Docket: IMM-4641-16
Citation:
2017 FC 612
Ottawa, Ontario, June 21, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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RUKAYAT AJOKE
OGUNDAIRO,
ADEJUMUOBI
NURATULAH OGUNDAIRO (MINOR), ADEDAMOLA MUHAMMED YASIR OGUNDAIRO (A.K.A.
ADEDAMOLA MUHAMMEDYASIR OGUNDAIRO) (MINOR)
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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
[1]
The present Application concerns the October 12,
2016 decision in which the Immigration and Refugee Board, Refugee Appeal
Division (RAD) found that the Applicants, a mother (Applicant) and her two
children, are neither Convention refugees nor persons in need of protection
because an Internal Flight Alternative (IFA) exists in Nigeria, their country
of origin.
[2]
On appeal from the decision of the Immigration
and Refugee Board, Refugee Protection Division (RPD), the RAD accepted the
Applicant’s evidence establishing her subjective and objective fear of more
than a mere possibility of persecution pursuant to s. 96, and probability of
risk pursuant to s. 97 of the Immigration and Refugee Protection Act, SC
2001 c 27, (IRPA) respectively, should she be required to return to
Nigeria. The issue for determination is whether the RAD’s IFA finding is
supported by the evidentiary record.
I.
The Undisputed Evidence Supporting the
Applicants’ Claim for Protection
[3]
The Applicants seek protection from the family
of the Mother’s ex-husband (the in-laws). The RAD did not doubt the credibility
of the Applicants’ claims. Therefore, the following facts are uncontested, and,
except as noted, are drawn from the Affidavit attached to the Applicants’ Basis
of Claim (Certified Tribunal Record (CTR), pp. 573-579).
[4]
With the help of state security agents, the
in-laws have pursued the Applicants for a number of years in order to subject
the daughter to female genital mutilation (FGM) and both children to the
infliction of tribal marks, collectively called “the
rituals”.
[5]
The Applicant married her husband in 2003. Her
daughter was born in 2003 and her son was born in 2006. During this time they
lived with her husband in Lagos, whereas both spouses’ families lived in
Abeokuta, a city of approximately 1 million which is a 1.5-2 hour drive from
Lagos (Transcript, CTR, pp. 458-459).
[6]
In September 2006, the Applicant moved to
Abeokuta with her children. In December 2006, the Applicant’s mother-in-law
began insisting that her children be subjected to the rituals. The Applicant
was opposed to these practices and refused. The Applicant’s husband travelled
from Lagos to Abeokuta and tried to reason with his family, to no avail. The
Applicant and her husband decided that she and the children would move back to
Lagos.
[7]
In Lagos the Applicant’s husband’s sister
visited their house every month to insist that the rituals be performed, and
the husband received phone calls to this effect from the in-laws.
[8]
In September 2010, the Applicant and the
children moved back to Abeokuta because she was culturally required to care for
her sick parents. The following month, the Applicant's husband fled the country
after being found having sex with a man and, as a result, spending a week in
prison. The in-laws were angry with the Applicant because of her husband's
behaviour, seeing it as unacceptable. Their resolve to perform the rituals was
strengthened.
[9]
The Applicant was able to avoid her in-laws
until December 2011 when she encountered her cousin-in-law by chance at her
work. He subsequently sought her out to tell her that she needed to bring the
children to have the rituals performed. The Applicant tried to dissuade her in‑laws
by having her Imam speak with them, to no avail. Her in-laws were further
angered because the children were attending a Catholic school which, as
Muslims, they opposed. They took the attendance as a sign that the Applicant
was trying to convert the children to Christianity.
[10]
The Applicant was robbed of her car and bag in
January 2013 and when the police arrived, they realized who her husband was and
wanted to question her on his escape from the country rather than the robbery.
She convinced the police not to make a report, saying she would report the
robbery later, but never did for fear of being arrested or questioned due to
her husband’s escape. The Applicant divorced her husband on May 27, 2014.
[11]
On June 20, 2015, the Applicant's uncle-in-law
went to her home, told her that the family could take custody of the children
after seven years, and said the rituals would be carried out. Others were there
as well, including men in Nigerian Security and Civil Defense Corps uniforms.
The Applicant was beaten. The incident was witnessed by a neighbour, and the
Applicant was able to yell to a friend to contact her parents.
[12]
The Applicant and her children were taken to her
in-laws' house, her daughter's pants and underwear were removed and an old man
pulled out scissors. When the Applicant protested, she was slapped and
threatened with death. The circumcision was about to begin when her parents
arrived and disrupted it.
[13]
The Applicant needed medical treatment. She did
not go home, but when she later went to pick up some belongings, she saw that
her home had been broken into. She went to stay with her parents.
[14]
The Applicant was able to make arrangements to
travel with her children to the USA in September 2015. They stayed with the
cousin of the agent who had made the travel arrangements. The cousin was
contacted by the Applicant's in-laws in December 2015, when they found out
where the Applicant was. He told her to leave and she ended up staying with
someone she had met at the cousin’s home. That man raped her. She fled, and
having nowhere to go, stayed at the bus station with her children, until she
met a man who arranged for her to travel to Canada.
[15]
It was only when she was staying at a Toronto
shelter that she became aware that she could claim refugee protection and
thereafter did so.
[16]
The Applicant was five months pregnant from
being raped at the time of the RPD hearing (Transcript, CTR, pp. 450-451). She
has since given birth in Canada (Applicants’ Further Memorandum, para. 21).
II.
The IFA Finding
[17]
The following description of the test for
establishing the existence of an IFA is not contested (see: Thirunavukkarasu
v Canada (Minister of Employment and Immigration) [1994] 1 FCR 589 (Thirunavukkarasu).
[18]
An IFA is part and parcel of the definition of
a Convention refugee. Refugee claimants bear the burden of establishing that
they have a well-founded fear of persecution in their country of origin, such
that they must seek protection from the international community. Natural
justice requires that the decision-maker of a refugee claim alert the claimant
if it appears that state protection may be available somewhere in the country
of origin. The claimant must then address this concern in order to establish
the claim.
[19]
To find an IFA, the decision-maker must be
satisfied on a balance of probabilities that it is viable and reasonable. That
is, there is no serious possibility that the claimant will be persecuted in the
IFA, and in all the circumstances, it is objectively reasonable for the
claimant to seek protection there. Given that both prongs of the test must be
satisfied, the claimant may disprove the allegation that an IFA exists by
rebutting either prong. Claimants may have to rely on country condition
evidence to disprove IFA viability because often they have never been to the
proposed IFA. The reasonableness requirement must be interpreted flexibly, with
sensitivity
to the particular circumstances of the
claimant. In Thirunavukkarasu at page 8, Justice Linden gave the
following direction:
...the question to be answered is, would it
be unduly harsh to expect this person, who is being persecuted in one
part of his country, to move to another less hostile part of the country before
seeking refugee status abroad?
[Emphasis added]
[20]
In the present case, the RAD sought to establish
the viability of Abuja as an IFA:
The Appellant was asked if she could live in
the capital city of Abuja, which she acknowledged was approximately 10-12 hours
away from where she had been living in Abeokuta. She responded that her in-laws
are well-known people and therefore capable of locating her. In response to her
counsel, the Appellant stated that the perpetrators would find her through her
surname, as she didn't change her name, and also through her place of work
(Decision, para. 25).
[21]
The RAD concluded that the Applicant had failed
to establish that she would be “tracked down or
targeted in Abuja” (Decision, para. 40). I find it is unnecessary to
address the RAD’s conclusion on viability because of the RAD’s erroneous finding
on the reasonableness of the IFA.
III.
Reasonableness: The Evidence and the RAD’s
Finding
[22]
The RAD was required by binding FCA
jurisprudence (Thirunavukkarasu, supra) and the Immigration and
Refugee Board’s own Chairperson Guidelines 4: Women Refugee Claimants
Fearing Gender-Related Persecution (Gender Guidelines) to sensitively
consider how the
Applicant’s identity impacted the
reasonableness of Abuja as an IFA (see: Applicants’ Further Memorandum, para.
20; Decision, para. 20). The Gender Guidelines specify as follows:
In determining the reasonableness of an IFA,
the decision-makers should take into account factors including religious,
economic, and cultural factors, and consider whether and how
these factors affect women in the IFA.
[Emphasis added]
[23]
The Applicant’s testimony is part of the record
which the RAD was required to consider:
Applicant: You know how it is when
religiously and traditionally you come back with a pregnancy that you cannot
account for in the sense that I have been divorced for a while, while I left
Nigeria I wasn’t pregnant. For me to go back with a pregnancy would be frowned
upon by my religious community because it is considered an abomination to be
pregnant without having a husband in both countries.
Counsel: How do you think your family
would react?
Applicant: My father would be very
very very annoyed with me. That why I do not know how to tell him.
Counsel: Would there be any danger
to you to go back pregnant or with a child as an unmarried woman. Would there
be any danger to you or your child?
Applicant: Yes...I would be disowned
and ostracized.
Counsel: Do you fear any harm to
you or your baby if you go back to Nigeria? And who do you fear would cause you
that harm?
Applicant: They would stone me and my
family would disown me.
Counsel: You said something about
stoning, who would you be fearful would do it to you?
Applicant: The community […]
RPD Member: But that happens
only in certain parts of Nigeria, it does not happen in the areas of Abuja or
Lagos.
Applicant: It’s everywhere.
[…]
Counsel: So would Lagos be a safer
place for you if you were to go back pregnant or with a child?
Applicant: No, no it’s still the same
thing, no; it’s the law, with Sharia law, being a Muslim, yes, I would be
despised, I would be banished from the community.
(Transcript, CTR, pp. 471-472)
[24]
The RAD’s entire reasoning on the reasonableness
of the chosen IFA is as follows:
[41] A report from the United Kingdom
(UK) Home Office, June 9, 2015, states that Nigeria is a large country with a
population of over 170 million, covering an area of over 900,000 square
kilometres in 36 states. Nigerians can freely travel within Nigeria. The same
report states that the 1999 Nigerian constitution provides for the freedom of
movement within Nigeria, and states that every citizen of Nigeria is entitled
to move freely throughout Nigeria and to reside in any part thereof, and no
citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or
exit therefrom.
[42] The Appellant argues that even if
the RPD accepts that the Appellant was not raped, she has a child born out of
wedlock, which it is submitted would in turn subject her to rejection in the
community.
[43] The RAD finds that the Appellant
provided no persuasive evidence that she could not continue to receive support
from her immediate family members. It is open to the Appellant to involve
herself in a church where the RAD reasonably believes she could also find
support in a religious community in Abuja. The RAD finds, on a balance of
probabilities, that the Appellant could have moral and spiritual support in
Abuja from her immediate family members.
[44] The report from the UK Home
Office, referred to above, indicates that in general it will not be unduly
harsh for a woman, especially if single and without children to support,
who is able to access accommodation and is able to support herself to relocate.
[45] The Appellant's education is well
beyond the average number of years or formal education completed by females
which the independent documentary evidence indicates is nine years. The
Appellant has been employed as a teacher for a number of years. The independent
documentary evidence also indicates that it is easier for women to live on
their own without male support if they are educated, have a high social status
and can use family connections, amongst other variables.
[46] The RAD finds that the Appellant
is unlikely to tell anyone that she was raped, at least anyone who would
target her as a result. Secondly, since this occurred in the US and not in Nigeria,
she would simply be returning with a child, and therefore, the issue of
marriage ought not to come into play.
[47] Lastly, the Appellant's argument
that her husband's homosexuality places her in a more precarious position is
rejected by the RAD. She has not been with him for six years, and they are
divorced. Accordingly, the RAD finds that while this may account for his
absence, it has little or no relevance to the merits of this claim.
[48] Therefore, the RAD finds that it would
not be unreasonable, in all circumstances, including those particular to the
Appellant, for her to seek refuge in Abuja.
[Emphasis added] [References omitted]
[25]
In my opinion, each of the findings expressed in
paragraphs 42 to 47 are unsupported by the evidence.
[26]
In paragraph 42 of the decision, the RAD
acknowledged the Applicant’s argument based on her unrefuted evidence of
the real life danger that she and the children would face if they are required
to return to Nigeria. However, as described below, the RAD failed to acknowledge
and apply the evidence.
[27]
Regarding paragraph 43, the RAD failed to
recognize that, by implication of the physical separation of the Applicant from
her family, the Applicant and her children will not have meaningful practical
support from her family to deal with the extreme challenges that they will
face. To find that moral and spiritual support will sustain the Applicant and
the children is unfounded. The idea that the Applicant will receive support
from “a church” is an indication that the RAD
did not care enough about the facts to fully recognize that the Applicant is
Muslim, and the implications that arise from this fact. The Applicant’s
evidence goes to establish that there is more than a mere possibility that her
own religious community will be an agent of persecution. On the evidence, there
is no other “religious community” upon which she
can depend.
[28]
Regarding paragraph 44, the RAD’s reliance on a
completely irrelevant opinion that a woman “if single
and without children to support” can cope, indicates extraordinary
neglect of the evidence.
[29]
Regarding paragraph 45, the RAD’s reliance on an
opinion that an educated woman with high social status and family connections
can live on her own in Abuja without male support, is irrelevant. The Applicant
is a well-educated teacher; that is where the comparable ends.
[30]
Regarding paragraph 46, the expectation that the
Applicant will succeed in lying about her reality in order to protect herself,
and the children, is remarkably harsh. Expecting the Applicant to hide her
history of rape, which she cannot change, while simultaneously expecting her to
be able to access the support she requires to survive in Abuja is, to say the
least, unrealistic (see: Atta Fosu v Canada (Citizenship and Immigration),
2008 FC 1135). The RAD’s finding that, “the issue of
marriage ought not to come into play” as she would “simply” be returning with a child, ignores the
Applicant’s unrefuted evidence, as stated in paragraph 23 above, that she would
be stoned or ostracized if she returns with a child for whom she cannot
account.
[31]
Regarding paragraph 47, the fact that the RAD
did not appreciate from the evidence on the record that homophobia is a reality
in Nigeria, and the Applicant’s realistic fear that, if the community would
learn that her ex-husband is gay, she and the children would suffer greatly is
further evidence of the failure of the RAD’s decision-making (CTR, pp.
162-264).
[32]
And, finally, regarding paragraph 48, in my
opinion the RAD’s finding that it would not be unreasonable for the Applicant
to seek refuge in Abuja was made in a perverse manner being the RAD’s
propensity to not find on the basis of the evidence. To say the least, on the
evidence it is clear that expecting the Applicant to flee to Abuja is “unduly harsh” (Thirunavukkarasu).
IV.
A Fair and Just Result
[33]
There is no question that the decision presently
under review must be set aside. Given the evidence on the record before the
RPD, if I had the authority to do so, I would have no hesitation in directing a
verdict that, pursuant to s. 111(1)(b) of the IRPA, the RAD is to set
aside the RPD determination and substitute a determination that the Applicants
are Convention refugees. However, the following statement at paragraph 14 in
the decision in Canada (Minister of Human Resources Development) v Rafuse),
2002 FCA 31 cautions against doing so in the present case:
While the directions that the Court may
issue when setting aside a tribunal's decision include directions in the nature
of a directed verdict, this is an exceptional power that should be exercised
only in the clearest of circumstances: Xie, supra, at paragraph
18. Such will rarely be the case when the issue in dispute is essentially
factual in nature (Ali v. Canada (Minister of Employment and
Immigration), [1994] 3 F.C. 73 (T.D.)), particularly when, as here, the
tribunal has not made the relevant finding. [Emphasis added]
[34]
Because, whether an IFA exists in Nigeria for
the Applicant and the children that is not unduly harsh is a question of
fact, it is for the RAD to decide on a redetermination.
[35]
Specific directions to the RAD on what is
required to be considered on the redetermination should aid in reaching a fair
and just result.
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