JAY AIZEY OZO Applicant - v. -, 2003 FCT 400

Date: 20030403 Docket: IMM-1809-02 Neutral citation: 2003 FCT 400 Toronto, Ontario, Thursday, the 3 rd day of April, 2003 PRESENT: The Honourable Madam Justice Snider BETWEEN: JAY AIZEY OZO Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] 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 15, 2002, wherein Mr. Jay Aizey Ozo (the "Applicant") was found not to be a Convention refugee. The Applicant seeks judicial review of that decision.

Background [ 2 ] The Applicant is a citizen of Nigeria who alleges a well-founded fear of persecution at the hands of Nigerian authorities based on his perceived political opinion and membership in a particular social group, namely pro-environmental activists. [ 3 ] According to his Personal Information Form ("PIF") narrative, the Applicant was arrested on January 12, 1999 in the town of Warri in Delta State, while visiting his girlfriend. The Applicant's girlfriend and her brothers were involved in protests against the government and oil companies regrading the exploitation of the people by those companies.

The military stormed the Applicant's girlfriend's house and arrested the Applicant and his girlfriend's cousin; his girlfriend and her brothers were not at home at the time of the raid. The Applicant was detained at Warri prison and was physically, sexually and mentally abused. The Applicant claims that, under duress, he signed a false confession to the effect that he was involved in the demonstration and destroyed property belonging to the oil companies and the government. [ 4 ] In August 1999, the Applicant escaped from detention with the assistance of a guard who was bribed.

He went into hiding until he left Nigeria in September 1999. He arrived in Canada on September 21, 1999 and claimed Convention refugee status. The Board's Decision [ 5 ] After considering all of the evidence, the Board found that the Applicant's story was not credible.

In making this finding, the Board referred to the documentary evidence which indicated that although excessive, and sometimes deadly, force was used by security forces in the Delta area, this occurred in situations where the security forces were dealing with criminal activities; there were no reports of such excesses occurring in political situations or that peaceful political activists like the Applicant's girlfriend were being targeted by the authorities for apprehension or detention.

Although the documentary evidence indicated that suspects are detained in order to entice family members to surrender to the authorities, the Board found that the practice of placing relatives and friends of wanted suspects in detention without criminal charge occurred in the context of criminal activity and the apprehension of criminal suspects. There was no evidence that the Applicant's girlfriend was participating in criminal activities.

In addition, the documentary evidence showed that the type of arbitrary arrest and detention described by the Applicant occurred much less frequently and that there were no reports of arrests of members of pro-democracy movements or other political activists or of torture of political dissidents. [ 6 ] As a result of its finding that the Applicant was probably not arrested and detained, the Board did not believe the Applicant's evidence that he was mistreated in prison over the course of his seven month detention.

The Board concluded that there was not a serious possibility that the Applicant would be persecuted if he returned to Nigeria. Issues [ 7 ] The Applicant raises the following issues: 1. Was the Board's overall assessment of the evidence patently unreasonable, perverse and capricious? 2. Did the Board commit errors of law on the following grounds:

i) rejecting the Applicant's credibility on the basis of its flawed plausibility assessment alone; ii) misapprehending, misstating and misinterpreting the documentary evidence on the record; iii) making findings based on unfounded and unwarranted speculation and contrary to the evidence presented before it. All of these issues and the submissions of the Applicant relate to the Board's use of the documentary evidence in its adverse credibility finding.

Analysis [ 8 ] I am of the view that this application for judicial review should be dismissed for the following reasons. [ 9 ] In the Applicant's submission, since the Board based its adverse credibility finding on apparent conflicts between the Applicant's testimony and the documentary evidence, the Board was in no better position than this Court to weigh the evidence. The Applicant submits that the Board erred by concluding that, according to the documentary evidence, only those engaged in "criminal activities" were targeted.

In short, the totality of the documentary evidence was clearly contrary to the conclusions of the Board. Since the Board's decision was not based on the totality of the evidence on the record, the Board committed an error of law and its decision should be overturned ( Bains v. Canada (Minister of Employment and Immigration) , [1993] F.C.J. No. 497 (T.D.) (QL) ; Osman v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 322 (C.A.) (QL) ; Tang v. Canada (Secretary of State) , [1994] F.C.J. No. 837 (T.D.) (QL) ; Chaudri v. Canada (Minister of Employment and Immigration) , [1986] F.C.J.

No. 363 (C.A.) (QL) ). Even if the Board did interpret the evidence correctly, it committed an error of law by failing to understand that the actions of the Nigerian authorities suggest that they perceived the activities of the Applicant's girlfriend as criminal. [ 10 ] The parties agreed that the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact ( Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J.

No. 732 (C.A.) (Q.L.) ; Singh v. Canada (Minister of Employment and Immigration) , [1986] F.C.J. No. 514 (C.A.) (QL) ; Muhammed v. Canada (Minister of Employment and Immigration) , [1993] F.C.J. No. 815 (T.D.) (QL) ). [ 11 ] Although this Court may be equally well-placed to assess the plausibility of the Applicant's claim in light of the documentary evidence, it is not the role of the Court to re-weigh the evidence before the Board and the burden is still on the Applicant to show that the Board's inferences could not have reasonably been drawn ( Aguebor, supra ).

Even if this Court would have reached a different conclusion based on the evidence, the Board's decision should not be overturned unless it was perverse, capricious or made without regard to the evidence before it ( Oduro v. Canada (Minister of Employment and Immigration) , [1993] F.C.J. No. 560 (T.D.) (QL) ; Tao v. Canada (Minister of Employment and Immigration) , [1993] F.C.J. No. 622 (T.D.) (QL) ; Grewal v. Canada (Minister of Employment and Immigration) , [1983] F.C.J.

No. 129 (C.A.) (Q.L.) ; Muhammed, supra ). [ 12 ] The Board was entitled to decide adversely with respect to the Applicant's credibility on the basis of inconsistencies and contradictions between the Applicant's story and the documentary evidence before the Board and based on the implausibility of the Applicant's testimony ( Aguebor, supra ; Leung v. Canada (Minister of Employment and Immigration) , [1990] F.C.J. No. 908 (C.A.) (Q.L.) ; Alizadeh v. Canada (Minister of Employment and Immigration) , [1993] F.C.J.

No. 11 (C.A.) (Q.L.) ). [ 13 ] When read in its entirety, the documentary evidence does not support the Applicant's claim that peaceful protesters, such as the Applicant's girlfriend, are targeted by security forces for apprehension or detention. Rather, the documentary evidence shows that, generally, security forces targeted those engaged in criminal activity or violent, disruptive protests.

For example, the United States Department of State Country Reports on Human Rights Practices (2001) states that the Nigerian Government did not use lethal force to repress nonviolent, purely political activities and, further, that "excessive and sometimes deadly force" was used against suspected oil pipeline vandals, and "in the suppression of civil unrest, property vandalization, and interethnic violence, primarily in the oil and gas regions of the Delta states and in eastern Benue State". [ 14 ] While some of the documentary evidence referred to by the Applicant indicates that protesters have been indiscriminately or arbitrarily detained or subjected to lethal force and that security forces do target those who oppose the resumption of oil production, these documents do not indicate that those forces raided peoples' homes in search of protesters. [ 15 ] There was no evidence before the Board that the Applicant's girlfriend was involved in violent or disruptive protests, criminal activities or vandalism.

As a result, it was reasonably open to the Board to conclude, based on the documentary evidence before it, that a peaceful protester like the Applicant's girlfriend would not be targeted by security forces for apprehension and detention. Moreover, in reaching this conclusion, the Board did not ignore the documentary evidence on the issue of excessive force by Nigerian security forces.

Rather, the Board recognized that there were reports of the use of excessive, and sometimes deadly, force by the security forces, particularly in the Delta area, but that these excesses occurred in situations where the security forces were dealing with criminal activities and civil unrest, rather than peaceful protests by political activists like the Applicant's girlfriend.

peaceful protests by political activists like the Applicant's girlfriend. [ 16 ] Furthermore, a review of the documentary evidence did not reveal anything to support the Applicant's contention that friends and relatives of peaceful protesters were arrested and detained by Nigerian security forces.

Given that it was reasonably open to the Board to conclude that peaceful protesters were not targeted by security forces, it was not patently unreasonably for the Board to conclude that, as a result, family members and friends of those peaceful protesters were not targeted by security forces for apprehension and detention. [ 17 ] As a result, the Board reasonably found that the Applicant's suggestion that peaceful environmental protesters are targeted by security forces and their relations are also targeted for apprehension and detention has no support or precedence in the documentary evidence and was implausible.

As a result of the inconsistencies between the Applicant's testimony and the documentary evidence, the Board had valid reasons to doubt the truthfulness of that evidence ( Maldonado v. Minister of Employment and Immigration , 1979 CanLII 4098 (FCA) , [1980] 2 F.C. 302 (C.A.)) and did not err by rejecting his Convention refugee claim on that basis. Accordingly, I would dismiss this application for judicial review. [ 18 ] Neither party proposed a question for certification. None will be certified. ORDER This application for judicial review is dismissed. "Judith A. Snider" J.F.C.C.

FEDERAL COURT OF CANADA TRIAL DIVISION Names of Counsel and Solicitors of Record DOCKET: IMM-1809-02 STYLE OF CAUSE: JAY AIZEY OZO Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: THURSDAY, APRIL 3, 2003 REASONS FOR ORDER AND ORDER BY: SNIDER J. DATED: THURSDAY, APRIL 3, 2003 APPEARANCES BY: Mr. Kingsley I. Jesuorobo For the Applicant Mr. Jeremiah Eastman For the Respondent SOLICITORS OF RECORD: Kingsley I. Jesuorobo Barrister & Solicitor 1280 Finch Avenue West Suite 318 North York, Ontario

M3J 3K6 For the Applicant Morris Rosenberg Deputy Attorney General of Canada For the Respondent FEDERAL COURT OF CANADA Date: 20030403 Docket: IMM-1809-02 BETWEEN: JAY AIZEY OZO Applicant - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER