Docket: IMM-4452-16
Citation:
2017 FC 879
Ottawa, Ontario, October 04, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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ISMAIL OLANIYI
TAIWO
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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 a judicial review of a decision of the
Refugee Appeal Division [RAD] denying Ismail Olaniyi Taiwo’s claim for refugee
protection. He argues that as the result of his conversion to Christianity, he
has been the victim of persecution in Nigeria at the hands of his uncle. The
Refugee Protection Division [RPD] rejected his claim on the grounds that he
lacked credibility and that he had a reasonable internal flight alternative
[IFA] in southern Nigeria. The RAD also dismissed his claim on the same
grounds.
[2]
For the reasons that follow, this judicial
review is dismissed as the Applicant raises no reviewable errors.
I.
RAD Decision
[3]
The RAD rejected the Applicant’s claim in
October 2016, and confirmed the RPD decision that there was an IFA available to
the Applicant within Nigeria, specifically Port Harcourt.
[4]
The RAD applied the two-part test for
establishing a reasonable IFA, as outlined by the Federal Court of Appeal in Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA) [Rasaratnam].
[5]
Like the RPD, the RAD held that there was a lack
of evidence that the Applicant’s uncle had power or influence outside of Lagos.
With respect to the Applicant’s kidnapping, the RAD found that this was local
in nature. Further the RAD noted that due to the Applicant’s lack of profile
and the minimal geographical influence his uncle would have, the Applicant
would not be targeted, by the police or otherwise outside of Lagos.
[6]
The RAD placed no weight on the police report
stating that the Applicant is wanted for sponsoring Boko Haram. The RAD found
that the document did not have the hallmarks of an official document from a
Nigerian government authority.
[7]
The RAD also considered whether it would be
unduly harsh to expect the Applicant to relocate pursuant to the Federal Court
of Appeal decision in Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FCR 589 (CA) [Thirunavukkarasu]. The RAD
noted that the Court of Appeal in Thirunavukkarasu held that dislocation
and relocation are normal incidences of an IFA and do not amount to undue
hardship.
[8]
The Applicant alleged that he would face ethnic,
religious, and language-based discrimination in Port Harcourt. However, the RAD
found that ethnic and language-based discrimination are not prevalent in large
cities, such as Port Harcourt. With respect to the religious discrimination the
Applicant claimed he would face, the RAD noted that a large majority of the
Christian population is located in south Nigeria.
[9]
He also alleged that he would suffer financial
hardship, as it would be more difficult for him to work as an architect outside
Lagos. The RAD concluded that any economic or job related hardship the
Applicant might face did not amount to undue hardship.
[10]
The RAD agreed with the RPD that there was a
reasonable IFA available to the Applicant.
II.
Issue
[11]
The reasonableness of the RAD decision will be
assessed against the 3 main issues raised by the Applicant as follows:
a.
RAD treatment of new evidence
- RAD treatment of
the Nigerian Police Report
- Assessment of
IFA
III.
Standard of Review
[12]
The parties agree that the applicable standard
of review is reasonableness (Canada (Citizenship and Immigration) v
Huruglica, 2016 FCA 93 at para 35; Edmonton (City) v Edmonton East
(Capilano) Shopping Centres Ltd, 2016 SCC 47 at para 22).
[13]
This standard also applies to the RAD assessment
of the admissibility of “new evidence” (Canada
(Citizenship and Immigration) v Singh, 2016 FCA 96 at para 29 [Singh]).
[14]
Accordingly, this Court will not intervene
unless the RAD’s decision falls outside the range of possible, acceptable
outcomes available in light of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
IV.
Analysis
a.
RAD treatment of new evidence
[15]
Before the RAD, the Applicant attempted to
introduce evidence which was not before the RPD. The Applicant argues that the
RAD refusal to consider this evidence was an error and that it should
have admitted his new evidence, in particular an article that was published
after his RPD hearing.
[16]
In considering the admission of the new
evidence, the RAD correctly applied the Raza framework (Raza v Canada
(Citizenship and Immigration), 2007 FCA 385) [Raza]. Though it could
have admitted the article that was published after the RPD hearing, the RAD
noted that the Applicant had not explained why he could not have tendered the
article as post-hearing evidence when he became aware of the publication.
[17]
The RAD was not satisfied that the article in
question met the test in s. 110(4) of the Immigration and Refugee Protection
Act [IRPA] for the admission of new evidence, and therefore declined
to accept the evidence. It is obvious the RAD considered the grounds for
receiving the new evidence and made the appropriate inquiries about the
article. Although the RAD ultimately refused to accept it as evidence, it acted
reasonably in considering the evidence.
[18]
It is not appropriate for this Court on judicial
review to revisit the Raza factors and apply them to the Applicant’s
documents. On a reasonableness standard of review, the Court owes deference to
the RAD’s analysis of the admissibility of new evidence.
[19]
The RAD decision not to admit the new evidence
is reasonable.
b.
RAD treatment of the Nigerian Police Report
[20]
The Applicant argues that the Nigerian Police Report
should have been given weight by the RAD. He argues that if the RAD had
concerns about the authenticity of the Nigerian Police Report, these concerns
should have been put to the Applicant during an oral hearing. He submits that
the format of police documents in Nigeria can vary, and that appearance alone
cannot be the reason to discard the report as inauthentic.
[21]
However, a review of the RAD reasons
demonstrates that the RAD did not discard the report on physical appearance
alone. It reasoned that the police report which purports to be from a central
agency, the Department of State at National Headquarters in Lagos, would
usually bear the hallmarks of authenticity. The RAD found the police report,
which states that the Applicant was wanted by the state, is likely a fake and
accordingly afforded it no weight.
[22]
The Applicant has not demonstrated how this
determination is unreasonable.
[23]
As a related argument, the Applicant argues that
if the RAD had concerns about the authenticity of the Nigerian Police Report,
these concerns should have been put to the Applicant during an oral hearing. Section
110(6) of the IRPA provides that the RAD may convoke an oral
hearing where there is new documentary evidence admitted pursuant to s.
110(4) which raises a serious issue as to credibility, and other considerations
(Adera v Canada (Citizenship and Immigration), 2016 FC 871 at para 57). Here,
the police report was not “new” because it was
before the RPD. Further, the RAD did not discount the police report on account
of the Applicant’s lack of credibility but rather on account of the probative
value of the document itself.
[24]
Though the common law duty of procedural
fairness may provide an Applicant with an opportunity to respond where the RAD
makes new credibility findings (Husian v Canada (Citizenship and
Immigration), 2015 FC 684 at paras 9-10), the findings in this case related
to the weight given to the police report and not to the credibility of the
Applicant.
[25]
Accordingly the treatment by the RAD of the
police report was reasonable.
c.
Assessment of IFA
[26]
The Applicant argues that the IFA is not viable
because of his profile and the hardships he will face.
[27]
The IFA analysis has two aspects:(1) whether
there is a serious possibility that the Applicant will be persecuted in the
part of the country in which an IFA exists, and (2) whether it would be
unreasonable for the Applicant to seek refuge in the IFA (Rasaratnam, at
711). In relation to the second prong of the test, refuge will only be
unreasonable where there is undue hardship in relocation (Thirunavukkarasu,
at 688).
[28]
Here the Applicant alleges that there is a
serious possibility of persecution because, he argues, his uncle wields power
and influence throughout the country. However the RAD found that there was no
evidence to support this assertion. The RAD noted a lack of evidence that his
uncle, an Imam in Lagos, wielded any power or influence outside of Lagos. Nor
was there any evidence that he wielded influence, as a man of means, over local
law enforcement.
[29]
The second alleged source of persecution is the
police who the Applicant claims were bribed by his uncle. The Applicant alleged
that he had been detained for no reason by order of his uncle. The RAD found
that his detention was to obtain a bribe, a plight faced by many Nigerians. The
RAD also found that this detention was local in nature.
[30]
The RAD considered whether the hardship
associated with such relocation was unduly harsh as described in Thirunavukkarasu.
The Applicant alleged that he would face religious, ethnic, and language-based
discrimination in Port Harcourt. He had also alleged, and emphasised heavily,
that he would not be able to find suitable employment as an architect that
would allow him to support his family.
[31]
The RAD held that although there would be some
discrimination, as with any minority or even majority group, such
discrimination is less in large city centers. As such, this would not qualify
as unduly harsh.
[32]
As well, the RAD found that the Applicant would
not face difficulties in securing employment so as to constitute undue
hardship.
[33]
Overall the Applicant has not raised any
reviewable error in the RAD’s assessment of the reasonableness of the IFA.
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