Ottawa, Ontario, January 3, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 16, 2005, in which Mr. Ladimeji Bode Ashiru (the applicant) was determined not to be a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a citizen of Nigeria, from the village of Dugbe Ibadan. His father was a traditional Chief and had three wives. The applicant had two elder brothers from his father's first wife, and was therefore the third son, born to the Chief's second wife. In the year previous to his departure, his eldest brother died of typhoid and the second eldest died in a bus accident. He therefore became the heir to his father's Chieftaincy.
[3] The applicant claims that on August 18, 2004, his mother and younger brother were stoned to death by fellow villagers who accused them of practicing witchcraft and of killing the applicant's two elder brothers. Although the applicant was able to escape his village and flee, he had heard his father's first wife state that he too was practicing witchcraft and must die.
[4] With the help of his fiancée's father who was an Imam, the applicant was able to escape Dugbe Ibadan and come to Lagos. There, he found an agent to help him come to Canada. He arrived here on August 24, 2004.
DECISION OF THE BOARD
[5] The Board determined that the applicant had an Internal Flight Alternative (IFA) elsewhere in Nigeria. The applicant claimed he could not live in Lagos or Benin City as those cities were too close to his village. However, he did not contest a further city, such as the capital Abuja. Furthermore, there is no evidence that the villagers are still looking for the applicant, or that he wants to go back to his village to claim his Chieftaincy.
ISSUES
[6] Was the Board's decision with regards to the possibility of an Internal Flight Alternative (IFA) patently unreasonable?
ANALYSIS
[7] In cases dealing with a finding that an applicant has an IFA, the standard to be applied is that of a patently unreasonable decision. As was stated in Chorny v. Canada(Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 at paragraphs 9 and 10:
What standard has the Court applied in similar situations? Two recent decisions of this Court, while not explicitly carrying out a pragmatic and functional analysis, concluded that the review of a Board's IFA findings is patent unreasonableness (Ali v. Canada (Minister of Citizenship and Immigration), 2001 FCT 193, [2001] F.C.J. No. 361 (QL); Ramachanthran v. Canada(Minister of Citizenship and Immigration), 2003 FCT 673, [2003] F.C.J. No. 878 (QL)).
I also note that in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL), Tremblay-Lamer J. conducted an analysis based on the pragmatic and functional approach in order to determine the standard of review of the Board's determination regarding whether the Applicant would face persecution if he returned to India. Her conclusion was that the appropriate standard is patent unreasonableness. As indicated above, the notion of IFA is inherent in this determination.
[8] The concept of an IFA requires that the applicant have a well-founded fear of persecution which renders him unable or unwilling to return to his home country. More specifically, I quote the words of Justice Mahoney in Rasaratnam v. Canada(Minister of Employment and Immigration), [1992] 1 F.C. 706, (C.A.) at paragraph 8:
As to the third proposition, since by definition a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA. It follows that the determination of whether or not there is an IFA is integral to the determination whether or not a claimant is a Convention refugee. I see no justification for departing from the norms established by the legislation and jurisprudence and treating an IFA question as though it were a cessation of or exclusion from Convention refugee status. For that reason, I would reject the appellant's third proposition.
[9] The Federal Court of Appeal has developed a two-pronged test for the determination of whether a refugee claimant has an IFA in another part of his or her country. That test is reformulated clearly at paragraph 20 of Kumar v. Canada(Minister of Citizenship and Immigration), 2004 FC 601, [2004] F.C.J. No. 731:
In order for the Board to find that a viable and safe IFA exists for the applicant, the following two-pronged test, as established and applied in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunaukkarasu, [1994] 1 F.C. 589 (C.A.), must be applied:
(1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the proposed IFA; and
(2) Conditions in the proposed IFA must be such that it would not be unreasonable, upon consideration of all the circumstances, including consideration of a claimant's personal circumstances, for the claimant to seek refuge there.
[10] During the hearing, the applicant stated that he did not feel that he could safely live in Lagos or Benin City due to the proximity of these locations to his family. However, he provided no evidence as to why he would not be able to live in any other city, including the capital of Abuja which is a considerable distance from his village and family.
[11] During the hearing, the Board gave an express opportunity to the applicant to deal with the concerns of the members, with the possibility of an IFA.
PRESIDING MEMBER: --- but with respect to your submissions and if you do have any questions that you would like to ask I'd like to keep it to the issues of credibility and then I had also asked questions and identified internal flight alternative.
COUNSEL: Right.
(Page 150 of the Tribunal Record - Transcript of the hearing dated January 26, 2005)
[12] However, after counsel for the applicant had begun to make his final submissions, the Board interrupted him in order to further clarify specifically what it was that the applicant's counsel needed to address:
PRESIDING MEMBER: Okay. Can I perhaps - I'll just narrow it down a bit. (...) And so my issues of credibility surround around that and then this individual also had a home in Lagos where the claimant then went to ---
COUNSEL: Right.
PRESIDING MEMBER: --- and with regard to internal flight alternative at that home.
(Page 151 of the Tribunal Record - Transcript of the hearing dated January 26, 2005)
[my emphasis]
[13] Counsel for the applicant therefore went over large quantities of documents which portrayed witchcraft as a pervasive and prevalent act in Nigeria which is often punished by death.
COUNSEL: In the disclosure I have submitted the panel will find that starting from page 8 you would find the narratives concerning a man, a young boy called Ambawu (ph) who was chased out of his home after he was accused of witchcraft. That's at page 8 going on to page 9. The panel will find that several of his mates accused as him in the fashion, in the same fashion have been killed. That's at page 9, the last paragraph, and indeed the panel will find that this is a problem that comes across the entire 36 states of the country. This is at page 8 where it is said that, "This is a typical scenario in virtually all the 36 states."
So that to extent even at page 11 the panel will find that 25 people were suspected of witchcraft and promptly killed them and down that paragraph as well it is stated that, "Witchcraft is a common belief in Nigeria and throughout Africa." Going down to page 13 you will find another narrative of 13 people killed in the same fashion and at page 15 you will find that, "Nigerians believe in witches and spend time, effort and money in an attempt to counter the (inaudible). (...)
The reality of the matter is that because of the extended nature of his [the applicant's] family we have a man [the applicant's father] with three wives, all of whom would probably have brothers and sisters. The option of relocating to another part of the country is very slim for the reason that in those areas Africans busy themselves with the (inaudible) of even new neighbours. If anything were to happen in that new neighbourhood before long it would come to pass that they would know that he's the son of an alleged witch in some place. Any misfortune in that society will promptly be blamed on him and because of the status of his father in that country, he has described his father as a chief of some sort, so I find that the possibility of hiding away in some remote places in Africa would be slim in the circumstances.
(Page 151 of the Tribunal Record - Transcript of the hearing dated January 26, 2005)
[14] The Board then again re-focused counsel's attention to the city in which the applicant went to shortly before leaving Nigeria for Canada:
PRESIDING MEMBER: What about in Lagos?
COUNSEL: Lagos, it would - in actual fact the case of Imba Wahia (ph) that was mentioned was actually a scene taking place in Lagos. Indeed, Lagos is such that the proximity to Ebonyi is an hour, an hour's drive from Lagos gets you to Ebonyi. The people in Lagos often have cottage rooms in Ebonyi. So it is not a question as to whether - it's the same Yoruba people that live in Lagos that live in Ebonyi. There's a huge proximity and as such witchcraft is a very pervasive thing in - particularly in Lagos. He will find any misfortune before the neighbour the accusation is (inaudible) society and that is common.
So internal flight alternative I find would not be applicable in the circumstances because of the extended nature of this family, because of the influence status of his father and not because - there is a person who is on the look-out for him, the step-mother. She's determined to exact revenge. She believes ---
(Page 152 of the Tribunal Record - Transcript of the hearing dated January 26, 2005)
[15] The applicant, through his counsel, therefore presented evidence as to the possibility of his persecution across Nigeria. However, the Board seemed persistent on specifically identifying Lagos as an IFA, without ever mentioning the possibility of an IFA in another city or part of the country. Nonetheless, in its reasons, the Board goes on to state that:
Thus, the Panel is not persuaded that there exists a serious possibility that the claimant's family or community members would find him if he were to reside in Abuja. (...) In considering the circumstances particular to the claimant, the Panel finds that it would not be unreasonable for the claimant to seek refuge in Abuja.
(Page 4 of the reasons for decision dated March 16th, 2005)
[16] I find that the proposed IFA in this case was effectively Lagos, seeing as to how the Board raised the possibility of an IFA in that particular city on more than one occasion. Furthermore, the Board never raised Abuja as a proposed IFA and when the applicant was giving his submissions on the possibility of an IFA in Nigeria as a whole, the Board re-focused the applicant's attention on Lagos and why that city specifically should not be considered as an IFA.
[17] The Board therefore erred in incorrectly applying the two-pronged test to the proposed IFA. The Board, in repeatedly asking the applicant to submit IFA information on Lagos, but then concluding that Abuja was an IFA, improperly led the applicant to believe that the only remaining issue was whether Lagos as an IFA. For this reason, I will grant the judicial review.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review be granted;
- The matter is referred back to the Board to be re-determined by a differently constituted panel;
- No question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2053-05
STYLE OF CAUSE: LADIMEJI BODE ASHIRU v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 7, 2005
REASONS FOR ORDER AND ORDER : BLAIS J.
APPEARANCES:
| Mr. Adetayo G. Akinyemi
|
|
| Ms. Angela Marinos
|
SOLICITORS OF RECORD:
| Adetayo G. Akinyemi North York, Ontario
|
|
| John S. Sims, Q.C. Deputy Attorney General of Canada
|