Docket: IMM-656-15
Citation:
2015 FC 1365
Ottawa, Ontario, December 9, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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CORDILIA GIFT
MOMODU
IKECHUKWU
BASSEY (MINOR)
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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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JUDGMENT AND REASONS
[1]
This is an application by Gift Momodu [the
Principal Applicant] for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of a decision
by the Refugee Appeal Division [RAD] confirming the Refugee Protection
Division’s [RPD] finding that the Applicants are neither Convention refugees
nor persons in need of protection under sections 96 and 97(1) of the Act.
[2]
For the reasons that follow, the application is
dismissed.
I.
Background
[3]
The Applicants are from Nigeria. The Principal
Applicant alleges that she fears returning to Nigeria because a woman named
Mercy John [MJ] trafficked her as a prostitute in Italy and upon her return to
Nigeria threatened to kill her and her child and harm her family if she did not
repay money owing from the proceeds of prostitution. The Principal Applicant
claims that MJ’s “thugs” in Nigeria would find her if she returned.
[4]
The Applicants’ refugee claims were rejected by
the RPD which found that a viable internal flight alternative [IFA] existed for
the Applicants in Port Harcourt, a large city in Nigeria. No new evidence was
submitted in support of the appeals. The RPD’s finding was upheld by the RAD.
II.
Issue
[5]
The only issue this application raises is
whether the RAD erred by failing to take into consideration evidence in the
record supporting that no reasonable IFA existed for the Applicants.
III.
Standard of Review
[6]
It is common ground that the standard of review
is reasonableness and that the legal test to assess an IFA is based on a
two-prong analysis set out in Rasaratnam v Canada (Minister of Citizenship
and Immigration), [1992] 1 FC 706: the first requirement being the freedom
from persecution and the second, being the reasonability of refuge. The onus is
on the Principal Applicant “to prove actual and
concrete evidence of conditions which would jeopardize … her life” (Amit v Canada (Minister of Citizenship and
Immigration), 2012 FC 381, para 3).
IV.
Analysis
[7]
The Applicants submit that the RAD erred by failing
to take into consideration vital evidence in the record supporting that no
reasonable IFA existed for them. The Respondent argues that the Applicants are
essentially asking the Court to re-weigh the evidence.
A.
Freedom from persecution
[8]
The RAD concluded that the evidence did not
support a finding that MJ’s thugs could locate the Applicants in Port Harcourt.
In responding to questions from the RPD, the Principal Applicant testified that
when in Delta, prior to departing for Canada, the thugs did not locate her. On
the one occasion when she was located by the thugs in Lagos, she testified that
it was because she was seen by a relative of MJ when she went to show her
parents her baby in Uromi. The RAD noted that more caution in maintaining
relations with her parents would prevent inadvertent disclosure of her
whereabouts.
[9]
The RPD and RAD’s conclusion that this evidence
is not indicative that MJ’s thugs could locate the Applicants in Port Harcourt
is reasonable.
[10]
The Applicants argued that the RPD erred in concluding
that the objective evidence demonstrated that the Nigerian government treats
human trafficking seriously. This conclusion was in response to the Principal
Applicant’s testimony that she thought she could not access police protection in
Port Harcourt because of her experiences in Lagos. The RPD pointed out that the
Principal Applicant did not complain about her experiences in Lagos to the
authorities.
[11]
The Applicants argue that the RPD was selective
in its reliance upon the US State Department [USSD] 2014 country Trafficking in
Persons Report [the 2014 USSD Report]. They cited passages from the report to
the effect that “the government did not demonstrate
sufficient progress in its anti-trafficking law enforcement efforts”
which were ignored. [Emphasis added]
[12]
The passage cited by the Applicants in their
memorandum (drafted by a different counsel at the hearing) does not appear to
reflect the conclusions of the 2014 USSD Report, which states as follows:
The Government of Nigeria does not fully
comply with the minimum standards for the elimination of trafficking; however,
it is making significant efforts to do so. During the reporting period, the
government demonstrated an increase in anti-trafficking law enforcement
efforts by increasing the number of trafficking investigations, prosecutions
and convictions and by providing extensive specialized anti-trafficking
training to officials from various government ministries and agencies. The
National Agency for the Prohibition of Trafficking in Persons and Other Related
Matters (NAPTIP) increased protection efforts by developing a formal referral
mechanism for victim protection, increasing the capacity of its shelters, and
identifying and providing services to a larger number of victims. Despite these
efforts, the government has yet to pass draft legislation that would restrict
the ability of judges to offer fines in lieu of prison time during sentencing
and, with the exception of receiving training from NAPTIP, the Ministry of
Labor did not make any new efforts to address labor trafficking during the
reporting period. Additionally, despite the growing number of Nigerian
trafficking victims identified abroad, the government has yet to implement
formal procedures for the return and reintegration of Nigerian victims.
[Emphasis added]
[13]
The 2014 USSD Report contained other evidence on
efforts to implement its laws sufficient to demonstrate that Nigeria treats
human trafficking seriously and would respond to a complaint by the Applicants.
In any event, I do not see how this evidence is relevant to the IFA issue,
which is premised on the Principal Applicant avoiding being located by MJ’s
thugs in Port Harcourt.
[14]
I find the RAD’s conclusion reasonable as the Applicants
have not demonstrated by actual and concrete evidence that it is more than
likely that they will be discovered if they relocate to Port Harcourt.
B.
The Reasonability of the IFA
[15]
With respect to the reasonability of the
Applicants living in Port Harcourt, the Principal Applicant specifically
testified before the RPD that she would be able to live in Port Harcourt if she
did not encounter problems from being located by MJ. The RPD found this
evidence significant in concluding that it is not objectively unreasonable for
the Applicants to seek refuge in Port Harcourt.
[16]
In follow-up questions from her counsel, the
Principal Applicant testified that she did not speak the language in Port
Harcourt, that she did not have any family or know any persons living there,
nor would she have a job there.
[17]
The Applicants also referred to reports
indicating that women were vulnerable to abuse, harassment and trafficking when
relocating to another area in Nigeria without economic means or family
networks. In particular, these reports detailed some of the factors that are
constraints on women who consider relocating in Nigeria. These included lack of
information on the part of the women themselves, their level of empowerment,
the lack of accommodation, job opportunities and poverty.
[18]
The RAD adopted the RPD’s conclusion that the
evidence did not support a finding that Principal Applicant met the description
of a displaced woman at risk. It pointed out that the Principal Applicant had
proven to be a resourceful woman who had traveled to the United States and to
Canada on her own, besides living in Italy. Her home town is an hour or so away
from Port Harcourt. The RPD also noted that she had past experience in
childcare and had worked as a hawker, which was employment that she could
pursue in Port Harcourt.
[19]
I also disagree with the Applicants’ submissions
that the RPD and RAD were not alert in applying the Gender Guidelines in
considering these claims. The Guidelines are not evidence and cannot cure
insufficiencies or defects in the evidence. The two panels found that the
circumstances of the Principal Applicant did not meet the profile described in
the objective country condition evidence, such that it would not be
unreasonable for the Applicants to live securely in Port Harcourt.
[20]
I also conclude that the decisions relied upon
by the Applicants with respect to the failure to apply the Gender Guidelines,
are distinguishable. In Idrees v Canada (Minister of Citizenship and
Immigration), 2014 FC 1194, although addressing the second prong of the IFA
test, the Court concluded that the Board had failed to consider the ethnic
violence in the IFA. No similar issue was raised in this matter. This issue
also appears to be more relevant to the first prong of the test.
[21]
Similarly, the decision of Utoh v Canada
(Minister of Citizenship and Immigration), 2012 FC 399 is distinguishable.
Justice Rennie concluded quite correctly that the Board erred when it referred
to the Applicant’s ability to establish a new home in Canada as evidence of
adaptability. How one integrates into Canadian society bears little relevance
to relocating within the foreign national’s country of origin. The adaptability
of the Principal Applicant in this matter relates to her ability to take
herself out of danger and travel unaccompanied to foreign lands, in addition to
her childcare and employment experiences.
[22]
On the basis of the foregoing reasons, the Court
concludes that the RAD’s decision falls within the range of reasonable
acceptable outcomes and is justified, transparent and intelligible based upon
the facts and law.
V.
Conclusion
[23]
The application is dismissed. No question is certified
for appeal.
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