TB9-21694

RAD File / Dossier de la SAR : TB9-21694 TB9-21695 / TB9-21696 / TB9-21697 TB9-21698 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 XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision October 23, 2019 Date de la décision Panel Susan Brown Tribunal Counsel for the persons who are the subject of the appeal Henry Igbinoba 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 Appellant XXXX XXXX XXXX (Principal Appellant), his spouse XXXX XXXX XXXX, and their minor children XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX (Associate Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD), dated July 29, 2019, rejecting their claims for refugee protection. The Principal Appellant is the designated representative of his minor children. The Appellants are seeking protection from their family members and the Iraokhor community who want to spiritually cleanse the Principal Appellant and circumcise the female minor Appellants. The RPD found that the Appellants have viable internal flight alternatives (IFAs) in Port Harcourt and Abuja. The Appellants argue that the RPD erred and submit new evidence under section 110(4) the Immigration and Refugee Protection Act (IRPA) some of which was accepted. Following my independent review I dismiss the appeal and confirm the decision of the RPD that the Appellants have viable IFAs in Port Harcourt or Abuja. BACKGROUND [2] According to their Basis of Claim Forms (BOCs),1 the Appellants were born in 1985, 1986, 2011, 2012 and 2014. [3] The Appellants lived in Benin City where the Principal Appellant ran his own XXXX XXXX XXXX XXXX XXXX and the adult female Appellant worked as a XXXX. After the births of the minor female Appellants in 2011 and 2014, kinsmen of the Principal Appellant from the Iraokhor community sent messages and emissaries to bring them to the village for circumcision. The Principal Appellant refused. When the demands intensified, the Principal Appellant begged his father to dissuade the kinsmen which he did. [4] When the Principal Appellant's father died on XXXX XXXX, 2016, a meeting was called by his uncles who said that the Chief Priest of the village shrine told them that the gods had killed his father because he shielded his granddaughters from being circumcised. They demanded that the Principal Appellant undergo spiritual cleansing and that his daughters be circumcised. The Principal Appellant and his siblings successfully appealed to bury their father first. [5] After the XXXX XXXX, 2017 burial, three of the Principal Appellant's kinsmen and two shrine guards kept watch over the Appellants. They escaped with the help of a friend of the Principal Appellant's father who opposed female genital mutilation (FGM). The Appellants returned to Benin City where the Principal Appellant was found and attacked by his kinsmen on XXXX XXXX, 2017. The Principal Appellant went to the hospital for treatment and reported the incident to the police who declined to help saying that it was a family matter. The kinsmen attempted another attack on XXXX XXXX, 2017, but were denied entrance by the security men. The Principal Appellant made another police report and got the same response. [6] Fearful, the Appellants relocated to Lagos in XXXX 2018 and stayed with the Principal Appellant's brother-in-law. In the third week of XXXX, they were discovered in Lagos and five members of the Iraokhor Community Union came to the brother-in-law's house, made threats and tried to enter but were restrained by the security men. The Principal Appellant and his brother-in-law reported the incident to the police who promised to investigate, but no arrest was made. [7] The Appellants moved to a hotel on XXXX XXXX, 2018. Using visas for the United States obtained in XXXX 2017 for a vacation, the Appellants left Lagos on XXXX XXXX, 2018. Afraid to make a refugee claim in the United States due to the anti-immigrant policies of the current administration, the Appellants crossed into Canada on March 25, 2018. [8] The Appellants' claims were received on April 25, 2018, and amended on June 2 and July 3, 2019. The Minister of Immigration, Refugees and Citizenship's notice of intention to intervene and exhibits were received on February 25, 2019. The Minister's representative did not attend the hearing on July 12, 2019. The RPD gave its decision on July 29, 2019. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] Section 110(4) of the IRPA provides that an appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In Singh2 the Federal Court of Appeal dictates a narrow interpretation of section 110(4): the conditions set out therein must be met, and there is no room for discretion on the part of the RAD. If the section 110(4) threshold is met, then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.3 [10] In the index to the Appellants' Record, the Appellants list "New Evidence" at pages 16-87 of the record. In the body of the record, the new evidence is identified as: "a. Newspaper articles and Travel Advisory showing the harsh socio-economic conditions prevalent in Nigeria. B. Affidavit evidence showing that the agents of persecution are seeking the Appellants in Abuja."4 [11] I have reviewed and identified the new documents as follows: A. Affidavit of XXXX XXXX XXXX XXXX sworn August 28, 2019,5 and driver's licence, national identity card and staff identity card of the affiant;6 B. Government of Canada travel advisories and advice on Nigeria last updated August 15, 2019, still valid August 22, 2019;7 C. Central Intelligence Agency, The World Factbook, last updated May 13, 2019;8 D. Dele Sobowale, Do 80% of Nigerians lack safe drinking water? It's worse than that, June 22, 2018;9 E. Timothy Obiezu, Millions in Nigeria Lack Access to Clean Water, March 1, 2019;10 F. Kayode Fasua, Nigeria and its homeless citizens, October 25, 2018;11 G. https://tradingeconomcs.com, Nigeria Youth Unemployment Rate, May 18, 2019;12 H. Dominique Mosbergen, HuffPost US, Nigeria's Water Bill Could Criminalize Drinking Water For Millions, March 17, 2017;13 I. Lexa W. Lee, Leaf Group, Quality of Roads in Nigeria, USA Today, May 18, 2019;14 J. Unnamed author, Young and unemployed in Nigeria, Al Jazeera, February 16, 2019;15 [12] The RAD Rules16 are very clear that the Appellants' memorandum must include full and detailed submissions regarding how any new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellants.17 The Appellants admit that new documents C to J predate the RPD decision on July 29, 2019, and submit that they are providing this evidence now because the RPD found that "conditions in Nigeria are not as bad as the Appellants' [sic] alleged (despite the glaring evidence contained in the National Documentation Package in Nigeria). Because there was reasonably sufficient evidence on the record, that Appellants could not have been reasonably expected to anticipate disbelief on the part of the panel."18 Since the RPD made no such finding, I find that the Appellants have not met the requirement to provide full and detailed submissions. I find that the new documents C to J do not pass the section 110(4) threshold and are not admissible as new evidence. New document A [13] With respect to new document A, the Appellants argue that it meets the criteria to be accepted as new evidence because: "(a) it postdates the negative decision of the RPD; (b) as sworn testimony, it is from a credible source who witnessed the events firsthand; and (c) it is relevant to the Appellants' claim as it proves that the agents of persecution are relentless and have the means, and motivation to locate anyone they desire within Nigeria."19 [14] The affidavit of XXXX XXXX XXXX XXXX was sworn August 28, 2019, and refers to events which occurred in Nigeria on XXXX XXXX, 2019. I find that the new document A passes the temporal threshold of section 110(4) and I must now determine it meets the jurisprudential requirement of credibility, relevance and newness. [15] Following my review of the objective evidence, I find that new document A is not credible on its face for the following reasons: the affidavit is sworn before the Customary Court of Appeal whose jurisdiction is the appeal of civil matters involving customary law which is not consistent with the subject matter of the affidavit;20 the affidavit does not comply with the requirements of Article 117(1)(b) of the Evidence Act which provides that deponents are required to state their full name, trade, profession and nationality21 because the affiant did not state his nationality and gives an initial so did not state his full name; the affiant should have been issued a receipt as the affidavit was done in a court but receipt was not presented as evidence;22 although reference to a receipt is made on the face of the affidavit, the objective evidence indicates that this is the practice of notary publics, while the affidavit is purportedly sworn by Commissioner for Oaths of the Customary Court of Appeal;23 for court-issued affidavits every court has its own rubber or plastic seal, and the Commissioner for Oaths will affix the seal of the court to the affidavit and sign his name at the bottom of the affidavit,24 but this affidavit does not have the court seal-just a seal saying "Commissioner For Oaths F.C.T. Abuja"; the name of the Commissioner For Oaths is not printed; and fraudulent affidavits are widely available.25 [16] I also find it implausible that a friend of the Principal Appellant's brother would receive a visit out of the blue from members of the Iraokhor Progressive Union looking for the Principal Appellant the day before the RPD rendered its decision. The link between the affiant and the Principal Appellant is tenuous. The affiant says that the Principal Appellant's brother once met an Iraokhor Progressive Union member who was a neighbour of the affiant and who subsequently moved away while visiting the affiant at an unspecified time. No explanation is given for what prompted the XXXX XXXX, 2019 visit nor is the timing of the visit, just days before the RPD rendered its decision, explained. I also note that the Principal Appellant refers to the Iraokhor Community Union in his BOC, but new document A refers to the Iraokhor Progressive Union. [17] For all of these reasons I find, on a balance of probabilities, that new document A is not an authentic document and not admissible as new evidence. New document B [18] The Government of Canada travel advisories and advice on Nigeria last updated August 15, 2019, still valid August 22, 2019, meets the threshold requirement of section 110(4) and is credible, relevant and new. I find that new document B is admissible as new evidence. SCOPE OF THE RAD REVIEW [19] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts deference.26 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [20] The RPD identified IFA as the determinative issue and found that the Appellants have a viable IFA in Abuja or Port Harcourt. [21] The Appellants submit that the RPD erred when it: drew unreasonable conclusions in its assessment of the claims and/or ignored relevant evidence; and found Port Harcourt, Abuja, Laos and Benin City to be viable IFAs. [22] The Appellants state that the RPD "did not doubt the Appellants' testimony or documentary evidence. In this regard, the Appellants are deemed to be credible with respect to their allegations. Therefore their testimony should not require corroboration."27 This statement is not true. The RPD devoted 11 paragraphs of its decision to the assessment of the credibility of the Appellants and the Minister's intervention and written submissions. The RPD concluded that the Appellants' evidence in and about their applications for visitors' visas to Canada in 2016 (prior to their alleged persecution) was not credible because two applications were refused, not one application which was withdrawn as the Appellants alleged in their BOC. The RPD did not, however, base its decision on its credibility finding but on the availability of viable IFAs. [23] Following my own review of the record, the testimony of the adult Appellants, the arguments of the Appellants, and applying the framework of assessment outlined in the IFA Jurisprudential Guide,28 I find, for the reasons outlined below, that the RPD did not err in its finding that Abuja or Port Harcourt is a viable IFA for the Appellants. Preamble: IFA in Nigeria [24] Pursuant to section 159(1) (h) of the IRPA, the Chairperson of the Immigration and Refugee Board has identified a RAD decision29 (IFA Jurisprudential Guide) as a jurisprudential guide which addresses internal flight alternatives in major cities in south and central Nigeria for claimants fleeing non-state actors. This preamble is adapted from the IFA Jurisprudential Guide and sets out a framework for assessment of IFA in Nigeria, generally, and specifically in south and central Nigeria where Abuja and Port Harcourt are located. The Federal Court has recently found that this IFA Jurisprudential Guide does not unlawfully fetter Board members' discretion or improperly encroach upon their adjudicative independence because it repeatedly refers to the need for each case to be adjudicated on the basis of its particular facts.30 The IFA Jurisprudential Guide is only a guide and is not binding. [25] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam:31 (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.32 [26] Both prongs must be satisfied to find that an appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with an appellant to show that they do not have an IFA. The finding of an IFA must be based on a distinct evaluation of the region for that purpose, taking into account the appellant's personal circumstances. An IFA must be a realistic and attainable option. The appellant cannot be required to encounter great physical danger or undergo undue hardship in travelling there and staying there. [27] IFA in Nigeria is often considered by the RPD and RAD. After reviewing the relevant country documentation and jurisprudence, internal relocation in Nigeria is generally considered to be viable for refugee claimants and appellants fearing non-state actors. This framework applies to many types of claims from Nigeria where the stated fear is of non-state agents. The Federal Court has recently upheld determinative findings of viable IFAs in Nigeria in cases where the alleged fear is related to allegations of, for example, witchcraft,33 female genital mutilation (or the refusal to submit one's child to such mutilation),34 forced participation in rituals,35 Boko Haram, threats of domestic violence at the hands of a former partner, Fulani herdsmen, and kidnappers.36 [28] The UK Home Office Country Information and Guidance report for Nigeria states that where the person's fear is of persecution or serious harm at the hands of non-state agents, "relocation to another area of Nigeria is likely to be generally viable depending on the nature of the threat from non-state agents and individual circumstances of the person, and as long as it would not be unduly harsh to expect them to do so."37 [29] In addition, the UK Home Office Country Information and Guidance report for women fearing gender-based harm or violence in Nigeria states, "In general, it will not be unduly harsh for a woman to internally relocate to escape localized threats from members of their family or other non-state actors, especially if single and without children to support, but the individual circumstances of each case will need to be taken into account."38 [30] The documentation indicates that there are several very large, multilingual, multiethnic cities in south and central Nigeria, such as Lagos (population 13.123 million), Kano (3.587 million), Ibadan (3.16 million), the capital of Abuja (2.44 million), Port Harcourt (2.343 million), and Benin City (1.496 million),39 where persons fleeing non-state actors may be able to safely establish themselves, depending on their own particular circumstances. [31] While an analysis of whether a particular appellant faces a serious possibility of persecution in the proposed IFA under the first prong of the Rasaratnam test is necessarily fact-specific, as a general principle, Canadian courts have held that large urban areas cannot be assumed to be an IFA by virtue of their population size alone,40 and that the distance between the proposed IFA and the location of the persecutors does not in itself serve to establish that the proposed IFA is viable.41 That said, the IFA need not be far away from where the appellant has previously lived: the concept of an IFA does not require that the safe haven be in another city or province than the place of origin so long as it is truly an area in which the appellant can seek refuge from the persecution experienced in their home district.42 Ultimately, the question of whether an appellant has shown, on a balance of probabilities, that they face a serious possibility of persecution in the proposed IFA will turn on their evidence, keeping in mind the general principles above. [32] In respect of analyzing the reasonableness of a proposed IFA, a general framework for analyzing reasonableness in the large urban centres in the south of Nigeria which are commonly referenced as potential IFAs could be useful, which of course would still require the necessary consideration of any particular appellant's specific circumstances and allegations, as discussed below. As a starting point, the Federal Court of Appeal has held that there is: ...a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations. The Court has reiterated the importance of not lowering that threshold.43 [33] There are a range of issues that inform the analysis of reasonableness of a proposed IFA with respect to any particular appellant, the most common and prominent of which include: transportation and travel, language, education and employment, accommodation, religion, indigeneship status, and the availability of medical and mental healthcare. In addition, the Gender Guideline44 specifically instructs that decision-makers should "take into account facts including religious, economic and cultural factors, and consider whether and how these factors affect women in the IFA." Each factor is reviewed below as it relates generally to Nigeria, before applying the factors to an appellant's specific circumstances in the proposed IFA. [34] Transportation and travel: In analyzing the viability of a proposed IFA, consideration must be given to the Gender Guideline,45 which states in part: "in determining the reasonableness of a woman's recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship." Nigeria is a large country with an area of over 900,000 square kilometres in 36 states and a population of over 170 million. Nigerians have the right to reside in any part of the country.46 The documentary evidence shows that all main centres are linked by road; in addition, many of the large urban centres boast international airports,47 which mitigate in favour of viability of the proposed IFA in terms of transit and travel for a given appellant without facing undue hardship. [35] Language: English is the official language in Nigeria, and a large percentage of the population speak Hausa, Yoruba, Igbo (Ibo), and Fulani in the major centres, in addition to over 500 indigenous languages.48 The documents note that in public administration, English is the generally accepted language of federal agencies, both in correspondence and in oral communications, because of the wide variety of languages in the country.49 Fluency in one or more of these languages will mitigate against a finding of unreasonableness due to a language barrier in an IFA where an appellant speaks English or the regional languages of Hausa, Yoruba, Igbo (Ibo), and/or Fulani, as appropriate. [36] Education and employment: While the documentary evidence notes that women face considerable economic discrimination in Nigeria, it also notes that women who are educated and who have a higher social status are more likely to gain employment, and that ethnicity is less of a factor for obtaining work in the South than it is in the North.50 It is worth noting that the total years of education completed on average for Nigerian men is nine years, whereas for women it is eight years.51 Thus, where an appellant has achieved post-secondary education or has meaningful work experience, they may be in a better position than the average Nigerian in terms of securing employment, where such opportunities exist. [37] Accommodation: The documentary evidence indicates that rent can be steep in locations like Ibadan, Port Harcourt and Lagos where the cost of living is high, increasing the challenges for female-headed households without male support to obtain housing.52 The personal circumstances of any particular appellant may make accommodation more or less viable, for instance, where they are able to access support of immediate or extended family or other social networks in or near the IFA who are sympathetic to the appellant's situation, as established by the evidence in any particular case. Access to accommodation is but one factor of several for decision-makers to consider in assessing the reasonableness of a proposed IFA in light of an appellant's individual circumstances. The burden remains on the appellant to demonstrate that the proposed IFA is unreasonable or unduly harsh in their particular case. [38] Religion: The documents indicate that across Nigeria "approximately 50 percent of the population is Muslim and 50 percent Christian," and that they reside in approximately equal numbers in central and southwestern Nigeria.53 Indeed, another source notes that "Muslims and Christians 'live everywhere across the country...'" and that when it comes to the issue of relocation of Christians from the North to large cities such as Port Harcourt in the South, "language and culture would be more important than religion."54 Therefore, when an appellant holds a meaningful affiliation to one of these religions, access to places of worship and other people who share their religious values may weigh in favour of an IFA in that it provides an avenue to establish or develop a social structure tied to the appellant's religious beliefs. [39] Indigeneship: Although the evidence is mixed, it is clear that due to significant migration to large, urban cities, indigeneship is not a significant barrier to relocation in these cities. Objective evidence provides information on this point, which states: ...indigeneship status is less important in big cities such as Lagos, Abuja, and Port Harcourt than it is in other places, in terms of access to public jobs or ownership of land, because the indigene population in these areas has been "overwhelmed" by migrants to the cities. He explained, for example, that the establishment of the Federal Capital Territory pushed the indigenes of Abuja further from the "centre of influence." However, he also indicated that indigenous ethnic groups continue to dominate the market for land in Lagos, and that indigenes of the Niger Delta, including in Port Harcourt, have been demanding a greater allocation of jobs in the region's oil industry. Non-indigenes also face discrimination in the field of politics. Nevertheless, the Professor stated that, in other industries, they can generally find work where there is a demand for it.55 [citations omitted] [40] Notably, the source indicated that in other industries, there is a general ability to find work so long as there is demand, without ethnicity or indigeneship hindering this aspect of integration. Therefore, the burden is on an appellant to show that any discrimination that could be faced in Nigeria's large cities in the south on the basis of their ethnicity or non-indigeneship would rise to the level that it would render the proposed IFAs to be unreasonable or unduly harsh. [41] Availability of medical and mental health care: Where an appellant advances an argument about the availability of medical and mental health care, due attention will have to be given to whether availability and access to such care would render the proposed IFA unreasonable or unduly harsh in the appellant's particular circumstances. Documents in the National Documentation Package indicate that citizens must pay for services such as healthcare and education, although access to such services can be "difficult for all," in the sense that the difficulty may be affording healthcare and education.56 These difficulties appear to affect all Nigerians, and again, the burden is on the appellant to show that such considerations in their case would rise to a level that would render the proposed IFA objectively unreasonable or unduly harsh in their particular circumstances. [42] It is settled law that the concept of an IFA is an inherent part of the Convention refugee definition because a claimant must be a refugee from a country, not from a particular region of a country.57 Thus, the existence of an IFA is fatal to any refugee claim.58 First prong of the IFA test: no serious possibility of persecution in the proposed IFA [43] The RPD complied with the procedural requirements to raise an IFA before or during the hearing. IFAs in Abuja and Port Harcourt were identified at the outset of the RPD hearing on July 12, 2019.59 [44] The RPD correctly identified the two-prong IFA test.60 [45] When the RPD asked the Principal Appellant whether the Appellants could relocate to another part of Nigeria, specifically Abuja or Port Harcourt, he testified that the Appellants would not be safe there and that members of the Iraokhor community would find them in the IFAs because they found him in both Benin City and Lagos and they would have to live in hiding.61 [46] The RPD also considered: documentary evidence presented by the Appellants on FGM62 and police inefficiency;63 recent decisions of the Federal Court upholding determinative findings of viable IFAs in Port Harcourt and Abuja64 on similar-fact situations; and corroborative evidence in the form of letters and affidavits from family members.65 [47] The RPD found that the Appellants did not establish by "any reliable evidence that there is good reason to conclude that the kinsmen of Iraokhor are able on their own, or with the assistance of any state or government authority, such as the police, to locate the Appellants in Abuja or Port Harcourt."66 The RPD concluded that there was no serious possibility of persecution of the Appellants in the proposed IFAs of Abuja or Port Harcourt. [48] The Appellants submit that the RPD erred "gravely in law" by failing "to give adequate reasons for finding that the Appellants' danger had not been established by 'reliable' evidence" and the RPD "did not assess any evidence - whether objective or subjective, whether documentary or through oral testimony...did not display his reasoning in any intelligible or transparent manner."67 The Appellants cite the following evidence to support their argument: - The Appellants' testimony shows that the agents of persecution have the means and motivation and merely lack the opportunity to harm the Appellants as they have done in the past; - Evidence that the Principal Appellant was injured and that his brother was attacked; - After the Appellants moved to Lagos, they were still identified by members of their community who leaked information to their agents of persecution; - The Appellants' testimony that one of the agents of persecution, XXXX XXXX (the Principal Appellant's uncle) is a retired police officer who still has links within the police and possesses the skills, connections and motivation to locate the Appellants anywhere in Nigeria; - Objective evidence that the corruption is pervasive in Nigeria and the Nigerian government possesses the ability to mine data, track user activity on social media and in cybercafes, so it is only too possible for agents of persecution to obtain access through bribery and to locate the Appellants; - New evidence that the Principal Appellant's brother's friend in Abuja was visited by members of the Iraokhor progressive union who were looking for the Principal Appellant; - The Appellants' persecutors should be classified as state actors rendering the IFA Jurisprudential Guide inapplicable. [49] As detailed above the Principal Appellant testified that his agents of persecution would find him in the IFAs.68 The fact that the Principal Appellant believes that the Appellants could be found does not make it so and does not discharge their burden to show with credible and trustworthy evidence that they would face more than a mere possibility of persecution in the proposed IFAs, Port Harcourt or Abuja.69 [50] I have reviewed the corroborative evidence presented to support the alleged attacks on the Principal Appellant and his brother by the agents of persecution. The medical certificate that the Principal Appellant presented dated XXXX XXXX, 201970 is not contemporaneous with the alleged attack as it was produced two years later. It is not independent corroboration of the attack as it cites the Principal Appellant as the source of information about the injuries and it does not identify his assailants: "[h]e was said to have attacked by some people."71 The attack on the Principal Appellant's brother XXXXis referenced in the affidavit of the Principal Appellant's brother: "XXXXwas given a severe beaten [sic] of his life and was injured in several parts of his body. He is lucky to be alive." The evidence is second hand and neither the identity of the attackers nor the reason for the attack is clear in the affidavit, so it is not independent corroboration. For these reasons I do not find that the medical certificate or the evidence about the attack on XXXX independently corroborates attacks at the hands of his agents of persecution. [51] After the Appellants moved to Lagos, the affidavit of the Principal Appellant's brother-in-law reports several attacks, with the attackers identified only as "some men" and the Principal Appellant's "family." The affiant states that he and the Principal Appellant reported the XXXX 2018 attack to the police and made a "formal complaint about what transpired. The police ensured to investigate the matter further but surprisingly no arrest was made following all the useful information we gave out."72 The affiant also reported the attack of XXXX XXXX, 2018 to the police. The Appellants did not present evidence to independently corroborate the two visits to the police and the lodging of a formal complaint which, according to the NDP, is available from the Nigerian police.73 [52] The Appellants' testimony that one of the agents of persecution, XXXX XXXX (the Principal Appellant's uncle) is a retired police officer74 who still has links within the police and possesses the skills, connections and motivation to locate the Appellants anywhere in Nigeria is not corroborated by any evidence. When asked by the RPD, the Principal Appellant testified that he did not have any evidence that XXXX XXXXwas a retired police officer.75 None of the support letters and affidavits reference that XXXX XXXXis a retired police officer. The only reference to XXXX XXXXis in the affidavit of the Principal Appellant's brother XXXX which says that he "is locally connected to some high places and known as a very wicked and diabolic man."76 This statement only refers to local connections and does not corroborate the Appellants' claim that XXXX XXXXhas the connections with the police or could locate the Appellants anywhere is Nigeria. I also note that there is no reference to the Iraokhor community or the XXXX family clan in the objective evidence.77 [53] The Appellants argue that the Nigerian government possesses the ability to mine data and track user activity on social media and in cybercafes but does not cite any authority other than objective evidence about internet and cell phone usage in Nigeria.78 Following my own review, I found objective evidence on the central registry for SIM cards in Nigeria which reports that "information of mobile telephone subscribers registered in the central database can only be provided to security agencies and that the request must be made in writing by an 'official of the requesting Security Agency who is not below the rank of an Assistant Commissioner of Police or a coordinate rank of any other Security Agency.'"79 There is no information about parties illegally tapping into the SIM card data and, although the Appellants made allegations about their persecutors' connections to police, they did not present any evidence about them generally or specifically that they were at the necessary level to access SIM information. For the same reason, I do not accept the Appellants' argument that their agents of persecution should be considered state actors. [54] I note that the objective evidence reports the following information about FGM in Nigeria: * The prevalence of FGM may depend on one's ethnic background, prevalence of FGM in the extended family and the parents' education;80 * In Nigeria, parents appear to have the ability to refuse FGM;81 * According to some sources, a parent's consent is important for any ritual on a child in Lagos;82 * The sources give no indication of risk of kidnapping and forced FGM, where the parents are not consensual;83 * The performing of FGM depends on the educational level and economic status of the family, with better education and more affluent families more resistant to the practice;84 * A person who is the parent of a minor child who is opposed to them undergoing FGM within communities that practise it may face discrimination and ostracism for going against cultural or family traditions.85 [55] The documentary evidence does not indicate a practice of taking children by force to perform FGM in Nigeria over the objections of their parents. Following my own review of the objective evidence, I found a single unsubstantiated reference in a study conducted in four Nigerian states, Delta, Ekiti, Imo and Kaduna which reported a case in which a maternal grandmother allegedly took her granddaughter to be cut against the mother's wishes.86 I find that the objective evidence does not support the Appellants' claims that the Principal Appellant's family and community will circumcise the minor female Appellants by force in the face of the strong opposition of the adult Appellants. [56] With respect to the first prong of the IFA test, following my assessment of the RPD findings, the arguments of the Appellants and my own review, I find that the Appellants did not demonstrate, on a balance of probabilities, that they would face more than a mere possibility of being persecuted in Abuja or Port Harcourt. Second prong of the IFA test: it is not objectively unreasonable or unduly harsh for the Appellant to relocate to the proposed IFA [57] The issue is whether it would be reasonable, in all the Appellants' circumstances, for them to relocate to Abuja or Port Harcourt. As detailed below, I have considered the record, the findings of the RPD, the arguments of the Appellants and undertaken an assessment consistent with the framework set out in the IFA Jurisprudential Guide to conclude that it would not be unduly harsh or objectively unreasonable for the Appellants to relocate to Abuja or Port Harcourt. [58] The Principal Appellant testified that there are no job opportunities and a high rate of unemployment in Nigeria and contacts and ethnicity are more important than qualifications in getting a job. He also said that he could not re-establish his business in the IFAs for the same reasons and because he used all his capital to come to Canada and he could not give his children a good life in Nigeria.87 The female adult Appellant testified that the agents of persecution would find them in the IFAs and she would live in fear.88 [59] Transportation and travel: I find that the Appellants would be able to travel safely to Abuja or Port Harcourt and stay there without facing undue hardship. Abuja and Port Harcourt are major urban areas of Nigeria and both are serviced by an airport which would allow the Appellants to return directly.89 [60] Language: As noted by the RPD both of the adult Appellants testified and responded to questions in English without interpretation and listed their languages as English and Etsako in their BOCs.90 The Appellants will not face language barriers in either Abuja or Port Harcourt since English is the official language of Nigeria. According to their BOCs91 the minor Appellants also speak English. [61] Education and employment: The Principal Appellant reports 1792 years of education including a post-secondary qualification in XXXX XXXX.93 The Principal Appellant lists four years of work experience as a XXXX XXXX and five years running his own XXXX XXXX XXXX.94 The female adult Appellant has 1595 years of education and nearly 10 years of experience in XXXX.96 As referenced above, the average total years of education completed for Nigerian men is nine years and eight years for women. The RPD found that the Appellants were highly qualified. [62] The Appellants argue that while they may have been able to support themselves in the past, they have lost all sources of livelihood in Nigeria and would be returning to absolutely nothing and have no ability to survive starvation and homelessness. The Appellants submit that they are in a very dire situation, either they endure the harsh economic reality of resettling in very expensive cities like the proposed IFAs or they could tap into their community of origin for support and increase the likelihood of their location reaching their agents of persecution. [63] I find that the Appellants have the support of their immediate family members, the Principal Appellant's brother, step mother and brother-in-law all provided letters and affidavits of support.97 Furthermore the adults Appellants are in a better position than the average Nigerian to find employment due to their education and extensive work experience. [64] Accommodation: The RPD did not address the issue of accommodation. As addressed above the Appellants submit that they would be homeless. [65] Religion: The RPD found that there was no persuasive evidence that the adult Appellants would face undue hardship in the practice of their religion in Abuja or Port Harcourt where the Christian religion is generally practised according to the documentary evidence.98 The Appellants are Christian Catholic99 so, as detailed above, they will have access to places of worship and other people who share their religious values in Abuja and Port Harcourt. This could help facilitate their integration in the IFA. [66] Indigeneship: The RPD did not address the issue of indigeneship. The Appellants submit that the RPD ignored the intense discrimination that the Appellants would suffer should they relocate to either of the IFAs. [67] The Appellants cite objective evidence100 that people who relocated to other cities in Nigeria are frequently victims of state-sanctioned and state-sponsored discrimination. I find that the objective evidence is mixed and the same document cited by the Appellants also says "indigeneship status is less important in big cities such as Lagos, Abuja, and Port Harcourt than it is in other places, in terms of access to public jobs or ownership of land, because the indigene population in these areas has been "overwhelmed" by migrants to the cities."101 [68] I find that the Appellants have not met their burden to show that any discrimination that could be faced in Nigeria's large cities in the south on the basis of their ethnicity or non-indigeneship would rise to the level that it would render the proposed IFAs to be unreasonable or unduly harsh. [69] Availability of medical and mental health care: The RPD considered the Bio-Psychosocial Assessment report102 which states that the adult Appellants suffer from "Major Depressive Disorder, Generalized Anxiety Disorder and Posttraumatic stress disorder." The RPD found that the report did not state that the Appellants cannot return to Nigeria for medical reasons and that Appellants did not present evidence that they would encounter problems obtaining the medical attention they require or that it is unavailable in the IFAs. [70] The Appellants argue that the RPD's finding was made in error and without regard to the evidence which shows clearly that there are insufficient mental health professionals and that mental healthcare services in Nigeria are grossly inadequate. I note that the evidence referenced by the Appellants forms part of the Appellants' Record but was not presented to the RPD so does not form part of the RPD Record and was not included in the new evidence submission.103 This evidence is quoted in the Appellants' Memorandum and says, "the treatment of mental illness is possible in public hospitals. There is no form of mental illness for which treatment is not available in Nigeria" and continues "[h]uman resource are not sufficient for the country's needs."104 [71] The Appellants submit that Nigerians who suffer mental illness face incredible challenges when trying to access healthcare. Since these difficulties appear to affect all Nigerians, I find that the Appellants have not met their burden to show that the availability of psychological and medical treatment in Nigeria would rise to a level that would render the proposed IFA objectively unreasonable or unduly harsh in their particular circumstances. [72] With respect to the second prong of the IFA test, following my assessment of the RPD findings, the arguments of the Appellants and my own review, I find that the Appellants did not demonstrate, on a balance of probabilities, that relocating to Abuja or Port Harcourt would be unduly harsh or objectively unreasonable in their particular circumstances. CONCLUSION [73] I agree with the RPD that the Appellants have a viable IFA in Abuja or Port Harcourt. I am satisfied, on a balance of probabilities, that there is no serious possibility of the Appellants being persecuted in Abuja or Port Harcourt and that it would not be objectively unreasonable or unduly harsh in all the circumstances for them to live there. [74] 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, pursuant to section 111(1)(a) of the IRPA. (signed) "Susan Brown" Susan Brown October 23, 2019 Date 1 RPD-1, RPD Record, Exhibits 2.1-2.5, pages 25-51, as amended Exhibits 9, page 54 and Exhibit 11, pages 71-77. 2 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 3 Ibid., and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 4 P-2, Appellants' Record, page 175, Appellants' Memorandum, para. 68. 5 P-2, Appellant's Record, pages 16 and 17. 6 Ibid., pages 18-23. 7 Ibid., pages 24-33. 8 Ibid., pages 34-40. 9 Ibid., pages 41-44. 10 Ibid., pages 45-47. 11 Ibid., pages 47-54. 12 Ibid., pages 55-56. 13 Ibid., pages 57-68. 14 Ibid., pages 69-70. 15 Ibid., pages 71-87. 16 Refugee Appeal Division Rules, SOR/2012-257 (RAD Rules). 17 Ibid., RAD Rules (3)(e) and 3(g)(iii). 18 P-2, Appellants' Record, page 158, Appellants' Memorandum, para. 19. 19 P-2, Appellants' Record, page 164, Appellants' Memorandum, para. 40. 20 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, tab 9.1: Système juridique dans le monde: Nigéria. LegiGlobe. Réseau Francophone de diffusion du droit. 2 September 2014, page 3. 21 Ibid., tab 9.2: Requirements and procedures for the issuance of affidavits; availability of fraudulent affidavits. Immigration and Refugee Board of Canada. 4 November 2014. NGA104978.E. 22 Ibid., page 6. 23 Ibid., page 11. 24 Ibid., page 12. 25 Ibid., page 13. 26 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 27 P-2, Appellants' Record, page 156, para. 11. 28 X (Re), 2018 CanLII 52123 (IFA Jurisprudential Guide). 29 Ibid. 30 Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126 (CanLII), para. 7. 31 Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1 FC 706. 32 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1994 1 FC 589. 33 Doherty v. Canada (Citizenship and Immigration), 2017 FC 661. 34 Dakpokpo v. Canada (Citizenship and Immigration), 2017 FC 580; Egbesola v. M.C.I., 2016 FC 204. See RAD decisions: X (Re), 2016 CanLII 105374 (CA IRB) and X (Re), 2015 CanLII 111326 (CA IRB). 35 Melford-Jowoh v. Canada (Citizenship and Immigration), 2017 FC 455. See RAD decision X (Re), 2016 CanLII 106181 (CA IRB). 36 Dibia v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1076. 37 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria, 30 April 2019, tabs 1.7/16.2, United Kingdom. Home Office Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation. Version 2.0 (August 2016), page 5, section 2.2.2. 38 Ibid., tab 1.7/16.2, page 7, section 2.4.8. 39 Ibid., tab 1.7/16.2, page 5, section 2.2.2. 40 Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996. 41 Cadena Ramirez, Francisco Jose v. M.C.I., 2010 FC 1276. 42 Jilani, Zia Uddin Ahmed v. M.C.I., 2007 FC 1354, para. 13. 43 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, paras. 15-16, citing Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. 44Immigration and Refugee Board of Canada, Chairperson Guideline 4:Women Refugee Claimants Fearing Gender-Related Persecution, Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act (Gender Guideline). 45 Ibid. 46 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria, 30 April 2019, tabs 1.7/16.2, United Kingdom. Home Office Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation. Version 2.0 (August 2016). 47 Ibid., tabs 1.7/16.2, page 9, section 6.3.1. 48 Ibid., tab 16.1, United States, Central Intelligence Agency, Nigeria. The World Factbook (November 14, 2017), tabs 1.15/16.5, L'aménagement linguistique dans le monde (July 4, 2017). 49 Ibid., tabs 16.1 and 1.15/16.5, Nigeria. L'aménagement linguistique dans le monde. L'aménagement linguistique dans le monde. Jacques Leclerc. 4 July 2017. 50 Ibid., tabs 5.9/16.9, Whether women who head their own households, without male or family support, can obtain housing and employment in large northern cities, such as Kano, Maiduguri, and Kaduna, and southern cities, such as Lagos, Ibadan, Port Harcourt; government... Immigration and Refugee Board of Canada. 19 November 2012. NGA103907.E. 51 Ibid., tabs 5.9/16.9. 52 Ibid., tabs 5.9/16.9. 53 Ibid., tab 16.12, United States. Department of State, Nigeria. International Religious Freedom Report for 2016 (August 15, 2017), page 2. 54 Ibid., tabs 12.6/16.3, Response to Information Request (RIR) NGA104679.E, Treatment of Christians who relocate from northern parts of Nigeria by people in Port Harcourt..., (6 December 2013). 55 Ibid., tabs 13.1/16.14, Response to Information Request (RIR) NGA104216.E, Whether a member of an ethnic group can be identified by physical characteristics, manner of dress, or by any other means..., (20 November 2012), page 9, section 3.2. 56 Ibid., tabs 12.6/16.13, Treatment of Christians who relocate from northern parts of Nigeria by people in Port Harcourt [Rivers State]; whether they face linguistic, economic and social difficulties (2012-November 2013). Immigration and Refugee Board of Canada. 6 December 2013. NGA104679.E. 57 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706. 58 Ousmer, Fazia Touileb v. M.C.I., 2012 FC 222, para. 24 citing Pena, Luis Arturo Rocha v. M.C.I., 2009 FC 616 and Lopez, Highlander Guzman v. M.C.I., 2010 FC 990. 59 RPD-1, RPD Record, Hearing of July 12, 2019, Audio Recording 0:18:15-0:18:35. 60 RPD-1, RPD Record, RPD Decision, page 11, para. 42. 61 RPD-1, RPD Record, Hearing of July 12, 2019, Audio Recording 0:36:30-0:40:00. 62 RPD-1, RPD Record, Exhibit 5, pages 242-254. 63 Ibid., Exhibit 7, pages 273-289. 64 Efe-Agbonaye v. Canada (Citizenship and Immigration), 2018 FC 1263 (CanLII), Obineze v. Canada (Citizenship and Immigration), 2018 FC 1150 (CanLII), 65 RPD-1, RPD Record, Exhibit 10, pages 330, 332, 336 and 341. 66 RPD-1, RPD Record, RPD Decision, page 12, para. 49. 67 P-2, Appellants' Record, page 159, Appellants' Memorandum, paras. 23 and 24. 68 RPD-1, RPD Record, Hearing of July 12, 2019, Audio Recording 0:36:30-0:40:00. 69 X (Re), 2018 CanLII 52123, para. 35. 70 RPD-1, RPD Record, Exhibit 10, page 325. 71 Ibid. 72 Ibid., page 342, para. 11. 73 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, tab 10.3: Update to NGA105999 of 6 November 2017 on documents issued by police during criminal investigations or in response to a complaint, including police reports; procedures for an individual to obtain a copy of a police report within the country as well.... Immigration and Refugee Board of Canada. 5 November 2018. NGA106208.E. 74 Ibid., Audio Recording 1:00:30-1:00:55. 75 Ibid., Audio Recording 1:00:57-1:00:05. 76 RPD-1, RPD Record, Exhibit 10, page 336, para. 6. 77 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019. 78 Ibid., tab 11.1: Nigeria. Freedom on the Net 2018. Freedom House. 2018. 79 Ibid., tab 1.14: Requirements and procedures to obtain a Subscriber Identity Module (SIM) card and to open a bank account; extent to which SIM card and banking information is available to third parties, including authorities and elected politicians (2018-February 2019). Immigration and Refugee Board of Canada. 18 February 2019. NGA106245.E. 80 Ibid., tab 5.28: Prevalence of female genital mutilation (FGM), including ethnic groups in which FGM is prevalent, particularly in Lagos State and within the Edo ethnic group; consequences for refusal; availability of state protection; the ability of a family.... Immigration and Refugee Board of Canada. 13 September 2016. NGA105628.E; tab 1.22: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 1.0. United Kingdom. Home Office. February 2017. 81 Ibid. 82 Ibid. 83 Ibid. 84 Ibid., tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018. NGA106183.FE. 85 Ibid., tab 1.22, para. 2.3.8. 86 Ibid., tab 5.12 page 2. 87 Ibid., Audio Recording 0:42:35-0:44:45 and 1:03:50-1:04:40 88 Ibid., Audio Recording 0:57:50-0:59:40. 89 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, tab 1.1: Nigéria. L'Encyclopédie en ligne. Larousse. 90 RPD-1, RPD Record, Exhibits 2.1 and 2.2, pages 17 and 34. 91 RPD-1, Exhibits 2.3, 2.4 and 2.5, pages 44, 47 and 50. 92 RPD-1, RPD Record, Exhibit 1, Schedule A, page 95. 93 Ibid. 94 Ibid. 95 RPD-1, RPD Record, Exhibit 1, Schedule A, page 103. 96 Ibid. 97 RPD-1, RPD Record, Exhibit 10, pages 333, 336 and 341. 98 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, tab 12.5: Situation of Christians, including those living in northern cities, Lagos and Abuja; state protection (2011-October 2015). Immigration and Refugee Board of Canada. 17 November 2015. NGA105320.E and tab 12.6: Treatment of Christians who relocate from northern parts of Nigeria by people in Port Harcourt [Rivers State]; whether they face linguistic, economic and social difficulties (2012-November 2013). Immigration and Refugee Board of Canada. 6 December 2013. NGA104679.E. 99 RPD-1, RPD Record, Exhibit 2.1, page 17. 100 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, tab 13.1: Whether a member of an ethnic group can be identified by physical characteristics, manner of dress, or by any other means; obstacles faced when relocating to Abuja, Lagos or Port Harcourt. Immigration and Refugee Board of Canada. 20 November 2012. NGA104216.E. 101 Ibid., page 9. 102 RPD-1, RPD Record, Exhibit 10, pages 312-316. 103 P-2, Appellants' Record, page 144. 104 Ibid., page 172, Appellants' Memorandum, para. 60. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-21694 TB9-21695 / TB9-21696 / TB9-21697 TB9-21698 RAD.25.02 (April 04, 2019) Disponible en français 24 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