MB9-03474

RAD File / Dossier de la SAR: MB9-03474 MB9-03475 / MB9-03476 / MB9-03477 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date(s) of Hearing January 28, 2020 February 25, 2020 Date(s) de l'audience Date of decision March 3, 2020 Date de la décision Panel J. Pollock Tribunal Counsel for the persons who are the subject of the appeal Khesrau Ahmadi Conseil de la|des personne|s en cause Designated representative

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

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX (the Principal Appellant), and his spouse, XXXX XXXX XXXX (the Associate Appellant), and their two minor daughters, XXXX XXXX XXXX and XXXX XXXX XXXX (the Minor Appellants), are citizens of Nigeria. The Appellants allege a fear of persecution from the Principal Appellants family. Specifically, they allege that their agents of persecution seek to force the Minor Appellants to undergo Female Genital Mutilation or Cutting/Circumcision (FGM/C). They appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The RPD determined that the Appellants have a viable Internal Flight Alternative (IFA) in Port Harcourt and Abuja. There were no adverse credibility findings. The Appellants argue that the IFA finding is in error. They submit new evidence on appeal, some of which I have admitted, and I held a hearing on January 28, 2020. Due to a medical emergency involving the Appellants' third child, their Canadian-born daughter, we were unable to conclude the hearing.1 We resumed on February 25, 2020. [2] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 Having independently assessed the RPD Record, the new evidence, and the Refugee Appeal Division (RAD) hearing testimony, I find that Port Harcourt and Abuja are not viable IFAs. I have addressed why the RPD's IFA finding is no longer correct in light of the new evidence before providing my reasons for allowing the appeal and accepting the Appellants' claims.

DECISION [3] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. The Appellants' allegations [4] The Appellants are from Lagos, Nigeria. They allege that the Principal Appellant's family members have demanded that the Minor Appellants undergo FGM/C. Both the Principal Appellant and Associate Appellant are opposed to FGM/C. They allege that their refusal was followed by a series of threats delivered to them personally, as well as through family members in Nigeria.3 The Appellants allege that the agents of persecution approached multiple members of their family in Lagos, as well as a friend in Ibadan, Oyo State, in order to threaten their lives. They allege that the threats continued even after they fled Nigeria. The RPD's decision [5] The RPD heard the Appellants' joined claims on December 5, 2018. The RPD did not make any adverse credibility findings. It also did not identify any credibility concerns with respect to the Appellants' supporting evidence, which includes four sworn affidavits accompanied by identity documents which corroborate the practice of FGM/C in the Principal Appellant's family and the threats against the Appellants' lives.4 The RPD found that the determinative issue is the availability of a viable IFA in Port Harcourt and Abuja. Specifically, that the Appellants failed to establish, on a balance of probabilities,

that the agents of persecution have the means or motivation to locate them in Port Harcourt or Abuja, such that they face a serious possibility of persecution or a subsection 97(1) risk. The RPD further found that Port Harcourt and Abuja are objectively reasonable IFA locations in the Appellants' circumstances. NEW EVIDENCE AND REFUGEE APPEAL DIVISION (RAD) HEARING [6] The Appellants' claims were rejected on January 10, 2019. On appeal, the Appellants provided the following proposed new evidence: a. Information about the Chartered Institute of Bankers of Nigeria (CIBN) directory; b. XXXX XXXX XXXX XXXX medical letter, dated XXXX XXXX XXXX XXXX; and c. The affidavit of the Principal Appellant's brother, O.O.,5 dated XXXX XXXX, 2019.6 [7] According to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA),7 I can only accept evidence that: i. Arose after the RPD decision; or ii. Was not reasonably available at the time of the decision; or iii. Could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.8 According to subsection 110(6) of the IRPA,9 I may only hold an oral hearing where the accepted new evidence: i. Raises a serious issue with respect to the

credibility of the person who is the subject of the appeal; and ii. Is central to the decision of the claim; and iii. If accepted, justifies allowing or rejecting the claim. [9] If the new evidence meets each requirement I must decide whether to hold a hearing. [10] I find that the evidence in item (a) is inadmissible and the evidence in item (b) is admissible but does not require an oral hearing. I find that the evidence in item (c) is admissible and requires an oral hearing. The evidence in item (a) is inadmissible [11] The CIBN information in item (a) indicates that there is a public membership directory for chartered bankers in Nigeria which includes the names and business information of members. This evidence does not post-date the RPD rejection. There is no indication that this directory only became available after the RPD rejection. Counsel argues that the Appellants could not reasonably have been expected to present this evidence because they were unaware that the RPD would find that they could work as bankers in the IFA cities.10 I do not agree. [12] The viability of an IFA was a live issue at the RPD hearing. By necessity, this includes consideration of whether the Appellants would be able to work in the proposed IFA locations. The fact that the RPD would make a finding on the Appellants' ability to obtain employment in their stated professions in the IFA location

should not have come as a surprise. The Appellants had every opportunity to explain at their RPD hearing why they are unable to live in the IFA locations. They were explicitly asked about their ability to work in the IFA locations. Had the Appellants been fearful of practicing as XXXX XXXX in the IFA locations given the public directory, it was open to them to say so at the RPD hearing. Having listened to the entire RPD hearing audio-recording, I note that the Appellants failed to do so.11 Unlike the case of Ambrose-Edede, relied upon by Counsel, the RPD in the Appellants' claim did not unexpectedly take judicial notice of a fact in dispute.12 The case before me is distinguishable. [13] The Appellants had over one month between the RPD hearing on December 5, 2018 until the RPD rendered its decision on January 10, 2019. This is not a case where the RPD decision was rendered shortly after the hearing. The Appellants have not indicated whether any efforts were made after the conclusion of their RPD hearing to obtain this evidence. I also note that the Appellants have not argued that they only learned of the public directory after the RPD rejection. Had this been their argument, my determination may have been different. [14] The new evidence provisions are not the Appellants' opportunity to complete a deficient record submitted to the RPD.13 An Appellant cannot offer new evidence

"every time he or she is surprised by the RPD's decision."14 Claimants must put their best foot forward before the RPD.15 [15] I find that item (a) is inadmissible as new evidence under 110(4). The medical evidence in item (b) is admitted but does not require a hearing [16] XXXX XXXX XXXX XXXX medical letter in item (b) post-dates the rejection of the claim and is admissible under 110(4). The letter is prima facie credible and relevant to the claim as it indicates that the Associate Appellant presents "significant XXXX XXXX XXXX XXXX related to XXXX XXXX XXXX."16 This is relevant to the reasonableness of the IFA. The medical evidence is new as it provides information that was not before the RPD. However, this evidence does not require a hearing as it does not justify allowing or rejecting the claim. The affidavit evidence in item (c) is admitted and I held a hearing [17] The Principal Appellant's brother, O.O., alleges in his sworn affidavit that the family continues to search for the Appellants, even after they fled Nigeria.17 He alleges that on XXXX XXXX XXXX 2019, four members of the extended family visited his home in Lagos to discuss their FGM/C demands of the Minor Appellants and request information about the Appellants' current location. When O.O. responded that he does not have information about the Appellants, the four men threatened to find and harm the Appellants

throughout Nigeria. In addition, O.O. alleges that the Principal Appellant's sister in Abuja, O.O.A., was also approached by members of the extended family in search of the Appellants. Finally, O.O. alleges that two of the four men who visited his home in XXXX 2019 to threaten the Appellants are "highly connected" family members and that one in particular is a former senior officer of Nigeria's television authority and a former secretary to the father of a Nigerian senator. [18] The content of the affidavit arose after the RPD rejection and therefore meets the requirements of 110(4). I further find that the affidavit is prima facie credible, relevant to the claim, and new. The affidavit is accompanied by a copy of the O.O.'s identity document. I have reviewed the original affidavit and I note that it is signed by the affiant, commissioned, and bears genuine wet-seal stamps from the Nigerian notary public accompanied by a signature.18 The affidavit in item (c) is admitted into evidence. [19] The affidavit is also central to the claim as it relates to the viability of an IFA in Nigeria, in particular to the means and motivation of the agents of persecution to locate the Appellants. The new allegations contained in the affidavit also raise a serious issue as to the Appellants' credibility. Finally, if accepted, this affidavit is determinative of the viability of the IFA and

justifies allowing the Appellants' claim. If accepted, this new evidence demonstrates both the means and motivation of the agents of persecution to locate the Appellants in the proposed IFA locations. This evidence satisfies the requirements to hold an oral hearing under 110(6). [20] In response to item (c), the RAD notified Counsel that it would hold a RAD hearing. The RAD also notified Counsel that items 1.8, 1.17, 5.9, 5.16, 7.4, and 13.1 from the most recent National Documentation Package (NDP) for Nigeria would be considered on appeal.19 The RAD disclosed these items as they relate to the reasonableness prong of the IFA test. The RAD hearing held on January 28, 2020 and February 25, 2020 [21] I held a hearing on January 28, 2020. Due to a medical emergency involving the Appellants' third child, their Canadian-born daughter, we were unable to conclude the hearing.20 We resumed on February 25, 2020, and we finished the hearing on this date. The RAD hearing was limited to the new evidence in item (c) and the new NDP items. During the RAD hearing I did not have the jurisdiction to test the credibility of evidence already presented to the RPD. [22] There were two material credibility concerns arising from O.O.'s affidavit evidence: a. O.O.'s reference to "highly connected" family members: The Appellants did not mention in their Basis of Claim (BOC) forms or in testimony before

the RPD that they have any powerful relatives in Nigeria. The Principal Appellant explained that these particular influential family members had never threatened the Appellants while they were still in Nigeria, or before the RPD rejection. He believed, based on the fact that these particular extended family members are educated, that they would not support the FGM/C family traditions. He explained that he was surprised to learn of their threats in XXXX 2019. Given that these two family members had never been involved in the past persecution, the Principal Appellant explained that he did not believe that their political connections would be relevant to the claim and this is why this was never included in the BOC or mentioned in testimony before the RPD. b. O.O.'s reference to the Principal Appellant's sister living in Abuja: The Appellants did not mention in the BOCs or in testimony before the RPD that the Principal Appellant's sister, O.O.A., resides in Abuja. The BOC form filed before the RPD identifies her as living in Lagos.21 The Principal Appellant explained that he learned that his sister moved to Abuja after he arrived in Canada but before the RPD hearing. He explained that he did not amend his BOC form to reflect her relocation because, at the time, he did not see this as important or relevant to the claim. At the time of the RPD hearing, her address in Abuja was not

material. She had not been approached by the agents of persecution about the Appellants until after the RPD rejection. [23] I have carefully considered the Appellants' explanation for these omissions. I note that it is well established that the Board may draw an adverse credibility inference where relevant and important information is not included in a Claimant's BOC narrative.22 However, in order to support an adverse inference, an omission must be material.23 In my assessment I have considered whether the information omitted from the BOCs was relevant and material to the Appellants' claims at the time that they were prepared and presented to the RPD. I find that they were not. I am willing to accept as reasonable, on a balance of probabilities, that the Principal Appellant's sister's address in Abuja and his then uninvolved extended family member's alleged political connections were not included in the BOC because, at the time, they were not relevant as they did not relate to the core of the Appellants' claim. It is was only in XXXX 2019, after the rejection of the claim, that these facts became material. I do not draw an adverse inference based on these omissions. [24] The Appellants' testimony at the RAD hearing was consistent with the new evidence presented on appeal. Given that the Appellants were not present for the alleged threats in Nigeria in XXXX 2019, their ability

to speak about these events was understandably limited. However, the Appellants' testimony about how they felt when O.O. told them about these new threats was detailed and consistent with the evidence. In addition, O.O.'s affidavit provides detail about the alleged threats that he personally received and witnessed in Nigeria. [25] While it is certainly fortuitous for additional threats to be levelled against the Appellants in Nigeria shortly after their RPD claim was rejected, delivered by previously undisclosed powerful extended family members to another family member who happens to live in one of the proposed IFA locations, I do not find that such allegations are outside the realm of possibility. It cannot be said that the Appellants' allegations could not have happened as alleged; this is not the clearest of cases.24 I am mindful that sworn evidence is presumed truthful. Having not identified any material inconsistencies, implausiblilities, or omissions in the Appellants' new evidence on appeal, which have not been reasonably explained, I do not have valid reasons to doubt their allegations. I accept, on a balance of probabilities, that the Appellants' agents of persecution remain interested in them and that they have sought them in one of the proposed IFA locations. [26] I also note that in testimony before the RPD, the Associate Appellant provided a detailed and

spontaneous account of the threats that she experienced from her in-laws in Nigeria. In particular, she detailed a physical assault while protecting her daughter from the FGM/C demands in the family home.25 When asked by the RPD why the assault during this incident had not been mentioned in BOC, the Associate Appellant explained that she had not mentioned it earlier as she did not want to defame her husband's family in front of him.26 When viewed in light of the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guidelines), I find this explanation to be reasonable.27 I accept as credible the Appellants' allegations, on a balance of probabilities.

ANALYSIS The Appellants do not have a viable IFA in Port Harcourt in light of the new evidence [27] The RPD correctly set out the two-prongs of the IFA test. After engaging in a thorough analysis that is responsive to the Appellants' particular circumstances, the RPD found that Port Harcourt and Abuja are viable IFAs. Having independently assessed the evidence, I find that the IFA location fails on the first prong in light of the new evidence. I find that the Appellants do not have a viable IFA. [28] The Chairperson of the Immigration and Refugee Board of Canada (IRB) released a Jurisprudential Guide (JG) regarding IFA locations in major cities in south and central Nigeria for Claimants fleeing non-state actors.28 The RPD correctly considered and applied the JG in its analysis. Generally, pursuant to the JG, an IFA is available to Nigerians fleeing non-state actors. However, in my view, given the new evidence on appeal, there are circumstances in this case which bring the facts outside those of the JG. [29] Unlike in the JG, the Appellants before me have provided uncontradicted sworn evidence that their agents of harm have undertaken significant and sustained efforts to locate them even after they fled Nigeria, including in one of the proposed IFA locations. The agents of persecution sought the Appellants through multiple family members in their home state of Lagos, as well as

through a friend in Ibadan, Oyo State. Even after the Appellants fled Nigeria, the agents of persecution sought them in Abuja, which is 700 km away from their home in Lagos. I note that the second IFA location, Port Harcourt, is even closer to Lagos than Abuja. [30] The agents of harm have demonstrated the means and motivation to pursue the Appellants in multiple cities throughout Nigeria, including in a proposed IFA location. This being the case, I am satisfied that Port Harcourt and Abuja are no longer viable IFAs. The Appellants need not establish that their agents of harm "'would be able to find [them]," but merely that they face a serious possibility of persecution.29 This is a low threshold. I find that the Appellants face a serious possibility of persecution on return to Nigeria and that they do not have a viable IFA. The Appellants' claim is well founded and they do not have access to state protection [31] The RPD did not decide on the issues of nexus, objective basis, and state protection. Having undertaken my own assessment of all of the evidence, I find that the Appellants have a nexus, that their claims are well-founded, and that they do not have access to operationally adequate state protection in Nigeria. The Appellants have a nexus to a Convention ground [32] The Minor Appellants possesses a nexus to a Convention ground based on their particular social group, as

female children at risk of FGM/C. The Principal Appellant and Associate Appellant allege that they were threatened for refusing to have their daughters undergo FGM/C and they allege a fear of persecution on this basis. I find that the Principal Appellant and Associate Appellant have established derivative claims based on their particular social group, as the Minor Appellants' parents who object to the performance of FGM/C and who fear persecution as a result. The Appellants claims are well-founded [33] The objective evidence supports the well-foundedness of the Appellants' claims. The Board's research documents indicate that where both parents agree, "nobody will walk into [somebody else's] home' to perform FGM on their daughters and that 'parents are free to refuse it.'"30 However, while unusual, there is evidence in the NDP that family elders in Nigeria have kidnapped children to forcibly perform FGM/C, even where the parents of a minor child are not in support of the practice.31 The Appellants specifically testified about their fear that the Minor Appellants could be kidnapped by their agents of harm. There is evidence in the most recent NDP that family elders may forcibly perform FGM/C on female children without their parent's knowledge.32 There is also evidence in the NDP that parents who refuse the performance of FGM/C may be subjected to "ostracism, stigmatisation and

blackmailing, denial of intracultural benefits and physical abuse."33 The most recent NDP indicates that parents opposed to FGM/C could face "persecution or serious harm" where the act of FGM/C is enforced on a child.34 I find that the Appellants' claims are objectively well founded and that they face a serious possibility of persecution upon return to Nigeria. The Appellants do not have access to operationally adequate state protection [34] The NDP indicates that those fleeing customary rites, including FGM/C, face discrimination in accessing state protection in Nigeria. In particular, the police may be reluctant to interfere and unwilling to provide protection.35 While FGM/C is criminalized in Nigerian federal law, through the Violence Against Persons Prohibition (VAPP) Act and state legislation, there has been no institutional response to the practice of FGM/C from either the Nigeria police or the Nigerian state; the law is not effectively enforced and FGM/C is considered a private matter.36 Indeed, "until the completion of the legislative process within the 36 Nigerian states, the [VAPP] Act 'is a mere paper document outside the Federal Capital Territory [FCT].'"37 Following the VAPP, the Nigerian government "took no legal action to curb the practice" and beyond public awareness campaigns, "evidence of [the VAPP's] enforcement since it came into force has not yet

emerged."38 Implementation of the VAPP is "uneven" and "[m]ost likely, police will also consider it a family affair and refuse to interfere."39 The most recent NDP indicates that "it remains extremely difficult for women and girls to obtain protection from FGM."40 The "practice of FGM 'continues to thrive' and several thousand girls and women are subjected to the practice despite its illegality."41 [35] While some efforts have been made to address FGM/C, the documentary evidence indicates that these efforts have not translated into state protection at the operational level. I find that the Appellants do not have access to operationally adequate state protection in Nigeria.

CONCLUSION [36] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. (signed) "J. Pollock" J. Pollock March 3, 2020 Date 1 Exhibit P-4, the Appellants' Canadian medical evidence. 2 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 3 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 41-42; Exhibit 7, at p. 144. 4 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 146-154. 5 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 6 Exhibit P-2, Appellants' Record, Appellants' new evidence, at pp. 147-173. 7 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(4). 8 Canada (MCI) v. Singh, 2016 FCA 96; Nteta-Tshamala v. Canada (MCI), 2019 FC 1191, at para. 25. 9 IRPA, at ss. 110(6). 10 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 30; Exhibit P-2, Appellants' Record, Appellants' Memorandum, at paras. 24-26. 11 RPD hearing audio-recording, December 5, 2018, timestamp 02:06:40-02:16:10. 12 Ambrose-Esede v. Canada (MCI), 2018 FC 1241, at para. 9. 13 Canada (MCI) v. Singh, 2016 FCA 96, at para. 54; Marin v. Canada (MCI), 2016 FC 847, at paras. 27-28. 14 Marin v. Canada (MCI), 2016 FC 847, at para. 27; Canada (MCI) v. Desalegn, 2016 FC 12, at para. 23; Ozomba v. Canada (MCI), 2016 FC 1418, at para. 18. 15 Marin v. Canada (MCI), 2016 FC 847, at paras. 27-28; Eshetie v.

Canada (MCI), 2019 FC 1036, at para. 34. 16 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 173. 17 Exhibit P-2, Appellants' Record, Appellants' new evidence, at pp. 147-148, passport copy page is unpaginated. 18 Exhibit P-2, Appellants' Record, Appellants' new evidence, at pp. 147-148, passport copy page is unpaginated. 19 Exhibit RAD-1, Member's Direction; Exhibit RAD-2, National Documentation Package (NDP) for Nigeria (29 November 2019), Item 1.8, Item 1.17; Item 5.9; Item 5.16; Item 7.4; Item 13.1. 20 Exhibit P-4, the Appellants' Canadian medical evidence. 21 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 29, at question 5(j). 22 Adewoyin v. Canada (MCI), 2004 FC 905, at para. 18; Ogaulu v. Canada (MCI), 2019 FC 547, at para. 18. 23 Jamil v. Canada (MCI), 2006 FC 792, at para. 25; Fatih v. Canada (MCI), 2012 FC 857, at para. 65. 24 Valtchev v. Canada (MCI), 2001 FCT 776. at para. 7; X (Re), 2019 CanLII 76820 (CA IRB), at para. 20. 25 RPD hearing audio-recording, December 5, 2018, timestamp 00:54:22-01:07:31. 26 RPD hearing audio-recording, December 5, 2018, timestamp 01:36:17. 27 The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(1)(h) of the IRPA (the Gender Guidelines). 28 X (Re), 2018 CanLII 52123 (CA IRB), Identified by the Chairperson as a Jurisprudential

Guide on July 6, 2018. 29 Henguva v. Canada (MCI), 2013 FC 483, at para. 16. 30 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 5.12. 31 Exhibit RAD-2, NDP for Nigeria (29 November 2019), Item 1.4, at p. 41; Item 5.12, at p. 2; Item 5.28, at p. 11; Item 16.10, at p. 75. 32 Exhibit RAD-2, NDP for Nigeria (29 November 2019), Item 5.34, at paras. 2.4.15, 7.1.1., 7.1.3. 33 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 5.28, at p. 12; Iduozee v. Canada (MCI), 2019 FC 38, at paras. 29-31. 34 Exhibit RAD-2, NDP for Nigeria (29 November 2019), Item 5.16, at para. 2.4.16. 35 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 16.10, at p. 155-156; Item 10.8. 36 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 5.10, at p. 77; Item 5.21; Item 5.28. 37 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 5.21. 38 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 5.28; Item 5.21. 39 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), Item 5.30, at paras. 3.1.2, 8.1.5. 40 Exhibit RAD-2, NDP for Nigeria (29 November 2019), Item 5.12, at p. 6. 41 Exhibit RAD-2, NDP for Nigeria (29 November 2019), Item 5.21, at p. 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: MB9-03474 MB9-03475 / MB9-03476 / MB9-03477 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