TB8-27708

RAD File / Dossier de la SAR : TB8-27708 TB8-27709 / TB8-27710 / TB8-27711 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision March 18, 2019 Date de la décision Panel D. Lewis Tribunal Counsel for the person(s) who is(are) the subject of the appeal N/A Conseil(s) (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 INTRODUCTION AND OVERVIEW [1] XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX (Associate Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Principal Appellant is the mother of the Associate Appellants. She is also the designated representative for Associate Appellants XXXX XXXX XXXX and XXXX XXXX XXXX who are minors. [2] The Principal Appellant alleges that she refused to have her daughter circumcised. She claims that because of this, her in-laws threatened them with violence, orchestrated attempts to kidnap her daughter, and planned to force her daughter to be circumcised and her sons to undergo ritual cleansing. The Principal Appellant claims that the police would not protect her family so she fled Nigeria with her children on XXXX XXXX, 2017. The Appellants arrived in the United States on XXXX XXXX, 2017 and travelled to Canada on XXXX XXXX, 2018. [3] The RPD rejected the Appellants' claims finding they lacked credibility, due to several discrepancies in the evidence which had not been reasonably explained, and that the Appellants had an internal flight alternative (IFA) within Nigeria. The Appellants allege that the RPD erred in its assessment of the Appellants' credibility, and documentary evidence and in determining that the Appellants had a viable IFA. [4] I have conducted an independent analysis of the record and I agree with the RPD findings for the same reasons as those articulated by the RPD. Therefore, I dismiss the appeal and find that the Appellants are neither Convention refugees nor persons in need of protection. DETERMINATION [5] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). ANALYSIS Role of the RAD [6] The RAD reviews RPD decisions on a standard of correctness. In limited circumstances the RPD may have a meaningful advantage over the RAD in assessing evidence that was before the RPD. In those cases the RAD will show deference to the RPD. In this appeal I have applied the correctness standard unless specifically stated otherwise. Merits of the Appeal [7] In conducting my analysis, I have referred to the Chairperson Guidelines 4 - Women Refugee Claimants Fearing Gender-Related Persecution1 (Gender Guideline) and Chairperson Guideline 3 - Child Refugee Claimants: Procedural and Evidentiary Issues2 (Child Refugee Guideline) because these claims involve minors and gender-related violence. The RPD was correct in its assessment of the Appellants' documentary evidence and credibility [8] When an appellant swears that certain facts are true, this creates a presumption before the RAD that they are true unless there is a reason to doubt their truthfulness. Having reviewed the Appellants' documentary evidence, I agree with the RPD finding that there were discrepancies in the evidence which were not reasonably explained and led to negative credibility findings against the Appellants. [9] In her Basis of Claim (BOC)3 narrative, the Principal Appellant states that in XXXX 2017 the Appellants escaped from an attack orchestrated by one of her in-laws, Uncle XXXX XXXX. She alleges that their car was run off the road and surrounded by strange men carrying cutlasses who were suspected to be XXXX members. The Principal Appellant alleges that the men said they wanted her daughter and started banging on the car windows but another car came by and the men ran away. The Principal Appellant alleges that after this attempted kidnapping she fled with her children from Lagos State to Ibadan, Oyo State where they stayed with a friend, XXXX XXXX. [10] However, her documentary evidence contains an affidavit from her husband, XXXX XXXX XXXX, in which he states that after the alleged attack in XXXX 2016, his wife and children went to Lagos State, not Oyo State, to stay with Mr. XXXX XXXX, not Mr. XXXX XXXX.4 When asked about the discrepancies between her BOC and her husband's affidavit during the RPD hearing, the Principal Appellant testified that she did not know why her husband referred to this person as "XXXX" and that she went to XXXX house in Ibadan but he works in Lagos.5 When questioned further as to why her husband stated that she and the children had fled to Lagos, the Principal Appellant stated that she did not know why he wrote that and that XXXX is in Ibadan and he works in Lagos.6 [11] The RPD found that it was unlikely that the Appellant's husband would have made such a mistake since he was supportive of the Appellants, and would not likely have misunderstood the claimant to be in Lagos when she was really in Ibadan, and that this error suggests a strong likelihood that the alleged events in Ibadan did not actually occur. I have reviewed the documentary evidence and the Principal Appellant's testimony and I agree with the RPD's credibility finding for the same reasons. The Principal Appellant submitted an affidavit with the Appellants' Record which contains statements that the above inconsistencies in her documentary evidence were the result of inadvertent and typographical errors. I find that this affidavit is an attempt to bolster her testimony before the RPD and is not admissible because it does not constitute new evidence. [12] In my view if the alleged kidnapping attempt had occurred, and the Appellants had to flee because of this violent incident, it is not likely that the Principal Appellant's husband would have forgotten where his wife and children had fled to for safety. Therefore, I find that on a balance of probabilities, the alleged attack in XXXX 2017 and period of hiding in Ibadan did not occur. I also find that the RPD was correct to make negative inferences about the Principal Appellant's credibility because she was unable to provide reasonable explanations for how the oracle knew that her daughter had not been circumcised when this fact had been concealed from her in-laws, or how her in-laws had been able to track her family to Ibadan where they were allegedly hiding and make another attempt to kidnap her daughter in XXXX 2017.7 The RPD erred by failing to address the affidavit from the Principal Appellant's mother and the Principal Appellant' psychological report [13] I find that the RPD did err by failing to address the affidavit from the Principal Appellant's mother and the Principal Appellant' psychological report in its reasons. I have reviewed the Principal Appellant's mother's affidavit dated September 20, 2018. Her mother states that, on XXXX XXXX, 2018, XXXX XXXX and his thugs came to her home looking for her daughter and her children but that she denied knowing where they were.8 The Principal Appellant's mother also states that according to her son-in-law, his family is still searching for her daughter and her children and she knows that there is nowhere in the country that will be safe.9 In my view the Principal Appellant's mother's affidavit does not provide independent probative evidence that the Principal Appellant's in-laws are continuing to search for her, because her belief that the in-laws are continuing to search for the Appellant is based solely on statements from her son-in-law and there is no evidence that they visited her home in Lagos again between XXXX and XXXX 2018. [14] I have also reviewed the Principal Appellant's psychological report.10 The report was completed by a registered psychotherapist after one 60-90 minute psychodynamic interview. The report states that the Principal Appellant is exhibiting symptoms consistent with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX The psychotherapist states that she believes the Principal Appellant's symptoms are consistent with her reported experience of harassment, threats, violence, fear and trauma she endured in Nigeria.11 The report also states that the psychotherapist does not believe that the Principal Appellant will be able to work through the past events and trauma she has experienced as long as there is an imminent threat of being sent back to Nigeria12 and it is in the best interest of the Principal Appellant and her children to remain in Canada.13 I agree with the RPD that such statements are not appropriate because it is the role of the Board to determine the credibility of an appellant's allegations and the viability of Internal Flight Alternatives (IFA) using the tests prescribed by the IRPA and the courts. The report states that the Principal Appellant is suffering from anxiety and depression and requires counselling and a strong supportive network in order to rebuild a sense of security and self-worth. The report also states that a plan of medical and therapeutic care could be implemented for the Principal Appellant if she were to remain in Canada. The jurisprudential guide on Nigerian IFAs addresses the assessment of psychological reports and the availability of mental health care in the Board's determination of whether or not an IFA is reasonable.14 In this case, as in the case addressed in the jurisprudential guide, there is no indication in the report that the mental health services the Principal Appellant requires, in her personal circumstances, would be unavailable or inaccessible in Nigeria. Therefore, the Principal Appellant has not met the burden to demonstrating that, on a balance of probabilities, returning to Nigeria would be harsh or objectively unreasonable for reasons related to her mental health care. The RPD was correct in finding that the Appellants have a viable IFA [15] The test for assessing whether an appellant has a viable IFA has two prongs:15 (1) on a balance of probabilities there is no serious possibility of the appellant being persecuted in the IFA and/or subject to a risk to life or risk of cruel and unusual treatment or punishment or danger of torture in the IFA; and (2) the conditions in the IFA must be such that it would not be unreasonable in the circumstances, including those particular to the claim, for the appellant to seek refuge there. [16] Both prongs of the above test must be met once a potential IFA has been identified and the burden of proof rests with the appellant to prove that they do not have an IFA. During the RPD hearing, the potential IFAs of Port Harcourt, Abuja and Benin City were identified by the Panel. The jurisprudential guide addressing internal flight alternatives in major cities in Nigeria for claimants feeling non-sate actors16 considers the objective evidence of conditions in the proposed IFAs. [17] The Appellants submitted that they did not have any viable IFA in Nigeria because: the in-laws would be able to locate them anywhere in Nigeria; the Principal Appellant did not have family to rely upon in the proposed IFAs; she was not native to these cities, and she and her children did not speak the languages there and would not be able to go to school in the IFAs; she and her husband would not be able to find work or housing in these cities; and returning to Nigeria could result in mental illness for the Principal Appellant. [18] With regard to the first prong of the test, the RPD found that the Appellants did not have documentary evidence to support their allegations that they would be at risk of persecution or harm in the identified IFAs, other than the Appellants' evidence that they had to flee to Ibadan and had been located there by their in-laws, which had been found by the RPD not to be credible.17 [19] With regard to the second prong of the test, the RPD found that given the objective documentation concerning the multicultural demographics of the IFAs and the Principal Appellant's and her husband's history of employment, the Appellants had not established that the conditions in the IFA were such that it would not be unreasonable, in the circumstances, for the Appellants to seek refuge there.18 [20] The Appellants allege that the RPD Panel's IFA finding was not reasonable because the Principal Appellant and her husband went to the police on several occasions but were turned away because the police advised them that it was a family matter, and because there is national documentation indicating that state protection from forced female genital mutilation (FGM) in Nigeria is inadequate. The Appellants also claim that the RPD erred because it failed to consider the Principal Appellant's psychological report and the affidavit from the Principal Appellant's mother which described how the agent of persecution continued to harass her by bringing thugs to her house in search of her daughter. Finally, the Appellants argue that it would be difficult for the Appellants to move to Port Harcourt, Abuja or Benin City because the Principal Appellant has a limited education and would face language barriers in any of these cities because she only speaks Yoruba and all of these cities predominantly speak another language. [21] Concerning the adequacy of state protection against FGM in Nigeria, I am mindful of the guidelines on gender and child refugee claimants and the particular vulnerability of these groups. There is some objective evidence that the Nigerian police may hesitate to intervene in cases concerning FGM.19 However, the Appellants have not provided corroborating evidence to establish that their alleged attempts to obtain assistance from the Nigerian police were unsuccessful. Several states have legislated against FGM, banning or criminalizing it including Rivers, where Port Harcourt is located; and parents may refuse to have their daughters undergo FGM as the practice is condemned by the Nigerian government.20 In addition, the Appellants have not established that their in-laws are motivated to harm them and capable of locating them in the IFAs. Therefore, I find that the Appellants have not demonstrated, on a balance of probabilities, that they would be unable to obtain state protection and would face a serious possibility of persecution should their in-laws seek to harm them in the identified IFAs. [22] Based on the discussion above, I find that the psychological report does not, on a balance of probabilities, establish that the proposed IFAs would not be viable because of mental health care concerns. Finally, I find that the Appellants have not provided evidence to establish, on a balance of probabilities, that it would be unreasonable for them to seek refuge in the identified IFAs due to language, education or employment concerns. The Appellants speak Yoruba and English; the Principal Appellant has a high school level education and was self-employed in Nigeria for many years while her husband was employed as a civil servant. I have reviewed the evidence and the Appellants' submissions and find that the RPD's analysis of these factors21 was in keeping with the approach laid out in the jurisprudential guide regarding the availability and reasonableness of IFAs in Nigeria.22 For these reasons I agree with the RPD's IFA analysis and find that the Appellants have viable IFAs in Port Harcourt, Abuja, and Benin City. CONCLUSION [23] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) D. Lewis Member March 18, 2019 Date 1 Chairperson Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, March 9, 1993 updated November 1996. 2 Chairperson Guideline 3 - Child Refugee Claimants: Procedural and Evidentiary Issues, September 1996. 3 RPD-1, RPD Record, Exhibit 2. 4 RPD-1, RPD Record pages 311-313 at paragraph 14. 5 P-2, Appellant's Record, page 105, Transcript of October 10, 218 RPD Hearing. 6 Ibid. at page 106. 7 Ibid. at page 100. 8 RPD-1, RPD Record at page 317 paragraphs 10-11. 9 Ibid. at paragraph 12. 10 RPD-1, RPD Record at page 335-338. 11 Ibid. at page 334. 12 Ibid. at page 337. 13 Ibid. at page 338. 14 X (Re), 2018 CanLII 52123 (CA IRB), TB7-19851 jurisdprudential guide for Nigerian IFAs. 15 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 16 Supra note 14. 17 RPD-1, RPD Record, RPD reasons at paragraphs 13-15. 18 Ibid. at paragraph 12. 19 RPD-1, RPD Record, Exhibit 3, Nigeria National Documentation Package, version 10 July 2018, document 10.8 Availability and effectiveness of state and police response in both urban and rural areas of southern Nigeria, for people who refuse to participate in ritual practices (2014-October 2016), source: IRB Response to Information request, date of document: 14 November 2016. 20 Ibid., document 5.12, Whether parents can refuse female genital mutilation for their daughters; protection available to the child, source: IRB Response to Information request, date of document: 21 November 2012. 21 RPD-1, RPD Record, RPD Reasons at paragraphs7-16. 22 Supra note 14 at paragraph 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27708 TB8-27709 / TB8-27710 / TB8-27711 RAD.25.02 (September 18, 2018) Disponible en français 10 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 (September 18, 2018) Disponible en français