Docket: IMM-4785-16
Citation:
2017 FC 510
Ottawa, Ontario, May 18, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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SIDIKATU ABIKE
ADEDOKUN
RUKAYAT
FOLASHADE SURAJUDEEN
ZAINAB
OLUWASEUN SURAJUDEEN
YUSRAH ABIODUN
SURAJUDEEN
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (“IRPA” or the “Act”) of a decision of the Refugee Appeal Division
(the “RAD”), wherein the RAD dismissed the Applicants’ appeal and affirmed the
decision of the Refugee Protection Division (the “RPD”), and determined that
the Applicants are neither Convention refugees nor persons in need of
protection (the “Decision”).
II.
Background
[2]
The Applicants, Sidikatu Abike Adedokun (the
“Principal Applicant”), Rukayat Folashade Surajudeen, Zainab Oluwaseun
Surajudeen, and Yusrah Abiodun Surajudeen (collectively, the “Applicants”) are
citizens of Nigeria. They are claiming refugee protection in Canada pursuant to
sections 96 and 97(1) of the IRPA.
[3]
The Applicants fear domestic violence, forced
marriage, and female genital mutilation (“FGM”) at the hands of the Principal
Applicant’s husband’s (the “Husband”) family. The Principal Applicant alleges
that the Husband’s father (the “Father-In-Law”) and kinsmen plan to force her
eldest daughter, Rukayat, into marriage and to undergo FGM.
[4]
The Principal Applicant claims that sometime in
May 2015, the Father-In-Law informed her and the Husband that he had arranged
for Rukayat to be married to the son of the local Imam, who is approximately 40
years old and who already has two wives. The marriage and FGM were supposed to
take place in October 2015, after Rukayat turned 12 years old. The Husband went
to the Father-In-Law in an attempt to change his mind, but the Father-In-Law
would not relent.
[5]
The Applicants had travelled to the United
States, in the spring of 2015, and still had valid United States visas, which they
used to flee Nigeria. From the United States, they came to Canada, as they had
been advised that Canada had a better record of protecting abused women. The
Husband remained in Nigeria; however, he too has fled the family home, in
Lagos, and is in hiding because the Father-In-Law and his kinsmen believe that
he assisted the Applicants in their escape.
[6]
According to the Principal Applicant, it is not
safe for the Applicants to return to Nigeria because the Father-In-Law and his
family want to harm the Applicants. The Principle Applicant alleges that the
Father-In-Law is a rich man, who owns a Transportation Company, with
connections in mosques all over Nigeria. She claims to fear for her personal
life and safety, and the safety of her children; and alleges that the
Father-In-Law would harm her for disobeying his orders and preventing Rukayat’s
marriage to the Imam’s son, Yusuf.
[7]
In rejecting the Applicants’ claim for refugee
protection, the RPD found that the determinative issue was that the Applicants
had an internal flight alternative (“IFA”). The RPD held that, on a balance of
probabilities, the Applicants do not face a serious possibility that they would
be persecuted in Nigeria if they relocated to Abuja, Benin City, Ibadan, or
Port Harcourt (the “IFA Cities”). The RPD further determined that it would not
be unreasonable for the Applicants to seek refuge in any of those cities.
[8]
On appeal, the RAD confirmed the RPD’s decision.
The RAD considered a request to grant the Applicants an oral hearing and
determined that, because the Applicants had not submitted any new evidence for
the appeal, the RAD could not hold an oral hearing.
[9]
The RAD also found that the RPD had not
committed an error in failing to consider the Chairperson’s Guidelines for
Women Refugee Claimants Fearing Gender-Related Persecution (the “Gender
Guidelines”), and noted that the RPD had recognized that both the Gender
Guidelines and Guideline 3: Child Refugee Claimants: Procedural and
Evidentiary Issues could be applicable to this claim. Further, the RAD held
that the RPD had applied the correct test for determining whether an IFA
exists: the two-prong test emanating from Rasaratnam v Canada (Minister of
Employment and Immigration), [1991] FCJ No 1256 (CA) [Rasaratnam],
and Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1993] FCJ No 1172 (CA) [Thirunavukkarasu], where the burden is upon the
Applicants to show that they do not have an IFA.
[10]
The RAD concluded that there was no evidence to
demonstrate that the Father-In-Law had the resources or connections to locate
the Applicants in any of the IFA Cities. The RAD also stated that the
Applicants failed to provide a reasonable explanation as to why they believed
that they would be discovered and/or harmed in any of the IFA Cities. The RAD,
therefore, found that the Applicants could live in any of the IFA Cities
without fear or the need to hide.
[11]
Further, the RAD was not persuaded that it would
unreasonable for the Applicants to relocate to any of the IFA Cities. The RAD
held that the Applicants would not suffer any harm in those cities on account
of their religious beliefs, and that the Principal Applicant would be able to
obtain employment.
III.
Issue
[12]
The issue is whether the RAD’s decision that the
Applicants have an IFA is reasonable.
IV.
Standard of Review
[13]
The appropriate standard of review is
reasonableness (Canada (Citizenship and Immigration) v Huruglica, 2016
FCA 93 at paras 30 to 35 [Huruglica]).
[14]
In determining whether the Decision is
reasonable, the Court must consider the decision contextually, in its entirety,
and not embark upon a line-by-line analysis (Communications, Energy and
Paperworks Union of Canada, Loca 30 v Irving Pulp & Paper Ltd, 2013 SCC
34 at para 54). However, the Court can intervene if the decision-maker has
overlooked material evidence or has taken evidence into account that is
inaccurate or not material (James v Canada (Attorney General), 2015 FC
965 at para 86).
V.
Analysis
A.
Was the RAD’s decision that the Applicants have
an IFA reasonable?
[15]
The two-prong analysis for IFA derived from Rasaratnam
and Thirunavukkarasu, above, was recently restated by this Court in Sargsyan
v Canada (Minister of Citizenship and Immigration), 2015 FC 333 at paragraph
12:
1. The RPD must be satisfied, on a balance
of probabilities, that there is no serious possibility of the Applicant being
persecuted in the part of the country in which it finds an IFA exist; and
2. That the conditions in that part of the
country are such that it would not be unreasonable for the Applicant to seek
refuge there.
[citations omitted]
[16]
In an application for judicial review, the
Applicants bear the burden of showing where the RAD committed a reviewable
error and establishing their claim.
[17]
The Applicants argue that it is unreasonable for
the RAD to have concluded, based solely on the distance of the IFA Cities from
Lagos and their size, that the Applicants can relocate to any of these cities
without risk.
[18]
In the Decision, the RAD considered the evidence
of the Father-In-Law’s attempts to locate the Applicants and assessed whether
he had political or business resources at his disposal, which he could use to
search out the Applicants, before determining that there was no persuasive
evidence that the Father-In-Law or his kinsmen could persecute the Applicants
in any of the IFA Cities. As such, I disagree with the Applicants that the
RAD’s analysis of whether the Applicants face a serious possibility of being
persecuted in any of the IFA Cities was based solely on the distance of the IFA
Cities from Lagos and the size of each city.
[19]
The Applicants also assert that the RAD ignored
gender issues and failed to consider the Gender Guidelines, and state that this
impacted the RAD’s determination that it would not be unreasonable for the
Applicants to seek refuge in one of the IFA Cities. The Respondent asserts that
the RAD did not provide lengthy reasons on the issue of the Principal
Applicant’s gender or on her marital status—relying on the reasons of the RPD,
which were referenced in the Decision—because the Applicants focused on the
issue of their ability to practice their religion before the RAD.
[20]
The Applicants provided little evidence
regarding how the conditions in the IFA Cities would impact the Applicants
based upon the Principal Applicant’s gender and marital status. Further, they
did not adduce any evidence to displace the RPD’s finding that the Husband
would be able to reunite with the Applicants, in Nigeria. Therefore, I find
that the RAD’s consideration of the Principal Applicant’s gender and the Gender
Guidelines is reasonable.
[21]
Further, the Applicants state that the Decision
was unreasonable because there was no state protection analysis. However, the
availability of state protection in Nigeria was not an issue that was raised at
either the RPD or the RAD, and it was not a determinative factor for either
panel.
[22]
Finally, although the Applicants state in their
written submissions that neither the RAD nor the RPD made findings regarding
the Principal Applicant’s credibility, they have not demonstrated why the RAD’s
failing to make a credibility finding is unreasonable. The Respondent contends
that the RAD’s conclusion was based upon the insufficiency of the evidence in
the record and that the RAD did not need to make a credibility finding, in
order to find that there was an IFA.
[23]
Based upon the arguments and the record before
the Court, I find that the RAD’s conclusion that there was insufficient
evidence, to show that the Applicants did not have an IFA, is reasonable.
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