TB7-24359

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 / Dossier de la SAR : TB7-24359 TB7-24360 / TB7-24361 / TB7-24362 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 26, 2018 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are) the subject of the appeal Oluwakemi Oduwole Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellants, XXXX XXXX XXXX(the principal appellant, "PA"), his spouse, XXXX XXXX XXXX(the female appellant, "FA") and their two sons, XXXX XXXX XXXX and XXXX XXXX XXXX(the minor appellants, "MAs"), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. The appellants ask the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and refer the matter back to the RPD for re-determination or substitute a positive determination. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"),1 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. BACKGROUND [3] In XXXX, 2016, the appellants acquired visas to travel to Canada. In their application, they indicated their intention to visit for tourist purposes during the winter holiday season.2 [4] In April, 2017, the appellants travelled to Canada. [5] In June, 2017, the appellants initiated an inland claim for protection in Canada alleging a fear of persecution in Nigeria by the "political thugs" from the PA's political party, the XXXX XXXX XXXX XXXX XXXX XXXX. The appellants alleged the agents of persecution to be the XXXX XXXX XXXX XXXX XXXX XXXX a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX a XXXX XXXX XXXX XXXX XXXX; and XXXX thugs, acting on behalf of XXXX and/or the XXXX. The PA alleged he was threatened after he decided to run for election against XXXX as a member of the XXXX XXXX XXXX XXXX. The PA alleged he is viewed as both a political threat and/or traitor by members of the XXXX. [6] The appellants' claim was heard over two dates on August 15, 2017 and October 2, 2017. In a decision of October 31, 2017, the RPD rejected the appellants' claim finding there was a viable Internal Flight Alternative (IFA) available to them in Port Harcourt. [7] The appellants argue the RPD erred in its finding. The RAD is not convinced the RPD erred. The RPD correctly concluded the appellants have a viable IFA in their country. This is the determinative issue in the claim. ANALYSIS [8] Pursuant to the Federal Court of Appeal's (FCA) decision in Huruglica,3 the RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard. Onus is on the Appellant [9] The onus is on the appellants to provide full and detailed submissions regarding the errors they allege the RPD made. Rule 3(3)(g) of the Refugee Appeal Division Rules4 specifically requires that an Appellant's Record must include a memorandum that includes full and detailed submissions regarding the errors that are the grounds of the appeal and where the errors are located in the reasons for the RPD's decision. [10] The appellants have failed to do so. For example, the appellants have not demonstrated any errors nor challenged the RPD's treatment of its documents, such as a psychotherapist report and other letters. Instead, the appellants have provided submissions already provided to the RPD on IFA along with alternative interpretations of the evidence. The role of the RAD is not to reweigh the evidence in their favour nor is it to provide the appellants a "second chance" to present their submissions of their claim. It is furthermore not the role of the RAD to speculate as to the RPD's errors and/or to undertake a microscopic search for errors. The Court has also been clear: the responsibility rests with the appellant to raise any potential grounds of appeal that arise from the RPD decision. The RAD has no responsibility to consider other grounds.5 [11] The RAD has nevertheless reviewed the record and the appellants' arguments, as follows. Rule 29 - Applications to Provide Further Documents [12] In March 2018, the appellants submitted an Application to Provide Further Documents encompassing an "opinion" in response to the RPD's decision by a legal practitioner in Nigeria.6 The appellants submit this opinion gives a good background of the political climate in Nigeria and the risks that politicians like the PA face. [13] Some months later, in July 2018, the appellants submitted an additional Application to Provide Further Documents, including many country documents and a letter from the aforementioned legal practitioner explaining "errors" in his previously submitted written opinion.7 [14] The admissibility of new evidence before the RAD is subject to strict criteria.8 Subsection 110(4) of the Act provides that the appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of their claims. The appellants "must" explain how any new documentary evidence meets subsection 110(4) of the Act and how that evidence relates to them.9 [15] The RAD must also consider any relevant factors, including: the documents' relevance and probative value; any new evidence the documents bring to the appeal; and whether the appellants, with reasonable effort, could have provided the document or written submissions with the Appellants' record.10 [16] Having carefully reviewed the documents and the appellants' submissions, the RAD finds the appellants have failed to meet their burden for admitting the late, new evidence in compliance with the statutory requirements of the Act, as well as the Raza11 factors. [17] To begin with, the RAD has reviewed the procedural history of this claim. The RAD notes that it previously granted the appellants' Motion for Extension of Time to provide their Appeal Record due to an "inadvertent error" by their counsel. Their Appeal Record was later filed in January, 2018. The appellants have failed to explain why, with reasonable effort, they were unable to provide their late, new documents with their Appeal Record in January 2018. The appellants have also failed to explain why their new documents (including the opinion piece by the Nigerian lawyer) were not reasonably available prior to the rejection of their claim in October, 2017. This date was weeks after the two sittings before the RPD during which the issue of IFA was clearly raised as an issue at the outset of the hearing. [18] The RAD further finds the proposed documents are not "new", as the information contained in the documents is simply a reiteration of information and submissions already provided to the RPD, specifically about IFA. The information before the RPD on the issue of IFA included many country documents provided by the appellants,12 as well as the Board's own comprehensive National Documentation Package (NDP) on Nigeria.13 [19] The RAD also has concerns as to the source and circumstances of the documents' creation, as well as their relevance and probative value. The appellants acknowledge the documents were provided and drafted strictly in response to the RPD's decision. Further, the purported "opinion" by a lawyer in Nigeria is clearly written in an advocacy tone and manner, which draws the author's neutrality and objectivity in question. The lawyer also opines about the appellants' testimony before the RPD without explaining how (and why) he is aware of the specific testimony heard by the RPD. He also makes specific statements about the agents of persecution without identifying his basis for making such conclusions. Moreover, he makes numerous errors in misidentifying the PA throughout his "legal opinion". His subsequent letter written months later does not explain these concerns. Finally, the lawyer further opines about the refugee determination process without specifying at all his expertise in the field. In this regard, he does not identify his area of legal practice or specialization, if any. It is reasonable to expect someone offering an "expert opinion" in a particular area would corroborate upon what basis they are qualified to do so, correctly identify the subject of his opinion piece, as well as to explain the basis of his various conclusions. [20] For all of the above reasons, the RAD has not admitted the proposed late and new documents as evidence in this appeal, including due to concerns with the unexplained late timing, as well as credibility concerns about their source and the circumstances in which they came into existence.14 [21] The RAD has no discretion to admit evidence that does not meet the requirements. Nevertheless, even if admitted, the RAD would give them little weight. Admissibility of new evidence presented on appeal [22] The appellants also submitted several other proposed new documents and submissions with their Appeal Record filed in January, 2018.15 [23] The appellants submit the documents are "recent reports and articles in various National dailies in Nigeria that highlighted the high rate of insecurity of lives in Port Harcourt, Nigeria."16 [24] The RAD has carefully reviewed the proposed documents, most of which are dated before the rejection of their claim by the RPD. The appellants have failed to explain why these country documents were not provided to the RPD before the rejection of their claim. The various articles recount random acts of violence that appear to have occurred in Port Harcourt by unknown assailants or "bandits". The RAD finds the articles are simply a reiteration of documentary evidence and submissions already provided to the RPD on this issue, including in the country documents provided by the appellants17 and the Board's own NDP on Nigeria.18 [25] The RAD accordingly finds the appellants have failed to meet their burden for admitting the new evidence. The RAD further finds the proposed documents are not "new" nor material to this claim and therefore do not meet the statutory requirements and are, therefore, not admitted as evidence. The RAD has no discretion to admit evidence that does not meet the requirements. Nevertheless, even if the articles were admitted, the RAD would give them little weight. The articles are very general and do not establish a personalized risk to the appellants. Request for an oral hearing [26] The appellants have requested an oral hearing. No new evidence in support of this claim has been accepted. Therefore, the request for an oral hearing is dismissed. The RPD Findings Did the RPD err in finding there was a viable IFA for the appellants in Port Harcourt? [27] The question of whether an IFA exists is an integral part of the Convention refugee definition. It arises when a refugee claimant who otherwise meets all the elements of the Convention refugee definition in his or her home area of the country nevertheless is not a Convention refugee because the person has an IFA elsewhere in that country.19 [28] The jurisprudence has clearly established if there is a safe haven for refugee claimants in their own country, where they could live free from harm, they are expected to avail themselves of it, unless they can show it is objectively unreasonable or unduly harsh for them to do so. [29] Nigeria is a large country with an area of over 900,000 square kilometres in 36 states and a population of over 170 million people.20 Nigerians have the right to reside in any part of the country. Port Harcourt is one of the largest cities in Nigeria with a population of over 2 million.21 [30] In assessing whether a viable IFA exists, the panel is guided by the jurisprudence.22 Is there a serious possibility of persecution in Port Harcourt? [31] The RPD determined the appellants had not met their burden to show there is a serious possibility they would be persecuted in the potential IFA area named, in this case, Port Harcourt. [32] The RPD determined the appellants failed to establish with sufficient trustworthy and credible evidence their allegations against the XXXX and the XXXX. The appellants have not challenged this finding. Having reviewed the record, the RAD sees no reason to interfere with the RPD's uncontested finding. [33] The RPD further determined the appellants failed to establish with sufficient trustworthy and credible evidence that XXXX and any XXXX thugs working on his behalf, would have the ability to locate the appellants in Port Harcourt. In this regard, the RPD noted, [d]espite XXXX alleged public, high-profile status, the claimants did not submit any objective evidence regarding XXXX whatsoever. And despite its efforts, the panel was not able to find any information in the National Documentation Package (NDP) for Nigeria23 regarding XXXX... The panel has reviewed the objective evidence referred to by counsel and finds that none of it relates to XXXX specifically, nor to the connections and resources of state-level XXXX members such as XXXX or their ability to locate individuals in different parts of the country... 24 The appellants have not challenged the RPD's analysis and findings. Having reviewed the record, the RAD sees no reason to interfere with the RPD's uncontested findings. [34] The appellants argue RPD erred because it failed to carry out a "thorough analysis of the subjective fear of the Appellants thereby basing its conclusion that there is an IFA on arbitrary capricious ground".25 They also argue the RPD failed to "avert its mind to the fact that the Appellants lived in hiding for the one month spent in Osun State thereby making it plausible that the agents of persecution were unable to locate the Appellants within this short period".26 The appellants therefore submit the "RAD to rise to the occasion and find that the instant case is one requiring that Canada comes to the aid to the Appellants..."27 [35] Upon its own review of the evidence, the RAD does not agree with the appellants' arguments. The RAD is not persuaded the RPD erred. In this regard, the appellants were specifically asked by the RPD several questions about their allegations, including related to IFA. The appellants were also specifically about the agents of persecution and their alleged "connections". The PA further testified that he quit politics and had not run in the elections against XXXX. The RPD concluded the appellants' allegations against XXXX were based upon speculation and inference, only and lacked any corroborating objective evidence. The RAD sees no error in the RPD's analysis nor finding. The RPD's findings are a result of a comprehensible reasoning process and based on the evidence. [36] Contrary to the appellants' argument, the RPD also clearly considered the appellants' allegation that they were in hiding for one month in Osun State. The RPD concluded: [t]he panel has also considered the fact that prior to leaving for Canada, the claimants relocated from Lagos to Osun State and lived there in hiding for approximately one month. Despite threats from XXXX that he would fish the principal claimant out of his hiding place, and despite the principal claimant's testimony that Osun State is XXXX territory such that the XXXX would eventually be able to find him and his family there, the evidence is that XXXX and the XXXX did not successfully find the claimants during that approximate one-month period of relocation. Although this factor alone would not be determinative of IFA for the panel as the claimants were allegedly in hiding while in Osun State (and the IFA test requires that a claimant need not live in hiding), the panel finds that it contributes to an undermining of the alleged tracking abilities of XXXX and the XXXX thugs.28 The RAD accordingly finds no merit to the appellants' argument that the RPD erred by failing to "avert its mind" to their allegation that they were "in hiding" in Osun State. [37] The RAD accordingly finds no error in the RPD's conclusion that the appellants had not met their burden to establish that there is a serious possibility of persecution for them in Port Harcourt. In this regard, the RPD clearly explained why it favoured the objective country documents over the appellants' vague and speculative claims about the alleged agents of persecution and any influence or connections they may have. The RAD similarly did not find the appellants' vague and speculative claim that XXXX will pursue them in Port Harcourt to be persuasive under the circumstances. In other words, the RAD finds the appellants failed to establish with sufficient trustworthy and credible evidence that XXXX and any thugs acting on his behalf have any continuing interest, motivation, means or resources to pursue them in Port Harcourt. [38] The panel therefore finds that, on a balance of probabilities, the risk of the appellants being attacked or harmed in Port Harcourt is not more than a mere possibility. Is It Reasonable for the appellants to Relocate to Port Harcourt? [39] The RPD determined the appellants failed to meet the threshold of establishing it would be objectively unreasonable or unduly harsh for them to relocate to Port Harcourt. [40] The appellants argue the RPD failed to consider the impediments for the appellants in Port Harcourt, including that Nigeria is in the midst of a recession and the obstacles in finding employment and the high cost of living; the failure to appreciate the nature of indigeneship in Nigeria; and the conflict in the Niger Delta. [41] The RAD notes the appellants already provided submissions on these same issues to the RPD. The RPD's reasons for decision clearly address the appellants' submissions, which are now being made again to the RAD. Nevertheless, upon its own review of all of evidence, the RAD finds no error in the RPD's analysis and findings. The panel is guided by the jurisprudence, such as in Thirunaukkarasu,29 which found that it is not enough for a refugee claimant to say that she does not like the weather there or that she has no friends or relatives there or that she may not be able to find suitable work there. [42] As stated by the Court of Appeal, "there will always be hardship with relocation, but the threshold for unreasonable is very high and requires conditions that would jeopardize the life and safety of a claimant."30 The courts have repeatedly outlined that 'objectively unreasonable' is a very high threshold and requires, at a minimum, the proof of adverse conditions which would jeopardize the life and safety of the appellants in relocating, demonstrated based on actual and concrete evidence.31 The appellants have not provided any such evidence. Accordingly, upon its own independent review of the evidence, the RAD finds the appellants have not met their onus of establishing this very high threshold. [43] The RAD notes the PA and FA are well-educated and well-travelled. The PA has completed both a Bachelor and Master's degrees. In his refugee intake forms, the PA indicated his intention to become a teacher in Canada.32 The FA has similarly completed a Bachelor of Arts degree in English Education. She also has experience as an entrepreneur in Nigeria. English is the official language of Nigeria. English is commonly spoken in Port Harcourt. The appellants are Christian and would also be able to practise their religion in Port Harcourt, as southern Nigeria is predominantly Christian.33 The country documents also indicate it is doubtful that discrimination based on ethnicity is so strong that an ethnic minority could not find some form of employment or ownership of land in the big cities because the indigene population has been "overwhelmed" by migrants to these cities.34 Further, there is also no reliable evidence the appellants would be targeted by militants in the Niger Delta. They do not fit the risk profile and any risk of kidnapping by militants is a risk faced by the population in general in Nigeria. Finally, there is no reliable evidence the MAs would be denied education in Port Harcourt. [44] Accordingly, having considered the conditions in Port Harcourt and all the circumstances of this case, including those particular to the appellants, the RAD finds that it is not objectively unreasonable or unduly harsh for them to seek refuge by relocating to and residing in Port Harcourt. The RAD finds the appellants would not experience anything more than the usual hardship of relocating if they moved to Port Harcourt. In this regard, by the appellants' own evidence, they have considerable experience with relocation both within and outside of Nigeria. [45] The RAD finally notes the "burden does not fall on the RAD to explain why the proposed IFA would be safe" for the appellants.35 The onus is on the appellants to demonstrate why the proposed IFA is not reasonable. The appellants have not demonstrated the high threshold to do so. [46] As held in Calderon v. Canada36 the finding that there is a viable IFA is determinative of a refugee claim: [t]he question of the existence of an IFA is determinative of the matter. As set out in Irshad, above, at paragraph 21, the concept of an IFA is an inherent part of the Convention refugee definition. In order to be considered a Convention refugee, an individual must be a refugee from a country, not from a region of a country. Therefore, where an IFA is found, a claimant is not a refuge[e] or a person in need of protection.... [47] The panel therefore finds that there is not a serious possibility that the appellants would be persecuted if they returned to Nigeria, pursuant to section 96 of the Act. The panel similarly finds that, on a balance of probabilities, the appellants would not be personally subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment in Nigeria pursuant to section 97 of the Act. CONCLUSION [48] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD finds that the RPD's IFA finding for the appellants is correct. This is the determinative issue in this claim. [49] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellants are neither Convention refugees nor persons in need of protection and dismisses the appeal. (signed) "D. Goff" D. Goff November 26, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on December 12, 2017. 2The PA also previously acquired visas to travel to the United States (US) in XXXX 2013 and XXXX 2016. He also acquired and used visas to travel to the United Kingdom (UK). 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Rule 3(3)(g)(i)(ii), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 5 Ilias v. M.C.I, (F.C., no. IMM-5152-17) Bell, June 27, 2018, 2018 FC 661, at para 39. 6 Exhibit P-3, Rule 29 Application, at pp. 1-26. 7 Exhibit P-4, Further Rule 29 Application, at pp. 1-117. 8 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, FCA 96. 9 Ibid., Rule 3(3)(g)(iii). 10 Rule 29(4), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 11 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 12 Exhibit RPD-1, RPD's Record, Exhibits 8 and 12. 13 Ibid., Exhibit 6, National Documentation Package (NDP) for Nigeria (31 March 2017), Response to Information Request (RIR), Immigration and Refugee Board of Canada. 14 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, citing Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632. 15 Exhibit P-2, Appellant's Record, New Evidence, at pp. 101-119. 16 Ibid., at p. 17, para. 13. 17 Exhibit RPD-1, RPD's Record, Exhibits 8 and 12. 18 Ibid., Exhibit 6, National Documentation Package (NDP) for Nigeria (31 March 2017), Response to Information Request, Immigration and Refugee Board of Canada. 19 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 20 Exhibit RPD-1, RPD's Record, Exhibit 6, NDP for Nigeria (31 March 2017), Response to Information Request (RIR), Immigration and Refugee Board of Canada, at item 1.7, United Kingdom. Home Office., Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation. August 2016. 21 Ibid., at item 1.6, United States. Central Intelligence Agency., Nigeria. The World Fact Book, 10 November 2016. 22 Rasaratnam, supra, footnote 10. 23 Exhibit RPD-1, RPD's Record, Exhibit 6, NDP for Nigeria (March 31, 2017). 24 Ibid, Reasons, at p. 7, para. 12-13. 25 Exhibit P-2, Appellants' Record, Memorandum, at p. 124, para. 15. 26 Ibid, at p. 125, para. 23. 27 Ibid, at p. 130, para. 35. 28 Exhibit RPD-1, RPD's Record, Reasons, p.8, para. 14. 29 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.). 30 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, at paras 14-15, as also cited in Olalere v. Canada (Minister of Citizenship and Immigration) 2017 FC 385, at para. 43. 31 Singh, Barinder v. M.C.I. (F.C., no. IMM-826-13), Noël, September 26, 2013, 2013 FC 988. 32 Exhibit RPD-1, RPD's Record, Exhibit 1, Package of Information from the referring CBSA/IRCC, at p. 55. 33 Ibid., Exhibit 6, NDP for Nigeria (31 March 2017), Response to Information Request (RIR), Immigration and Refugee Board of Canada, at item 12.6, IRB, RIR NGA104679.E, 6 December 2013. 34 Ibid., at item 13.1, IRB, RIR NGA104216.E., 20 November 2012. 35 Melford-Jowoh v. Canada (Minister of Citizenship and Immigration) 2017 FC 455, at para 13. 36 Calderon, Sonia Blancas v. M.C.I. (F.C., no. IMM-5367-08), Near, March 8, 2010, 2010 FC 263, at para.10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24359 TB7-24360 / TB7-24361 / TB7-24362 RAD.25.02 (September 18, 2018) Disponible en français 15 RAD.25.02 (September 18, 2018) Disponible en français