TB9-10876

RAD File / Dossier de la SAR : TB9-10876 TB9-10877 / TB9-10878 / TB9-10879 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 XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 24, 2019 Date de la décision Panel Paula Thompson Tribunal Counsel for the persons who are the subject of the appeal Ochiemuan Okojie 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 XXXX family are citizens of Nigeria. XXXX XXXX (the principal Appellant) and her three daughters fear that the principal Appellant's uncle will subject the girls to female genital mutilation (FGM) and other abuse. The principal Appellant's husband remains in Nigeria. [2] The eldest minor Appellant is now 13 years old. She has been diagnosed in Canada with XXXX XXXX and has considerable on-going and special needs. [3] The Refugee Protection Division (RPD) found that the Appellants' story was not credible and refused their claims. [4] The Appellants believe the RPD made mistakes in its decision and in its credibility findings. [5] There are three determinative issues in this appeal: a. Did the RPD err in its credibility findings? b. Does the discrimination the eldest daughter could face if returned to Nigeria amount to persecution? c. Would the family be safe from persecution in Abuja, Port Harcourt or Kano? DECISION [6] I find that XXXX XXXX, the eldest minor Appellant, is a convention Refugee. I find that the remaining Appellants could be safe in Abuja, Port Harcourt or Kano. However, I also find that given Arafat's condition, it would not be reasonable for the remaining Appellants, given the family's unique circumstances, to find safety in these cities. [7] The appeals are allowed. I set aside the RPD's decision and substitute my own determination that the Appellants are Convention refugees. NEW EVIDENCE The new evidence is allowed in part [8] The Immigration and Refugee Protection Act1 limits what new evidence I can accept. According to this law, I can only accept new evidence that: i. arose after the RPD decision; ii. was not reasonably available at the time of the decision; or iii. you could not reasonably have been expected, given your circumstances, to bring to the RPD before its decision. [9] If the new evidence meets these requirements, I must decide if the evidence is new, credible and relevant before I can accept it. [10] The Appellants provided three pieces of new evidence with their appeals. [11] Two of the documents are affidavits from the principal Appellant's husband. The first concerns the address and length of time the Appellants stayed at a home in XXXX. The second affidavit concerns an attack on the principal Appellant's husband in XXXX 2019, as well as a copy of the husband's identity card. The third document is a police diary report from XXXX 2019 about the attack on the husband. [12] The affidavit about the home in XXXX is rejected as new evidence. While it post-dates the RPD decision, it recounts information that was available before the decision. The principal Appellant, and her husband who was a witness, could have reasonably brought this information forward before the RPD made its decision. [13] The second affidavit and the police diary are admitted as new evidence in the appeal. Both documents post-date the RPD decision and were not reasonably available to the Appellants as the events described occurred after the RPD decision date. The documents are new, credible on their face and relevant to the determinative issue at the RPD. ANALYSIS The Appellants' stories are generally credible [14] I agree in part with the Appellants' arguments about the RPD's negative credibility findings, particularly those related to the family's time spent in XXXX. I find that the RPD did undertake an overly microscopic evaluation related to the dates and timing of the family's stay in XXXX. As argued on appeal, both the principal Appellant and her husband, as a witness, testified that they stayed in XXXX for about three weeks. I agree with the Appellants that it is not implausible that they would not list a stay of three weeks in their visa application, their Schedule A form, etc. The difference between a one-week stay and a three-week stay is not, in my view, material or sufficient to make a negative credibility finding on this issue. The RPD findings in relation to the family's stay in XXXX are incorrect. [15] The only additional and material credibility finding that the RPD made relates to why the principal Appellant did not make a police report about the gun incident and the home invasion. I agree with the RPD that given the Appellants made complaints to the police in relation to other incidents, it seems odd that they did not do so after these two incidents. However, while I agree with the RPD finding on this issue, I do not feel that this finding is sufficient to impugn the Appellants' credibility overall. The other RPD findings do not fully assist me in this regard. [16] When considered with the new, sworn evidence brought by the principal Appellant's husband on appeal, I find that I must accept at least the heart of the Appellants' stories. The RPD accepted that the principal Appellant had been attacked by her uncle, although I agree the motivation for the attack is unclear. There is insufficient evidence for me to impugn the credibility of the Appellants. I find that the RPD erred in some of its credibility findings. The Appellants do not have an internal flight alternative [17] The questions of whether the Appellants could be safe in other cities in Nigeria was raised at the RPD. The Appellants fear a single person-the principal Appellant's uncle. There is little evidence to suggest that this individual has the ability to find the Appellants outside his home region, particularly if the Appellants were to relocate to a home of a relative. It would be easier for the uncle to find them if they stay with relatives or in the homes of relatives. [18] However, when looking at the issue of an internal flight alternative, I also have to assess if it would be reasonable, given the family's particular circumstances, for the Appellants to relocate to the identified safe city. In this case, given the unique physical disabilities of the eldest minor Appellant, I find that it would be unreasonable for the Appellants to relocate within Nigeria to areas without family. The eldest minor Appellant cannot walk. She requires frequent doctor's appointments and medication. She cannot live without her parents. Without family support, I find it would be unreasonable for the Appellants to relocate internally because of the serious physical disability of the eldest minor Appellant. [19] I find that there is no internal flight alternative for the Appellants in Abuja, Port Harcourt or Kano. The eldest minor Appellant would personally face more than a mere possibility of persecution were she to return to Nigeria [20] Although not argued on appeal, I find that the eldest minor Appellant, given her unique circumstances, would cumulatively face discrimination that rises to the level of persecution in Nigeria based on her status as a child with a serious and persistent physical disability. My concern is less that the child would not be able to access some medical care in Nigeria, because there is evidence in this appeal that she did receive some treatment. I note, however, that doctors in Nigeria never diagnosed the child with XXXX XXXX; that occurred only after she was treated by doctors in Canada. [21] My concern relates primarily to the attitudes towards people with disabilities, the inadequate infrastructure and education/occupational opportunities for people in Nigeria2 combined with the age of the eldest minor Appellant. It is my view that a child is more vulnerable to discrimination, marginalization and mistreatment than an adult. A female disabled child may even be more vulnerable, at least in relation to potential physical threats to her safety. The obstacles the minor Appellant child will face in terms of accessing education in particular because of her disability are significant in Nigeria, and there is evidence in this appeal that schools were no longer willing to take her on as a student. The Appellants testified that the eldest minor Appellant can only leave the family home if someone carries her. As she ages this situation becomes more and more untenable, and has a more devastating impact on the ability of this child to leave her home, get adequate medical attention, have friends, receive an education and generally just to live. [22] The eldest minor Appellant would face discrimination that, in my opinion, rises to the level of persecution were she to return to Nigeria. I am guided by the Court of Appeal's decision in Cheung3 in making this finding. CONCLUSION [23] The appeals are allowed. I set aside the RPD's decision and substitute my own determination that the Appellants are Convention refugees. (signed) "Paula Thompson" Paula Thompson November 24, 2019 Date 1 Subsection 110(4) of the IRPA. 2 RPD-1, RPD Record, Item 2.1 (DOS Report). 3 See Cheung v. Canada ( Minister of Employment and Immigration ), [1993] 2 FC 314, 1993 CanLII 2946 (FCA): "Moreover, if Karen Lee were sent back to China, she would, in her own right, experience such concerted and severe discrimination, including deprivation of medical care, education and employment opportunities and even food, so as to amount to persecution." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-10876 TB9-10877 / TB9-10878 / TB9-10879 RAD.25.02 (April 04, 2019) Disponible en français 5 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