Docket: IMM-1509-17
Citation:
2017 FC 1076
Ottawa, Ontario, November 29, 2017
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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GLADYS DIBIA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
(Delivered orally from the Bench in
Toronto, Ontario, on November 23, 2017)
[1]
Dr. Gladys Dibia is a medical doctor from
Nigeria. She is a member of the Igbo ethnic group and a Christian. Dr. Dibia
claims to fear persecution in Nigeria for several reasons. She notes that her
medical training program would have entailed rotations through regions in
Northern Nigeria where, she says, she would have faced a risk from Boko Haram.
She also claims that she would be at risk in Nigeria from her former fiancé, as
well as at the hands of the Fulani Herdsmen. Finally, Dr. Dibia states she
would be at the risk of kidnapping if she were required to return to Nigeria.
I.
The Refugee Protection Division’s Decision
[2]
The Refugee Protection Division of the
Immigration Refugee Board dismissed Dr. Dibia’s application for refugee
protection, finding that she had a viable internal flight alternative (IFA) in
the Southeast of Nigeria, in Owerri in Imo state. In coming to this conclusion,
the RPD applied the two-part test articulated by the Federal Court of Appeal in
the cases of Rasaratnam v. Canada (Minister of Employment and Immigration),
[1992] 1 F.C. 706, 140 N.R. 138 and Thirunavukkarasu v. Canada (Minister of
Immigration and Employment), [1994] 1 F.C. 589, 163 N.R. 232.
[3]
That is, the RPD determined that there was no
serious possibility that Dr. Dibia would be persecuted if she were to
relocate to Owerri, nor would she face cruel or unusual treatment or punishment
in that city. The RPD further found that in light of Dr. Dibia’s personal
circumstances, it would not be unreasonable for her to relocate to Owerri.
[4]
In coming to this conclusion, the RPD had regard
to the fact that Christianity was the majority religion in Imo state, where
people sharing Dr. Dibia’s Igbo ethnicity were also in the majority. The
RPD further noted that Dr. Dibia has a sibling living in Owerri, and that
she spoke English fluently, English being the de facto majority language
in Nigeria.
[5]
In finding that Dr. Dibia could live safely
in Owerri, the RPD also considered the fact that both Dr. Dibia and her
husband were highly educated, sophisticated individuals. The RPD further found
that Dr. Dibia had significant resources available to her that would
assist her in relocating to Owerri. Finally, the RPD was satisfied that Dr. Dibia
would not face physical danger or undue hardship if she were required to
relocate to Owerri. In light of these findings, Dr. Dibia’s refugee claim
was dismissed.
[6]
Dr. Dibia then appealed the RPD’s decision
to the Refugee Appeal Division of the Immigration and Refugee Board. As counsel
for the Respondent has pointed out, a review of the Memorandum of Fact and Law
filed by Dr. Dibia with the RAD discloses that she identified three errors
that she says that the RPD committed in considering the first prong of the IFA
test: that is, whether Dr. Dibia would be at risk in Owerri.
[7]
However, as counsel for Dr. Dibia conceded
in the hearing before me this morning, no issue was taken by Dr. Dibia
before the RAD with respect to the RPD’s assessment of the second prong of the
IFA test, namely whether, in light of her personal circumstances, it would be
reasonable for Dr. Dibia to relocate to Owerri.
[8]
In reviewing the decision of the RPD, the RAD
applied the standard of review that was articulated by the Federal Court of
Appeal in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA
93, [2016] 4 F.C.R. 157, carrying out its own analysis of the record in order
to determine whether the RPD had erred as had been alleged by Dr. Dibia.
[9]
Applying the test established by the Federal
Court of Appeal in Rasaratnam and Thirunavukkarasu, the RAD
concluded that Dr. Dibia had not established on a balance of probabilities
that there was more than a mere possibility that she would face persecution or
a risk to her life in Owerri.
[10]
Moreover, while noting that no submissions had
been made to the RAD with respect to the second prong of the IFA test, the RAD
also concluded that the RPD had not erred in assessing whether it would be
reasonable to require Dr. Dibia to relocate to Owerri. Consequently, Dr. Dibia’s
appeal to the RAD was dismissed.
II.
The Issue Raised by Dr. Dibia on this
Application
[11]
This then takes me to the issue raised by Dr. Dibia
on this application. Before this Court Dr. Dibia argues that the RAD erred
in its treatment of the second prong of the IFA analysis by failing to properly
assess the reasonableness of Dr. Dibia relocating to Owerri. According to Dr. Dibia,
the RAD’s finding with respect to the second prong of the IFA test was
unreasonable as it failed to consider issues relating to the difficulty that
women face in Nigeria in accessing housing and employment. The RAD further erred,
Dr. Dibia says, in failing to consider the hardship that she would face as
a newcomer in Owerri in light of the indigeneship system.
III.
Standard of Review
[12]
I agree with the parties that the standard of
review to be applied in reviewing the RAD’s decision on a factually-intensive
question such as that raised by this application is that of reasonableness.
IV.
Analysis
[13]
As noted, Dr. Dibia argues the RAD erred by
failing to conduct an independent assessment as to whether it would be
reasonable to require her to relocate to Owerri. While it was not required to
do so, it is evident from a review of the RAD’s decision that it did expressly
consider the second prong of the IFA test at paragraphs 44 to 46 of its
decision. After considering Dr. Dibia’s personal circumstances, the RAD
concluded that the RPD had not erred in finding that it was reasonable to
require her to relocate to Owerri.
[14]
While Dr. Dibia had pointed to evidence
that she says was before the RAD that could potentially have led to a different
conclusion, the RAD is presumed to have considered all of the evidence that was
before it: Hassan v. Canada (Minister of Employment and Immigration),
(1992), 147 N.R. 317, [1992] F.C.J. No. 946. The brevity of the RAD’s
consideration of this issue is undoubtedly explained by the fact that no error
had been identified by Dr. Dibia in relation to this aspect of the RAD
test. As the Federal Court observed in Abdulmaula v. Canada (Citizenship and
Immigration), 2017 FC 14, [2017] F.C.J. No. 3 (referred to in the
Respondent’s memorandum), the reasonableness of a RAD decision cannot normally
be impugned on the basis of an issue that was not put to it.
V.
Conclusion
[15]
In these circumstances, Dr. Dibia has not
persuaded me that the RAD’s treatment of the second prong of the test for an
IFA was unreasonable, and the application for judicial review is therefore
dismissed. I agree with the parties that the case does not raise a question
that is suitable for certification.
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