Docket: IMM-5692-24
Citation: 2025 FC 526
Toronto, Ontario, March 21, 2025
PRESENT: Madam Justice Go
BETWEEN: |
Emmanuel Chukwuemeka OKORO |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Emmanuel Chukwuemeka Okoro [Applicant] brings this application to judicially review a decision [Decision] of the Refugee Appeal Division [RAD] confirming the decision of the Refugee Protection Division [RPD] to reject the Applicant’s refugee claim.
[2] The Applicant, a citizen of Nigeria, alleges fear of harm by Fulani herdsmen who threatened and attacked him when he tried to stop their cows from grazing on his family’s farmland.
[3] The RAD found the RPD correct in finding that the Applicant is not a person in need of protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27 on the basis of the existence of an Internal Flight Alternative [IFA].
[4] The Applicant challenges the Decision on the ground that the RAD erred in its IFA analysis. I dismiss the application as the Applicant fails to discharge his burden of demonstrating that the Decision was unreasonable.
[5] The two-pronged test for assessing an IFA was set out in Rasaratnam v Canada (Employment and Immigration), [1992] 1 FC 706 (FCA), 140 NR 138 [Rasaratnam]. With respect to the first prong, the RAD must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country where it finds an IFA exists: Rasaratnam at para 4. The RAD must consider both the motivation and means of the agents of persecution.
[6] In regard to the second prong of the IFA test, Ranganathan v Canada (Citizenship and Immigration), [2001] 2 FC 164, 266 NR 380 [Ranganathan] at para 15 requires the claimant to demonstrate “nothing less than the existence of conditions which would jeopardize the life and safety of a claimant … [and] actual and concrete evidence of such conditions.”
[7] The Applicant submits that the RAD erred in its analysis with respect to both the first and second prongs of the IFA test. Specifically, the Applicant submits that the RAD erred in finding the Fulani lack both means and motivation to locate the Applicant in the IFA. Additionally, the Applicant submits that the RAD erred in assessing the Applicant’s personal circumstances and country conditions in the context of the second prong of the IFA analysis.
[8] Applying the reasonableness standard of review, per Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65, I find the RAD did not commit any reviewable error with respect to its IFA analysis.
A. The RAD’s finding that the Fulani lack means to locate the Applicant in the IFA was reasonable
[9] The RAD found that the Applicant failed to demonstrate that the Fulani have the means to locate him in the IFA for two main reasons. First, the RAD found there was no documentary evidence of the Fulani’s ability to locate someone across the country, and the documentary evidence provides that the Fulani clans generally conduct their activities independently. Second, the RAD noted that the objective evidence indicates that incidents involving the Fulani are not widespread and primarily take place in certain states but not in the state where the IFA is located.
[10] The Applicant submits the RAD erred in only focusing on the Fulani’s area of operation, and failed to consider that the Fulani, if they want to, can follow the Applicant to other regions of the country. Noting the Fulani’s area of operation does not mean that the Fulani do not have the resources to locate the Applicant in the IFA. Relatedly, while the Fulani may not operate in some parts of Nigeria, the Applicant submits this does not mean the Fulani cannot operate or go to other places around the country to hurt people who opposed their actions or caused them loss.
[11] The Applicant notes the RAD’s statement that “the Fulani clans generally conduct their activities independently”
and submits that the word “generally”
indicates that in some cases, the Fulani do not conduct their activities independently.
[12] With respect to the RAD’s finding that incidents involving the Fulani are not widespread, the Applicant argues that the danger need not be widespread, and it is enough to show that it exists. Furthermore, the Applicant points out that the document the RAD cited only talks about conflicts between farmers and the Fulani, but not of the Fulani’s ability or means to act in revenge in a case like his.
[13] I note that the Applicant advanced the very same arguments before the RAD in his appeal of the RPD decision. I reject the Applicant’s submissions as they lack merits.
[14] The record indicates that the only evidence the Applicant relied upon for the Fulani having the means to pursue him in the IFA was his testimony that they could find him anywhere in Nigeria. The RAD noted the Applicant did not offer reasons to justify this belief. The RAD’s finding was consistent with the Applicant’s evidence, or lack thereof.
[15] The RAD also addressed the Applicant’s argument that even when there may be no direct documentary evidence of the means of the persecutors, his testimony was evidence of the risk of persecution in the proposed IFA. The RAD found the documentary evidence on the record supports, on a balance of probabilities, that the Fulani lack the means to locate the Applicant in the IFA. The RAD also found the Applicant was simply making assertions that the Fulani have the means to locate him without providing any reasons, thus failing to discharge the burden of demonstrating the unsuitability of the IFA. Before this Court, the Applicant is repeating the same failed strategy that he adopted before the RAD.
[16] Importantly, the RAD assessed the Applicant’s testimony against the objective evidence showing that the Fulani lack nationwide coordination and have not been known to operate in the proposed IFA. The Applicant may disagree with the RAD’s analysis, but his argument does not undermine the reasonableness of the Decision in light of the evidence before the RAD, including the Applicant’s personal evidence as well as the objective country conditions evidence.
[17] At the hearing, the Applicant made another argument stating that the RAD, and not the Applicant himself, bears the onus of demonstrating that the IFA is not viable. The Applicant cites, as support for this proposition, Rasaratnam at 710, where the Federal Court of Appeal [FCA] stated, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.”
The Applicant submitted the phrase “the Board must be satisfied”
indicates that the FCA intended to place the burden on the Board, and not on the claimant, to establish the viability of the IFA.
[18] The Applicant’s new argument is completely meritless. It is well-settled jurisprudence that once the RPD advises a claimant of a proposed IFA, the burden falls on the claimant to demonstrate that the IFA would be unsafe and unreasonable. In Huerta Morales v Canada (Citizenship and Immigration), 2009 FC 216, Justice Zinn quoted from Farias v Canada (Citizenship and Immigration), 2008 FC 1035 at para 34, which summarized the legal principles in this area:
If IFA will be an issue, the Refugee Board must give notice to the refugee claimant prior to the hearing (Rasaratnam, supra, per Mr. Justice Mahoney at paragraph 9, Thirunavukkarasu) and identify a specific IFA location(s) within the refugee claimant's country of origin (Rabbani v. Canada (MCI), [1997] 125 F.T.R. 141 (F.C.), supra at para. 16, Camargo v. Canada (Minister of Citizenship and Immigration) 2006 FC 472, 147 A.C.W.S. (3d) 1047 at paras. 9-10);
There is a disjunctive two-step test for determining that there is not an IFA. See, e.g., Rasaratnam, supra; Thirunavukkarasu, supra; Urgel, supra at para. 17.
The applicant bears the burden of proof in demonstrating that an IFA either does not exist or is unreasonable in the circumstances. See Mwaura v. Canada (Minister of Citizenship and Immigration) 2008 FC 748 per Madame Justice Tremblay-Lamer at para 13; Kumar v. Canada (Minister of Citizenship and Immigration) 130 A.C.W.S. (3d) 1010, 2004 FC 601 per Mr. Justice Mosley at para. 17;
The threshold is high for what makes an IFA unreasonable in the circumstances of the refugee claimant: see Khokhar v. Canada (Minister of Citizenship and Immigration), 2008 FC 449, per Mr. Justice Russell at paragraph 41. In Mwaura, supra, at para. 16, and Thirunavukkarasu, supra, at para. 12, whether an IFA is unreasonable is a flexible test taking into account the particular situation of the claimant. It is an objective test;
The IFA must be realistically accessible to the claimant, i.e. the claimant is not expected to risk physical danger or undue hardship in traveling or staying in that IFA. Claimants are not compelled to hide out in an isolated region like a cave or a desert or a jungle. See: Thirunavukkarasu, supra at para. 14; and
The fact that the refugee claimant has no friends or relatives in the proposed IFA does not make the proposed IFA unreasonable.
i. Either the Board must be persuaded by the refugee claimant on a balance of probabilities that there is a serious possibility that the refugee claimant will be persecuted in the location(s) proposed as an IFA by the Refugee Board; or
ii. The circumstances of the refugee claimant make the proposed IFA location unreasonable for the claimant to seek refuge there;
[19] I note that one of the cases the Applicant cites also contradicts the Applicant’s position.
[20] The Applicant cites Thirunavukkarasu v Canada (Employment and Immigration), [1994] 1 FC 589, 109 DLR (4th) 682 [Thirunavukkarasu] to support his argument under the second prong. However, the FCA in Thirunavukkarasu at 595 also addressed the issue of burden of proof with respect to the IFA and noted as follows:
Since Rasaratnam, supra, however, a panel of this Court has indicated otherwise. (See Bindra v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 114 (F.C.A.); see also Sharbdeen v. Canada (Minister of Employment and Immigration), June 23, 1993, 92-A-7203, not yet reported (F.C.T.D.) following Bindra.). Bindra was a two-and-a-half page oral judgment concerning an application for judicial review of the decision of a credible basis tribunal. While on the facts of the case the decision was correct, the language used to explain the onus was obiter dictum since the onus of proof question did not strictly arise in the context of the first level tribunal.
Moreover, with respect, these two cases misconceived the holding of Rasaratnam, supra. In particular, they appear to have confused the obligation that rests on the Minister or the Board to warn a claimant that the IFA issue will be raised, with the obligation to establish the facts of the Convention refugee claim which always rests with the claimant. Let me explain.
On the one hand, in order to prove a claim to Convention refugee status, as I have indicated above, claimants must prove on a balance of probabilities that there is a serious possibility that they will be subject to persecution in their country. If the possibility of an IFA is raised, the claimant must demonstrate on a balance of probabilities that there is a serious possibility of persecution in the area alleged to constitute an IFA. I recognize that, in some cases the claimant may not have any personal knowledge of other areas of the country, but, in all likelihood, there is documentary evidence available and, in addition, the Minister will normally offer some evidence supporting the IFA if the issue is raised at the hearing.
[Emphasis added]
[21] In conclusion, the Applicant’s position that he does not bear the onus of demonstrating the IFA is unsafe and unreasonable has no merit. The Applicant’s argument amounts to asking the Court to set aside the Decision without having to discharge his evidentiary burden before the RAD.
B. The RAD’s finding that the Fulani lack motivation to locate the Applicant in the IFA was reasonable
[22] Before the RAD, the Applicant submitted that the Fulani continue to look for him and had gone once to his family home in March 2023, which caused them to relocate to a neighbouring village. The Applicant further argued that the Fulani do not have the motivation to find his family as they are not the target, but that they would come after him if they learned that he returned to Nigeria.
[23] The RAD dismissed this argument due to the fact that the Applicant had testified that his family is a target. As the Fulani only went once to the family, despite the proximity of their relocation to a neighbouring village in the same state, this demonstrated their lack of motivation to locate him or his family.
[24] The RAD also rejected the Applicant’s submission that the Fulani would come after him if they learned he had returned to Nigeria, noting that the Fulani did not come after him even when he remained in Nigeria for 4.5 months after the death of the cow.
[25] The Applicant submits the RAD erred in finding the Fulani lack motivation to locate the Applicant in the IFA. Rather, the Applicant asserts the Fulani have the motivation to locate and hurt him because they hold him responsible for the death of one of their cows.
[26] Specifically, the Applicant raises the following arguments to challenge the RAD’s findings:
It would be extremely difficult for him to prove that the Fulani are after him, now that he has left Nigeria. As he has disposed of his SIM card, even if the Fulani were calling him, he would not know about it. Moreover, the Fulani already came to his family’s home, causing his family to relocate to a different village.
Since his family was not their main target, the Fulani did not have the motivation to find them. This does not mean that the Fulani will not come after the Applicant if they learned he had returned to Nigeria.
With respect to his testimony that the Fulani threatened to kill his family if anything happened to the cow, this threat was issued before the cow died; now that the cow died, there is a new threat.
Regardless, he had also testified that his family is currently in hiding. Moreover, as the breadwinner of the family, the Applicant would not be able to stay in hiding like his wife and children. If an individual has to remain in hiding to avoid problems, this would not be evidence of an IFA.
The RAD erred in dismissing his argument that the Fulani would come after him if they learned he had returned to Nigeria on the basis that the Fulani did not come after him even when he was still in Nigeria for many months after the death of the cow. This is a mistake, as he had testified that his father told him that on March 17, 2023, Fulani herdsmen arrived at the family house and his family escaped by the back door. The RAD failed to mention this in the Decision. This proves the Fulani still has the motivation to locate the Applicant.
Even when there may be no direct documentary evidence of the means of the persecutors, his testimony is evidence of the risk of persecution in the IFA. Additionally, presenting corroborative evidence as to the means and motivation of the Fulani is a challenging task, especially since the most credible evidence would come directly from the Fulani themselves. Therefore, in circumstances such as these, the only available information on the Fulani would come from his testimony, which is presumed credible.
[27] Once again, I find the Applicant’s arguments unpersuasive and miss the point about the burden being placed on him to show the lack of a viable IFA. The Applicant’s inability to provide evidence on motivation, for whatever reason, cannot be a ground upon which to overturn the Decision.
[28] Moreover, the RAD did address the same arguments that the Applicant now advances before the Court. For instance, the RAD considered the alleged visit by the Fulani to his family’s home in March 2023 by noting the Fulani never went to his family after the one time, despite the proximity of their relocation to a neighbouring village in the same state.
[29] The RAD also considered the Applicant’s argument that the Fulani had not taken evident steps to pursue his family in Nigeria, in spite of their remaining near his hometown, because his family was less of a target, and he would be pursued more vigorously if he returned. The RAD found this argument was contradictory to the Applicant’s own testimony.
[30] All of the RAD’s findings were responsive to the evidence and submissions before them. As such, I find the RAD’s analysis of the first prong of the IFA reasonable.
C. The RAD’s analysis of the second prong of the IFA test was reasonable
[31] The Applicant submits it cannot reasonably be expected for him to relocate to the proposed IFA without facing unreasonable and undue hardship based on the country conditions in the IFA and his personal circumstances.
[32] According to the Applicant, the RAD failed to present a full analysis of his situation. The RAD failed to consider counsel’s submissions and the objective documentation evidence when deciding that the Applicant would be able to relocate to the proposed IFA. The Applicant makes several submissions on what the RAD should have considered, based on the objective documentation evidence, about the high cost of living, poor employment prospects, the lack of affordable housing, and the inadequate social services in the proposed IFA.
[33] I reject the Applicant’s submissions.
[34] The Applicant’s argument that the RAD cannot base a finding that there is an IFA, in the absence of sufficient evidence, solely on the basis that the claimant has not fulfilled the onus of proof, is completely without merit. The onus rests on a claimant to show they do not have an IFA. The case cited by the Applicant, Chauhdry v Canada (Citizenship and Immigration), 1998 CanLII 8322 (FC) [Chauhdry], does not stand for the proposition that the Applicant proposes. In Chauhdry, the Court found the panel’s finding on the IFA was speculative, but maintained the onus was on the applicant to demonstrate the IFA was not available.
[35] Here, as the RAD noted, the threshold for finding a proposed IFA to be unreasonable is very high; it requires conditions that would jeopardize the life or safety of the claimant: Ranganathan. That relocating to an IFA may result in the Applicant experiencing a reduced standard of living, and the frustration of expectations for employment or education, does not render the relocation unreasonable.
[36] Moreover, contrary to the Applicant’s submission, the RAD did take into account the Applicant’s personal circumstances, including the Applicant’s age, education, language ability, varied work experience, the fact that his uncle lives in the proposed IFA, and the fact that the Applicant himself previously lived in the IFA for about two years. The Applicant points to no error in the RAD’s findings with respect to the Applicant’s personal history and background.
[37] The Applicant also advanced some new arguments in his oral submissions, arguing that when the Applicant does not have a place to live in the IFA, cannot find a job, and becomes homeless, there would be a risk to life and it would be unreasonable to require the Applicant to locate to the proposed IFA. The Applicant cites, in support of his position, Rasaratnam and Thirunavukkarasu.
[38] Contrary to the Applicant’s assertion, neither of these two cases stand for the proposition the Applicant sought to advance before me. At the hearing, Applicant’s counsel claimed that Thirunavukkarasu confirms a claimant’s inability to earn a living in the IFA would meet the threshold of the second prong. When asked by the Court to pinpoint the particular passage that supported his argument, counsel revealed that he was not quoting from the FCA decision itself, but from the summary of Thirunavukkarasu as provided on the website of the Immigration and Refugee Board.
[39] I have reviewed Thirunavukkarasu in its entirety and found nothing in the FCA decision to support counsel’s assertion. On the contrary, the FCA explicitly rejected a lower threshold for finding the IFA to be reasonable:
An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.
[Emphasis added]
[40] Further, the Applicant provided no evidence before the RPD or the RAD to support that his life would be put at risk because of the lack of employment and housing prospects in the IFA. As such, it was not unreasonable for the RAD to find, on a balance of probabilities, that the Applicant fails to establish that the conditions in the IFA would jeopardize his life and safety.
[41] The application for judicial review is dismissed.
[42] There is no question for certification.
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