VC0-02492

RAD File / Dossier de la SAR : VC0-02492 VC0-02493 / VC0-02494 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision April 23, 2021 Date de la décision Panel Jennifer Anne Moore Tribunal Counsel for the persons who are the subject of the appeal Odaro Omonuwa 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] XXXX XXXX XXXX (the principal Appellant), XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX (the associate Appellants) are citizens of Nigeria. The Appellants allegedly fear Boko Haram, Fulani herdsmen and kidnapping gangs. The Refugee Protection Division (RPD) found that the Appellants have internal flight alternatives (IFAs) in Ibadan, Benin City and Lagos and rejected their claims in a decision dated March 11, 2020. The Appellants appeal the RPD's decision to the Refugee Appeal Division (RAD).1 The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that they are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be referred to a different panel of the RPD for redetermination. DECISION [2] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.2 THE ISSUES [3] The Appellants are seeking to admit new evidence in this appeal. [4] The issue on appeal is whether the Appellants have a viable IFA in Nigeria. BACKGROUND [5] The Appellants are a 42-year-old Christian woman and her minor son and daughter. The Appellants are from Imo State and lived in Abia State in the south-eastern part of Nigeria. The principal Appellant has university degrees from both Nigeria and the United States of America (USA) and has worked as a XXXX XXXX XXXX with government schools in Nigeria. [6] The principal Appellant alleges that a militant group in her city is targeting professionals and because she is a XXXX and her former husband was a XXXX, they are prime kidnapping targets. Her brother was kidnapped and killed in 2010 while en route to Port Harcourt where he was employed in the oil industry and she further alleges that she and her husband also became kidnapping targets because they reported her brother's kidnapping to the police. She also alleges that Boko Haram is targeting Christians. [7] The principal Appellant alleges that in 2013, she was at XXXX XXXX XXXX when a group of dangerous looking men sought assistance XXXX XXXX XXXX. Her husband, suspecting they were criminals, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The men, angered at not XXXX XXXX, made threats, and caused damage XXXX XXXX XXXX before leaving. One week later, her husband was allegedly attacked on his way home from work and narrowly escaped. Subsequently, their home was ransacked by unknown people who were looking for her husband. It was around this time that the principal Appellant and her husband separated, and she has not seen him since. She was warned by friends that she might be targeted next as they were unsuccessful in capturing her husband. [8] In 2014, the Appellants moved from Aba to Umuocham after the principal Appellant was shown a letter allegedly written by a kidnapping group asking of their whereabouts. While in Umuocham, people dressed in police uniforms showed up at the principal Appellant's new school. She believed these people to be kidnappers in disguise and, therefore, fled to Yola with her children. However, as Boko Haram was targeting Christians in Yola, the Appellants returned to Aba and from there started to make plans to move to the USA where the principal Appellant intended to pursue a Ph.D. In 2016, the Appellants moved to the USA and the principal Appellant remarried. Her second husband was allegedly abusive and, therefore, in XXXX 2019, she applied for a Canadian visa to flee that marriage. For these reasons, the Appellants came to Canada and once in Canada they made a refugee claim. Their claim was heard by the RPD on March 9, 2020. NEW EVIDENCE [9] The proposed new evidence presented by the Appellants is rejected. [10] According to the law,3 the 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 of their claim. [11] In order to be admissible, the evidence must also be new, credible and relevant to the issues that must be considered.4 [12] It is for the Appellant to make a full and detailed submission in their memorandum about how any proposed new evidence meets the requirements of the law and how that evidence relates to the Appellant.5 New Evidence [13] The Appellants wish to submit a medical report written by Dr. XXXX XXXX XXXX XXXX dated XXXX XXXX, 2020, which details the principal Appellant's mental health. Dr. XXXX assessed her via teams/video and made a diagnosis of XXXX XXXX, other XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX. The doctor also made eleven recommendations including changes in medication, further medical testing, and nutritional and community support. [14] The principal Appellant argues that this report should be accepted as new evidence as it postdates the RPD hearing and it was not reasonably available at the time of the hearing. I disagree. While the medical report postdates the RPD hearing, the evidence contained in the report does not. There was nothing preventing the principal Appellant from presenting this same evidence at the RPD hearing. This is evidence that she could reasonably have been expected in the circumstances to have presented as issues related to the principal Appellant's XXXX XXXX, specifically XXXX was canvassed during her testimony. At one point, she testified, "It was terrible, and now I have XXXX XXXX. I can't XXXX XXXX XXXX XXXX."6 When asked by her counsel if she was employed, she replied: "I don't got a literal job because I've been asked from hospital being having some, XXXX XXXX XXXX. I have my XXXX XXXX everywhere because I have some XXXX that I take that they at least tell me here to take because of the issue I had in US, so they tried to counsel me down to get back myself to get back because most time my XXXX XXXX XXXX, so I finally had to control myself. I can't XXXX XXXX XXXX so the doctor gave me XXXX XXXX which I am able to get here, which I know I can never get it in Nigeria without the support."7 [15] IFA is always an issue that a claimant needs to be ready to address at their RPD hearing. Accordingly, if a claimant believes that an IFA is unreasonable due to XXXX XXXX concerns then it would be reasonably expected that this evidence be made available at the RPD hearing. The Appellant could have made the request to the RPD during the hearing or in the 2 days immediately following the hearing to submit supplementary evidence to support her testimony but did not do so. It is for these reasons that I find that this new evidence does not meet the requirements for admission as set out in s. 110(4) of the IRPA and therefore cannot be accepted. Oral Hearing [16] The request for an oral hearing before the RAD is denied because new evidence has not been admitted. Hearings before the RAD are limited to circumstances when new evidence which is admissible on appeal raises a serious issue with respect to the Appellant's credibility that is central to the decision, and if accepted, would justify allowing or rejecting the refugee protection claim.8 ROLE OF THE RAD [17] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.9 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.10 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [18] Following my independent assessment of the record, including reading the transcript of the proceeding before the RPD, I agree with the RPD that the Appellants are neither Convention refugees nor persons in need of protection. IFA [19] The RPD was correct in its determination that the Appellants had a viable IFA in Ibadan,XXXXBenin City and Lagos. The RPD noted that while there was general country condition information regarding the problem of kidnappers, the principal Appellant did not provide reliable and credible evidence that she was a victim of kidnappers. The RPD also found that there was insufficient evidence to establish the principal Appellant's claim that kidnappers could locate and harm her and her children and that her fears were speculative. The Appellants argue that the RPD failed to sufficiently consider the Appellants' personal circumstances and the specific risks feared by the principal Appellant, and further made its decision without regard to the relevant evidence before it. [20] In Rasaratnam11 the Court of Appeal held that, with respect to the burden of proof, once the issue of an IFA was raised, the onus is on the claimant to show that she does not have an IFA. [21] In order to find that the Appellants have a viable IFA in Nigeria, I must be satisfied, on a balance of probabilities, that the Appellants would not be subject personally to a danger of torture, or to a risk of life or a risk of cruel and unusual punishment or face a serious possibility of persecution in the proposed IFA and that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the Appellants, to seek refuge there.12 [22] The Federal Court of Appeal13 has held that the test is to show that the IFA is unreasonable requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimants in relocating to a safe area. The burden placed on the Appellants is fairly high in order to show that the IFA is unreasonable and actual, concrete evidence of adverse conditions is required. Consequently, if there is a safe haven for the Appellants in their own country, where they would be free of persecution or harm, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so. There is not a serious possibility of persecution or risk of harm in the suggested IFAs [23] There can only be a serious possibility of persecution or risk of harm if the agents of harm have both the means and motivation to locate the Appellants.14 The Appellants have not shown, on a balance of probabilities, that members of kidnapping gangs, or Fulani herdsmen nor Boko Haram have the means or motivation to locate them in any of the proposed IFA locations. [24] The Appellants argue that the RPD provided, "absolutely no reasons why it thought that the Appellants would not be persecuted in Lagos, Benin City or Ibadan". With respect, I believe the Appellants have misunderstood who bears the onus in this regard. The onus is on the Appellants to demonstrate that they would face persecution or harm in the suggested IFAs. In this matter the RPD did conduct an analysis and considered relevant documentary evidence regarding the safety of the proposed IFAs and provided reasons for its determination that the Appellants would not be at risk. [25] The principal Appellant argues that she is personally targeted for persecution for four reasons, namely she is a XXXX and therefore a member of a targeted professional class, the kidnappers were thwarted in their attempts to kidnap her husband and therefore targeted her instead, she studied in the USA and therefore people assume she has money and lastly, because she is Christian. I find each of these reasons to be speculative and unsubstantiated. [26] Specifically, her claims that she would be targeted because of her husband and because she travelled to the USA are only supported by her own speculations or the speculations provided by others. In her Basis of Claim (BOC) form, she states "because I worked as a XXXX and I lived and went to school in the US I would likely (my emphasis) be threatened by the militant group because they target professionals and those that have money"15 and "my friends and neighbours kept giving me more and more warnings that I had to move"16 and "some of the staff knew I studied and went to the United States, so they probably felt I came back with a lot of money" and lastly, "my neighbours were warning me to look after my children, and that because the militants couldn't get my husband I was next".17All of these statements are based on conjecture or assumption and are all insufficient in demonstrating that the principal Appellant was an actual target. Further, the Appellants have not provided any evidence that the kidnappers would have the means to locate them in the proposed IFAs or that they would be motivated to continue targeting her or her children in any of the proposed IFAs. [27] The Appellant was asked specifically why she didn't mention being directly targeted by Boko Haram or the kidnappers in either her interview at the border or in her BOC.18 The Appellant replied that she told the interviewer that she was targeted but there might have been a language barrier. This is not supported by the evidence before me. In her interview with Canadian Border Services Agency (CBSA), she reported to have "never received any direct threats personally".19 In addition, there are multiple references in the evidence and in the testimony of her ability to speak English. Accordingly, I find that the principal Appellant did not claim to be personally targeted in her interview with CBSA and this omission undermines her credibility. [28] The Appellants claim that eastern parts of Nigeria are affected by the militants, while the northern and central parts of Nigeria are affected by Boko Haram and the Fulani herdsmen. This is supported by additional evidence before me that Boko Haram activities are localized in the north-east of the country.20 It is noted that none of the potential IFA locations are located in the areas in which the agents of harm are active. [29] I am satisfied that the first part of the test has been met, and that the Appellants face neither a serious possibility of persecution, nor, on a balance of probabilities, a danger of torture, a risk to their lives, cruel and unusual treatment or punishment in the suggested IFAs. It is reasonable for the Appellants to relocate to a proposed IFA [30] I am satisfied that it is reasonable for the Appellants to seek refuge in one of the proposed IFAs based on their specific circumstances. An IFA cannot be speculative. It must be a realistic and attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the Appellants and that any barriers to getting there should be reasonably surmountable. The Appellants cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. Moreover, the Chairperson's Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution, further outlines that economic, social, and cultural factors, among others, may also be relevant in determining the reasonableness of an IFA for a woman fearing gender-related persecution and I have taken these factors into account. However, it is not enough for the Appellants to say they will receive greater support in Canada than would be available in an IFA. If it is objectively reasonable to live in one of the proposed IFAs, without fear of persecution or risk of harm, then a viable IFA exists and the Appellants are not a refugees or persons in need of protection. [31] The Appellants argue that it would be impossible for them to relocate to one of the proposed IFAs as it is very difficult for Nigerians to move about the country and to find employment or accommodation in a new state. I find this argument to be contradicted by their own evidence. The evidence provided by the Appellants includes at least six examples of where the principal Appellant or her family and friends have moved between Nigerian States. She claims that her family is from Imo State but that her parents lived in Abia State, her uncle lived in Lagos State, and her brother lived and worked in Port Harcourt which is in River State. In addition, the principal Appellant herself, though from Imo State, was born in Abia State, went to the XXXX XXXX XXXX in Enugu State, and lived in Okigwe State (Umuocham) and in Maiduguri State (Yola). She also referred to her friend from Abia State who relocated to Kaduna State. Based on the evidence provided by the Appellants, I find that movement between Nigerian States is common and without the obstacles claimed by the Appellants. [32] The Appellants argue that the RPD failed to properly appreciate the revocation of a RAD Jurisprudential Guide, dealing with IFAs in Nigeria for claimants fleeing non-state actors. I disagree. The RPD based its decision on the objective country condition evidence and in taking into consideration the personal circumstances of the Appellants. The RPD acknowledged that relocation would present difficulties for the Appellants given their profile as a female-headed household but found that the principal Appellant's personal circumstances including her skills and education were sufficient to meet these difficulties. [33] The Appellants also argue that there isn't a viable support system in Nigeria for single women and, therefore, it would be unreasonable for her to return to an IFA in Nigeria. When asked why she couldn't move to a proposed IFA, the principal Appellant said: "In Canada there is support system to assist me to even start from somewhere, but in Nigeria, there is no support system. They are still struggling with security reason that is why a lot people are flying out from Nigeria. There is no security system there and beside I am a married woman with children who would support me. Nobody would support me. I won't have any support that at least I get from here." [34] The principal Appellant has a university degree in XXXX XXXX and a Master's degree in XXXX XXXX XXXX. She has worked as an XXXX XXXX and a XXXX in two different states. She has demonstrated that she is resourceful, and she speaks English well. She may not be able to access the same types of support systems or education systems or health care that she would have access to in Canada but that is not enough to make the IFAs objectively unreasonable. There is country condition evidence before me which indicates that there is no mental illness which cannot be treated in Nigeria, especially in larger cities and while there is some human resource scarcity, there are health care workers at the primary health care level that provide support for common mental illnesses.21 [35] While I understand that there may be some challenges in relocating, I do not believe that these challenges make it objectively unreasonable or unduly harsh for the Appellants to relocate to any of the proposed IFAs. CONCLUSION [36] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Jennifer A. Moore Jennifer Anne Moore April 23, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & s. 111(1)(c). [IRPA]. 2 IRPA s. 111(1)(a). 3 IRPA s. 110(4). 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza 2007 FCA 385 at para. 13. 5 Rule 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 6 Transcript of the RPD Hearing, March 9, 2020, p. 19, line 45. 7 Transcript of the RPD Hearing, March 9, 2020, p. 18, line 10. 8 IRPA s. 110(6). 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 10 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 11 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. 12 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. 13 Ranganathan v. Canada (Minister of Citizenship and Immigration). 14 Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at paras. 3-31. 15 RPD-1, RPD Record, Basis of Claim Form -Associate para 2(b), p 23. 16RPD-1, RPD Record, Basis of Claim Form -Associate para 2(f), p 24. 17 RPD-1,RPD Record, Basis of Claim Form -Associate p 32. 18 Transcript of the RPD Hearing, March 9, 2020, p. 15, line 10. 19 RPD-1,RPD Record, Ministers Evidence, p. 123. 20 National Documentation Package, Nigeria, 30 November 2020, tab 7.22: ?Nigeria's Battle With Boko Haram. Council on Foreign Relations. 8 August 2018. 21 National Documentation Package, Nigeria, 16 April 2021, tab 1.9: ?Country Policy and Information Note. Nigeria: Medical and healthcare issues. Version 3.0. United Kingdom. Home Office. January 2020, p. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-02492 VC0-02493 / VC0-02494 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français