TB9-30082

RAD File / Dossier de la SAR : TB9-30082 TB9-30083 / TB9-30084 / TB9-30085 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 18, 2020 Date de la décision Panel Christopher Marcinkiewicz Tribunal Counsel for the persons who are the subject of the appeal Marvin M Moses 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] The Appellants, XXXX XXXX XXXX (Principal Appellant) and her three minor daughters, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, appeal a decision of the Refugee Protection Division (RPD), dated October 9, 2019, rejecting their claims for refugee protection. The Appellants ask that the Refugee Appeal Division (RAD) substitute a decision that they are Convention refugees or person in need of protection or refer the matter back to the RPD for redetermination.1 Mrs. XXXX is the designated representative for her minor daughters. I have considered the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and Child Refugee Claimants.2 DETERMINATION [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),3 I am setting aside the decision of the RPD and substituting it with my own decision. Specifically, on the evidence before me, I find that the Appellants are Convention refugees. BACKGROUND [3] The Appellants fear returning to Nigeria due to the Principal Appellant's refusal to allow her three minor daughters to undergo female genital mutilation (FGM) procedures. The Principal Appellant's husband initially opposed the procedures on his daughters but after pressures from his own family, he gave in and agreed to the procedures and tried to assure the Principal Appellant it would be done safely. However, the Principal Appellant, having experienced FGM herself, continued to oppose and while on a family vacation in the USA, decided to take her children and fled to Canada. Her husband returned to Nigeria and continues to seek the return of his children to undergo FGM. The Principal Appellant fears retribution and kidnapping from her husband and his family for taking their daughters and preventing FGM rituals. The Principal Appellant does not wish to reconcile with her husband. ROLE OF RAD [4] My role is to look at all the evidence and decide if the RPD made the correct decision. Where I determine that the RPD had a meaningful advantage in assessing the credibility of the Appellant's oral evidence, I am to defer to the RPD findings. Having listened to the audio recording of the RPD hearing and reviewing the evidence, I find that the RPD did not benefit from any meaningful advantage in assessing the Appellant's evidence in this case. NEW EVIDENCE New Evidence Consisting of Exhibits A to E - December 20, 2019 [5] In order to admit new evidence pursuant to s. 110(4) of IRPA, I must be satisfied that the new evidence arose after the RPD decision, or that it was either not reasonably available or the Appellant could not have been reasonably expected, in the circumstances, to present the evidence at the time of the RPD decision.4 If the new evidence passes this initial step, I am then required to consider the factors set out in Raza5 and adopted in Singh6. These factors include the credibility, relevance, and newness of the evidence. [6] The Appellant requests five new pieces of evidence be admitted for this appeal. With one exception, the Appellants' argument for the admission of new evidence is general, only that the documents were not reasonably available at the time of the RPD rejection of their claims.7 The Appellants fail to explain why they were not available as it is their duty to do so. [7] For example, the Appellants wish to enter as new evidence two United Nations High Commissioner for Refugees (UNHCR) reports from 2003 and 2009 but fails to explain why they were not previously available to the Appellants as they concern dated (but not necessarily irrelevant) concepts for Internal Flight Alternative (IFA) analysis and FGM in Nigeria, both issues identified as relevant before the RPD.8 Additionally, two United Kingdom Home Office reports, dated January 2015 and August 2019, pre-date the RPD hearing and decision, yet the Appellants fail to explain why these documents were not reasonably available or unable to be presented to the RPD given they concern FGM and IFA. As a result, I find the Appellants have not met the first step under s. 110(4) of IRPA for admission of this evidence. [8] As mentioned, the one exception in my view is the financial documents related to the Principal Appellant's husband's employment and financial resources. The Principal Appellant affirms, despite the documents dating back to 2001 and 2006, that she only recently found these documents on a computer she shared with her husband.9 In my view, this evidence was not reasonably available to her despite perhaps unknowingly being in her possession, as I do not think it is reasonable for her to know everything that is on a jointly shared computer nor could she have foreseen that her husband's influence and resources to track her, and her inability to provide "further details about how he would be able to do that",10 would be viewed adversely by the RPD. Having passed the initial s.110(4) step, I also find this piece of evidence to be new as it provides a picture of her husband's financial resources, credible as it is issued by a bank, and relevant for the reasons mentioned above. As such, I admit this new evidence. Rule 29 Application - New Evidence and Submissions - August 17 & 25, 2020 [9] By way of a letter dated June 15, 2020, the RAD invited further submissions from the Appellants in light of ongoing Covid-19 pandemic.11 On August 17, 2020, the Appellants submitted new evidence consisting of an affidavit from her bother, a medical report concerning her mother, and an article relating to Nigeria's response to the Covid-19 pandemic, along with submissions. On August 25, 2020, the Appellants sought admission of amended submissions.12 [10] In deciding whether to allow late evidence and submissions, I am required to consider any relevant factors as per RAD Rule 29, including the relevance and probative value of the document, any new evidence it brings to the appeal, and whether the Appellant could have provided the document with the appeal record with reasonable effort. [11] I note all the evidence post-dates the RPD decision. Further, I agree with the Principal Appellant that the evidence from her brother and her mother's medical record are relevant and have probative value as they refer to the Principal Appellant's husband's on-going efforts to pressure her remaining family in Nigeria to in turn pressure the Principal Appellant to return with her daughters and the negative health implications this has had on the Principal Appellant's elderly mother. Similarly, the evidence relating to Covid-19 in Nigeria is also relevant as it may impact the IFA analysis and post dates the RPD decision. As such, I admit this late evidence and the accompanying submissions. [12] I also admit the amended submissions received August 25, 2020, as they simply correct and clarify some errors in the August 17, 2020 submissions. This only assists the Appellants in presenting their appeal and assists me in the decision-making process. REQUEST FOR AN ORAL HEARING [13] The Appellants request an oral hearing if there are credibility concerns related to the Appellants' allegation.13 For the reasons that follow, I generally accept the claim as credible. As such, there is no basis for holding an oral hearing. ANALYSIS [14] The RPD made few adverse credibility finding in respect to the Appellants' allegation and found they had a viable IFA. The RPD determined there were numerous viable IFAs for the Appellants "in Ibidan or Port Harcourt or Akure, or any other part of South and Central Nigeria".14 [15] The Appellants argue that the RPD made numerous errors in its analysis and findings. Specifically, the Appellants allege the RPD erred in the following areas: by considering general areas in the south and central regions of Nigeria, that the husband's family is not motivated to seek out the Appellants, disregarding evidence from the Principal Appellant regarding the husband's ability to track the Appellants and his influence and ties to the police, fails to analyze the particular facts of this case as it concerns relocation for a woman with three kids, failing to consider the prevalence of FGM in the southern regions of Nigeria where the proposed IFAs are located, that relocation may subject the Appellants to violence, failing to assess state protection, and failing to consider the corroborating evidence.15 [16] Having conducted an independent analysis of the record and decision, with respect, in my view the RPD erred in several areas in coming to a finding that the Appellants would be safe in the proposed IFA cities. For the reasons that follow, I find the Appellants have established that they would not be safe anywhere in Nigeria unless they lived in hiding as the agents of persecution have demonstrated their motivation and resources to find the Appellants and forcibly carry out FGM on the minor Appellants. The Determinative Issue is IFA [17] While the RPD made several adverse credibility findings against the Appellants, the determinative issue was the availability of IFA.16 The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam:17 (1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for him to seek refuge there. [18] Both prongs must be satisfied to find that the Appellants have an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellants to show that they do not have an IFA. An IFA must be a realistic and attainable option.18 As found above, in my view the Appellants have established that they are not safe anywhere in Nigeria, including the stated IFAs. RPD Erred in Respect to the 1st Prong of IFA Analysis [19] The RPD appears to make two adverse credibility findings that relate to the first prong of IFA analysis. Specifically, when considering the "means and motivation" of the Principal Appellant's husband, the RPD finds that because the husband went to her family's home when he knew the Appellants were in Canada, that he is not truly motivated to find them, presumably because he knew they were not there. Additionally, when considering the "means" the husband has to search and track the Appellants, the RPD appears to draw a negative inference from the Principal Appellant's inability to explain "how he would be able to do that, aside from allegations that he is very influential and has family ties with the police".19 Agents of Persecution Have the Motivation and Means [20] The Appellants argue that the RPD erred by misconstruing the Principal Appellant's evidence of why her husband went to her family member's home when he knew the Appellants were in Canada. It is argued that the reason for the visit was to pressure the family members to in turn pressure the Principal Appellant to return to Nigeria with the children.20 [21] Having independently assessed the record, I agree with the Appellants that the RPD erred in its treatment of this evidence. I note in the Principal Appellant's amended Basis of Claim narrative, she explains that her husband led a "delegation" to her family's home in August 2019 to "pressure them to ask me to return home with my daughters for the circumcision".21 As a result, I find the RPD erred by concluding that the Principal Appellant's husband must not be motivated to find her since he went to her family's home when he knew she was in Canada with the children. I therefore do not draw any negative inference from this evidence in respect to the Principal Appellant's credibility. [22] Further, I find this evidence clearly points to the husband and his family's motivation to find the Appellants and perform FGM on the minor Appellants. Additionally, I now have new evidence before me from the Principal Appellant's brother explaining of a similar occurrence as recently as June 2020 in which the Principal Appellant's husband blamed and threatened her family for the Appellants not returning to Nigeria and threatening to put the Principal Appellant through "hell".22 This incident apparently led to the Principal Appellant's mother having to be hospitalized as she fainted,23 and while not before the RPD, indicates that the motivation remains high for the agents of harm to find the Appellants. [23] Now, the Appellants also argues that the RPD erred in finding the Principal Appellant failed to provide further evidence of how her husband would be able to track her as she alleged he is influential with family ties to the police. The Appellants argue that corroborating evidence is not required and should not be used to negatively impact the Appellants' credibility. [24] Having independently reviewed the record, I agree with the Appellants that the RPD erred in its treatment of this evidence. It is trite law that sworn testimony is presumed to be true unless there are valid reasons to doubt it. In this case, as pointed out by the RPD, the Principal Appellant testified about the husband's connections through his family and the police. As noted by the Appellants, corroborative evidence is not always required, and I find no reason to doubt the Principal Appellant's testimony on this point. [25] Additionally, I have been presented with new evidence that speaks to the Principal Appellant's husband's finances and they indicate he has earned a considerable amount and is of significant financial means.24 When compared to the available documentary evidence in the National Documentation Package (NDP), his monthly net pay would be about 800,000 Naira (or approximately $3100 USD), which is significant in a country where the per capita GDP is only $6,100 USD.25 In my view, one's access to financial resources allows them to search and obtain assistance in trying to locate their family members, and when combined with the Principal Appellant's stated influence and connections to the police, I find this is strong evidence of the husband's means to locate the Appellants. [26] Taking cumulatively, all of this evidence reveals that the agents of persecution have very recently displayed their ongoing motivation to seek out and return the Appellants to Nigeria in order to carry out FGM on the minor Appellants and also have the means, including access to financial resources, to locate the Appellants within Nigeria. Relocation as A Single Woman with 3 School Aged Children [27] The RDP refers broadly to the NDP and finds that "internal relocation is generally a realistic option for women who are similarly situated to the claimant".26 The RPD does not point to any specific evidence to support this point. [28] The Appellants argue that this is a generalization and it is unclear what evidence is being referenced. Further, it is argued that the RPD failed to individualize the analysis and consider the specific circumstances of the Appellants. [29] I agree with the Appellants. It is unclear to me what specific piece or pieces of evidence the RPD relies on for this finding. Having independently assessed the evidence, especially in light of the Principal Appellant being a single woman with three minor children, I do not find she could safely relocate and establish herself in the proposed IFA cities or in southern Nigeria generally. Firstly, I note the objective evidence indicates that FGM is practiced most in the southern part of Nigeria, with prevalence rates above 65% for adult women.27 This is significant as the alleged persecution is based on FGM and the Principal Appellant's refusal to subject her daughters to the procedure and moving to another area of the country where the practice is still prevalent raises safety concerns as it appears to be relatively common and likely not discouraged enough to prevent the agents of harm from engaging in the practice or for the authorities to intervene. [30] However, secondly, in my respectful view the minor Appellants being of school age plays a significant role in potentially exposing the Appellants location in Nigeria. For example, the Principal Appellant testified that in order to enroll her daughters in school, she would require a note from her husband.28 This alone could reasonably expose the Appellants' location in Nigeria. Furthermore, the minor Appellants apparently still speak occasionally with their father and it is possible that they disclose, inadvertently or otherwise, their location in Nigeria. [31] For all the above stated reasons, I find that the Appellants have provided credible evidence and established that they do face a serious possibility of persecution throughout Nigeria given the motivation and means of the agents of harm. As a result, I find that the first prong of the IFA analysis has been rebutted by the Appellants and no viable IFAs exist in Nigeria. Given this finding, I will not consider the findings made under the second prong of IFA analysis as the IFA test is conjunctive and determinative as both the first and second prongs need to be satisfied. No State Protection for the Appellants in Nigeria [32] The objective documentary evidence indicates that there are essentially no successful prosecutions of those who engage in FGM, despite national legislation banning the practice several years ago.29 The Violence Against Persons Prohibition (VAPP) is not enforced and many individuals, including local police, do not know or have a good understanding of the legislation, with still a lot of work being undertaken by NGOs to educate the public and law enforcement officials against the practice of FGM as it is largely viewed as a family customary or traditional issue which the police do not wish to get involved in.30 Police can not be counted on for protection and the objective evidence indicates that corruption is endemic in the police, the criminal justice system, and all levels of government.31 [33] In my view, it is reasonable to find that individuals with bad intentions, with connections and financial resources, can buy information and services from government officials in order to find or track information on people they are seeking throughout the country. As a result, I do not believe the Appellants are safe anywhere in Nigeria and that they can be protected by the police. Fear of FGM Established [34] Finally, the documentary evidence indicates that when both parents oppose FGM it typically does not occur.32 However, this is not the situation here as the minor Appellants' father is seeking to have them undergo FGM. Further, the same source indicates that family members other than parents may also be involved in the decision to undertake FGM, as is the case here given the husband's family involvement and pressure to have the minor Appellants undergo FGM. [35] In summary, I find that the Appellants have established a serious possibility of persecution. They have established that the minor Appellants would be subjected to FGM at the hands of their father and his family, and the Principal Appellant would face a serious possibility of persecution due to her refusal to present her daughters for the procedure. CONCLUSION [36] The RAD, pursuant to paragraph 111(1)(b) of the IRPA, sets aside the decision of the RPD and substitutes a decision that the Appellants are Convention refugees. (signed) "Christopher Marcinkiewicz" Christopher Marcinkiewicz December 18, 2020 Date 1 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 79, Part IV. 2 The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the IRPA; The Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the IRPA. 3 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 111(1)(b). 4 Immigration and Refugee Protection Act, para. 110(4). 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 6 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Exhibit P-2, Appellants' Record, Appellants' Written Statement, p. 59, para. 1 8 RPD Recording at [00:07:00-00:09:00]. 9 Exhibit P-2, Appellants' Record, Principal Appellant's Affidavit, p. 58, para. 11. 10 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 18. 11 Exhibit P-3, Appellants' Further Written Submissions, dated August 17, 2020. 12 Exhibit P-4, Amended Submissions/Rule 29 Application dated August 25, 2020. 13 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 60, para. 2. 14 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 13. 15 Exhibit P-2, Appellants' Record, Appellants' Memorandum, pp. 30-48. 16 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 8. 17 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 18 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. 19 Exhibit RPD-1, RPD Record, Reasons and Decision, paras. 18, 16-17. 20 Exhibit P-2, Appellants' Record, Appellants' Memorandum, pp. 69-70. 21 Exhibit RPD-1, RPD Record, Exhibit 12, p. 59. 22 Exhibit P-3, Appellants' Further Written Submissions, dated August 17, 2020, pp. 4-5. 23 Exhibit P-3, Appellants' Further Written Submissions, dated August 17, 2020, p. 7. 24 Exhibit P-2, Appellants' Record, New Evidence, pp. 14-23. 25 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (20 August 2019), Item 1.6., p. 13, 10. 26 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 18. 27 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (20 August 2019), Item 5.28, p. 2. 28 RPD Recording at [00:35:00-00:36:00]. 29 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (20 August 2019), Item 5.12. Whether parents can refuse female genital mutilation (FGM) of their daughter, state protection available (2016-October 2018). 29 October 2018. 30 Ibid. 31 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (20 August 2019), Item 2.1., pp. 13-17, 30. 32 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (20 August 2019), Item 5.12. Whether parents can refuse female genital mutilation (FGM) of their daughter, state protection available (2016-October 2018). 29 October 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-30082 TB9-30083 / TB9-30084 / TB9-30085 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