Date: 20220718
Docket: IMM-557-21
Citation: 2022 FC 1052
Ottawa, Ontario, July 18, 2022
PRESENT: The Honourable Madam Justice Heneghan
| BETWEEN:
|
| OLUGBENGA FABUNMI IDOWU
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
REASONS AND JUDGMENT
[1] Mr. Olugbenga Fabunmi Idowu (the “Applicant”
) seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”
), dismissing his claim for protection as a Convention refugee or a person in need of protection, pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”
).
[2] The Applicant is a citizen of Nigeria. He based his claim for protection upon his status as a bisexual man. The RAD determined that an Internal Flight Alternative (“IFA”
) is available to him in Port Harcourt.
[3] Although the Applicant advanced several arguments, the dispositive issue in this application is the RAD’s treatment of the IFA.
[4] The decision of the RAD is reviewable on the standard of reasonableness, following the decision in the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653.
[5] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on that decision”
; see Vavilov, at paragraph 99.
[6] The test for a viable IFA is addressed in Rasaratnam v. Canada (Minister of Employment & Immigration) (1991), [1992] 1 F.C. 706 (Fed. C.A.), at 710-711. The test is two pronged and provides as follows:
First, the Board must be satisfied that there is no serious possibility of a claimant being persecuted in the IFA and
Second, it must be objectively reasonable to expect a claimant to seek safety in a different part of the country before seeking protection in Canada.
[7] In order to show that an IFA is unreasonable, an applicant must show that conditions in the proposed IFA would jeopardize life and safety in travelling or relocating to that IFA; see Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), [1994] 1 F.C. 589 (Fed. C.A.), at 596-598.
[8] The Applicant argues that the RAD erred by relying on an outdated version of the National Documentation Package (“NDP”
), when there was a more current version available. The Applicant submits that the updated NDP includes new information that is relevant to his circumstances.
[9] I agree.
[10] In my opinion, the RAD was unreasonable in relying on an outdated NDP when updated information was readily available.
[11] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter remitted to a new panel of the RAD for redetermination.
JUDGMENT in IMM-557-21
THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted to a new panel of the Immigration and Refugee Board, Refugee Appeal Division for redetermination.
"E. Heneghan"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
|
IMM-557-21
|
| STYLE OF CAUSE:
|
OLUGBENGA FABUNMI IDOWU v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| PLACE OF HEARING:
|
HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND ST. JOHN’S, NEWFOUNDLAND AND LABRADOR
|
| DATE OF HEARING:
|
JUNE 14, 2022
|
| REASONS AND JUDGMENT:
|
HENEGHAN J.
|
| DATED:
|
JULY 18, 2022
|
APPEARANCES:
| Alison Pridham
|
FOR THE APPLICANT
|
| Nicole Rahaman
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Lewis & Associates
Barristers and Solicitors
Toronto, Ontario
|
FOR THE APPLICANT
|
| Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|