Docket:
IMM-6120-11
Citation:
2012 FC 399
Ottawa, Ontario, April 10, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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HELEN UTOH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA),
of the
decision of a Member of the Refugee Protection Division of the
Immigration and Refugee Board of Canada (the Board), dated August 11, 2011. The
Board refused the applicant’s claim for refugee protection pursuant to section
96 and subsection 97(1) of the IRPA. The Board determined that the applicant
is neither a Convention (United Nations’ Convention
Relating to the Status of Refugees, [1969] Can TS No 6) refugee nor a person
in need of protection. For the reasons that follow, the application is
granted.
Facts
[2]
The
applicant, Helen Utoh, is a citizen of Nigeria. She alleges that in March
2009, conflict between the applicant’s village, Amai, and the village of Umuebu resulted in death and destruction of property on both sides. The applicant’s
husband, as one of the Chiefs of the village and several other members of their
community were subsequently detained by the police for five months. Following
their release the applicant’s husband was accused by the people of Umuebu of
bribing the police to secure his release. The applicant’s husband then began
to receive threats from the members of the Umuebu community that he and his
family would be killed. He reported the matter to the police but the police
did not investigate the complaint.
[3]
In
August 2009, while returning home, the applicant saw armed youths attacking her
village. When her own home was attacked she was able to escape to the bush but
was separated from her husband and children. She was able to flee to Benin after flagging down a man on a motorcycle, and then on to Lagos, where she hid in the home of
her husband’s friend.
[4]
While
in the home of her husband’s friend in Lagos, she received threatening phone
calls indicating that members of the Umuebu community knew where she and her
family were hiding. Fearing for her safety the applicant fled Nigeria.
Decision
Under Review
[5]
The
Board found that the applicant was neither a Convention refugee nor a person in
need of protection. The two issues considered by the Board were the applicant’s
credibility and the availability of an Internal Flight Alternative (IFA).
Credibility
[6]
The
Board was not persuaded that the applicant was married to the Chief of her
village who, together with his family, was allegedly being threatened by the
people of Umuebu. The Board noted that there was no evidence of the marriage
other than a picture from 1987 with a man holding a child.
[7]
The
Board was also not persuaded that the applicant’s husband, together with his
family, was threatened based on the lack of a police report or other evidence
supporting the allegation.
[8]
Finally,
the Board found it implausible that the applicant had received threatening
calls while staying with her husband’s friend in Lagos. The Board noted that
there was no evidence that the calls came from members of the Umuebu community
and found it improbable that if they wanted to harm the applicant and her
family they would call first, thereby warning them of their intent.
Internal Flight Alternative
[9]
The
Board found that, on a balance of probabilities, there was no serious
possibility of the applicant being persecuted if she were to move away from her
home village, which appeared to be the only area where problems occurred. The
Board was not persuaded that she had been discovered in Lagos and noted that
there was no evidence to suggest that the people of Umuebu would pursue, or
even be interested in, her if she were not to return to her home village. The
Board found that the applicant could relocate in other areas within Nigeria such as Ibadan or Benin City.
[10]
As
to the reasonableness of the relocation, the Board found that despite the applicant’s
basic education level, she has managed to establish herself in a foreign
country, namely Canada, and therefore found that the applicant should be able
to relocate relatively easily in her own native country.
Issues
and Standard of Review
[11]
The
Supreme Court of Canada held in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190,
that where the standard of review has been previously determined, a
standard of review analysis need not be repeated. Questions of credibility and
the viability of an IFA are questions of mixed law and fact to be determined on
a standard of reasonableness.
Analysis
1. Was the Board’s
credibility determination reasonable?
[12]
One
of the key elements of the applicant’s story that was disbelieved by the Board
was the fact that the applicant was married to the Chief of her village. The
Board stated that there was no evidence of the marriage other than a picture
from 1987 with a man holding a child.
[13]
This
finding was unreasonable because it was made without regard to all the evidence
before the Board. The picture was not the only evidence of the applicant’s
marriage. There was also her testimony about the marriage, including that she
had no documentary proof because it was a traditional marriage, and there was
an affidavit sworn by Emmanuel Eke, the friend of the applicant’s husband with
whom she had stayed while in Lagos. In his affidavit, Mr. Eke makes it clear
that the applicant was married to Chief Fred Utoh, the affiant’s close friend. Mr.
Eke also corroborates the applicant’s claim that people suspected to be members
of the Umuebu community made threatening calls while the applicant was staying
with Mr. Eke in Lagos.
[14]
While
it was undoubtedly open to the Board to consider this evidence and grant it
little probative weight, it was not open to the Board to disregard it
altogether. In particular, the failure to expressly consider Mr. Eke’s
affidavit renders the Board’s conclusion on credibility unreasonable. The
affidavit it corroborated not only the fact that the applicant was married to
the Chief, but also the conflict between the villages, the applicant’s flight
to Lagos, and the threatening calls from the people of Umuebu. Without any
consideration of this evidence, I find that the Board’s negative credibility finding
is unreasonable.
2. Was the Board’s IFA
finding reasonable?
[15]
In
order to grant the application the decision must also not be able to be upheld
on the basis of its conclusion that the applicant had a viable IFA. I find
that the Board’s IFA analysis is also unreasonable and therefore the decision
must be set aside.
[16]
First,
the Board’s conclusion that the applicant would not face persecution in another
location in Nigeria is rendered unreasonable by its treatment of the evidence
regarding members of Umuebu seeking her out in Lagos. The Board stated that
there was “no evidence to suggest that the people of Umuebu would pursue or
even be interested in her if she were not to return to her home village.” This
statement is incorrect as the applicant testified that members of Umuebu
contacted her and threatened her in Lagos, and Mr. Eke’s affidavit also states
that members of Umuebu came looking for the applicant there. This finding
therefore cannot stand. Either the Board has again failed to consider the evidence
before it, or it is relying on its earlier negative credibility findings, which
I have already found unreasonable.
[17]
The
Board’s consideration of whether it was reasonable to expect the applicant to
relocate within Nigeria is also unreasonable. The sole finding by the Board on
this point is that the applicant has “managed to establish herself in a foreign
country, namely, Canada”, and therefore “should be able to relocate relatively
easily in her own native country.” I am uncertain what the Board means by the applicant’s
“establishment” in Canada, or what evidence was relied on for that statement,
but the extent to which the applicant has settled in Canada is irrelevant to
the question before the Board. The applicant testified that she faced significant
social, economic and cultural challenges relocating alone in a new city in Nigeria, but this issue was not considered by the Board. Therefore, the application must
be granted.
[18]
Furthermore,
the Board failed to consider and apply the Chairperson’s Guidelines,
Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution
(Gender Guidelines) in its analysis of the reasonableness of the proposed IFA
locations. The Gender Guidelines expressly direct decision-makers to consider
the claimant’s gender in determining the reasonableness of a proposed IFA:
In determining the reasonableness of a woman's
recourse to an internal flight alternative (IFA), decision-makers should
consider the ability of women, because of their gender, to travel safely to the
IFA and to stay there without facing undue hardship . In determining the
reasonableness of an IFA, the decision-makers should take into account factors
including religious, economic, and cultural factors, and consider whether and
how these factors affect women in the IFA.
[Emphasis in original]
[19]
The
Board made no reference to considering the Gender Guidelines in its decision
and its analysis of IFA confirms that it failed to consider how the applicant’s
gender would impact the reasonableness of the proposed IFA.
[20]
Finally,
a review of the hearing transcript reveals that one of the IFA locations relied
on the decision, Ibadan, does not appear to have been specifically identified
by the Board as a proposed IFA and, more importantly, put to the applicant as a
possible IFA. The jurisprudence is clear that the Board must identify the
specific IFA locations; Farias v Canada (Minister of Citizenship and
Immigration), 2008 FC 1035 at para 34, and fairness requires that the
applicant have an opportunity to address its suitability. Therefore, this
error also requires that the decision be set aside.
[21]
The
application is granted, the decision is set aside and the matter is referred
back to the Board for re-determination by a different panel.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is
granted, the decision is set aside and the matter is referred back to the Board
for re-determination by a different panel.
"Donald
J. Rennie"
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