Docket: IMM-4632-16
Citation:
2017 FC 455
Ottawa, Ontario, May 5, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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PITRA
ELOGHENEVIANO MELFORD-JOWOH (a.k.a. PITRA ELOGHENEV MELFORD-JOWOH)
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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]
The Applicant, Ms. Pitra Elogheneviano
Melford-Jowoh (also known as Pitra Eloghenev Melford-Jowoh) is a citizen of
Nigeria. She arrived in Canada from the United States on February 21, 2016
while pregnant and sought refugee protection on March 9, 2016. She claims she
fears persecution from her husband’s uncle, a former senator, and from other members
of her husband’s clan for refusing to participate in pregnancy rituals which would
endanger her health and that of her unborn child and which are contrary to her
Christian beliefs.
[2]
In a decision dated June 7, 2016, the Refugee
Protection Division [RPD] rejected the Applicant’s claim for protection on the
ground that she had a safe and reasonable internal flight alternative [IFA] elsewhere
in Nigeria.
[3]
On October 6, 2016, the Refugee Appeal Division
[RAD] dismissed the Applicant’s appeal and upheld the RPD’s finding regarding
the existence of a viable IFA elsewhere in Nigeria. The RAD found that there
was no serious possibility that the Applicant would be persecuted in the
proposed IFA and moreover, that the Applicant had not provided sufficient
evidence to demonstrate that relocating to the proposed IFA would be
unreasonable in her circumstances.
[4]
The issue to be determined in this application
for judicial review is the reasonableness of the RAD’s conclusion that the
Applicant had a viable IFA elsewhere in Nigeria. The parties agree that the
determination of an IFA is a question of mixed fact and law, to be reviewed on
the standard of reasonableness (Asif v Canada (Citizenship and Immigration),
2016 FC 1323 at para 20; Bokhari v Canada (Citizenship and Immigration),
2016 FC 1306 at para 14; Mchedlishvili v Canada (Citizenship and
Immigration), 2010 FC 630 at para 12 [Mchedlishvili]).
[5]
In assessing reasonableness, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47
[Dunsmuir]).
[6]
The determination of whether a viable IFA exists
involves a two-prong test. The tribunal must first be satisfied, on a balance
of probabilities, that there is not a serious possibility of the claimant being
persecuted in the part of the country in which it finds an IFA. Second, the
conditions in the IFA must be such that it would not be unreasonable, in all the
circumstances, including those particular to the claimant, to seek refuge there
(Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589 (CA) at paras 9 and 12 (Q.L.) [Thirunavukkarasu]; Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA) at
para 10 (Q.L); Mchedlishvili at para 16).
[7]
The Applicant bears the onus of
demonstrating that an IFA does not exist or that it is unreasonable in her circumstances
(Thirunavukkarasu at paras 5, 9 and 12). The Applicant must satisfy this
high threshold on a balance of probabilities (Okechukwu v Canada
(Citizenship and Immigration), 2016 FC 1142 at para 35 [Okechukwu]; Mchedlishvili
at para 17).
[8]
The Applicant submits that the RAD’s conclusion
that she would face no serious possibility of persecution in the proposed IFA
is unreasonable. She argues namely that she provided ample evidence to show
that: 1) her husband’s uncle, as a former senator, has a very high profile and
connections such that he would be able to locate the Applicant in the proposed
IFA; 2) the fact that a member of her husband’s family lives in the proposed
IFA increases the chance that she could be located there; and 3) since the Applicant’s
departure, her husband’s uncle has additional motives to locate her.
[9]
I am not persuaded by the Applicant’s arguments.
The RAD’s finding regarding a viable IFA elsewhere in Nigeria is based on its
conclusion that the uncle and the rest of her husband’s clan are not serious
about fulfilling their threats against the Applicant. This is based on, namely,
the fact that the Applicant was not targeted when she lived with her friend for
two (2) months before leaving Nigeria and because her husband, who remained in
the same home he had shared with the Applicant, was not targeted. It was
reasonable for the RAD to conclude that the fact that the Applicant stayed in
her home city and continued going to work without being targeted for more than
two (2) months, was an indication that the uncle had either no motivation to
find her or was unable to do so. It was also reasonable for the RAD to infer that
because the uncle was unable to find her when she was at her place of
employment, he would be unable to find her in the proposed IFA which is a
significant distance away from the village where her alleged persecutors
reside.
[10]
To support its finding that the uncle would not
be able to find the Applicant in the proposed IFA, the RAD noted that Nigeria
had a population of over 180 million people and that the proposed IFA has a
population of over two (2) million inhabitants. The RAD also considered
Nigeria’s lack of infrastructure, noting, for instance, that only 11.6 percent
of urban residents and 1.5 percent of rural residents had access to the Internet.
The RAD also rightly relied on the absence of evidence demonstrating that the
Obimo Ndigbo Youth Association and the Obimo Ndigbo Indigene Association had
the capacity to locate the Applicant. Similarly, it was reasonable for the RAD
to ask itself why the Applicant was bearing the full force of the anger of her
husband’s uncle when her husband had not consented to the rituals and, by all
accounts, was supporting his wife’s decision.
[11]
Furthermore, in the absence of any evidence
demonstrating that the Applicant’s husband’s uncle had any other relatives
living in the proposed IFA aside from the one member of the Applicant’s
husband’s family, it was not unreasonable for the RAD to infer that this person
would not divulge the Applicant’s location, given that she had agreed to sign
an affidavit on behalf of the Applicant despite the uncle’s notoriety and
influence.
[12]
The Applicant also submits that in assessing the
other branch of the IFA test, that is whether it would be unreasonable for the
Applicant to relocate to the proposed IFA, the RAD failed to consider: 1) the
Applicant is now more vulnerable as it is more difficult for her to remain safe
and less visible in the proposed IFA with a young baby; 2) a psychological
assessment which concludes that she exhibited post-traumatic stress disorder,
anxiety and depression and that her mental state would deteriorate if she
returns to Nigeria; and 3) the Chairperson’s Guidelines 4: Women Refugee
Claimants Fearing Gender-Related Persecution [Guidelines] as the Applicant was
subject to sexual abuse and is also now in a position where she would have to
protect her daughter from female genital mutilation which is highly gendered
violence.
[13]
The Applicant has not submitted any evidence to
substantiate the assertion that having a baby makes the proposed IFA less
viable. I reiterate that the Applicant has the onus of demonstrating why
the proposed IFA is not reasonable. The burden does not fall on the RAD to
explain why the proposed IFA would be safe for the Applicant and her baby.
[14]
It was also reasonable for the RAD to conclude
that the psychological assessment of the Applicant was insufficient to meet the
high threshold of showing that seeking refuge in the proposed IFA would be
unreasonable. While the report speaks about the psychological impact of the
Applicant returning to Nigeria, it does not indicate: 1) how the
psychotherapist came to the medical opinion that the Applicant’s medical
condition would deteriorate if she were to return to Nigeria; 2) the type of
treatment the Applicant needed; and 3) whether she could obtain the treatment
in the proposed IFA (Okechukwu at para 39; Egbesola v Canada
(Citizenship and Immigration), 2016 FC 204 at para 15).
[15]
Moreover, the psychological report must be read
in the context of the Applicant’s pregnancy and the effect that the threat of
returning to Nigeria was having on the Applicant’s unborn child. In the absence
of any evidence regarding the Applicant’s current condition, with the exception
of a doctor’s prescription, it was not unreasonable for the RAD to give the
report little weight in the context of considering the Applicant’s current circumstances.
[16]
Finally, I do not find that the decision was
made in contravention of the Guidelines. The RAD explicitly stated that it had
considered them. I also cannot say from reading the decision that the RAD
lacked sensitivity in approaching the Applicant’s case. In any event, the
failure to refer to the Gender Guidelines does not in itself constitute a
reviewable error (Chappell v Canada (Immigration, Refugees, and Citizenship),
2016 FC 1243 at para 18; Sargsyan v Canada (Citizenship and Immigration), 2015
FC 333 at para 15).
[17]
The Applicant also argues that the RAD ignored
or misconstrued the evidence before it in reaching its decision. However, to
the extent that the RAD erred in the weight it assigned the evidence, I do not find
these errors to be determinative.
[18]
Keeping in mind that the RAD’s decision must be
reviewed as an organic whole and that judicial review is not a line-by-line treasure
hunt for errors (Communications, Energy and Paperworkers Union of Canada,
Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54), I find
that when viewed as a whole, the RAD’s decision is reasonable as it falls
within the range of possible, acceptable outcomes that are defensible in
respect of the facts and the law (Dunsmuir at para 47).
[19]
Accordingly, this application for judicial
review is dismissed. No questions were proposed for certification and I agree
that none arise.
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