Docket: IMM-3248-16
Citation:
2017 FC 635
Ottawa, Ontario, June 29, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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LOVETH OGHOMWEN
OSAGIE
BRITNEY OLAMIDE
DUROJAIYE
KENDRICK OLADIP
DUROJAIYE
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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.
Overview
[1]
Loveth Oghomwen Osagie and her two children, the
Applicants, are citizens of Nigeria. They left Nigeria in August 2015 and made a
claim for refugee protection on the basis that members of her husband’s family
believed Ms. Osagie and her daughter were witches and wanted them to undergo
female genital mutilation. The original claim also included Ms. Osagie’s husband
and their third child who is a citizen of the United States.
[2]
Before the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada the Minister of Public Safety
[Minister] intervened on the basis that there was serious reason to believe
that Ms. Osagie’s husband had committed a serious non-political crime excluding
him from refugee protection. On the basis of the Minister’s intervention the Applicants
sought to have the husband’s claim disjoined before the RPD. The request was
denied on the basis that the issues raised were similar, the family remained a
family unit living together, and Ms. Osagie’s claim was based on what was told
to her by her husband. The RPD concluded the husband was excluded from
protection and determined that the remaining claimants were not in need of
protection. In reaching its conclusion the RPD identified credibility concerns
and concluded that an Internal Flight Alternative [IFA] was available.
[3]
The RPD decision was appealed to the Refugee
Appeal Division [RAD]. The RAD concluded that Ms. Osagie’s husband was an
excluded person on the basis of serious non-political criminality and that her one
son who is a citizen of the United States was not in need of protection. In
regard to the remaining Applicants before this Court the RAD found that they had
an IFA in Abuja or Port Harcourt and dismissed the appeal.
[4]
The Applicants now seek judicial review of the
RAD decision. Ms. Osagie’s husband and her son are not applicants in this
matter. Ms. Osagie’s affidavit evidence refers to her husband as “estranged”. In written submissions Ms. Osagie argues
that the IFA analysis is flawed because it failed to consider the circumstances
of a single mother with two minor children. Ms. Osagie’s written submissions further
argue that the RAD erred in: (1) not making an overall credibility finding; (2)
in not conducting a state protection analysis; and (3) in implicitly rendering
implausibility findings.
[5]
Having carefully considered the submissions of
the Parties I am unable to conclude that the RAD committed a reviewable error
in finding that a viable IFA was available to the Applicants in Nigeria. The RAD
identified the correct IFA test and applied that test to the facts that were
before it based on the record and the submissions of the Applicants. The IFA
finding is determinative. The application is dismissed for the reasons that
follow.
II.
Standard of Review
[6]
This issue raised in this Application engage
questions of mixed fact and law that are to be reviewed against a standard of
reasonableness. (Kastrati v Canada (Minister of Citizenship and Immigration),
2008 FC 1141, 172 ACWS (3d) 180; Dunsmuir v New Brunswick, 2008 SCC 9 at
paras 47, 53-56and 62, [2008] 1 S.C.R. 190 [Dunsmuir]). Where the decision
falls within the range of reasonable acceptable outcomes which are defensible
in respect of the facts and the law the Court will not intervene (Dunsmuir at
para 47).
III.
Analysis
A.
Preliminary Issue
[7]
The affidavit of Ms. Osagie affirmed in support
of this Application states she is estranged from her husband. The Respondent notes
that Ms.Osagie does not indicate when the estrangement began and provides no additional
evidence of estrangement. The Respondent argues that there was no indication in
the evidence before the RAD that the couple was estranged, rather the evidence
indicated they were together as husband and wife. The Respondent submits the
evidence of estrangement is new evidence that was not before the RAD and
therefore should be struck or disregarded.
[8]
In Lemiecha v Canada (Minister of Employment
and Immigration) (1993), 72 FTR 49, 24 Imm LR (2d) 95 [Lemiecha],
Justice Frederick Gibson stated at paragraph 4 that: “It
is trite law that judicial review of a decision of a federal board, commission
or other tribunal should proceed on the basis of the evidence that was before
the decision-maker.” While there are exceptions to the principle that a
judicial review will proceed on the basis of the evidence before the decision-maker,
none of those exceptions are applicable here (Association of Universities
and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright),
2012 FCA 22 at para 20; 428 NR 22).
[9]
The evidence of estrangement is new evidence and
will not be considered on this Application.
B.
Was the IFA determination reasonable?
[10]
Ms. Osagie’s counsel argues that the IFA decision
is unreasonable. Counsel submits that the failure to consider the claim of Ms.
Osagie and her children separately from the circumstances of her husband, the
absence of a general credibility finding and the failure to complete a state
protection analysis all undermine the reasonableness of the IFA decision. Counsel
further submits the RAD decision simply rubberstamps the RPD decision. I
disagree.
[11]
At the outset, I note that the appellants before
the RAD included Ms. Osagie’s husband and her son. I also note the appellants
did not make any submissions to the RAD to the effect that the appeals should
be considered separately or that circumstances warranted a separate analysis
for any one or more of the appellants.
[12]
It is well-established that each refugee claim
must be considered on its individual merits. However this principle does not
exclude a consideration of family and social circumstances in assessing issues relevant
to the claim, including the viability of an IFA. These circumstances cannot, as
Ms. Osagie’s counsel submits, be ignored or overlooked simply on the basis that
one member of the family has been found to be excluded on a separate ground.
[13]
The evidence before the RAD was that the
appellants were a family unit and living as such. There was no evidence placed
before the RAD indicating these circumstances had changed. The RAD was under no
obligation to speculate as to future possible circumstances in the conduct of
its analysis on the appeal. The RAD did not err in considering the
circumstances of Ms. Osagie and her children within the context of her family
circumstances and as those circumstances were reflected in the evidence before
the RAD.
[14]
In addressing the question of an IFA the RAD began
its analysis by citing the well-established two prong IFA test, (1) there is no
serious possibility of the claimant being persecuted within the prosed IFA; and
(2) it would not be unreasonable in all the circumstances, including those
particular to the claimant, for the claimant to seek refuge in the IFA (Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FCR 706, [1991]
FCJ No 1256 (CA) Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FCR 589, 109 DLR (4th) 682 (CA).
[15]
In considering the reasonableness of the
proposed IFAs the RAD undertook a detailed examination of the circumstances. It
noted the absence of any evidence to indicate the alleged agents of
persecution, members of Ms. Osagie’s husband’s family, possessed a profile that
would allow them to locate the Applicants. The RAD noted that the evidence
indicated the family members lacked the resources and authority within society
to locate or initiate a search for the Applicants. The RAD also noted the
absence of any evidence in support of the claim that Ms. Osagie’s husband was
known throughout Nigeria due to appearances on television.
[16]
The RAD reasonably concluded that it was
unlikely people in Port Harcourt or Abuja would know or recognize the Applicants
or perceive Ms. Osagie to be a witch based on the evidence presented. The RAD reasonably
concluded that the Applicants failed to “establish, on
a balance of probabilities, that there [was] a serious possibility of being
persecuted in the IFA cities or that they would be personally subjected to a
risk to life or a risk of cruel and unusual treatment or punishment or a
danger, believed on substantial grounds to exist, of torture in Abuja, or Port
Harcourt.”
[17]
In reaching this conclusion the RAD also
considered any risk from the Nigerian Police Force. The RAD noted: the absence
of any persuasive evidence indicating the Applicants were being sought by
police or that others were actively searching for them; the size of the country;
the population within the IFA cities; and the lack of motivation and ability of
the Nigerian Police Force to apprehend the Applicants. After addressing and
weighing these factors the RAD reasonably concluded on a balance of
probabilities that there was no serious possibility of persecution within the
identified IFAs. This finding was reasonably open to the RAD in light of the scarcity
of evidence demonstrating a risk of persecution or the absence of state
protection.
[18]
In addressing the second prong of the test, the
RAD reviewed the psychological evidence and accepted the diagnosis that Ms.
Osagie suffered from “stessor related disorder with
prolonged duration”. The RAD noted the absence of any evidence
indicating ongoing or follow-up treatment and cited the objective documentary
evidence before it identifying the availability and accessibility of adequate mental
health services in Abuja and Harcourt.
[19]
The RAD assessed the ability to relocate to one
of the proposed IFAs based on the evidence before it. The RAD found that the
situation of the appellants, a husband and wife who could be relocating
together, was not equivalent to the situation of a woman relocating on her own.
In doing so they found that in conflating these two different circumstances the
evidence and considerations provided to women relocating on their own did not
apply and as such the appellants could live in any of the proposed IFAs. This
conclusion was consistent with the evidence and reasonable.
[20]
Inappropriate implicit plausibility findings are
raised in Ms. Osagie’s written submissions, however the argument was not
advanced in any detail in these written submissions or in oral argument. I have
carefully reviewed the RAD decision and am unable to identify any conclusions rooted
in an inappropriate plausibility finding. The RAD’s decision was based on the deficiency
of evidence not plausibility findings arising out of the evidence.
[21]
In summary, the RAD undertook a detailed and independent
assessment of the evidence as it related to the IFAs. The RAD identified and
considered the issues raised on the appeal, and did not merely rubber stamp the
RPD decision. In undertaking a fulsome and detailed analysis the RAD reached
the same conclusions as the RPD due to the insufficiency of evidence favouring
the appellants. There was no need for the RAD to make a general credibility
finding in this circumstance. The RAD’s decision satisfies the requirements of
justification, transparency and intelligibility.
IV.
Conclusion
[22]
The RAD’s decision falls well within the range
of possible, acceptable outcomes that are defensible with respect to the facts
and law (Dunsmuir at para 47). The Application is dismissed.
[23]
The Parties have not identified a question of
general importance for certification and none arises.
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