Date: 20220221

Docket: IMM-1121-21

Citation: 2022 FC 228

Ottawa, Ontario, February 21, 2022

PRESENT: The Honourable Mr. Justice Bell

BETWEEN:

ROSEMARY EDIRI ENWELIKU EMMANUEL CHIKOGWU ENWELIKU RAYMOND NDUKA ENWELIKU VICTORIA IFEKAM ENWELIKU

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Nature of the matter

[1] This is an application for judicial review pursuant to s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [“IRPA”] of a decision rendered on February 12, 2021 by the Refugee Appeal Division (“RAD”). The RAD dismissed the appeal from a decision of the Refugee Protection Division (“RPD”), in which it had determined that the Applicants were neither Convention refugees, nor persons in need of protection as contemplated by ss. 96 and 97 of IRPA, respectively. The determinative issue in this claim for asylum was the existence of an internal flight alternative (“IFA”).

[2] For the reasons set out below, I dismiss the application for judicial review.

II. Facts

[3] Rosemary Ediri Enweliku (the “principal Applicant” or “Ms. Enweliku”) and her children, one minor daughter and two minor sons, are citizens of Nigeria.

[4] The Applicants fear that Ms. Enweliku and her daughter will be subjected to female genital mutilation (“FGM”) by Ms. Enweliku’s in-laws. Ms. Enweliku also fears harm from fraudsters she exposed while working at a bank in Benin City, Nigeria in 2017.

A. The fraud issue

[5] While working at the bank, Ms. Enweliku discovered a fraudulent transaction, which she reported to her supervisor. Following her report, which exposed the fraudsters, she started receiving threats from unknown persons warning her to stay removed from the fraud issue. A few weeks following the discovery of the fraud, she was nearly killed when unknown persons shot at her while she was operating a motor vehicle. She claims she was followed on at least two occasions.

[6] The fraudsters eventually extorted Ms. Enweliku. In exchange for money, they said they would stop targeting her. Although never fully paid, Ms. Enweliku’s husband partially paid the amount sought. Ms. Enweliku continued to receive death threats.

[7] On June 30, 2017, the Applicants moved to a family compound in Ms. Enweliku’s mother’s village of Ibillo, Nigeria. Ms. Enweliku later moved to her sister’s house in Lagos, Nigeria. Following that move, Ms. Enweliku says she received an anonymous telephone call in March 2018. The caller advised he knew her whereabouts and that she would not escape this time. This led Ms. Enweliku to briefly relocate to her sister’s friend’s home in Lagos.

B. The FGM issue

[8] Ms. Enweliku’s husband’s uncle is a chief priest in his local village. He expects Ms. Enweliku and her daughter to undergo FGM. He has said that if she does not agree to the ritual, she will be killed and her daughter will undergo FGM. In July 2017, while living in Ibillo, Ms. Enweliku received an anonymous phone call advising that she and her daughter must undergo FGM by the end of the year. This lead Ms. Enweliku to move to her father’s house in Delta State, and then to her brother’s home in Bayelsa State. She, however, continued to receive information that her in-laws were seeking her for the ritual. After the Applicants moved to Ms. Enweliku’s sister’s house in Lagos, she received no further threats regarding FGM.

C. Journey to Canada

[9] On March 31, 2018, the Applicants departed Nigeria for the United States. They entered Canada by an unofficial point of entry. They sought refugee protection on April 2, 2018.

[10] The RPD dismissed the Applicant’s claims. It determined they have a viable IFA in Abuja, Nigeria. The RPD concluded there was insufficient reliable and credible evidence that Ms. Enweliku’s in-laws would have the determination or ability to search for her in Abuja. It also found that there is insufficient evidence to indicate that the fraudsters continue their search for Ms. Enweliku or that they would continue to seek her out in Abuja. The RPD also concluded there is insufficient evidence to establish that it would be unsafe or unreasonable, in all the circumstances, for the Applicants to seek refuge in the proposed IFA.

III. Decision under review

[11] On February 12, 2021, the RAD upheld the RPD’s dismissal of the Applicants’ claims for refugee protection. The RAD found that the RPD was correct in concluding that the Applicants have a viable IFA in Abuja.

[12] The RAD accepted two documents as new evidence: a psychotherapy progress report describing treatment that Ms. Enweliku has been receiving and an affidavit from Ms. Enweliku alleging, among other things, bias on the part of the RPD.

A. Risk of Persecution from In-laws

[13] The RAD found that the RPD was correct to find that the Applicants could live safely in Abuja and that there is no serious possibility that Ms. Enweliku and her daughter would be found, and forced to undergo FGM. The RAD’s rationale for this conclusion is based on the following:

• • tracing of the Applicants in Abuja is far less likely because they would not be staying with relatives, unlike the case in their previous moves;

• • Ms. Enweliku’s in-laws did not approach her while she was living with her sister in Lagos;

• • there is insufficient evidence to demonstrate that the in-laws would have the ability to access Ms. Enweliku’s phone or that they would have the inclination to do so.

B. Risk of Harm from Fraudsters

[14] The RAD concluded the RPD was correct when it found there is insufficient evidence that the fraudsters continue to search for Ms. Enweliku or that they would continue to search for her in Abuja. The RAD’s rationale is based on the following:

• • there is no evidence to demonstrate that the fraudsters are affiliated with the Mafia or that they have reach all over Nigeria;

• • there is no evidence to support the Applicants’ assertion that the fraudsters have connections with Nigerian security forces, which they would have infiltrated and compromised;

• • the RPD was correct to conclude that the absence of contact with Ms. Enweliku’s husband since 2017 suggests that the fraudsters are no longer pursuing her;

• • contrary to Ms. Enweliku’s assertion, the RAD found that there is insufficient evidence to demonstrate that a Mafia-style hit is planned for her in the event she returns to Nigeria.

C. Reasonableness of the IFA in Abuja

[15] After its independent assessment of the reasonableness of Abuja as an IFA, the RAD concluded that the Applicants failed to prove that a move to Abuja would jeopardize their lives or safety.

[16] The RAD specifically addressed the issues raised in the initial psychotherapy report, which was before the RPD and the psychotherapy progress report, which was admitted as new evidence. The RAD found that the RPD correctly dealt with the initial psychotherapy report. It concluded, following its review of the psychotherapy progress report, that nothing indicated that Ms. Enweliku could not continue her treatment plan in Abuja. Furthermore, the RAD concluded there exists no reason why Ms. Enweliku could not continue to improve following a relocation to Abuja.

D. Bias

[17] The RAD rejected Ms. Enweliku’s allegation of bias on the part of the RPD. The Applicants do not raise the issue of bias as a ground of judicial review in this application.

IV. Relevant Provisions

[18] The relevant provisions are sections 96 and 97 of the IRPA, both of which are set out in the attached Schedule.

V. Issues

[19] The only issue is whether the RAD’s decision regarding the IFA is reasonable. The Applicants attack the reasonableness of the decision based upon the following: the RAD’s assessment of the risk that Ms. Enweliku and her daughter would be subjected to FGM; the RAD’s assessment of the risk that fraudsters will locate Ms. Enweliku and cause her harm; the RAD’s failure to meaningfully engage with the psychological and psychotherapeutic evidence; the RAD reached a conclusion contrary to country condition evidence without referring to that evidence; and the RAD’s failure to apply the Chairperson Guidelines No.4 on Women Refugee Claimants Fearing Gender-Related Persecution (the “Guidelines”).

VI. Analysis

[20] The parties agree that the RAD’s decision is subject to review on the reasonableness standard. I agree (Canada (M.C.I.) v Vavilov, 2019 CSC 65, 441 DLR (4th) 1 [“Vavilov”] at para 25). None of the exceptions to the presumption of reasonable review apply in the case at bar (Vavilov at para 17).

[21] “A reasonable decision 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). Superficial or peripheral flaws will not suffice to overturn a decision (Vavilov at para 100). Importantly, a reviewing court must consider the decision as a whole, and must refrain from conducting a line-by-line search for error (Vavilov at paras 85 and 102).

[22] The two-pronged test for an IFA requires that: (i) a refugee claimant would not face a serious possibility of persecution in the proposed IFA location or be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture; and (ii) it would not be unreasonable in all the circumstances, including those particular to the claimant, for the claimant to seek refuge in the proposed IFA location (Thirunavukkarasu at pp 593, 597). Both prongs of the test must be satisfied for the RPD or the RAD to conclude that there is a viable IFA (Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 9). Once a potential IFA is identified by the RPD or the RAD, the onus is on the claimant to prove that it is not viable (Thirunavukkarasu at pp 594-595).

[23] The existence of a viable IFA is fatal to a claim brought under ss. 96 or 97 of the IRPA, regardless of the merits of other aspects of the claim (Barragan Gonzalez v Canada (Citizenship and Immigration), 2015 FC 502 at paras 45–46; Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 7).

A. The FGM issue

[24] The Applicants contend that the RAD failed to consider the indifference of Ms. Enweliku’s husband to the prospect of forced FGM on his wife and daughter. The Applicants note that it appeared from the record that Ms. Enweliku’s husband was ambivalent to the issue of FGM, as he did not want to “choose a side”. They contend that this factor is important as it demonstrates that Ms. Enweliku cannot trust her husband to support her and her daughter against his family, should they return to Nigeria. The Applicants contend there is a strong possibility that Ms. Enweliku’s in-laws would be able to trace them to Abuja through Ms. Enweliku’s husband.

[25] The Applicants contend they would be required to live in hiding in Abuja in order to avoid being in contact with Ms. Enweliku’s husband. A claimant cannot be expected to live in hiding in order for a proposed IFA to be reasonable (Ali v Canada (Citizenship and Immigration), 2020 FC 93 at para 50; Zaytoun v Canada (Citizenship and Immigration), 2014 FC 939 at para 16). The applicants contend that being unable to share your whereabouts with family members is tantamount to being in hiding (Zamora Huerta v Canada (Citizenship and Immigration), 2008 FC 586 at para 29).

[26] The Applicants’ suggestion that Ms. Enweliku’s husband would assist his family in locating the Applicants in Abuja is speculative. In fact, when Ms. Enweliku’s husband’s family requested he bring his wife and daughter to their village to undergo FGM, he refused. This is not indicative of someone who would disclose their whereabouts.

[27] In addition, with respect to the husband’s alleged ambivalence to FGM, I note that the Applicants raise this issue for the first time on judicial review. As this Court stated in Kanawati v. Canada (Citizenship and Immigration), 2020 FC 12, a RAD decision must be reviewed within the context of the manner in which the appeal is framed:

[24] The RAD member was required to address the specific errors alleged by the applicants (Dahal v Canada (Citizenship and Immigration), 2017 FC 1102 at para 30). This is exactly what she did. She was not required to go beyond the applicants’ grounds of appeal and consider other potential errors. As a result, it was not unreasonable for her to dispose of the appeal as she did.

Given the failure of the Applicants to raise the husband’s purported ambivalence to FGM on appeal before the RAD, I consider it inappropriate for this Court to conduct judicial review based upon that ground.

[28] I would also reject the Applicants’ contention that they would be required to go into hiding in Abuja in order to avoid any contact with Ms. Enweliku’s husband. First, there is no evidence that her husband would be inclined to disclose his wife’s and daughter’s location to his family. Second, the RAD reasonably found there was insufficient evidence that Ms. Enweliku’s in-laws would continue looking for her and her daughter in Abuja. This conclusion is largely based upon the fact they the in-laws made no effort to locate Ms. Enweliku when she was staying at her sister’s home in Lagos.

B. Risk of Harm from Fraudsters

[29] The Applicants contend that the RAD failed to consider evidence that Ms. Enweliku still owes the fraudsters the balance of the extortion payment. They contend that this constitutes credible evidence of the fraudsters’ motivation for continuing to pursue her. The Applicants say that the failure to have paid the full amount contradicts the RAD’s finding that there is insufficient evidence that the fraudsters are motivated to continue looking for Ms. Enweliku. The Applicants submit that failing to consider evidence going to the very heart of the matter is unreasonable (Joseph v Canada (Citizenship and Immigration), 2015 FC 393 at para 36).

[30] It is trite law that an administrative decision-maker is presumed to have considered the entirety of the evidence before it (Hassan v Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635). A close reading of the RAD’s decision shows that it considered, at para 37, the fact that the ransom had not been entirely paid. This Court must refrain from re-weighing and reassessing the evidence. (Vavilov at para 125). The RAD took into consideration all relevant facts, including the fact that Ms. Enweliku’s husband, who lives in Nigeria, and assisted in the payment of the extorted money, has not been contacted by the fraudsters since 2017. The RAD reasonably determined that the fraudsters would not continue to search for Ms. Enweliku in Abuja.

C. Alleged failure to meaningfully engage with psychotherapy reports

[31] The Applicants contend that the RAD failed to engage with, and meaningfully consider, the first psychotherapy report, which was before the RPD and the psychotherapy progress report admitted as new evidence before it (the “reports”). They contend that the RAD failed to mention how Ms. Enweliku’s psychological condition might affect her and her children’s relocation to Abuja. They rely upon Okafor v Canada (Citizenship and Immigration), 2011 FC 1002 at para 13 and Asif v Canada (Citizenship and Immigration), 2016 FC 1323 at para 33. They further contend that contrary to the findings of the RAD, the reports indicate that Ms. Enweliku’s mental health will be exacerbated should she return to Nigeria.

[32] The relevant excerpt from the initial psychotherapy report reads as follows:

Considering the immediate danger Mrs. Enweliku had experience in her country Origin and the negative and aggressive attitude her relatives have demonstrated toward her and her daughter, demanding them to perform terrifying barbaric rituals, it is highly unlikely that Mrs. Enweliku would stop suffering from Anxiety Disorder, Depression and Post- Traumatic Stress Disorder If she was to return to Nigeria. In addition, we can speculate that her mental health would not increase, If not worsen, once she returns to the country where she had to flee for her life because she did not feel protected. [Emphasis added]

The relevant excerpt from the subsequent psychotherapy progress report reads as follows:

We do wish to caution that we see every reason to expect that, considering the patient 's level of traumatization, and based upon the 6 treatment sessions conducted with Ms. Enweliku thus far, her nightmares, flashbacks and sense of panic would increase if she were to be re-exposed to the root cause of her initial trauma in Nigeria. The recent trauma of Ms. Enweliku, which still limits her adjustment to the Canadian environment, thereby constituting her Adjustment Disorder, demonstrates that the patient's current Post-Traumatic Stress Disorder, which originated from her experience of being terribly endangered in Nigeria, could increase if she were to be exposed to that unavoidable danger again. We also see every valid reason to be concerned that her symptoms of Depression Disorder and Anxiety Disorder would return to the initial disturbed state, or even intensify, if she were to return to Nigeria. [Emphasis added]

[33] The RAD assessed the reports as follows:

[39] […] The [RPD] reviewed Ms. E.’s treatment plan in the [initial] psychotherapist report and found insufficient evidence to indicate that such treatment would not be available in Abuja. […]

[42] I have conducted an independent assessment of the reasonableness of Abuja as an IFA. I have considered the relevant considerations pointed out in the AM and find that the RPD correctly dealt with all of them, including the psychotherapist report. I have reviewed the [subsequent] Progress Report of Psychotherapist Treatment accepted as new evidence and note that it indicates some improvement in Ms. E.’s condition. There is nothing in the report or any other evidence to establish that Ms. E. could not continue the treatment plan in Abuja. I agree with the RPD finding that there is no apparent reason why she could not continue her therapy there and continue to improve. [Emphasis added]

[34] The Respondent contends that the RAD did not err in its consideration of the reports. It notes that the most recent report, the psychotherapy progress report, indicates that Ms. Enweliku may face negative mental health consequences in the event she is re-exposed to the “root of her initial trauma in Nigeria”. Since the RPD and the RAD both determined that Ms. Enweliku would not face a serious possibility of persecution or risk in Abuja, the Respondent contends that the RAD reasonably concluded that she would not be exposed to the negative incidents referred to as the “root of her initial trauma”.

[35] While I agree that the psychological impact of a relocation on an applicant is an important consideration under the second prong of the IFA test (Cartagena v Canada (Citizenship and Immigration), 2008 FC 289 at para 11), I disagree with the Applicants’ assertion that the RAD failed to meaningfully engage with the reports.

[36] It is trite law that an administrative decision-maker may assess and evaluate the evidence before it and, absent exceptional circumstances, a reviewing court will not interfere with its findings (Vavilov at para 125). In the present case, the RAD’s reasons show that it was aware of the psychotherapy reports and engaged with them. I agree that at first glance, it can seem contradictory that the RAD concluded that the principle applicant’s condition could continue to improve in Abuja, while the October 1, 2019 report suggests otherwise. However, in making this finding, I am satisfied that the RAD was being responsive to the most recent report dated March 11, 2020. It was reasonable for the RAD to place greater weight on this report, since it was prepared after Ms. Enweliku underwent six psychotherapy sessions. The most recent report provided a better assessment of Ms. Enweliku’s present state of mind. I acknowledge that the most recent report states that Ms. Enweliku’s condition would worsen if she were exposed to her agents of persecution. However, given that the RAD reasonably found that she would be safe in Abuja, the RAD’s assessment of the reports is reasonable.

[37] I note that this is not a situation where the RAD failed to acknowledge the reports, nor where it focused solely on the availability of mental health care in the proposed IFA. The Court’s reasoning in Attama v. Canada (Citizenship and Immigration), 2021 FC 903 applies to the case at bar:

[20] In summary, in the present case the RAD acknowledged the psychological evidence and discussed its relevance to the second prong of the IFA test. The RAD reasonably considered the impact of return and did not limit its analysis to the availability and affordability of mental health treatment in the proposed IFAs. It is within the RAD’s discretion and expertise to assess and evaluate the evidence, and it is not the Court’s role on judicial review to reweigh and reassess the evidence: Vavilov at paras 125-126. It was open to the RAD to find that the psychologist’s report was insufficient to establish that it would be unreasonable for Mr. Attama to return to one of the proposed IFAs, and the RAD’s reasons are transparent, intelligible, and justified.

D. Country Condition evidence contrary to finding made by the RAD

[38] The Applicants contend the RAD failed to consider country condition evidence regarding the difficulties encountered by single women in relocating to Nigeria. They contend that the RAD referred to country condition documents, which supported its findings, but ignored objective evidence, which demonstrates a high rate of unemployment among women in Nigeria and discrimination towards non-indigenous persons. They asssert this constitutes reviewable error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1999] 1 FC 53, 157 FTR 35 at para 17).

[39] The country condition evidence does not contradict the RAD’s finding that Ms. Enweliku could find employment in Abuja. The RAD acknowledged the difficulties affecting women in finding employment in Nigeria, generally, and Abuja, specifically, but concluded that given Ms. Enweliku’s high level of education and employment history, it is likely that she could find employment in Abuja. Whether I agree or disagree with that conclusion is not the issue. It is not for the Court to re-weigh or reassess the evidence. The RAD’s finding in this regard is coherent, transparent and supported by the evidence. I cannot conclude it lacks the hallmarks of reasonableness.

E. Application of the Guidelines

[40] The Applicants also contend the RAD failed to consider and apply the Guidelines. They say the RAD, by failing to refer to the Guidelines in its decision, demonstrated insensitivity to them. The applicants assert that the failure to provide an analysis about how the Guidelines were applied amounts to reviewable error. They cite Higbogun v Canada (Citizenship and Immigration), 2010 FC 445, 367 FTR 114 at para 32; Odia v Canada (Citizenship and Immigration), 2014 FC 663 at para 18.

[41] That said, a tribunal is not required to specifically mention the Guidelines in order to demonstrate that it was sensitive to a gender-based claim. See, Yu v Canada (Citizenship and Immigration), 2021 FC 625 [“Yu”] at para 22; Ingabire v Canada (Minister of Citizenship and Immigration), 2004 FC 1662 at para 7; Pozos Martinez v Canada (Citizenship and Immigration), 2010 FC 31, at para 22; Correa Juarez v Canada (Citizenship and Immigration), 2010 FC 890 at paras 17-18. A careful reading of the decision demonstrates the RAD was acutely aware of the gender-based issues related to employment, FGM and the fact Ms. Enweliku would be returning to Nigeria as a single woman.

[42] Finally, I note that the Applicants took no issue with the RPD’s application of the Guidelines on appeal to the RAD, nor did they explain in their submission how the alleged failure to apply the Guidelines led to reviewable error (Yu at para 22). As indicated, supra, in paragraph 27, it would be inappropriate for this Court to grant judicial review based upon a ground not raised before the RAD.

VII. Conclusion

[43] For the reasons set out above, I am of the view the Applicants have failed to meet the burden of demonstrating that the RAD’s decision is unreasonable (Vavilov at para 100). I dismiss this application for judicial review.

 

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question is certified for consideration by the Federal Court of Appeal.

“B. Richard Bell”

SCHEDULE

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-1121-21
STYLE OF CAUSE:	ROSEMARY EDIRI ENWELIKU, EMMANUEL CHIKOGWU ENWELIKU, RAYMOND NDUKA ENWELIKU, VICTORIA IFEKAM ENWELIKU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	TORONTO, Ontario
DATE OF HEARING:	November 25, 2021
JUDGMENT AND REASONS:	BELL J.
DATED:	February 21, 2022

APPEARANCES:

Josephat Nwabuokei	For The Applicants
Amy King	For The Respondent

SOLICITORS OF RECORD:

Blue House Law Professional Corporation Toronto, Ontario	For The Applicants
Attorney General of Canada Toronto, Ontario	For The Respondent