Date: 20050725
Docket: IMM-8350-04
Citation: 2005 FC 1023
Ottawa, Ontario, the 25th day of July 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
CALLISTUS CHUMA EZEMBA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Callistus Chuma Ezemba, is seeking judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated September 8, 2004, that the Applicant had an internal flight alternative (IFA) and therefore is not a Convention refugee or a person in need of protection.
[2] The Applicant is seeking to have the Board's decision set aside and the matter referred to a differently constituted panel for rehearing and redetermination.
FACTUAL BACKGROUND
[3] The Applicant is a citizen of Nigeria. He is allegedly an activist in the Delta Youth Forum, an organization that opposes pollution and environmental damage caused by the oil companies in the Delta State region. He fears persecution from oil company officials and government authorities as a result of his political involvement.
[4] His mother was killed on February 17, 2000, by heavily armed men who came to the family home looking for the Applicant. He claims that the men were sent by oil companies. After this incident occurred, he returned to university where he became aware that the police were looking for him. The Applicant's friends advised him to leave the country. They asked him for photographs and had him sign a blank piece of paper. They later presented him with a passport bearing another name, Emeka Ike Emah, and helped him flee the country. He arrived in Canada on May 20, 2001.
[5] The Applicant claimed that he feared persecution for reasons of political opinion. His refugee claim was heard on August 5, 2004. The Board rendered its negative decision on September 8, 2004. Leave to commence this application for judicial review was granted on February 10, 2005.
IMPUGNED DECISION
[6] The Applicant claimed protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
[7] In addition to the Applicant's testimony, the Board had before it the following evidence: the Applicant's Personal Information Form (PIF), the port of entry notes, the Applicant's general certificate of education, his Nigerian certificate of education, his false passport and documents on country conditions in Nigeria.
[8] The Board concluded that the Applicant had an IFA in Lagos or Abuja and therefore denied the Applicant's claim. The Board relied on Kanagaratnam v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 75 (QL) and did not make "... any finding in relation to the claimant's credibility or the credibility of his allegations regarding his activities in the Niger Delta or the well-foundedness fear of persecution or degree or harm feared of his in Delta State."
[9] The Board stated that it applied the two-pronged test set out in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 in respect to IFA findings:
1) Is there a serious possibility that the claimant be persecuted in the suggested IFA locations?
2) Would it be unreasonably harsh in all the circumstances for the claimant to move to an IFA location?
[10] In respect to the first prong of the test, the Board held that, on a balance of probabilities, authorities of any kind or oil company police or officials are not presently interested in him and he would not be discovered or pursued in either suggested IFA locations. If he were to encounter any other type of problem, the Applicant could avail himself of the same state protection offered to all citizens of Lagos or Abuja. Furthermore, the Board did not give any weight to the Applicant's contention that his family was in hiding in Seme, Lagos since the Applicant failed to produce credible or trustworthy evidence to support it.
[11] Regarding the second prong of the test, the Board concluded that the Applicant is a healthy young man, who has twelve years of post-secondary education and is a member of the Igbo tribe, one of the largest ethnic groups in Nigeria. The Board held that his travelling to Canada and his residing here since September 2001 shows initiative, resourcefulness and flexibility. The Board noted that it is insufficient for the Applicant to claim that he has no friends, relatives or employment in the IFA location. It stated: "The fact that a claimant may be better off in Canada physically, economically, and emotionally than in a safe place in his own country is not a factor to consider." Consequently, the Board decided that it would not be unreasonably harsh for the Applicant to move to the IFA location.
[12] Based on these elements, the Board found that the Applicant failed to show there are substantial grounds to believe that he is a person in need of protection under subsection 97(1) of the IRPA.
ISSUE
[13] The issue raised in the present case is as follows: Whether the Board erred in finding that the Applicant had an internal flight alternative in Nigeria?
STANDARD OF REVIEW
[14] The appropriate standard of review when dealing with findings of fact made by the Board regarding an IFA is patent unreasonsableness: Ali v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 361 (QL); Ramachanthran v. Canada (Minister of Citizenship and Immigration), 2003 FCT 673; [2003] F.C.J. No. 878, online: QL; Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999; [2003] F.C.J. No. 1263 (QL). The issue of whether the Board properly applied the test in making a finding that there was an IFA is a question of law to which the standard of correctness applies.
[15] It is well established that, as a specialized tribunal, the Board has complete jurisdiction to determine the credibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL); R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116; [2003] F.C.J. No. 162 (QL).
ANALYSIS
1) Whether the Board erred in finding that the Applicant had an internal flight alternative in Nigeria?
[16] The notion of IFA is a concept inherent to the definition of Convention refugee. Since a Convention refugee must be a refugee from a country, not from a subdivision of region of a country, a claimant cannot be a Convention refugee if there is an IFA. If claimants are able to seek refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country: Rasaratnam, supra.
[17] The claimant bears the onus of establishing, on the balance of probabilities, that there is a risk of persecution throughout his entire country: Karthikesu v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 772 (QL).
[18] The applicable test to determine whether an IFA exists was set out by the Federal Court of Appeal in Rasaratnam, supra, and reiterated in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. In Rasaratnam, supra, Mahoney J.A. wrote:
In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there. (my emphasis)
[19] With respect to the second element of the test, caselaw has established that, for an IFA to be deemed unreasonable, it requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164. Actual and concrete evidence of such conditions is required.
[20] The Applicant argues that the Board erred in finding that he had an IFA in Nigeria:
1. by failing to make clear findings as to what evidence it acepted or rejected;
2. by failing to provide reasons for finding the Applicant would not be persecuted in Lagos or Abuja;
3. by disregarding and making selective use of documentary evidence and failing to take into account circumstances particular to the Applicant's case in considering the IFA locations.
I will deal separately with each of these points raised by the Applicant.
[21] The Applicant argues that the Board is required to make clear findings as to what evidence it accepts or rejects: Rahman v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 525 (QL); Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (QL). He submits that the Board chose not to address his credibility but discredited his testimony in its IFA analysis by stating that he provided no corroborative documentary evidence regarding his activities and profile within the organization in question. The Applicant contends that a refugee claimant's testimony does not need to be corroborated. Unless the Board has valid reasons to question the claimant's credibility, it is an error to require corroborating evidence in order to believe the claimant's testimony.
[22] In my view, if the Board is not legally required to consider whether there was persecution in the area of origin before considering whether an IFA is available elsewhere in the country then, a fortiori, the Board is not required to assess the credibility of evidence on whether there was persecution in the area of origin. It is then open to the Board to consider the evidence in respect of the IFA, including the credibility of that evidence, as it did. Whether it erred in its treatment of that evidence is another matter.
[23] With respect to the first prong of the IFA test, the Applicant submits that the Board provided no reasons why it found that the Applicant would not be persecuted in Lagos or Abuja. The Board did not analyse the conditions in these States and did not provide documentary or other evidence to indicate that the Applicant would be safe in these two areas, contrary to what this Court established in Rabbani v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 47 (QL), with respect to making findings of an IFA. The Applicant further submits that the Board disregarded this Court's decision in Thirunavukkarasu, supra, in that it failed to review the local conditions and consider whether the Applicant's residing in Lagos or Abuja was a reaslistic, attainable option. The Applicant argues that the Board's conclusion is capricious in that the Board did not complete the analysis required by law.
[24] The Applicant based his claim on a fear of persecution by the authorities for reasons of political opinion. The Board made no finding regarding the credibility of the Applicant's claim within the Delta State region of Nigeria. It is also not disputed that the State Police is involved as an agent of persecution. The Board did however make a clear finding, on a balance of probabilities, that authorities of any kind or oil company police or officials are not presently interested in the applicant and that he would not be discovered or pursued in either suggested IFA location, namely Lagos or Abuja. The Board gave extensive reasons for this finding, including the following:
1. The Applicant went to university in Enugu and therefore participated only in local political activities and only on weekends;
2. He has never been arrested or officially charged with an offence;
3. There is no corroborative documentary evidence regarding his activities and profile in the organization, even though information regarding the Delta Youth Forum had been specifically requested by the Board prior to the hearing;
4. There is no evidence that the police are interested in him;
5. His own evidence is that he merely "suspects" that the police are still interested in him;
6. In 2000, he left the Delta State area, as did his family, and he has not returned to the area, where he was active for over four years;
[25] I am of the view that, on the evidence, it was open to the Board to find that the authorities were not interested in the Applicant and that he would not be pursued in either Lagos or Abuja. It is not for this Court to reweigh the evidence. The decision of the Federal Court of Appeal in Thirunavukkarasu, supra, establishes that, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it. The onus rests on the claimant to show that there is a serious possibility of persecution in the suggested IFA locations. Nothing in the evidence suggests that police involvement with oil companies extends beyond the Niger Delta. The Applicant provided no persuasive evidence to support his contention that he would be persecuted in Lagos or Abuja, or elsewhere in Nigeria, for that matter.
[26] The Applicant argues that the Board's decision is void of any discussion as to the prevailing conditions in the identified IFA locations. In support of his argument, the Applicant relies on Rabbani, supra, where Mr. Justice Marc Noël wrote: "The conclusion as to the existence of an IFA requires more than the identification of the approximate area where the agent of persecution is thought to be in control and a general conclusion that the claimant is free to flee elsewhere. A specified geographic location must be identified where the conditions are such as to make it a realistic and attainable safe haven. That in turn requires some discussion as to the prevailing conditions within the identified location." In that case, the evidence indicated that control over the areas referred to the Board moved back and forth amongst the protagonists with the result that no definite location was in fact identified by the Board. The facts in the present case are different. The claimant's problems are clearly associated with the Delta State. The geographic area at issue is therefore clearly delineated. The Board has implicitly recognized this in its reasons.
[27] However, the Board found that the evidence did not support the Applicant's claim that he would be sought by the authorities elsewhere in Nigeria, and in particular in Lagos and Abuja. As discussed above, this finding was open to the Board on the evidence.
[28] I accept the Applicant's contention that Abuja was not mentioned by the Board at the hearing as a potential IFA. This is not disputed by the Respondent. I also recognize that, at the hearing, Lagos was only briefly raised by the Board as a potential IFA. However, the Applicant was notified that an IFA was to be an issue at his hearing. This is clearly indicated in the pre-hearing screening documents delivered to the Applicant. In my view, the Applicant failed to discharge the onus he had regarding the first prong of the IFA test. He failed to establish that there is a serious possibility of persecution in the suggested IFA locations. In the result, the Board committed no reviewable error in its treatment of the evidence and in its application of the first prong of the IFA test.
[29] With respect to the second prong of the test, I am of the view that the Applicant is asking this Court to reweigh the evidence. The Applicant's testimony to establish that his relocation would be unduly harsh revolved entirely on the financial and emotional difficulties of relocating. These difficulties, as the Board correctly pointed out, do not meet the legal threshold for demonstrating that relocation would be unduly harsh: Ranganathan, supra.
[30] In fact, in Ranganathan, supra, the Court held that, as previously explained, the threshold for the unreasonableness test is very high.
[...] It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.
[31] In the present case, when asked by the Board if he could relocate elsewhere in Nigeria, the Applicant replied that it would be very difficult to do so since he would have no employment, no money and no means of settling in the new area. These are precisely the factors contemplated by the principle established in Ranganathan, supra. The Board did not err in determining that it would not be unreasonably harsh for the claimant to move to the IFA location.
[32] Finally, the Applicant contends that the Board was selective in its treatment of the documentary evidence and that it failed to take into account the specific circumstances of the Applicant's case. In particular, the Applicant submits that the Board erroneously inferred from the recent United States Department of State Country Report that the Applicant would have freedom of movement in Nigeria. The Applicant contends that the Board disregarded the following passage from the Department of State Report, which deals specifically with the facts of this case and which points to a conclusion contrary to that made by the Board:
Multinational oil companies and domestic oil producing companies subcontracted police and soldiers from area units particularly to protect the oil facilities in the volatile Niger Delta region. Freelance security forces and former security forces accounted for a portion of the violent crime committed during the year. Police were instructed to use lethal force against suspected criminal and suspected vandals near oil pipelines in the Niger Delta Region.
I disagree. The above passage is not inconsistent with the Board's conclusion. It is evidence that it specifically refers to the Delta State and not to the suggested IFA locations. In my view, it was open to the Board to conclude that the Applicant enjoyed some mobility within Nigeria. The Applicant's own testimony established that he had little difficulty moving from one area of the country to another. Even after the incident involving the attack and murder of his mother, the Applicant left the Delta State without difficulty. While the Applicant points to other documents that report on difficulties and unrest between various factions and the authorities, these reports are also essentially confined to the Delta State.
[33] It is accepted that an administrative tribunal need not make express reference to all of the documentary evidence on country conditions before it in its reasons. Unless the evidence is specific to the Applicant's circumstances or is important evidence that points to a conclusion contrary to that reached by the Board, it is assumed that the Board weighed and considered all of the evidence presented to it: Osayande v. Canada (Minister of Citizenship and Immigration), 2002 FCT 368. The contrary has not been shown in the instant case. Consequently, the Board committed no reviewable error in its treatment of the documentary evidence.
CONCLUSION
[34] For the above reasons, the application for judicial review will be dismissed.
[35] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the IRPA and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated September 8, 2004, is dismissed.
2. No serious question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8350-04
STYLE OF CAUSE: Callistus Chuma Ezemba v. MCI
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 11, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: July 25, 2005
APPEARANCES BY:
Mr. Odaro Omonuwa For the Applicant
Ms. Sharlen Telles-Langdon For the Respondent
SOLICITORS OF RECORD:
Mr. Odaro Omonuwa For the Applicant
557 Ellice Ave
Winnipeg, Manitoba R3B 3C6
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
310 Broadway Avenue, Suite 301
Winnipeg, Manitoba R3C 0S6
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