TB9-24817

RAD File / Dossier de la SAR : TB9-24817 TB9-24818 / TB9-24819 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 Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 27, 2019 Date de la décision Panel Joel Bousfield Tribunal Counsel for the persons who are the subject of the appeal Stella I Anaele 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 OVERVIEW [1] This is the decision in the appeals of XXXX XXXX XXXX (the 'principal appellant'), XXXX XXXX XXXX, and XXXX XXXX XXXX (the 'minor appellants'). The appellants are citizens of Nigeria from Benin. They appeal the Refugee Protection Division (RPD) decision dated June 11, 2019, rejecting their claims for refugee protection. They are requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that they are Convention refugees or persons in need of protection. In the alternative, they request that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. They have requested to submit new evidence and an oral hearing. DETERMINATION [2] The RAD allows the appeal and sets aside the decision of the RPD. The RAD substitutes the determination that, in its opinion, should have been made, namely that the appellants are Convention refugees, pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA).1 BACKGROUND Basis of Claim [3] The appellants fear female genital mutilation (FGM) and/or other serious harm at the hands of the principal appellant's husband's extended family. The rest of the central allegations in the case are contained in the principal appellant's amended Basis of Claim (BOC) form narrative.2 RPD Decision [4] The RPD rejected the claims because it found the risk of forced FGM not well-founded, and because it found the appellants have a viable internal flight alternative (IFA) in Port Harcourt. ADMISSION OF NEW EVIDENCE [5] The appellants requested that the RAD admit several new items of new evidence - an affidavit of the principal appellant's mother, an affidavit of the principal appellant's friend, and an affidavit of the principal appellant's husband's friend.3 As the RAD has allowed the appeal based on the evidence that was before the RPD, the RAD declines to address the admissibility of this new evidence because this request is moot. The new evidence is therefore not admitted and was not considered in deciding this appeal. ANALYSIS Determinative Issue [6] The determinative issue in this appeal is whether the RPD made objective basis and IFA assessment errors. For the following reasons, the RAD finds that it did. [7] In rendering this decision, the RAD has considered Chairperson's Guideline 44 and Jurisprudential Guide TB7-19851 (the "JG"). The RAD has also done an independent assessment of the record. The RAD is reviewing the RPD decision on a standard of correctness. Objective basis [8] The RPD dismissed the principal appellant's testimony that her husband, who remains in Nigeria and is not on the run, could eventually be pressured by his mother into consenting to the FGM of the minor appellants. The RPD found this testimony to be speculative. The appellants argue that the RPD should not have made this finding. They argue that the RPD overlooked the principal appellant's testimony that he refused to flee with the appellants because of the influence of his mother. The RAD agrees that the RPD made an error here. The RPD had no basis to dismiss this testimony as speculative. Having reviewed the record and assessed it independently, the RAD finds that the principal appellant testified that her husband refused to flee because of his family's influence and, in the absence of any contradiction or implausibility, the RPD was obliged to accept that reason as true. [9] The RPD did not believe that the principal appellant's husband told her that she could be killed by his family if she refused FGM of the minor appellants and to flee Nigeria because he did not provide evidence to support the claims. The appellants argue that the RPD should not have made this finding either. They argue that the RPD ignored the principal appellant's testimony that she had a strained and inconsistent relationship with her husband and that it misconstrued her testimony about financial support in that she indicated he was not supporting them financially in Canada. Having reviewed the record and assessed it independently, the RAD agrees that the appellants are again correct about the evidence here and that the RPD made another assessment error with this finding. [10] Therefore, contrary to the RPD, the RAD finds that there is a serious possibility that the principal appellant's husband will be pressured by his mother into consenting to the FGM of the minor appellants. [11] The RPD went on to find that there was no objective evidence that Nigerian mothers who refuse the FGM of their daughters are violated or killed by the father's family. It also found that there was no evidence in this particular case to indicate that the principal husband's family had threatened her with death because she will not consent to the FGM of the minor appellants. It therefore concluded that the appellants' fears of FGM or death at the hands of the principal appellant's husband's family are not well-founded. [12] The appellants argue that this finding was also wrong. They argue that the RPD ignored the principal appellant's evidence that her mother-in-law would do anything to get her out of the way of the minor appellants' FGM, that her husband's family tried to burn her house down, and that her sister-in-law assaulted her. They also argue that the RPD ignored the country evidence which tends to indicate the well-foundedness of the appellants' FGM fears and only relied upon selected sections of these documents which do not. The RAD agrees with the appellants. There is preponderant credible evidence in the appellants' amended BOC narrative and testimony, and in the country documentary evidence5 to indicate that the appellants have a well-founded fear of FGM and/or serious harm at the hands of the principal appellants' husband's family. The RAD therefore finds that the appellants' fears are objectively well-founded. IFA [13] The RPD found that the appellants do not have a well-founded fear of persecution in Port Harcourt because the appellants did not provide any credible evidence that the principal appellant's husband's family have the resources, willingness, and ability to trace them there. [14] The appellants argue that the RPD should not have made this finding. They argue that the RPD ignored the principal appellant's testimony that her husband will make an abduction report to police if she conceals the whereabouts of the minor appellants in Port Harcourt from him, and that he could disclose their whereabouts in Port Harcourt to his family if she does tell him that they are in Port Harcourt. Having reviewed the record and assessed it independently, the RAD finds that was indeed what the principal appellant indicated, and it therefore agrees with the appellants that the RPD made an error here. The RAD therefore finds that there is a serious possibility that the appellants will be traced to Port Harcourt or anywhere in Nigeria by the agents of persecution either because the appellants tell their whereabouts to the principal appellant's husband or because they are tracked down by police. The RAD therefore finds that the appellants have a well-founded fear of persecution at the hands of the principal appellant's husband's family throughout Nigeria and that they therefore do not have a viable IFA. Credibility [15] The affirmed evidence of refugee claimants is presumed to be true unless it is internally inconsistent, inherently implausible, or inconsistent with the documentary evidence on country conditions.6 Having reviewed the record and assessed it independently including an audio recording of the hearing, the RAD finds no such issues with the appellants' evidence in its independent analysis. While it is true that the RPD stated that the principal appellant was not a credible witness, it provided almost no reasons that would justify such a finding. Furthermore, the central allegations in the case are corroborated by personal documents that the RAD does not have sufficient reason to discount, including a persuasive psychological report7 and an affidavit of the principal appellant's mother.8 The RAD therefore finds that the principal appellant is a credible and trustworthy witness, and that the central allegations in this case are all true, on a balance of probabilities. State protection [16] The principal appellant indicated that she sought police protection but the police did not help her. Moreover, the country documentary evidence9 indicates that Nigerian police are corrupt and untrustworthy. The RAD therefore finds that adequate state protection is not available to the appellants. CONCLUSION [17] The RPD made objective basis and IFA assessment errors which are fatal to the RPD's determination of the claims. [18] After an independent assessment of the evidence in the case, the RAD has arrived at positive conclusions about the appellants' credibility and the central allegations in the case. The RAD also finds that the appellants' fears of persecution are objectively well-founded, that adequate state protection is not available to them, and that they do not have a viable IFA anywhere in Nigeria. [19] The RAD therefore finds that the appellants have a well-founded fear of persecution in Nigeria at the hands of the principal appellant's husband's extended family by reason of being female and/or a child or by reason of their family relationship to the minor appellants. [20] The RAD therefore allows the appeal and sets aside the decision of the RPD. The RAD therefore substitutes the determination that, in its opinion, should have been made, namely that the appellants are Convention refugees, pursuant to section 111(1)(b) of the IRPA. (signed) "Joel Bousfield" Joel Bousfield December 27, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit RPD-1, RPD Record, Exhibit 2, at pp. 54-56. 3 Exhibit P-2, Appellant Record, at pp. 35-41 4 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant section 159(1)(h) of the Immigration and Refugee Protection Act. 5 Exhibit P-2, Appellant Record, Appellant's Memorandum, at p. 21-24, paras 11-15. 6Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.). 7 Exhibit RPD-1, RPD Record, Exhibit 7, at pp.138-142. 8 Exhibit RPD-1, RPD Record, Exhibit 11, at p. 178. 9 Exhibit RPD-1, RPD Record, Exhibit 5, National Documentation Package (NDP) for Nigeria (April 30, 2019), see all items in sections 1, 2, 5, 7, 9, 10, 12, 13 and 16; See also Exhibit RPD-1, RPD Record, Exhibit 6, See all country documentary items, at pp. 159-175. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-24817 TB9-24818 / TB9-24819 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français