Date: 20110204
Docket: IMM-4247-10
Citation: 2011 FC 127
Ottawa, Ontario, February 4, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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EVELYN JAMES
JAMES OBINNA JAMES
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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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REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Ms. Evelyn James and her son, James Obinna
Eluwe, sought refugee protection in Canada in 2008, after leaving their home in
Benin City, Nigeria. Ms. James alleged that she feared a man who had been
abusing her since 2004.
[2]
A panel of the Immigration and Refugee Board
denied Ms. James’s claim and, because his claim was identical to hers, it also
denied her son’s claim. The Board found that Ms. James could live safely
elsewhere in Nigeria where her
abuser would not find her. Therefore, her fear of persecution was not
well-founded.
[3]
Ms. James submits that the Board erred in two
respects. First, she argues that the Board erred by failing to consider the
Chairperson’s Guideline 3 – Child Refugee Claimants, as it was required to do
in respect of her son’s claim. Second, she maintains that the Board’s
conclusion that she had an internal flight alternative in Nigeria was unreasonable. She asks me to
overturn the Board’s decision and order a new hearing before a different panel.
[4]
I can find no basis to overturn the Board’s
decision. In the circumstances, there was no need for the Board to cite
Guideline 3; and, the Board’s conclusion regarding an internal flight
alternative was reasonable on the evidence before it. Therefore, I must dismiss
this application for judicial review.
[5]
There are two issues:
- Did the Board
have a duty to refer to Guideline 3?
- Was the Board’s
conclusion regarding an internal flight alternative unreasonable?
II.
Factual Background
[6]
In 2004, on the death of her father, Ms. James
was given to a Mr. Eluwe in satisfaction for her father’s debts to him. Mr.
Eluwe violently abused Ms. James. Mr. Eluwe always used a condom when having
sex with Ms. James, but she became pregnant after having sex with Mr. Eluwe’s
son. She did not reveal who the father was.
[7]
In 2007, Ms. James was able to escape Benin City to go to her mother’s home, and
then to her uncle’s home in Jos. However, Mr. Eluwe kidnapped Ms. James’s
brother and, in order to prevent Mr. Eluwe from harming him, Ms. James returned
to Benin City.
[8]
Ms. James became pregnant again in 2008. This
time Mr. Eluwe’s son admitted that he was the father and helped Ms. James
escape to Canada.
III.
The Board’s Decision
[9]
The Board considered evidence that Ms. James’s
family continues to be threatened by Mr. Eluwe and was forced to leave their
home in Benin City. The Board
also considered a psychological report that described Ms. James’s distress,
depression and anxiety. The psychologist found that Ms. James’s mental state
would deteriorate if she returned to the place where she had been abused.
Still, the Board found Ms. James’s testimony to be coherent and credible.
[10]
Regarding an internal flight alternative, the
Board noted that Ms. James was able to leave Mr. Eluwe’s home from time to
time. Indeed, this was how she was able to escape to her mother’s home in 2007.
[11]
Further, the Board concluded that there was no
evidence that Mr. Eluwe or his employees would look for Ms. James throughout Nigeria. While Ms. James testified that Mr.
Eluwe had a number of residences in Nigeria, she was not sure where they were. Mr. Eluwe resides primarily in Benin City.
[12]
The Board found it significant that Ms. James
was able to live with her uncle in Jos for several days in 2007. Mr. Eluwe did
not find her there; she returned to Benin City to protect her brother. There was no evidence that Mr. Eluwe had
the means to find Ms. James.
[13]
Country condition evidence supported the Board’s
conclusion that victims of human trafficking or other crimes can usually find
refuge in other areas of Nigeria. Further, shelters exist in many locations to assist these persons.
Finally, state officials in Nigeria are making efforts to prosecute these types of crimes, and to
assist persons who, like Ms. James, are forced into servitude to satisfy debts.
[14]
A number of potential safe locations were
considered by the Board – Lagos,
Abuja, Kano, Sokoto, Enugu, Uyo and Jos. The Board found it was
reasonable to expect Ms. James to live in one of these places since she could
find either a shelter or family support in each of them. Ms. James is educated
and has work experience, so she could likely support herself there. Finally,
living in one of the cities identified by the Board would not require her to
return to the site where she had been abused.
[15]
From this evidence, the Board concluded that Ms.
James had a number of viable and reasonable flight alternatives in Nigeria and dismissed her claim, and that
of her son.
(1)
Did the Board have a duty to refer to Guideline
3?
[16]
Guideline 3 addresses a number of issues
relating to child refugee claimants. In particular, the Guideline advises Board
members on the procedures and evidentiary considerations that may be suitable
when dealing with child claimants.
[17]
However, in situations where the child
accompanies a parent to Canada,
the Board’s main responsibility is to ensure that a designated representative
is appointed for the child (usually the parent). The child’s claim is usually
heard together with the parent’s, but a separate determination is made.
[18]
The Guideline sets out a number of
considerations in circumstances where the child testifies, but those factors
were not in play here because Ms. James’s son was too young to give evidence.
[19]
In the circumstances, having appointed Ms. James
the designated representative for her son, I see no need for the Board to have
cited or considered other matters in Guideline 3 that were not relevant. The
Board specifically rejected both Ms. James’s claim and her son’s, as it was
required to do. Therefore, I see no error on the Board’s part.
(2)
Was the Board’s conclusion regarding an internal
flight alternative unreasonable?
[20]
Ms. James argued that the Board’s conclusion was
unreasonable because she was not able to live safely at her uncle’s house in
Jos, which was the farthest city from Benin City that the Board considered. Therefore, she submits, all of the other
possibilities were worse.
[21]
The burden fell on Ms. James to persuade the
Board that there was a reasonable chance she would be persecuted in the cities
under consideration, and that it would be unreasonable for her to live in them.
The Board considered the likelihood of her being found in those cities, the
resources available to her, and her ability to support herself in those
locations. Its conclusion that she had a viable and reasonable flight
alternative within Nigeria is a
defensible outcome based on the law and the facts before it.
IV. Conclusion and Disposition
[22]
The Board was not obliged to cite or analyze
Guideline 3 – Child Refugee Claimants in the circumstances of this case.
Further, its conclusion regarding an internal flight alternative in Nigeria was reasonable based on the facts
and the law. Accordingly, I must dismiss this application for judicial review.
Neither party proposed a question of general importance for me to certify, and
none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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