Date: 20091124
Docket: IMM-5178-08
Citation: 2009 FC 1203
Ottawa, Ontario, November 24, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
FRIDAY
MICHAEL OGUNLUYA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated November 5, 2008 (Decision), which refused the Applicant’s
application to be deemed a Convention refugee or person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a Nigerian citizen who is seeking protection from his stepmother
in Nigeria. The dispute
between the Applicant and his stepmother resulted from the Applicant’s request
to be given a portion of his late father’s business which was willed to him but
which remains under the control of his stepmother.
[3]
The
stepmother refused to relinquish the business, threatened the Applicant’s legal
counsel, and assaulted the Applicant. After the Applicant pursued his request further,
he was beaten by the police who warned him to stop making attempts to access the
property. The police also warned the Applicant that he had two months to leave Nigeria, after which
he would be killed.
[4]
The
Applicant reported this beating to the police, who told him that they were
unable to assist him. Rather, they informed the Applicant that he should leave Nigeria. The
Applicant then fled to Canada and applied for refugee status.
DECISION UNDER REVIEW
[5]
Although
the Board initially had some concern about a discrepancy in the Applicant’s submissions,
the Board determined that the Applicant was credible. The Board made this
determination based on the presumption of truth established in Maldonado v.
Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, the
consistency between the Applicant’s testimony and his Personal Information Form,
as well as the supporting affidavits of his brother, his friend, and his
doctor. Consequently, the Board accepted that the Applicant had a dispute with
his stepmother and that the police provided him with “little assistance.”
[6]
The Board
then examined whether an internal flight alternative existed for the Applicant.
The Board found that an internal flight alternative did exist because the
Applicant had left Nigeria two years prior, and there
was no evidence to demonstrate that the police would be looking for him outside
of the area inhabited by the Applicant’s stepmother. Although the Board found
that “it is not unreasonable to speculate that the NPF may owe the claimant’s
stepmother a few favours,” it nevertheless determined that there was no
evidence to show that the police would have any interest in the Applicant on a
nation-wide scale. Rather, the Board determined that the Applicant’s stepmother
was “simply a local businesswoman with some connection to the local police.”
Consequently, the Board determined that the Applicant could relocate to another
part of Nigeria without the fear of
persecution.
ISSUES
[7]
The
Applicant raises the following issue on this application:
1)
Was
the Board’s overall assessment of the totality of the evidence unreasonable?
STATUTORY PROVISIONS
[8]
The
following provisions of the Act are applicable in these proceedings:
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Convention refugee
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
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
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.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de
« réfugié »
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;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
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.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
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STANDARD
OF REVIEW
[9]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada recognized
that, although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, "the analytical problems that arise in trying
to apply the different standards undercut any conceptual usefulness created by
the inherently greater flexibility of having multiple standards of review"
(Dunsmuir at paragraph 44). Consequently, the
Supreme Court of Canada held that the two reasonableness standards should be
collapsed into a single form of "reasonableness" review.
[10]
The
Supreme Court of Canada in Dunsmuir also held that
the standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the 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.
[11]
The
Applicant submits that the appropriate standard of review in this instance is
reasonableness. I agree with this submission. In Diagana v. Canada (Minister
of Citizenship and Immigration), 2007 FC 330, the Court determined that
appropriate standard of review
with regard to the consideration of the totality of the
evidence before the RPD was patent unreasonableness. Based on the
changes made by the Supreme Court in Dunsmuir, the appropriate standard
of review for this question in the current case is reasonableness.
[12]
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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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.”
ARGUMENTS
The Applicant
The Board failed to
consider the totality of the evidence
[13]
The
Applicant contends that the Board erred in its determination of the existence
of an internal flight alternative. Since the Board accepted the Applicant’s
evidence and testimony as credible, it clearly erred in finding that an IFA
existed. While the Applicant’s evidence was accepted by the Board, the Board then
completely disregarded his evidence in finding that there was no proof that the
police would be after him outside of his stepmother’s locality. The Board’s
finding is contrary to the evidence that the Board had previously determined to
be credible, i.e., that the Applicant would be sought “anywhere” and that he
would be “a dead man.”
[14]
Consequently,
the Board erred in finding that an IFA existed for the Applicant. A similar
error was made in the case of A.T.V. v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1229, 75 Imm. L.R. (3d) 215 where the
Board accepted the applicants’ testimony as being credible and unembellished,
but rejected the claim because the IFA had not been rebutted with “clear and
convincing evidence.” In A.T.V., the applicant had been questioned with
regard to the IFA and had answered the questions put before her. Accordingly, the
Court determined that the Board should have determined that the applicants had
met their burden of proving that Mexico City was not a reasonable IFA. The Court
determined in A.T.V. that the Board had failed in its consideration of
the evidence before it, so the issue of whether or not the Federal District of
Mexico City was an appropriate IFA was remitted.
Order Requested
[15]
The Applicant
requests that the Board’s decision be set aside and that the Applicant be
granted a new hearing before a differently constituted panel. The Applicant
also requests an order of Mandamus directing the tribunal to declare that the
Applicant a Convention Refugee.
The Respondent
[16]
The
Respondent submits that the test to show that an IFA is unreasonable bears a
high threshold which requires the existence of conditions that would put the
Applicant’s life and safety at risk. Moreover, concrete evidence of these
conditions must be presented. See Ranganathan v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 164, [2000] F.C.J. No. 2118.
[17]
The
Respondent contends that the Applicant bears the onus of demonstrating that it
is objectively unreasonable for him to reside in the locations suggested by the
Board. This onus has not been discharged. Furthermore, the Applicant has failed
to show that the Board ignored any pertinent evidence, or misapplied the IFA
test in its analysis. See Kanagaratnam v. Canada (Minister of Employment
and Immigration)
(1996), 194 N.R. 46, 36 Imm. L.R. (2d) 180, Thirunavukkarasu v. Canada (Minister
of Employment and Immigration), [1994] 1 F.C. 589 (FCA) [1993] F.C.J. No.
1172.
[18]
The
Applicant’s concerns with regard to the how the IFA test was applied amounts to
little more than disagreement with how the Board weighed the evidence before it.
However, it is the duty of the Board to consider and weigh the evidence.
[19]
While
the Board accepted the Applicant’s story as credible, there was no evidence
placed before the Board that the Applicant’s stepmother has any influence
beyond the sphere of the local police. Rather, the evidence before the Board
demonstrated that the NPF provides law enforcement for a population of 140
million people. The Respondent contends that in light of the totality of the
evidence, there is no reason to believe that Applicant would be of any interest
to the police outside of his stepmother’s locality. Such a finding is not
inconsistent with the finding that the key facts alleged by the Applicant are
to be believed.
[20]
The
Applicant did not discharge the burden of showing that there was no IFA
available to him. In fact, the Applicant failed to provide any evidence as to
why he would be of interest to police outside of his stepmother’s sphere of
influence.
[21]
While
the Applicant cites and relies on the case of Villa, the Respondent
contends that this case is distinguishable. In Villa, the Applicant had
clearly shown why Mexico
City was
not a viable IFA. Furthermore, the Board did not state the evidence upon which
it relied in determining the existence of an IFA.
[22]
The
Respondent believes that the case at hand is distinguishable, since the
Applicant’s testimony with regards to the IFA was vague, and the Board referred
to the specific evidence on which it relied to make the finding of an IFA.
[23]
Moreover,
the Board’s acceptance of the Applicant’s evidence that his brother had been
visited by the police does not show an error in the Board’s determination of an
IFA. The Applicant has not demonstrated that: a) his brother resides in one of
the IFA locations; b) that he resides outside of the locality inhabited by the
Applicant’s stepmother; or c) that it was someone other than the local police
that visited his brother. Consequently, the Applicant did not provide cogent
evidence that he would be sought by the police in the IFA locations identified
by the Board.
[24]
The
Respondent submits that this application should be denied. Furthermore, the
Applicant’s request for an order of a writ of mandamus is not appropriate. Four
requirements must be satisfied prior to an order of mandamus. These include: a)
a legal right to the performance of the duty of the statutory authority; b)
proof that performance of that duty is due because the Court will not enforce a
future obligation; c) there must be no discretion in the decision-maker to
perform the duty; and d) there must be a prior demand for the performance of
the duty and a refusal. See Mensinger v. Canada (Minister of
Employment and Immigration), [1987] 1 F.C. 59 and Karavos v. Toronto
(City), [1948] 3 D.L.R. 294 (Ont. C.A.). Because the
Board has discretion to perform the duty in question, a writ of mandamus is not
appropriate.
[25]
Furthermore,
the Respondent suggests that a writ of mandamus is inappropriate in this
instance because the issues are fact-driven and involve the weighing of both
personal and documentary evidence.
ANALYSIS
[26]
The Board
accepts the following as uncontroverted evidence:
a.
“It
would appear that if the NPF are indeed looking for the claimant, it follows
that there is no where the claimant could be safe in Nigeria”;
b.
“The
claimant testified that his stepmother is a very powerful individual and that
she is connected to the NPF through her supplying food to them. The claimant’s
brother’s affidavit … states at paragraph 13 that on ‘the evening of July 11,
2008, two members of the Nigerian police came to my home asking Friday’s
whereabouts. They said that I should let him know that there is nowhere in Nigeria for him to hide and
that whenever they find him he is a dead man.”
[27]
Notwithstanding
that this evidence was accepted by the Board, the Board found that “there is no
reason to think that this matter is of any interest to the police outside of
the locality where the claimant’s stepmother resides.”
[28]
The
Board disregards the evidence it has accepted in favour of speculation: “It is
not unreasonable to speculate that the NPF may owe the claimant’s stepmother a
few favours.”
[29]
The
Board also makes highly material findings of fact for which there is no
evidence: “[The stepmother] is simply a local businesswoman with some
connection to the local police.” This finding was made even though the Board
accepts the Applicant’s testimony that his stepmother is a “very powerful
individual … .”
[30]
There
was also documentary evidence before the Board, which it does not question,
that the Nigerian police can be bought and made to settle scores.
[31]
It
appears to me that, on the basis of the evidence accepted by the Board, the
Applicant is not safe anywhere in Nigeria if the NPF are looking for him and
that, as the Applicant’s brother testified, the NPF are looking for him and
want to kill him. There is also no evidence that the stepmother’s influence is
limited in the way the Board found it to be limited.
[32]
In
view of the foregoing, I think the Decision is unreasonable and must be
returned for reconsideration. See Villa and A.T.V.. The Decision
falls outside the range of possible, acceptable outcomes which are defensible
in respect of the facts and the law.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a differently constituted Board.
2.
There
is no question for certification.
“James
Russell”
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