TB9-00822

RAD File / Dossier de la SAR : TB9-00822 TB9-00823 TB9-00824 TB9-00825 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 24, 2019 Date de la décision Panel Dilani Mohan Tribunal Counsel for the persons who are the subject of the appeal Akinwumi Reju Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons for allowing the appeal by the Appellants: XXXX XXXX XXXX (Mr. S), XXXX XXXX XXXX (Mrs. S), XXXX XXXX XXXX (XXXX) and XXXX XXXX XXXX (XXXX). The Refugee Protection Division (RPD) rejected their claims because it found that the claims were not well founded and because it believed the Appellants had an internal flight alternatives (IFA) in Abuja and Port Harcourt. The Appellants dispute the RPD's findings. After independently reviewing the record, I find that the RPD was in error. I overturn its decision and substitute a decision that the Appellants are Convention refugees. BACKGROUND [2] The Appellants are a Nigerian family who fear that they will be separated from one another and forced to undergo or accept the traditional practice of female genital mutilation (FGM) if they return to Nigeria. Mrs. S was herself circumcised at age 4 and suffered serious complications as a result of that circumcision when she gave birth to her two daughters. As a result of this experience, both Mr. and Mrs. S refused to have their daughters circumcised. It is alleged that Mr. S's mother and sister have been relentless in pressuring the Appellants to accept the tradition of circumcision; that they have accused Mrs. S of bewitching her husband; and that they are insisting that Mrs. S separate from her husband. [3] The Appellants' claim was heard on December 5, 2018. On the day of the hearing, the RPD considered Counsel's submissions on the Appellants' late disclosure of an audio file on a CD, a written translation of that audio file, a letter from XXXX XXXX, and amendments to the Appellants' Schedule A forms. Although the RPD admitted the letter and the Schedule A amendments, it refused to admit the CD and the accompanying transcript because it did not have access to a CD drive to listen to the audio file. The Appellants' Counsel offered to provide the evidence on a USB drive, which the RPD had indicated was the only acceptable format, but this offer was rejected because the RPD stated it would not be able to question on that evidence if it was accepted post hearing.1 [4] A few weeks later, on December 17, 2018, the RPD rejected the Appellants' claims. It found that the Appellants' claims were not well founded and, secondarily, that the Appellants have access to safe internal flight alternatives in Abuja and Port Harcourt. Arguments on Appeal [5] The Appellants argue that the RPD erred and breached principles of natural justice when it refused to admit the CD and transcript evidence into the record. They further argue that the RPD erred by failing to consider evidence regarding the ineffectiveness of state protection against FGM in the Appellant's home state and nationally. Finally, they argue that the RPD erred in its assessment of the reasonableness of the IFA locations and that it failed to apply the Chairperson's Guideline 42 regarding women refugee claimants. [6] The Appellants have submitted a news article as new evidence. They were also requested to provide the Refugee Appeal Division (RAD) with the audio recordings and a transcript since they were not included in the Appellants' record. The Appellants did not request an oral hearing. ROLE OF THE RAD [7] The RAD conducts its own analysis of the record to decide whether or not the RPD's decision was wrong. The RAD generally does not owe any deference except in cases where the RPD held a meaningful advantage in assessing the credibility of oral evidence. I do not find that the RPD enjoyed a meaningful advantage in this particular case. The standard applied on this appeal is therefore one of correctness. NEW EVIDENCE AND ORAL HEARING [8] The Appellants have submitted, as new evidence, a news article which they seek to have admitted into the record. The Appellants also provided the audio files and the certified translation of the recordings upon my request, since this rejected evidence was not included in the Appellants' record. [9] The law3 states that the Appellant can only present evidence that arose after their claim was rejected, 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. It is up to the Appellants to make full and detailed submissions about how any of the proposed new evidence meets the requirements of the law and how that evidence relates to the Appellants.4 [10] In addition, if the new evidence meets one of the factors set out in the law, then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for subsection 110(6) and the request for an oral hearing.6 The news article is admitted [11] The news article, titled "Nigeria's 2019 Elections: Six States to Watch"7 is dated December 21, 2018. This post-dates the RPD's decision, and I find that it satisfies subsection 110(4) of the IRPA. In considering the Singh factors, I find the articles comes from a credible and reliable source, the International Crisis Group. I also find the information relevant given that it relates to conditions and challenges faced in the proposed IFA locations. I further find this evidence to be new because it reflects issues that arise in the context of upcoming elections and which is not necessarily already in the RPD record. For these reasons, I am admitting the news article as evidence. The audio recordings and transcripts are admissible [12] The Appellants attempted to submit this evidence at the time of their hearing, but, for procedurally unfair reasons, they were denied the opportunity. I find that the evidence meets the test under subsection 110(4) of the IRPA. Because this evidence corroborates a significant event in the Appellants' narrative, I find it relevant. I further find it credible because the translation of the audio comes from an Immigration and Refugee Board of Canada (IRB) accredited interpreter who has also certified the translation. The audio recordings and their accompanying transcripts are relevant because they corroborate incidents that the Appellants allege in their narrative. This evidence is new because the RPD chose, wrongly, to exclude it from the record. And I consider this information new because nothing similar exists in the evidentiary record. Although the Appellants could, or rather should, have included this evidence with the Appellants' record, I find that the RPD's refusal to admit this evidence justifies the late introduction of this evidence. ANALYSIS The breach of natural justice justified overturning the RPD's decision [13] The determinative issue is the RPD's treatment of the CD and transcript evidence, which I find breaches principles of procedural fairness. The Appellants correctly note that there is no policy at the Board requiring that video or audio evidence be provided in any particular format. In fact, the rules of evidence in refugee proceedings are fairly lax in recognition of the inherent difficulties that claimants may encounter as they prepare their claims. [14] I note that, although the CD and transcript were part of some late disclosure, the RPD did accept the other documents, and thus I find that there was no issue with the late submission of this evidence. In fact, the RPD's sole and express objection to this evidence was the fact that it was not in an accessible format, such as a USB key, which the RPD could easily have requested. The Board could also have considered the transcript of the audio but failed to do so. [15] I find the RPD's refusal to engage with the evidence that was presented in any meaningful way and, specifically, the RPD's failure to review the transcript of the audio in order to assess its reliability, credibility, and relevance disregards procedures that were established to consider the admissibility of evidence. I recognize that the RPD expressed a concern that it did not want to rely on the transcript for audio that it could not listen to, but, again, I stress that the RPD could have sought to have the file converted into an acceptable format for review or considered the evidence post hearing. I also note that the Appellants offered to put the evidence in USB format but that this offer was dismissed. The RPD's reasoning that allowing the evidence as post-hearing submissions would prevent it from questioning the Appellants on that evidence is flawed. The RPD had jurisdiction to resume the hearing and ask further questions. It could have done this as many times as the circumstances required without becoming functus. The RPD Rules provide flexibility for decision-makers to allow them to respond to the particular circumstances of each case before them. This is why, if a decision-maker cannot find an applicable rule, they may also invoke Rule 69, which allows the RPD to "do whatever is necessary to deal with the matter." [16] I further agree with the Appellants that they could not have known to provide the audio recording on a USB or alternate format in the absence of any policy, statutory or regulatory guideline to that effect. It was incumbent on the RPD to inform the Appellants of its constraints and make the necessary accommodations to facilitate consideration of the evidence that the Appellants had obtained. [17] I therefore find that the RPD was in error and in breach of principles of procedural fairness which demand that claimants be afforded a fair opportunity to present their case and to know the case to meet. The RPD's decision on the admissibility of this evidence breached the Appellants' rights to present the evidence they had adduced due to reasons that they could not have anticipated. The RPD also erred by refusing to assess the factors under RPD Rule 36 that must be considered before determining whether to allow or deny late disclosure. [18] I find these errors to be significant enough on its own to overturn the RPD's decision. The decision is therefore overturned, and I move now to consider the totality of the evidence and the merits of the Appellants' claim. The Appellants' allegations are established, on a balance of probabilities [19] I find that the Appellants' testimony was generally credible, detailed, and consistent with their narrative and the documentary evidence. The primary issue in this claim is whether Mrs. S's in-laws believe that she has bewitched her husband into refusing his mother's request to circumcise their daughters. The heart of the Appellants' claim, although initiated by a fear of FGM for their daughters, is essentially that they fear an attack against Mrs. S, or forcible separation from her so that Mr. S's mother and sister can pressure him into allowing the girls to be cut. [20] On that understanding, I find the Appellants have established their allegations on a balance of probabilities. The audio recordings and transcription of an altercation match the Appellants' narrative description of the XXXX XXXX, 2017 incident between the Appellants and Mr. A's mother and sister. The audio and transcript demonstrate a very palpable anger and violent intent towards Mrs. S. Although the recording does not refer to circumcision, there is repeated mention that Mrs. S must be removed from the family and separated from her husband.8 I therefore accept that Mrs. S's life is at risk and that her in-laws are motivated to harm her and separate her from her family. I find that this risk to Mrs. S also endangers the lives and security of Mr. S and the children who would be not only emotionally scarred, but also deprived of a relationship with Mrs. S. [21] Although the RPD noted that Mrs. S had lived with her mother-in-law for one year after the birth of her children and that the Appellants had lived in Ibadan for four years without incident (between 2013 and 2017), I do not find that those issues carry as much weight in light of my reframing of the central claim. When considering a claim based solely, or primarily, on risk to the children, it understandably would raise credibility concerns that the Appellants had lived for one year with one of the people whom they feared would carry out the circumcision. However, upon close reading of the narrative and transcript of the hearing, it is apparent that Mr. S's mother was expressing her disapproval at that time and still engaging in an effort to persuade her son and daughter-in-law to change their minds. The Appellants did not allege a fear at that time that Mr. S's mother and sister would forcibly circumcise their daughters without their consent. What they testified to was that they increasingly came to fear attacks and threats against Mrs. S, since she was the one being beaten and threatened when she visited her in-laws. [22] I find that evidence in keeping with the information in the National Documentation Package (NDP) which shows that extended family members will generally tolerate a joint decision by parents not to circumcise their daughters.9 That evidence shows, however, that parents, particularly mothers, may face considerable ostracism and pressure to change their minds as a consequence of that decision.10 State Protection [23] I find that the Appellants face a serious possibility of persecution in Ibadan and Lagos where they previously lived. Police are the primary source of state protection. The documentary evidence shows that police are unlikely to intervene because of "traditional attitudes" that uphold these practices.11 The laws that were instituted to protect women and girls from violence and FGM are also ineffective because they are not enacted throughout the country, and, where enacted, they are poorly implemented.12 [24] These particular Appellants have testified that Mr. S's sister, XXXX, is well connected and that she knows high-ranking police officers. In support of this, the Appellants submitted audio evidence in which XXXX and her mother call a high-ranking officer (IG) from Abuja. Another audio recording contains the statement of Mr. S's friend, XXXX, that he was tricked into providing his address information and then assaulted by several policemen who accompanied XXXX to his home in an effort to learn information about the Appellants' whereabouts.13 As I have stated earlier, I find the translation of this evidence reliable, and I accept that it corroborates the Appellants' claims that XXXX was able to hire police officers for her personal use. Given the involvement of the police in pursuing the Appellants, I find that the Appellants have established, on a balance of probabilities, that they will not be able to access state protection in Lagos or Ibadan, and they face a serious possibility of persecution in those areas. However, I must also consider whether there are other parts of Nigeria where the Appellants could live safely. Internal Flight Alternatives [25] The test14 to determine whether refugee claimants should be required to seek safety elsewhere in their country of origin is two pronged. The first prong asks whether there are any locations in the country of reference where a refugee claimant may live without facing a serious possibility of persecution. That assessment involves considering how motivated the agents of persecution are in finding the claimants and their capacity to reach them. If a safe location can be identified, then the RPD must consider the second prong of the test, which asks whether it would be reasonable under the circumstances to ask a person to relocate to that place. [26] The claimant bears the burden of proof to show that he or she would be at risk anywhere in Nigeria and specifically in the potential IFA areas of Abuja and Port Harcourt in this case. [27] The Appellants have argued that XXXX is motivated and capable of finding them anywhere in Nigeria. While I agree that she and her mother are motivated to find the Appellants, I do not find the evidence sufficient to establish, on a balance of probabilities, that XXXX has the means to find them in cities like Abuja and Port Harcourt. For example, the Appellants were asked how XXXX would obtain information, and Mr. S replied that she would give her body to his former clients and colleagues.15 I do not find that sufficient to establish that XXXX would be able to trace the Appellants to any location in Nigeria. [28] I do not find that the RPD erred by finding that the Appellants have potentially safe internal flight alternatives in Port Harcourt and Abuja. The RPD is required to determine whether the facts of the claim have been established on a balance of probabilities. This includes the Appellants' claim that XXXX has the level of influence required to find them in the IFA location. The IFA locations are not reasonable [29] I agree with the Appellants that it would be unreasonable for them to have to relocate to Abuja or Port Harcourt. Both of these cities are in places where the Appellants would not be indigenes, and the documentary evidence indicates that this would raise significant problems in terms of their access to social services, education for the children, and other employment or housing opportunities.16 Port Harcourt is also described as a city dominated by its oil industry and that employment is hard to obtain outside of that sector.17 For Appellants like the ones before me, who have no experience in this sector, I find that it would be unlikely for them to secure the kind of employment required to cover the steep rents and cost of living18 in Port Harcourt and Abuja. These difficulties are exacerbated by the fact that there is little outside of familial assistance to help people relocate. For these reasons, I find that it would be unreasonable under the circumstances to require these Appellants to relocate to either Abuja or Port Harcourt. CONCLUSION [30] On the basis of the totality of the evidence and the findings above, I find that the Appellants have demonstrated that the RPD's decision was incorrect and that they face a serious possibility of persecution on the basis of their membership in a particular social group-girls facing FGM and family members under threat for opposing the practice. [31] I therefore allow the appeal and substitute the RPD's decision with a determination that the Appellants are Convention refugees, pursuant to paragraph 111(1)(b) of the IRPA. (signed) "Dilani Mohan" Dilani Mohan December 24, 2019 Date 1 Exhibit RPD-1, RPD Record, at pp. 4-5, RPD's Reasons and Decision, at paras 3-4. 2 Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx 3 Subsection 110(4) of the IRPA. 4 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 64. 6 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 64. 7 Exhibit P-2, Appellants' Record, at p. 43. 8 Exhibit P-3, Response to Member's Direction (November 25, 2019), at pp. 8-11. 9 NDP for Nigeria (November 29, 2019), item 5.12, IRB, Response to Information Request (RIR) NGA106183.FE, Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018), October 29, 2018, at pp. 1-2. 10 Ibid., NDP for Nigeria (November 2019), item 5.12, RIR NGA106183, at pp. 2-3. 11 Ibid., NDP for Nigeria (November 2019), item 5.12, RIR NGA106183, at p. 5. 12 Ibid., NDP for Nigeria (November 2019), item 5.12, RIR NGA106183, at pp. 6-7. 13 Exhibit P-3, Response to Member's Direction (November 25, 2019), at pp. 14-16. 14 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.). 15 Exhibit P-2, Appellants' Record, at pp. 29-30, Transcript of the RPD Hearing. 16 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at paras 42-44; and NDP for Nigeria (November 2019), item 13.1, RIR NGA106361, Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; obstacles faced by non-indigenes when relocating to Abuja, Lagos or Port Harcourt; assistance available to those who ..., at pp. 1-2, 5, 7-10, 12. 17 Ibid., NDP for Nigeria (November 2019), item 13.1, RIR NGA106361, at p. 17. 18 Ibid., NDP for Nigeria (November 2019), item 13.1, RIR NGA106361, at p. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-00822 TB9-00823 TB9-00824 TB9-00825 RAD.25.02 (April 04, 2019) Disponible en français 6 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