2017 FC, 2017 FC 1055

Date: 20171120 Docket: IMM-4876-16 Citation: 2017 FC 1055 Ottawa, Ontario, November 20, 2017 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: IKEMEFUNA AYALOGU Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [ 1 ] Mr. Ayalogu brings this application seeking review of a Minister’s Delegate’s [Delegate] finding that he is not likely to face personalized risk under

section 97 of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA] if returned to Nigeria. The Delegate’s decision renders enforceable a removal order against Mr. Ayalogu as a person described under paragraph 112(3) (

a) of the IRPA due to his involvement in organized criminality. Mr. Ayalogu has not been convicted of any criminal offence. [ 2 ] Mr. Ayalogu argues that the evidence demonstrates that if returned to Nigeria his life would be in danger and he is at risk of torture or cruel and unusual treatment or punishment. He submits that in reaching the opposite conclusion the Delegate relied on conjecture and speculation, rendering the decision unreasonable. He raises the following issues: A. Did the Delegate engage in speculation, rather than logical inference, in finding it not likely Mr.

Ayalogu would face a personalized risk? and B. Did the Delegate err in failing to consider subsection 12(2) of the Nigerian Criminal Code Act ? [ 3 ] A 2007 Pre-Removal Risk Assessment [PRRA] concluded that Mr. Ayalogu would, on a balance of probabilities, be subject to a risk of torture or mistreatment in police custody if returned to Nigeria. The Delegate completed a second PRRA in September 2016 reaching a different conclusion. The 2016 PRRA decision is before this Court for review: in this second PRRA the Delegate relied on the passage of time and the standing of Mr.

Ayalogu’s family within Nigerian society to conclude it was unlikely that he would be detained and mistreated on return to Nigeria. [ 4 ] Mr. Ayalogu submits, and I agree for reasons set out below, that the Delegate’s conclusions were grounded in speculation and conjecture, rendering the decision unreasonable. The application is granted. II. Background [ 5 ] Mr. Ayalogu was born in Nigeria in 1982 and is a citizen of that country. He came to Canada with his family in 1998, when he was sixteen. His father was assuming the position of administrative attaché at the Nigerian embassy in Ottawa. Mr.

Ayalogu claimed refugee status on January 15, 2002. The other family members were granted permanent residence in Canada based on humanitarian and compassionate [H&C] grounds in 2008. [ 6 ] On May 4, 2004 an IRPA

section 44 report issued against Mr. Ayalogu expressing the opinion that he was inadmissible to Canada due to participation in organized criminality [the

Section 44 Report]. The Immigration Division of the Immigration and Refugee Board [ID] found him inadmissible for organized crime on October 22, 2004 and issued a deportation order against him. That order was subsequently quashed on judicial review before this Court, and the matter was sent back for redetermination by a different decision- maker. [ 7 ] On redetermination the ID again found Mr. Ayalogu inadmissible for organized crime under paragraph 37(1) (

a) of the IRPA . [ 8 ] A PRRA was initiated in August 2007 [2007 PRRA]. The PRRA Officer found on a balance of probabilities that Mr. Ayalogu would face risk to life, danger of torture or risk of cruel and unusual punishment or treatment if returned to Nigeria and was a person in need of protection under IRPA

section 97 . [ 9 ] The 2007 PRRA found that the Canada Border Services Agency [CBSA] had provided the

Section 44 Report to the Nigerian High Commission in Ottawa. The

Section 44 Report discloses Mr. Ayalogu’s involvement with organized crime, details the group’s criminal activity, and indicates Mr. Ayalogu was involved in directing others in the group. [ 10 ] The 2007 PRRA then addressed the claim that the Nigerian government would take harsh retribution against the son of a former Nigerian diplomat for disgracing the country and that in Nigeria, criminal responsibility applies to a Nigerian citizen even if the

criminal activity occurred outside Nigeria. The PRRA Officer considered the documentary evidence and found on a balance ofprobabilities the Nigerian authorities had access to the contents of the

Section 44 Report and would arrest and detain Mr. Ayalogu uponreturn to Nigeria. The Officer then considered the documentary evidence relating to the treatment of detained individuals in Nigeria,finding that it demonstrated a pattern of widespread torture of suspects in police custody which sometimes resulted in death. The PRRAOfficer concluded that on a balance of probabilities Mr.

Ayalogu would face a risk to life, danger of torture or risk of cruel and unusualpunishment or treatment if returned to Nigeria. [11] In December of 2013, the process to conduct a restricted risk assessment in accordance with IRPA paragraph 113(d)(ii) wascommenced with disclosure being provided to Mr. Ayalogu. Submissions were made on Mr. Ayalogu’s behalf in February 2014. [12] In July 2016 Mr. Ayalogu’s counsel was advised by the Delegate that a final decision would be made on the PRRA for Mr.Ayalogu.

Counsel was invited to update the submissions made in 2014 with respect to both the PRRA and an outstanding H&Capplication. [13] Further submissions were made. On October 31, 2016 Mr. Ayalogu was advised that his H&C application had been refused.On November 7, 2016 he received the decision that is now before the Court, the refusal of the second PRRA application. III. Decision under Review [14] The Delegate addressed claims of risk arising out of Mr. Ayalogu’s medical condition, the disclosure of the

Section 44Report, and his claim of bisexuality. The Officer’s conclusions as they relate to risk arising out of Mr. Ayalogu’s medical condition andclaimed bisexuality are not in issue. [15] With respect to the risk arising out of the disclosure of the

Section 44 Report, the Delegate found no more than a merepossibility that Nigerian authorities would arrest and mistreat him upon return for the following reasons: A. Mr. Ayalogu is a member of the elite in Nigerian society and “the elite in Nigeria are provided with a degree of immunityfrom the normal consequences of the law due to a system riddled with ingrained nepotism”; B. even if he were to be subjected to the normal consequences of the law as reflected in Nigerian “Decree 33” permitting theadditional punishment of those found guilty of drug offences overseas, “Decree 33” only applies to those convicted of offences. As hissubmissions confirm, there is no indication in the

Section 44 Report that Mr. Ayalogu was prosecuted or convicted for any offences; and C. it was unlikely that Nigerian authorities would have retained the

Section 44 Report from 2007. IV. Standard of Review [16] The parties do not dispute that the Delegate’s decision is reviewable against the standard of reasonableness(Thamotharampillai v Canada (Citizenship and Immigration), 2016 FC 352 at para 18; Kandel v Canada (Citizenship and Immigration),2014 CF 659 , 2014 FC 659 at para 17).

A reviewing Court must consider whether the decision-making process reflects theelements of justification, transparency and intelligibility, and whether the outcome falls within the range of possible acceptable outcomesbased on the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). V. Analysis [17] As a preliminary matter the respondent submits the Delegate’s jurisdiction to assess the risk in this case was notcircumscribed by the assessment conducted by the PRRA officer in 2007. I agree.

The jurisprudence requires that the Delegate assessthe evidence and information available at the time of the decision and render a decision as to whether an applicant would be at risk ifremoved from Canada on the basis of that assessment (Placide v Canada (Citizenship and Immigration), 2009 FC 1056 at paras 58, 63and 70). A. Did the Delegate engage in speculation, rather than logical inference, infinding it not likely Mr.

Ayalogu would face a personalized risk? [18] The respondent submits that the Delegate’s conclusions were permissible inferences that could logically and reasonably bedrawn from the following established facts: (1) the Nigerian High Commissioner personally contacted Mr. Ayalogu’s father regardinghis alleged gang​ related activities in 2007;

(2) Mr. Ayalogu’s father was a Nigerian diplomat; and (3) the Nigerian High Commission didnot issue a passport in 2007 when proceedings to remove Mr. Ayagolu from Canada were underway. These established facts were, therespondent argues, sufficient to allow the Delegate to draw the following inferences: A. the Nigerian High Commission was inclined to help Mr. Ayalogu and “attempted to frustrate legitimate deportationproceedings in 2007”; B. it was unlikely that the Nigerian authorities would have retained the

Section 44 Report; and C. Mr. Ayalogu would be shielded from mistreatment if the

Section 44 Report had been shared with other Nigerian authoritiesas he was a member of the Nigerian elite.

[19] I am unpersuaded by the respondent’s submissions. Inferences may be drawn by a decision-maker where the primary factsunderpinning the inference have been established and the inference can be reasonably and logically drawn from those establishedprimary facts. Where the primary facts have not been established or the inference cannot logically and reasonably be drawn from theprimary facts any attempt to draw an inference will be nothing more than impermissible speculation (R v Munoz (2006), (ON SC), 205 CCC (3d) 70 at paras 26 and 28, 86 OR (3d) 134(Ont Sup Ct)).

That is what has occurred here. [20] While the Delegate’s conclusions may be plausible, plausibility is not sufficient to support an inference. For example,inferring that the High Commission was seeking to assist Mr. Ayalogu and frustrate a legitimate deportation is one, but only one,plausible explanation for the facts that the High Commissioner contacted a former diplomat regarding his son’s pending deportation andthat a passport was not issued.

It is equally plausible, albeit also speculative, that the High Commissioner would contact any formermember of the diplomatic staff where a child is involved simply as a matter of courtesy. One might also speculate that the passportapplication did not progress because neither Mr. Ayalogu nor CBSA actively pursued it. [21] Similarly, the conclusion that the

Section 44 Report was not retained is based on the passage of time and the fact that apassport was not issued. This too is plausible, but absent some information relating to past experience or Nigerian recording-keepingpractices there is no factual foundation from which to logically or reasonably draw the inferences required to reach that conclusion. Onemight also infer the report was retained in light of the information it contained. As such the conclusion is again conjecture andspeculation. [22] Finally the Delegate concluded that Mr.

Ayalogu’s social status would shield him from the application of Nigerian law and inturn from mistreatment. This conclusion is linked to a single fact: the phone call his father received from the High Commissioner. Asnoted above there are other plausible explanations for this call and there is no established fact that evidences why the call was made. Forthe Delegate to infer the motivation behind the call and to then rely on that inference to conclude Mr. Ayalogu is a member of theNigerian elite who will be shielded from the law is pure conjecture. The Delegate also fails to address Mr.

Ayalogu’s estrangement fromhis father and the passage of time, both of which might logically impact upon his ability to benefit from any status his father may have inNigeria. B.

Did the Delegate err in failing to consider subsection 12(2) of the NigerianCriminal Code Act? [23] The respondent submits that the Delegate did not err in failing to address the alleged risk arising from the Nigerian CriminalCode Act [Code] because the wording of subsection 12(2) demonstrates the provision only applies to acts or omissions that constitute anoffence in Nigeria and that suspected involvement with a criminal organization would not be captured.

Again I disagree. [24] I recognize that a decision-maker need not address or refer to every argument an applicant may raise (Newfoundland andLabrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16).

However, where a decision-makerfails to address evidence that is of direct relevance to the issues in dispute a Court may be more willing to conclude a finding has beenreached without regard to that evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 atpara 17, (FCTD)). [25] In this case subsection 12(2) of the Code provides for prosecution in Nigeria where an “act and omission occurs elsewhere.”The Delegate does not address what risk (if any) arose from this provision. Respondent’s counsel has advanced an

interpretation of theCode to explain why the Delegate did not err in failing to address any risk arising out of this provision. However, the risk, if any, arisingout of the Code was an issue for the Delegate to address in reasons not for counsel to advance on judicial review. VI. Conclusion [26] The Delegate’s decision is based on speculation and conjecture and fails to address all aspects of the risk alleged. The decisiondoes not reflect the required elements of justification, transparency and intelligibility. [27] The parties agreed in the course of hearing that no question of general importance arises.

I agree. JUDGMENT IN IMM-4876-16 THIS COURT’S JUDGMENT is that: 1. The application is granted and the matter returned for redetermination by a different decision-maker; 2. No question is certified. "Patrick Gleeson" Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-4876-16 STYLE OF CAUSE: IKEMEFUNA AYALOGU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 15, 2017 JUDGMENT AND REASONS: GLEESON J. DATED: NOVEMBER 20, 2017 APPEARANCES : Karima Karmali For The Applicant Amy Smeltzer For The Respondent SOLICITORS OF RECORD : Integrated Legal Services Office Legal Aid Ontario Ottawa, Ontario For The Applicant Attorney General of Canada Ottawa, Ontario For The Respondent