MB9-15379

RAD File / Dossier de la SAR : MB9-15379 MB9-15380 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 30, 2020 Date de la décision Panel Delia Lewis Tribunal Counsel for the persons who are the subject of the appeal Dimitrinka Voynova Saykova Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

DECISION [1] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection.

OVERVIEW [2] XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX (Associate Appellant) are citizens of Nigeria. The Associate Appellant was born in the United States (US) and is the Principal Appellant's minor son. The Principal Appellant is the Associate Appellant's designated representative. [3] The Appellants allege they fear the Principal Appellant's deceased husband's family in Nigeria. The Principal Appellant claims her in-laws believe she is a witch and pressured her to engage in widow rituals. The Appellants also claim they will be persecuted by Nigerian society because the Principal Appellant is a widow and a single woman with three children who have different fathers. The RPD determined that the Associate Appellant is not a refugee or person in need of protection because he has US citizenship and has not made a refugee claim against the US. The RPD found the Principal Appellant had not established that she faces a serious possibility of persecution in Nigeria, or that, on a balance of probabilities, she would personally be subjected to a danger of torture or a risk to life or a risk of cruel and unusual treatment or punishment in Nigeria. The Appellants allege the RPD erred in its assessment of the Appellants' prospective risk of harm from the Principal Appellant's in-laws, Nigerian society, and the Yoruba community. [4] I have conducted an independent assessment

of the appeal. I find the RPD was correct in its assessment of the Associate Appellant's claim and the Principal Appellant's future risk of harm. In my view, the conduct of the Principal Appellant's in-laws and her experiences in Nigeria do not rise to the level of persecution or serious harm and the evidence does not establish that the Principal Appellant's alleged persecutors would be motivated to harm her should she return to Nigeria. Accordingly, I dismiss the appeal and confirm the decision of the RPD.

ANALYSIS Role of the Refugee Appeal Division (RAD) [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Merits of the Appeal The US-born minor Associate Appellant [6] I find that the RPD was correct when it determined that the US-born minor Associate Appellant is not a Convention refugee or a person in need of protection. [7] The Appellants claim they were abused by the Associate Appellant's father who the Principal Appellant relocated to the US to be with in 2017. The Appellants came to Canada from the US in 2018. The Principal Appellant has stated that she cannot imagine separation from her son. She claims she cannot leave him in the care of his father in the US because his father is abusive and is not interested in his son. She also states that she does not trust foster care in the US. The Principal Appellant has other relatives in the US. However, she claims that leaving her son with them is not a good option for her or her son who does not know these relatives. [8] The Principal Appellant had one daughter with her late husband. She left this daughter in the care of the Principal Appellant's brother in Nigeria. She claims she gave a second child, born after she was widowed, up for adoption. Considering the Principal Appellant's separation from her other children, I understand her serious concerns about potentially separating from her

US born young son. However, The US-born minor Associate Appellant has American citizenship in addition to his Nigerian citizenship. Therefore, to be granted asylum in Canada he must have a valid claim against the US. The Appellants indicated that the Associate Appellant was not putting forward a protection claim in relation to the US. As such, the RPD was correct when it determined that he is not a Convention refugee or a person in need of protection under the IRPA. This finding does not require the Principal Appellant to separate from her son. Rather, this finding means that RAD does not have jurisdiction to grant the Associate Appellant asylum in Canada. Allegations of persecution by the Principal Appellant's in-laws [9] I find that the RPD was correct when it determined that there was no prospective risk of harm for the Principal Appellant from her in-laws. [10] The Appellants claim the RPD erred when it concluded that the Principal Appellant failed to establish that her agents of harm are still interested in harming her. They allege that the RPD ignored the strong beliefs in the Nigerian Yoruba tribe regarding witchcraft and widows. The Principal Appellant claims she is convinced her in-laws have not given up and will continue to try to harm her. She alleges that their pattern of behaviour in the past proves this is the case. [11] The RPD hearing took place on April 1, 2019

and May 8, 2019. Over the course of these two dates, the Principal Appellant provided several hours of testimony. I have listened to the Principal Appellant's testimony and reviewed the documentary evidence. The Principal Appellant is a woman, and her claim relates to the persecution of widows, women accused of witchcraft and unwed mothers. Therefore, I have also consulted the Chairperson's Gender Guideline2 in considering this appeal. [12] The Principal Appellant stated in her Basis of Claim (BOC) narrative that she married her first husband on XXXX XXXX, 2008, and he died on XXXX XXXX, 2010, as the result of an accident.3 She claims she fears her late husband's entire family. She testified that the principal family members she fears are her mother in law, her late husband's siblings and several of his uncles.4 [13] The Principal Appellant testified that, if she were to return to Nigeria, harassment from her late husband's family would continue. She stated that she had been pushed before and that her life would not be safe because she would have to watch over her shoulder and would not know what game they would be playing next.5 The Principal Appellant testified that on one occasion her mother in law harassed her by coming to her school unannounced in 2015 to ask the Principal Appellant why she could not see her grandchild.6 [14] I find that, on a balance of probabilities, the

Principal Appellant was credible regarding her interactions with her in-laws. However, I find the experiences the Principal Appellant described do not rise to the level of persecution or serious harm that are required in order for a claimant to be found to be a Convention refugee or a person in need of protection. [15] The RPD member asked the Principal Appellant to describe the persecution she feared several times. The Principal Appellant responded that her in-laws harassed her by calling her, making demands and making requests. The RPD followed up by asking for specific details regarding the type of harassment the Principal Appellant feared from her in-laws. She said that they asked her to follow the mourning traditions and not go out for 40 days after her husband's death, but she refused. She testified that because she refused her in-laws believed more people would die in the family. She said that because of this refusal family members came to her apartment on several occasions. The Principal Appellant also recalled that the family requested she take part in a widow ritual which required her to drink water from her husband's corpse being bathed, but she refused.7 [16] The Principal Appellant testified that she gave her in-laws property from her husband that her name was not on. However, she refused to give away her car. The Principal Appellant claimed that the family yelled

at her and harassed her over the car every day before the burial, and would send text messages saying that if you are a witch you don't deserve to live and should be stoned to death by a mob.8 She testified that she kept the daughter she shares with her late husband from seeing her mother in law because she believes her mother in law wanted to take her daughter and had tried but never succeeded.9 Other incidents that the Principal Appellant highlights in her submissions include that in 2012 her in-laws were tracking her through social media but she blocked them and her sister in law tried to play a trick on her, that her in-laws contacted her family and friends and tried to lobby them against her. The Principal Appellant claims her in-laws could track her down if she returned to Nigeria because she is a teacher. She also claims that she fears they will come after her because there is a land issue that is outstanding and may involve a legal battle. [17] The Principal Appellant's documentary evidence includes letters from more than a dozen friends, family members and colleagues who attest to her character, professionalism, and state that she had issues with her in-laws following her husband's death. The letter of support which contains the most serious claims regarding the Principal Appellant's allegations of persecution came from her brother. This letter of support states that

the Principal Appellant's in-laws did everything possible to try to kill her and ensure that she was buried with her late husband.10 [18] The RPD asked the Principal Appellant to explain these statements from her brother. She testified about an instance when she required medical attention in 2010 at a meeting before her late husband was buried. She stated that she was taken to a hospital and the doctor said she had passed out because of stress and dehydration. The RPD asked the Principal Appellant to clarify the events that supported her brother's statement that her in-laws had tried to have her killed. The Principal Appellant responded that her in-law's intentions were not right because they did not get her medical care themselves. Instead, they called an auxiliary nurse to help her. The Principal Appellant claimed the nurse could have injected her with something and was not a qualified medical professional and that a lot of people have died from being injected by auxiliary nurses in Nigeria.11 The RPD asked for other examples to illustrate why her brother would write that they tried to "practically kill her". The Principal Appellant replied that there was a lot of pressure and verbal assaults and she believed that in their own minds they believed she was a witch. [19] I find that the RPD was correct when it concluded that the Principal Appellant failed to establish that, on a

balance of probabilities, her in-laws had tried to kill her. The Principal Appellant was given many opportunities to provide testimony regarding her in-laws' alleged attempts to kill her. I find that, on a balance of probabilities, if the Principal Appellant's in-laws had made serious threats against her life and attempted to kill her the Principal Appellant would have provided testimony which would have provided evidence of these threats and attempts. Instead, the Principal Appellant's responses to the RPD's questions were vague and evasive and focused on one occasion when she fainted and was able to receive appropriate medical care. As a result, I find that the Principal Appellant's evidence did not credibly establish that, on a balance of probabilities, her in-laws had tried to kill her. [20] Regarding other instances of harassment, the Principal Appellant testified that there were phone calls. She testified that her mother in-law called her mother, father, and a friend and that during these calls she would complain about the Principal Appellant not bringing her grandchild to her, and that the Principal Appellant was not being nice to her. The Principal Appellant's daughter lives in Nigeria and has not encountered any issues since her mother left in 2017. The Principal Appellant testified that in 2018 her daughter received a call from the Principal Appellant's late husband's

sister. The Principal Appellant did not know what if anything was said before the call was ended.12 [21] The Principal Appellant was asked by the RPD what the prospective risk was for her at this time. The Principal Appellant testified that she thinks her in-laws will still look for her because they want to take her daughter. She also claims she fears they will look for her at anniversaries of her husband's death. I find that the Principal Appellant's evidence does not establish that there is a serious possibility of a prospective risk of harm for the Principal Appellant at the hands of her in-laws, or that she faces a prospective risk of harm from her in-laws on a balance of probabilities. [22] The Principal Appellant testified that her mother in-law would be in her eighties now. The Principal Appellant has not seen her in-laws in approximately 5 years, and they have not attempted to contact her during this time. Based on the evidence the Principal Appellant and her in-laws had disagreements surrounding property, visitation with the Principal Appellant's daughter, and her refusal to participate in certain widow rituals around the time of her husband's death. While unpleasant, I agree with the RPD that these past disagreements do not rise to the level of persecution or serious harm or establish a risk of future harm. [23] The Principal Appellant's appeal allegations include

that the RPD erred because it failed to consider that an outstanding property issue with her in-laws could motivate them to harm her. In my view, the Appellant's allegation regarding this potential property issue is based on speculation and not consistent with the evidence in the record. The Principal Appellant has had previous property disputes with her in-laws. As addressed above, these disputes were settled without the Principal Appellant being seriously harmed. I find that based on the past conduct of the Principal Appellant's in-laws, on a balance of probabilities, a potential future property dispute does not establish a future risk of harm in this case. Nor does the evidence support that such a potential dispute creates a serious possibility that the Principal Appellant's in-laws will harm her in the future. Allegations of persecution by Nigerian society [24] I find that the RPD was correct when it determined that the Principal Appellant failed to establish that she was at risk of a serious possibility of persecution or, on the balance of probabilities, a prospective danger of torture or risk to her life, or risk of cruel and unusual treatment or punishment by Nigerian society and the Yoruba community. [25] The Principal Appellant claims the RPD erred because it did not correctly estimate that as a widow and single mother, she will not face persecution by Nigerian society

and the Yoruba community. [26] The objective evidence in the national documentation states that there are rituals in which a widow must drink the water used to clean her late husband's corpse.13 Some women are forced to participate in this ritual to prove they are not witches and are not responsible for their husband's death. The objective evidence states that this ritual is not a general practice in Nigeria. However, a widow who refuses the ritual faces stigma from her community and her family and may be regarded as being a witch. There is a history of belief in witchcraft in Nigeria generally, including in the Yoruba community.14 Elderly women are most often accused of being witches and persecuted because they are suspected of practicing witchcraft. Nigeria has passed laws that criminalize violence against women, including widows but there is little evidence of widespread implementation of these laws in cases where women have been attacked or suffered gender-based violence related to accusations of witchcraft. [27] The Principal Appellant testified that if she were to return to Nigeria, she feared that she would be stigmatized by the whole society because she is a widowered, a single mother and accused of being a witch. The RPD asked how this would manifest. The Principal Appellant testified that people might gossip about her in the church or other public places and that she

would suffer the most from stress and psychological issues.15 The Appellant testified that she had faced public humiliation in Nigeria because of her status. She described several instances including being called a witch by a bus driver and being accused of being a witch and killing her husband by people in the local market. The Principal Appellant claims these events caused her great stress. She claims that she fears the sigma will kill her at some point and she fears she will get physically harmed or killed if she goes back to Nigeria. [28] I find that, on a balance of probabilities, the Principal Appellant's evidence regarding the instances of stigmatization she experienced in Nigeria prior to leaving in 2017 is credible. I also find that the objective evidence establishes that in some cases women, particularly elderly widows, may be accused of being witches and persecuted by Nigerian society and the Yoruba community in Nigeria. However, I find the evidence has not established that the Principal Appellant has a forward-facing risk of such persecution or harm in Nigeria. The instances of stigmatization the Principal Appellant experienced in Nigeria were embarrassing to her and I appreciate that life has been difficult for her as a young widow and single mother. However, I find the RPD was correct when it found that these instances over a period of years did not constitute

persecution or serious harm. [29] In considering this appeal, I am guided by the guidance in the Gender Guideline that a woman's claim must be assessed in the context of her personal circumstances. In the Principal Appellant's case, I find that the evidence credibly establishes that she was a well respected and successful teacher. I also find that, on a balance of probabilities, the Principal Appellant was an active and influential member of her community. Before leaving Nigeria in 2017, the Principal Appellant started a cooperative to empower women including widows to support themselves and create businesses. The Principal Appellant testified about this project. Her success in this work was also referred to in her documentary evidence.16 The Principal Appellant claims she is not likely to obtain work in teaching because of the stigma against women in her situation. However, she taught in Nigeria after she was a widowed single mother and was able to submit many letters of support including ones from friends, colleagues, and a former student.17 [30] These letters address her personal circumstances and praised the Principal Appellant for her work in XXXX. Some of the terms used to describe her in these letters, dated as recently as 2019, are that the Principal Appellant "has displayed enterprising skills", has "excellent organizational skills", "is resolute to never give up" and

"always manages to stay strong". Considering these professional successes, I find that the Principal Appellant has not established that, on a balance of probabilities, she would be persecuted or harmed and not able to find work or support within Nigeria because of the beliefs of Nigerian society and the Yoruba community. For the same reasons, I also find that the Principal Appellant has not demonstrated that there is a serious possibility of her being persecuted or harmed by Nigerian society in general or the Yoruba community within Nigeria. [31] I find that the RPD was correct when it found that the absence of a prospective aspect of the alleged harm is the determinative issue in this claim. Therefore, due to the above analysis, I find that the Principal Appellant is not a Convention refugee or person in need of protection.

CONCLUSION [32] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Delia Lewis Delia Lewis November 30, 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution March 1993 updated November 1996, (Gender Guideline). 3 RPD-1, RPD Record at pages 13 - 22. 4 RPD hearing 2019-04-01 audio recording at approximately 01:00:00 - 01:08:00. 5 RPD hearing 2019-04-01 audio recording at approximately 01:10:00 - 01:14:00. 6 Ibid. 7 RPD hearing 2019-04-01 audio recording at approximately 01:20:00 - 01:32:00. 8 RPD hearing 2019-04-01 audio recording at approximately 01:32:00 - 01:46:00. 9 RPD hearing 2019-04-01 audio recording at approximately 01:48:00 - 01:52:00. 10 RPD-1, RPD Record at pages 170 - 172. 11 RPD hearing 2019-05-08 audio recording at approximately 00:35:00 - 00:46:00. 12 RPD hearing 2019-05-08 audio recording at approximately 00:44:00 - 00:52:00. 13 NDP for Nigeria March 31, 2019, item 5.11: Ritual in which a widow must drink the water used to clean her late husband's corpse; consequences for refusal to drink this water; whether a widow's refusal is interpreted as responsibility for her husband's death;

state protection ... , NGA106184.FE, 1 November 2018. 14 NDP for Nigeria March 31, 2019, item 5.15: Convicted without Evidence: Elderly Women and Witchcraft Accusations in Contemporary Nigeria, August 2017. 15 RPD hearing 2019-05-08 audio recording at approximately 01:18:00 - 01:25:00. 16 RPD-1, RPD Record at pages 203 - 204 and 207. 17 RPD-1, RPD Record at pages 174 - 224. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-15379 MB9-15380 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français