TB9-08326

RAD File / Dossier de la SAR : TB9-08326 TB9-08327 / TB9-08328 / TB9-08329 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 October 4, 2019 Date de la décision Panel J. Lourenço Tribunal Counsel for the persons who are the subject of the appeal Pius Okoronkwo 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 OVERVIEW [1] XXXX XXXX XXXX (Principal Appellant), XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX (collectively, the Minor Appellants), citizens of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated March 14, 2019, rejecting their claims for refugee protection. They are asking the Refugee Appeal Division (RAD) to substitute the RPD decision with a positive one recognizing them as Convention refugees. There is no new evidence submitted with the appeal, and they do not request that the RAD hold an oral hearing. DETERMINATION [2] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 BACKGROUND [3] The Principal Appellant is married with three children, the youngest of which is her daughter XXXX XXXX XXXX. The Principal Appellant alleges that it is customary in her XXXX community to have girls undergo female genital mutilation (FGM). She alleges that she did not want to have her daughter undergo FGM and initially her husband was supportive of this position. She alleges that her husband was pressured by elders in his family and from the community to submit their daughter for FGM. The Principal Appellant alleges that her husband was told if he did not comply he would lose his position in the community as well as his inheritance. She claims that due to this pressure, her husband changed his mind and told the elders that the Principal Appellant was the only opponent of FGM. [4] The Principal Appellant alleges that she was visited by a group of men who threatened and beat her for her refusal to have her daughter undergo FGM. She alleges that she reported this to the police but they did not take action. She further alleges that her husband learned of a plot to kidnap their children. She alleges that due to her fear, she and her children left her community and went into hiding with friends in Lagos and then Ibadan. She alleges that she received threatening phone calls at her friends' homes, which caused the Appellants to leave Nigeria. The Principal Appellant's husband helped raise the money for their airfare and the Appellants left Nigeria on XXXX XXXX, 2018 travelling to the United States on previously issued visas. The Appellants then entered Canada through an irregular border crossing and initiated refugee claims on March 13, 2018. ROLE OF THE REFUGEE APPEAL DIVISION [5] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.2 ANALYSIS Appellants' arguments [6] The Appellants argue that the RPD failed to fully consider the evidence and erred in finding that the Appellants' allegations were not credible. The Appellants argue that the RPD was unreasonable in assessing their subjective fear. Further, the Appellants argue that the RPD erred in concluding that state protection was available to the Appellants. Finally, the Appellants argue that the finding that there is an available internal flight alternative (IFA) in Abuja is unreasonable and not supported by the objective evidence. [7] I have reviewed the record before me and I find that the determinative issues in this case are credibility about the allegation that the Appellants were located in two cities and the viability of Abuja as an IFA for the Appellants. Credibility as it relates to IFA [8] The RPD also found that the Appellants' allegations lacked credibility due to inconsistencies in the allegations of the Principal Appellant regarding her husband's conduct. The Appellants argue that the inconsistency has been with the husband's conduct rather than with her evidence. They further argue that the RPD failed to appreciate the customs and traditions of the Appellants' community, and incorrectly viewed this evidence through "a Canadian standard."3 They argue that the husband did present himself as supportive to the Principal Appellant, then changed his mind in order to protect his position in the community and his inheritance. The Appellants argue that he maintained these dual motivations when he helped the agents of persecution find the Appellants but later helped them escape to Canada. [9] I agree with the RPD that the evidence of the Principal Appellant about her husband's behaviour lacks credibility. I can accept the argument that the Principal Appellant's husband was initially supportive of his wife's desire to forgo FGM for their daughter but later succumbed to pressure from community elders. The Principal Appellant's evidence about what occurs after her husband changes his mind is not credible. She testified that her husband did not want to lose his inheritance and therefore decided that their daughter should undergo FGM. Despite this, the Principal Appellant claims that he helped her leave their village and stay with friends, which would suggest he wanted to protect their safety. [10] The Principal Appellant then testified that the agents of persecution called her friend on her phone and threatened the family. The Principal Appellant claims that her husband was the only person who knew where she was staying and must have given the elders the phone number of her friend. Despite the belief that her husband helped the elders find her, she alleges that she moved to another friend's home, again only telling her husband of the location. She alleges that once again the friend who was offering her shelter was called and the family was threatened. [11] The Principal Appellant testified that due to these threats she no longer felt safe and sought her husband's help in securing money for her travel to the United States. She alleges her husband assisted her in leaving Nigeria, secured the funds for her airfare and even wrote a consent letter to facilitate her travels with their children. The Principal Appellant testified that she still suspects that her husband told the elders where to find her in Nigeria but that it was her hope that he would be joining the family in Canada. [12] I do not find it credible that the Principal Appellant's husband would assist her in fleeing the village and then betray her location to the elders. If he wanted to assist the Appellants in hiding, it is not credible that he would then give the elders their location and phone number. Further, I find it is not credible that after this happened the first time, the Principal Appellant would again move to a friend's residence and give her husband the information if she truly suspected he told the elders where to find her. [13] If the Principal Appellant's husband was motivated to have his daughter undergo FGM to protect his position and inheritance, it is not credible that he would assist the Appellants in not only leaving their village but also in fleeing Nigeria. In doing so, he would continue to jeopardize his inheritance by not succumbing to the elders' demands. Therefore I find that the allegations of the Appellants about how they were located in two cities lacks credibility. Determinative issue - IFA [14] The RPD found that notwithstanding the findings about the Appellants' lack of credibility and subjective fear, there was an IFA available to them in Abuja. The Appellants argue that this finding was unreasonable. I have conducted my own independent analysis of the evidence and find that there is a viable IFA for the Appellants in Abuja. [15] Nigeria is a large country with an area of over 900,000 square kilometres in 36 states.4 Nigeria has a population of over 190 million people.5 Abuja, the nation's capital, is one of the largest cities in Nigeria with a population of approximately 2.44 million.6 [16] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam:7 (1) 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 risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) 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. [17] Both prongs must be satisfied to find that the Appellants have an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellants to show that they do not have an IFA. An IFA must be a realistic and attainable option.8 First Prong: Is there a serious possibility of persecution in Abuja? [18] The RPD found that the Appellants would not face a serious possibility of persecution or a risk of danger in Abuja. The Appellants argue that the Principal Appellant could come into contact with individuals during the course of her employment that could make her whereabouts known to her agents of persecution. The Appellants also argue that the elders have shown their motivation and resourcefulness by finding the Appellants in two other cities. [19] The Appellants have the burden of establishing that there is a serious possibility that they will be persecuted or that they would face a risk of danger in a named IFA. I find that the Appellants have not established that their agents of persecution could locate them in Abuja. [20] The Appellants argue that the Principal Appellants' work makes her highly visible. I do not agree. The Principal Appellant was self-employed at a laundry service she operated with her husband. If the family was to return to this business, there is nothing to suggest that this position would make them highly visible. I find that at most, there is a remote possibility that while conducting their business they could be in contact with someone who might know them, but given the size of Abuja and its distance from their village I find this is highly unlikely. [21] For the reasons I have previously outlined, I do not find the Appellants' allegation about being located at her friends' homes credible. Even allowing for the possibility that she was located in these locations, I find that this does not amount to a serious possibility of persecution or risk of danger. The Principal Appellant testified at the RPD that her friends who housed her in Lagos and Ibadan received threatening phone calls. There was nothing on the record to suggest that the agents of persecution actually travelled to these cities in an attempt to harm the Appellants. There is also nothing to suggest that they have the means or reach to do so in Abuja. The Appellants have not lead any evidence that the village elders, her husband's family or even the Chief Priest have any influence or power outside of their home village which is in Southern Nigeria and is a considerable distance from Abuja. [22] Also, even if the Appellants' allegation that they were located in the homes of their friends is to believed, this does not establish that they would be located in Abuja. Firstly, according to the Appellants they were located because they were staying with friends. The Principal Appellant claims that her husband knew her whereabouts and provided them to the elders. This does not establish that the elders themselves could independently locate the Appellants. If they were to relocate to Abuja and not provide the information about where they live to the agents of persecution, there is nothing before me to suggest that they could be located. [23] The documentary evidence also indicates that although FGM continues in Nigeria, parents can refuse to have their daughters undergo it. Although women can feel pressure from their husbands' family to have their daughter undergo FGM, the evidence points out that FGM would still require parental consent and/or participation.9 The documentary evidence also highlights that in May 2015, the Nigerian government passed the Violence Against Persons (Prohibition) Act (VAPP), which criminalizes a number of offences including FGM. The application of this act covers the Federal Capital Territory, which includes Abuja.10 Therefore the evidence does not support the Appellants' argument that they would face a serious possibility of persecution or a risk of danger in Abuja. Second Prong: Is it reasonable for the Appellants to relocate to Abuja? [24] The Court of Appeal has held that "[t]here will always be hardship with relocation, but the threshold for unreasonableness is very high and requires conditions that would jeopardize the life and safety of a claimant."11 It is also recognized that the burden is not on the RAD to establish that the IFA is safe but rather on the appellant to demonstrate that it is not reasonable.12 [25] 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 Abuja. The Appellants do not make specific arguments about whether it would be reasonable to relocate to Abuja, rather arguing that they would not be safe from their agents of persecution. I have reviewed the documentary evidence and I agree with the RPD's analysis on the second prong of the IFA. [26] I find that there is nothing before me which would lead to the conclusion that the Appellants would face undue hardship in relocating to Abuja. The Principal Appellant testified at the RPD that her intention was to continue a relationship with her husband. There is nothing to suggest that the couple, with their education and previous experience owning and operating a business, would face any difficulties in relocating to Abuja. [27] Even in considering the circumstances of the Principal Appellant on her own I do not find that relocating to Abuja would lead to undue hardship. She is highly educated, having attained a Bachelor of Science degree in economics. She also has 8 years of work experience in the laundry business she operated with her husband. Although it is acknowledged that women generally face hardship in finding employment in Nigeria, the documentary evidence highlights that those with higher education and work experience fair better, especially in large cities.13 [28] In considering their religious profile, I also do not find that the Appellants would face undue hardship in relocating to Abuja. The evidence indicates that approximately 50 percent of the population is Muslim and 50 percent Christian and that they reside in approximately equal numbers in central and southwestern Nigeria.14 As such, I find that the Appellants, as Christians, would likely be able to practice their religion freely and find a congregation in Abuja. Also, the Appellants are all fluent in English which is the official language of Nigeria,15 and therefore would not face linguistic difficulties in relocating to the capital. [29] In considering indigeneship, objective evidence in the National Documentation Package (NDP) acknowledges that this can play a role in an individual's ability to relocate. However, indigeneship is less of a factor in large cities given the prevalence of non-indigenes in those cities. Item 13.1 of the NDP describes the situation of non-indigenes in Abuja: However, according [to] the Professor of History, indigeneship status is less important in big cities such as Lagos, Abuja, and Port Harcourt than it is in other places, in terms of access to public jobs or ownership of land, because the indigene population in these areas has been "overwhelmed" by migrants to the cities (Professor 9 Oct. 2012). He explained, for example, that the establishment of the Federal Capital Territory pushed the indigenes of Abuja further from the "centre of influence" (ibid.).16 [30] In view of the objective evidence, I find that the Appellants would be able to relocate to Abuja as non-indigenes and establish themselves. [31] I would also note that the Principal Appellant has previous experience with relocation within Nigeria, having previously travelled to Lagos for work. Further the Appellants have demonstrated their ability to relocate internationally, first to the United States and then to Canada. As such, I find they could reasonably relocate to Abuja. [32] Based upon all the evidence, I find that a viable IFA does exist for the Appellants in Abuja. As such, I find that there is not a serious possibility that the Appellants would be persecuted if they returned to Nigeria, pursuant to section 96 of the IRPA. I also find, 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 IRPA. CONCLUSION [33] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "J. Lourenço" J. Lourenço October 4, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, at para 103. 3 Exhibit P-2, Appellants' Record, at p. 175, para 29. 4 Exhibit RPD-1, RPD Record, Exhibit 6, National Documentation Package (NDP) for Nigeria (10 July 2018), item 1.6, United States. Central Intelligence Agency, Nigeria. The World Factbook, 14 November 2017. 5 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 1.6, United States. Central Intelligence Agency, Nigeria. The World Factbook, 14 November 2017. 6 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 1.6, United States. Central Intelligence Agency, Nigeria. The World Factbook, 14 November 2017. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 8 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.). 9 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 5.12, Whether parents can refuse female genital mutilation for their daughters; protection available to the child, Response to Information Request Number: NGA104220.E, 21 November 2012. 10 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 5.21, Application and enforcement of the May 2015 ban on female genital mutilation (FGM), Response to Information Request Number: NGA105404.E, 25 January 2016. 11 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, 2000 CanLII 16789 (FCA), at paras 14-15, as referenced in Olalere v. Canada (Citizenship and Immigration), 2017 FC 385, at para 43. 12 Melford-Jowoh v. Canada (Citizenship and Immigration), 2017 FC 455, at para 13. 13 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 16.9, Whether women who head their own households, without male or family support, can obtain housing and employment in large northern cities, such as Kano, Maiduguri, and Kaduna, and southern cities, such as Lagos, Ibadan, Port Harcourt; government support services available to female-headed households, Response to Information Request Number: NGA103907.E, 19 November 2012. 14 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 12.1, at pp. 2-3. 15 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 1.6, United States. Central Intelligence Agency, Nigeria. The World Factbook, 14 November 2017. 16 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (10 July 2018), item 13.1, Response to Information Request NGA104216.E, Immigration and Refugee Board of Canada, 20 November 2012, at p. 9, section 3.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08326 TB9-08327 / TB9-08328 / TB9-08329 RAD.25.02 (April 04, 2019) Disponible en français 4 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