VB9-07027

RAD File / Dossier de la SAR : VB9-07027 VB9-07028 / VB9-07029 / VB9-07030 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal 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 XXXX (a.k.a. XXXX XXXX) Personnes en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision December 23, 2019 Date de la décision Panel Derek Vermette Tribunal Counsel for the persons who are the subject of the appeal Harry Blank, Q.C. Barrister and Solicitor Conseil de la|des personne|s en cause Designated representative XXXX XXXX XXXX (a.k.a. XXXX XXXX) for XXXX XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX) Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, a.k.a. XXXX XXXX, her husband XXXX XXXX XXXX, a.k.a. XXXX XXXX, their minor daughter XXXX XXXX XXXX, a.k.a. XXXX XXXX, and their minor son XXXX XXXX XXXX, a.k.a. XXXX XXXX (collectively the Appellants), are citizens of Nigeria, and appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. [2] By way of background, the Appellants fear their return to Nigeria would cause them to be threatened, harmed and possibly killed because of their refusal to have village kinsmen perform Female Genital Mutilation (FGM) on XXXX. [3] The RPD determined that the city of Abuja was a viable Internal Flight Alternative (IFA) for the Appellants. An IFA is a location within Nigeria where the Appellants would be safe, and where it would be reasonable for them to relocate. The RPD determined that the availability of Abuja as an IFA was determinative of the Appellants' claims. [4] The Appellants argue that the RPD erred in concluding that Abuja was safe, and erred in concluding that it would be reasonable for the Appellants to live in Abuja. [5] I have determined that the RPD was correct in finding that Abuja is a viable IFA for the Appellants, and that this viable IFA is determinative of the Appellants' claims. I therefore dismiss the appeals, and confirm that the Appellants are neither Convention1 refugees nor persons in need of protection. NEW EVIDENCE & ORAL HEARING [6] The Immigration and Refugee Protection Act (IRPA)2 anticipates that an appeal to the Refugee Appeal Division (RAD) will ordinarily be based on the record of the RPD proceeding. Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in section 110(4) of IRPA, namely, that it arose after, was not reasonably available, or could not reasonably have been expected to have been presented at the time the claim was rejected. If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant and new, as per Singh.3 [7] The Appellants have submitted documents that they request I accept as new evidence pursuant to section 110(4) of IRPA, and they have also requested that I grant an oral hearing pursuant to section 110(6) of IRPA. Before I can hold an oral hearing pursuant to section 110(6) of IRPA, there must be new evidence, described in section 110(4) of IRPA, admitted on appeal. [8] I am unable to grant an oral hearing pursuant to section 110(6) of IRPA because, for the reasons that follow, I am not accepting the tendered documents as new evidence pursuant to section 110(4) of IRPA. [9] On September 30, 2019, the RAD received the Appellants' Record, which included the following additional documents that the Appellants requested to be accepted as new evidence: (a) a New York Times article dated December 13, 2006, entitled, "In a Dream City, a Nightmare for the Common Man";4 and (b) a BBC News article dated February 13, 2007, entitled, "Life of Poverty in Abuja's wealth."5 [10] As referenced in the Overview section above, the RPD had decided that the city of Abuja is a viable IFA. The Appellants argue that Abuja is not a viable IFA, and they submit the New York Times article to show that Abuja does not have the greatest reputation, and that the difference between the elite and the workers is so great that it is almost impossible for the non-connected elite to survive properly in Abuja. [11] The Appellants argue that the BBC article describes the same situation. They argue that Abuja is no place for ordinary people, like the Appellants, who have no connections. The Appellants submit that they tried, but were unable to get a reasonable job and to be able to afford the cost of housing and cost of living in Abuja. The Appellants submit there is no decent housing anywhere unless you are a multi-millionaire. [12] Appellants' Counsel argues that the two articles are being submitted because the Appellants had no way of knowing that the issue of Abuja as an IFA would be brought up at the RPD hearing. The Appellants submit that Abuja was only mentioned at the RPD hearing, and the Appellants were not given the opportunity to properly address Abuja as an IFA. The Appellants argue that there was procedural unfairness, and that there is therefore reason for a new hearing. [13] In a memo dated September 20, 2019, Appellants' Counsel stated, "The undersigned advises the Appeal Section of the Refuge Board that we are not invoking the elements of proof as set out in paragraph 110(4) of the IRP;" It is not clear what this statement means. [14] In any event, I find that the two articles submitted do not meet any of the criteria in section 110(4) of the IRPA. The information in those articles did not arise after the claim was rejected, but rather arose well before the claim was rejected. This is evidenced by the fact that the articles are dated December 13, 2006, and February 13, 2007, whereas the RPD hearing was conducted on August 12, 2019, and the RPD decision was issued August 14, 2019. [15] There are no compelling reasons provided to explain why those approximately 12.5 year-old articles were not reasonably available at the time of the RPD rejection. They were both from major news sources and thus would have been reasonably available (i.e., the New York Times and BBC). In fact, the footer information at the bottom of each of the pages of the articles indicates a date of July 22, 2019, evidencing that the article was accessed and printed before the RPD hearing on August 12, 2019. [16] I reject the argument that the Appellants could not reasonably have been expected to have been presented this information at the time the claim was rejected. The issue of whether there is an IFA is a forseeable issue in refugee hearings. If the Appellants had needed additional time at the RPD hearing to submit evidence and make submissions with respect to whether Abuja was an appropriate IFA, then they could have made that request at the RPD hearing. However, I listened to the audio recording of the RPD hearing, and the city of Abuja was discussed as an IFA; Appellants' Counsel gave submissions addressing Abuja as an IFA; and at no time did the Appellants or their Counsel who represented them at the hearing, request additional time to file information or make submissions post-hearing concerning whether Abuja was a viable IFA.6 ROLE OF THE RAD [17] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. ANALYSIS [18] An IFA is a determinative issue because if the Appellants can find safety from persecution by fleeing within Nigeria, then they are not entitled to Canada's surrogate protection. This is because a claimant must be a refugee from a country, not from a particular region of a country. Thus, the existence of an IFA is fatal to any refugee claim. [19] The test to be applied in determining whether there is an IFA is two-pronged:7 * The Board must be satisfied on a balance of probabilities that there is no serious possibility of persecution in the part of the country to which it finds an IFA exists and no risk to life or risk of cruel and unusual treatment or punishment or torture; and * 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 claimant, for him or her to seek refuge there. The threshold to show that the IFA is unreasonable requires nothing less than the existence of conditions which would jeopardize the life and safety of the claimant and that actual and concrete evidence of such conditions is required.8 [20] Both prongs must be satisfied to find that the Appellants have an IFA, and once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellants to show that they do not have an IFA. [21] The Chairperson of the Immigration and Refugee Board has identified a Jurisprudential Guide (JG)9 that deals with IFAs in Nigeria for claimants fleeing non-state actors. The JG provides persuasive reasoning that assists Members in addressing the viability of an IFA in Nigeria for those fearing non-state agents as well as factors often considered in assessing the reasonableness of proposed IFAs. The JG is not binding, and I remain free to reach my own conclusions, based on the facts of this case. I have considered the reasoning in the JG in this case given that the facts underlying the JG are sufficiently close to those in this case. Specifically, the IFA identified in the Appellants' case is Abuja, which is one of the cities considered by the JG. In addition, the Appellants are fleeing non-state actors.10 Paragraphs 13 to 30 of the JG consider the objective evidence of conditions in the proposed IFAs, including Abuja. I will refer to the JG in my analysis below. There is no serious possibility of persecution in Abuja and, on a balance of probabilities, no risk to life or risk of cruel and unusual treatment or punishment or torture [22] Having reviewed the Record, I find that the RPD correctly concluded that there is no serious possibility of persecution in Abuja and, on a balance of probabilities, no risk to life or risk of cruel and unusual treatment or punishment or torture. My reasons are set out in the following paragraphs. [23] The RPD accepted that the Appellants' previous daughter had died during an FGM procedure, and that kinsmen are now making efforts to perform FGM on XXXX. However, the RPD found that Abuja was a safe IFA. The RPD determined that the Appellants could relocate to Abuja without facing a serious possibility of persecution or a likely risk of harm. The RPD found that the Appellants were familiar with the city and were not harmed while living there in the past. The RPD concluded that the Appellants had not provided sufficient evidence to demonstrate that the uncle, his connections, or the kinsmen have the capacity to locate the Appellants in Abuja. [24] The Appellants argue that the RPD erred by concluding that Abuja was a safe IFA when XXXX had testified that he had previously left Abuja as a result of having received harassment calls from people involved with his tribe and village who threatened to harm him if he did not subject his daughter to FGM. The Appellants argue it is unreasonable to expect XXXX to return to Abuja given that those people who had found him in the first place, or others in his town, would be able to locate him and he could suffer physical harm or death. [25] The Appellants previously resided in Kano (2006-2010), Abuja (2010-2013) and Lagos (2013-2017), and they were discovered in those locations. However, I find that the fact that they were contacted when they previously resided in Kano, Abuja and Lagos, is not sufficient evidence to establish that they will be contacted and exposed to danger if they were to relocate to Abuja now. I reached this finding after listening to the audio recording from the RPD hearing, and concluding that there are obvious reasons behind the Appellants being discovered when they lived in Kano, Abuja and Lagos. [26] The reasons for them being discovered are that XXXX uncle had long known where XXXX worked in Kano when he sent a letter to XXXX workplace;11 XXXX gave his phone number to a kinsmen he bumped into in Abuja;12 and XXXX attended the same church as his brother in Lagos.13 All of these circumstances appear more likely to have led to discovering XXXX whereabouts, versus XXXX general assertion that his uncle could obtain his whereabouts from the connections his uncle has as a XXXX XXXX XXXX. XXXX did not provide any specific information with respect to his uncle's ability to obtain information about XXXX whereabouts by using his XXXX XXXX XXXX XXXX XXXX XXXX. The evidence is insufficient to establish that the uncle's connections are willing and able to locate people anywhere in Nigeria. [27] The reasons behind the Appellants being discovered when they lived in Kano, Abuja and Lagos are no longer applicable. XXXX no longer works for the same employer that he worked with while he was in Kano. Therefore, his family network will be unaware of where he works in the future unless he voluntarily discloses it. The same applies with respect to the situation that occurred in Abuja. If XXXX happens to bump into a kinsmen again, he can choose not to voluntarily disclose his whereabouts. With respect to the events in Lagos, XXXX was attending the same church as his brother in Lagos, and this will not be the case in the IFA of Abuja. The IFA of Abuja can remain safe if the Appellants do not voluntarily disclose their whereabouts. [28] The threat in Abuja was limited to just one phone call, and was after XXXX had given his phone number to a kinsmen he met. The caller said he was calling on behalf of the king, and the threat was to bring XXXX in for circumcision, or they would take her by force and carry out the FGM.14 XXXX testified that nobody he was afraid of approached him in person while he was in Abuja.15 [29] The RPD's conclusion is correct when it stated at paragraph 18 of its decision: "Overall, I find that the claimants could relocate to Abuja without facing a serious possibility of persecution or a likely risk of harm. They are familiar with the city and were not harmed while living there in the past. The claimants did not provide sufficient evidence to demonstrate that the uncle, his connections, or the kinsmen have the capacity to locate the claimants there." [30] My assessment above is consistent with the JG, mentioned previously. Paragraph 19 of the JG indicates that the documentation shows that there are several very large, multilingual, multiethnic cities in south and central Nigeria, including the capital of Abuja (2.44 million people), where persons fleeing non-state actors may be able to safely establish themselves, depending on their own particular circumstances. The JG recognizes that each appeal is dependent on an appellant's arguments, the individual facts and the assessment of the appellant's personal risk, but that from an objective perspective, grounded in the jurisprudence and country information available in the National Documentation Package, IFAs in these large cities are likely to be widely available to many whose stated fear is of non-state actors. It would not be unreasonable, in all the circumstances, including those particular to the Appellants, for them to seek refuge in Abuja [31] Having reviewed the record, I find that the RPD correctly concluded that Abuja was a location that was not unreasonable for the Appellants to relocate to. My reasons are set out in the following paragraphs. [32] The RPD found that it was reasonable for the Appellants to relocate to Abuja, taking into consideration factors such as their age, education, work experience, language, and the infrastructure, services and amenities in Abuja. The RPD also found that tribal issues would not make relocation unreasonable given that tribal discrimination does not apply in larger urban centres such as Abuja. The RPD considered whether the female Appellants would face gender discrimination, but concluded that relocation for women is reasonable and that it would not be unduly harsh for the female Appellants to relocate to Abuja. [33] The Appellants argue that the RPD erred when it found that it would not be unduly harsh for the Appellants to live in Abuja. The Appellants submit that it is completely unreasonable for the Appellants to move to Abuja and live a reasonable life. They submit that it is almost impossible to find a job that provides a reasonable salary, and there is a very high cost of living. The Appellants also suggest that there is a shortage of accommodations. The Appellants argue that a person needs connections in Abuja, and they do not have any connections in Abuja or elsewhere to assist in getting a job, or finding accommodations at a reasonable rate. [34] The JG, mentioned previously, explains that there is a non-exhaustive list of factors that may be considered in determining whether the conditions in a potential IFA render it objectively unreasonable for a claimant or appellant to seek refuge there. These factors are: travel and transportation, language, education, employment, accommodation, health care, culture, indigeneship, and religion. At paragraph 22 of the JG, it is noted that the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution16 was considered, and whether and how facts including religious, economic and cultural factors affect women in the IFA. [35] With respect to travel and transportation, Abuja has an international airport and is linked by roads.17 There is no indication that the female Appellants would be travelling alone, and thus there are no issues related to gender that render Abuja to be unreasonable due to travel or transport considerations. I find no other transportation or travel concerns which would render Abuja unreasonable or unduly harsh. [36] With respect to the factors of language and religion, the Appellants each speak English, Yoruba and Igbo, and belong to the Christian religion.18 The JG indicates at paragraph 24 that English is the official language in Nigeria, and a large percent of the population speak Hausa, Yoruba, Igbo (Ibo) and Fulania in the major centres. The JG further states that 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. This is supported by a recent Response to Information Request (RIR) that indicates that there is a diversity of languages spoken in large cities, and that there is no language barrier in cities such as Lagos, Abuja and Port Harcout unless the person is not English-speaking.19 The JG indicates fifty percent of the population is Christian, and 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. All of this tends in favour of the IFA being reasonable in this case. [37] With respect to education and employment, the JG indicates that where an appellant has achieved post-secondary education or has meaningful work experience, they may be in a better position in terms of securing employment, where such opportunities exist, than the average Nigerian. XXXX has a Bachelor of XXXX degree in XXXX.20 XXXX has a Bachelor of XXXX XXXX XXXX in XXXX.21 XXXX worked XXXX XXXX and XXXX.22 XXXX has worked as an XXXX XXXX with a XXXX XXXX in Lagos, an XXXX XXXX in Port Harcourt, XXXX XXXX XXXX in Kano, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Lagos, a XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.23 While the Appellants have argued that it is difficult to find a job that pays a reasonable salary, they have not demonstrated that this rises to the level of being unduly harsh in their particular circumstances. Recall that the threshold to show that the IFA is unreasonable requires nothing less than the existence of conditions which would jeopardize the life and safety of the claimant and that actual and concrete evidence of such conditions is required. [38] With respect to indigeneship, XXXX, XXXX and XXXX are of Edo nationality, and XXXX is of Igbo nationality.24 The JG indicates that due to significant migration to large, urban cities, indigeneship is not a significant barrier to relocation in these cities. It is further indicated that indigeneship is less important in big cities such as a Abuja. The Appellants have not shown that any discrimination that could be faced in Abuja on the basis of their ethnicity or non-indigeneship would rise to the level that it would render Abuja to be unreasonable or unduly harsh as an IFA. [39] The JG indicates 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. In this case, the Appellants have not shown that such considerations in their case would rise to a level that would render the proposed IFA of Abuja objectively unreasonable or unduly harsh in their particular circumstances. [40] With respect to accommodation, the Appellants do not face the challenges of a female headed household that were argued in the JG, and that are discussed in a recently released RIR.25 In this case, XXXX and XXXX are married, and while they have argued that there is a high cost and shortage of accommodation, they have not demonstrated that accommodation in the proposed IFA of Abuja is unreasonable or unduly harsh in their particular case. CONCLUSION [41] I dismiss the appeals and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Derek Vermette" Derek Vermette December 23, 2019 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 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Exhibit P-2, Appellants' Record at p. 20. 5 Exhibit P-2, Appellants' Record at p. 28. 6 CD Audio from RPD Hearing 17:03:46 to 17:04:26; 17:56:31 to 17:57:25; 18:03:48 to 18:04:00; 18:08:50 to 18:09:55; 18:15:51 to 18:17:36. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 8 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 at para. 15 (FCA). 9 X (Re), 2018 CanLII 52123 (CA IRB). 10 XXXXX was unable to identify anyone in particular in the government that he fears, saying it could be "anybody" (CD Audio from RPD Hearing 17:55:22 to 17:55:50). XXX testified that she was afraid of the "whole government" because she could not find safety (CD Audio from RPD Hearing 18:08:19 to 18:08:49). 11 CD Audio from RPD Hearing 17:14:57 to 17:16:25; and 17:57:54 to 17:59:06. 12 CD Audio from RPD Hearing 17:25:00 to 17:27:11. 13 CD Audio from RPD Hearing 17:56:56 to 17:57:54. 14 CD Audio from RPD Hearing 17:25:02 to 17:25:56; and 17:27:12 to 11:28:34. 15 CD Audio from RPD Hearing 17:52:00 to 17:52:12. 16 Immigration and Refugee Board of Canada, Chairperson's Guideline 4:Women Refugee Claimants Fearing Gender-Related Persecution, Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, Effective Date: November 13, 1996. 17 National Documentation Package for Nigeria (November 29, 2019), Item 1.2. 18 Exhibit RPD-1, RPD Record at pages 15, 29, 41 and 51,Questions 1(f) and (g). 19 RIR, NGA106361.E dated October 30, 2019, Section 5.2.1, https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457953. 20 Exhibit RPD-1, RPD Record at p. 24. 21 Exhibit RPD-1, RPD Record at p. 84. 22 Exhibit RPD-1, RPD Record at pages 24, 114 and 115. 23 Exhibit RPD-1, RPD Record at p. 24 to p. 25. 24 Exhibit RPD-1, RPD Record at pages 15, 29, 41 and 51, Question 1(e). 25 RIR, NGA106362.E dated November 20, 2019, https://irb-cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=457961. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07027 VB9-07028 / VB9-07029 / VB9-07030 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français