Toronto, Ontario, November 10, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Mr. Nwokomah, is a 30 year-old citizen of Nigeria who made a claim for Convention refugee status based on a fear of persecution in Nigeria by reason of his membership in a particular social group, namely homosexual men.
[2] Mr. Nwokomah is a Christian from the southern part of Nigeria. While working in Keffi, Nasarawa State, in the northern, predominantly Muslim, part of Nigeria, he met and established a relationship with the son of a local Muslim cleric. Their relationship lasted a few months. On July 14, 2004, while at work, Mr. Nwokomah was visited by a friend who advised him that a group of militant Muslim youth were at his residence looking for him. The applicant was told that they were yelling "kill him" because he was suspected of being a homosexual. The militants burnt down his house. His lover was allegedly arrested and taken into police custody for prosecution under the Sharia law in force in that state.
[3] The applicant did not return to his residence in Keffi, but fled to the capital Abuja and stayed with his aunt. Given the proximity of Abuja to Keffi, he did not feel safe there and relocated to Lagos where he stayed with another aunt for a few days while making arrangements to leave Nigeria. The applicant arrived in Canada on August 5, 2004 and sought refugee protection.
[4] A newspaper article dated November, 28, 2004 reports that the applicant's lover was arraigned before a Sharia court in Keffi and a warrant was issued for the arrest of the applicant. The applicant had no information at the time of his hearing as to what transpired with the case against his lover. There is a suggestion in the article that the case before the Sharia court could not proceed without both accused.
[5] On January 6, 2005, the Refugee Protection Division of the Immigration and Refugee Protection Board, (the Board) held that the applicant is neither a Convention refugee nor a person in need of protection as he has a viable internal flight alternative (IFA) in Lagos or Port Harcourt. The sole issue in these proceedings is whether the Board erred in that determination.
[6] In concluding that the applicant had a viable IFA in Lagos and/or Port Harcourt, the panel applied the two-pronged test established in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 at 710 (F.C.A.) and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.).
[7] The Board determined that there was not a serious possibility that the claimant would be persecuted in Lagos or Port Harcourt. In coming to its decision, the panel considered the applicant's fear with respect to Sharia law practices in the north, as well as his fear of persecution in general in Nigeria as a homosexual. The panel was not persuaded, on a balance of probabilities, that there exists a serious possibility of persecution in the future at the hands of the authorities in those two cities.
[8] With respect to Mr. Nwokomah's fear of being persecuted under Sharia law, the panel was not persuaded there was a serious possibility of persecution in either Lagosor Port Harcourt. The panel based its decision on documentary evidence which states that Sharia law is not enforced outside the borders of a Sharia state and that the federal police have made it clear they will not enforce state Sharia laws. Given that Lagos and Port Harcourt are in the southern part of Nigeria where Sharia law is not in force, the panel found that on a balance of probabilities there is no serious possibility of the claimant being persecuted in either of those two cities. In a footnote, the Board observed that Sharia laws do not technically apply to Christians. The documentary evidence indicates that, in certain circumstances, Christians may prefer to be prosecuted under Sharia because of its stringent evidentiary requirements, such as the need for eyewitnesses.
[9] It is well-settled that the standard of review of patent unreasonableness applies to a Board's IFA finding: Yrais Del Carmen Silva Ramirez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1413 at paragraph 34; Chorny v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 1263 (QL) at paragraph 11; Cerna v. Canada (Solicitor General) 2005 FC 1061 at paragraph 33; Zakka v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 1759 (QL).
[10] The applicant submits that the Board failed to consider his evidence that the Sharia authorities contacted his aunt in Lagosattempting to locate him while he was seeking refuge there. Further, he submits that the Board misconstrued the evidence regarding the enforcement of Sharia laws in the south of Nigeria.
[11] I have carefully reviewed the applicant's testimony before the Board and the statements in his personal information form. There is no reference in the PIF to any attempt by the Sharia authorities to locate him in Lagos prior to his departure. When asked directly at the hearing why he could not live in either Lagos or Port Harcourt, the applicant's initial answer was that it was because of "intolerance". It was only later that he indicated that some unknown persons called his aunt asking about him sometime in August, 2004. The first indication from the applicant that this may have been more than a casual inquiry appears in his affidavit submitted with the application for leave in these proceedings. That evidence was not before the Board.
[12] With regard to the enforcement of Sharia in the south of Nigeria, the Board stated "in practice a person alleged to have violated Sharia laws in the states governed by them would not be pursued, or apprehended, in states not governed by Sharia laws." The applicant submits that the Board ignored documentary evidence indicating that if a person committed a crime which is punishable under both Sharia and the Nigerian Penal Code, he or she could be charged under the penal code in another non-Muslim state even where that state would not prosecute for acts punishable exclusively as a Sharia violation.
[13] It is not clear to me from the evidence what jurisdiction the other state would have over a crime which was alleged to have occurred in the northern state. But assuming that an offence under the penal code which is committed in one Nigerian state can be prosecuted in any other Nigerian state, in effect what the applicant is arguing is that any prosecution for violating the proscription against homosexual acts would amount to persecution in the Convention refugee sense quite apart from any risk of prosecution under the Sharia law.
[14] The Board's written reasons include the following passages:
...the panel has considered the claimant's fear with respect to sharia law as practiced in the North, as well as his fear as a homosexual. While homosexuality remains a criminal offence in Nigeria [Exhibit R-4, Response to information Request (RIR), NGA42748.E, 14 July 2004] Amnesty International's office in Bonn, Germany,
[...] concedes that it is unaware of any cases in which the Act's punitive measures were carried out, or of individuals having been convicted of practising homosexuality (11 Feb. 2003) Amnesty International also said that a variety of other sources, from Germany's Foreign Office to international homosexual organizations operate on the assumption that voluntary homosexual acts between adults are no longer being punished, but forced homosexual acts and homosexual acts with minors are prosecuted under the criminal law (AI 22 Oct. 2002. [Ibid., p.2]
[15] In Zakka v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No.1759, 2005 FC 1434, Justice Snider dealing with a similar case stated, at paragraph 11, that the applicant cannot simply rely on the existence of a law proscribing homosexual acts to demonstrate risk.. She emphasized that this did not mean that the Board can ignore the existence of such laws and sanctions. They are factors to be considered by the Board but do not in themselves satisfy the burden on a claimant to establish his claim.
[16] Whether I would have arrived at the same conclusion or not, I am satisfied that it was open to the Board to conclude that the applicant was not at risk of being prosecuted for engaging in voluntary homosexual acts in southern Nigeria, notwithstanding the existence of the criminal law proscribing such behaviour and not at risk of being prosecuted under the Sharia law in the northern state in which the acts occurred.
[17] The applicant's personal circumstances and background, including that he had lived in both internal flight alternative cities for extended periods in the past, rendered them both reasonable possibilities of places he could live in safely. The applicant has failed to demonstrate that the Refugee Division's finding in relation to the existence of an internal flight alternative was patently unreasonable or even unreasonable.
[18] Neither party proposed any question of general application and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-317-05
STYLE OF CAUSE: MICHAEL IFEDIORA NWOKOMAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: NOVEMBER 8, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: NOVEMBER 10, 2005
APPEARANCES BY:
Solomon Orjiwuru FOR THE APPLICANT
Marianne Zoric FOR THE RESPONDENT
SOLICITORS OF RECORD:
Solomon Orjiwuru
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT