Ottawa, Ontario, May 29th, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board") in which it determined that the applicant was neither a Convention refugee nor a person in need of protection.
BACKGROUND
[2] The applicant, Ms. Ako, is a 35 year old citizen of Cameroon whose refugee claim is based on her gender and the specific fear that she is the target of female genital mutilation practices and fear that she may be killed by members of the Makwor cult.
[3] The applicant was born in Eshobi, a small village of approximately 250 people in southwest Cameroon. She lived in Yaoundé as a university student from 1993 to 1997. She gave birth to one daughter, out of wedlock, in 1994. She lived in Douala with a friend from 1997 to 1999, and relocated to Eshobi in order to start a small business as a trader. The applicant indicates that in 2001, subsequent to the nomination of her father as a high priest in the Makwor cult in Eshobi, native authorities asked her to undergo circumcision. She states the circumcision was scheduled for October 15, 2001, and she left her village in the early morning hours of that day. She stayed in a neighbouring village, and then at a nunnery, where a nun, Sister Maria, arranged for Ms. Ako's departure. Ms. Ako arrived in Canada on November 11, 2001 and claimed refugee status at the port of entry.
[4] Ms. Ako's refugee claim was originally rejected by the Board in its decision dated October 24, 2003, but she was granted judicial review by Justice O'Reilly in his decision dated January 6, 2005.
[5] Ms. Ako's refugee claim was rejected a second time by the Board in a decision dated July 13, 2005, which decision is the subject of the present application.
DECISION UNDER REVIEW
[6] This decision was based on the finding that there was an internal flight alternative (IFA) available to the applicant in the cities of Yaoundé and/or Douala. In its analysis, the Board applied the two-prong test from Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.), namely whether there is a serious possibility of the claimant being persecuted in the location of the internal flight alternative and whether it would not be unreasonable in the circumstances for the claimant to seek refuge there.
[7] With regard to the first prong, the Board found that the applicant would not likely need to go into hiding was she to flee to Yaoundé, as it is a two days' journey by bus from her village, and there are a limited number of individuals who follow the Makwor tradition; the Board also noted that with the passage of time, fewer people from her village would be aware of the applicant's situation. The Board found that the city of Douala is also a two-day bus trip from Ms. Ako's village, and reasoned that although she may be required to exercise discretion in mentioning the name of her village, this does not amount to a serious possibility of persecution. In support of its finding, the Board noted that the applicant's mother and sister are supportive of her, that she had also had the financial and emotional support from Sister Maria, and that she still has a friend in Douala, with whom she lived between 1997 and 1999.
[8] In terms of the second prong, the Board held that Ms. Ako's education, including language skills in English and French, as well as her experience of working as a trader and living independently, supported a finding that it would not be unreasonable for her to live in Yaoundé or Douala. The Board also noted that Ms. Ako had lived in Yaoundé as a university student.
[9] As such, the Board rejected Ms. Ako's refugee claim.
ISSUES
[10] Did the Board err in its finding that the applicant had a viable internal flight alternative?
APPLICANT'S SUBMISSIONS
[11] The applicant refers in her argument to paragraph 91 of the handbook of the U.N. High Commissioner for Refugees, in which it states that persons should not be excluded from refugee status merely because they could have sought refuge in another part of the same country, when it is not reasonable to expect them to do so. The applicant states that this has been cited by the Federal Court of Appeal in Rasaratnam, above, as well as Thirunmavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589.
[12] The applicant submits that her situation does not meet the first prong of the test articulated in Rasaratnam, as there is a serious possibility of persecution upon her return to either of the cities put forward as internal flight alternatives.
[13] The applicant argues that in its analysis of the viability of an IFA, the Board failed to take account of the documentary and testimonial evidence that describes the persecution the applicant would face were she to return to either Douala or Yaoundé. Specifically, the applicant impugns the Board's reasoning that she would not be at risk in Douala because she used to travel there from Eshobi; she states that was before the problems with the Makwor cult started, and since the problems started she has not returned to Douala except to go to the airport to flee Cameroon. The applicant further submits that her previous travels actually function to increase the risk, as people from Eshobi are aware of her trips and may know her whereabouts.
[14] The applicant argues that the Board erred by basing its decision in part on the limited number of people who follow the Makwor cult, as it did not adequately address her evidence that people from Eshobi are very mobile, and regularly visit Douala and Yaoundé. The applicant further contends that the Board's reasoning was flawed in this regard because it would imply that in order to find that an IFA is not available, there would have to be thousands or millions of agents of persecution.
[15] The applicant also submits that she would be subject to further danger given the fact that she has had a second child out of wedlock since arriving in Canada.
[16] The Board also erred, according to the applicant by relying on the fact that the applicant had support from Sister Maria in finding that she would have an IFA in Cameroon. The applicant queries whether the Board is suggesting that she might need that type of support, namely, being hidden, were she to return to Cameroon.
[17] Citing the case of Cuevas v. Canada (M.C.I.) 2005 FC 1169, the applicant argues that the Board must assume that the applicant will resume their business activities upon return to their country, which the applicant states she will not be able to do as she will be forced into hiding.
RESPONDENT'S SUBMISSIONS
[18] The respondent submits that the applicable standard of review is patent unreasonableness, as the Board's determinations in this matter were of a factual nature.
[19] The respondent argues that the Board duly considered the documentary evidence and testimony, and that the applicant is in effect asking this Court to re-weigh the evidence. Specifically, the respondent argues that it is reasonable to expect the applicant to seek safety within Cameroon, given the factors noted by the Board in its reasons. The respondent submits that the applicant did not meet the onus of demonstrating that it would be objectively unreasonable for her to seek safety within Cameroon.
ANALYSIS
[20] It is trite law that questions of fact falling within a tribunal's area of expertise are generally reviewed against a standard of patent unreasonableness. More particularly, this Court has consistently found that this is the proper standard to apply with respect to the existence of a viable internal flight alternative: see, e.g., Sivasamboo v. Canada(Minister of Citizenship and Immigration), [1995] 1 F.C. 741; Kumar v. Canada (Minister of Citizenship and Immigration), 2004 FC 601, [2004] F.C.J. No. 731 (QL); Camargo v. Canada (Minister of Citizenship and Immigration), 2006 FC 472, [2006] F.C.J. No. 601 (QL); Shimokawa v. Canada (Minister of Citizenship and Immigration, 2006 FC 445, [2006] F.C.J. No. 555 (QL); Bhandal v. Canada (Minister of Citizenship and Immigration), 2006 FC 426 [2006] F.C.J. No. 527 (QL).
[21] In considering all the relevant factors required under the pragmatic and functional analysis as explained by the Supreme Court of Canada (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63), it is my opinion that in this case, as well, the appropriate standard of review is patent unreasonableness. As a result, the decision of the Board should be accorded a high level of deference. Unless the decision is clearly irrational and cannot be supported by any line of analysis, it must therefore stand.
[22] Inherent in the very concept of a Convention refugee is the notion that a person must be fleeing his country, not merely some subdivision or region of that country. As stated by Mr. Justice LaForest in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, at p. 752: "[T]he rationale underlying international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support. When available, home state protection is the claimant's sole option".
[23] Accordingly, it is by now well established that a person will not be considered a Convention refugee if she has an internal flight alternative. The Federal Court of Appeal, in Rasaratnam, above, and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, has clearly set out a two-prong test to determine whether a refugee claimant can avail himself or herself of an internal flight alternative. First, 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. Secondly, the conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.
[24] In the case at bar, the Board, after having properly referred to this test, considered the applicant's testimony and personal history, as well as the evidence about the nature of her alleged agents of persecution, and other factors affecting the likelihood of persecution in Yaoundé and Douala such as the large population of these cities, their distance from her home village, the small number of people who might potentially be looking for her, and the passage of time since she left her village. On the basis of that evidence, it cannot be said that the Board erred in finding that the applicant did not meet the burden of establishing, on the balance of probabilities, more than a mere possibility of persecution.
[25] I would also note that there was no external evidence before the Board to show the existence or activities of the Makwor cult in Cameroon. This distinguished this case from cases such as Cuevas, above, in which the existence and nature of the agents of persecution was established by the documentary evidence.
[26] At the hearing, counsel for the applicant submitted that the Board erred in disregarding completely a letter from the applicant's sister submitted to the first panel, in which she begs the applicant to stay where she is because even her own family believes she has brought a curse on the whole village as a result or refusing to be circumcised. This would be contrary to the principle enunciated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.) (QL), according to which "the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence"" (para. 17).
[27] Having carefully reviewed the Board's reasons, I cannot agree with this argument. First of all, the Board explicitly mentioned at the beginning of its analysis that it carefully considered all the evidence and representations. More importantly, the Board's decision is not based on a finding that the applicant is not credible, in which case the letter would arguably have been of more relevance. Indeed, the Board accepted that the applicant would be hunted, but concluded that Douala and Yaoundé would be safe for her. The Board, it is true, asserted that with the passage of time, fewer people from her village would be aware of the claimant's situation. While the letter may be seen to flatly contradict this finding, it must be reminded that the letter was already two and a half years old when the Board reached its decision. Moreover, it is not central to the Board's overall finding.
[28] The Applicant also contended that the Board was mistaken in its application of the second part of the test. According to her counsel, the only reason she could live safely in Yaoundé and Douala before was that she was not looked for at the time she stayed in those two cities. Were she to go back she would necessarily have to resume her job in trading between these cities and smaller villages, which would inevitably put her at risk. Since there is nobody she could rely on for protection, her only prospect would be to remain in hiding for the foreseeable future.
[29] Again, a careful reading of the Board's decision shows that it was alive to these concerns. It is true that a refugee claimant should not be compelled to hide out in order to feel safe, but this is certainly not what the Board had in mind when it came to the conclusion that the applicant had an internal flight alternative in Yaoundé and Douala. Based on the evidence that she has a University degree, that she speaks French and English, that she has lived in both of those cities for several years, and that she has employment experience working as a trader for approximately two years, the Board explicitly found that "[t]here is no evidence to suggest that she would have to remain in hiding should she live in either location" (p. 7). Based on the evidence before it, I fail to see how it can be said that the Board's finding can be characterized as patently unreasonable.
[30] It may well be that the applicant will have to find another type of work so that she would not have to travel in regions where she could be at risk, at least for some period of time. But this would not be unduly harsh, considering her background and her familiarity with the two cities to which she might temporarily be confined. As to the risk of being spotted by followers of the Makwor cult in these cities, it is at best speculative considering the number of people following that cult and knowing her. And this is to say nothing of the difficulties that a potential abductor would encounter in forcibly removing her from one of these two cities to bring her back to her small village.
[31] All things considered, I am therefore of the view that the Board could reasonably come to the conclusion that the applicant had an internal flight alternative within Cameroon. As a result, I do not find that the Board made a reviewable error in determining that the claimant is not a Convention refugee nor a person in need of protection. This application for judicial review is therefore dismissed.
JUDGMENT
THIS COURT ADJUDGES THAT the application for judicial review be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4900-05
STYLE OF CAUSE: CATHERINE EFUNDEM AKO v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 18th, 2006
REASONS FOR ORDER: de Montigny J.
APPEARANCES:
| Mr. Solomon Orjiwuru
|
|
| Mr. David Cranton |
SOLICITORS OF RECORD:
| Solomon Orjiwuru Barrister & Solicitor Toronto, ON
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|