Docket: IMM-4453-13
Citation:
2014 FC 922
Montreal, Quebec, September 29, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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EVANGELINE NNEBUIFE EMEZIEKE
and PAL NNAMDI EMEZIEKE
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review of
the July 10, 2013 decision (the Decision) of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board finding the Applicants to be neither
Convention refugees nor persons in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27.
II.
Facts
[2]
The Applicants in this case are a 46-year-old
woman (the Primary Applicant) and her 19-year-old son. Both are citizens of Nigeria. They are Christians and, as a result, they claim to have a well-founded fear of
persecution at the hands of Boko Haram, a militant Islamic group based in Nigeria. More specifically, they fear the son of their previous landlord who is involved
with Boko Haram and who previously attacked their family.
[3]
In July 2009, the Applicants moved from Lagos, a state in Southern Nigeria, to Borno State in the North. On January 1, 2010,
members of Boko Haram ambushed the compound where the Applicants were living,
killing four people, including the Primary Applicant’s sister-in-law. Although
their landlord was a Muslim, he hid the Applicants and their family when Boko
Haram arrived. Later that evening, he arranged for them to escape and told them
to leave the North.
[4]
On their way back to Lagos, the Applicants claim
they were followed by members of Boko Haram, including their landlord’s son.
During a stop-over in Benin City, this group chased down the Applicants’ family.
The Primary Applicant’s husband and daughter escaped into a bus, while she and
her two sons were run over. One of the sons was killed. Both Applicants were
seriously injured and hospitalized.
[5]
Following this incident, the Applicants returned
to their home in Ojokoro, Lagos, where they remained until leaving for Canada in November 2011. They fear they will be attacked if they return home because their
former landlord’s son knows where they live. They did not take refuge in
another part of the country because they fear that Boko Haram’s influence is
spreading.
[6]
The Applicants arrived in Edmonton on November
30, 2011, and travelled to Fort McMurray, where the Primary Applicant’s
daughter is attending school on a student visa. They made a claim for refugee protection
on December 19, 2011.
III.
Decision Under Review
[7]
The RPD dismissed the Applicants’ claim after
finding that they would be safe if they relocated to the Niger Delta region of Nigeria or a different district within Lagos. This is referred to as an Internal Flight Alternative
(IFA). It reached this conclusion after reviewing the documentary evidence and
finding that Boko Haram’s activities are largely concentrated in Northern and Central Nigeria where hostilities between Christians and Muslims are high. It also found
that, although Boko Haram has carried out targeted attacks against Christians,
it has likely killed more Muslims because its operations are based in the
Muslim-dominated North.
[8]
On the issue of credibility, the RPD found that
the Applicants did not provide sufficient documentary evidence to corroborate
the incident that occurred in Benin City. Nor did they corroborate their move
to Borno State in 2009. Despite these concerns, the RPD accepted the factual
basis of the Applicants’ narratives for the purposes of the IFA analysis.
[9]
The RPD found that the majority of Nigeria’s Christians are concentrated in the South, including around the Niger Delta.
Therefore, it would not be unreasonable for the Applicants to relocate to this
area because they would not be prevented from practising their religion. With
regard to Lagos, the RPD noted that the Primary Applicant’s husband currently
resides there, and that the Applicants lived there without incident from
January 2010, until they left for Canada in November 2011.
[10]
The RPD concluded that it would not be
objectively unreasonable for the Applicants to relocate to the Niger Delta
because the Primary Applicant has a number of skills that would enable her to
find new employment and they would not be prevented from practising their
religion.
IV.
Issues
[11]
This matter raises the following issue:
1.
Did the RPD reasonably conclude that the
Applicants had a viable Internal Flight Alternative (IFA) in the Niger Delta region
or within Lagos?
V.
Submissions of the Parties
A.
Applicants’ Submissions
[12]
The Applicants rely on Rasaratnam v Canada (MEI), [1992] 1 FC 706 (FCA) [Rasaratnam], which set out a two-part test
to determine whether a refugee claimant has a viable IFA. First, the Board must
be satisfied, on a balance of probabilities, that there is no serious
possibility the claimant will face persecution in the part of the country where
it finds an IFA to exist. Second, after considering all of the circumstances,
including those particular to the applicant, the Board must find that it would not
be unreasonable for the claimant to seek refuge in that location (at para 10).
[13]
The Applicants submit that the RPD erred in
determining they had an IFA for two reasons. First, it only gave reasons for
why the Niger Delta is a reasonable IFA, but did not explain why Lagos is a reasonable IFA. Second, the RPD did not consider the Applicants’ specific
circumstances before concluding that they would not face a risk of persecution
in the Niger Delta because the majority of the population in that region is Christian.
This conclusion fails to account for the fact that they were already attacked
by Boko Haram and the Primary Applicant’s other son was killed during that
incident.
[14]
The RPD also erred in concluding that because
Boko Haram has killed both Muslims and Christians, the Applicants “will not be subjected to violence or attacks that are not
faced by the general population as a whole.” The Applicants submit that
there is no evidence to support the conclusion that Muslims are killed because
they are Muslim. Rather, Boko Haram targets only those who are opposed to the
creation of an Islamic state, which includes Christians as well as some
Muslims. Therefore, the Applicants are not at risk because the general
population is subject to attacks, but rather, they are at risk because they
belong to a specific group - Christians who have previously been attacked by
Boko Haram.
[15]
The RPD failed to consider and analyze all of
the documentary evidence, which confirms that Boko Haram’s activities are not
limited to the Northern parts of Nigeria. The Applicants refer to several
passages from the U.S. Department of State’s Country Reports on Human Rights
Practices for 2011 – Nigeria (the Country Report) which suggest that Boko
Haram’s activities are more widespread:
One of the most serious human rights problems
during the year were abuses committed by the militant sect known as Boko Haram,
which is responsible for killings, bombings, and other attacks throughout the
country.
The militant sect known as Boko Haram
perpetrated killings and bomb attacks throughout the country. The sect
continued to mount regular assaults and bombings in Borno and Bauchi states.
The sect claimed responsibility for the January 1 bombing of the Mogadishu
Barracks in Abuja, the July 16 suicide bombing of the police headquarters in Abuja, and the August 26 suicide bombing of the UN headquarters in Abuja. By the end of
the year, the government and Boko Haram had not engaged in dialogue.
Killings and kidnappings by militant groups in
the Niger Delta continued, despite the president Yar’Adua’s offer of amnesty in
October 2009.
The militant Islamic group is fighting to
overthrow the government and create an Islamic state.
Boko Haram have issued a statement calling for
continued violence until the country embraces Islam.
[16]
The RPD has an obligation to provide reasons for
why it prefers other evidence when “there is important
evidence that runs directly contrary to the Board’s finding on a central issue”
(Garcia v Canada (MCI), 2005 FC 807 at para 12). The RPD’s failure to
consider the evidence from the Country Report, or to comment on why it did not
accept this evidence, has tainted the decision and therefore the decision
should be considered a nullity (Chandler v Alberta Association of Architects,
[1989] 2 S.C.R. 848 at 863).
B.
Respondent’s Submissions
(1)
Standard of Review
[17]
The RPD’s conclusion on the existence of an IFA
is a finding of fact, which is reviewable on the standard of reasonableness.
Therefore, this finding ought to be accorded a substantial degree of deference.
The reviewing Court should only intervene if it finds the RPD’s decision to be
unreasonable. A reasonable decision is one that is based on conclusions that
are justifiable, transparent and intelligible (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
(2)
Internal Flight Alternative
[18]
On the first branch of the test from Rasaratnam,
the Respondent submits that it was reasonable for the RPD to conclude that the
Applicants do not face a serious possibility of persecution in the Niger Delta
because the majority of the population there is Christian. The evidence before
the Board did not support the Applicants’ contention that Boko Haram is active
throughout Nigeria. Rather, the relevant country reports indicated that their
activities are largely confined to Northern Nigeria, where the majority of the
population is Muslim.
[19]
It was also reasonable for the Board to conclude
that another part of Lagos offered a viable IFA because the Applicants adduced
no evidence of mistreatment while residing there from January 2010, until their
departure to Canada in November 2011. Nor did they provide any evidence that
the Primary Applicant’s husband has experienced mistreatment while remaining in
Lagos.
[20]
On the second branch of the Rasaratnam
test, the Respondent submits the RPD reasonably concluded that it would not be
unreasonable for them to relocate to the Niger Delta. The Applicants did not
adduce “actual and concrete evidence” of any
conditions that would jeopardize their life or safety in the Niger Delta or Lagos. The Primary Applicant also failed to establish that she would not be able to find
employment in Niger Delta.
[21]
The Respondent rejects the argument that the RPD
failed to consider relevant documentary evidence, which according to the
Applicants, confirms the presence of Boko Haram throughout Nigeria. When these passages are viewed in their proper documentary context, it becomes apparent
that the RPD did not err in concluding that Boko Haram’s activities are
confined to Northern Nigeria.
[22]
For example, the first two passages cited by the
Applicants are extracted from the Country Report’s half-page Executive Summary,
which is intended to provide only a general snapshot of human-rights abuse in Nigeria. The remaining body of the report explains that Boko Haram’s hostilities are
concentrated in North and Central Nigeria. The Country Report does not mention
any hostilities occurring in the Southern region.
[23]
Furthermore, the RPD referred to three other
reports to substantiate its conclusion that Boko Haram’s activities are
concentrated in North and Central Nigeria. The general statements do not
contradict nor supersede the specific references to states, cities and
districts in Northern Nigeria where Boko Haram is active.
VI.
Analysis
A.
Standard of Review
[24]
The determination of a viable internal flight
alternative is a fact-driven analysis that should be reviewed on the
reasonableness standard (Diaz v Canada (MCI), 2008 FC 1243 at para 24; Smirnova
v Canada (MCI), 2013 FC 347 at para 19; Dias v Canada (MCI), 2012 FC 722 at para 11).
[25]
Therefore, the RPD’s conclusion that the
Applicants have a viable IFA will not be disturbed unless it can be shown that
this conclusion does not fall within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir at para 47).
B.
Internal Flight Alternative
[26]
I agree with the Respondent that the RPD came to
a reasonable conclusion in finding that it would not be unreasonable for the
Applicants to resettle in the Niger Delta or to relocate within Lagos.
[27]
As noted by both parties, in Rasaratnam, the
Federal Court of Appeal set out a two-part test for establishing an IFA. To
reiterate, in order to find an IFA, the RPD must be satisfied that (1) the
claimant would not face a serious possibility of persecution in the part of the
country where the IFA is alleged to exist and (2) in all the circumstances,
including those particular to the claimant, the conditions in that part of the
country are such that it would not be unreasonable for the claimant to seek
refuge there (at para 10).
[28]
Once the possibility of an IFA is raised, the
burden shifts to the claimant to prove, 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” (Thirunavukkarasu
v Canada (MEI) (1993), [1994] 1 FC 589 at para 9 (FCA) [Thirunavukkarasu]).
This is an objective test. Therefore, “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 unless they can show
that it is objectively unreasonable for them to do so” (Thirunavukkarasu
at para 12).
(1)
No serious possibility of persecution where IFA
is alleged to exist
[29]
According to the Applicants, the RPD failed to
provide reasons for why a different neighbourhood or district in Lagos would provide a reasonable IFA. However, a review of the decision shows that the RPD
gave a number of reasons to support its finding that the Applicants did not
face a serious possibility of persecution if they were to move within Lagos:
(1) the Primary Applicant’s husband recently returned there after visiting in
Canada; (2) the Applicants returned there after the alleged attack in 2010; (3)
the Applicants resided there without incident from January 2010, until leaving
in November 2011; and (4) the Primary Applicant’s husband continues to live there
without reported incident.
[30]
The test for establishing a well-founded fear of
persecution is forward-looking (Giron v Canada (MCI), 2013 FC 7
at para 50). Nevertheless, the RPD is required to assess past incidents of
persecution as this evidence “is one of the most
effective means of showing that a fear of future persecution is objectively
well-founded” (Natynczyk v Canada (MCI), 2004 FC 914 at para 71).
[31]
In this case, the RPD’s decision demonstrates
that, despite having some credibility concerns, it accepted the past incident
described in the Applicants’ narrative. Furthermore, the reasons described
above show that the RPD considered whether the Applicants experienced any
additional persecution while living in Lagos. The record does not reveal any
events involving Boko Haram, or their former landlord’s son, after the January
2010 incident.
[32]
With regard to the forward-looking aspect of the
test, the RPD also satisfied itself that the Applicants were not at risk for
future persecution by Boko Haram in either Lagos or the Niger Delta. The RPD
reached this conclusion after reviewing the documentary evidence and finding
that Boko Haram is not active in Southern Nigeria.
[33]
The Applicants contend that in reaching this
conclusion, the RPD failed to consider all of the evidence, or at least provide
reasons for why it ignored certain evidence. It is well-established that the
RPD is presumed to have considered all of the evidence, absent strong
indications to the contrary (Flores v Canada (MCI), 2008 FC 723 at para
15). In this case, the Applicants failed to rebut this presumption. I agree
with the Respondent that the passages cited by the Applicants are taken out of
context or are too generalized to be considered contrary to the other findings
made by the RPD. The Country Report clearly explains that Boko Haram’s presence
is not widespread through Nigeria, but is actually concentrated in Borno and Yobe States in the North.
[34]
Other evidence supports the RPD’s finding that
Boko Haram’s activities are confined to Northern and Central Nigeria. In reviewing the articles and reports submitted to the RPD, I found only one
article that refers to an attack planned by Boko Haram in Lagos. However, the
Nigerian authorities prevented this bombing before it occurred. The remaining
evidence referred to Boko Haram attacks directed towards Christians in the
Northern states of Borno, Bauchi, Yobe and Kano, as well as the central provinces of Kaduna and Plateau, and Nigeria’s capital city, Abuja.
[35]
The Applicants also allege that the RPD erred on
the first prong of the Rasaratnam test because it did not consider their
specific circumstances as Christians who have already been attacked by Boko
Haram. As noted in Thirunavukkarasu, a refugee claimant has the onus to
establish every part of the refugee claim, including whether it would be
unreasonable to seek refuge in a proposed IFA. In this case, the Applicants
failed to adduce any evidence that their position as Christians who have
already been attacked by Boko Haram put them at risk for future attacks in the
Southern part of Nigeria.
[36]
When the Primary Applicant was asked at the
hearing whether she would be safe in another part of the country, she responded
that the problem is “all over” and “nowhere is safe.” However, she did not provide further
detail to explain why she feels unsafe everywhere. Nor did she provide details
about why she continues to fear her former landlord’s son, other than
explaining that he knows where their current family home is located.
[37]
For all of these reasons, the RPD reasonably
concluded that the Applicants, as Christians who have already been attacked by
Boko Haram, do not face a serious risk of persecution if they relocate within Lagos or to the Niger Delta.
(2)
Not objectively unreasonable for claimant to
seek refuge in IFA
[38]
In Thirunavukkarasu, Linden JA elaborated
on the meaning of an “unreasonable” IFA:
the alternative place of safety must be
realistically accessible to the claimant. Any barriers to getting there should
be reasonably surmountable. The claimant cannot be required to encounter great
physical danger or to undergo undue hardship in travelling there or in staying
there…But neither is it enough for refugee claimants to say that they do not
like the weather in a safe area, or that they have no friends or relatives
there, or that they may not be able to find suitable work there. If it is
objectively reasonable in these latter cases to live in these places, without
fear of persecution, then IFA exists and the claimant is not a refugee.
(at para 14)
[39]
In Ranganathan v Canada (MCI) (2000),
[2001] 2 FC 164 (FCA) [Ranganathan], the Federal Court of Appeal
interpreted Linden JA’s comments in Thirunavukkarasu as establishing
a very high threshold for the unreasonable
test. 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.
(at para 15)
[40]
The Respondent submits that the Applicants did
not adduce “actual or concrete evidence” of any
conditions that would jeopardize their lives and safety in the Niger Delta or Lagos. I agree. As discussed above, there was no evidence before the Board to show that
Boko Haram is active in either of these regions, or that they would encounter
Boko Haram while travelling to the Niger Delta.
[41]
The second branch of the Rasaratnam test
requires the RPD to consider “all of the circumstances
including circumstances particular to [the Applicants]” (at para 10). In
this case, the RPD considered that the Applicants would not be prevented from
practising their religion because the majority of the population in the Niger
Delta is Christian. The evidence supports this finding. Therefore, it was
reasonable for the RPD to conclude that the Applicants would be able to
practice their faith if they relocated.
[42]
The RPD also found that because the Primary
Applicant is “industrious and resourceful” and
worked as a nurse for many years in Nigeria, there is no reason why she would
not be able to continue her previous career if she returned to Nigeria. The
Applicants did not adduce any evidence to suggest she would not be able to find
employment if she returned to Nigeria. Therefore, absent any evidence to the
contrary, the RPD reasonably concluded that it would not be unreasonable for
the Applicants to relocate within Lagos or to the Niger Delta.
VII.
Conclusions
[43]
For all of the preceding reasons, the RPD’s
conclusion that the Applicants have a viable IFA is justified, transparent and
intelligible, and therefore should not be disturbed (Dunsumir at para
47). As a result, this application for judicial review should be dismissed.
[44]
Neither party has proposed a question of general
importance for certification.
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