Docket:
IMM-8566-11
Citation:
2012 FC 871
Ottawa, Ontario, July
10, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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AGHAHOWA OBAZEE
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (RPD),
dated 27 October 2011 (Decision), which refused the Applicant’s application to
be deemed a Convention refugee or a person in need of protection under sections
96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 48-year-old citizen of Nigeria from Benin City. He fears
persecution in Nigeria because he is a Christian.
[3]
The
Applicant is his parents’ only son and his father (Usiobaifo) was the chief
priest and healer of Obe village in Edo state. The Applicant was raised under
the assumption that he would one day inherit his father’s position. As a
result, Usiobaifo prevented him from pursuing post-secondary schooling. After
he completed secondary school in 1983, the Applicant began helping his father carry
out his duties in the village and learning his father’s techniques.
[4]
In
November 2009, the Applicant met a girl from a nearby community. When he went
to meet her at her church, the pastor there invited him in for the service. The
Applicant realized that he had been worshipping false idols and began
practicing Christianity in secret. The Applicant refused to participate in his
village’s spiritual practices, which led to an argument with Usiobaifo and the
community elders.
[5]
Usiobaifo
had the guards of the village’s shrine watch the Applicant’s house in Benin City. On 1 February 2010, the Applicant was kidnapped by four of the guards, who
assaulted him and detained him for a week in the Awanuoro shrine. Usiobaifo
threatened to kill the Applicant unless he helped celebrate an upcoming ritual
and renounced Christianity. Fearing what would happen if he refused, the
Applicant agreed but said that he had to go back to the city to finish some
things before he could move to the village permanently. When he got back to Benin City, the Applicant went to the hospital to have his injuries treated.
[6]
On
23 February 2010, the Applicant learned that his father had died in his sleep.
The community elders wanted the Applicant to take over Usiobaifo’s
responsibilities. The elders became increasingly angry when the Applicant did
not respond to their requests. He approached the pastor of the church where he
discovered Christianity and the pastor made arrangements to help him leave Nigeria. They did not contact the police because they thought this would create difficulty
for the church. The Applicant arrived in Canada and claimed refugee protection
on 21 April 2010.
DECISION
UNDER REVIEW
[7]
The
RPD found the Applicant had established his identity and was a credible
witness. Based on his limited education and his upbringing as the son of a
village medicine man, the RPD accepted the genuineness of the Applicant’s
belief that the elders of his community had special powers to find him anywhere
in Nigeria. It also found that he had a genuine subjective fear of persecution.
[8]
However,
the RPD also found that the Applicant had an Internal Flight Alternative (IFA)
in Abuja, Port Harcourt, Warri, or any other major centre in Nigeria. The RPD referred to Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1993] FCJ No 1172 which establishes that, where IFA is raised, the RPD
must be satisfied there is no serious risk in the proposed IFA location and it
is reasonable for the claimant to relocate there. Once raised, the onus is on
the claimant to show an IFA does not exist.
[9]
Based
on evidence from the National Documentation Package and the Applicant’s low
profile and history of working as a truck driver, the RPD found that there was
not a serious possibility he would be persecuted if he relocated to a large
urban centre and that it would be reasonable for him to relocate. The RPD noted
that a large number of Christians reside in Abuja and the surrounding area and
that the Applicant would be able to find moral and spiritual support if he relocated
there.
ISSUES
[10]
The
Applicant raises the following issues in this proceeding:
a.
Whether
the RPD’s IFA finding was reasonable;
b.
Whether
the RPD breached his right to procedural fairness.
STANDARD
OF REVIEW
[11]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[12]
The
standard of review applicable to the RPD’s IFA finding is reasonableness. See Mejia
v Canada (Minister of Citizenship and Immigration) 2010 FC 530 at paragraph
10, Martinez v Canada (Minister of Citizenship and Immigration) 2012 FC
5, at paragraph 8, Ponce v Canada (Minister of Citizenship and Immigration)
2011 FC 1360, at paragraph 13, and Zavala v Canada (Minister of Citizenship
and Immigration) 2009 FC 370 at paragraph 5.
[13]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and intelligibility
within the decision-making process [and also with] whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12
at paragraph 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[14]
The
Applicant says the RPD breached his right to procedural fairness by wholly
ignoring his evidence and submissions. Baker v Canada (Minister of
Citizenship and Immigration) [1999] 2 S.C.R. 817 at paragraph 22 establishes
that procedural fairness includes the opportunity to make submissions and have
them considered. As an aspect of the duty of fairness, the second issue is
subject to the correctness standard. In Canadian Union of Public
Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29, the
Supreme Court of Canada held at paragraph 100 that “It
is for the courts, not the Minister, to provide the legal answer to procedural
fairness questions.” Further, the Federal Court of Appeal in Sketchley
v Canada (Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.”
STATUTORY
PROVISIONS
[15]
The
following provisions of the Act are applicable in this proceeding:
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96. A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their countries of nationality and is unable or, by
reason of that fear, unwilling to avail themself of the protection of each of
those countries; or
[…]
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
[…]
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96. A qualité de réfugié
au sens de la Convention — le réfugié — la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou,
du fait de cette crainte, ne veut se réclamer de la protection de chacun de
ces pays;
[…]
97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
[…]
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ARGUMENTS
The
Applicant
Breach
of Procedural Fairness
[16]
The
RPD breached the Applicant’s right to procedural fairness when it ignored all
his testimony and the evidence he presented. Even though it found he was a
credible witness and that his testimony was truthful, the RPD ignored the
evidence he submitted.
IFA Finding Unreasonable
[17]
The
IFA finding was unreasonable because the RPD ignored evidence. The Applicant
testified to the harm he suffered from the guards at the Awanauro shrine. He
also submitted photographs to show the injuries he suffered while he was
detained at the shrine. The Applicant gave evidence he was well known in the
village because he had assisted Usiobaifo with ceremonies, and that he could
therefore be found anywhere in the country. The people who had come to his
father for help from all over Nigeria can find him wherever he goes, which means
he is at risk everywhere in Nigeria. It is unduly harsh to expect him to live
in perpetual fear that he will experience if he must relocate in Nigeria.
The
Respondent
[18]
The
IFA finding was reasonable because the RPD applied the proper test and based its
conclusion on the evidence before it. The RPD relied on the Operational
Guidance Note – Nigeria from the United Kingdom Home Office. This document,
which was in the RPD’s National Documentation Package, said that internal
relocation is almost always an option in Nigeria. The Applicant said he did not
have an IFA, but it was open to the RPD to prefer documentary evidence over his
testimony. Although the Applicant testified that Usiobaifo’s agents found him
in Benin City, this does not show an IFA is not available to the Applicant in Nigeria.
[19]
The
RPD reasonably concluded that ten to fifteen elders who were seeking him would
not be able to find him in a country of 150 million people. A claimant must
provide more than a general assertion of danger to establish that he or she
does not have an IFA. As Abiona v Canada (Minister of Citizenship and
Immigration) 2011 FC 1400 establishes, the burden was on the Applicant to
establish a serious possibility of persecution everywhere in Nigeria. He did not meet the onus on him. Although the Applicant disagrees with the RPD’s
conclusion, this is not a proper ground for judicial review and it is not open
to the Court to re-weigh the evidence which was before the RPD.
ANALYSIS
[20]
The
Applicant says that the RPD’s assessment of the totality of the evidence was
patently unreasonable, perverse and capricious. He also says that the RPD
misstated and misapprehended material evidence before it.
[21]
These
bare assertions are not supported or explained in any way. The Applicant simply
repeats the situation in which he finds himself. He repeats that he was beaten
and that the community was insulted and decided he must be killed because he
embraced Christianity. None of this has any relevance for the IFA finding that
is the basis of the Decision.
[22]
He
then reiterates what he said at the hearing, that many people from various
states in Nigeria visited his father to consult and “he was sure that no matter
where he went there would be people who would know him including his family
members who are widely spread.” The Applicant also argues in his affidavit that
“it would be unduly harsh to expect [him] to move to another part of the
country and leave [sic] in perpetual fear of being captured again after
all that he has suffered” and that his “family members and the community could
find him if just one member of his community finds that he was residing in any
part of the country.” His principal argument is as follows:
It is submitted that with the continue [sic]
movement of people from state to state in Nigeria the applicant could never be
an island. It would amount to a persecution of some sort to expect the
applicant to live in isolation. He is not married and definitely would like to
marry and relate with people and work. In carrying out any of these activities
the applicant is bound to find or meet people who could recognize him.
[23]
There
is no indication that the RPD overlooked the Applicant’s concerns, his view
that the community would find him, or any evidence that supported his position.
[24]
As
the Respondent points out, the RPD properly directed itself to apply the
two-pronged test for an IFA endorsed by the Court of Appeal in Thirunavukkarasu,
above.
[25]
The
RPD’s finding that the proposed IFA met both branches of the test was supported
by the evidence and reasonably available to it. The RPD gave significant weight
to the objective documentary evidence before it, particularly the United Kingdom Operational Guidance Note – Nigeria. This report indicated that
“internal relocation to escape ill-treatment from non-state agents is almost
always an option and, in the absence of exceptional circumstances, it would not
be unduly harsh for an individual to internally relocate.” It was open to the
RPD to prefer this objective documentary evidence over the Applicant’s testimony.
[26]
The
Applicant says he had been found in Benin City at the company where he then
worked, and this shows he can be found anywhere in Nigeria. The RPD was not
persuaded that this would make it probable for him to be found in any of the
three major cities it considered for the IFA. Although he claimed that
“approximately 10 to 15” community elders were angry at him, the RPD was not
persuaded that they would be able to locate him in a country of 150 million
people. The RPD noted that the Applicant had not established a particularly
high profile, and there was no evidence that the alleged agent of persecution
had any special resources or connections. This was a reasonable conclusion
which was open to the RPD on the evidence.
[27]
In
the particular context of Nigerian IFA determinations, more is required than a
vague assertion that the Applicant will be in danger everywhere in the country.
It is for the Applicant to establish through persuasive evidence why a proposed
IFA would not be viable. In Abiona, above, Justice Anne Mactavish said
at paragraph 4:
The burden is on the individual seeking refugee protection to
establish on a balance of probabilities that there is a serious possibility of
persecution throughout the country, including the area which is alleged to
afford an IFA: […]. While Mr. Abiona explained why Port Harcourt was not a
viable IFA, he did not provide any evidence to show why he could not live
safely in Ibadan, beyond his general assertion that he would not be safe
anywhere in Nigeria.
[28]
In
the end, then, it is not that the RPD overlooked, misstated, or misapprehended
material evidence. The RPD simply did not accept the Applicant’s views and
evidence as to why there was no reasonable or viable IFA for him in Nigeria, and relied upon objective evidence for its findings. The reasons are very clear
that the RPD considered the Applicant’s position fully and they explain why
other evidence is to be preferred. The Applicant now disagrees with the RPD’s
conclusions. Disagreement, however, is not in itself a ground for judicial
review. See Abdollahzadeh v Canada (Minister of Citizenship and Immigration)
2007 FC 1310 at paragraph 29 and Deol v Canada (Minister of Citizenship and
Immigration) 2009 FC 406 at paragraphs 70 and 71. Against the objective
evidence, the Applicant asserts that community and family will find him
anywhere in Nigeria. Court jurisprudence says that this assertion is not
sufficient to render the RPD’s conclusions based upon objective evidence
unreasonable, as Justice Mactavish pointed out in Abiona, above.
[29]
Even
if, on the evidence, it would have been reasonable to accept the Applicant’s
position, this does not mean that the Decision on IFA was unreasonable. See Sinan
v Canada (Minister of Citizenship and Immigration) 2004 FC 87 at paragraph
11 and Medley v Canada (Minister of Citizenship and Immigration) 2005 FC
365 at paragraphs 7 and 8. The Decision on this point falls within the Dunsmuir
range and I cannot interfere even if I might have reached a different
conclusion on the evidence.
[30]
The
Applicant’s second argument, that the RPD violated the principle of “natural
fairness,” is not a separate issue at all. He says the RPD accepted his
subjective fear but “disregarded the entire testimony of the applicant and the
evidence presented which the Board found to be truthful, by concluding that a
reasonable IFA existed for the applicant.” However, the Applicant offers no
further argument on this point. He is simply attempting to characterize his
first point as a “procedural fairness” issue. As the reasons and the record
show, the RPD did not disregard the Applicant’s testimony on the IFA issue. The
RPD accepted the Applicant’s subjective fears and took into account his
arguments as to why no IFA existed, then explained why it could not accept this
position. The RPD clearly referred to evidence that supports a reasonable and
viable IFA. There was no procedural fairness error in this approach.
[31]
In
summary, I cannot find a reviewable error in this Decision. I accept that the
Applicant’s subjective fears are genuine — as did the RPD — but subjective fear
is not sufficient to ground a claim under section 96 or section 97.
[32]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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