his military identification card with him when he left Nigeria. The Board reasoned that if he was truly fleeing the military, he would not risk leaving Nigeria with his military identification card which could have been found while exiting Nigeria at the airport in Lagos. The officer adopted the Board's decision.

[28]            Before the officer, there was, however, new evidence from the applicant that he hid the card in his sock and wanted to have it to prove his identity in Canada. He also stated that because of the type of search done when leaving Nigeria, there was no danger of the card being discovered. The applicant also stated that if one voluntarily leaves the armed forces in Nigeria, you must turn in your military card. He stated that the fact he still has the card supports his claim that he deserted the armed forces. The officer did not consider this evidence.

[29]            The applicant gave new evidence that the sentence for deserting the armed forces was two years in prison and that prison conditions in Nigeria are not good. That evidence included the following from paragraph 25 of the applicant's affidavit (tribunal record page 106):

Police routinely do not adhere to safeguards, and suspects are held incommunicado for long periods without charge (at paragraph 5.12);

Prison conditions are poor, in particular the lack of clean drinking water, insanitary [sic] conditions and overcrowding (at paragraph 5.23);

Medical treatment is often unavailable in prisons and in some prisons inmates are rarely allowed out of their cells (at paragraph 5.24);

Many prisoners have to provide their own food (at paragraph 5.24);

Prison officials are reported to have denied prisoners access to medical facilities as a punishment or to extort money from them (at paragraph 5.24);

There are many deaths in custody because of the conditions or denial of medical treatment (at paragraph 5.24);

The United States Department of State describes prison conditions as "harsh and life-threatening" and has reported the death of at least one inmate a day in Kiri Kiri Prison in Lagos during 1999 (at paragraph 5.24); and

Reports of torture of detainees are widespread (at paragraph 5.25).

And at paragraphs 26 to 28 of the same affidavit (tribunal record pages 106 to 107):

26.            Another document my counsel has provided, for my review is the Human Rights Watch World Report 2001, with respect to Nigeria. A copy of the said document is attached hereto as Exhibit D. In summary, with respect to prison conditions in Nigeria, the report indicates, at page 1 thereof, that prison conditions remain "life-threatening". The report further backs up my understanding that I could end up waiting longer in prison for trial than the actual sentence itself, thus increasing my potential sentence and undue hardship as the document states that in July 2000 "pre-trial detainees represented over 70% of the prison population" (at pages 1-2 of the Report).

27.            In summary, the documentary evidence set out above confirms my understanding that prison conditions hae not improved, to any significant degree, since I left Nigeria in 1998. Therefore, the potential of being incarcerated in a Nigerian prison, resulting from a prosecution for desertion is absolutely unbearable. In fact, my counsel, Mr. Shulman has provided me with a statement made by the then Minister of Health for Nigeria, Professor Debo Adeyemi, in 1998, with respect to prison conditions in Nigeria. A copy of Mr. Adeyemi's remarks are attached hereto as Exhibit "E". In part, at page 1 of the document Mr. Adeyemi stated:

Imprisonment in Nigeria by the very conditions of the prisons and cells is, in itself, a kind of torture whether or not the inmates are subjected to any real form of physical torture . . .

. . . In Nigeria due to the prevailing economic situation, prisons are generally inadequately resourced and the conditions therein, to say the least are terrible. Majority of the inmates live in precarious condition of health, amidst very serious and life-threatening diseases such as tuberculosis, AIDS, skin infections, kidney and heart diseases, etc.

28.            Based on the updated documentation my counsel has provided to me, I do not believe that the situation Mr. Adeyemi described in 1998 has changed in any significant manner.

[30]            This evidence was not before the Post-Claim Determination Officer ("PCDO"), but was before the H & C officer who accepted the PCDO's assessment. The evidence was not considered by the H & C officer.

[31]            There was evidence with respect to family considerations concerning the stepson's education. The applicant's wife testified in her affidavit at paragraphs 13, 14, 15 and 21 as follows:

13.            I work two jobs. I work an evening shift, 44 hours per week as a security guard at Canada Immigration's detention facility at the Celebrity Inn in Toronto, Ontario. I also work during the daytime as a personal support worker for elderly persons.

14.            My husband works as a machine operator earning approximately $35,000.00 per year.

15.            We each contribute to a joint bank account with the Scotia Bank which we use for expenses. My husband has greater earning potential than I do. However, I am currently working two jobs out of fear that my husband's request to remain in Canada will not be granted. I cannot continue at this pace much longer and can, for the long term, only hold one full time job. Thus, ultimately, I see my husband as the primary economic provider in our household.

21.            I am also afraid that if my husband cannot remain in Canada, and gain permanent residence, I would not be able to manage financially and my son would have to abandon his studies to help support the household and my husband back home.

[32]            There was also the evidence of the applicant's stepson, Orlando Grant. At paragraph 9 of his affidavit, he states (tribunal record page 101):

In summary, if Osaretin does not obtain permanent residence in Canada I believe that it will be financially impossible for me to continue with my studies as the cost of books and other supplies, in addition to tuition, are prohibitive. In addition, Osaretin plays an irreplaceable role in supporting my mother and me financially in terms of everyday expenses.

This particular evidence was not addressed in the officer's decision.

[33]            In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.), Evans J. (as he then was) stated at paragraph 17, concerning evidence not specifically mentioned and analyzed:

However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

[34]            I am of the opinion that the officer's failure to address those specific pieces of evidence in her decision amounts to a reviewable error. I have no way of knowing how a consideration of this evidence might have changed the officer's decision to deny the H & C application. In my view, on the facts of this case, it was not sufficient for the officer to say that she considered all of the evidence without further reference to those specific pieces of evidence.

[35]            The applicant argued that the officer stating, "I have weighed all the evidence. I find that the 1 F(a) factor is a very strong factor and outweighed all others" without giving any reasons for this conclusion is an error because the reasons are deficient. I need not decide this issue.

[36]            The application for judicial review is therefore allowed and the matter is referred back to a different officer for re-determination.

[37]            Neither party wished to submit a serious question of general importance for my consideration for certification.                

                                               ORDER

THIS COURT ORDERS that the Application for Judicial Review is allowed and the matter is referred back to a different officer for re-determination.

                                                                                                                "John A. O'Keefe"

                                                                                                    J.F.C                        

                                     FEDERAL COURT

                                                     

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-6788-03

STYLE OF CAUSE:               OSARETIN OSAGIE

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                     

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       September 21, 2004

REASONS FOR ORDER

AND ORDER BY:                             O'KEEFE J.

DATED:                                              January 25, 2005

APPEARANCES:

Ronald Poulton                          FOR APPLICANT

Robert Bafaro

Matina Karvellas                                   FOR RESPONDENT

SOLICITORS OF RECORD:

Mamann & Associates

Toronto, Ontario                                   FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada FOR RESPONDENT

FEDERAL COURT

       Date: 20050125

         Docket: IMM-6788-03

BETWEEN:

OSARETIN OSAGIE

                                            Applicant

                           and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                        Respondent

                                                 

REASONS FOR ORDER

AND ORDER