Date: 20250325

Docket: IMM-411-22

Citation: 2025 FC 557

Vancouver, British Columbia, March 25, 2025

PRESENT: The Honourable Mr. Justice Ahmed

JUDGMENT AND REASONS

I. Overview

[1] The Applicant, Adekunle Abdul-Rasaq Adetola Okusanya, seeks judicial review of a decision of the Refugee Appeal Division (“RAD”) dated November 26, 2021, confirming the determination of the Refugee Protection Division (“RPD”) that the Applicant is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). The determinative issue was the existence of two viable internal flight alternatives (“IFAs”) in Benin City and Port Harcourt.

[2] The Applicant submits that the RAD’s decision is unreasonable, as the RAD failed to properly assess the risk posed by one of his two agents of persecution. The Applicant further submits the RAD erred in assessing the means and motivation of his agents of persecution to pursue him in the two IFAs and ignored country condition evidence in finding that the two IFAs were reasonable.

[3] For the reasons that follow, I find no reviewable error in the RAD’s decision. This application for judicial review is dismissed.

II. Background

A. Legal Framework

[4] The two-pronged test for an IFA is set out at page 711 of Rasaratnam v Canada (Minister of Employment and Immigration) (CA), [1992] 1 FC 706 (FCA) (“Rasaratnam”):

…in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the [Applicant] being persecuted in [the IFA] and that, in all the circumstances[,] including circumstances particular to him, conditions in [the IFA] were such that it would not be unreasonable for the [Applicant] to seek refuge there.

[5] If a decision-maker raises the issue of an IFA, the onus is on the refugee claimant to disprove at least one of the prongs of the test in Rasaratnam (Thirunavukkarasu v Canada (Minister of Employment and Immigration) (CA), [1994] 1 FC 589, 1993 CanLII 3011 (FCA) at 594 (“Thirunavukkarasu”)). In other words, the refugee claimant must demonstrate there is a serious possibility of persecution in the IFA or relocating to the IFA would be unreasonable.

[6] To prove a serious possibility of persecution, refugee claimants must establish that their agents of persecution have both the means and the motivation to pursue them in the IFA (Nimako v Canada (Citizenship and Immigration), 2013 FC 540 at para 7; Leon v Canada (Citizenship and Immigration), 2020 FC 428 at paras 13-15).

[7] On the second prong of reasonableness, the Federal Court of Appeal in Thirunavukkarasu has held (at 598):

…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?

…If it is objectively reasonable…to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

B. Facts

[8] The Applicant is a citizen of Nigeria. He is Christian. The Applicant worked as a public servant and lived with his wife and three children in Lagos.

[9] On December 27, 2017, family members of the Applicant’s father (the “Family Members”) threatened to kill the Applicant, his wife and children because the Applicant refused to convert to Islam.

[10] Later that day, the O’odua People’s Congress (“OPC”) attacked the Applicant. The OPC had been hired by the Family Members to carry out the attack.

[11] On December 28, 2017, the Applicant moved to another neighbourhood in Lagos. While there, he was again attacked by the OPC.

[12] On December 29, 2017, the OPC once again attacked the Applicant. They said to him that this would be the last warning from the Family Members.

[13] The Applicant reported the attacks to the police on December 30, 2017 and on January 1, 2018. The police told him they would not intervene.

[14] On January 3, 2018, the Applicant fled to the United States. He entered Canada and submitted a refugee claim in February 2018.

[15] On June 4, 2021, the RPD refused the Applicant’s claim, finding the Applicant had two viable IFAs in Benin City and Port Harcourt. The Applicant appealed the refusal.

[16] On November 26, 2021, the RAD confirmed the RPD’s decision. The RAD was not persuaded the Applicant would face persecution in the two IFAs, as the Applicant had not established that his agents of persecution had the means and motivation to locate him. The RAD further determined that it would not be unreasonable for the Applicant to relocate to the IFAs, taking into consideration the Applicant’s heart condition and employment prospects, among other factors. This is the decision that is presently under review.

III. Issue and Standard of Review

[17] The sole issue in this application is whether the RAD’s decision is reasonable.

[18] The parties submit that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25 (“Vavilov”)). I agree.

[19] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13, 75, 85). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A decision that is reasonable as a whole is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).

[20] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep” (Vavilov at para 100).

IV. Analysis

[21] The Applicant submits the RAD’s decision is unreasonable. The Applicant argues that the RAD erred by focusing primarily on the OPC and disregarding the risk posed by the Family Members. The Applicant further asserts the RAD ignored his oral testimony and his submissions in its assessment of the IFAs.

[22] The Respondent submits that the RAD’s decision is reasonable. The Respondent asserts that the Applicant’s submissions to the contrary amount to a request for the Court to reweigh the evidence before the decision-maker, which lies outside the scope of reasonableness review (Vavilov at para 125). The Respondent further submits that the Applicant does not substantively address the IFA in Benin City and has therefore failed to discharge his onus of rebutting all proposed IFAs.

[23] I agree with the Respondent.

[24] The RAD did not disregard the risk posed by the Family Members. Although the OPC is discussed to a greater extent in the RAD’s written reasons, this is due to the Applicant’s own submissions concerning the nature of the persecution he faced. The RAD summarized the Applicant’s evidence as follows:

The [Applicant] submits that his father’s family and the OPC have a large network…the fact that the agents of persecution were able to track the [Applicant]’s movements when he moved to Iyana Ipaja, another neighbourhood in Lagos, indicates that the agents have the capacity or means to find the [Applicant] anywhere in Nigeria. Further, the [Applicant] submits that the OPC operates in major cities in Nigeria, and his father’[s] family is affiliated with OPC and other political parties.

The Applicant’s submissions are clear that the risk alleged from the Family Members stemmed from their “affiliation with OPC and other political parties.” As a result, I cannot find that the RAD’s lengthier assessment of the OPC indicates a lack of attention to the risk posed by the Family Members. The RAD could not have assessed the risk posed by the Family Members without considering the risk posed by the OPC, as it was the OPC that executed the Family Members’ attacks.

[25] Furthermore, the RAD’s treatment of the Applicant’s oral testimony was reasonable. During the RPD hearing, the Applicant stated that the OPC members “operate in Lagos,” “the Ogun state,” and “in major cities and states in Nigeria.” However, the Applicant did not have personal knowledge of these alleged facts. The RAD rightly characterized these statements as claims “the witness believes to be true, but has no direct knowledge of.” The presumption of truthfulness in MalDonado v Minister of Employment and Immigration, [1980] 2 FC 302, 1979 CanLII 4098 (FCA) (“MalDonado”) therefore does not apply.

[26] I similarly find no error in the RAD’s treatment of the Family Members’ alleged political connections. The RAD acknowledged the Applicant’s testimony that “his father’[s] family is affiliated with OPC and other political parties,” but found he did not explain or provide evidence of the political connections or scope of influence of his agents of persecution. The Applicant also did “not [provide] the names of the political parties with whom members of his father’s family or the OPC were associated.” Although these statements may have been rooted in the Applicant’s personal knowledge, they were vague and unsubstantiated. Once again, the presumption of truthfulness in MalDonado does not apply, as there was “a reason to doubt [the] truthfulness” of the Applicant’s claims (at 305).

[27] Given the deficiencies in the Applicant’s oral testimony, the RAD reasonably relied on documentary evidence in its assessment of risk. The objective evidence indicated that the OPC is mostly active in southwestern Nigeria and in Lagos, rather than the proposed IFAs. The RAD did not err by preferring this evidence over the Applicant’s testimony, as the Applicant’s testimony was speculative and vague.

[28] With respect to motivation, I find the RAD reasonably determined “the [Applicant] has not adduced sufficient evidence that the agents of persecution have the motivation to locate [him] in the IFA[s].” The Applicant testified that his mother told him the agents of persecution “were looking for him until they found out he had left the country.” This is not sufficient evidence of forward-facing risk, as the Applicant left Nigeria in January 2018. The Applicant further testified that, following his departure, his wife and children have not been harassed by the OPC or the Family Members. This reinforces the RAD’s conclusion that the agents of persecution are not motivated to search for the Applicant. Although the Applicant rightly notes that “he,” not his family, “is the primary target,” the treatment of his wife and children is nonetheless highly relevant to whether there have been “efforts on the part of the agents of persecution to pursue the [Applicant]” since his departure from Nigeria. Given the evidentiary record, I find no reviewable error in the RAD’s determination that the agents of persecution are not motivated to search for him.

[29] As the RAD reasonably determined that the agents of persecution do not have the means or motivation to track the Applicant, the Applicant’s submission that the proposed IFAs are too close to Lagos to afford genuine protection is meritless. Mere proximity, without means and motivation, is not sufficient to demonstrate a possibility of persecution.

[30] Turning to the second prong of the test in Rasaratnam, I do not find the RAD disregarded the Applicant’s submissions. Of the several factors that the Applicant argues were ignored, two were raised by the Applicant on appeal: employment and medical care. With respect to employment. the RAD found “the [Applicant] would be well placed to find employment and support himself and his family financially in the IFA locations” given his education and prior work experience. The Applicant’s concern with the difficulty of finding a job as a public servant does not displace the RAD’s finding on “the real issue,” namely, “whether [the Applicant would] be able to find work and to support [himself] and [his family]” (Inyinbor v Canada (Citizenship and Immigration), 2021 FC 262 at para 11). With respect to medical care, the RAD considered the Applicant’s “recent open heart surgery,” finding that treatment for cardiovascular disease would be available in the IFAs according to the country condition evidence. Although the Applicant is correct that the RAD erred in finding he would not face a language barrier in Port Harcourt, this error does not warrant disturbing the RAD’s decision as a whole. The Applicant’s submissions to the RAD were silent on this issue. Furthermore, the Applicant’s submissions on the two issues that were before the RAD do not address the reasonableness of the IFA in Benin City, despite the onus on the Applicant to rebut all proposed IFAs.

V. Conclusion

[31] For these reasons, I dismiss this application for judicial review. The RAD’s decision is justified in light of the factual and legal matrix of the appeal (Vavilov at para 99).

JUDGMENT in IMM-411-22

THIS COURT’S JUDGMENT is that:

1. This application for judicial review is dismissed.

2. There is no question to certify.

“Shirzad A.”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: