TB8-33605

RAD File / Dossier de la SAR : TB8-33605 TB8-33606 / TB8-33607 / TB8-33608 TB8-33609 Private Proceeding / Huis clos Reasons and Decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Demandeur(s) Respondent(s) Minister of Immigration, Refugees and Citizenship Canada Intimé(s) Application considered / heard at Vancouver, B.C. Demande instruite à Date of Decision January 19, 2021 Date de la décision Panel Kim Polowek Tribunal Counsel for the applicant(s) Temitope T. Ayodele Conseil (du/des) demandeur(s) Counsel for the respondent(s) N/A Conseil (de l'/des) intimé(s) Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) REASONS FOR DECISION OVERVIEW [1] I allow this appeal. XXXX XXXX XXXX (Principal Appellant or PA), his wife XXXX XXXX XXXX (Secondary Appellant or SA) and their three children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Associate Appellants) are citizens of Nigeria. Their refugee claims were rejected by the Refugee Protection Division (RPD) on December 10, 2018 on the basis of credibility and that they had a viable Internal Flight Alternative (IFA) in Port Harcourt, Nigeria. They then appealed to the Refugee Appeal Division (RAD) and this appeal was dismissed on October 30, 2019. [2] The Appellants fear persecution and harm from family members in Nigeria for reasons related to their religion and cult driven criminality. [3] The Appellants asked the RAD to reopen their appeal due to a breach in natural justice that was caused when the RAD failed to consider or analyse relevant and probative new evidence that was submitted on appeal. In a decision of the RAD dated January 20, 2020, it was found that the principles of natural justice were breached and the request to reopen their appeal was granted. [4] The Appellants submit that the RPD erred in its credibility analysis and findings related to their subjective fear, because of their failure to claim in the United States (US). They further submit that the RPD erred in its IFA analysis. [5] I find that the determinative issue in this appeal is the viable of an IFA. After an independent review of the record, including consideration of the new evidence which I have accepted for this appeal, I find that the RPD erred in its decision. The Appellants do not have a viable IFA in Port Harcourt. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellants are persons in need of protection. BACKGROUND [7] These are the allegations of the Appellants. The Appellants fear the family of the PA. The PA comes from a prominent Muslim family, his father being an XXXX who is a high-ranking member of an Islam Community called the Nawar-Ud-Deen Society in Nigeria. His stepbrother belongs to a cult. [8] The PA met his wife, a Christian, and in 2003 converted to Christianity. When they married in 2004 the PA's father rejected the PA. The PA's mother supported the marriage and consequently was kicked out of the family home. When the PA got a job as a XXXX XXXX he requested that he be posted outside of Lagos, to avoid being near where his family lived. The Appellants lived in Benue state. [9] On XXXX XXXX XXXX 2016, the Fulani Herdsmen came to the community where the Appellants lived and ransacked about 13 communities, including theirs. Their home was destroyed. The PA reached out to his father to ask if they could stay with them and his father accepted them. However, when the Appellants arrived in XXXX 2016, the PA's father and siblings mistreated them. [10] In XXXX 2017 the SA had a conflict with the PA's father, regarding his treatment of their first son, and as result the SA was beaten by the PA's brothers. The PA confronted his father and his father then threatened to kill the PA's family if the PA did not take another wife and reject his own wife and children. [11] The PA refused and as a result he was locked in a room in the house for three days with no food. After the third day the PA relented and agreed to convert back to Islam and take a new wife, and he was subsequently released. He discovered that his wife and children had been ejected from the house at that time. [12] The PA continued to live at the family home while secretly visiting his wife and children, who were living at the home of the SA's sister. While continuing to reside in his family home the PA began to be threatened by his brothers, accusing him of trying to claim the family property of the PA's father. [13] This conflict escalated and on XXXX XXXX XXXX 2017 the PA was beaten and cut with a machete by his brothers. He managed to escape and reported the incident to the police. The PA reunited with his wife and children and looked for ways to leave Lagos. They travelled to Ghana in XXXX 2018 to explore opportunities there. They learned of opportunities in the US though a friend of the PA. The PA applied for US visas which the Appellants received in XXXX 2018. [14] The Appellants left Nigeria XXXX XXXX XXXX 2018 and travelled to the US. They then proceeded to Canada where they made refugee claims shortly thereafter. They have submitted new evidence indicating that their whereabouts continue to be sought in Nigeria and family members have been harmed. NEW EVIDENCE [15] I have accepted the Appellants' new evidence. [16] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [17] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [18] With respect to the new evidence submitted as part of the appeal, this consists of the Affidavit of XXXX XXXX, identification and proof of payment, dated XXXX XXXX XXXX 2019. [19] The affiant is the PA's sister and she described an incident that took place on the "XXXX XXXX, 2008 [sic]" where the PA's stepbrother and his "gang" came to the affiant's home looking for the PA.3 The stepbrother indicated that they are using the Black Axe cult and the Narwar-Ud-Deen cell to look for the Appellants all over Nigeria. [20] The Appellants submit that this evidence is new, as it details an event that occurred after the determination of their refugee claims. The event occurred on XXXX XXXX XXXX 2018, and the Appellants' asylum claims were decided upon by the RPD on December 10, 2018. [21] I find that the new evidence (item a) refers to an event that took place after the rejection of the refugee claim and was not available prior to the rejection. While I note that the new evidence refers to 2008, I find that this is likely a typographical error and the event took place in XXXX 2018. With respect to the second step in the new evidence analysis, I find that the new evidence is relevant, credible, and new. I will weigh and consider this evidence for this appeal. Rule 29 new evidence [22] The Appellants also submit new evidence that comes after the perfection of their appeal.4 This evidence is subject to Rule 29 of the Refugee Appeal Division Rules5 (RAD Rules). The Appellants submit that these documents were being held by the courier company XXXX and therefore they were only able to collect the package on XXXX XXXX XXXX 2019. [23] Under Rule 29 the factors to consider as to whether to allow an application include: the document's relevant and probative value; any new evidence the document brings to the appeal; and whether the Appellant could have provided this as part of the appeal record. [24] The new evidence consists of the following items: a) Affidavit of XXXX XXXX and payment receipt, dated XXXX XXXX XXXX 2019. b) Affidavit of XXXX XXXX and payment receipt, dated XXXX XXXX XXXX 2019. c) Lagos State Government Medical Report, dated XXXX XXXX XXXX 2019. d) Death Certificate of XXXX XXXX and Funeral Program, dated XXXX XXXX XXXX 2019 and Affidavit from family member XXXX XXXX dated XXXX XXXX XXXX 2019. [25] The affidavit of XXXX XXXX (item a) refers to men coming to her home and threatening and assaulting her on XXXX XXXX XXXX 2018, looking for her sister, the SA, and her sister's family. [26] The affidavit of XXXX XXXX (item b) refers to men who came to her home on XXXX XXXX XXXX 2018 looking for the affiant's son-in-law, the PA. The affiant describes the incident as involving men, posing as XXXX, who came looking for the PA to do some XXXX work for them. The affiant suspects them to be impersonators and attempting to kidnap her, though the details of a kidnapping attempt are not obvious from the content of the affidavit. [27] This medical report (item c) refers to the assault on the affiant, XXXX XXXX, that took place on XXXX XXXX XXXX 2018. [28] The affidavit of XXXX XXXX (item d) describes how XXXX XXXX died and alleges that the SA's sister was killed by the same agents of persecution that the Appellants fear in a different state than where the Appellants lived before leaving Nigeria. [29] I have reviewed the entire RPD Record as well as the Appellants' appeal memorandum and find that the new evidence meets the factors in Rule 29. While I note that there is no explanation in the Appellants' memorandum as to why the Appellants did not attempt to notify the RPD of the incidents which occurred during the short period following the RPD hearing and before the issuance of their decision, I find that the new evidence is both relevant and probative as it speaks to the ongoing fears the Appellants have in relation to being sought and harmed in Nigeria. I also considered the Appellants' explanation that they were unable to access these documents until XXXX 2019 as they were being held by XXXX. In terms of credibility, I find that I have no good reason to doubt the authenticity of the documentation given that no such concerns with the Appellants' documentation was noted at the RPD. [30] I note that in the RAD decision dated October 30, 2019 there was no mention of some of the evidence submitted by the Appellants and specifically, the RAD neither rejected or accepted it in the context of their appeal. I turn to this evidence. On XXXX XXXX XXXX 2019, the Appellants submitted additional evidence after perfection of the appeal, which included the death certificate of XXXX XXXX, the sister of the SA, as well as her funeral notice and an affidavit from another family member, describing how she died. [31] This evidence alleges that the SA's sister was killed by the same agents of persecution that the Appellants fear in a different state than where the Appellants lived before leaving Nigeria. As the date of these alleged events took place after the perfection of the appeal, and I find this evidence to be credible, relevant and probative, I accept this evidence. No oral hearing [32] The Appellants ask for an oral hearing pursuant to section 110(6) of the Immigration and Refugee Protection Act (IRPA). As I have substituted my discretion and found the Appellants to be persons in need of protection, I find that it is not necessary that I hold an oral hearing and their request is denied. ANALYSIS [33] My role is to look at all the evidence and decide if the RPD made the correct decision.6 [34] The determinative issue at the RPD was that of an IFA in Port Harcourt but the RPD also addressed issues of credibility, including failure to claim in the US. The Appellants raise concerns in their appeal regarding errors in the RPD's plausibility findings as well as the RPD's failure to engage with their testimony and associated evidence with respect to credibility issues. I agree with the Appellants' submissions that their case was not the clearest of cases of implausibility, and that the RPD did not properly engage with the evidence submitted. I also agree with the Appellants that the RPD erred in its credibility assessment. [35] The determinative issue before the RPD was IFA. As such, in my view the central question is whether the Appellants can live safely in Port Harcourt? I find that the new evidence establishes that the Appellants do not have a viable IFA. Therefore, having overturned this finding and reviewing the record independently I find, on a balance of probabilities, that the Appellants face a risk of harm throughout Nigeria for the following reasons. [36] The Appellants did make efforts to seek refuge within Nigeria by relocating to Lagos for a short time with the SA's sister and were not found during their time there. I accept their evidence that the were in hiding during this time and that while they lived there they continued to receive threats. [37] I considered the Appellants' testimony that they can be detected in Nigeria through the PA's father's involvement with the Nawar-Ud-Deen organization and his stepbrother's involvement with the Black Axe. With respect to the Nawar-Ud-Deen, the PA testified that his father is a high-ranking member of this organization who has travelled throughout Nigeria with the organization. In the Appellants' documentary evidence is a program with the PA's father on the cover for a Nawar-Ud-Deen event that was held at his family home in Lagos. There is also objective documentary evidence in the Appellants' disclosure package that supports that Nawar-Ud-Deen has locations throughout Nigeria. [38] The objective evidence provides information on how widespread cults have become in Nigeria. The National Documentation Package (NDP) item 1.3 states that while many cults originated in university campuses, the objective documentary evidence states that these groups are no longer confined to urban or university contacts. The groups have been described as highly mobile, and violence and crime associated with cults can even emerge in otherwise remote and quiet rural communities.7 NDP item 7.38 from Amnesty International reports a failure of authorities to protect people from rising attacks and intimidation by violent gangs and at least 60 people were killed in 2019 in various communities in Rivers State.8 Further, NDP item 1.13 states that many cults are concentrated in Rivers State notably in Port Harcourt.9 A more dated NDP item 7.24 describes Black Axe as a cult that is known to have connections with politicians and state officials who pay the cult to serve them.10 [39] When I weigh the new evidence I find, on a balance of probabilities, that the agents of harm possess and maintain an interest and motivation to locate the Appellants throughout Nigeria because family members, including a member of the Black Axe Gang, have developed a personal vendetta against the Appellants. The Affidavit of XXXX XXXX dated XXXX XXXX XXXX 2019 describes an incident that took place on XXXX XXXX, 2018 which states that the PA's stepbrother and his "gang" came to the affiant's home looking for the PA. The stepbrother indicated that they are using the Black Axe cult and the Narwar-Ud-Deen cell to look for the Appellants all over Nigeria. There is a second incident which occurred on XXXX XXXX, 2018, recounted in the Affidavit of XXXX XXXX, the SA's sister, who describes men coming to her home, threatening and assaulting her and looking for the SA and her family. There is the Affidavit of XXXX XXXX who states that on XXXX XXXX XXXX 2018, unknown men came to her home in search of the PA under the guise of a business venture. Finally, on XXXX XXXX XXXX 2019, the Appellants submitted additional evidence which included the death certificate and funeral notice for XXXX XXXX, and an affidavit from another family member which describes how she died and that her death in XXXX 2019 was at the hands of the same agents of harm that the Appellants' fear. Overall, I find that this new evidence establishes, on a balance of probabilities, that the agents of harm continue to possess an interest and motivation to find the Appellants. [40] Accordingly I find, on a balance of probabilities, that the Appellants could not safely relocate to Port Harcourt or elsewhere in Nigeria. The IFA test fails on the first prong and I find that a viable IFA does not exist for the Appellants in Nigeria. [41] Based on the analysis above, I find that the Appellants are persons in need of protection because, on a balance of probabilities, the Appellants face a personalized risk of harm. [42] As for whether there is state protection, I find that for these Appellants there is not. Beyond the general evidence that corruption in Nigeria is widespread,11 that the police lack the capacity to perform its duties in a proper and efficient manner and that police often work for private pay for influential individuals.12 The objective documentary evidence addresses the extensive legal provisions that are in place prohibiting affiliation with prescribed society such as Criminal Code provisions against unlawful societies, active state and national level including the secret cults and cult-related activities. However, the objective evidence describes numerous problems relating to the policing of cults including the issues of prevalence, relevance of gang structures and contacts of insecurity, identification of members and patronage protection. Despite the stationing of police special response squads, the indications are that the situation and presence of cults groups across southern Nigeria is in fact worsening. Based upon this, I find the Appellants would not have access to adequate state protection in these circumstances. CONCLUSION [43] The appeal is allowed. I substitute my own decision that the Appellants are persons in need of protection. (signed) Kim Polowek Kim Polowek January 19, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Exhibit P-2, Appellant's Record, Affidavit of XXXX at p. 138. 4 Exhibit P-3, New Evidence, Written Documents and Submissions received March 2019 and June 2019. 5 Refugee Appeal Division Rules, SOR/2012-257. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 7 National Documentation Package (NDP) for Nigeria (November 30, 2020), item 1.3: ?EASO COI Meeting Report: Nigeria, August 2017. 8 NDP for Nigeria (November 30, 2020), item 7.38: ?Nigeria: Rise in Cult Related killings in Rivers state, January 9, 2020. 9 NDP for Nigeria (November 30, 2020), item 1.13: ?EASO Country of Origin Information Report. Nigeria: Targeting of Individuals, November 2018. 10 NDP for Nigeria (November 30, 2020), item 7.24. The Black Axe confraternity, also known as the Neo-Black Movement of Africa, including their rituals, oaths of secrecy, and use of symbols or particular signs; whether they use force to recruit individuals, November 2012. 11 NDP for Nigeria (November 30, 2020), item 2.1: Nigeria. Country Reports on Human Rights Practices for 2019, March 11, 2020. 12 NDP for Nigeria (November 30, 2020), item 1.11: EASO Country of Origin Information Report. Nigeria: Actors of Protection, November 2018. --------------- ------------------------------------------------------------ RAD.21.02 (November 2020) Disponible en français Page 1 of 2 RAD File/Dossier de la SAR : TB8-33605 TB8-33606 / TB8-33607 / TB8-33608 TB8-33609