TB8-19305

RAD File / Dossier de la SAR : TB8-19305 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 16, 2019 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person who is the subject of the appeal Amit R. Vig Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This decision is about XXXX XXXX (the Appellant), a citizen of Nigeria. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant alleges that he is at risk of persecution from militants because he was involved in a local committee that hired a vigilante group to provide security for the community. The Refugee Protection Division found that that the determinative issue in his appeal is the existence of an internal flight alternative (IFA) in Abuja, and I agree with and uphold this finding. DECISION [2] After considering his arguments and all of the evidence, I dismiss the Appellant's appeal, and confirm the determination of the RPD pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant is a 47-year-old man from Nigeria who came to Canada on his own. His four children and common-law wife remain in Nigeria. He claims that he lived in Ogun State until XXXX 2016, when he moved with his family to XXXX, Lagos for his work in XXXX. He reports in his Basis of Claim (BOC) that this area is targeted by militants who steal gas and oil from the pipelines in the region, but that shortly after he arrived in XXXX 2016 the militants were chased out of the area and there was a period of relative peace until XXXX 2016, when he was robbed. He attended a local committee meeting that month to discuss security and the group decided to pay a vigilante group, the XXXX XXXX XXXX XXXX XXXX XXXX to help ensure that the area was secure from the militants. In XXXX 2016, the Appellant claims that the XXXX identified six members of the committee as militant informers, who were reported to the police. In XXXX 2016, he reports that four of the committee members, including himself and Mr. XXXX XXXX, were approached by the informants on behalf of the militia to support or join their ranks and benefit from their criminal activity. They declined. [4] Over the next several months the Appellant and his family moved back and forth between their home and his wife's uncle's home which was about 10 to 12 km away and which they believed to be safer. The Appellant also worked in a XXXX XXXX, which was a family-owned business. On XXXX XXXX, 2017 his wife was at her uncle's home and he was in XXXX for an event at the XXXX XXXX business. He returned home in the evening, and according to his BOC, received a phone call at midnight from Pastor XXXX XXXXmi to warn him that he had heard that the militants were back in the area. The Appellant fled to the Pastor's home and then to his wife's uncle's home. The Appellant's family decided to flee to XXXX to stay with his family, where he received calls from church members and customers telling him that the militants were looking for him. He decided that he needed to leave Nigeria for his safety. He already had a U.S. visa, so he travelled there on XXXX XXXX, 2017, and later crossed irregularly into Canada. He made a refugee claim here on May 30, 2017. His claim was heard by the RPD on May 15, 2018. In its reasons dated May 28, 2018, the RPD rejected the Appellant's claim on the basis that he has an internal flight alternative in Abuja. [5] After considering his submissions and the evidence, I find that the RPD did not err in this finding, and agree that Abuja is a viable internal flight alternative for the Appellant. ANALYSIS Role of the Refugee Appeal Division (RAD) [6] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of oral evidence.2 In this case, my findings are based on a correctness standard. I find that the RPD was not in an advantageous position regarding the assessment of the Appellant's evidence, as I was able to review and understand the transcript of the hearing, his testimony on the recording of the hearing, and to review the documentary evidence. Issues [7] The Appellant argues that the RPD erred in its determination that he has an internal flight alternative in Abuja as follows: a) It breached natural justice by being aggressive and hostile toward the Appellant during the hearing and that there was a reasonable apprehension of bias as a result; b) It ignored and misconstrued the evidence regarding its finding that his family relocated and remained in Nigeria without problem, and that he would not be in danger from the militants; and c) It erred in its analysis and test for Internal Flight Alternative. a) Did the RPD breach natural justice by being aggressive and hostile toward the Appellant during the hearing and was there was a reasonable apprehension of bias as a result? [8] The Appellant argues that the RPD was aggressive and hostile toward him during the hearing, resulting in a reasonable apprehension of bias and a breach of natural justice and procedural fairness. He cites the audio recording between 23:16 to 23:40 as an example of this, where the Board member explains that she has regularly been dealing with people from Nigeria and did not require an explanation about Nigeria and the country itself. [9] Based on my review of the recording of the hearing and the transcript, I disagree that the RPD was aggressive and hostile and that there was a reasonable apprehension of bias. In the portion of the hearing cited by the Appellant, the panel did have to repeat and explain her questions regarding what she was trying to find out, but I disagree that she was in any way "aggressive and hostile" toward the Appellant. In fact, the panel clearly explained what she was trying to find out, what her concerns were, and gave the Appellant an opportunity to address them (i.e., why he had allegedly moved to the area where he claimed he encountered the agents of persecution, and whether he had credibly established this allegation).3 [10] No other specific examples of the Appellant's claim of "hostility, condescending tone and badgering" were provided by the Appellant, and based on my review of the record, I find that the panel did not behave in a way that raises a reasonable apprehension of bias. I find that the panel asked reasonable questions related to the claim, and in fact gave the Appellant numerous opportunities to answer questions that he did not adequately answer by repeating and clarifying its questions.4 This indicates to me that the panel worked to provide the Appellant a fair opportunity to present his case, and that there was no reasonable apprehension of bias. b) Did the RPD ignore and misconstrue the evidence regarding its finding that the Appellant's family relocated and remained in Nigeria without problem, and that he would not be in danger from the militants? [11] As part of its analysis regarding whether the Appellant has a viable internal flight alternative in Nigeria, the RPD found that the Appellant's family had relocated to XXXX just north of Lagos, and had remained there without issue. His children attend school and the family live there, but he did not report any contact or issues with the militants, which suggests that they lack the influence or motivation to pursue him elsewhere in Nigeria. [12] The Appellant argues that the RPD erred in this finding, as he did not relocate there but rather, his family was already in XXXX for the birth of their daughter, and he did not relocate but rather did not return to his home due to fear of persecution. Further, the fear of persecution is only on him, not on his family, but that if he associated with his family their lives would be endangered as well. The RPD erred as it has not been years since the incidents happened, but it has only been one year. [13] I disagree with the Appellant's arguments and find that the RPD did not err in considering whether his family had been contacted by the alleged agents of persecution or had faced any reprisals. Even if he was the only focus of their alleged persecution, if they have the motivation, resources and network to track him down anywhere in Nigeria as he alleges, it would make sense that they would attempt to locate him through his family (both his wife and also his parents). I agree that the fact that they had not done so is relevant in assessing whether or not the alleged agents of persecution are seeking and targeting the Appellant in other locations. [14] Although the RPD was incorrect in its finding that years had passed since the return of the militants in XXXX 2017, I find that was a minor finding, and that this error is not fatal to its overall determination. c) Did the RPD err in its analysis and test for Internal Flight Alternative? [15] The RPD found that the Appellant has a viable Internal Flight Alternative (IFA) in Abuja, Nigeria. The Appellant argues that it erred in this finding, as at the start of the hearing it only identified Port Harcourt as a potential IFA, and only later raised Abuja once he was able to establish that Port Harcourt was not viable because he would be easily targeted by the militants there. [16] I disagree with this argument, and find that the Board did identify both Port Harcourt and Abuja as potential IFAs at the beginning of the hearing. It did indicate at the beginning of the hearing that they would "probably mostly talk about Port Harcourt,"5 but when asking the Appellant for his reasons why he could not move to another area of Nigeria, the panel actually asked more questions about Abuja than Port Harcourt, including why he was concerned about moving there.6 I also note that the Appellant's legal representative also asked him whether any other committee members had relocated in Port Harcourt or Abuja,7 and had the opportunity to ask more questions about the proposed IFAs, but did not do so. Test for Internal Flight Alternative [17] An internal flight alternative arises when a claimant is able to find refuge in a part of their country of citizenship where there is no serious possibility of persecution and where it would not be unreasonable for them to seek refuge there. [18] The test for IFA asks two questions8: 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. 2. 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 claimant, for the claimant to seek refuge there. [19] Both prongs must be satisfied for a finding that the claimant has an IFA. With respect to the burden of proof, once the issue is raised, the onus is on the Appellant to show that they do not have an IFA. [20] The RPD found that that there is no serious possibility of the Appellant being persecuted in Abuja because his wife and children relocated within Nigeria and have had no reprisals or contact with the alleged agents of persecution; he was low profile, involved in a local issue only, and years have passed so it was unlikely that the militants would be motivated to pursue him; and he did not establish that the group had the reach and ability to track him down as he claimed. It found that Abuja was a reasonable IFA for him because crime there was relatively low, he was educated and urbane, and an English speaker. Even if he faced some economic hardship or discrimination based on his indigeneship status, this would not rise to the level of unreasonableness. Prong 1 [21] The Appellant argues that the RPD erred in finding that there is no serious possibility of being persecuted in Abuja, as it accepted that the militants have millions of dollars and a strong network so they can easily target him in Port Harcourt, so therefore they could also track him down in Abuja. He is also a well-known XXXX, and further, he will still have to visit his wife and daughters in XXXX which will force him to travel to the same location from which he had fled. Is there a serious possibility of the Appellant being persecuted in Abuja? [22] The Appellant bears the burden of proof to show that he faces a serious possibility or reasonable chance of persecution in the potential IFA named. [23] I find that the Appellant has not established on a balance of probabilities that the militants can find him in Abuja. I agree with the RPD that the fact that his family has not faced any reprisals or been contacted by the militants undermines his claim that they are looking for him and that they have the motivation and resources to find him elsewhere in Nigeria. [24] I also find that the Appellant has not established that the militants have the resources or ability to find him in Abuja. Based on my review of the recording of the hearing, I disagree with the Appellant's assertion that the RPD accepted that the militants have millions of dollars and a strong network to pursue him elsewhere in Nigeria. Rather, it posed a question based on his description of the militants rather than making a finding that this had been established: PRESIDING MEMBER: You described these individuals as having millions of dollars --- CLAIMANT: Naira. PRESIDING MEMBER: --- in naira. Even dollars, let's be honest. Theft and oil and tapping of lines in this area. Your little community, and what you did within that, how do you think it affected their operations overall? CLAIMANT: Yeah, it affected it because they couldn't access the pipelines that are in our community again.9 [25] Further, the credibility of his claim that he will be at risk in Abuja is undermined by his own testimony that he did not know how strong the militants' network was in Abuja.10 [26] In addition, Abuja is a large city with a population of 2.44 million,11 which would make it less likely that he could be located there. Finally, the news articles provided by the Appellant discuss attacks by militants in Ishawo, but do not provide supportive evidence regarding the capacity, resources, or network of the militants that would establish their ability and motivation to track him down in Abuja. [27] For these reasons, I find that the Appellant has not established on a balance of probabilities that there is a serious possibility or reasonable chance that he would be persecuted in Abuja. Are the conditions in the part of the country considered to be an IFA such that it would not be unreasonable, in all the circumstances, for the Appellant to seek refuge there? [28] There is a very high threshold for the unreasonableness test, as described in Ranganathan.12 It requires nothing less than the existence of conditions which would jeopardize the life and safety of Appellants in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. 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 does not meet this threshold. [29] The Appellant argues that the RPD erred in finding that Abuja is a reasonable IFA for him because it failed to consider his overall circumstances. He has five young women that he must take care of, or he would have to visit them in XXXX, where he would be targeted by the militants. It failed to consider his age of 46 (now 47) and his work history as a travelling XXXX. As a 46-year-old, he will face age discrimination in looking for work, and would be vulnerable if he returned to sales because he would have to travel in Nigeria. [30] I disagree with the Appellant's submissions, and find that he has not established that Abuja would meet the high threshold to be an unreasonable IFA for him. [31] Regarding his argument that moving to Abuja would be difficult because he has to take care of a family of five young women to take care of, and that he would face age-related discrimination because of his age as a 47-year-old man, I note that the objective country condition evidence suggests that migrants to Abuja should not face unreasonable barriers in finding work. While those who relocate to other areas of the country may face some discrimination, the objective country condition evidence provides that in big cities such as Abuja, the indigene population in these areas has been "overwhelmed" by migrants to the cities, and that non-indigenes can generally find work where there is a demand for it.13 I therefore find that the Appellant's non-indigene background would have less impact in a large city such as Abuja, and that his XXXX identity would not make Abuja an unreasonable IFA for him with respect to work and settling there. [32] Regarding his claim that he would need to work in XXXX, which would force him to have to travel across the country, I note that hardship resulting from loss of employment or loss of status does not meet the threshold of unreasonableness,14 so that if necessary, he could look for a different type of work in Abuja. The Appellant is well-educated, has worked in the private sector as a successful XXXX and also in his own family business. He testified that he had obtained a diploma which is equivalent to a first degree.15 He has travelled within Africa, the Middle East, and North America. As a result, I find that he is a relatively sophisticated and resourceful person, which will make it easier for him to relocate and re-establish himself, including finding employment in Abuja, despite having to support his wife and four daughters. Although Nigerian law does not prohibit discrimination in occupation based on age or other characteristics,16 I find that the age of 47 is not particularly advanced, and that the Appellant has not provided evidence in support of his claim that he would face age-related discrimination in employment. [33] The constitution and law of Nigeria provide for freedom of internal movement. The country condition information indicates that women all over the country reportedly travel on their own, and that in general, it will not be unduly harsh for a woman to internally relocate to escape localised threats from members of their family or other non-state actors.17 As a result, I find that men, who do not face the same gender discrimination as women, have at least the same or better opportunity of freedom of movement and the ability to relocate within Nigeria. [34] The Appellant speaks English, which is the official language of Nigeria.18 I therefore find that the Appellant's language abilities do not pose a significant barrier to his relocation to Abuja. [35] Once the issue of an IFA has been raised and the potential IFA has been identified, the burden of proof rests with the Appellant to show that he does not have an IFA. Regarding the reasonableness of the proposed IFA, the Appellant has raised concerns regarding his family obligations and employment. While he may not be able to find the same type of job that he previously enjoyed, and might face some financial impact from relocation, these concerns are insufficient to meet the high threshold to establish that an IFA is unreasonable. The Appellant has an IFA in Abuja [36] I find that the Appellant has not established that the militants have the ability to find him in the proposed IFA. I therefore find that the Appellant could live in Abuja and that there is no serious possibility that he would be persecuted there. [37] With respect to the second prong regarding the reasonableness of seeking refuge in Abuja, I find that it would not be unreasonable for the Appellant to live there. As discussed above, the Appellant is well-educated, has work experience in sales and in his own family business, has travelled abroad, and speaks English, a language commonly used throughout Nigeria. Based on his personal circumstances, I find that it would not be unreasonable for the Appellant to live in Abuja rather than seek international protection. [38] Given the finding above that the Appellant does have an IFA in Nigeria, I find that the Appellant does not face a serious possibility of persecution there. I also find that his removal to Nigeria would not subject him personally, on a balance of probabilities, to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. CONCLUSION [39] On the basis of the findings outlined above, I dismiss the appeal. I find that the Appellant has an IFA in Nigeria. [40] As a result, I confirm the determination of the RPD, pursuant to paragraph 111(1)(a) of the IRPA. The appeal is dismissed. (signed) "Cynthia Pay" Cynthia Pay May 16, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Ibid., at para. 70. 3 RPD recording at approx. 0:22 to 0:25. 4E.g., when the panel was asking the Appellant background questions about why he went back to school, where he worked with the family business and where he lived, it repeated and explained or clarified its questions numerous times in order to obtain answers (see Transcript of RPD Hearing at pp. 14 to 18.) 5 Transcript of RPD Hearing, p. 2. 6 Transcript of RPD Hearing, pp. 41 to 43. 7 Transcript of RPD Hearing, p. 46. 8 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) 9 Transcript of RPD Hearing, pp. 40-41. 10 Transcript of RPD Hearing, p. 42. 11 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (30 April 2018), item 1.6. Nigeria. The World Factbook. United States. Central Intelligence Agency (24 November 2017). 12 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). 13 Ibid., NDP for Nigeria (30 April 2018), item 13.1. Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) NGA104216.E, Immigration and Refugee Board of Canada (20 November 2012). 14 Ranganathan, supra, at para. 15. 15 Transcript of RPD Hearing, p. 14. 16 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 April 2018), item 2.1. Nigeria. Country Reports on Human Rights Practices for 2017. United States. Department of State (20 April 2018) at p. 47. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 April 2018), item 1.11. Country Information and Guidance. Nigeria: Women fearing gender-based harm or violence. Version 3.0. United Kingdom. Home Office (31 March 2017) at p. 7. 18 Ibid., NDP for Nigeria (30 April 2018), item 1.6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-19305 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