CHRISTOPHER OGBONNA Applicant v. THE MINISTER OF, 2023 FC 234

Date: 20230217 Docket: IMM-2265-22 Citation: 2023 FC 234 Toronto, Ontario, February 17, 2023 PRESENT: Mr. Justice Diner BETWEEN:CHRISTOPHER OGBONNAApplicantandTHE MINISTER OFCITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] The Applicant seek judicial review, pursuant to

section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27[IRPA], of a decision of a Refugee Appeal Division [RAD] rejecting the Applicant’s claim for refugee protection. For the followingreasons, I will dismiss the Application. I. Background [2] The Applicant is a 42-year-old citizen of Nigeria from the city of Lagos. He grew up in a family with six siblings, regularlytravelling to a village in Imo state from which his parents both hailed. [3] As a child, the Applicant’s mother informed him that his paternal grandmother was a servant of the family deity at a shrinein their village.

In 2000, the elders informed the Applicant’s father, that the Applicant had been chosen by the deity to be the next servantof worship [Position] and that the Applicant must live in the shrine to carry out his duties. However, his father refused to allow his son,the Applicant, to do this. [4] In January 2005, a group of elders attended the family home in his village, where the Applicant and his father were stayingat the time.

The elders reiterated their demand for the Applicant to assume the Position, and that if he failed to do so, he would “face theconsequences of being sacrificed to the gods for disobedience.” [5] After the incident, the Applicant returned home to Lagos, after which he left for South Africa. There, he married a SouthAfrican citizen with whom he had a child. While there, the Applicant’s father died in his sleep in 2006. The Applicant’s elder brotherdied in 2010 in an explosion while he was filling a generator with gas. In 2011, his mother died after a period of depression.

TheApplicant believed that his mother died due to stress. Around that time, the Applicant’s younger sister became ill with an unknownillness, which continues. [6] One of the Applicant’s brothers informed him that upon a visit to the village, the elders told the brother that the deaths of hisparents and elder brother, as well as his sister’s illness are the consequences of his refusal to accept the Position.

The Applicant relocatedto the US in 2015, and entered Canada irregularly in November 2017 where he claimed refugee protection. [7] The RAD upheld the decision of the Refugee Protection Division [RPD] finding that the Applicant had not crediblyestablished that there is a serious possibility that he would be persecuted, or that on a balance of probabilities, he would be harmed by theelders in his village for refusing to accept the Position. II. Analysis [8] The only issue to be decided in this judicial review concerns the reasonableness of the findings on the Applicant’s fear ofpersecution.

The applicable standard of review is reasonableness, as set out by the Supreme Court of Canada in Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. [1] The Applicant claims that the RAD erred in finding insufficient evidence to support that fear of persecution. He notes thatthe RPD accepted the Applicant as a credible witness.

Furthermore, he states that the testimony cannot be rejected solely due to a lack ofevidence, relying on cases including Maldonado v Canada (Minister of Employment and Immigration), (FCA) (FCA),[1980] 2 FC 302, Mui v Canada (Minister of Citizenship and Immigration), 2003 FC 1020 and Poshteh v Canada (Minister ofEmployment and Immigration), 2005 FC 1034. [2] Furthermore, the Applicant notes that he provided sufficient corroborating evidence of his situation, as well as countrycondition evidence, all of which supported the possibility of his claim.

He states that his evidence did not have to be perfect, given thebalance of probabilities and burden of proof required (citing Adjei v Canada (MEI), (FCA), [1989] 2 FC 680 andPonniah v Canada (MEI), (1991) 13 Imm LR (2d) 241 (FCA)). He argued that the Board was not sensitive to the fact that he had leftNigeria in 2005 and thus was limited in what he was able to provide. He also noted that at his oral hearing before the RPD, the Board

never mentioned to him what type of further evidence should or could have been produced. [3] Ultimately, the Applicant argues that the RAD failed to provide a valid reason to doubt his sworn testimony that he would beharmed if returned to Nigeria, and that to expect further corroborative evidence is erroneous, referencing various sections of a Responseto Information request contained in the national documentation package for Nigeria. [4] I am not persuaded that there was any error in the RAD’s analysis, which would allow this Court to grant the judicial review.The RAD provided responsive justification for its conclusions based on the evidence before it, including the fact that the Applicantresided in Lagos for eight months after he was threatened with no consequences that occurred during this period.

Furthermore, there wasno objective evidence that the elders had taken any steps to carry out their threats. [5] To the extent that the Applicant inferred that there was procedural unfairness in failing to specify what documentation couldor should have been provided, the burden is always on the claimant to establish his claim. Furthermore, procedural fairness argumentsshould be raised at the earliest opportunity (Hennessey v Canada, 2016 FCA 180 at para 21).

Here, the Applicant did not raise anyprocedural fairness arguments on appeal before the RAD and only briefly argued procedural fairness in his oral submissions before thisCourt, without elaborating, and having not mentioned it in his written arguments. [6] Turning to the primary arguments raised in a timely manner in the written materials for this Application, I note that thepresumption of truthfulness as set out in the cases on which the Applicant relies, is not an absolute one. For instance, it is not applied toall inferences that the Applicant might draw from the circumstances that has befallen him.

Here, the country documentation — asCounsel for the Applicant conceded at the hearing — was very mixed regarding the harm faced when refusing to accept hereditarypositions in Nigeria.

As the tribunal pointed out, the Applicant did not establish that he would be amongst those who would face harmgiven what had occurred to him, and based on the evidence in the country condition reports. [7] It is not this Court’s job to reassess the evidence and place its weight on that which favours the Applicant’s position, butrather to evaluate whether it was open to the tribunal to have based its reasons on evidence in a justifiable, transparent and intelligiblemanner. Here, the RAD did just that.

Furthermore, it reasonably pointed out that the Applicant had not established that the culturalpractice posed a threat to his life, that he had sought state protection, or that such state protection would be unavailable. [8] It was further open to the RAD to question the credibility of a well-founded objective fear of persecution when, before theApplicant left, he had spent eight months continuing to live at his home in Lagos post-threat, in addition to the fact that there was noevidence of the alleged agents of persecution carrying out their threats over the nearly two decades since that time. [9] The Applicant is correct that the RAD accepted he was credible in his account that he was elected to serve in the Position,and that he himself held a subjective fear regarding the actions the elders in the village would take.

However, I find that it was also opento the RAD to find that the Applicant had not credibly established on an objective basis, that there was a serious possibility that he wouldbe persecuted on a balance of probabilities. [10] With the absence of any evidence that the elders had taken steps to enforce their threats, the Applicant’s and other’sconjecture about the reasons for the death and illness of family members without any objective links to those elders is not enough toestablish a serious possibility of persecution.

As relied on in Hussin v Canada (Citizenship and Immigration), 2022 FC 290, JusticeMcHaffie’s comments in Olusola v Canada (Citizenship and Immigration), 2020 FC 799: [25] The Olusolas also argue that the “presumption of truth” required the RAD to accept Ms. Olusola’s statement that the police werepursuing her, even in the absence of corroborative evidence: Maldonado v Minister of Employment and Immigration, (FCA), [1980] 2 FC 302 (CA) at p 305. However, the Maldonado presumption is simply that a sworn witness is telling the truth.

It is nota presumption that everything the witness believes to be true, but has no direct knowledge of, is actually true. Ms. Olusola had nopersonal knowledge of facts that would establish the Nigerian police’s ongoing interest in pursuing her. She had indirect knowledge fromher husband that the police had questioned him about her whereabouts, and that there had been no subsequent attempts by the police tofind her.

While she may have truthfully believed that the police were pursuing her, the Maldonado presumption does not require theRAD to accept this as objectively true. [11] In finding that there is no serious possibility or reasonable chance of persecution, the tribunal is entitled to give more weightto the documentary evidence, even if it finds the Applicant to be trustworthy and credible (JM v Canada (Minister of Citizenship andImmigration), 2015 FC 598 at para 66).

As Justice Walker recently held in Salem v Canada (Minister of Citizenship and Immigration),2023 FC 195, “[a] refugee claimant bears the onus of establishing, on a balance of probabilities, their subjective fear of persecution andthe objective basis for that fear”. [12] Here, the RAD gave a clear explanation for finding that the Applicant had failed to establish that his fears would lead topersecution on even the low threshold required (see, in particular, paragraphs 20-24 of the Decision). III.

Conclusion [13] While trite to say — but bears repeating here since it is precisely what is being requested in this case — the role of the Courtin judicial review is not to reweigh the evidence to arrive at the outcome that the Applicant would like. The tribunal’s cogent andtransparent rationale was entirely justifiable in light of the factual context, the evidence, and the law, and thus reasonable. TheApplication for Judicial Review is accordingly dismissed. The Parties propose no question of general importance for certification, and Iagree that none arises.

JUDGMENT in file IMM-2265-22 THIS COURT’S JUDGMENT is that : 1. The judicial review is dismissed. 2. No questions for certification were argued and I agree none arise. 3. There is no award as to costs. "Alan S. Diner" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2265-22 STYLE OF CAUSE: CHRISTOPHER OGBANNA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: February 16, 2023 REASONS FOR JUDGMENT AND JUDGMENT: DINER J.

DATED: February 17, 2023 APPEARANCES : Vakkas Bilsin For The Applicant Leila Jawando For The Respondent SOLICITORS OF RECORD : Lewis & Associates Barrister and Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent