TB5-01718

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 : TB5-01718 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 May 19, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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 (hereinafter referred to as the P.A.), a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. No new evidence has been submitted in support of her appeal; however, the P.A. requests that the Refugee Appeal Division (RAD) conduct an oral hearing pursuant to ss. 110(6) of the Immigration and Refugee Protection Act (IRPA). The P.A. submits that the RAD either substitutes a positive determination or refers the matter back to a newly-constituted panel of the RPD. [2] In the absence of new evidence pursuant to ss. 110(4) of IRPA, the RAD cannot conduct an oral hearing pursuant to 110(6) of IRPA. DETERMINATION [3] This appeal is dismissed. Pursuant to subsection 111(1)(a) of IRPA, the RAD confirms the decision of the RPD. Background [4] The family of the P.A.'s husband disapproved of their marriage. Initially, after the P.A. bore a son, their relationship improved, however her husband's family demanded that their son undergo rituals, to which she was opposed as a Christian. [5] While in the U.S., the P.A. learned that her husband's family were accusing her of witchcraft, having allegedly caused the death of her husband's uncle. Her husband attempted to reason with them, however without success. She alleges that the community and her husband's family stated that she would be "burned alive" or forced to undergo sadistic traditional rituals, which included mutilation of her face and body. As a result, the P.A. decided not to return to Nigeria, and her husband arranged for an agent to bring her to Canada. ROLE OF THE RAD [6] Counsel argues that a standard of reasonableness should be applied, however a number of recent Federal Court decisions have held that the RAD should not apply the standard of reasonableness. A recent Federal Court decision in Huruglica1 has provided the RAD with guidance, which the RAD will follow. 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." [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. The RAD has applied the reasoning as set out in Huruglica.3 SUBMISSIONS BY COUNSEL a) Did the RPD err in its credibility findings? b) Did the RPD fail to consider relevant evidence? c) Did the RPD conduct a thorough IFA analysis? d) Did the RPD take into consideration the Chairperson's Guidelines for Female refugee claimants? e) Did the RPD err in conducting a thorough s. 97 IRPA analysis? Credibility findings by the RPD [8] The RPD found that the P.A. failed to mention in her Basis of Claim (BOC) that she would be burned alive. This caused the RPD to draw a negative inference as it did not accept her explanation that she was expanding on the threats that were indicated in the BOC. [9] The Appellant submits that under Question 2b of her BOC she states the following: "my family had told me that even members of the community threatened that I will be burned on (sic) lynched if I am sighted in Nigeria", therefore this evidence was congruent. [10] The RAD finds that this credibility finding cannot stand as the Appellant is correct that the BOC contained the foregoing statement. [11] The RPD did not accept that the P.A.'s husband was being attacked by his relatives. It came to this conclusion based on two factors: internally contradicting evidence from the P.A. and the contents of her husband's affidavit. Initially, the P.A. testified that her husband was attacked, however later she indicated that this was not a physical attack, and secondly, the RPD noted that this information was not indicated in the BOC. Moreover, the RPD found that if this were the case, these attacks would have been indicated in her husband's affidavit. As a consequence, the RPD drew a negative inference in this regard. [12] The Appellant submits that she was merely elaborating on what was contained in her BOC, and therefore it was not proper for the RPD to impugn her credibility. [13] The RAD finds that the Appellant's argument is without merit. This is significant evidence, particularly as it relates to the P.A.'s husband's affidavit. Even if the RAD were to accept an elaboration of the BOC, which it does not, when an Affidavit from the P.A.'s husband is submitted into evidence and makes no reference to this attack, the RAD finds that this omission impugns the credibility of the P.A. [14] The RPD considered the ages of the family members (agents of persecution) namely, 65 and 68 years of age and an older member of the family and seemed to suggest that their ages were a factor in being able to force these rituals on the P.A. and her husband. Moreover, the RPD considered the fact that the P.A. and her husband were able to stand up to his parents in 2011, and therefore, they should be able to do so in the future. [15] The Appellant submits that the RPD seems to imply the ages of the agents of persecution were to be seen as an important factor in the Appellant's claim. It is submitted that these agents of persecution were not acting alone, although elderly, had assistance from members of the community. [16] The RAD concurs with the Appellant that even if we were of the opinion that 65 years of age constituted "elderly" and we do not, the age of the agents of persecution is irrelevant and ought not to be a factor to consider in terms of the ability or inability to carry out their threats. The RAD concurs that the P.A. repeatedly stated that she also fears members of the community, and therefore the Appellant's assertion that the agents of persecution would not act alone, in the RAD's opinion, is correct. Internal Flight Alternative (IFA) [17] The Appellant was asked if she could reside in Abuja, the capital city. Her response was that her in-laws would consult the oracle and would therefore learn of her location. According to the P.A., this is a belief held by the family. The Appellant further testified that she does not have a house in Abuja nor money to relocate there. Moreover, the Appellant indicated that in light of her problems, she needed her own family members for support and her children need their father. In response to the latter statement, the RPD asked the Appellant why this was significant in light of the fact her children had not seen their father for over a year, nor had she worked for two years. A review of the transcript reveals that before the P.A. responded to this question, she asked if she could reply in English. Her response indicated that she received help from the government both in Canada and the U.S., whereas this assistance would not be available in Nigeria. She also indicated that she comes from a poor family. The RPD concluded that the fear of being discovered was pure speculation on the part of the Appellant and, therefore, concluded that she would not be located in the named IFA. [18] The P.A. submits that the RPD should have considered, in light of the testimony with respect to the oracle, the implications of being labeled a witch in Nigeria. [19] With respect to the second prong of the IFA test, the P.A. submits the RPD failed to consider the reasonableness of relocating to Abuja. Specifically, she submits that the RPD did not consider the response by the P.A. that she would need financial, material and emotional support if returned to Nigeria as she was unaware of any programs similar to those in Canada or in the U.S. to assist her. Moreover, it is submitted that the RPD failed to consider the contents of the psychological report, indicating that she would require healthcare professionals and her family. [20] The P.A. further submits that the RPD glossed over documentary evidence that speaks to the challenges of relocation for women in Nigeria. (UK Country of Origin Information Report) [21] In order to determine whether a viable IFA exists, the RPD must consider a two-prong test. The basis for this two-pronged test is the cases of Rasaratnam4 and Thirunavukkarasu.5 [22] The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.6 Conditions in that part of the country considered as an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the RPD claimant, for him or her to seek refuge there.7 Claimants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA areas named. [23] The RAD has been sensitive to the situation of women in assessing whether it is reasonable for an Appellant to relocate and in doing so, has considered the Chairperson's Gender Guidelines. The RAD has considered the case of Syvyryn,8 in which the Federal Court of Canada stated that decision-makers must consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship and decision-makers must take into account religious, economic and cultural factors. [24] The RAD has also considered The Home Office UK Border Agency report9 which states that the constitution provides for the right to travel within the country. The report also states that internal relocation to escape ill treatment from non-state agents is almost always an option and, in the absence of exceptional circumstances, it would not be unduly harsh for any individual to internally relocate. [25] The RAD finds that in its oral decision, the RPD did not provide fulsome Reasons. However, after reviewing the transcript of the proceedings, the RAD concurs with its decision with respect to the first prong of the IFA test.10 The RAD finds that the responses by the P.A. were speculative and there was insufficient persuasive evidence upon which the RPD could determine that the agents of persecution would locate the P.A. The RAD refers specifically to the "oracle" being able to provide family members with her new location. There is no persuasive evidence, other than the P.A.'s allegation, that she could be found in Abuja. Moreover, the P.A. has been out of the country for several years. The RAD has considered the foregoing factors, and concludes that the P.A. would not be located in Abuja. [26] With respect to the second prong, the RAD acknowledges that the RPD's reasons are silent on the reasonableness of an IFA. However, after conducting an independent assessment of the entire record, the RAD is not persuaded that it would be unreasonable for the P.A. to live in Abuja. The P.A. has provided no persuasive evidence that she would not be familiar with cultural issues and norms in Abuja. The RAD further notes that the P.A. has travelled to the U.S. on two occasions and now to Toronto, a city where she has no family. Therefore, the RAD is satisfied that it would be reasonable for the P.A. to adapt to new surroundings in Abuja. The RAD finds that the P.A. would be familiar with religious practices. The P.A. testified that she is Christian and practiced her faith when she lived in Nigeria. Documentation has been submitted in support of her participation in the Christian church both in Nigeria and in Canada. The NDP states that approximately half of the population of Abuja is Christian.11 The P.A. testified in English, which is the official language of Nigeria. She states in her BOC that her first language is Yoruba, and initially she used the services of a Yoruban interpreter, however then switched to English. The RAD is satisfied that the P.A. would be familiar with the languages and religion in the city of Abuja. [27] The documentary evidence on internal relocation for victims of violence, by non-state actors, in Nigeria, provides the following information. The Women's Aid Collective (WACOL) stated that if a woman needs physical protection, she can go to the Federal Ministry of Women's Affairs and Social Development. The Ministry would offer protection to the women concerned. However, there are other alternatives for female victims of violence. WACOL stated that it has not been necessary explaining that according to the Legislative Advocacy Coalition on Violence Against Women (LACVAW) there are more than fifty organizations in Nigeria able to refer a woman in need to an available shelter.12 [28] WACOL explained that there was some concern for the vulnerability of under-aged girls and young women relocating, usually due to forced marriage or female genital mutilation (FGM). However, they indicated that internal relocation for adult women is a realistic option.13 The P.A. is thirty-four years of age. WACOL stated that a woman from an influential family might find it more difficult to obtain a location where she would not be recognized and thus be returned to her family.14 The P.A has provided no persuasive evidence that she is from an influential family. [29] An United Nations organization advised that internal relocation is possible and done in practice by adult victims of domestic violence as well as forced marriage and FGM. Many non-governmental organizations provide shelter, counseling and legal assistance to relocating women and some also provide vocational training and post-shelter assistance in the form of empowerment, finding accommodation and employment.15 [30] Although economic concerns are not included in the grounds for refugee protection, it is a concern for a woman living on her own in Nigeria. The RAD must consider this in terms of the IFA being reasonable in all circumstances. The foregoing documentary evidence on internal relocation in Nigeria addresses this particular concern of the Appellent of finding accommodation and employment as well as other concerns. The documentary evidence comes from reliable and independent sources with no interest in the P.A's refugee protection claim [31] The P.A. provided no persuasive evidence that she could not continue to receive support from her family members. The documentary evidence goes on to say that family is not the only option. There are various support networks including religious congregations and religious organizations that one can rely on.16 It is open to the P.A. to involve herself in a church where she could find support in a religious community in Abuja. It is open to the P.A. to involve herself in other organizations for support as well. The RAD finds, on a balance of probabilities, that the P.A. could have moral and spiritual support in Abuja. [32] Moreover, the P.A. provided no persuasive evidence that her husband, who resides in Nigeria and with whom she has kept contact, could not live with her and their two children in Abuja, and therefore, the RAD infers that she would not be a single mother. [33] The documentary evidence also states that people mainly rely on immediate or extended family in a time of crisis. The P.A. testified that she has remained in contact with her husband. Her husband provided an Affidavit. She testified that her husband made the arrangements for an agent to effect her entry into Canada. The P.A. provided no persuasive evidence that she could not continue to receive support from her husband or her immediate family members. [34] Although the RPD was silent on its assessment of the psychological report submitted in support of the P.A.'s claim, the RAD appreciates that the P.A. may require medical attention with regard to her diagnosis of major depressive disorder of moderate severity and posttraumatic stress disorder, requiring mental-health treatment. Apart from the other considerations, the RAD is satisfied that there is no evidence that any psychological or psychiatric support the P.A might need would not be available in Abuja. After conducting an independent assessment of the entire record, the RAD finds that it would not be unreasonable in the circumstances for the P.A. to relocate in Abuja. Section 97 (1) [35] The RAD finds that the P.A. advanced no persuasive evidence to suggest she would face any danger, that is more likely than not, of torture within the meaning of Article 1 of the Convention against Torture. [36] Given the finding above, that the P.A. has an IFA in Nigeria, the RAD finds that her removal would not subject her personally to a risk to her life, or of cruel and unusual treatment or punishment if she returned to Nigeria. CONCLUSION [37] While the RAD concurs with the P.A. that for the most part the credibility findings by the RPD are unsustainable, the determinative issue in this appeal is internal flight alternative. The RAD finds that there is a viable IFA in Abuja. Accordingly, the RAD finds that the P.A. is not a Convention refugee or a person in need of protection. [38] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) "Roslyn Ahara" Roslyn Ahara May 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 5 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 6 Rasaratnam , supra, footnote 7. 7 Thirunavukkarasu , supra, footnote 8. 8 Syvyryn, Ganna v. M.C.I. (F.C., no. IMM-1569-09), Snider, October 13, 2009, 2009 FC 1027. 9 RPD-1, p. 72, item 1.7. 10 Exhibit P-2 Appellant's Record, pp. 50-90. 11 RPD-1, p.91, item 12.1. 12 Ibid., p.73, item 2.2. 13 Ibid. 14 Ibid. 15 Ibid., p. 72, Item 1.4. 16 Ibid. p. 92, item 12.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01718