Docket: IMM-6743-10
Citation: 2011 FC 1084
Ottawa, Ontario, September 21, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ADESUWA ANGELA IDAHOSA,
CHINELLO ALESSI OBIORA and
CHIDERA NADIA OBIORA
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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
[1]
This
is an application for judicial review of the October 19, 2010 decision of
Patrick Lemieux of the Refugee Protection Division (the Member) where the
Member held that Adesuwa Angela Idahosa (the Applicant) and her two minor
dependants (collectively the Applicants) are not refugees under ss 96 or 97(1)
of the Immigration and Refugee Protection Act, SC 2001 c 27 (the Act).
[2]
The
Member found that the Applicant had a viable Internal Flight Alternative [IFA]
in her native Nigeria. Therefore they
did not meet the definition of a Convention refugee under the Act.
[3]
For
the reasons that follow, this application for judicial review is dismissed.
I. Facts
[4]
The
Applicant and her children are citizens of Nigeria. The
Applicant fled her country on April 5, 2008 because of a claimed fear of the
family of her former common-law partner. The Applicant claims that her former
common-law partner’s family has threatened to circumcise her female children and
to kill her and her children because she is a member of the Osu caste, which is
considered to be an outcast group.
[5]
The
Member found that there was a lack of credibility for several aspects of the
Applicant’s story but agreed that the main allegations had been generally
established (para 9 – Member’s Decision). The Member determined at the outset
of his decision, however, that the determinative issue was the existence of an
IFA. The Applicant had not proved that she and her children were at risk
everywhere in Nigeria or that it
would be unreasonable to seek refuge in another part of the country, namely Abuja.
II. Legislation
[6]
Sections
96 and 97, Immigration and Refugee Protection Act, SC 2001, c 27:
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality
and is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside
the country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
Person in need of protection
97. (1) A person in need of protection is
a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
III. Issues and
Standard of Review
[7]
The
sole issue before this Court is whether or not the Member erred in concluding
that the Applicants have a reasonable IFA in Abuja. The
application of the IFA test to the facts is subject to the reasonableness
standard of review (Khokhar v Canada (Minister of
Citizenship and Immigration), 2008 FC 449 at para 21).
IV. Parties’
Submissions
[8]
The
Applicant claims that the Member erred because he failed to properly adhere to
the Chairperson’s Guidelines of the
Immigration and Refugee Board in respect of women refugee claimants fearing
gender-related persecution. The Applicant also claims that the proposed IFA is
speculative and cannot constitute a realistic and viable option.
[9]
According
to the Applicant, the Member failed to take into account the documentary
evidence presented regarding the restriction on the freedom of movement in
Nigeria and the prevalence of police roadblocks that attempt to extort money
from travellers (para 14 – Further Memorandum of the Applicant). The Applicant
also points the Court to Justice Pinard’s recent decision in Onyenwe v
Canada (Minister of Citizenship and Immigration), 2011 FC 604 [Onyenwe],
where he allowed the judicial review of a decision that had indicated Abuja as a viable
IFA for a male applicant.
[10]
The
Applicant further contends that the Member failed to consider religious,
economic and cultural factors that would affect the Applicant in the proposed IFA
(para 15 – Further Memorandum of the Applicant). The Applicant does not have
any money, has limited education and has no family in Abuja. The social
stigma in Nigeria of single mothers who live without their family means that it
will be hard for the Applicant to support herself, especially since there is no
social safety net in that country. The Applicant notes that the absence of
family support combined with other factors has been determined to be a relevant
consideration when determining whether it would be unduly harsh to expect an
individual to seek out an IFA (Ramanathan v Canada (Minister of Citizenship
and Immigration) [1998] FCJ No 1210, 152 FTR 305), but the Member failed to
take any of these arguments into consideration.
[11]
The
Respondent, on the other hand, argues that the Member correctly evaluated the
presence of an IFA in Abuja and properly considered the documentary
evidence that was before it. In his decision, the Member noted that the
Applicant’s parents were helping to raise her remaining children that were left
behind in Nigeria and would
likely continue to assist in whatever way possible (para 21 – Respondent’s
Memorandum). The Member also noted that the Applicant had formerly operated a
trading business and it would be open to her to do that again, possibly with
the assistance of religious support organizations and non-governmental
organizations (para 21 – Respondent’s Memorandum). The Respondent draws
attention to the fact that the Member found that moving to Abuja would no doubt
be difficult for the Applicant, but the overall circumstances carefully weighed
and assessed relevant to her situation made that city a viable IFA.
[12]
The
Respondent likens this case to the decision of Justice Russel in Eyamaro v
Canada (Minister of Citizenship and Immigration), 2009 FC 372, where he
found that the Board was reasonable in suggesting that the applicant, in that
case, would be able to access support networks and organizations in Nigeria for
women who did not want to have to undergo circumcision (para 24 – Respondent’s
Memorandum).
V. Analysis
[13]
An
IFA analysis must meet the criteria outlined by the Federal Court in Rasaratnam
v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706 at paras 4 to 7. Firstly, the
circumstances in the part of the country to which the claimant could have fled
must be sufficiently secure to ensure that the applicant would be able “to
enjoy the basic and fundamental human rights.” and conditions in that part of
the country must be such that it would not be unreasonable for an applicant to
seek refuge there. The Federal Court of Appeal has stated that a refugee
claimant must meet a high threshold to establish that it would be unreasonable
to relocate to an IFA: Ranganathan v Canada (Minister of
Citizenship and Immigration), [2001] 2 FC 164 at para 15:
... 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...
[14]
The
Member was presented with evidence that travel in Nigeria can be
restricted by police roadblocks. The Applicant also testified that she had not
encountered any difficulties on trips between Benin City and Lagos when she
travelled for business (para 29 – Member’s Decision). In addition, there was
significant documentary evidence presented to the Member about the difficulties
single women without families face in Nigeria, even in Abuja. The Member
found that the Applicant has a very supportive family who is already caring for
two of her children. There was nothing to suggest that “even her extended
family could not provide some form of support, regardless of whether or not
they live in the same city” (para 33 – Member’s Decision).
[15]
This
is a case where the general documentary evidence about a country does not
reflect the individual circumstances of the Applicant. The Member was not
unreasonable in his decision since he did consider the totality of the
evidence. In fact, it is very clear to the Court that the Member did evaluate
the country condition evidence but simply came to a conclusion with which the
Applicant does not agree.
[16]
The
Member’s decision in the case at bar can be distinguished from the situation in
Onyenwe, above, cited by the Applicant, because in that case the member
had failed to acknowledge the documentary evidence at all. The judicial review
was allowed because there was no indication that the member had taken into
account the documentary evidence that ran counter to his findings. In this
case, the member’s decision is clear. All the evidence was assessed and duly
taken into consideration. The decision is reasonable and forms part of the
possible outcomes. There is therefore no need for this Court to intervene.
VI. Conclusion
[17]
For
the reasons above, this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. This application for judicial
review is dismissed.
2. There is no question of general
interest to certify.
"André
F.J. Scott"
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