Docket: IMM-2767-11
Citation: 2011 FC 1409
Ottawa, Ontario, December 5,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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KINGSLEY NOGHEGHASE
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated March 17,
2011. The Board determined that the Applicant was not a Convention refugee or
person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant is a citizen of Nigeria. He refused his
father’s demand to assume the position of Chief Priest and witch doctor of
their village. He fears that he will be persecuted by family members and
village elders who told him that his death was the only way to break the
generational curse caused by his refusal.
[4]
The
Applicant fled to Kaduna, but claims that the alleged agents of
persecution found him. He then fled to Lagos. Once
there, he insists that police refused to intervene when he approached them. The
Applicant was able to leave Nigeria with the assistance of
his pastor.
II. Decision
Under Review
[5]
The
Board acknowledged that individuals who had an interest in the Applicant
assuming the priesthood would be upset and want to scare him into accepting,
but was not satisfied that they were prepared to act on those threats. Some
reports indicate a belief in Nigeria that harm comes to a
person who breaks an oath, while others suggest that they have never heard of a
priesthood being forced on someone. Elders may believe that the “divine wrath”
would descend upon their community and proceed to threaten the Applicant with
death. However, he was never actually harmed.
[6]
The
Board also turned its mind to the availability of an Internal Flight Alternative
(IFA) and state protection. The Applicant suggested that the elders were able
to find him in Kaduna and Lagos through the oracle. The
Board did not accept this explanation as plausible and was not persuaded that
the Applicant would not find an Internal Flight Alternative in Nigeria.
[7]
Despite
his claims, the Applicant was also unable to produce any evidence of having
gone to the police in Lagos and that they were unwilling to assist
him. Although the Nigerian police are reluctant to interfere in local traditions,
it may be that they simply believe individuals who refuse traditional
positions, such as the priesthood, will not actually be harmed.
III. Issues
[8]
This
application raises the following issues:
(a) Was
it reasonable for the Board to find that the Applicant did not have a
well-founded fear of persecution?
(b) Was
the Board’s conclusion that the Applicant had not rebutted the presumption of
state protection reasonable?
(c) Was the Board’s reliance on an
IFA for the Applicant reasonable?
IV. Standard
of Review
[9]
The
Applicant has raised questions of mixed fact and law that should be reviewed on
a standard of reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 43).
[10]
Reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above at para 47).
V. Analysis
Issue A: Fear
of Persecution
[11]
The
Applicant takes issue with the Board’s selective treatment of documentary
evidence. He points to passages that refer to servants of a shrine forcing an
individual to assume the role of priest and that they can be responsible for
killing or harming those who offend the shrine. According to the Applicant,
this calls into question the Board’s adverse inference that while individuals
might scare him into accepting the priesthood it was not satisfied that they
would act on these threats.
[12]
The
Board is, however, presumed “to have weighed and considered all the evidence
presented to it unless the contrary is shown” (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ no 598 (FCA) at para 1). The Board
acknowledged that some researchers believe that harm comes to those who refuse
the priesthood. This was balanced against the opinions of others that it would
not be perceived as an offence to refuse a position as the priest.
[13]
Although
the Board did not refer to the exact portions cited by the Applicant, this does
not undermine its overall conclusion. Contradictory evidence was referred to
and it remained open to the Board to find that the Applicant was not at risk of
actual harm from those who had an interest in him assuming the priesthood.
[14]
While
the Applicant had a subjective belief that he would be persecuted, he was still
required to establish an objective fear (see Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ no 74 at para 47). As in
this case, where sufficient state protection is available, claimants will be
unable to establish that their fear of persecution is objectively well-founded
(Hinzman v Canada (Minister of Citizenship and Immigration), 2007 FCA 171,
2007 CarswellNat 950 at para 42).
[15]
I
also note that the Board is entitled to make adverse findings based on the
implausibility of a narrative (see Alizadeh v Canada (Minister of
Employment and Immigration), [1993] FCJ no 11, 38 ACWS (3d) 361 at para 1
(FCA)). The requirements for a finding of implausibility were discussed in Valtchev
v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, [2001] FCJ no 1131 at
para 7:
[7] A tribunal may make
adverse findings of credibility based on the implausibility of an applicant's
story provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of cases, i.e., if
the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant. A tribunal must be
careful when rendering a decision based on a lack of plausibility because
refugee claimants come from diverse cultures, and actions which appear
implausible when judged from Canadian standards might be plausible when
considered from within the claimant's milieu.
[16]
Although
the requirements for a finding of implausibility appear rather onerous, it does
not follow that the Board was unreasonable in rejecting the Applicant’s
explanation that the alleged agents of persecution were guided to Lagos by the
oracle. It was not clear from the documentary evidence that someone refusing
the priesthood would necessarily be harmed. The Board was simply not convinced
that he had been followed to a second location.
[17]
As
a consequence, it was within the range of possible, acceptable outcomes for the
Board to question the Applicant’s objective fear of persecution.
Issue
B: State Protection
[18]
The
Applicant raises similar concerns regarding the treatment of documentary
evidence relevant to state protection. He claims the Board ignored evidence
that those endangered by a shrine would be more likely to go to a church for
assistance than to police. In Okafor v Canada (Minister of Citizenship and
Immigration), 2002 FCT 1108, [2002] FCJ no 1471 at para 8, Justice Douglas
Campbell found that taking documentary evidence related to Nigeria seriously
out of context amounted to an error.
[19]
However,
I fail to see how the same principle is directly applicable to the present
case. Okafor, above, referred to an entirely different fact situation
and claim in Nigeria.
[20]
Perhaps
more significant is that the Applicant never based his claim on an
unwillingness to go the police and opting solely for the assistance of the
church. Instead, he insisted that he had approached police in Lagos, but they
did not intervene. It was this claim to have sought police protection that was
formally evaluated by the Board. The Applicant had not provided any evidence
to support his contention that he had contacted police in Nigeria and they
refused to get involved.
[21]
To
rebut the presumption of state protection, the Applicant must provide clear and
convincing evidence that state protection is inadequate or non-existent (Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, 2008
CarswellNat 605 at para 38). Even if the Board was satisfied that the
Applicant had approached the police in Lagos on one
occasion, this would not necessarily be sufficient (Carillo, above at
paras 31-36). It is reasonable for the Board to require evidence of having
approached police or to insist that one attempt at seeking such protection was
insufficient.
[22]
Admittedly,
the Board makes a rather speculative comment in passing when it suggests that
Nigerian police might be unwilling to intervene because they simply believed
individuals who refuse the priesthood would not actually be harmed. Although
the Board pointed to evidence that some individuals do not believe the
priesthood will be forced on anyone, there was nothing linked to widespread
police attitudes.
[23]
However,
the comment does not undermine the Board’s conclusion that the Applicant was
unable to provide evidence of having gone to police and been turned away on one
occasion. This was the primary basis for the finding that the Applicant had
failed to rebut the presumption of state protection.
Issue C: Internal
Flight Alternative (IFA)
[24]
The
Applicant has raised concerns that the Board failed to identify where in Nigeria he would
have a viable IFA. He relies on the decision in Nosakhare v Canada (Minister of
Citizenship and Immigration), 2001 FCT 772, [2001] FCJ no 1120 at para
13 stating that an IFA “cannot be speculative or theoretical, it has to be a
realistic option.” The Board was found to commit an error when it failed to
identify which part of the country would be objectively reasonable for the
relocation of that applicant.
[25]
The
Respondent contends that since the Board found there was adequate state
protection it should not be faulted for the failure to specify the location of
the IFA. This argument is based on Canseco v Canada (Minister of
Citizenship and Immigration), 2007 FC 73, [2007] FCJ no 115 at para
7 where the Court determined that a decision based on state protection should
not be found unreasonable for the failure to identify a specific IFA. Similar
to the present case, the Board conducted a combined analysis under the heading
“IFA/State Protection.”
[26]
Given
that state protection was the determinative issue, this Court should not
intervene based solely on the failure to specify the location of a viable IFA
in Nigeria.
[27]
I
must also consider the Applicant’s assertion that the Board detached itself
from his particular circumstances by failing to consider the difficulties he
faced in Kaduna and Lagos, given that
the alleged agents of persecution could trace his whereabouts.
[28]
Before
making a finding of an IFA, the Board must be satisfied that there is no
serious possibility of persecution in the IFA and that in all the
circumstances, including those particular to the applicant, it would not be
unreasonable to seek refuge there (Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706, [1991] FCJ no 1256).
[29]
The
Applicant was unable to prove that an IFA was unreasonable in the
circumstances. The Board was not persuaded that the alleged agents of
persecution had pursued him to Lagos at his pastor’s house based on the divine
powers of the oracle.
[30]
As
a consequence, I conclude that the Board’s finding of an IFA was reasonable. Despite
the failure to specify the location of an IFA, this finding was open to the
Board when combined with a determination that there was adequate state
protection. The Board was not convinced that the particular circumstances of
the Applicant made him unable to seek refuge in other parts of Nigeria.
VI. Conclusion
[31]
Given
its consideration of contradictory evidence, the Board reasonably concluded
that the Applicant did not have a well-founded fear of persecution in Nigeria based on
threats by individuals interested in him assuming the priesthood. It was also
open to the Board to find that the presumption of state protection had not been
rebutted with a lack of evidence and only one attempt to contact police. Since
the finding of state protection was determinative, the Board was not required
to provide greater specificity in its reference to a possible IFA.
[32]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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