2020 FC, 2020 FC 1195

Date: 20201231 Docket: IMM-183-20 Citation: 2020 FC 1195 Ottawa, Ontario, December 31, 2020 PRESENT: The Honourable Mr.

Justice Shore BETWEEN:OLUWAFUNSHO JULIANA OYADOYINEMMANUEL KEHINDE OYADOYINEMMANUELLA TAIWO OYADOYINApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] The Applicants seek judicial review of a decision from the Refugee Appeal Division [RAD] dated December 20, 2019, whichconfirmed the refusal of the Applicants’ refugee claim as there was a viable internal flight alternative [IFA] in Port Harcourt, Nigeria. [2] The Principal Applicant [PA] and her minor children are citizens of Nigeria and are claiming refugee protection for fear of femalegenital mutilation and scarification by village chiefs on her husband’s side.

They also fear the husband personally, as well as the familyof the woman he impregnated. The Applicants arrived in Canada in April 2018 from the United States. [3] The Refugee Protection Division [RPD] rejected the asylum claim, as the Applicants had not demonstrated that the IFA wasunreasonable. The RAD confirmed the decision. [4] The IFA is a concept whereby a person may be a refugee in one part of a country, but not in another.

The burden is on the refugeeclaimant to establish, on a balance of probabilities, that there is a serious risk of persecution in the IFA or that the conditions are suchthat it would be objectively unreasonable in the circumstances (Thirunavukkarasu v Canada (Minister of Employment and Immigration), (FCA), [1994] 1 FC 589 at pp 593, 597 (FCA)). [5] This judicial review goes to the reasonability of the RAD’s findings on the absence of serious possibility of persecution in the IFAand its refusal to admit new evidence on appeal.

A reasonable decision is internally coherent, rational and justified in light of the factualand legal constraints (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65). [6] On a preliminary note, though the Applicants have not submitted a personal affidavit as required under the Federal CourtsCitizenship, Immigration and Refugee Protection Rules, SOR/93-22, paragraph 10(2)(d), the certified tribunal record in the presentmatter will suffice for the consideration of this application (Singh v Canada (Public Safety and Emergency Preparedness), 2018 FC 455at paras 18-19; Conka v Canada (Citizenship and Immigration), 2018 FC 532 at paras 12-15). [7] The Applicants submit that they risk persecution in Port Harcourt due to the ability of the agents of persecution to locate them inlight of the PA’s family ties and background there, that, in addition, to previous communications between her father and her husband. [8] The Applicants further advance that the evidence on appeal should have been admitted as it could not have been submitted in theweek prior to the RPD’s decision given their provenance from Nigeria; and, they were material to the determination of the agents’ ofpersecution motivation to find the Applicants.

The evidence attests of threats and an assault on the PA’s father by unknown assailantsseeking the PA. [9] In the present case, the RAD’s decision is unreasonable in regard to the first prong of the IFA analysis as it omits to address evidencethat indicates that the agents of persecution would readily be able to locate the Applicants in the IFA, potentially, amounting to a seriouspossibility of persecution. [10] The Applicants were deemed credible; the RAD acknowledged that the PA’s mother, a brother and a sister resided in Port Harcourt;and, the PA, herself, studied there for seven years –this being three years prior to meeting her husband.

It appears from the record thatthe agents of persecution, at the very least, the husband would reasonably be aware of this information. [11] In addressing the possibility of locating the Applicants, the RAD notably indicated that there was no evidence that the familymembers in the IFA have contact or would cooperate with the agents of persecution; the Applicants need not to communicate theirwhereabouts; and the PA has custody of the children.

The RAD did not, however, address whether the knowledge of the Applicants’significant ties to the IFA weighs to the advantage of the agents’ of persecution ability to locate them, should they be motivated to do so,and whether this amounts to a serious possibility of persecution. [12] Although the RAD is presumed to have considered the entire record, it appears not to have considered important evidence relevantto its assessment (see Ntirandekura v Canada (Citizenship and Immigration), 2016 FC 564 at para 4).

For these reasons, the RAD’sdecision is unreasonable; and, it is not necessary to address the issue of admissibility of evidence on appeal. Therefore, the application

for judicial review is granted. JUDGMENT in IMM-183-20 THIS COURT’S JUDGMENT is that the application for judicial review be granted and the matter be considered anew. There is no serious question of general importance to be certified. "Michel M.J. Shore" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-183-20 STYLE OF CAUSE: OLUWAFUNSHO JULIANA OYADOYIN ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE IN Montréal, Quebec DATE OF HEARING: December 17, 2020 JUDGMENT AND REASONS: SHORE J.

DATED: December 31, 2020 APPEARANCES : Saïd Le Ber-Assiani For The Applicants Michel Pépin For The Respondent SOLICITORS OF RECORD : Hasa Attorneys Montréal, Quebec For The Applicants Attorney General of Canada Montréal, Quebec For The Respondent