GBENGA ONIGBINDE AKINKUNMI Applicant v. THE MINISTER OF CITIZENSHIP, 2020 FC 742

Date: 20200702 Docket: IMM-5726-19 Citation: 2020 FC 742 Ottawa, Ontario, July 2, 2020 PRESENT: Madam Justice Walker BETWEEN:GBENGA ONIGBINDE AKINKUNMIApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Gbenga Akinkunmi is a citizen of Nigeria who claimed asylum in Canada in 2018. The Refugee Protection Division (RPD)rejected his claim, finding that Mr. Akinkunmi has an internal flight alternative (IFA) in Benin City, Nigeria. Mr. Akinkunmi appealedthe RPD’s decision to the Refugee Appeal Division (RAD). The RAD dismissed the appeal and confirmed the RPD’s IFA finding.

Mr.Akinkunmi now seeks the Court’s review of the RAD’s decision (Decision). [2] Mr. Akinkunmi’s application is dismissed because the RAD thoroughly and coherently addressed the issues before it. The RADjustified each of its findings with reference to the RPD’s decision, the evidence in the record and Mr. Akinkunmi’s appeal submissions. I. Background [3] Mr.

Akinkunmi fled Nigeria in 2018 because he feared: (1) retribution from Fulani Herdsmen and Boko Haram for challenging theHerdsmen’s right to graze their animals close to his property in Plateau State; (2) persecution by the Delta Niger Militants (Militants)who had kidnapped him during his move to the south-east of Nigeria following two violent incidents involving the Herdsmen, and whohad received only part of the ransom demanded; and (3) the threat that his family would force female genital mutilation (FGM) on hissix-year old daughter. [4] Mr.

Akinkunmi flew to New York, NY on March 11, 2018 using a valid U.S. visa. His wife and two children remained in Nigeria.They had left Plateau State and have lived separately from Mr. Akinkunmi since the incidents with the Herdsmen. Mr. Akinkunmientered Canada on March 12, 2018. His refugee claim was considered and rejected by the RPD in February 2019. [5] The RPD considered both prongs of the test for an IFA, noting that Mr. Akinkunmi feared persecution or harm at the hands of non-state actors.

The panel concluded that he would not be at risk in Benin City from the Fulani Herdsmen, Boko Haram or the Militants, andthat there was no credible evidence that Mr. Akinkunmi, his wife or his daughter had been harassed or pursued by Mr. Akinkunmi’sfamily since 2017. With respect to the second prong of the IFA test, the RPD determined that it was not objectively unreasonable for Mr.Akinkunmi to seek refuge in Benin City in light of his level of education, work experience and linguistic ability, and his ability to findwork. II. Decision under review [6] On appeal to the RAD, Mr.

Akinkunmi challenged a number of aspects of the RPD’s IFA analysis. The RAD reviewed each of Mr.Akinkunmi’s appeal submissions against the two-pronged test set out in Rasaratnam v Canada (Minister of Employment andImmigration), (FCA), [1992] 1 FC 706 (CA) (Rasaratnam). [7] The RAD first considered whether the evidence indicated that any of the Fulani Herdsmen, Boko Haram, Militants or Mr.Akinkunmi’s family had the means and motivation to pursue him in Benin City. The panel concluded that there was no persuasiveevidence establishing that the Fulani Herdsmen and Boko Haram would be motivated to search for Mr.

Akinkunmi outside of his homeregion. Further, neither the Herdsmen nor Boko Haram were sufficiently organized or powerful to have the means to find and harm theirenemies in a large urban area such as Benin City. [8] The RAD then addressed Mr. Akinkunmi’s argument that the RPD erred in finding that he faced no forward-looking risk of harmfrom the Militants in Benin City.

The RAD panel found that Benin City was not near the kidnapping site; that the Militants had nosignificant presence in the city; and that the objective National Documentation Package (NDP) evidence indicated that the Militantsprimarily targeted oil facilities. The RAD also found that Mr. Akinkunmi had provided no evidence to support his assertion that theMilitants were motivated to search for him to secure the remainder of his kidnapping ransom. [9] With respect to fear of FGM of his daughter, the RAD agreed with the RPD, echoing the RPD panel’s finding of no credibleevidence of threat or harm from Mr.

Akinkunmi’s family. The RAD stated that it was mere speculation that he could be found by hisfamily in Benin City where he had no known family members or connections. The panel noted Mr. Akinkunmi’s submission that the

RPD ignored evidence that his wife had moved from place to place with their daughter to avoid FGM. The RAD determined that theRPD considered the issue but had found that the evidence did not establish Mr. Akinkunmi’s central allegation of persecution in BeninCity due to his opposition to FGM. [10] The RAD considered the second prong of the Rasaratnam IFA test at some length and confirmed the RPD’s assessment that itwould not be objectively unreasonable or unduly harsh to expect Mr. Akinkunmi to relocate to Benin City. The panel’s findings are notcontested in this application. However, Mr.

Akinkunmi now submits that it would be unreasonable to require him to cease all contactwith his extended family should he return to Nigeria and live in the IFA. He states that his family would inevitably learn of his relocationto Benin City, placing his daughter at risk. III. Issues and Standard of Review [11] The issue in this application is whether the RAD erred in concluding that Mr. Akinkunmi has a viable IFA in Benin City. Mr.Akinkunmi contests two aspects of the RAD’s IFA assessment: 1. Mr. Akinkunmi’s continued risk of persecution by the Militants in Benin City. 2. The risk to Mr.

Akinkunmi’s daughter of FGM in Benin City. [12] Mr. Akinkunmi does not challenge the RAD’s conclusions regarding the Fulani Herdsmen and Boko Haram. [13] The parties submit and I agree that the RAD’s IFA determination is subject to review by this Court for reasonableness (Canada(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 10 (Vavilov)).

None of the situations identified by theSupreme Court of Canada (SCC) in Vavilov for departing from the presumptive standard of review apply in this case. [14] The majority in Vavilov set out guidance for reviewing courts in the application of the reasonableness standard. I have applied thatguidance in my review, exercising restraint but conducting a robust review of the Decision for justification and internal coherence(Vavilov at paras 12-15, 85-86, 99; see also Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 at paras 28-29).

Inoral argument, the parties emphasized the importance of the decision actually made by the decision maker and the constraints withinwhich the decision maker must act, echoing the SCC’s description of a reasonable decision as one "“that is based on an internallycoherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”" (Vavilov atpara 85). IV. Analysis 1. Did the RAD err in its assessment of Mr. Akinkunmi’s continued risk ofpersecution by the Militants in Benin City? [15] Mr.

Akinkunmi submits that the RAD unreasonably rejected his submission that he faces a forward-looking risk in the IFA of asecond kidnapping by the Militants. First, he argues that Benin City is too close to Warri, the site of Mr. Akinkunmi’s 2018 kidnapping.Second, he argues that the RAD ignored the presumption of fact that he faces a serious possibility of future persecution or harm as aresult of his first kidnapping and failure to pay the full ransom amount. [16] I acknowledge that Mr.

Akinkunmi questions the coherence of certain paragraphs in the Decision, arguing they lack clarity andshould be viewed by the Court as determinative errors in the RAD’s reasoning. Mr. Akinkunmi’s criticisms are not persuasive. He hasexcerpted portions of paragraphs from the Decision and relies on his analysis of those excerpts to undermine the RAD’s assessment ofthe Militants’ means and motivation to locate him in Benin City. This approach ignores the SCC’s guidance to reviewing courts that anadministrative decision maker’s written reasons must be read holistically and contextually (Vavilov at para 97).

Other than the RAD’sone reference to the Niger Delta Avengers rather than the Militants, which was an error, the RAD’s analysis of the scope of theMilitants’ activities in the south of Nigeria were well-reasoned and logical. Despite Mr. Akinkunmi’s insistence, the RAD’s incorrectreference to the Avengers does not vitiate the Decision. Proximity of Benin City to Warri [17] In arguing that the proposed IFA is too close to the site of his kidnapping, Mr.

Akinkunmi submits that the RAD’s reliance on thefact that Benin City is a two-hour car trip (97 km) from Warri ignores a series of cases from this Court that focus on the difficulty offinding a viable IFA or establishing state protection in a small country (Annan v Canada (Minister of Citizenship and Immigration), (FC), [1995] 3 FC 25 (Annan); Corneau v Canada (Citizenship and Immigration), 2011 FC 722 (Corneau); Henriquez deUmaña v Canada (Citizenship and Immigration), 2012 FC 326 (Henriquez de Umaña); James v Canada (Citizenship and Immigration),2015 FC 1279 (James)).

He draws an analogy from those cases to the short distance between Benin City and Warri. [18] Mr. Akinkunmi also submits that the RAD did not approach the question of proximity from the perspective of the alleged agents ofpersecution. He states that the RAD failed to address the question of whether the Militants would consider Benin City too far from Warrito pursue Mr. Akinkunmi for payment. [19] I have reviewed the cases cited by Mr. Akinkunmi. The determinative issue before the Court in Corneau and James was stateprotection, not IFA.

The Court’s emphasis on the size of Saint Lucia in both cases responded to arguments of a localized inability and/orrefusal by state authorities to protect victims of domestic violence. In Henriquez de Umaña, the Court criticized the RPD’s rejection ofthe applicant’s evidence regarding a possible IFA. The Court found that the RPD panel failed to explain why it rejected evidence that the

applicant’s agent of persecution was well organized and would be able to locate him anywhere in El Salvador. The physical size of ElSalvador was important but was considered in conjunction with the persecutor itself and its reach throughout the country. In Annan,another IFA case, the Court determined that the applicant was at risk throughout Ghana. The Court stated that the size of the country hadto be taken into account as did its cultural foundations which were still largely tribal. [20] I agree with Mr.

Akinkunmi that geography and distance are important in IFA cases but they are rarely the only considerationbefore a decision maker. In each case, the decision maker must consider all relevant evidence regarding the serious possibility of harm toan applicant in the proposed IFA, including the characteristics of the particular alleged agent of persecution and its ability and motivationto take action in the IFA. I find that the RAD did not ignore the issue of geography. Rather, the panel considered distance as onecomponent of its analysis of the likelihood the Militants would search for Mr.

Akinkunmi in Benin City. [21] The remainder of the RAD’s analysis focussed on the Militants themselves and whether they had the means and motivation topursue Mr. Akinkunmi in Benin City. The panel’s assessment of the Militants’ means and motivation necessarily proceeded from theirperspective, effectively asking whether the Militants could or would seek Mr. Akinkunmi despite his location two hours from Warri. TheRAD stated that the Militants were not present in any significant way in Benin City, in Edo State.

The NDP documentation indicated thatthey operate mainly in Delta State, the presumed location of their base camp, and that they are primarily focussed on targeting oilfacilities and not people. These factors indicated that the Militants had neither the ability nor the means to mount a search in Benin City. [22] The RAD made a final but critical factual finding. Mr. Akinkunmi had provided no evidence to support his argument that theMilitants were motivated to search for him to recoup the remainder of the kidnapping ransom. The record supports the RAD’s finding. Inaddition, Mr.

Akinkunmi was asked repeatedly by the RPD for all the reasons he feared returning to Nigeria. At no point did he state thathe feared his former kidnappers. Mr. Akinkunmi argues that he did not think he needed to repeat the information contained in his Basisof Claim (BOC) form but his position is not tenable. The RPD was clear in the questions posed and the RAD drew a reasonable inferencefrom his omission to make any reference to the Militants. The RAD stated: [35] [Mr.

Akinkunmi] has not provided any evidence to support his assertion on appeal that the kidnappers are motivated tosearch for him to secure the remainder of the kidnapping ransom. He did not testify to ongoing threats or harassment at hisRPD hearing, nor is there information in his BOC which indicates that the kidnappers have sought him in any way since theincident took place. [Mr. Akinkunmi] did not testify at his hearing to concerns that his previous kidnappers were motivatedto harm him due to the ransom amount outstanding. … [23] Mr.

Akinkunmi’s focus on the distance between Benin City and Warri ignores significant parts of the RAD’s analysis of thepossibility that the Militants would pursue payment of the remaining ransom and cause him further harm. [24] I find that the RAD’s analysis of Benin City as an IFA where the Militants were unlikely to pursue Mr. Akinkunmi was detailedand coherent. The panel provided clear justification for its findings. The RAD’s conclusion that Mr. Akinkunmi’s fear of harm from theMilitants in Benin City had no objective basis was reasonable.

Existence of a presumption of fact due to past kidnapping [25] I turn to Mr. Akinkunmi’s submission that his 2018 kidnapping and failure to pay the full ransom to the Militants gives rise to apresumption of fact that he is at risk of re-kidnapping should he be required to return to Nigeria and live in Benin City. He argues that theRAD erred in requiring him to provide evidence of his fear of the Militants’ likely future conduct. Mr.

Akinkunmi relies on the FederalCourt of Appeal (FCA) decision in Fernandopulle v Canada (Minister of Citizenship and Immigration), 2005 FCA 91 (Fernandopulle).He submits that the FCA rejected the existence of a presumption of law based on past persecution but did not reject the existence of apresumption of fact stemming from that persecution. Mr. Akinkunmi argues that the presumption of fact that he is at risk of re-kidnapping "“requires at least a fact to rebut the presumption”". The passage cited by Mr.

Akinkunmi reads in part as follows(Fernandopulle at para 25): A person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasonslisted in

section 96 of the Immigration and Refugee Protection Act. Proof of past persecution for one of the listed reasonsmay support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarilydo so. [26] The FCA’s language does not establish a presumption of fact of future harm that must be rebutted by proof to the contrary. TheCourt simply recognized that a prior violent or harmful incident may be a factual element in establishing forward-looking risk. I note alsothat the FCA was focussed on the existence of past persecution based on one of the grounds enumerated in

section 96 of the Immigrationand Refugee Protection Act, SC 2001, c 27 (IRPA). Mr. Akinkunmi’s case rests on

section 97 of the IRPA and the possibility of futureharm by a specific non-state actor. Finally, the cases cited by Mr. Akinkunmi in support of his proposition do not reflect the Court’sadoption of a presumption of fact based on prior harm. In each case, the Court’s analysis was based on the particular applicant’s claim,factual evidence of past persecution or harm, and relevant country conditions. [27] I find that Mr.

Akinkunmi’s reliance on a presumption of fact premised on his prior kidnapping and his argument that theRespondent was required to rebut that presumption with evidence, is an attempt to reverse the onus he bore to establish that Benin City isnot a viable IFA (Thirunavukkarasu v Canada (Minister of Employment and Immigration), (FCA), [1994] 1 FC 589). 2. Did the RAD err in its assessment of the risk to Mr. Akinkunmi’s daughter ofFGM in Benin City? [28] Mr.

Akinkunmi challenges the RAD’s conclusion that the RPD did not ignore evidence that his wife and daughter had moved anumber of times within Nigeria due to fear of Mr. Akinkunmi’s family.

[29] I have reviewed the Decision and the RPD’s decision in light of Mr. Akinkunmi’s argument. The RAD agreed with the RPD’sfinding that there was no credible evidence to establish, on a balance of probabilities, that Mr. Akinkunmi and his wife and daughter hadbeen persecuted or threatened by his family or that the feared family members had been able to locate them since 2017. It is clear fromthe RPD decision that the RPD panel considered the evidence in the record that Mr. Akinkunmi’s wife and daughter had moved as aprecaution to avoid his family.

The RAD made no reviewable error in stating that the RPD considered the family’s relocations withinNigeria. [30] Mr. Akinkunmi submits that Benin City is not a reasonable IFA for him because his daughter would be placed at risk of FGM aseither: (1) his wife and daughter would join him in Benin City and his family would inevitably learn that they were living in the city; or(2) he would have to remain separated from his wife and daughter to ensure the daughter’s safety.

He argues that the RADmisunderstood this aspect of his appeal submissions and that both scenarios demonstrate that it would be unreasonable to expect him torelocate to Benin City. [31] The RAD found that it was mere speculation that Mr. Akinkunmi could be found in Benin City by his family as he had no knownfamily or familial connections there. He does not challenge this finding other than to insist that his discovery by family members byindirect means is inevitable. I find that the RAD did not err in stating that this evidence is speculative.

It does not satisfy the very highevidentiary threshold for establishing that an IFA is unreasonable (Ranganathan v Canada (Minister of Citizenship and Immigration), (FCA), [2001] 2 FC 164 at para 15). [32] Mr. Akinkunmi now states that he would communicate with his family if he returned to Nigeria and that it would be anunreasonable hardship to expect him to cut off all ties to his family. Therefore, his family would learn from him that his daughter wasliving in Benin City. This argument was not made as part of the appeal submissions to the RAD. Further, it contradicts Mr.

Akinkunmi’sstatement in his BOC that he and his wife have vowed to protect his daughter’s rights "“at any cost above any tradition or familyrelationship”". Mr. Akinkunmi’s late statement that he would contact his family once in Nigeria also undermines his alleged fear offorced FGM. I agree with the Respondent’s submission that a requirement to cut ties with family in order to be able to reunite with hiswife and daughter and to ensure his daughter’s safety does not meet the threshold for establishing an IFA as unreasonable. V.

Conclusion [33] The application is dismissed. [34] No question for certification was proposed by the parties and none arises in this case. JUDGMENT IN IMM-5726-19 THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed. 2. No question of general importance is certified. "Elizabeth Walker" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5726-19 STYLE OF CAUSE: GBENGA ONIGBINDE AKINKUNMI v THE MINISTER OF CITIZENSHIP ANDIMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE BETWEEN Winnipeg, Manitoba ANDOTTAWA, ONTARIO DATE OF HEARING: APRIL 28, 2020 JUDGMENT AND REASONS: WALKER J.

DATED: july 2, 2020 APPEARANCES : David Matas For The Applicant Alexander Menticoglou For The Respondent SOLICITORS OF RECORD : David Matas Barrister and Solicitor Winnipeg, Manitoba For The Applicant Attorney General of Canada Winnipeg, Ontario For The Respondent