TB9-17397

RAD File / Dossier de la SAR : TB9-17397 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision November 8, 2019 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Dotun Mosun Davies Barrister and Solicitor 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] XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX (Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD) dated June 14, 2019, rejecting his claim for refugee protection on the basis that he has an Internal Flight Alternative (IFA) in the city of Lagos. He fears that if he returns to Nigeria he will be killed by Fulani herdsmen and Boko Haram because he is a Christian and a XXXX. He is asking the Refugee Appeal Division (RAD) to substitute the RPD determination for a positive one or in the alternative refer back to the RPD for re-determination. He has submitted new evidence and has requested an oral hearing. The RAD has accepted some evidence but has rejected the request for an oral hearing. Based on the RAD's independent review, the RAD agrees with the RPD's finding that the Appellant has an IFA in Lagos and this is determinative of his appeal. DETERMINATION [2] After considering the Appellant's arguments and all of the evidence, the RAD dismisses the Appellant's appeal and confirms the decision of the RPD that the Appellant is neither a Convention1 refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).2 The RAD finds the Appellant could live safely in Lagos and this relocation would not be objectively unreasonable for him. BACKGROUND [3] The Appellant fears being killed by the Fulani herdsmen due to their ongoing and widespread attacks, including attacks directed to his ethnic group, the Kuteb. In XXXX 2017, his wife died during labour because the conflict prevented her from going to the nearest city hospital as villagers who ventured out were being killed. An attack on their village also occurred in XXXX 2018 while the Appellant was visiting the United States (U.S.). Due to this attack, his family has been displaced, he does not know where some of them are, and his uncle and friend were murdered. The Fulani have especially brutally targeted Christians in his community. The Appellant and others have repeatedly reported these attacks to the police but the police have not been able to respond effectively. The Appellant alleges no state protection as the authorities have failed their citizens, and that no IFA is available in Nigeria. The Appellant fled Nigeria in XXXX 2018 for the U.S. and then entered Canada and made his refugee claim. He fears returning to Nigeria and being attacked by the Fulani herdsmen and Boko Haram who he alleges will target him because he is a farmer and a Christian. ROLE OF THE RAD [4] When reviewing the RPD decision, the RAD is required to independently assess all the evidence and determine whether the RPD erred in relation to each alleged error of law, fact or mixed fact and law. For this assessment, the standard of correctness as per the Federal Court of Appeal decision in Huruglica3 is applied. The RAD may defer to the RPD in the exceptional situation that the RPD had a meaningful advantage in the circumstances, and reasons will be provided in that situation. [5] The RAD finds that the RPD was not in an advantageous position regarding the assessment of the Appellant's evidence, and the RAD was able to review and understand the Appellant's testimony through listening to the entire oral hearing as well as a review of the documentary evidence. NEW EVIDENCE [6] The Appellant presents new evidence to support his claim and assertion that there is no viable IFA available to him. His evidence can be grouped into the following categories: a) Affidavit of XXXX XXXX;4 b) A Nigerian police report; c) Handwritten letter to the people of Rufu Village; d) Legal opinion from a lawyer in Nigeria; e) A DHL envelope; and, f) Newspaper articles and internet correspondence relating to a number of topics including the Fulani herdsmen, criminality in Nigeria, and other issues.5 [7] For the following reasons, the RAD finds that only some of the Appellant's new evidence is admissible but that the test for convening an oral hearing is not met. [8] Section 110(4)6 of the IRPA provides that Appellants may present only evidence that arose after the rejection of their claims 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. In terms of evidence that arose after the rejection of the claim, it is the content of the evidence and not the date of the document that is determinative. [9] If the proposed new evidence does meet the requirements of section 110(4), the RAD must then apply the analysis set out in the Federal Court of Appeal's decision in Raza7 as subsequently modified by the same court's decision in Singh;8 effectively the RAD will assess the credibility, relevance and newness of the evidence in order to determine whether it is admissible according to section 110(4) of the IRPA. [10] With respect to the admissibility of new evidence, the burden lies with the Appellant. The RAD applies a narrow interpretation of section 110(4). This is not an opportunity to complete a deficient record submitted before the RPD.9 Affidavit from cousin, police report and threatening letter [11] The Appellant has submitted an Affidavit which he states is from his cousin who resides in Nigeria, XXXX XXXX.10 In this Affidavit XXXX XXXX attests that on XXXX XXXX XXXX 2019 a handwritten letter was delivered to the community leader of the Appellant's home community and in the letter the Appellant is mentioned along with a threat that he would be killed whenever they locate him. The Appellant submits that the Affidavit is credible as it is sworn before the Court and it is relevant as it speaks to the fact that the Appellant's life is in danger as he is still being sought by the Fulani herdsmen. [12] The Appellant has also submitted a Nigerian police report dated XXXX XXXX XXXX 201911 which details the cousin, XXXX XXXX report to the police regarding the threatening note. [13] A copy of a handwritten threatening note addressed to the people of XXXX Village, dated XXXX XXXX, 2019 is also submitted as new evidence. [14] The RAD notes that XXXX XXXX Affidavit's date of XXXX XXXX, 2019 and the Nigerian police report dated XXXX XXXX XXXX 2019 all clearly post-dates the date of rejection which was June 14, 2019, and refers to events which allegedly occurred after rejection and the Appellant could not have reasonably been expected, in the circumstances, to have presented at the time of his claim to the RPD. Therefore, the Affidavit and the Police Report meets the section 110(4) test. [15] The threatening letter is dated XXXX XXXX XXXX 2019, which is XXXX days before the rejection of the Appellant's claim. While the Appellant has not provided an explanation as to why he did not immediately alert the RPD to the letter's existence, particularly given that his name is directly mentioned in it, the RAD accepts that where these events allegedly occurred in Nigeria it is likely he would not have become aware of the letter until after rejection. Thus, notwithstanding the Appellant's lack of explanation as to why he did not become aware of this letter until after rejection, the RAD is satisfied that under the circumstances of close proximity in dates, that the Appellant could not have reasonably been expected to have presented this evidence to the RPD before the rejection of claim. Thus, the threatening letter also meets the section 110(4) test. [16] However, in the RAD's view, this evidence - the threatening note, Affidavit and police report, all do not meet all of the Raza/Singh factors and specifically the jurisprudential requirement of credibility. The Federal Court has outlined the following test for determining the credibility of new evidence: "Is the evidence credible, considering its sources and the circumstances in which it came in to existence? If not, the new evidence need not be considered."12 [17] There are a number of credibility related concerns with the Affidavit, police report and threatening letter. First, the RAD observes that the circumstances in which this evidence came into existence are unclear. For example, there is no explanation from the Appellant as to how his cousin was able to obtain a copy of a threatening note which was not addressed to him, how the Appellant became aware of the notes' existence, and how the Appellant came to communicate with his cousin in Nigeria. The timing of this evidence is also suspect given its close proximity to the rejection of the Appellant's claim and where the contents of this letter, that state that the Fulani herdsmen intend to locate and harm the Appellant throughout the country, attempt to respond squarely to the determinative issue of IFA on which his claim was rejected. Aside from these general credibility concerns, there are concerns individually with each of these pieces of new evidence. [18] Regarding the Affidavit from XXXX XXXX, the RAD observes that there is no accompanying identification documentation, such as a copy of a passport or identity card, which would assist in corroborating the identity of the Affiant. The Affidavit itself does not include content which would clarify how the Affiant became aware of a threatening note with the Appellant's name in it and how he was able to retrieve a copy of it for his own purposes. Further, the Affiant does not explain how he was able to contact the Appellant in Canada. [19] Regarding the "threatening note" itself, the RAD has a number of concerns related to its credibility. First, the note is directed to "people of XXXX village" and the Appellant provides no information to explain how his cousin was able to secure a copy of this letter given that it was not directed to him. The Affidavit of the cousin indicates that the threat was addressed to the community leader, Mr. XXXX XXXX. There is no explanation to explain how the Appellant's cousin was able to secure a threatening note addressed to another party. There is no way of corroborating that the letter is in fact from the "Herdsmen". The RAD also considered the Appellant's testimony in assessing the credibility of these documents. He testified to having reported the herdsmen to the police in the past as he was one of the "few people that are educated" but noted that "so, me, and a few others that are educated, they use to go there to report". He testified to an attack occurring in XXXX 2017 and another attack in XXXX XXXX, 2017.13 The Appellant's Basis of Claim (BOC) indicates that the "attacks by Fulani herdsmen were reported to the police" and he was "one of those who often reported impending attacks on my village to the police authorities".14 Given the Appellant's evidence that he was not the only one to report attacks from the Fulani herdsmen to the police, it is very suspicious that the Appellant's name is the only name mentioned in this threatening note that appears XXXX days after his claim is rejected. [20] In assessing the credibility of the Appellant's new evidence, the RAD also considered the objective documentary evidence indicates the widespread proliferation and availability of fraudulent documents in Nigeria. One source, the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (EU), reported that "[n]early half of all detections of false-document users [attempting to enter the EU] were of nationals from just five countries - Ukraine, Albania, Morocco, Iran and Nigeria" (2012, 26).15 [21] According to the Notary Public, affidavits are "rampantly forge" in Nigeria, particularly in the states of Lagos, Oyo, Delta, Ogun and Osun (16 Oct. 2014). Similarly, the Assistant Superintendent notes the "massive procurement of fake documents, including affidavits," in the same states, as well as in Ondo state (Nigeria 18 Oct.2014).16 The same source notes that the states of Ekiti and Kwara are also 'known for irregular documents' (ibid.)." Further, the RAD observes that it is difficult to establish the authenticity of Affidavits, even ones which contain seals. "Sources note that there are no security features on an affidavit (NBA 20 Oct. 2014; Nigeria 20 Oct. 2014; ibid. 14 Oct.2014)."17 According to the Assistant Superintendent, it is "almost impossible" to determine the authenticity of a document by an "[on the] spot assessment" (ibid.). The Assistant Superintendent noted that "the seal does not establish [an affidavit's] authenticity as all fake ones also do carry [the] seal" and that court staff involved in fraud will "pocket" a deponent's money, forge the signatures of the Commissioner for Oaths and return the affidavit with "signatures and seal" (18 Oct. 2014). The Notary Public noted that the official stamp and signature of the Commissioner for Oaths can "easily be forged" (16 Oct. 2014).18 [22] For all of these reasons, which consider the sources, documentary evidence, the circumstances in which this evidence came into existence and concerns regarding the authenticity of the evidence, the RAD finds that the Affidavit, police report and threatening note are not credible and are not admissible as new evidence. Legal opinion of Nigerian Barrister, XXXX XXXX, dated XXXX XXXX, 2019 [23] The Appellant is seeking to submit the legal opinion of XXXX XXXX. It is argued that it is relevant because it speaks to the threat regarding the operations of the Fulani herdsmen, their plans to overtake the South West, and the heightened fear of insecurity in the South West where Lagos is situated due to attacks from Fulani herdsmen. The Appellant further submits that it is new as it arose reasonably after the determination of the Appellant's claim and contradicts the RPD findings regarding the operation of Fulani herdsmen in the South West which includes Lagos. [24] Regarding the admission of the legal opinion, the RAD finds that the bulk of the material referred to in the legal opinion represents a repeat of information which was available to the RPD at the time the Appellant's claim was heard, or the information contained within the legal opinion was reasonably available to the Appellant at the time of his claim. There is no explanation from the Appellant as to why he did not seek to present a legal opinion at the time his claim was assessed. The Appellant was represented by Counsel and was open to present a legal opinion at that time. For these reasons, the RAD finds that despite the date of correspondence, the contents deal primarily with events which pre-date the refugee claim or argument relating to the Appellant's failed claim. The Appellant has given no evidence as to why this evidence was not reasonably available or why he could not reasonably have been expected to provide this evidence prior to his claim. Accordingly, the criteria of section 110(4) are not met and the RAD declines to accept this legal opinion as new evidence. The purpose of section 110(4) is to allow an Appellant to provide the RAD with information that arose after the decision date, or was not reasonably available or that the Appellant could not reasonably have been expected in the circumstances to have presented. Section 110(4) is not to be used to complete a deficient record submitted before the RPD.19 News articles [25] The Appellant is submitting as new evidence a number of articles and information he submits are relevant as they contradict the conclusion of the Panel regarding the reach and operation of the Fulani herdsmen in Nigeria. [26] The RAD has found that the information contained from pages 33 to 65 is admissible as this information post-dates rejection and meets the jurisprudential requirements. They are prima facie credible, as the information is primarily from newspapers or other online sources of news. They are relevant in that they speak to the situation of the Fulani herdsmen in Nigeria, which is the group the Appellant fears. They are new in that they describe facts which arose after the claim and after the appeal was perfected. Therefore, this information is admitted. However, the RAD finds that this information does not meet the requirements for a hearing under section 110(6),20 as they do not raise a serious issue of credibility, nor are they determinative. [27] The Wikipedia article on herder-farmer conflicts in Nigeria and the journal article "Electronic Jihad in Nigeria: How Boko Haram is Using Social Media",21 an undated Unites Nations (UN) research brief22 and a number of articles which describe activities of the Fulani herdsmen or other criminality events from pages 79 to 120 of the Appellant's Record, are not admissible because this evidence does not meet the requirements of section 110(4). The bulk of the information outlined in the Wikipedia article pre-dates rejection, the journal article is dated December 9, 2017, the United Nations research brief article is undated, and the articles from pages 79 to 120 all pre-date rejection. Further, the Appellant has not provided any explanation as to why these articles were not reasonably available. Given that all of these articles are easily accessed online, the RAD finds, that the Appellant has not provided sufficient explanation for why these documents were not reasonably available to him. They are rejected as new evidence. [28] Travel advisory information related to the country of Nigeria, including a Government of Canada travel advisory, is not admissible as a version of this information was easily accessed online and was reasonably available to the Appellant at the time of rejection. The Appellant has not provided any explanation as to why this information was not reasonably available to him for presentation to the RPD. This travel advisory information is rejected as new evidence. [29] An article titled, "Nigeria - Events of 2018", dated January 11, 2018, is not admissible as the article pre-dated rejection, is easily accessed online and was reasonably available to the Appellant at the time of rejection. The Appellant has not provided any explanation as to why this information was not reasonably available to him for presentation to the RPD. This article is rejected as new evidence. [30] The Appellant has submitted articles related to mental health and suicide in Nigeria, the majority of which post-dates rejection, and so meets the section 110(4) requirements, and that were published in newspaper sources accessible online. The Appellant submits in his Memorandum that this information is relevant in an IFA analysis. The RAD has accepted these articles and admitted them into evidence. [31] Finally, the Appellant has submitted articles related to age and employment, which he submits is relevant to an IFA analysis. The first article which was published in Aljazeera in June 2, 201923 is admitted, and so meets the section 110(4) requirements. However, the second Law Digest article dated August 10, 201724 is not admitted as this article, was easily available to the Appellant pre-rejection and there is no explanation from the Appellant which explains why it was not reasonably available to him to present to the RPD. DHL envelope [32] The Appellant is submitting a DHL envelope which he states was used to receive new evidence from Nigeria. It is argued that it is new because it arose in relation to new evidence that arose after the determination of the Appellant's claim and it is credible as it emanates from a well-known courier company. It is submitted that it is relevant to the Appellant's claim because it speaks to the new details which are contradictory to the Panel's findings. [33] The RAD reviewed the DHL envelope photocopy in the record and is unable to decipher a date on the envelope or any information regarding who or where the envelope originated from. As such the RAD finds the Appellant has failed to demonstrate that this envelope meets the requirements of section 110(4). Further, the RAD is unable to find any relevancy of this envelope to the Appellant's claim. This envelope will not be admitted as new evidence. APPLICATION FOR AN ORAL HEARING [34] The Appellant has requested an oral hearing. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. [35] According to section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [36] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,25 in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [37] As discussed above, the RAD has accepted some new evidence as detailed above. However, this new evidence that has been admitted is in the form of newspaper articles and other information which do not raise a serious issue with respect to the credibility of the Appellant. As such, the RAD is not permitted to hold a hearing in this appeal. RPD DECISION [38] The RPD found that there was no serious possibility that the Appellant would be persecuted or that he would be subjected, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the IFA of Lagos. [39] In making this finding, the RPD found that the Fulani herdsmen and Boko Haram did not have the means, resources or capacity to locate the Appellant in Lagos. Further, the RPD's analysis of the personal factors of the Appellant supported a finding that his relocation to Lagos would not be objectively unreasonable. APPELLANT'S ARGUMENTS [40] In brief, the Appellant argues on appeal that the RPD erred in its analysis and determination that the Appellant has a viable IFA in Lagos. It is submitted that the RPD erred as follows: a) The RPD erred in its IFA analysis by not giving the Appellant's individual circumstances appropriate consideration; b) The RPD failed to give proper consideration to the Appellant's testimony regarding his inability to live safely in the IFA; c) The RPD did not consider the objective evidence which indicates that the Fulani Herdsmen and the Boko Haram have the means and motivation to carry out widespread attacks and the reports which show that their tentacles spread to the south-west; d) The RPD was incorrect to conclude that the only way the Appellant would be sought is through a nationwide search warrant and if the objective evidence before the RPD was mixed on the capacity of the Fulani Herdsmen, it ought to have weighed in favour of the Appellant; e) The RPD was wrong to conclude that issues or indigeneship and ethnicity would not rise to level of undue hardship; f) The Appellant would not be able to continue in his agriculture field in a commercial city, unemployment is high, and his ability to secure employment in the IFA is speculative; g) The Appellant would be subject to homelessness, violence, high rent for housing, high crime rates, ethnic and religious classes and general violence in the IFA; and, h) There is a lack of availability of medical and mental health care as evidenced by a high rate of suicide in the IFA. ANALYSIS [41] Having conducted an independent assessment of the evidence, the RAD finds that the determinative issue is that of an IFA. Internal Flight Alternative (Ifa) Test for IFA [42] The test to apply in order to determine whether a viable IFA exists is two-pronged: (i) there is no serious possibility of the Claimant being persecuted or subjected, on a balance of probabilities, to a danger of torture or to a risk to their life or of cruel and unusual treatment or punishment in the proposed IFA area, and (ii) conditions in the IFA area 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.26 The threshold is very high for the unreasonableness test.27 [43] The Jurisprudential Guide (JG) states that internal relocation in Nigeria is generally considered to be viable for refugee Claimants and Appellants fearing non-state actors. The JG indicates that the framework of analysis could apply to many types of claims from Nigeria where the stated fear is of non-state agents. In this case the Appellant is in fear of non-state actors. The JG makes clear in several paragraphs28 that the evaluation of the viability of the IFA will depend on the individual facts and taking into account the Appellant's personal circumstances. The RAD finds that the RPD did exactly that. The RPD considered each of the factors mentioned in the JG in the context of the Appellant's personal circumstances. Most importantly, the Appellant has not pointed to any specific facts or personal circumstances or evidence that was not considered by the RPD, nor to any facts that were improperly considered by the RPD. The RAD finds that in both the first and second prong of the IFA analysis, the RPD did turn their mind to the specific facts and circumstances of the Appellant. First prong of the IFA test The Herdsmen and Boko Haram Do Not Possess the Means to Locate the Appellant in the IFA of Lagos [44] The Appellant believes that he is danger as noted in his BOC: I will be killed or taken captive by invading Boko Haram Terrorists or Fulani Cattle Herdsmen. No protection would be forthcoming for me from the State of Nigeria of which I am a citizen. I would be harmed or mistreated or threatened by the Fulani Herdsmen because in the former case, I am a Christian, therefore an infidel who deserves to die, and, in the second case, I would be taken as an opponent who wishes to drive the Herdsmen and their cattle from grazing on the land belonging to my village and destroying farm crops in the process. My village has been exposed to enormous hunger these past few years owing to the activities of the cattle and Herdsmen on the farms.29 [45] The Appellant submits that the objective evidence shows the attacks carried out by Boko Haram and Muslim militia reveals that they have the resources, manpower, ammunition, motivation and even social media presence and technology at their disposal which they attack innocent citizens including victims of persecution and that is why they have been successful in their attacks in the past.30 It is further argued that the RPD "blindly concluded" that the Appellant's evidence did not establish that the Fulani herdsmen have sufficient power or wealth to mount a nationwide search for the Appellant.31 And, the Appellant points to the Boko Haram and other Fulani militia employing the use of social media such as Facebook, YouTube and Twitter and that the Appellant would be unable to have an online presence if he were to return to Nigeria to the IFA as he has a Facebook account.32 [46] The RAD agrees with the RPD and finds that there is insufficient evidence that the Fulani herdsmen or the Boko Haram are sufficiently organized, powerful or have the means to find and harm their enemies in a large urban area which is located far away from the conflict. And, the RAD further finds that the RPD appropriately weighed the available objective documentary evidence in support of this finding. [47] The objective documentary evidence indicates that the Fulani herdsmen lack a presence and do not have an apparent desire to exert authority in Lagos State where Lagos is located. The Fulani herdsmen are nomadic herdsmen who reside in the Southern and Central part of Nigeria,33 primarily in what is referred to as the country's Middle Belt34 and the Fulani herdsmen are usually focused on accessing land for their cattle.35 Such herdsmen have become renowned for violent clashes with locals,36 clashes which are reportedly driven by "the real or perceived need to protect themselves or their livelihoods." [48] The new articles that were admitted as new evidence by the RAD regarding the Fulani herdsmen does not support a finding that the Fulani herdsmen have a substantive profile in the city of Lagos or that they intend to establish such a presence in the future. The reports of violence by this group are limited to the Middle Belt states in Nigeria and there is essentially no evidence of Fulani herdsmen attacks in urban Lagos.37 For example, the Amnesty International report on file The Harvest of Death: Three Years of Bloody Clashes Between Farmers and Herders in Nigeria includes a map of where these types of attacks have occurred; it indicates that there have been zero deaths in Lagos attributed to such attacks over the period January 2016 - October 2018.38 In fact, as reviewed in the country condition information above, the state where the IFA is located is among the safest in terms of actual attacks from the Fulani herdsman. The new evidence provided by the Appellant regarding the Fulani herdsmen are also of limited probative value in establishing the means by which the Fulani herdsmen would be able to locate the Appellant in a large city such as Lagos. [49] Further, the RAD prefers the objective documentary evidence to newspaper articles which indicate that these agents of persecution generally are not able to track individuals who move to other areas of Nigeria. Neither the Fulani herdsmen nor the closely associated group, the Boko Haram has the capacity to track "average citizens" like the Appellant. For example, the Response to Information Request (RIR) at Item 7.26 of the National Documentation Package (NDP), the capacity of Boko Haram to pursue individuals who relocate to another region or city, such as Lagos, notes that Boko Haram is primarily active in northern Nigeria. It discusses the organization's structure, describing it as "a complex of factions, cells and groups that owe limited allegiance to [the organization's titular head] Abubkar Shekau and his core group of followers." The RIR quotes an expert on Boko Haram who states that "the ability of Boko Haram to track down an 'average citizen,' such as someone who fled one of the cities that Boko Haram captured in 2014 or 2015, is 'doubtful.'"39 The source noted that Boko Haram's ability to pursue an individual diminishes as one moves away from their home base in the northeast of Nigeria and that they are most likely to track and target relatively high-status individuals, such as local government area officials. The Research Director quoted in the RIR said that she was not aware of any targeted attacks by Boko Haram on individuals in the south of Nigeria, and that "there have been 'very few attacks in general' by Boko Haram south of the Middle Belt states."40 [50] While the Appellant fears that he will be found and harmed by the Fulani herdsmen and Boko Haram should he return to Lagos, the Appellant has not established through sufficient credible evidence that there is a serious possibility of either of the agents of persecution having the means, resources or capacity to locate and harm him in Lagos. [51] The onus is on the Appellant to show that he does not have an IFA. Given that he has provided no detail about any specific mechanisms through which either of the agents of persecution would be able to search for him, beyond asserting that their reach is moving into the IFA area and that they "have the resources, manpower" and they "employ the use of social media", the RAD finds that the Appellant has not offered sufficient persuasive evidence to show that there is a serious possibility that he would be persecuted or on a balance of probabilities face a risk of section 97(1) harm by either Fulani herdsmen or Boko Haram in Lagos. The RPD did not err in its analysis of the reasonableness of the proposed IFA [52] The RPD found that it was objectively reasonable, in all of the circumstances particular to the Appellant, for him to relocate and live in Lagos. The Appellant stated reasons for being unable to live in Lagos, such as his indigeneship and ethnicity, were found to not rise to the level necessary to make the proposed IFA unduly harsh. [53] On appeal the Appellant disputes the RPD's analysis of the second prong of the IFA test, noting that the RPD was wrong to conclude that issues or indigeneship and ethnicity would not rise to a level of undue hardship. It is also argued that the Appellant would suffer undue hardship in the IFA due to unemployment, homelessness, violence, high rent for accommodation, high crimes rates, an inability to work in the agricultural field, lack of medical and mental health care, and ethnic and religious clashes. [54] The RAD agrees with the RPD and finds that while there may be hardships in Lagos, it is not unreasonable for the Appellant to move there. [55] The RAD concurs with the RPD that the Appellant did not provide sufficient evidence to show that it is unreasonable for him to relocate to Lagos City. [56] The RAD has considered the various factors detailed in the JG in assessing whether it is reasonable for the Appellant, with regard to his particular circumstances, to relocate to Lagos. The Appellant argues that these factors, when assessed against the Appellant's personal circumstances, support a finding that the IFA location of Lagos is objectively unreasonable. [57] Regarding transportation and travel, Lagos has an international airport and the Appellant could fly directly there without having to travel within Nigeria. The Appellant speaks English which is widely spoken in Lagos. His ability to speak and understand English mitigates against a finding of unreasonableness of Lagos as an IFA. The Appellant concurs that while transportation to Lagos may be safe, travel within the city is unsafe due to high rates of criminality including serious criminal acts such as robbery, kidnapping and terrorism. [58] With respect to the security and criminality situation in Lagos, the Appellant did not demonstrate or provide any evidence to indicate how or why he would personally be a victim of such violence in the future. The documentary evidence does show that security conditions in Nigeria are difficult. However, much of the documentary evidence indicates that security conditions are especially concentrated in regions other than where the IFAs are located.41 And concerning the general argument that the city of Lagos is not sufficiently safe, the objective evidence shows that violence, kidnappings and robberies are a problem throughout Nigeria. However, persons with particular profiles are at greater risk, such as high-profile foreigners, Nigerian nationals, wealthy families, politicians, government officials, relatives of celebrities, businessmen, doctors, teachers, foreign residents and religious leaders.42 The Appellant does not meet any of these profiles. [59] The RAD has also considered the Appellant's argument concerning his prospect for employment in Nigeria and concerns that he would be subject to unemployment or homelessness. The Appellant is university educated with five years of university attendance and speaks English, the national language of Nigeria.43 While the Appellant reports to be currently unemployed, he did not testify to any impediment which would bar him from seeking work and he is clearly advantaged in terms of his educational background. The JG refers to the documentary evidence which indicates that the level of education is low in Nigeria and that someone who "has achieved post-secondary education or has meaningful work experience...may be in a better position in terms of securing employment, where such opportunities exist, than the average Nigerian." [60] While country evidence shows high levels of poverty to affect a large proportion of Nigeria's population, the RAD finds that given the high educational level of the Appellant, it would not be unduly harsh to expect that they would be able to find employment in Lagos City, even though the process of doing so might be challenging and he may have to look for work other than in the agriculture field. [61] Regarding the Appellant's argument that he will experience religious clashes in the IFA due to his Christianity, the RAD finds this is not borne out by the country condition documents. The country evidence indicating that the "the situation for Christians in Lagos State is 'normal' and that they live 'peacefully' along with people of other religions" and that while "there have been 'isolated occurrences' of violence based on religion in Lagos, including against Christians, Muslims and 'traditionalists,' [...] these acts are 'relatively few' [...]."44 The documentary evidence submitted by the Appellant, in the RAD's view is an example of these "isolated occurrences". According to the documentary evidence,45 40% of the population in Nigeria are Christians, and that the situation for Christians in Lagos is "normal" and they live "peacefully" with people of other religions. The Appellant, being a Christian, would also have the benefit of the Christian community in Lagos to assist in him in his integration in that city. The RAD finds that the Appellant's Christian religion mitigates against a finding of unreasonableness of Lagos as an IFA. [62] Regarding the Appellant's indigeneship status, there is no evidence in the NPD that the Appellant would be discriminated against, or have trouble in Lagos because of where he came from, namely from the middle belt and his Hausa ethnic group status. Moreover, a source in the NDP for Nigeria notes: Indigeneship status is less important in big cities such as Lagos, Abuja, and Lagos than it is in other places, in terms of access to public jobs or ownership of land, because the indigene population in these areas has been "overwhelmed" by migrants to the cities. He explained, for example, that the establishment of the Federal Capital Territory pushed the indigenes of Abuja further from the "center of influence." However, he also indicated that indigenous ethnic groups continue to dominate the market for land in Lagos, and that indigenes of the Niger Delta, have been demanding a greater allocation of jobs in the region's oil industry. Non-indigenes also face discrimination in the field of politics. Nevertheless, the Professor stated that, in other industries, they can generally find work where there is a demand for it.46 [63] The RAD finds that the Appellant has not brought sufficient evidence to show that his indigeneship status mitigates against a finding of unreasonableness of relocating to Lagos. [64] Regarding the argument that forcing the Appellant to return to Nigeria would lead to severe mental breakdown and probably suicide and the lack of mental health facilities in Lagos, the RAD agrees that an Appellant's psychological state or trauma should be a factor in assessing hardship in the IFA. However, the RAD finds that the report only addresses the Appellant's return to Nigeria generally, and does not provide actual and concrete evidence of conditions which would jeopardize the Appellant's life and safety in Lagos. There is no evidence that the Appellant has been receiving psychological therapy or intervention since coming to Canada. There is evidence that there is some mental health care available in Nigeria, though it is not up to Canadian standards.47 The documentary evidence48 is that Nigeria does have mental health facilities and that in general, medical and mental health facilities are concentrated in the large cities, such as Lagos. [65] As well, a distinction must be maintained between the reasonableness of an IFA and humanitarian and compassionate considerations. The fact that an Appellant might be better off in Canada emotionally than in a safe place in his own country is not a factor to consider in assessing the reasonableness of the IFA.49 Hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable. [66] The RAD examined his personal specific circumstances and, the Appellant's testimony and the documentary evidence and in considering all of the above-mentioned factors concludes that relocation to Lagos is not unreasonable. [67] Based on the RAD's cumulative review of the evidence, it finds that it would not be objectively unreasonable or unduly harsh to expect the Appellant to relocate to Lagos. [68] Given the finding that the Appellant has a viable IFA, his appeal must fail. CONCLUSION [69] The RAD has analyzed the record, listened to the audio recording and considered the Appellant's arguments. This independent analysis of the evidence reveals that the RPD did not err on the availability of an IFA and its decision is correct. The RPD conducted a clear and well-reasoned IFA analysis, and correctly concluded that a valid IFA exists given the facts and evidence of this case. [70] This finding is determinative of the appeal. [71] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act. (signed) "Kim Polowek" Kim Polowek November 8, 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. Huruglica, 2016 FCA 93. 4 Exhibit P-2, Appellant's Record, at p. 10. 5 Exhibit P-2, Appellant's Record, at p. 30 to 166. 6 110(4) Evidence that may be presented On appeal, the person who is the subject of the appeal 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. 7 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para 54. 10 Exhibit P-2, Appellant's Record, at p. 10. 11 Exhibit P-2, Appellant's Record, at p. 15. 12 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, at para. 13; and, Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 13 Exhibit P-2, Appellant's Record, at p. 182, Transcript of RPD hearing at p. 13 of 29. 14 Exhibit RPD-1, RPD Record at p. 25, Second page of additional pages of Basis of Claim form (BOC) (Appellant's BOC at 2 (c) and BOC narrative at p. 2). 15 National Documentation Package (NDP) for Nigeria, April 30, 2019, at Item 3.23. 16 NDP for Nigeria, April 30, 2019, at Item. 9.2. 17 NDP for Nigeria, April 30, 2019, at Item. 9.2. 18 NDP for Nigeria, April 30, 2019, at Item. 9.2. 19 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 20 110(6) Hearing - The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 2001, c. 27, s. 110 2010, c. 8, s. 13 2012, c. 17, ss. 36, 84. 21 Exhibit P-2, Appellant's Record, Journal article at pp. 68 - 72 AND Wikipedia article at pp. 64 to 66. 22 Exhibit P-2, Appellant's Record. UN Research brief at pp. 73-76. 23 Exhibit P-2, Appellant's Record, at p. 159. 24 Exhibit P-2, Appellant's Record, at p. 164. 25 Immigration and Refugee Protection Act, S.C. 2001, c. 27; section 110(4). 26 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 27 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) at paras 15-16, citing Thirunavukkarasu. 28 Nigeria Jurisprudential Guide at paras 13, 15, 19, 20-21, 30. 29 Exhibit RPD-1, RPD Record, Appellant's BOC at 2(b), at p. 14. 30 Exhibit P-2, Appellant's Record, at p. 201, Appellant's Memorandum, at para. 41. 31 Exhibit P-2, Appellant's Record at p. 203, Appellant's Memorandum, at para. 48. 32 Exhibit P-2, Appellant's Record at p. 203, Appellant's Memorandum, at paras. 50 and 51. 33 NDP for Nigeria April 30, 2019, Item 7.13. 34 NDP for Nigeria April 30, 2019, Item 7.13. 35 NDP for Nigeria April 30, 2019, Item 7.13. 36 NDP for Nigeria April 30, 2019, Item 7.13. 37 Exhibit RPD-1, RPD Record, Appellants BOC at 2(b), at p. 14. 38 Exhibit P-2, Appellants Record at p. 201, Appellants Memorandum, at para. 41. 39 NDP for Nigeria, April 30, 2019, at Item 7.26. 40 NDP for Nigeria, April 30, 2019, at Item 7.26. 41 NDP for Nigeria, April 30, 2019, at Item 7.12 42 NDP for Nigeria, April 30, 2019, at Item 7.3. 43 Exhibit RPD-1, RPD Record at p. 35, Appellant's Schedule A at p. 2. 44 NDP for Nigeria, April 30, 2019, at Item 12.5. 45 NDP for Nigeria, April 30, 2019, at Item 12.5. 46 Exhibit RPD-1 Exhibit 5, NDP, Item 13.1. 47 NDP for Nigeria, April 30, 2019, at Item 1.9. 48 NDP for Nigeria, April 30, 2019, at Item 1.9. 49 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), para. 16. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17397 RAD.25.02 (April 04, 2019) Disponible en français 21 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