Date: 20241118

Docket: IMM-11318-23

Citation: 2024 FC 1828

Ottawa, Ontario, November 18, 2024

PRESENT: The Honourable Mr. Justice Régimbald

JUDGMENT AND REASONS

I. Context

[1] Dr. Adebowale [the applicant] seeks judicial review of a Refugee Appeal Division [RAD] decision, confirming the Refugee Protection Division’s [RPD] determination that she is not a Convention refugee nor person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[2] The applicant is a Nigerian citizen, fearing persecution from the Nigerian National Police Force due to her support for the “End SARS” (Special Anti-Robbery Squad) protest movement. She alleges that on October 17, 2021, two police officers randomly searched her car and found an End SARS pamphlet in it. The officers then took her into their vehicle, assaulted her, seized her belongings, took photographs of her and her identification card. The next day, the applicant travelled to the United States according to pre-existing travel plans, but did not make a claim for refugee protection. On November 2, 2021, the applicant travelled to Canada on a visitor visa, eventually submitting a claim for refugee status in March 2022.

[3] The RPD denied her claim, mainly because she has an Internal Flight Alternative [IFA] in Port Harcourt, Nigeria. The RAD dismissed her appeal on the same basis, concluding that she does not face a serious possibility of persecution and has a reasonable IFA in Port Harcourt. The RAD notably determined that the applicant’s agents of persecution are the two officers she encountered on October 17, 2021, and that there is insufficient evidence to indicate that the Nigerian National Police Force as a whole would persecute and pursue her. There is no indication of the officers reporting the applicant to their superiors, or otherwise processing or charging her for a crime of any sort. The RAD also concluded that it would not be unreasonable for the applicant to relocate to Port Harcourt. While the RAD acknowledged evidence suggesting possible barriers in the areas of language, employment, and housing, it preferred more recent objective evidence indicating that as an English-speaking, well-educated professional, and with the opportunity to relocate with her husband, the applicant would likely not face those barriers, nor that she would lack access to mental health services if they were required.

[4] The applicant submits that the RAD committed several reviewable errors, rendering its decision unreasonable. The applicant alleges that the RAD erred by (1) concluding that an IFA is available when the persecutor is a state agent; (2) failing to meaningfully engage with the barriers faced by women in Port Harcourt; (3) determining that she does not have a significantly influential role in Nigeria to incite the Nigerian National Police Force to search and persecute her throughout the country; (4) misapprehending the country conditions evidence with respect to the Nigerian National Police Force’s human rights abuses; (5) establishing an inaccurate chronology of events; (6) drawing unreasonable adverse inferences from the evidentiary record; and (7) concluding that she would have access to mental health services in Port Harcourt.

[5] In my view, the applicant has not established that the alleged errors render the RAD decision unreasonable. For the reasons below, this application for judicial review is dismissed.

II. Issues and Standard of Review

[6] The sole issue is whether the RAD reasonably determined that the applicant has a viable IFA in Port Harcourt.

[7] The standard of review in this case is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]). To avoid judicial intervention, the decision must bear the hallmarks of reasonableness—justification, transparency and intelligibility (Vavilov at para 99; Mason at para 59). A decision may be unreasonable if the decision maker misapprehended the evidence before it (Vavilov at paras 125–126; Mason at para 73). Reasonableness review is not a “rubber-stamping” exercise, it is a robust form of review (Vavilov at para 13; Mason at para 63). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).

III. Analysis

[8] A two-pronged test determines the viability of an IFA (Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 711, 1991 CanLII 13517 (FCA); Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 1993 CanLII 3011 (FCA) at 592). The first prong considers whether a claimant would be subject to a serious possibility of persecution under section 96 or to a risk of harm under subsection 97(1) of the IRPA in the proposed IFA. Under this prong, one considers the agent of persecution’s “means” and “motivation” to locate the claimant in the proposed IFA (Singh v Canada (Citizenship and Immigration), 2023 FC 996 at para 8 [Singh]; Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 at para 21 [Adeleye]). The second prong assesses whether it would be reasonable, in all the circumstances, to expect the claimant to seek safety in the IFA (Singh at para 10; Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 8 [Olusola]). The threshold to establish unreasonableness is very high, requiring “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” (Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 (FCA) at para 15). Once an IFA is proposed, the onus is on the claimant to prove that they do not have a viable IFA (Adeleye at para 20; Olusola at para 9).

[9] The applicant submits that the RAD’s decision is unreasonable with respect to both prongs of the IFA test, raising several grounds to this effect.

A. The applicant would not be subject to a serious possibility of persecution or to a risk of harm upon relocation to Port Harcourt

[10] On the first prong, the applicant claims that she has no viable IFA because her agent of persecution is a “National State Actor.” With respect, this claim must fail. On the evidence before it, the RAD reasonably concluded that the agent of persecution was not a state police force as a whole, but two independent officers in Lekki who had neither the means nor the motivation to pursue the applicant in Port Harcourt (RAD Decision at paras 12–17). The record notably shows that the two officers never took the applicant to a police station, neither processing nor fingerprinting her. There is no evidence of the police entering the applicant into the national police system, nor issuing any charges against her (RAD Decision at para 15). Moreover, the applicant’s family still resides in Nigeria at the address identified on her national identification card, and her relatives have not received any inquiry on the applicant’s whereabouts since leaving Nigeria (RAD Decision at para 15). In that sense, the applicant did not have such an influential role in Nigeria as to incite the Nigerian National Police Force to search and persecute her.

[11] Moreover, the record demonstrates that the applicant’s encounter with the police arose due to a seemingly random stop, and she was only in possession of an End SARS flyer that had been widely distributed to the public that same day (RPD Transcript at 118–119, lines 7–11, 22–38). There is no indication of her involvement in the End SARS movement extending beyond three days of protest in October 2020 (RPD Transcript at 120, lines 23–25), nor of the Nigerian National Police Force having identified her as a member of the movement itself.

[12] In light of this evidence, the RAD was reasonably unconvinced that the applicant’s single encounter with two police officers at a random stop over two years ago demonstrated that the Nigerian National Police Force as a whole had the means and motivation to pursue her in the proposed IFA (RAD Decision at paras 12–17). Moreover, having carried out its own independent analysis of the record and the evidence, the RAD could reasonably arrive at the conclusion that the two police officers do not have the motivation nor the means to locate her in Port Harcourt.

B. It is reasonable, in all the circumstances, for the applicant to relocate to Port Harcourt

[13] On the second prong, the applicant claims that the RAD failed to engage with the barriers that she would face in Port Harcourt. I disagree. The RAD reasonably conducted an analysis of the possible impacts on the applicant if she were to relocate to Port Harcourt, considering: (1) language barriers, (2) employment opportunities, (3) housing barriers and ongoing family support, and (4) mental health care (RAD Decision at paras 20–40).

[14] On language, it considered the applicant’s argument that the language mostly spoken in Port Harcourt is Pidgin English, and a range of objective evidence, before concluding that an English speaker such as the applicant would be able to communicate in Port Harcourt (RAD Decision at paras 23–27). This finding attracts deference: absent exceptional circumstances, that do not arise here, the Court will not reweigh and reassess the evidence presented before the RAD (Vavilov at para 125).

[15] The RAD’s finding on employment opportunities was similarly reasonable. It considered contradictory evidence about the possible dangers associated with opening and marketing an optometry business in Port Harcourt, but was ultimately unconvinced that renewing professional licenses or marketing her business would risk bringing the applicant to the attention of the two police officers she encountered on October 17, 2021 (RAD Decision at paras 29–32). The RAD was perfectly entitled to reach this conclusion, having already addressed the means and motivation of these two officers to pursue her in the proposed IFA in the first prong of the analysis (RAD Decision at paras 12–19). The RAD was also entitled to give limited weight to the general difficulties non-natives face in obtaining employment in Port Harcourt, finding that the generalized evidence and the reported conditions for informal workers did not capture the applicant’s circumstances as a highly-educated, experienced professional (RAD Decision at para 30). Once more, the Court cannot reweigh and reassess the evidence presented before the RAD, absent exceptional circumstances that do not arise here (Vavilov at para 125).

[16] On housing, the RAD again considered evidence of the barriers faced by single women in securing housing in Port Harcourt (RAD Decision at paras 33–36). It nevertheless concluded that there was no evidence that the applicant’s husband, who is retired, would be unable to relocate to Port Harcourt, and that the applicant has ongoing family support in Nigeria who could join her in Port Harcourt should they choose to do so (RAD Decision at para 36). In response, the applicant asserts that there was no evidence suggesting that her husband and stepson would relocate with her to Port Harcourt. While this statement is accurate, to suggest that the RAD ought to have considered her husband and family not relocating with her to Port Harcourt, absent any evidence and argument to establish that fact, reverses the burden to demonstrate the reasonableness of an IFA. The Canadian immigration system requires claimants who can safely and reasonably relocate within their country of nationality to do so rather than seek protection in Canada (Olusola at para 7). It is accordingly incumbent upon claimants to demonstrate to the RAD that it would be unreasonable to expect them to seek safety in the IFA. In this particular case, the applicant had to adduce evidence that her husband and stepson could not or would not relocate with her, and argue that Port Harcourt was not a viable IFA on that basis; but she failed to do so.

[17] With respect to mental health support, the RAD accepted the applicant’s diagnosis of anxiety and post-traumatic stress, even though she was not a regular user of mental health services (RAD Decision at paras 38–40). The RAD reasonably relied on the evidence in the record demonstrating that Port Harcourt has a state-run hospital with mental health services, and that Nigeria has a toll-free 24-hour helpline staffed with psychologists and counselors (RAD Decision at para 40). Accordingly, the RAD reasonably concluded that the applicant had failed to demonstrate that necessary mental health services were not available in Port Harcourt.

C. Other Considerations

[18] IFA analysis notwithstanding, the applicant submits that the RAD failed to address certain errors in the RPD’s decision. The errors amounted to writing “October” instead of “February” 2020 in one date and writing “October 20, 2021” instead of “October 20, 2020” for another (RPD Reasons at paras 12, 14). Respectfully, the applicant is asking this Court to embark upon a “treasure hunt for error” (Vavilov at para 102). The alleged errors do not appear in the RAD decision under review, which instead shows an administrative decision maker doing exactly what it is required to do: make intelligible, transparent, and justified findings of fact in light of the evidence and submissions presented to it (Vavilov at paras 105, 125–128). The RAD’s reasons accurately date all relevant events (see e.g., RAD Decision at para 4), presenting the facts with a clear awareness of the overall timeline. If anything, the absence of a chronological error in the RAD’s decision signals a truly independent analysis vis-à-vis the RPD. The RPD’s errors had no impact on the reasonableness of the RAD’s decision.

[19] In a similar vein, the applicant charges the RAD with “focusing on irrelevant considerations and drawing adverse inferences from the evidence”. She takes issue with the RAD’s finding that her family had not been pursued by the Nigerian National Police Force since her departure, arguing that such a consideration is irrelevant and trivial : “[t]he reason the Applicant’s spouse and stepson have not been threatened is therefore obvious- [sic] they are not the focus of the persecutor’s attention” (Applicant’s Memorandum at para 58). The applicant argues further that the RPD erred in drawing an adverse inference from this finding of fact, and that the RAD failed to address this error in its reasons.

[20] The applicant’s argument is not persuasive. This Court has recognized that the passage of time, the failure of the persecutor to pursue a person claiming protection, and the lack of contact between the persecutor and family members, can all reasonably impugn a persecutor’s motivation to pursue the claimant (see e.g., Idris v Canada (Citizenship and Immigration), 2019 FC 24 at para 13; Pulido v Canada (Citizenship and Immigration), 2023 FC 463 at para 27). Even if these factors may not be determinative of a matter in and of themselves, they are no doubt relevant to the analysis as to whether an agent of persecution is motivated to find a person claiming protection in Canada, and it was open for the RAD to consider them in its reasons (Espana Alvarez v Canada (Citizenship and Immigration), 2021 FC 935 at para 23 [Espana Alvarez]; Begum v Canada (Citizenship and Immigration), 2024 FC 1517 at para 24). Although there are situations in which “a decision maker should be cautious about drawing such an inference,” the applicant in this case has not provided any evidence of further pursuit by the two police officers (Espana Alvarez at para 23). It was reasonable for the RAD to consider this as a relevant factor in determining whether the two police officers had the means or motivation to pursue the applicant upon relocating to Port Harcourt.

[21] Lastly, the applicant argues that the RAD failed to consider country conditions evidence with respect to the Nigerian National Police Force’s human rights abuses. This is simply not the case. The RAD acknowledged the prevalence of corruption in Nigeria and the abuses perpetrated by the Nigerian National Police Force (RAD Decision at para 17). It cited country conditions evidence throughout its reasons to a similar effect (see e.g., RAD Decision at para 18, notes 5–7). Yet the burden of establishing a link between general documentary evidence and the facts of a case fall upon the applicant (Balogh v Canada (Citizenship and Immigration), 2016 FC 426 at para 19; Sharawi v Canada (Citizenship and Immigration), 2019 FC 74 at paras 28–29). The applicant demonstrated no such connection. As noted within the analysis of the first prong, there is no evidence that the police identified the applicant as an End SARS protester, or ever charged her with fomenting civil unrest. Two individual police officers engaged in abusive behaviour toward her, but there is no indication that they took any steps to pursue the applicant or report her as an End SARS protester, or that she is a subject of national police interest. The RAD’s conclusion was reasonable in that regard.

IV. Conclusion

[22] For the reasons set out above, this application for judicial review is dismissed. Neither party proposed a question for certification, nor does any such question arise here.

[23] I would like to acknowledge counsel for both parties for their very abled submissions.

JUDGMENT in IMM-11318-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There is no question for certification.

“Guy Régimbald”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: