TB5-00110

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 : TB5-00110 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 April 07, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I. Jesuorobo 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 (Appellant), a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal. He has not requested an oral hearing. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination, giving instructions to the RPD to accept the Appellant's claim. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant fears returning to Nigeria because his paternal relatives threaten to harm him because he refuses their demands that his daughter undergo female genital mutilation (FGM). [4] In XXXX 2013, the Appellant, his wife and two children travelled to Canada on vacation in an attempt to have a respite from the hostilities caused by the demands of the Appellant's relatives. After arriving in Canada, the Appellant learned that his XXXX business had been destroyed by his relatives through an act of arson. The Appellant did not agree with his wife's attempt to convince him to make a refugee claim in Canada. In XXXX 2013, the Appellant returned to Nigeria in hopes of resolving the conflict with his relatives. His wife and children remained in Canada and made claims for refugee protection in October 2013. The Appellant experienced further threats and demands to produce his daughter for FGM. In XXXX 2014, while he was hiding at a friend's home, the Appellant was assaulted by relatives and their hired thugs. He was hospitalized for five days. [5] The Appellant arrived in Canada on XXXX XXXX, 2014. [6] The Appellant's hearing for refugee protection was held on December 2, 2014. In a decision of December 15, 2014, the RPD rejected his claim finding that he had a viable internal flight alternative (IFA) in Nigeria. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express Statutory Conditions [7] Section 110(4) of IRPA provides that the 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 expected in the circumstances to have presented, at the time of the rejection. [8] The Appellant provided an article from the UN (United Nations) News Centre, dated January 16, 2015.1 According to the article on January 16, 2015, the UN refugee agency called on the government of Nigeria to suspend the repatriation of hundreds of refugees. [9] Given that the evidence arose after the rejection of the Appellant's claim, the RAD accepts the new evidence. In its analysis, the RAD will consider the relevance of the new evidence and assign weight accordingly. SUBMISSIONS BY COUNSEL [10] Counsel submits that the RPD's decision regarding an IFA is replete with errors of law and fact. ROLE OF THE RAD [11] The recent Federal Court decision in Huruglica2 has provided the RAD with guidance in this regard. In this decision, 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." [12] 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 Alyafi3 has said that in the face of this conflict, the Federal Court should allow the RAD to apply one of two approaches, including the "hybrid appeal" approach described by Justice Phelan in Huruglica4 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.5 ANALYSIS OF THE EVIDENCE Did the RPD err in its IFA determination? [13] In the pleadings, the Appellant essentially argued that the RPD made errors of mixed fact and law in the IFA analysis. The two main primary arguments made are that the RPD failed to recognize that the agents of persecution have great influence in all parts of the country and that they would be able to locate him anywhere in the country and that the proposed locations are unreasonable. [14] The RAD is not persuaded by the Appellant's arguments in this regard. The RAD agrees with the RPD's finding that there is a viable IFA available to the Appellant in Lagos or Port Harcourt. The RAD finds, after reviewing the complete record, including the recording of the testimony, that there is sufficient evidence to support the RPD's findings on IFA and that the RPD appropriately applied the correct test. [15] In assessing an IFA, 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 and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. Moreover, 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 claim, for him to seek refuge there. [16] Both prongs must be satisfied to find that the Appellant has an IFA. The burden of proof rests with the Appellant to show that he does not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose, taking into account the Appellant's identity. An IFA must be a realistic and attainable option. An Appellant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.6 [17] The RPD found that there was no persuasive evidence that there is a resourceful group, whether members of the Appellant's family or those working with the family, that continues to search for the Appellant and seek him out in all parts of the country. The RPD found that given the Appellant's profile, it would not be unreasonable for him to relocate within Nigeria. [18] The Appellant submits that the RPD erred when it stated there was no resourceful group searching for him and erred in finding the Appellant's profile avails him from persecution. [19] The RAD finds that the Appellant failed to provide persuasive evidence to establish that there is a resourceful group searching for the Appellant. In reviewing the recording of the hearing the RAD noted that when the Appellant was asked who was demanding that his daughter be circumcised, he identified members of his father's family, in particular his aunt, his cousins and his father's uncle. The Appellant later testified that while in the home of his friend, XXXX XXXX in XXXX 2014, he was attacked by six family members, that is, two uncles, two aunts and two cousins as well as four hired thugs. The Appellant provided an affidavit from his wife's sister, XXXX XXXX XXXX XXXX, dated April 1, 2014, which states that members of the family of the Appellant's father attended her home on three separate occasions, XXXX XXXX, 2013, XXXX XXXX, 2013, and XXXX XXXX, 2014.7 According to the affidavit it was on the final occasion that the sister encountered three family members, including a soldier and eight thugs. An Affidavit provided by XXXX XXXX, dated November 10, 2014, makes no mention of any further searches for the Appellant after the attack at his home in XXXX 2014.8 No evidence was provided, either in oral testimony or documentary evidence that people continue to search for the Appellant. If someone is searching for the Appellant, and the RAD is not persuaded of this fact, the RAD finds an IFA is reasonable given not only because of the size of the country but the size of Lagos and the size of Port Harcourt as well as the distance of Port Harcourt from the Appellant's home territory of XXXX state. The RAD notes the obvious fact that members of the Appellant's paternal family do not have to be advised about his return to the country and would, therefore, have no knowledge of his whereabouts in Lagos or Port Harcourt. If the Appellant does not wish to inform others of his presence in these cities, there is no reason to believe that his location would be found out. [20] The Appellant has provided no persuasive evidence to indicate that his profile is such that he could not seek refuge in either Lagos or Port Harcourt. The RAD concurs with the RPD'S finding in this regard. In reviewing the documentary evidence, the RAD finds that the Appellant does not have a high profile. The Appellant received his formal education from 1976 to 1991 in XXXX, XXXX state. He resided in XXXX until XXXX 2014. He was self-employed in the XXXX XXXX XXXX in XXXX from 1993 until 2014.9 He was married and had two children while he lived in XXXX. According to independent documentary evidence, the population of the city of XXXX is approximately XXXX XXXX XXXX. The RAD finds nothing in the Appellant's profile that would bring him to the attention of those residing in Lagos or Port Harcourt. [21] The Appellant also submits that the RPD's reasons "incorporated the obnoxious notion that [he] would be safe as long as he hides from the agents of persecution in large cities."10 [22] The Appellant provided no persuasive evidence that the RPD's reasons contained the notion that he would have to hide in the designated IFAs. The RAD first considered information found in the recording of the hearing. The RAD notes that following the Appellant's testimony that he was hiding with a friend in a suburb of Lagos, the RPD asked the Appellant why he could not live in Lagos, the largest city in Nigeria. The Appellant testified that his wife's family resided in Lagos and people had come to question them about the whereabouts of his daughter. He also testified that he was found hiding at his friend's home. The RAD notes that the RPD then asked the Appellant if he could not live independently from his friend or his wife's family in Lagos and set up a business. The RAD finds there was no suggestion on the part of the RPD during the hearing that the Appellant should consider hiding in Lagos. Similarly, the RAD finds there was no suggestion during the hearing that the Appellant needs to hide in Port Harcourt. The RAD finds nowhere in its reasons does the RPD state or suggest that the Appellant needs to hide in Lagos or Port Harcourt. [23] The Appellant submits that the RPD's suggested IFA locations would erroneously translate into him avoiding members of his community and friends who may unwittingly give information regarding his whereabouts to his "influential family", therefore cutting him off from his history and forcing a putative rebirth. [24] The RAD finds that it is speculation on the part of the Appellant that people he knows would unwittingly inform his family of his whereabouts. The RAD notes that it would be the Appellant's choice with whom he communicated. In this submission, the Appellant did not explain his "influential family". In listening to the recording of the hearing, the RAD appreciates that the Appellant testified that one member of the family is a member of the police force and another is a member of the army. However, there was no testimony or documentary evidence provided that any family member possesses any influence. In any event, the RPD did not suggest that the Applicant should give up all indicia of normal life but it found that the risk of contact with his persecutors in Lagos and Port Harcourt was remote and did not rise to the level of a serious possibility. [25] The RPD found that the Appellant provided no evidence to corroborate his testimony that members of his family are in the police force and the army. The RPD also found that it was unreasonable that family members associated with the police or army would, in their positions, seek out the Appellant to force the issue of circumcision given that FGM is banned in many states. [26] The Appellant submits that contrary to the RPD's reasoning, he provided evidence in the form of an affidavit from XXXX XXXX XXXX XXXX who attests to the fact that one member of the Appellant's family, an agent of persecution, is a member of the army.11 [27] The RAD finds that the RPD made an error in finding that there was no evidence with regard to a family member being in the army. The affidavit, mentioned above, states that three relatives of the Appellant's family, including a serving soldier named XXXX, came to the home of XXXX XXXX XXXX XXXX in search of the wife and children of the Appellant. Nevertheless, the RAD gives little weight to this document because it does not establish the profile of the soldier as an influential member of the army. The RAD concurs with the RPD that it is reasonable to expect, given the public nature of the work of a member of the army or the police, that further evidence is available regarding these two agents of persecution. The RAD notes there is nothing in the objective evidence that corroborates that a soldier in the army or a member of the police has the ability to influence army or police activities across the country. [28] Furthermore, the RAD notes that there is insufficient persuasive evidence in the record which demonstrates that the alleged agents of persecution have the wherewithal or interest to pursue the Appellant outside of searching homes of his family or friends. [29] While not affecting the RAD's decision in this appeal, the RAD finds that the RPD improperly made an unreasonableness finding that a member of the army or police would not force the issue of FGM. For the following reasons, the RAD finds it reasonable that a member of the police or a member of the army in the Appellant's family would force the issue of FGM on a family member. The Appellant is of Yoruba ethnicity, and the RAD infers that the Appellant's paternal relatives are Yoruba.12 Independent documentary evidence indicates that FGM is most prevalent among Yoruba and Igbo.13 Apparently, 58.4% of Yoruba women reported undergoing FGM. The Appellant testified that his relatives practiced FGM because of their tradition. A report from the United Kingdom (UK) states that while most Yoruba practice either Christianity or Islam, the practice of traditional Yoruba religious beliefs continues.14 FGM is a deeply rooted tribal traditional practice.15 Additionally, there is ample evidence in the independent documentary evidence regarding the corruption and human rights abuses within the police force and the armed forces and the impunity with which such members act.16 The RAD appreciates that according to the independent documentary evidence, several states have enacted laws prohibiting FGM.17 Nevertheless, there is no national law prohibiting FGM which is the reason for the slow progress on the declining prevalence of FGM.18 In addition, the government of Nigeria is not undertaking significant activities to protect women and girls against FGM.19 Therefore, the RAD finds that a police officer or member of the army would, on a balance of probabilities, act according to their traditional beliefs without concern for the law. [30] The Appellant submits that the RPD demonstrated a remarkable unreasonableness in finding Lagos a safe location when it ignored evidence that the agents of persecution went to the home of the parents of the Appellant's wife in Lagos. The Appellant submits that he was found in XXXX by agents of persecution. The Appellant also submits that, according to the affidavit from XXXX XXXX XXXX XXXX, the agents of persecution tracked the Appellant's wife and children to Benin state. [31] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds it reasonable that agents of persecution would search for the Appellant's wife and children at the homes of his wife's family members such as her parents and sister. The RAD also finds it reasonable that the agents of persecution would search for the Appellant at the home of a friend. The RAD also notes that the city of XXXX is found in the state20 where the Appellant resided until shortly before leaving Nigeria. The RPD did not suggest that the Appellant live with relatives or friends in the IFA. Thus, the RAD finds that the Appellant did not adequately explain how the agents of persecution would come to know he had moved to either of the proposed IFA cities. [32] As stated earlier, the RPD found that it was unreasonable that family members who belong to the police force or army would seek out the Appellant. Also, as stated earlier, the RPD found that there was no persuasive evidence that there is a resourceful group, whether in the Appellant's family or those working with the Appellant's family, that continue to search for him and seek him out in all parts of the country. [33] The Appellant submits that the RPD failed to factor in the fact that his extended family members are involved in his persecution. The Appellant further submits that the RPD unreasonably focused exclusively on the family members in the police and army. [34] The RAD does not agree with the Appellant's argument. The RAD notes that the RPD focused more on the activities of the police officer and member of the army in its reasons. Nevertheless, as can be evidenced in the RPD's reasons, paragraph 16, and stated above, there is a finding of no persuasive evidence that the Appellant's family is searching for him. (RAD panel member's emphasis added) [35] The RPD found that there was no evidence placing the Appellant at a particular risk in Port Harcourt. [36] The counsel for the Appellant argues that this finding "smacks of a higher burden of proof on the Appellant."21 The counsel submits further that the Appellant does not have to have evidence that places him at a particular risk in a place before an IFA can be said not to exist. [37] The RAD finds that it appears that the RPD made an error in this finding of particular risk. The RAD believes that the problem is a conflating of the first and second prong factors. It appears that the RPD was conducting a generalized risk analysis of the IFA in Port Harcourt by indicating that the risk of kidnapping in Port Harcourt is a risk faced generally by others. The RAD will, therefore, consider the Appellant's concerns with regards to an IFA in Port Harcourt as to whether the level of crime in Port Harcourt makes the IFA unreasonable. [38] The test for reasonableness is whether it would be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking status abroad, as per Thirunavukkarasu.22 This requires an evaluation of the conditions in the IFA as well as the circumstances of the Appellant or similarly-situated persons. Thirunavukkarasu23 sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.24 It is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.25 [39] A review of the recording of the hearing indicates that the Appellant testified that he feared being kidnapped in Port Harcourt. He explained that as a stranger to the area he would be kidnapped. The RAD has considered the independent documentary evidence with regards to conditions in the Niger Delta where Port Harcourt is located. [40] A report from the UK provides the following information:26 The Niger-delta region, Nigeria's oil belt has been the site of a generalized ethnic and regional struggle for self-determination since 1998, the location of often violent confrontations between local ethnic communities and agents of the Nigerian state and oil companies involved in the extraction and exploitation of oil in the area. .... Urban cult gangs originate from innocuous cultural groupings of young people that usually grew up together or went to the same school. Over time these evolve into street cult gangs dedicated to the protection of their members and territory and providing them with economic opportunities within their community. ... ...kidnappings now plague wealthy Niger Delta families on a nearly daily basis...In early December, 83-year-old Kamene Okonjo, the mother of Nigeria's finance minister and the wife of a traditional king in the Niger Delta, was abducted from her palace. [41] The RAD appreciates that there are various problems in Niger Delta. However, the RAD finds that the Appellant does not fit the profile of people who are kidnapped, that is, members of wealthy families. There is no persuasive evidence that a stranger, such as the Appellant, in Port Harcourt is subject to kidnapping. The RAD finds that the Appellant also does not fit the profile of those involved in violent confrontations due to the oil industry nor with cult gangs who appear to protect the interest of their members. [42] The RAD notes that the RPD took into account the personal circumstances, education level and work experience. The RAD notes that the Appellant is fluent in the English language. English is the official language of Nigeria.27 As well, the RAD notes that the Appellant is a Christian. He provided evidence from his pastor in Nigeria.28 The independent documentary evidence indicates that approximately 99% of people in Port Harcourt are of the Christian faith and that approximately half of the population of Lagos is Christian. Therefore, the RAD finds the Appellant could practise his religion and communicate with those in the designated IFAs. There is evidence that the Applicant travelled to the United Kingdom in the past and has twice travelled to Canada. [43] The Appellant provided one new document, a report from the UN, as evidence for his case. Counsel submits that the report demonstrates that the Appellant has no reasonable IFA in light of information in the report which states that some 200,000 people have fled Nigeria to neighbouring countries. Counsel submits that the report refutes the RPD's unreasonable assumption that the Appellant has a safe haven in parts of Nigeria because of Nigeria's inability to cope with the safety and reasonable needs of its nationals. The RAD gives little weight to this document for the following reasons. The report refers to the volatile security situation of the northern state of Borneo due to the activities of Islamist extremist group Boko Haram. The RAD notes that this situation is reported within the NDP. The new information is such that the UN called on the government of Nigeria to suspend the repatriation of hundreds of refugees who fled the hostilities because the conflict remains ongoing. According to independent documentary evidence in the NDP and the UN report, the hostilities carried out by Boko Haram continue to be in the northern states of Nigeria. RAD also notes that the IFA of Port Harcourt is at least 1000 kilometres from this area and Lagos approximately 1,500 kilometres. As such, the RAD finds that the violent activities of Boko Haram, on a balance of probabilities, would not affect the Appellant in the IFAs noted above. [44] The RAD finds that the Appellant did not provide sufficient evidence that it would be objectively unreasonable for him to relocate to the IFA cities. There is no evidence which suggested that adequate employment and housing for the Appellant would not be available. The RAD finds that the Appellant has not established that it would be objectively unreasonable for him to re-establish himself in the proposed IFA cities. [45] Once the issue of an IFA is raised, the onus is on the Appellant to show that the option does not exist, by establishing that either of the two tests cited in Rasaratnam29 criteria is not met. The RAD finds that the Appellant has failed to show that the IFA option is not available to him. [46] Given the analysis above, the RAD finds that the Appellant has an IFA in Nigeria. The RAD also finds that the Appellant does not face a serious possibility of persecution there and, also finds, on a balance of probabilities, that his removal to Nigeria would not subject him personally to a risk to his life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. DISPOSITION [47] The RAD finds that there is an IFA for the Appellant, and since an IFA is a determinative issue, the RAD concurs with the RPD's decision to reject the Appellant's claim for refugee protection. [48] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "Lesley Mason" Lesley Mason April 7, 2015 Date 1 Appellant's Record, page 135. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 3 Alyafi, Aghiad v. M.C.I (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799). 5 Ibid. 6 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.) at 596-599. 7 Ibid., pages 31 and 32. 8 Ibid., page 25. 9 Exhibit 1. 10 Appellant's Record, page 140, paragraph 9. 11 Ibid., pages 31 and 32. 12 Exhibit 1. 13 Exhibit 3, Index of National Documentation Package (NDP) Nigeria (14 March 2014), at item 5.4. 14 Ibid., at item 2.2. 15 Exhibit 6, page 2. 16 Exhibit 3, NDP Nigeria (14 March 2014), at item 2.2; Exhibit 5. 17 Exhibit 3, NDP Nigeria, 14 March 2014, at item 5.4 18 Ibid., Exhibit 6, page 2. 19 Exhibit 3, NDP Nigeria (14 March 2014), at item 5.4. 20 Exhibit 3, NDP Nigeria (14 March 2014), at item 1.1. 21 Appellant's Record, page 142, paragraph 16. 22 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.) at 596-599. 23 Ibid. 24 Ranganathan, Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 25 Supra, Footnote 6. 26 Exhibit 3, NDP Nigeria (14 March 2014), at item 2.2. 27 Ibid., at item 1.6. 28 Appellant's Record, pages 29 - 30. 29 Supra, Footnote 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-00110