VC0-01626

RAD File / Dossier de la SAR : VC0-01626 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 21, 2021 Date de la décision Panel Soraya Farha Tribunal Counsel for the person who is the subject of the appeal Raj Sharma Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kwanghee Kang Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, the Minister of Immigration Refugees and Citizenship (the Minister) appeals a decision of the Refugee Protection Division (RPD) dated February 13, 2020, accepting the claim of XXXX XXXX XXXX, the Respondent. The Appellant argues that the RPD erred in finding the Respondent to be a Convention refugee. [2] The determinative issues in this appeal are whether the RPD erred in its credibility findings, in finding that the Respondent's refugee claim has a nexus to the Convention, and in its finding that there is no internal flight alternative (IFA). I have conducted an independent assessment. For reasons that follow, I find that the Respondent is a Convention refugee pursuant to s. 96 of the Act. The appeal is dismissed. BACKGROUND [3] The Respondent's claim is based on the following. [4] The Respondent is a Christian woman. She was married to a Muslim man, XXXX, who died in 2003. The Respondent had two daughters with XXXX. [5] XXXX had other wives and children, including a stepson, XXXX. According to the Respondent, they were envious of her and resented the fact that XXXX had married a Christian woman. XXXX detested her because he believed the Respondent had influenced XXXX to disown and disinherit him. After XXXX death, the husband's family accused the Respondent of poisoning him to death so she could get to his money. To prove her innocence, his family made the Respondent drink the water that was used to clean his body. When she did not die from drinking the water as they expected her to, they made her undergo female genital mutilation (FGM). [6] In his Will, XXXX left the majority of his substantial assets to the Respondent and their daughters. This included cash, shares and a residential property in Lagos. The Respondent states that XXXX disowned and disinherited XXXX, because he was a member of an organized criminal syndicate with affiliations with a radical religious group. [7] After many years, the Will had still not been executed, with the family making efforts to block its finalization. At a family meeting in 2016, the Respondent told the family that she would take legal action if the Will was not finalized. She was dragged out of the house. She began to receive threatening phone calls, including threatening her with death if she went to the police. [8] In XXXX 2016, the Respondent came to Canada to visit her daughter who was pregnant, and stayed for over 2 years to help with her grandchild. [9] The Respondent returned to Lagos in XXXX 2018. She was hopeful that the situation with the family would be better with the passage of time. However, on XXXX XXXX, 2018, she received a threatening phone call from a male whose voice she could not identify. She fled to Abuja with her daughter, where she continued to receive threatening phone calls. [10] In XXXX 2019, while in Abuja, her daughter drove her to a business meeting and dropped her off. En route, they noticed they were being followed and altered their route. When the Respondent left the meeting, a dog approached and bit her on the leg, for which she received medical treatment. A passerby said that he saw a man whom he did not recognize from the neighbourhood, who was wearing XXXX clothing, let the dog off the leash when the Respondent came out of the building, whereupon the dog bit the Respondent. He saw the man call the dog back, and they left in a car. The Respondent believes the man with the dog was the same person as the man in the car who followed them since they were both wearing white, and that the family arranged for the dog attack to happen. The Respondent's daughter went to the police to report the incident. Despite paying the bribe demanded by the police, no investigation was undertaken, nor a report filed. [11] The Respondent remained in Abuja until the end of XXXX, when she returned to Lagos for the funeral of a relative of her husband. In XXXX 2019, the family held a meeting at which XXXX was present. They raised the issue of the Will. The Respondent accused them of threatening her with the dog. The situation escalated and the Respondent told them she would relinquish her rights to her husband's property so that they would leave her alone. They continued to threaten her and threw bottles at her. After fleeing the meeting, she and her daughter initially went to Abuja, but she felt the family would pursue her there, so she went to Benin City. [12] In Benin City she stayed alone in a house she owns, which she bought 30 years ago out of her business earnings. During the night, XXXX came to the house with some other men. They had guns and axes, and threatened her. She fled to a neighbour's house. Her daughter took her to a village to hide for a few days, until she traveled to Canada to seek protection. THE RPD FINDINGS [13] The RPD found that the Respondent's evidence was credible, that she was a Convention refugee based on her nexus to the Convention ground of religion, and that there was no viable IFA. THE APPEAL Appellant Minister's Arguments [14] The Minister submits in its memorandum that the RPD erred in finding that the Respondent had established her core allegation of persecution, has a nexus to the Convention ground of religion, and that there is no viable IFA. The Minister has not contested the RPD's finding that the presumption of state protection has been rebutted in this case. Respondent Memorandum [15] The Respondent submitted a memorandum arguing that the RPD decision is correct and that the Minister's appeal should be dismissed. The Appellant has not replied to the Respondent's submissions. New Evidence and Oral Hearing [16] By Written Statement filed with the Appeal Record, the Appellant confirmed that the Minister would not be relying on any new documentary evidence referred to in s. 110(6) of the Immigration and Refugee Protection Act (IRPA/"the Act") and will not be requesting an oral hearing. The Respondent has not asked me to consider any new evidence in this case under s.110(4) of the Act, and there is no need for me to consider conducting an oral hearing under s.110(6) of the Act. ANALYSIS [17] The RAD reviews decisions of the RPD on a standard of correctness, after conducting an independent assessment of the evidence before it.1 The exception to this rule, where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard and may attract a standard of review of reasonableness, does not apply in this case. [18] In making my independent assessment, I considered the evidence, and the submissions of the Appellant and the Respondent. Further, I have reviewed the transcript and listened to the audio recording of the hearing. I have also considered and applied the Chairperson's Guideline 4 on proceedings involving Women refugee claimants fearing gender-based persecution. 2 The RPD Did Not Err in Finding That The Respondent Established Her Core Allegations [19] The Appellant argues that the RPD erred in finding the Respondent has a subjective fear of persecution that is also objectively well founded and forward-looking. The Appellant contends that the issue between the Respondent and her husband's family was not persecution but an inheritance dispute that she was content to deal with through the courts, and that her evidence as to the hostility of the family was likely an embellishment. As such, the Appellant submits, the RPD erred in finding that the Respondent faced more than a mere possibility of persecution from her husband's family and she was not in fact fearful of them. [20] In support of its submissions, the Appellant cites the Respondent's statement in testimony that the family asked for her opinion on the Will which the Appellant characterizes as an inconsistency, that name calling, and bottle throwing is not evidence of persecutory actions, and that the Respondent returned to her home in Benin City after the XXXX 2019 meeting, which is inconsistent with her alleged fear of persecution. [21] For reasons that follow, I find that the RPD did not err in finding that the Respondent established her core allegations and I agree with its findings. The Appellant's theory about the underlying issue being an inheritance dispute does not reflect the totality of the Respondent's evidence. I acknowledge that there are mixed motivations in this claim in that the persecutors likely were after the Respondent for the property and other assets bequeathed to her by her husband. However, I find that the evidence demonstrates that her husband's family also treated her severely because of her religion. [22] The Respondent's testimony was consistent with the information in her Basis of Claim (BOC) narrative. The Respondent's daughter XXXX XXXX testified from Abuja by telephone and provided a written narrative. Her evidence corroborates the Respondent's claims. [23] The Respondent provided additional documentary evidence which corroborates her narrative and testimony, including a letter from her Church which supports she is a Christian, a copy of XXXX Will, a letter from her legal counsel in Nigeria regarding the property dispute with her husband's family, XXXX death certificate, and the birth certificate of her daughter demonstrating that her father XXXX, was Muslim. [24] I find the Respondent's testimony regarding the resentment of her husband's family that he married a Christian and raised his daughters as Christian to be credible. The Respondent testified convincingly that the family was angry when they discovered a Bible amongst XXXX belongings following his death and accused her of trying to convert him. I accept the Respondent's testimony as to the ritual events that occurred following XXXX death which she stated she was forced to undergo to prove her innocence. Her evidence, that she agreed to these rituals to establish her innocence because she feared for the safety of her children, is credible. There is support in the National Documentation Package (NDP) for Nigeria that widows are sometimes subjected to rituals like these following the death of their husbands.3 [25] The Appellant submitted that since the Respondent threatened legal action to enforce her rights under the Will, she was not being persecuted by the family but rather was willing to wait out the delays in the Nigerian legal system and was "happy to wait" for the resolution of the Will. This theory is not supported by the evidence that the family would not execute the Will, challenged the Respondent's entitlement to the Lagos house, and spent the deceased's money thus dwindling down his assets, and I do not accept it. The Respondent stated that she was happy to wait for the execution of the Will during the period of time between XXXX death and the 2016 meeting, because she and her children were not being harmed. She testified that by 2016, she was regaining her confidence and decided to pursue the finalization of the Will. Her explanation as to why she was willing to wait is reasonable as there was no immediate harm during that interval. [26] The Respondent testified credibly about the meeting in 2016. The Respondent testified that her insistence on her rights under the Will and particularly her ownership of the house in Lagos, resulted in her being thrown out of the house. She testified that she received threatening calls after that meeting, which included death threats. The Respondent stated that the threatening calls resumed when she returned to Nigeria in 2018. [27] The Respondent's testimony and that of her daughter, as to how the XXXX 2019 meeting in Lagos unfolded following a family funeral, were consistent. I do not agree with the Appellant's submission that the Respondent's attendance at the funeral in XXXX 2019 indicates that she likely accepted an invitation from the family, thus demonstrating that she lacked subjective fear, or that the family did not intend to harm her. The Respondent testified spontaneously that although a majority of the family treated her poorly, this particular deceased family member had treated her well, and she wanted to attend her funeral. [28] The Appellant contends that the Respondent contradicted herself in testifying that at this meeting she was asked by the family what she wanted to do about the Will. The Respondent's testimony must be considered in the context within which it was given. The Respondent stated that the family brought the Will with them to the funeral, and said they were going to take everything and sell it. They warned her she should not speak. Initially she maintained her position, insisting she is entitled to keep the house where she lives, for herself and her daughter. The family told her she was "rubbish" and had killed XXXX. She testified that during the course of this meeting, she decided to tell them they could take the house, and that she just wanted them to leave her alone. That is the context in which she testified that she said "well, how do I feel about the Will"? I do not find that this is an inconsistency that undermines the Respondent's credibility. Her evidence is consistent that to this juncture, it was the family, not her, that had refused to execute the Will. There is no evidence that it was the Respondent's choice not to execute the Will. Further, the letter from the Respondent's lawyer dated XXXX XXXX XXXX 2020, confirms that the Will had not been executed because of the husband's family, and because XXXX, whom the Respondent stated was disowned and disinherited by XXXX, had contested the validity of the Will. The letter supports the Respondent's contention that the family accused her of manipulating XXXX to render a Will that was favourable to her. [29] I agree with the RPD that there is insufficient evidence to link the dog attack to the family. However, I find it credible that the Respondent's accusation that the family had arranged for the dog attack triggered an angry response from the family. While bottle throwing on its own might be characterized as frightening but not persecutory conduct, this was followed by XXXX attendance at her home on XXXX XXXX, 2019, armed and accompanied by other men, which was the culminating incident that caused the Respondent to flee to a village, and days later, to Canada. The Respondent's account of the events of that evening is supported by an Affidavit from her neighbour, dated XXXX XXXX, 2019. [30] The Appellant contends that since the Respondent decided to stay at her house in Benin City after the XXXX 2019 meeting, she lacked subjective fear. In the circumstances, I do not find that this decision belies a lack of fear. I first note that this decision was made before XXXX attendance at the house, the event which led to her flight from Nigeria. She explained her decision to go there spontaneously in her testimony, stating that she and her daughter initially went back to Abuja, but she felt unsafe there, believing the family would track her down there. She testified the Benin City house is her own home, a place she did not believe the family has any interest in, and that her son XXXX, lives there.4 The Appellant submits that the Respondent was hesitant to state that her son lives in the house, and the fact that he does undercuts her contention that XXXX poses an ongoing threat. I have listened to the audio tape and do not agree with the Appellant's characterization of the testimony nor, as discussed below, with the inference drawn. The Respondent stated that a family lives in the house and without hesitancy clarified that it is her son and his family who live there. [31] In summary, I find that the Respondent's testimony was credible. There were no material inconsistencies or omissions that would rebut the presumption of the truthfulness of the Respondent's evidence. I agree with the RPD that the Respondent has made out her core allegations of persecution. There Is a Nexus to Religion, and to Membership in a Particular Social Group [32] The core of the Minister's submission on nexus is that the RPD misinterpreted the objective evidence respecting the water drinking ritual and inheritance rights, in support of its finding that there was a nexus between the alleged persecution and religion.5 The Minister notes that Item 5.11 in the NDP for Nigeria states the ritual cannot be seen as a general practice in Nigeria, it is not possible to determine which ethnic group is most likely to perpetuate it, and that "[u]ltimately, poverty is what makes people greedy for land and property, and is also the reason a widow may be at risk of being chased off and deprived of her inheritance." 6 The Minister submits that this practice is an ethnic one, not Islamic, and is primarily motivated by greed for land and property. [33] The Appellant contends further that the RPD decision amounts to a finding, in the absence of objective evidence to support it, that Islamic practices are responsible for depriving Christian women of land tenure and that this is what happened in the Respondent's case. The Appellant begins by examining the objective evidence, and then concludes that the Respondent could not have suffered religious persecution, because the objective evidence does not support that what the Respondent alleges happened to her is a Muslim practice. Following this line of reasoning, the Appellant submits that the RPD incorrectly concluded that unsubstantiated Islamic practices were responsible for the Respondent's persecution. The Appellant also submits that in her testimony, the Respondent's daughter did not mention religious differences as a possible reason for problems with the family. I do not find this to be an inconsistency or omission, as religious differences are highlighted in her daughter's letter. 7 [34] In finding that there is a nexus to religion, I have considered the evidence as to the treatment that the Respondent was subjected to, and then assessed if there is objective evidence to support the persecutory practices. According to the evidence, the family, resentful of the Respondent's influence on XXXX as a Christian woman, and his preferential treatment of her and her Christian daughters in his Will, subjected her to widowhood rituals, a refusal to execute the Will in order to deny her property rights, and to ongoing threats. With regard to XXXX specifically, the evidence is that he resented the Respondent, a Christian woman, as he blamed her for XXXX disinheriting and disowning him. The NDP evidence indicates that the imposition of ritual practices and denial of a widow's inheritance rights is grounded in customary practices and is common in Nigeria. While these phenomena are not tied to Islam, there is no evidence to demonstrate that Muslim individuals do not engage in these practices. As observed above, there are mixed motivations in this claim, one that does not have a nexus (an inheritance dispute) and one that does (persecution on account of the Respondent's religion.) I find that the evidence in this case demonstrates on a balance of probabilities that the agents of harm, who are Muslim, were motivated to persecute the Respondent on account of her Christian religion and did so through the means described in her evidence. [35] Further, I find that there is an alternative nexus to the Convention ground of a particular social group, arising from the Respondent's status as a widow. The evidence is that the Respondent had a contented marriage and good life with XXXX. The Respondent's daughter describes that while her father was alive, he was a "shield" for her, her mother and sister. The problems with his family began when XXXX died, leaving the Respondent a widow. The water ritual, the FGM, the contestation of the Will, the threats, and XXXX pursuit of the Respondent, stem from the death of XXXX which rendered the Respondent a widow. [36] The Convention ground of particular social group was specifically raised by the Respondent before the RPD. The RPD did not make an explicit finding that there is a nexus to particular social group, however, the RPD reasons make specific reference to the prevalence of gender-based persecution in Nigeria, particularly vis a vis widows, and the lack of state protection for women, from violence and discrimination in the public and private spheres. The RPD reasons make clear that the Respondent's gender and status as a widow are key elements of the persecution she alleges and the RPD explicitly references the objective evidence regarding the treatment of widows at paragraphs 12 and 14. The Appellant implicitly acknowledges that gender based persecution was relevant to this claim in its Memorandum, for example at paragraph 52, where the Minister references the NDP information on the status of widows from the Director of Widows for Peace Through Democracy. [37] There is ample objective evidence in the NDP of the kind of persecution of widows as experienced by the Respondent in this case, including ritualistic practices and denial of inheritance and property rights. 8 THERE IS NO VIABLE IFA [38] There are two prongs to the legal test for a viable IFA. First, it must be determined that in the IFA location, there is no serious possibility of persecution or, on a balance of probabilities, no risk under s. 97(1) harm. Second, it must not be unreasonable in all the circumstances, including those personal to the claimant, to relocate there. The standard is high and requires proof of adverse conditions that would jeopardize the life and safety of the claimant in travelling to and living in the IFA location. Both prongs must be satisfied for a finding that there is an IFA.9 [39] The RPD identified Ibadan and Port Harcourt as potential IFAs. The onus then shifted to the Respondent to establish she does not have a viable IFA. The RPD found that the Respondent would not have a viable IFA because the agent of harm and specifically XXXX, has an ongoing motivation to find the Respondent. As such, the RPD concluded that the first prong of the test had not been met. [40] The Appellant argues that the RPD's analysis is flawed, that the agent of persecution has neither the means nor the motivation to locate the Respondent in the IFA, that the RAD should follow RAD decision TB7-1985110 and should increase the number of IFA locations, and that an IFA location would be reasonable for the Respondent. The Respondent argues that the RPD correctly found that the agent of persecution has the motivation to locate her in an IFA, that the RPD's analysis is correct, and that RAD decision TB7-19851 is not binding on the RAD. [41] I find that the RPD was correct to conclude that there is a serious possibility that the Respondent would be located and harmed by the agent of persecution in an IFA and I agree with its conclusion. [42] XXXX, who was disowned by XXXX on account of his criminal activity according to the evidence, arrived with armed accomplices to the Respondent's home in Benin City. He has demonstrated an ongoing interest and motivation in finding the Respondent. The uncontradicted evidence is that XXXX tracked down the Respondent's daughter and threatened that he would deal with the Respondent when he found her. In other words, XXXX means to locate the Respondent is through her daughter, and son. [43] While the Respondent's daughter testified that XXXX call prompted her to change her phone number, there is no evidence to support the Appellant's contention that the change in phone number means that any concern has been "resolved." It is speculation on the Appellant's part to state that XXXX would no longer be able to reach, or is no longer interested in reaching, the Respondent through her daughter, because her daughter changed her phone number. [44] The Appellant submits in essence that XXXX does not pose a serious threat because he knows where the Respondent's son lives and has not threatened him, or the Respondent's daughter, in person. The Appellant also submits that in assessing the forward-looking risk to the Respondent, the RPD erred by failing to take into account that her son lives in the Benin City house "without issue." [45] I am not persuaded by these submissions. XXXX direct target is the Respondent, not her daughter or son, so the fact that he has not targeted either of them personally does not obviate the concern that he would try to reach the Respondent through them. There is no requirement to demonstrate that a threat must be made in person in order for it to be considered a serious threat. XXXX has already demonstrated that he will try to reach the Respondent through her daughter, by phone. Further, XXXX knows where her son lives. I find that there is a serious possibility that he might go to the Benin City house to try to reach the Respondent through her son. [46] There is no evidence that XXXX has lost interest in the Respondent and no longer wishes to harm her. If the Respondent were to relocate to Nigeria, there is a serious possibility based on his previous threat that XXXX would again contact the Respondent's daughter, or her son, to try to get to the Respondent. In considering the Respondent's relocation to a proposed IFA, it is not reasonable to expect her family members to place their own lives in danger by either denying knowledge of her whereabouts or deliberately misleading XXXX. Moreover, it is not reasonable for the Respondent to be required to relocate to a proposed IFA on the basis that she would be forced to hide from family members and cut off communications. 11 [47] In conclusion, I find that the Respondent has established that XXXX has the means and motivation to find the Respondent. [48] Having concluded, based on its analysis under the first prong of the test, that an IFA is not viable, the RPD did not address the viability of the IFAs under the second prong of the test. I find that the RPD correctly concluded that the Respondent faces a serious possibility of persecution in the IFA locations and agree with its determination. Given that the first prong of the IFA test is not met, there is no need for me to address the Appellant's submission that the RPD ought to have considered Lagos, Abuja, and Kano as potential IFAs. Further, in light of my finding on the first prong, I do not need to address the second prong of the test and I will not address the arguments related to it. [49] Finally, the Appellant has not challenged the RPD's findings with respect to lack of state protection. After conducting my own assessment and reviewing the record, I also conclude that state protection would not be available to the Respondent. CONCLUSION [50] The Respondent is a Convention refugee because she has a well-founded fear of religious and gender-related persecution in Nigeria. There is no state protection or internal flight alternative available to her. [51] I dismiss the appeal under s.111(1)(a) of the IRPA and confirm the decision of the RPD that the Respondent is a Convention refugee. (signed) Soraya Farha Soraya Farha April 21, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII) [2016] 4 FCR 157. 2 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Immigration and Refugee Board of Canada (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. 3 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria, November 29, 2019, Item 5.11. Response to Information Request (RIR), IRB of Canada, November 1, 2018. NGA106184.FE. The 29 November 2019 version of the National Documentation Package (NDP) was relied on in the RPD's Decision, and my references are to this version. I note, however, that I have also considered the current version of the NDP for Nigeria (16 April 2021) in assessing forward-looking risk in accordance with the Board's Policy on National Documentation Packages in Refugee Determination Proceedings, June 5, 2019 (https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx), at s. 5(II). None of the NDP documents referred to in the RPD decision or herein were removed or altered in the current version. 4 The Respondent's testimony is that she had two daughters with XXXX. While this was not canvassed at the hearing, I note that XXXX has a different surname than the Respondent and her daughters and infer that XXXX is not his father. 5 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria, November 29, 2019, Item 5.11. Response to Information Request (RIR), IRB of Canada, November 1, 2018. NGA106184.FE.; NDP for Nigeria, April 16, 2021, Item 5.11, RIR, NGA106184.FE. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria, November 29, 2019, Item 5.11. Response to Information Request (RIR), IRB of Canada, November 1, 2018. NGA106184.FE.; NDP for Nigeria, April 16, 2021, Item 5.11, RIR, NGA106184.FE. 7 Exhibit RPD-1, RPD Record, Exhibit 4, Narrative of Titilola Asuni, pp. 77-80. 8 Ibid., Exhibit 3, National Documentation Package for Nigeria, November 29, 2019, Item 5.11. Response to Information Request (RIR), IRB of Canada, November 1, 2018. NGA106184.FE and item 2.1; NDP for Nigeria, April 16, 2021, Item 2.11. Nigeria. Country Reports on Human Rights Practices for 2020. March 30, 2021. 9Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1. F.C. 706 (C.A.). 10 Jurisprudential Guide - Decision TB7-19851, Guide identified by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date July 6, 2018, Revoked April 6, 2020. 11 A.B. v. Canada (Citizenship and Immigration), 2021 FC 90. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-01626 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