Docket: IMM-3187-14
Citation:
2015 FC 613
Ottawa, Ontario, May 8, 2015
PRESENT: The
Honourable Mr. Justice Mosley
|
BETWEEN:
|
|
ANULI UKAMAKA ASHLEY ODURUKWE
DARREN CHIAGOZIEM ODURUKWE (minor)
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review
brought under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. Anuli Ashley Odurukwe challenges a decision of the
Refugee Protection Division of the Immigration and Refugee Board of Canada
denying her claim for refugee protection. The claim of her minor child Darren
had been joined to hers and was also denied. For the following reasons, this
application is dismissed.
I.
Background
[2]
Mrs Odurukwe is a citizen of Nigeria. She belongs to the Igbo ethnic group. On May 1, 2010, she married Kelvin Odurukwe. Her
extended family and village elders objected to the marriage because they
believe that Kelvin belongs to the Osu caste, whose members are considered “outcasts” or “untouchables”
by the Igbo. Nonetheless, the applicant received the blessing of her parents,
who were devout Christians and opposed this sort of discrimination.
[3]
Shortly after the marriage, the applicant alleges
that village elders began to threaten her father with violence if he did not
convince her to terminate her marriage and participate in a cleansing ritual.
Local women also berated her mother. The father sought the assistance of the
traditional ruler but discovered that he too objected to intermarriage between
Igbo and Osu.
[4]
The applicant’s mother died from an aneurism
only seven days after the marriage. The applicant alleges that the threats made
against her family placed great stress upon her mother and ultimately caused
her death.
[5]
The applicant’s father was ostracized from
village life because he refused to give in to the community’s threats and
demands. In the meantime, the applicant gave birth to her son Darren on April
11, 2011.
[6]
In July 2011, the applicant, her husband and
their infant son visited the United Kingdom so that the husband could receive a
university degree.
[7]
In May 2012, the applicant and her husband
applied for visas to visit Canada. At that time, they already had valid visas
to visit the United Kingdom and the United States.
[8]
On June 20, 2012, the applicant alleges that
matters took a turn for the worse – her father was abducted. His abductors
called her from his cellular phone and demanded that she turn over her son
Darren in exchange for his release. The applicant notified her uncle and he
went to file a police report. The police called the applicant and discussed the
matter with her. The next day, a passerby found her father beaten and
unconscious on the street. He was taken to a hospital and succumbed to his
wounds. The police were informed but took no further action.
[9]
At that time, the applicant and her family were
living in Sokoto, a city in the northwest of Nigeria (whereas her ancestral
village is in the southeast). Due to her father’s murder and subsequent
threats, the applicant and her family rented a second apartment in Sokoto and
lived there secretly. On September 6, 2012, a group of men from her village
tried to find her at her first apartment and asked her neighbour if she knew
her whereabouts.
[10] After this incident, the applicant fled Nigeria. On September 22,
2012, she entered Canada with her husband and Darren on their visitor’s visas.
The applicant and Darren applied for refugee protection three days later. Her
husband returned to Nigeria after spending one week in Canada.
[11] The Board held a hearing on March 26, 2014. By that time, the
applicant had given birth to a second child on Canadian soil. She also
submitted new documents to the Board, including evidence that her husband had
been assaulted in December 2013 by members of her village who were looking for
her and her son.
[12] The Board rendered a negative decision on April 8, 2014. The
applicant sought judicial review at this Court.
[13] In the decision under review, the Board explains that the case
involves three issues: credibility, subjective fear and the existence of an
internal flight alternative [IFA].
[14] The Board accepts that testimony must be presumed to be true unless
there exist reasons to question its truthfulness (Maldonado v Canada
(Minister of Employment and Immigration), [1979] FCJ No 248 (FCA)). Yet the
Board raises several concerns with the applicant’s credibility.
1. In her personal information form [PIF], the applicant alleged that
the community threatened her father that they would kill him, his wife and his
daughter. They further demanded that he convince the applicant to terminate her
marriage and perform a cleansing ritual. At the hearing, the panel asked the
applicant about the community’s response to her marriage. She testified that
her father received threats against his life. She did not mention any threats
against her life or her mother’s life. She provided no reasonable explanation
for this discrepancy. Furthermore, the applicant did not mention the demands
made upon her father until the panel prompted her.
2. In her PIF, the applicant alleged that she went into hiding and
stopped working as of July 2012.Yet in her port of entry [POE] notes, she
stated that she was employed in two separate places until September 2012 – just
before she left for Canada. In her POE, she also stated that she resided at the
same address until September 2012, contrary to what is alleged in her PIF. The
applicant could only say that these were omissions. The Board draws a negative
inference from these discrepancies.
3. The panel asked the claimant if it was a coincidence that serious
problems only arose two years after her marriage and at the same time she and
her husband were applying for visitor’s visas to Canada. The applicant merely
repeated her allegations. On a balance of probabilities, the panel finds the
coincidence possible but not probable.
4.
The panel asked the claimant why her husband did
not stay in Canada, since he has relatives here and faces problems in Nigeria.
The claimant testified that her husband is considered untouchable because he is
Osu, and therefore will not face physical violence in Nigeria. She explained
that if a person kills an Osu, the killer becomes defiled and there is a curse
on his land. The panel acknowledges the documentary evidence on segregation but
finds that it does not preclude physical harm being meted out to an Osu.
Indeed, some of the evidence submitted by the applicant states that Osu face
attacks, violence and death at the hands of non-Osu. The panel draws a negative
inference from the husband’s return to Nigeria.
[15] The applicant offered the death certificates of her parents. The
panel affords them little weight because they are copies instead of originals.
Moreover, the mother’s cause of death is stated as “cerebral
aneurysm” and the secondary cause as “hypertension”.
There is no indication that the threats caused her death. Similarly, the
father’s primary cause of death is listed as “hypovolemic
shock” and the secondary cause as “internal
hemorrhage”. This provides no evidence that he was beaten or murdered.
[16] The applicant provided several other documents. Due to its adverse
credibility findings, the panel gives them no probative value.
[17] The panel then turns to subjective fear. In July 2011, the applicant
and her family travelled in the United Kingdom for twelve days. They afterwards
returned to Nigeria. At that time, the applicant was already aware that the
community was threatening her and her family. She alleges that her mother died
as a result of those threats. The panel asked the applicant why she returned to
Nigeria instead of seeking protection in the United Kingdom. She answered that
her father was still alive at that time. She had not been personally contacted
by those who objected to her marriage. She had supposed that the matter would
die down and had no idea that it would escalate.
[18] The panel does not find these explanations satisfactory. The
applicant was aware that her father had received numerous threats against her
own life. The documentary evidence upon which the applicant relies mentions
widespread hostility to marriages with Osu and instances where couples have had
to break up because one of the partners was Osu. The panel does not believe it
reasonable that the applicant would not have understood there was a serious
possibility of harm if the facts she alleges actually occurred. The panel draws
a negative inference due to her re-availment.
[19] In the alternative, the panel finds that that the applicant has an
IFA in Lagos. The two-step test for an IFA was set out in Rasaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No 1256 (FCA) and Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1993] FCJ No 1172
(FCA). First, the Board must be satisfied that there is no serious possibility
that the claimant will be persecuted at the location of the IFA. Second, the
Board must be satisfied that it would not be unreasonable for the claimant to
seek refuge there. With respect to the second step, the panel considers Syvyryn
v Canada (Citizenship and Immigration), 2009 FC 1027, where the Federal
Court stated that the Board must consider the particular ability of women to
travel safely with due regard to religious, cultural and economic factors.
[20] On the balance of probabilities, the Board finds that there is no
serious possibility that the applicant would be persecuted if she were to
relocate to Lagos. A report prepared by the UK Border Agency states that there
is a constitutional right to travel within Nigeria and that relocation is
almost always a feasible option, in the absence of exceptional circumstances.
[21] The applicant testified that her persecutors would be able to find
her in Lagos because they will receive information from Igbo social groups
located there. She would not be able to remain in hiding indefinitely because
she will have to work, attend church and take her children to school. She
further explained that her husband did not live in Lagos and that it would be
difficult to live without him. If he moved to Lagos, he would be exposing
himself and his family to harm. She pointed out that her persecutors were able
to find him in the northwest and so they would likely be able to find them in Lagos.
[22] The panel references independent evidence showing that the Igbo make
up 18% of Nigeria’s 175 million citizens. The applicant does not have a high
profile in Nigeria and it is unlikely that she would be recognized in a city of
over 20 million people.
[23] The panel acknowledges that members of her community were able to
locate her in Sokoto. However, she had been living and working there since her
marriage. It is reasonable that the persecutors went to an area where she was
known to live. There is no persuasive evidence that they have the interest or
resources to search for her throughout the country given its enormous
population. She has been out of the country for over one and a half years. Her
persecutors would not be advised that she had returned to Nigeria and settled in Lagos. It is a very large city located at a considerable distance from her
home village and previous place of residence (Sokoto). There is no serious
possibility that she would be persecuted there.
[24] With respect to the second prong, the panel is not persuaded that it
would be unreasonable for the applicant to relocate to Lagos. She speaks
English and Igbo and is a Christian, so she would be able to adapt to her new
surroundings. The documentary evidence states that women who require physical
protection can seek the assistance of the Federal Ministry of Social Affairs
and Women’s Development. There are also more than fifty non-governmental
organizations that can provide shelter and other assistance to women in Nigeria.
[25] Even if the applicant’s husband does not join her, it would be
reasonable for her to relocate to Lagos. Given her age, education and
professional experience, there is no indication that she would face any great
economic disadvantage. She could also benefit from the moral and spiritual
support of non-governmental and religious organizations.
[26] For the above reasons, the Board rejects the claims of the applicant
and her son under sections 96 and 97 of the IRPA.
II.
Issues
[27] The Court is of the view that this application raises three issues:
1.
Did the Board err in evaluating credibility?
2.
Did the Board err in evaluating the documentary
evidence?
3.
Did the Board err in evaluating the existence of
an internal flight alternative?
III.
Standard of Review
[28] Credibility findings are questions of fact. They are reviewable on
reasonableness: Triana Aguirre v Canada (Citizenship and Immigration),
2008 FC 571 at paras 13-14; Kaur v Canada (Citizenship and Immigration),
2012 FC 1078 at para 51. Similarly, plausibility findings deserve great
deference: Aguebor v Canada (Minister of Citizenship and Immigration),
[1993] FCJ No 732 (FCA).
[29] The evaluation of the evidence is a question of mixed fact and law
reviewable on reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 at
paras 53-54.
[30] The existence of an internal flight alternative is also a mixed
question of fact and law reviewable on the standard of reasonableness: Shehzad
Khokhar v Canada (Citizenship and Immigration), 2008 FC 449 at paras 21-22;
Guerilus v Canada (Citizenship and Immigration), 2010 FC 394 at para 10.
IV.
Analysis
A.
Did the Board err in evaluating credibility?
[31] The Board correctly accepted the principle that the allegations of a
refugee claimant must be presumed to be true unless there are reasons to doubt
their truthfulness, citing Maldonado. Yet it found such reasons. The
Court will consider the Board’s findings on subjective fear under this issue as
well, since the ultimate purpose of those findings was to assess whether the
applicant credibly fears a return to her country of origin.
[32] The Court defers to the Board’s conclusion that the applicant lacked
credibility. Although some of its findings were strained, the Board’s main
reasons for questioning her credibility were reasonable.
[33] Specifically, the Court is of the view that the first concern raised
by the Board was unreasonable. The Board expected particular answers to
open-ended questions and accused the applicant of inconsistency with her PIF
narrative because she gave incomplete answers. Yet there are no actual
contradictions between the sworn testimony and the PIF narrative on the threats
and demands made by the village elders to the applicant’s father. Moreover, the
applicant gave the answers that the Board desired after it repeated its
questions. The Board’s concerns in this regard were microscopic and could not
reasonably call the applicant’s credibility into question: Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429 at para 20.
[34] However, the other credibility concerns were eminently reasonable.
It was open to the Board to point to the contradictions between the POE notes
and the PIF narrative, the improbability that the applicant’s alleged problems
would begin only one month after she had applied for a visitor’s visa to Canada, and her husband’s return to Nigeria.
[35] In particular, the husband’s behaviour is highly relevant to the
applicant’s credibility. She says that she is afraid of individuals who want to
kill her because they object to her marriage. The fact that her husband has
continued to live in the same country as those individuals, despite having the
opportunity to claim refuge in Canada with his wife and child, undermines the
credibility of her allegations. The Board could reasonably point to the
documentary evidence describing violence against the Osu to reject her
explanation that the persecutors would never touch an Osu like her husband.
That explanation is further undermined by the evidence which the applicant herself
filed with the Board prior to her hearing, to the effect that her husband
allegedly suffered an assault in December 2013.
[36] It was open to the Board to give the death certificates little weight
because they were copies and did not explicitly endorse the applicant’s version
of her parents’ deaths. While battery may be the cause of hypovolemic shock and
internal bleeding, there are other possible causes, such as suffering a stroke
or being in a car accident. Contrary to the applicant’s argument, the Board did
not dismiss these documents out of hand simply because it did not deem her
testimony credible. The concerns expressed by the Board pertained to the actual
documents.
[37] On judicial review, the Court cannot reweigh the evidence. The
Board’s finding that the numerous other documents submitted by the applicant
deserved no weight was reasonably open to it, given the problems with her
credibility. On reasonableness review, it does not matter that the Court might
have given them a different weight, since the Court is not “developing, asserting and enforcing its own view of the
matter”: Delios v Canada (Attorney General), 2015 FCA 117 at para
28. Moreover, it is “well-established that an
applicant’s overall credibility may affect the weight given to the documentary
evidence”: Jia v Canada (Citizenship and Immigration), 2014 FC
422 at para 19; see also Devundarage v Canada (Minister of Citizenship and
Immigration), 2005 FC 245 at para 12.
[38] The Court is not certain that the Board made a reasonable finding
that the applicant re-availed herself of Nigeria’s protection upon returning
from the United Kingdom. Nevertheless, her husband’s return to Nigeria after they reached Canada casts doubt on her alleged fears, as was previously explained.
[39] To conclude, the Court rejects the applicant’s argument that the
Board erred by disregarding the Gender Guidelines. The cases she cites
involved sexual assault or domestic violence: see e.g. John v Canada (Citizenship and Immigration), 2011 FC 387; Ahmed v Canada (Citizenship and
Immigration), 2012 FC 1494; Raju v Canada (Citizenship and Immigration),
2013 FC 848. The applicant has never presented herself as a victim of sexual
assault or domestic violence. She never established a nexus to the Convention
ground of gender. There is no evidence that she suffers from any psychological
condition which might have been caused by gendered abuse. In fact, a review of
the hearing transcript reveals that she testified without any noticeable
difficulty. In these circumstances, the Court is not persuaded that the Gender
Guidelines are relevant to her case, and even less that they would mandate
an approach or outcome different from that adopted by the Board.
[40] It must be kept in mind that the Gender Guidelines do not
require the Board to accept every one of the applicant’s allegations and
documents at face value. My recent comments in Molefe v Canada (Citizenship and Immigration), 2015 FC 317 at para 25, apply with equal force to
Mrs Odurukwe’s claim:
The Court has recognized that the Gender
Guidelines are not intended as a cure for deficiencies in a refugee claim.
Their aim is to ensure a fair hearing: Newton v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 738 (TD) at para 18; Keleta v
Canada (Minister of Citizenship and Immigration), 2005 FC 56; Karanja v
Canada (Minister of Citizenship and Immigration), 2006 FC 574 at paras
5-6. I am satisfied from a review of the transcript and the Board’s reasons
that Ms Molefe received a fair hearing.
B.
Did the Board err in evaluating the documentary
evidence?
[41] There is no merit to the applicant’s argument that the Board ignored
relevant evidence, especially documentary evidence on the country conditions in
Nigeria. She is essentially pleading for the Court to reweigh the evidence
before the decision-maker. That is not the Court’s function on judicial review.
[42] With respect to the objective basis of the claims, the Court of
Appeal stated the law authoritatively in Canada (Citizenship and Immigration)
v Sellan, 2008 FCA 381 at para 3:
…where the
Board makes a general finding that the claimant lacks credibility, that
determination is sufficient to dispose of the claim unless there is independent
and credible documentary evidence in the record capable of supporting a
positive disposition of the claim. The claimant bears the onus of demonstrating
there was such evidence.
[43] In the case at bar, the Board could reasonably conclude that the
applicant did not meet the onus of demonstrating that “independent and credible
documentary evidence in the record” supported her claim. There is no basis for
the Court to intervene.
C.
Did the Board err in evaluating the existence of
an internal flight alternative?
[44] The applicant concedes that the Board correctly stated the law with
respect to IFAs. The Court recently restated the two-pronged test in Zablon
v Canada (Citizenship and Immigration), 2013 FC 58 at para 20.
The test for a viable IFA is two-pronged.
First, the Board must be satisfied that there is no serious possibility of the
claimant being persecuted in the IFA found to exist. Second, it must be
objectively reasonable to expect a claimant to seek safety in the part of the
country considered to be an IFA (Rasaratnam v Canada (Minister of Employment
and Immigration), [1992] 1 FC 706 (FCA) at 710-711). The burden is on the
applicant to show that an IFA is not viable (see Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (FCA) at paras 5-6).
[45] In Guerilus, above, at para 20, Justice Boivin explained that
applicants who challenge the viability of an IFA must meet a high threshold.
The applicants had the onus of demonstrating
why, on a balance of probabilities, there is a serious possibility that they
would be persecuted in another part of the country where an internal flight
alternative might be available (Thirunavukkarasu). The applicants must
meet a very high threshold in order to show that the IFA is unreasonable. As
explained in Ranganathan v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 164, 266 N.R. 380 (F.C.A.) below at paragraph 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. The absence of
relatives in a safe place, whether taken alone or in conjunction with other
factors, can only amount to such condition if it meets that threshold, that is
to say if it establishes that, as a result, a claimant’s life or safety would
be jeopardized…
[46] In this case, the Board reasonably concluded that the applicant had
not met the onus of establishing that Lagos was not a viable IFA. There is no
reason to disturb its finding.
[47] Contrary to the applicant’s assertion, the Board did not offend the Gender
Guidelines by invoking the existence of non-governmental organizations
devoted to helping women in Lagos. That is because this factor was invoked at
the second step, not the first. The Board did not imply that the applicant
should be expected to seek protection from volunteers if the police refuse to
intervene when she encounters problems. Rather, it stated that living in Lagos would not place her in a position of undue hardship because she could benefit from
the assistance of these organizations, in addition to religious groups and the
family members with whom she has good relations.
[48] The Court rejects the applicant’s suggestion that these findings were
speculative and unreasonable. If the Board were not permitted to consider
support from women’s organizations, religious groups and family members in its
analysis of hardship, it is difficult to fathom what exactly it could consider.
[49] For these reasons, this application is dismissed. No questions were
proposed for certification.
Email this Content