VB9-03449

RAD File / Dossier de la SAR : VB9-03449 VB9-03450 / VB9-03451 / VB9-03452 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision January 4, 2020 Date de la décision Panel Douglas Bruce Fortney Tribunal Counsel for the persons who are the subject of the appeal Dalbir Singh (DALE) Muti XXXXXXXXXXXX Conseil des personnes en cause Designated representative XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) for XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, a.k.a. XXXX XXXX XXXX (Principal Appellant), his spouse XXXX XXXX, a.k.a. XXXX XXXX XXXX and the couple's two minor children XXXX XXXX, a.k.a. XXXX XXXX XXXX and XXXX XXXX, a.k.a. XXXX XXXX XXXX, (Associate Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD), dated April 11, 2019, rejecting their claim for refugee protection. DETERMINATION [2] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention1 refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).2 BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellants are all Christians. Based on the experiences of the Principal Appellant, the Appellants fear the Fulani herdsmen. The Principal Appellant's wife also fears that her minor children could be subject to the risk of Female Genital Mutilation (FGM) if they return to Nigeria. [4] From 2000 until the Appellants left Nigeria in XXXX 2017, the Principal Appellant was employed as a XXXX XXXX. As part of his duties, the Principal Appellant was required to travel to different states in Nigeria. [5] On an afternoon in XXXX 2016, the Principal Appellant was returning by bus to Lagos from Benin, Edo state when the bus he was on was stopped by Fulani herdsmen who had blocked the highway and who were stopping all of the vehicles they encountered. At first, the Principal Appellant thought that the men were armed robbers, but upon seeing their clothing, he became immediately aware that they were herdsmen. The herdsmen began shooting at the bus but the Principal Appellant was able to escape into a nearby forest. [6] The Principal Appellant again encountered the Fulani herdsmen at approximately XXXX XXXX XXXX am on XXXX XXXX XXXX 2017 just outside Makurdi, Benue state. Again, he was returning by bus to Lagos from a job assignment. [7] Similar to the incident in XXXX 2016, Fulani herdsman stormed the highway upon which the Principal Appellant was travelling. The bus driver quickly parked and everyone attempted to flee, although some were killed. The Principal Appellant noticed that the herdsmen were already burning a village that was close to the highway and that they were stopping all of the vehicles that were going through on that part of the highway. Again, the Appellant was able to escape to a nearby forest. [8] The Principal Appellant encountered Fulani herdsmen for a third and final time on XXXX XXXX XXXX 2017 when he was travelling back to Lagos by bus from Akungba, Ondo state. The herdsmen were again stopping all of the vehicles along this part of the highway. [9] The Principal Appellant fled the bus and ran towards a nearby forest to escape. However, the herdsmen were shooting towards those who were trying to flee and in response the Principal Appellant began shouting out "XXXX XXXX XXXX" in prayer. The herdsmen chased the Principal Appellant through the forest, shooting at him and others for some time and he feared for his life. [10] It was after this incident that the Appellants made the final decision to leave the country. The Principal Appellant left Nigeria and on XXXX XXXX, 2017 entered the United States the following day. The Associate Appellants joined him in the United States a few months later and made their claims for protection in Canada in March 2018. [11] The Appellants' claim for refugee protection was heard by the RPD on April 5, 2019 and rejected in written reasons dated April 11, 2019. [12] The RPD Member identified the determinative factor to be Internal Flight Alternative (IFA) and denied the claim because she found the Appellants had an IFA in Lagos or Port Harcourt or Abuja. [13] The Appellant was represented by the same Counsel at the RPD hearing and in this appeal. [14] The Minister did not intervene at the RPD or in this appeal. [15] The Appellants have raised the following grounds for this appeal: * Was there a breach of procedural fairness in rejecting the postponement request of the Counsel which was submitted to ensure that the Psychological Assessment was entered into the record before proceeding with the hearing? * Did the RPD err in its refusal to allow Counsel to submit the scheduled psychological assessment once available post-hearing to consider before reaching its decision? * Did the RPD err in its assessment of the FGM issue as it pertains to the minor female appellant? * Did the RPD err in its IFA assessment? [16] The Appellants request that the RAD set aside the determination of the RPD and find that the Appellants are Convention refugee or persons in need of protection or alternatively refer the matter back to the RPD for redetermination by another Member. [17] I find that the determinative issue in this appeal is whether or not the Appellants have an IFA in Lagos or Port Harcourt or Abuja. NEW EVIDENCE AND ORAL HEARING [18] The Appellants seek to enter new evidence in this appeal. Section 110(4) of 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 they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [19] Should the new evidence meet the statutory requirement outlined above, I will also consider the "Raza3 principles" as modified by Federal Court of Appeal in Singh.4 It directs the RAD to consider the credibility and relevance of the document in addition to the newness of the evidence. [20] The following items have been submitted as new evidence: * Email correspondence with Dr. XXXX regarding scheduling of the Psychological Assessment of the Appellants;5 * Psychological Assessment of Mr. XXXX XXXX XXXX by Dr. XXXX;6 and, * Psychological Assessment of Mrs. XXXX XXXX XXXX by Dr. XXXX XXXX.7 [21] The RPD reasons indicate that the Appellants had requested a postponement of the RPD hearing to allow for a psychological assessment of the adult Appellants, The RPD Member dismissed this application for reasons detailed in the RPD reasons. The psychological assessments have now been completed. I note that these assessments have been prepared by well qualified and professional psychologists known to the Immigration and Refugee Board (IRB). [22] Counsel submitted various Federal Court decisions which highlight that psychological assessments can be particularly relevant in refugee claims involving IFA considerations. Considering the circumstances surrounding the timing of the psychological assessments, I find that these documents do meet the requirements for new evidence under section 110(4) of IRPA and also satisfy the criteria of credibility and relevance. I therefore accept these documents into evidence for this appeal as Exhibit 1. [23] The Appellants are not requesting a hearing be held. Under section 110(6) of the IRPA, the RAD can only consider ordering a hearing when new evidence has been accepted and that new evidence raises a serious issue with respect to credibility. While I have accepted new evidence, the new evidence consists of psychological assessments prepared by recognized psychologists. I find that there is no serious issue with respect to the credibility of the Appellants in this regard. This appeal will therefore proceed without an oral hearing. ROLE OF THE RAD [24] With respect to questions of fact, mixed fact and law, I have applied the standard of correctness as per Huruglica.8 [25] I have analyzed this appeal based on documents submitted by the Appellants and all of the evidence contained in the RPD Record. [26] In this appeal, I find that the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the Appellant's testimony where the RPD would have been in a better position than the RAD to judge it. ANALYSIS [27] First and second grounds of the appeal: * Was there a breach of procedural fairness in rejecting the postponement request of the Counsel which was submitted to ensure that the Psychological Assessment was entered into the record before proceeding with the hearing? * Did the RPD err in its refusal to allow Counsel to submit the scheduled psychological assessment once available post-hearing to consider before reaching its decision? [28] As stated earlier, the RPD reasons indicate that the Appellants had requested a postponement of the RPD hearing to allow for a psychological assessment of the adult Appellants, The RPD Member outlined the criteria under RPD Rule 54 of the Refugee Protection Division Rules9 and dismissed this application. The factors outlined in the RPD reasons included the timeliness of the application, that applications to change the date and time of a proceeding must include three dates and times which are no longer than 10 working days after the date originally fixed for the proceeding and whether or not there were any exceptional circumstances. [29] As the application was only made on the day of the hearing, a postponement of 8 weeks was being requested, and no exceptional circumstances had been claimed, the RPD member found that the application did not meet the requirements of Rule 54 of the Refugee Protection Division Rules. The RPD Member therefore denied the application. I agree with the RPD Member's assessment in this regard and find she committed no error or breach of procedural fairness in denying this application. However, insomuch as I have accepted the psychological assessments of the adult Appellants as new evidence in this appeal, there is no further need to consider the first two grounds of this appeal as submitted by the Appellants. [30] Third ground of the appeal: Did the RPD err in its assessment of the FGM issue as it pertains to the Minor Female Appellant? Both of the Adult Appellants testified that they were opposed to this practice and that they did not wish to have their daughter, who is presently five years of age, undergo it now or in the future. [31] At the RPD hearing, the Associate Adult Appellant testified that it was one male cousin of the Principal Appellant who was his elder. However, she also explained that this cousin lived outside of Lagos in a village and that she and the Principal Appellant would need to take their daughter to this village in order for this procedure to be done. While the Associate Adult Appellant indicated that she and the Principal Appellant felt some pressure to do this, she testified that they would not take their daughter to this village. She also explained that the Principal Appellant's mother was opposed to this practice. [32] Based on this evidence. the RPD Member found that the Appellants had not established that the Minor Female Appellant faces a serious possibility10 of persecution as defined in section 96 of IRPA or, on a balance of probabilities, harm as defined in section 97(1) of IRPA on account of her gender. The RPD Member also found that the Appellants had also not established that either of the Adult Appellants would face a serious possibility of persecution as defined in section 96 of IRPA or, on a balance of probabilities, harm as defined in section 97(1) of IRPA, if they prevented the Minor Female Appellant from undergoing this procedure by not taking her to the village. [33] The Appellants submit that consent to take their daughter to the village is peripheral to the determination of whether this persecution is reasonably possible as their claim of fear of persecution on this matter, as the fear relates to the possibility of the procedure happening without the Adult Appellants' consent. However, the Adult Appellants testified that they oppose FGM and did not allege that the male cousin of the Principal Appellant had at any time attempted or threatened to submit the Female Minor Appellant to FGM without their consent. I find that the Adult Appellants' fear that the Minor Female Appellant would be at risk of FGM to be speculative. Based on my independent review of the evidence, I agree with the RPD Member's finding that the Appellants had failed to establish that the Minor Female Appellant faces a serious possibility of persecution as or, on a balance of probabilities, harm on account of her gender and that the Adult Appellants would face a serious possibility of persecution or, on a balance of probabilities, harm, if they prevented the Minor Female Appellant from undergoing this procedure by not taking her to the village. [34] Counsel for the Appellants submitted that the FGM issue "has been dealt with" in other recent RPD decisions. Reference was made to another RPD decision which does not form part of the RPD or RAD record nor was any consent provided by the refugee claimants to disclose in whole or part the RPD decision relating to them. However, any claim for refugee protection is to be considered on its own merits and particular circumstances. The partial quote of an unrelated RPD decision provided by Counsel cannot be considered for purposes of this appeal and would not in any event be binding upon another decision maker at either the RPD or RAD. [35] Fourth ground of the appeal: Did the RPD err in its IFA assessment? The Appellants submit that the FGM issue was not provided due consideration and that the Psychological Assessments are to be considered to analyze whether or not the proposed IFA is reasonable. [36] Turning to the first prong of the test for a reasonable IFA, I must consider whether there is anywhere in Nigeria that the Appellants could go and not face a serious risk of persecution or where they would not be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment or torture. [37] I note that the Appellants have not challenged the RPD Member's finding that the risk of persecution or harm by the Fulani herdsman is a regional risk and not present in the proposed IFAs. In reference to the FGM issue, I have already found that this issue was adequately addressed as the third ground of appeal and need not be further addressed in connection with IFA. Based on my independent review of the evidence, I agree with the RPD Member's finding that the Appellants have not established that they would face a serious possibility of persecution as defined in section 96 of IRPA or, on a balance of probabilities, harm as defined in section 97(1) of IRPA in any of the IFA locations proposed. [38] Turning to the second test for a successful IFA, that is whether or not the proposed IFAs are reasonable given the Appellants' particular circumstances. Federal Court jurisprudence referred to by the Appellants establish that psychological assessments are relevant when considering IFA. [39] I will now turn to the psychological assessments which have been accepted into evidence for this appeal. I note that the psychological assessments were performed by well qualified psychologists known to the IRB. In both cases, the assessments were prepared on the basis of a single session between the relevant psychologist and the Principal Appellant or his wife. The Minor Appellants were not directly reviewed by either psychologist. [40] The psychological assessment by Dr. XXXX submitted into evidence for this appeal for the Principal Appellant concluded as follows: [His] current clinical presentation is consistent with a diagnosis of XXXX XXXX XXXX XXXX XXXX (XXXX) stemming from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. If returned to Nigeria, Mr. XXXX certainly faces serious psychological deterioration in in his XXXX symptomatology. The psychological risk is further increased by the ongoing physical risk that he and his family still face. As his psychological health declines, so would his ability to effectively function in any facet of his life, including security and support for his himself and his family.11 [41] In reviewing the psychological assessment for the Principal Appellant, I accept her diagnosis that the Principal Appellant is suffering from XXXX. A critical element of her conclusion that the Principal Appellant faces a risk of further psychological deterioration is tied to the ongoing physical risk that he and his family would face. However, as previously noted the risk of harm at the hands of the Fulani herdsmen is a regional one with no credible evidence of existing in the proposed IFAs. [42] Turning to the psychological assessment by Dr. XXXX XXXX submitted into evidence for this appeal for the Principal Appellant's wife, the assessment concluded as follows: Ms. XXXX is deemed to have presented a valid and reliable symptom basis for formulating the diagnosis of XXXX XXXX XXXX XXXX XXXX (XXXX).... Sustained subjective fear for her husband's life, vicarious exposure to his feared circumstance, and concern for risk of female genital mutilation of the children are at the base of the XXXX. I have presented the evidence to support a position that Ms. XXXX is not a candidate for psychological or psychiatric treatment in Nigeria; her psychological status would not be remedied with best-practice treatment. Thus, the evidence indicates that attempted internal flight would not alter her clinical risks for more severe depression with subsequent parallel risks for the children.12 [43] In reviewing the psychological assessment for the principal appellant's wife, I accept Dr. XXXX diagnosis that she is suffering from XXXX XXXX XXXX XXXX XXXX (XXXX). As in the case of the Principal Appellant, a critical element of this assessment is that the Principal Appellant's wife faces a risk of further psychological deterioration tied to the ongoing physical risk that her husband and family would face from the Fulani herdsmen and her fears that her children could be subjected to FGM. [44] As previously noted the risk of harm at the hands of the Fulani herdsmen is a regional one with no credible evidence of existing in the proposed IFAs. Also, as noted previously, I agree with the RPD Member's finding that the Appellants had failed to establish that the Minor Female Appellant faces a serious possibility of persecution or, on a balance of probabilities, harm on account of her gender and that the Adult Appellants would face a serious possibility of persecution or, on a balance of probabilities, harm, if they prevented the Minor Female Appellant from undergoing this procedure by not taking her to the village. [45] Dr, XXXX assessment also states that "Ms. XXXX is not a candidate for psychological or psychiatric treatment in Nigeria; her psychological status would not be remedied with best-practice treatment." However, no evidence was submitted in this assessment or in the appeal record as to assess whether or not adequate psychological treatment would be available to support the Appellants in the proposed IFAs. I note that the proposed IFAs of either Lagos or Port Harcourt or Abuja are all major urban centers in Nigeria. [46] Upon consideration of all of the evidence including the psychological assessments, I find that it is objectively reasonable in all of the circumstances, including the Appellants' particular circumstances, to relocate to either Lagos or Port Harcourt or Abuja. The Appellants have thus failed to rebut the second prong of the test for an acceptable IFA. I agree with the RPD Member's finding that the Appellants have a viable IFA in either Lagos or Port Harcourt or Abuja. CONCLUSION [47] 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 Immigration and Refugee Protection Act. (signed) "Douglas Bruce Fortney" Douglas Bruce Fortney January 4, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 Exhibit P-2, Appellants' Record, pp. 20-30. 6 Exhibit P-2, Appellants' Record, pp. 31-47. 7 Exhibit P-2, Appellants' Record, pp. 48-61. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 9 Refugee Protection Division Rules, SOR/2012-256. 10 Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 7 Imm. L.R. (2d) 169 (C.A). 11 Exhibit P-2, Appellants' Record, p. 39. 12 Exhibit P-2, Appellants' Record, p. 56. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-03449 VB9-03450 / VB9-03451 / VB9-03452 RAD.25.02 (April 04, 2019) Disponible en français 12 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