TB4-07958

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 File No. / N° de dossier de la SAR : TB4-07958 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 27, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ohene K Andoh Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, (the Appellant), a citizen of the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee. [2] The Appellant did not ask that an oral hearing be held, pursuant to Section 110(6) of IRPA; as such, the RAD must proceed without a hearing. DETERMINATION [3] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, but for different reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [4] The Appellant alleged before the RPD that she had been residing and working in Italy legally since 2007 until her departure for the United States of America (USA) in June 2014. In April 2014, the Appellant married a Nigerian in Italy. Shortly thereafter, they travelled to Nigeria, where unfortunately he was killed in a motor vehicle collision in XXXX 2014. [5] She further alleges that her late husband's family blame her for the death of her husband, and, as such, wanted her to participate in cleansing rituals which involved her having to drink the water which had been used to bathe the corpse. The Appellant refused and travelled back to Italy, where she then travelled to the USA on June 02, 2014. The Appellant spent approximately two weeks with a friend until she crossed into Canada illegally. [6] The Appellant left the USA on June 13, 2014 after crossing into Canada illegally and made a refugee claim on June 14, 2014 at an inland office. [7] The Appellant's application for refugee protection was heard on August 13, 2014. In a decision of August 22, 2014, the RPD rejected her claim. Citing inconsistencies in the Appellant's evidence about key elements of her claim, the RPD found her to be generally lacking in credibility. [8] The Appellant raises several issues: Did the Board make unreasonable credibility findings regarding the testimony of the Appellant? Did the Board err in indicating that the claimant's failure to claim protection in Italy undermines her allegations? Did the Board err in indicating that the claimant's failure to claim protection in the USA undermines her allegations? Did the Board err in denying the Appellant's right to counsel at the hearing; Did the Board err in finding a viable internal flight alternative; and, The Appellant takes issue with the RPD's credibility findings, thereby raising questions of fact.1 ROLE OF THE RAD [9] The Appellant argues that the RPD made numerous errors in rejecting her refugee claim. As such, this appeal raises questions of mixed fact and law in respect to those errors. [10] Counsel has made no submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [11] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. [12] The Appellant challenges the RPD findings on credibility, not considering the totality of evidence, and not placing sufficient weight in the Appellant's explanation in her failure and delay in claiming. The RAD finds that even if the RPD's findings are not supportable, this appeal could not succeed because the Appellant's refugee claim would fail on the basis of the existence of a viable Internal Flight Alternative (IFA). The RAD will also deal with the procedural fairness argument. ANALYSIS Admissibility of Evidence Submitted on Appeal [13] Section 110(4) of IRPA provides that an Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. [14] It is for an Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.4 [15] While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in Section 110(4). [16] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * The Appellant's affidavit, dated September 25th, 2014;5 * A medical certificate of Cause of Death, dated 15th of May, 2014;6 * An affidavit from XXXX XXXX, dated 15th of May, 2014; * Copy of a waybill from DHL International Nigeria, XXXX XXXX, 2014;7 and, * A medical report from XXXX XXXX, MD, about the Appellant dated July 30, 2014.8 [17] Document (a) is the Appellant's affidavit. The RAD would accept those portions of the affidavit that are necessary to explain the origins of the Appellant's new evidence. While this portion of the affidavit would meet the test in Section 110(4), the RAD declines to admit them as new evidence. The Appellant has not complied with Section 110(4), as there is no explanation for this new evidence such as why it was not available before the RPD hearing, where did it come from, and what is the relevance to this claim. [18] Document (b) is a Cause of Death certificate. There is no evidence how it was obtained, who obtained it or how it came into the possession of the Appellant. This document does not pass the test in Section 110(4), as it was available prior to the rejection of the Appellant's refugee claim. There is no explanation provided as to why it was not produced at the RPD hearing. As for the reasons stated above, this document is not admitted as new evidence. [19] Document (c) is an Affidavit from XXXX XXXX. This document is dated prior to the rejection of the claim and prior to the RPD hearing. There is no viable explanation provided as to why this document was not available for the time of the hearing. Accordingly, this document is not admitted as new evidence. [20] Document (d) is a waybill from DHL International Nigeria; again, there is no explanation what the relevancy of this waybill is. As such, without an explanation, this document is also not admitted as new evidence. [21] Document (e) is a report from a medical doctor who examined the Appellant and his assessment is that she apparently is the victim of Human Trafficking at the hands of members of an Italian Mafia. The report also indicates that the Appellant has symptoms of Post-Traumatic Stress Disorder (PTSD). [22] This document appears not to pass the test in Section 110(4), as it arose after the rejection of the Appellants' refugee claim. However, the report is not material to this appeal, where the determinative issue is internal flight alternative. The doctor's findings about being a victim of human trafficking do not affect the RPD's findings on internal flight alternative. The doctor's findings about the Appellant's circumstances are based on self-reporting and are not corroborated with any supportive evidence. While the report speaks to "who survived serial sexual abuse as an orphaned child, adolescent and young adult. She became the victim of human trafficking at the hands of an Italian man, connected with criminal gangs (Mafia) in Italy and endured regular sexual assaults by this man and his fellow gang members." The RAD notes that there is no indication in the doctor's qualifications that he has the expertise to speak to such matters. In fact, the discussion of an issue that goes well beyond the Appellant's medical condition calls into question the objectivity of the report, as it appears it has been written to advocate for the acceptance of the Appellant's claim rather than to provide an objective medical diagnosis. [23] The RAD also finds that the opinion contained in Dr. XXXX report was based on the Appellant's self-report rather than on independent clinical studies. Accordingly, based upon the concerns identified, the RAD finds it cannot give the report weight in assessing the viability of the issue of IFA.9 Therefore, the RAD accordingly does not admit this document as new evidence. Application for an Oral Hearing [24] The Appellant does not request an oral hearing pursuant to Section 110(6) of IRPA. The RPD's Findings [25] The RAD, after a careful review of the RPD's reasons, notes that the RPD found the Appellant to be generally lacking in credibility. The RPD made a finding that the Appellant was not credible overall and that the lack of credibility extended to all aspects of the claim. A review of the reasons and the audio recording of the hearing reveal that the RPD found several credibility concerns which went to the heart of the Appellant's allegations. The RAD respects and recognizes these credibility findings and defers in this regard to the RPD. [26] The Appellant argues that she was not provided with the opportunity to be represented by counsel, thus violating her rights under the Charter. The RAD has reviewed the audio of the hearing of her request for adjournment, and concluded that the presiding member gave a very thorough decision in denying the adjournment.10 The member at no time advised the Appellant that, if she did not proceed with the hearing on that day, her claim could be abandoned. Also, there is nothing in the audio as stated by the Appellant in her affidavit that she was told to proceed with the hearing, or the hearing would be set for a show cause which could lead to an abandonment.11 [27] The presiding member clearly went over all the rules governing the request for adjournment, and explained fully her reasons for not granting the adjournment. The Appellant acknowledged she understood and made no arguments or submissions.12 The Appellant then proceeded to the hearing room for her hearing. At this time, she once again asked for an adjournment,13 and was reminded that she already had a hearing for the request and it had been denied. The Appellant then advised that she could not proceed as she didn't have any documents.14 The presiding member asked if she had any new documents to present at this time. The Appellant replied in the negative. In her affidavit the Appellant states that she was not offered any chance of providing documents post hearing. The RAD notes that the RPD rules clearly state that all documents have to be provided to the Board, ten days before the hearing. It would stand to reason that whether the Appellant's counsel had asked for an adjournment or not, all the documents would have already been submitted to the Board prior to the hearing. [28] The RAD, after reviewing these areas, and, after assessing the evidence before it, finds that the Appellant's arguments are without merit as the evidence before the RAD do not support the arguments made by the Appellant. [29] Credibility in itself is not a determinative issue in many claims; however, each claim has to be reviewed individually in order to make that determination. Even if an Appellant is found to be credible, that Appellant may still not be a Convention refugee (CR) or a person in need of protection. Alternatively, under certain circumstances, a person lacking in credibility with a specific profile may be a CR or a person in need of protection. However, either issue of IFA or state protection can be determinative. [30] Based on the foregoing, I am going to consider only the IFA, after having reviewed all of the arguments which have been brought forward on the appeal. The IFA is a question of mixed law and fact, as will be shown by the following analysis. The IFA involves the application of a legal test to the facts of the case, and, in assessing IFA, the RPD must apply the two-pronged test set out in Rasaratnam15 to the specific circumstances of a refugee claimant when considering a prospective IFA location. [31] The question of whether an IFA exists is an integral part of the refugee definition. The RPD and/or the RAD must be satisfied, based on the evidence assessed, on a balance of probabilities, that there is not a serious possibility of the Appellant being persecuted in the proposed IFA. Further, conditions in the proposed location must be such that it would not be unreasonable, in the circumstances, for the Appellant to seek refuge there.16 [32] If the Appellant can indeed find safety from persecution by fleeing within Nigeria, then she is not entitled to Canada's surrogate protection. [33] The Appellant allegedly suffered abuse from her kinsman (family) after the death of her husband in XXXX 2014 when she attended the village where her family resides. The RPD suggested Abuja as a city where the Appellant could flee her kinsman and live, which is some 519 kilometers from Lagos where she was residing with her late husband. [34] The Appellant suggests that her kinsman would be able to locate her in Abuja, however, there was no persuasive evidence adduced at the hearing by the Appellant that her kinsman or anyone would have any position of authority with the police or Nigerian authorities to allow any one of them to carry out such a widespread and continuous search, and would seek her out in all parts of a country of over 150 million people. The RAD notes the RPD made inquiries about the city of Abuja in regards to an internal flight alternative. Therefore, the RPD found that the Appellant could live in Abuja without fear or the need to hide. If the Appellant doesn't wish to inform others of her presence in this city, there is no reason to believe that her location would be found out. The RPD noted that the city of Abuja is large and located a substantial distance from the village where her kinsmen reside. It would also appear that one would have great difficulty in tracing a person in such a populous country. [35] The Appellant testified that she would not be able to live in Abuja for the following reason. When the RPD asked about living in Abuja, the Appellant testified that her late husband's family is powerful and of royal lineage.17 However, when questioned by the RPD, the Appellant admitted that she had no evidence to support their position of Royalty, nor did she make any efforts to obtain such evidence to support her claim that they are of royal lineage or that one of her brothers-in-law is a XXXX XXXX and could track her through his XXXX resources. The RPD went on further to question as to why she thought that her kinsmen would continue to look for her. The Appellant testified that "because they will still insist that I swear on the cup, the witnesses that I am mad."18 [36] In reviewing the recording of the hearing, the RAD notes that the RPD also applied the correct two-pronged legal test. The RPD Panel found that there are no serious economic or social barriers and that it is not objectively unreasonable for the Appellant to seek refuge in the city of Abuja which it proposed. In determining the reasonableness of a woman's recourse to an IFA, decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA, and the RPD was alert to that. [37] The RAD, after reviewing the recording of the hearing regarding the IFA analysis, finds that the RPD's application of the legal test to the facts of the Appellant's case was realistic, and, after assessing the evidence before it, the RAD reached the same conclusion. [38] The question of IFA is integral to both the definition of a Convention refugee and that of a person in need of protection. As the Appellant can find viable internal flight alternatives in her own country, she does not require Canada's surrogate protection. [39] It is evident from a review of the RPD's reasons that the RPD considered the documentary evidence, and the Appellant's testimony in arriving at its findings. The RAD notes that the RPD had clearly stated how it considered the Gender Guidelines,19 and how it applied them to the Appellant's claim. In the RAD's view, the RPD respected the intent and spirit of the Gender Guidelines. The Appellant does not point to any evidence that the RPD was insensitive or inappropriate in its questions, or that it conducted the hearing in a way that was insensitive to the Appellant's emotional state or her well-being. [40] As such, the issue of IFA is determinative in disposing of this appeal, and it is not necessary for the RAD to consider the other grounds raised by the Appellant.20 DISPOSITION [41] The RAD has assessed the entirety of the evidence and finds that there is an internal fight alternative for the Appellant and since internal flight alternative is a determinative issue, the RAD finds that the RPD's decision to reject the Appellant's refugee claim is supportable. CONCLUSION [42] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho January 27, 2015 Date 1 Velez, Lucas v. M.C.I. (F.C., no. IMM-1030-10), Pinard, November 17, 2010, 2010 FC 1114, para 1. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 Appellant's Record, pages 20-21 6 Appellant's Record, p. 14 7 Appellant's Record, page17 8 Appellant's Record, pages 18-19 9 Saha, Gobinda Chandra v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-5193-08), Phelan, March 23, 2009; 2009 FC 304. 10 Audio recording starting at 00:00:11 to 00:07:15 ( dated 13 August 2014) 11 Appellant's record, page 20, paragraphs 4,5 12 Audio recording starting at 00:2:39 to 00:02:49 ( dated 13 August 2014) 13 Audio recording starting at 00:02:16 to 00:02:20 ( dated 13 August 2014a) 14 Audio recording starting at 00:02:48 ( dated 13 August 2014a) 15 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) 16 Ibid. 17 RPD recording of hearing, time, 01:01:07 ( dated 13 August 2014a) and Appellant's record page 8, Reasons for Decision paragraph 19 18 RPD recording of hearing, time, 01:03:01( dated 13 August 2014a) and Appellant's record page 8, Reasons for Decision paragraph 19 19 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 20 Shimokawa, Oscar Hugo Campos v. M.C.I. (F.C., no. IMM-3925-05), Tremblay-Lamer, April 6, 2006, 2006 FC 445, para. 17 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07958