Docket: IMM-3828-16
Citation:
2017 FC 385
Ottawa, Ontario, April 20, 2017
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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MARY OLUWATOBI
OLALERE
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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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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review
of a decision by the Refugee Appeal Division [RAD], dated August 26, 2016
[Decision], which dismissed the Applicant’s appeal of a decision by the Refugee
Protection Division [RPD] that denied her claim for refugee protection.
II.
BACKGROUND
[2]
The Applicant is a 19-year-old citizen of
Nigeria who entered Canada on a student visa on January 24, 2016. She claims a
fear of return to Nigeria based on her refusal to undergo female genital
mutilation [FGM] and to marry Chief Olusoji Okadapo.
[3]
On February 4, 2016, the Applicant filed a claim
for refugee protection, which was heard on April 20, 2016. A subsequent
decision by the RPD dated May 3, 2016 rejected the Applicant’s claim on the
basis that she was not credible and that there was an internal flight
alternative [IFA] available.
[4]
The Applicant then appealed the RPD’s decision to
the RAD on the basis that the RPD had erred in its credibility findings and its
assessment of the IFA. Since new evidence was not submitted by the Applicant,
the RAD proceeded without an oral hearing, as required by s 110(3) of the IRPA.
III.
DECISION UNDER REVIEW
[5]
A Decision communicated by the RAD to the Applicant
on September 2, 2016 confirmed the RPD’s decision and dismissed the Applicant’s
appeal.
[6]
In its analysis of the merits of the appeal, the
RAD focused on the determinative issue of the IFA and applied the two-prong
test from Rasaratnam v Canada (Minister of Employment and Immigration),
[1992] 1 FC 706 (CA) [Rasaratnam].
A.
First Prong
[7]
The RAD began with an assessment of the first
prong, which requires the satisfaction, on a balance of probabilities, that
there is no serious possibility of the claimant being persecuted in the part of
the country in which an IFA is found to exist and/or the claimant would not be
personally subject to a risk to life or a risk of cruel and unusual treatment,
punishment, or danger, believed on substantial grounds to exist in the IFA. In
this instance, the IFA locations identified were Lagos, Ibadan, Port Harcourt,
and Abuja.
[8]
The RAD considered the Home Office UK Border
Agency Report [UKBA Report] which advised that: Nigerians had the right to
travel within the country; internal relocation to escape ill treatment from
non-state agents was available and that such relocation would not be unduly
harsh; exit and re-entry regulations for Nigerians did not exist; and Nigerians
are permitted to travel abroad and apply for asylum without suffering human
rights violations upon return. Additionally, there was information that
indicated the Nigerian Police Force [NPF] was ineffective, as it suffered from
a serious lack of resources, including office space, personnel, training,
skilled leadership, vehicles, and communication equipment. This information led
the RAD to conclude that it was unlikely that anyone would know the Applicant
had returned to Nigeria or be able to track her down unless she notified them.
[9]
Next, the RAD evaluated the transcript from the
RPD hearing, in which the Applicant stated a fear of being subject to dangerous
rituals and undue torture by her father and Chief Okadapo upon her return to
Nigeria. However, the RAD noted that the Applicant did not contest the RPD’s
findings on the first prong of the IFA test, nor did she provide persuasive
evidence to advance the argument that she is not free from persecution aside
from a simple statement. Accordingly, the RAD agreed with the RPD’s analysis
and findings on this issue.
[10]
The RAD then considered the possibility that
people would search for the Applicant upon her return to Nigeria. In this regard,
the RAD noted: the Applicant lacked a high profile in Nigeria; the Applicant
had not alleged such a search for her had occurred after her departure from
Nigeria; and the lack of evidence that individuals such as her family and Chief
Okadapo had the interest or resources for such a search in a country of 177
million people, particularly in the proposed IFA locations, all of which had
populations in excess of 1.5 million.
[11]
Based upon these considerations, the RAD was not
convinced that the Applicant had established, on a balance of probabilities,
that she would be tracked down in the IFA locations. The Applicant had not
provided persuasive evidence that anyone continued to search for her throughout
Nigeria, nor that such a search would be successful, given the NPF’s lack of
effectiveness and the fact that the Nigerian authorities would not be notified
of her return if she did not advise them. Accordingly, the first prong was not satisfied.
B.
Second Prong
[12]
The second prong requires that the conditions in
the IFA locations are such that it would not be unreasonable, in all
circumstances, for the claimant to seek refuge there.
[13]
The RAD looked at the RPD’s decision, in which
the following were noted: the Applicant had good employment potential and could
support herself in the IFA locations; the Applicant could receive continued
support from her mother; and the availability of resources for vulnerable women
facing forced circumcision. Although the Applicant had argued a lack of due
consideration to evidence that indicated women could be stigmatized in their
new communities as a result of social and cultural constraints, or face
economic constraints, the RAD found that the Applicant faced limited barriers
because of her education and ability to speak both English and the national
language.
[14]
The test of reasonableness required an
evaluation of the conditions in the IFA for the Applicant or similarly situated
persons. In accordance with Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1994] 1 FC 589, the threshold for
unreasonableness is high and hardship associated with dislocation and
relocation is not sufficient.
[15]
Accordingly, the RAD found, on a balance of
probabilities, that there were no serious social, economic, or other barriers
to the Applicant relocating to Lagos, Ibadan, Port Harcourt, or Abuja, which confirmed
the RPD’s decision. As such, the RAD also found, on a balance of probabilities,
that the Applicant had an accessible and viable IFA in the aforementioned
cities.
[16]
Upon this determination, the burden of proof
shifted to the Applicant to demonstrate that the IFA option did not exist by
showing a serious possibility of being persecuted in the new location or that
removal would subject her personally to a risk of life, cruel and unusual
treatment or punishment, or a danger of torture. The RAD found that the
Applicant had failed to discharge this onus. As a result, the RAD did not assess
the credibility issue raised by the Applicant. The RAD found the Applicant was
not a Convention refugee or a person in need of protection and dismissed the
appeal.
IV.
ISSUES
[17]
The Applicant submits that the following are at
issue in this application:
1. Whether the RAD erred when it failed to conduct an independent
assessment of the claim?
2. Whether the RAD erred in its IFA assessment?
V.
STANDARD OF REVIEW
[18]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] 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 settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[19]
Decisions of the RAD in the context of an IFA
analysis are reviewed under the standard of reasonableness: Ugbekile v
Canada (Citizenship and Immigration), 2016 FC 1397 at paras 12-14.
[20]
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 para 47, and Khosa v
Canada (Citizenship and Immigration), 2009 SCC 12 at para 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.”
VI.
STATUTORY PROVISIONS
[21]
The following provisions from the IRPA
are relevant in this proceeding:
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Decision
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Décision
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111 (1) After
considering the appeal, the Refugee Appeal Division shall make one of the
following decisions:
(a) confirm
the determination of the Refugee Protection Division;
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111 (1) La
Section d’appel des réfugiés confirme la décision attaquée, casse la décision
et y substitue la décision qui aurait dû être rendue ou renvoie, conformément
à ses instructions, l’affaire à la Section de la protection des réfugiés.
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VII.
ARGUMENTS
A.
Applicant
[22]
The Applicant submits that the Decision is
unreasonable because the RPD erred by not conducting a thorough analysis of her
subjective fear, thereby basing its conclusion on the availability of an IFA on
arbitrary and capricious grounds.
(1)
First Prong
[23]
The Applicant submits that the RAD failed to
properly consider the adduced evidence regarding detection in the IFA
locations. In the Decision, the RAD found that the Applicant only provided a
statement that she feared persecution, which ignores the evidence such as the viva
voce testimony, the narrative in the Applicant’s basis of claim [BOC], and
the affidavits that discussed the influence of the agent of persecution.
[24]
In her BOC, the Applicant asserted that her
agent of persecution in Nigeria, Chief Okadapo, had ties to the police who
could aid in the search of the Applicant if she returned to Nigeria. The
affidavits of Toyin Olalere and Hannah Ojo also spoke to Chief Okadapo’s
connections in Nigeria and his intention to subject the Applicant to FGM. The
Decision does not contain any indication that the RAD assessed this evidence,
which gives rise to an inference that the evidence was overlooked: Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at
para 17 [Cepeda].
[25]
The Applicant argues that the RAD appeared to require
definitive proof of the agents’ influence, which is a standard beyond the
balance of probabilities and a reason for judicial intervention: Henguva v
Canada (Citizenship and Immigration), 2013 FC 483 at para 16.
[26]
Additionally, the Applicant contends the RAD
selectively preferred evidence in the UKBA Report. In concluding that the NPF
would not be able to find the Applicant due to a lack of resources, including
communications equipment and vehicles, the RAD ignored the section in the report
that discussed the cutting-edge technology provided to the NPF, such as state
of the art vehicles equipped with modern technology.
[27]
The Applicant also takes issue with the RAD’s
finding that the Applicant had failed to provide a reasonable explanation as to
why she believed she would be discovered in the IFA locations. The Applicant
had submitted that the presence of Boko Haram in Abuja as an explanation. The
RAD accepted this explanation but said Boko Haram was limited to high-level
attacks according to the IRB National Documentary Package [NDP], which
conflicts with the evidence from the same NDP that states that Boko Haram
attacks schools, airports, and other public places in Lagos and Abuja, two of
the IFA locations. The RAD’s finding that there was no evidence that Boko Haram
would pursue the Applicant also conflicts with the information in the NPD that
Boko Haram persecutes members of the Applicant’s religion and has committed
gross human rights violations with impunity as a result of inadequate government
protection. In addition to demonstrating another example of selective use of
evidence, this finding is also a fundamental error, as evidence of similarly
situated persons at risk is enough to ground a lack of state protection: Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689.
[28]
The Applicant submits that the RAD clearly
failed to engage with the evidence, while stating the Applicant had adduced no
evidence of risk in the IFA locations. As a result of the RAD’s failure to
conduct a thorough analysis of the evidence, the Decision cannot stand.
(2)
Second Prong
[29]
Similarly, the Applicant takes the position that
the RAD failed to properly consider the adduced evidence regarding
reasonableness of relocation to the IFA locations in the second prong of the
test.
[30]
The RAD closed its mind to documentary evidence
that speaks to the challenges of relocation for women in Nigeria. The profile
of the Applicant should have been taken into consideration, yet the RAD did not
acknowledge that the Applicant is a 19-year-old female who has always lived
with her parents before coming to Canada and is clearly vulnerable. The
Applicant testified that: she did not know the culture, language, and customs
of the people in the IFAs; did not have a home or house to go to in the IFAs; and
that she had never worked, and did not have employment waiting in the IFAs.
Contrary to the jurisprudence, the RAD was not sensitive to the age, gender,
level of education, ethnicity, religion, financial circumstances or ability to
secure a livelihood, or support network of the Applicant: Idrees v Canada
(Citizenship and Immigration), 2014 FC 1194.
[31]
In her appeal, the Applicant had adduced
objective documentary evidence on discrimination for those who relocate in
Nigeria, such as the NDP, UK Country of Origin Information Report on Nigeria,
and British-Danish 2008 FFM Report. The RAD ignored pertinent information such
as: settlers were often denied access to the resources, rights, and privileges
that locals would have; attractive, young, and single women were vulnerable to
abuse, harassment, and trafficking when relocating without economic means or
family networks; and the existence of social and humanitarian disadvantages on
women who relocate, including a lack of accommodation and job opportunities, as
well as the fear of losing their own social network. In stating that the
Applicant faced limited barriers in relocation to the IFA locations due to her
education and ability to speak the English and national languages, the RAD
failed to engage with the evidence on the difficulties that women face in
relocation within Nigeria.
[32]
Furthermore, the RAD paid no attention to the
psychological makeup of the Applicant, which is central to the question of
whether the IFA is reasonable and cannot be disregarded: Okafor v Canada
(Minister of Citizenship and Immigration), 2011 FC 1002 at paras 13, 11,
and 15 [Okafor]. Natalie Riback’s psychological assessment indicated that
the Applicant displayed symptoms of post-traumatic stress disorder, generalized
anxiety disorder, and major depressive disorder. In its determination that the Applicant
could safely relocate within Nigeria, the RAD did not engage with her
psychological condition, which is significant given that the she requires
ongoing psychological treatment.
[33]
Due to the failure to take into consideration
the aforementioned factors in the Decision, the Applicant submits that the RAD
did not consider all of the evidence in its entirety with an open mind.
(3)
Lack of Independent Assessment
[34]
The Applicant further argues that the RAD did
not make a reasonable effort to explore the arguments that she presented with
an open mind, instead choosing to continuously defer to the RPD’s finding
without weighing the issues on both sides. The RAD recounted the RPD’s
arguments and cited the same reasons in its refusal. While the RPD is owed a
measure of deference, the RAD must perform its own assessment of all of the
evidence in determining whether the RPD relied on a wrong principle of law or failed
to assess the facts to the point of making a palpable and overriding error. On
questions of fact and mixed fact and law, the RAD should apply a correctness
standard: Huruglica v Canada (Citizenship and Immigration), 2014 FC 799
at para 98.
[35]
The Applicant submits that there is little
evidence in the Decision to demonstrate that the RAD conducted an independent
assessment of her claim since there was no reference to the Applicant’s
testimony or evidence specific to the conclusion that the Applicant had a
viable IFA, and there was no identification of the arguments put forth in the
Applicant’s appeal.
[36]
Accordingly, the Applicant requests the Decision
be quashed.
B.
Respondent
[37]
The Respondent submits that the Decision is
reasonable. The RAD conducted an independent review of the evidence, as stated
multiple times throughout the Decision, with specific reference to pieces of
evidence. The few references to the RPD’s findings demonstrate an endorsement
of the RPD’s conclusions on a particular piece of evidence, not that the RAD
did not consider the claim independently. The fact that the RAD arrived at the
same conclusion as the RPD does not mean the RAD failed to conduct an
independent assessment.
[38]
Moreover, there is no error in the IFA analysis.
The RAD correctly applied the test in Rasaratnam, above. The Respondent
notes that when the issue of an IFA is raised, the onus is on the Applicant to
demonstrate that an IFA is not available; in the present case, the Applicant
failed to discharge this onus. The Respondent also notes that the Applicant did
not provide new evidence or request an oral hearing before the RAD.
(1)
First Prong
[39]
With regards to the objective documentary
evidence, the RAD noted: internal relocation to escape ill treatment from
non-state agents, as in the present case, is almost always an option in Nigeria;
in the absence of exceptional circumstances, such a relocation is not unduly
harsh; it is not illegal for Nigerians to claim asylum abroad, as the Applicant
has done; and there were no reports from Nigerian NGOs that returned failed
asylum seekers suffered human rights abuses. Therefore, the Applicant was safe
to return.
[40]
As to the fear of persecution, the RAD noted
that the Applicant did not provide persuasive evidence to support her argument
that she would not be free from persecution in the IFA locations. The RAD
reasonably found that the Applicant had failed to reasonably explain why she
feared persecution in the IFA locations, noting that, in reference to the
agents of persecution: the agents did not have the means or motivation to
search for the Applicant in the IFA locations; the agents were not alleged to
have searched for the Applicant since her departure; and the agents did not
have the resources, will, or capacity to find her in a country of 177 million.
The RAD also found the Applicant did not have a high profile and there was no
persuasive evidence of the police searching for her throughout Nigeria.
[41]
The Respondent disagrees with the Applicant’s
argument that the RAD failed to consider her evidence on fear of persecution.
The RAD specifically considered the possibility that the police would search
for her, but reasonably found the evidence was not persuasive. Moreover, the
RAD did not sate that the Applicant had not provided any evidence, but rather
that the evidence was not persuasive, on a balance of probabilities.
[42]
Consequently, the RAD’s finding that the
Applicant could live in any of the IFA locations without serious possibility of
persecution was reasonable, given the lack of persuasive evidence presented by
the Applicant to establish she could be tracked down.
(2)
Second Prong
[43]
In the analysis of the second prong, the RAD was
reasonable in concluding that the Applicant could relocate to one of the IFA
locations because there were no serious social, economic, or other barriers.
There will always be hardship with relocation, but the threshold for
unreasonableness is very high and requires conditions that would jeopardize the
life and safety of a claimant: Ranganathan v Canada (Minister of Citizenship
and Immigration), [2001] 2 FC 164 at paras 14-15.
[44]
Moreover, the guidelines do not change the
well-established test for an IFA, but rather provide guidance on the evaluation
of the weight and credibility of the evidence: Syvyryn v Canada (Citizenship
and Immigration), 2009 FC 1027 [Syvyryn]. In Syvyryn, the
decision-maker failed to take into account relevant factors by solely relying
on the fact that the claimant had 20 years of experience in the accounting
field, and by ignoring the age, gender, and personal circumstances of the
claimant. However, the present case is distinguishable because the RAD has
noted the Applicant’s level of education and language abilities as well as her
familiarity with the cultural practices and norms in the IFA locations, having
spent all of her life in Nigeria. Additionally, the RAD also noted the
Applicant’s good employment potential and financial support from her mother.
Furthermore, the RAD noted the RPD’s references to the documentary evidence
that stated there were resources available for vulnerable women facing FGM who
had relocated in Nigeria and required physical protection.
[45]
The Respondent contends that the Applicant fails
to take into account the high threshold required to challenge the viability of
an IFA and her onus to produce evidence specific to her situation. The RAD
references the Applicant’s experience, language abilities, education,
sophistication, and maternal financial support, all of which the Applicant could
rely on after relocation.
[46]
The Respondent also submits that the facts of
this case are similar to Okechukwu v Canada (Citizenship and Immigration),
2016 FC 1142 [Okechukwu] and Odurukwe v Canada (Citizenship and
Immigration), 2015 FC 613 at paras 44-49, which upheld decisions concerning
IFAs for a woman in Nigeria.
[47]
Accordingly, the Respondent takes the position
that the RAD reasonably reviewed the evidence in its IFA analysis, which finds
that there are several cities that provide a safe area for the Applicant’s
relocation. The Respondent requests that this application for judicial review
be dismissed.
(3)
Post-Hearing Submissions
[48]
The Respondent argues that the Applicant’s
reliance on Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015
SCC 61 at para 49 [Kanthasamy] is misguided and inapplicable to the
issue of IFA. That case dealt with an application for permanent residence upon
humanitarian and compassionate grounds, which the RAD does not concern itself
with. The RAD’s obligation is to grant protection to Convention refugees and
persons in need of protection and an IFA determination is in itself an
assessment that must include country conditions. A psychologist report such as
Ms. Riback’s is insufficient to counter an IFA determination. The decision in Okechukwu,
above, at para 39 found that a psychologist report “was
of little assistance to the IFA issue because it did not assess the conditions
in Nigeria or consider the psychological impact of the applicant’s relocation
within that country.” The Respondent submits that Ms. Riback’s report is
subject to the same limitations.
VIII.
ANALYSIS
[49]
The RAD found that “since
IFA is a determinative issue…there is no need to assess the credibility issue
or other issues raised by the Appellant.” So the RAD Decision deals
solely with the IFAs.
[50]
The Applicant has raised a number of points for
review. After reviewing the Decision and the submissions (written and oral) of
counsel on both sides, my conclusion is that the only point of substance raised
by the Applicant in this application is the allegation that the RAD failed to
consider the Applicant’s psychological make-up when addressing the second prong
of the test for IFAs in Rasaratnam, above.
[51]
As the Court pointed out in Okafor, above:
[13] The Court finds that the words of
Mosley J. in Cartagena v Canada (Minister of Citizenship and Immigration),
2008 FC 289 at para.11 apply to the case at bar:
[11] … Psychological evidence is
central to the question of whether the IFA is reasonable and cannot be
disregarded: Singh v. Canada (Minister of Citizenship and Immigration),
97 F.T.R. 139, [1995] F.C.J. No. 1044. The panel failed to thoroughly assess
the reasonableness of the locations suggested as viable IFAs in the context of
Mr. Cartagena’s situation and vulnerable mind-set.
[52]
The Respondent relies upon Okechukwu,
above, but the preponderance of the jurisprudence of this Court is that
psychological evidence must be considered in an IFA analysis.
[53]
The decision in Okechukwu at para 39
found that a psychologist report “was of little
assistance to the IFA issue because it did not assess the conditions in Nigeria
or consider the psychological impact of the applicant’s relocation within that
country.”
[54]
However, in addition to Okafor, above,
which says that “psychological evidence is central to
the question of whether the IFA is reasonable and cannot be disregarded,”
Justice Brown found in Asif v Canada (Citizenship and Immigration), 2016
FC 1323 at para 33 [Asif] that the determinative issue in the IFA
analysis was dependent on the assessment of the psychologist report, indicating
that psychologist reports are relevant in an IFA analysis. Justice Brown
ultimately dismissed the application because the RAD was reasonable in finding
various issues with the report including that it had: crossed the line
separating expert opinion from advocacy; made findings of credibility that
should have been reserved for the panel; made very serious conclusions
regarding the applicant’s psychological health after only one interview; and
spoke to the lack of available resources in Pakistan without providing any
evidence. However, in the present case, the RAD fails to engage the report at
all, let alone provide reasonable reasons for its dismissal. Asif was
also decided after Okechukwu and thus also after Kanthasamy.
[55]
In Verma v Canada (Citizenship and
Immigration), 2016 FC 404 at paras 34-36, Justice Strickland reviewed
the relevant jurisprudence and found as follows:
34 This Court has also held that
it is unreasonable to afford little weight to a psychological report solely on
the basis that the events it describes were not based on first hand knowledge
of the psychologist and that the RPD errs when it rejects expert
psychological evidence without basis (Lainez at para 42). Other
jurisprudence has determined that evidence of third parties who have no means
of independently verifying the facts to which they testify is likely to be
ascribed little weight, whether it is credible or not (Ferguson v Canada
(Citizenship and Immigration), 2008 FC 1067 at para 26). That principle has
been applied to decision-makers’ assessments of reports from counsellors (Forde
v Canada (Citizenship and Immigration), 2012 FC 147 at paras 30-31) and
letters from psychiatrists and other mental health professionals (Nguyen v
Canada (Citizenship and Immigration), 2015 FC 59 at paras 8-9).
35 In my view, the jurisprudence
suggests that the RAD was entitled to weigh the psychological evidence based on
the source of the facts relied on, but that the Reports could not be
dismissed solely because they relied on evidence from the female Applicant.
However, that is not what the RAD did in this case. Here the RAD considered the
totality of the evidence, including the Riback and Choi Reports, in determining
that a suitable IFA was available to the Applicants. It did not afford the
Riback and Choi Reports little weight solely because of the self-reporting, it
also found that the analyses were not accompanied by or based on clinical
testing. And while the Applicants take issue with the RAD's statement that the
issues that caused the female Applicant to seek further medical intervention
were not necessarily the direct result of the problems she encountered in
India, the Choi Report specifically mentions a number of factors that were
attributed to the female Applicant's overall distress. The RAD further found
that the Applicants had failed to establish that treatment would be unavailable
to the female Applicant in the proposed IFA locations. In my view, given the
foregoing, the RAD's weighing of the psychological evidence was not
unreasonable in this case, particularly considering the lack of any evidence that
the female Applicant followed up on the treatment and medication proposed by
the authors of those reports.
36 Further, as stated in Momodu
and Abdalghader, the onus or burden of proof is on the Applicants to
prove that no IFA exists or that the proposed IFA is unsuitable. In the
absence of evidence that the female Applicant would be unable to obtain the
recommended treatment and medication in the proposed IFA, this aspect of the
RAD's decision falls within the possible, acceptable outcomes (see for
example, Alves Dias v Canada (Citizenship and Immigration), 2012 FC 722
at para 22; Gonzalez v Canada (Citizenship and Immigration), 2008 FC
1259 at para 12 [Gonzalez]).
(emphasis added)
[56]
In my view, this suggests in the present case,
that Ms. Riback’s report should at least have been acknowledged and assessed.
[57]
The psychological evidence in the present case
came from the assessment completed by Ms. Riback, who is a therapist in
Toronto. Ms. Riback made the following points of note:
Based on my observations and evaluations, it
is my clinical impression that Ms. Olalere is exhibiting symptoms consistent
with post-traumatic stress disorder. Post-traumatic stress disorder (PTSD) is a
condition created by exposure to one or more psychologically distressing events
outside the range of usual human experience, which would be markedly
distressing to almost anyone...
Ms. Olalere is also exhibiting symptoms
consistent with generalized anxiety disorder and major depressive disorder. She
is very concerned about her state of mind and eager to heal psychologically and
emotionally; however, Ms. Olalere cannot begin to work through the past events
and trauma she has experiences as long as there is an imminent threat of being
sent back to Nigeria. I believe that Ms. Olalere’s return to Nigeria will very
likely cause her mental and physical stress symptoms to increase considerably,
and for her psychological and emotional state to deteriorate. The anxiety and
depression that Ms. Olalere is currently experiences [sic] is very
concerning, especially considering her age. . . . A young woman, such as Ms.
Olalere, who has suffered from such fear and trauma, requires appropriate
counseling and a strong supportive network in order to rebuild a sense of
security.
If Ms. Olalere was to remain in Canada, a
plan of medical and therapeutic care could be implemented involving medication,
proper counseling, and strategies which could help her work through the
depression, anxiety, and trauma she currently feels.
[58]
The RAD makes no attempt to engage with this
evidence which is central to the issue of whether the IFA is reasonable for the
Applicant.
[59]
In my view, the RAD’s failure to deal with this
evidence renders the Decision unreasonable. The evidence contradicts the
principal finding that “there are no serious social,
economic or other barriers to the Appellant’s relocating to the cities of
Lagos, Ibadan, Port Harcourt or Abuja.” This means that the RAD should
have specifically addressed the psychological evidence and its failure to do so
means that, on the principles in Cepeda, above, the Court finds it was
either overlooked or deliberately disregarded.
[60]
In each individual case, it seems to me, it will
be necessary to examine what the psychological report says, and whether it
raises issues that should be addressed in the second prong of the IFA analysis.
Here, the report says that “Ms. Olalere’s return to
Nigeria will very likely cause her mental and physical stress symptoms to
increase considerably, and for her psychological and emotional state to
deteriorate.” It seems to me that this is a consideration that is
material to the Applicant’s ability to function in one of the suggested IFAs
and should have been addressed. The RAD did not need to accept it as decisive,
but it is material and was either overlooked or ignored. In any reconsideration
the RAD will also need to consider whether there is any evidence presented to
show that the psychological help the Applicant needs is not available at one of
the IFAs in Nigeria.
[61]
Counsel agree there is no question for certification
and the Court concurs.
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