VB9-06518

RAD File / Dossier de la SAR : VB9-06518 VB9-06519 / VB9-06520 / VB9-06521 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 XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 8, 2019 Date de la décision Panel Delia Lewis Tribunal Counsel for the persons who are the subject of the appeal Howard P Eisenberg 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) and XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX (Associate Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Principal Appellant and Associate Appellant XXXX XXXX XXXX are married and the parents of the remaining Associate Appellants who are minors. The Principal Appellant is the designated representative for the minor Associate Appellants. [2] The Appellants allege that they fear return to Nigeria because they will be persecuted by Fulani herdsmen who have threatened their lives because they do not approve of the Appellants' political activism and XXXX in Makurdi. The RPD determined that the Appellants were not Convention refugees or persons in need of protection because they have a viable internal flight alternative (IFA) in Lagos. The Appellants allege that the RPD erred in its IFA assessment and are seeking to have new IFA evidence admitted by the Refugee Appeal Division (RAD). DECISION [3] I have allowed the admission of new evidence and conducted an independent assessment of the appeal. For the reasons that follow, I find that the RPD erred in its IFA assessment. Accordingly, I set aside the RPD decision and substitute a determination that the Appellants are Convention refugees. ANALYSIS Role of the RAD [4] The RAD reviews RPD decisions on a standard of correctness. In limited circumstances, the RPD may have a meaningful advantage over the RAD in assessing evidence that was before the RPD. In those cases, the RAD will show deference to the RPD. In this appeal, I have applied the correctness standard unless specifically stated otherwise. Admissibility of new evidence and oral hearing request [5] Pursuant to s. 110(4) of the IRPA an appellant may only present new evidence that arose after the rejection of their claim, 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. The appellant must make full submissions in their Appeal Memorandum concerning how any proposed new evidence meets the requirements of s. 110(4) and how the evidence relates to their claim under RAD Rule 3(3)(g)(iii). When evaluating whether new evidence is admissible, if evidence passes the s. 110(4) test, the RAD must also consider the factors from Raza/Singh1 which are whether the evidence is credible, capable of proving a fact relevant to the claim for protection, and new. [6] The Appellants' RPD hearing took place on July 23, 2019, and the RPD issued reasons the same day. The Appellant is seeking to have the following documentary evidence admitted: - An August 3, 2019, media article entitled "Nigerian priest killed by suspected Fulani gunmen; clergy march to protest killings," regarding Fulani violence in Lagos;2 - A June 27, 2019, photo essay entitled "The Fulani tribes of West Africa, one of the last nomadic peoples of our planet";3 - A June 26, 2019, media article entitled "In the heart of the metropolis, a king of Nigeria's herder Fulani";4 regarding the Sarkin Fulani of Lagos who is described as one of Nigeria's most influential members and a leader among the Fulani who make up approximately 25 % of the population in Lagos; and - An April 28, 2019, media report entitled "Nigeria-Fulani-Conflict" 5 [7] The Appellants submit that these documents are relevant evidence because they shed light on Fulani activities in Lagos and contradict the RPD finding that Fulani violence in Lagos is limited. The proposed evidence is recent material from 2019. The August 3, 2019, article is new as it post-dates the RPD hearing and I find that it is admissible as it is relevant and appears on its face to be credible. However, the other three documents predate the RPD hearing. The Appellants argue that these articles were not submitted to the RPD prior to the hearing because they found out only during the course of the hearing that the IFA in Lagos was one of the issues and did not have an opportunity to address the issue in a timely matter. [8] IFA is always a potential issue in claims before the RPD and the Appellants did submit documentary evidence to the RPD at the time of their hearing regarding Fulani violence in Nigeria. However, given that the remaining articles are recent and relate to Fulani violence in Lagos in response to findings by the RPD Panel, I find that in the circumstances the Appellants could not have reasonably been expected to present these specific articles prior to the RPD hearing. I also find that these articles are credible on their face and relevant to the appeal because they address Fulani issues and violence in Lagos. Therefore, I admit them as new evidence. [9] As I have admitted new evidence on appeal, I must consider whether an oral hearing concerning the new evidence is necessary under s. 110(6) of the IRPA. Having reviewed the new articles and the record, I find that an oral hearing is not required in this appeal as the new evidence is from objective newspaper sources and does not raise a serious issue about the Appellants' credibility that would require the Appellants to provide further testimony. Merits of the Appeal [10] The test for assessing an IFA has two prongs. First, 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 of torture in the IFA. Second, the conditions in the IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for the claimant to seek refuge there. [11] The RPD Panel identified Lagos as a potential IFA for the Appellants during the hearing, then provided the Appellants an opportunity to present evidence regarding the viability of the potential IFA. In its reasons the RPD considered the applicability of decision TB7-19851, which is the board's jurisprudential guide on IFAs in Nigeria, and adopted the guide's reasoning as it found that the guide was relevant to the Appellants particular circumstances and facts.6 I find that the RPD was correct to apply the jurisprudential guide given the Appellants' profile as educated business people who allege that they fear persecution by non-state actors in Nigeria. [12] I also find that based on my assessment of the documentary evidence and the Principal Appellant's testimony, the RPD was correct when it determined that the Appellants had credibly established, on a balance of probabilities, that there was a nexus between their alleged persecution and the Appellants' political opinion. The Principal Appellant testified that he has been a long-standing outspoken critic of the violence committed against innocent civilians by Fulani herdsmen. His activities were known in the community because he participated in public protests and was engaged in community organizations including youth organizations. [13] In addition, the Principal Appellant opened a XXXX XXXX XXXX in Makurdi in Benue State on XXXX XXXX XXXX 2017, and this business was targeted by Fulani herdsmen. In XXXX 2018, a group of armed men stormed the XXXX, threatened the Principal Appellant and scared away customers. The Appellants claim that the police did not help them when they reported this attack. In XXXX 2018, the Principal Appellant received a call threatening the Appellants' lives. They reported the call to the police and hired private security because the police failed to provide them with protection. The Appellants received another call threatening their lives later in XXXX. The anonymous caller was able to describe the Principal Appellant's activities that day and the Appellants' address in Abuja. The Principal Appellant did not go to his family home in Abuja after receiving this last threat and instead went into hiding and the Appellants made arrangements to flee the country in early XXXX 2018. IFA Test [14] With regard to the first prong of the test, the RPD found that there was no evidence of Fulani violence in Lagos state or city and that the Appellants were targeted by a clan that operates in Benue State and that the Fulani clans operate independently. As a result, it determined that, on a balance of probabilities, there is no serious possibility of the Appellants being persecuted in Lagos despite the Principal Appellant's ongoing commitment to speak out against Fulani violence. [15] I have reviewed the Appellants' evidence as well as the board's objective national documentation.7 I find that the RPD erred when it found that, on a balance of probabilities, there is no serious possibility of the Appellants being persecuted in Lagos. The RPD cited reports in the national documentation to support its finding that the Appellants would be safe from persecution in Lagos. The first report the Panel cited was prepared by the IRB's research directorate about the conflict in August 2018. That report states that most of the Fulani violence had occurred in states that do not include Lagos, and that much of the conflict stems from issues of access to land and there is no clear indication of the Fulani having a common political objective.8 [16] However, the Panel also cited a second report which was prepared by the International Crisis Group. That report states that in 2018 the violence had escalated and grown to include deadlier planned attacks rather than spontaneous outbreaks of violence. It also states that violence related to Fulani herdsmen conflicts has claimed six times more civilian lives that the conflict with Boko Haram in Nigeria.9 The RPD Panel also acknowledged that there were reports of incidents of violence attributed to Fulani herdsmen close to Lagos. However, the Panel determined that it had not been established whether or not the individuals involved in those incidents had been specifically targeted. [17] The Appellants claim that there is ample evidence to establish the presence of the Fulani in Lagos City and state and that the new evidence establishes that one of the Fulani's most influential clan leaders is headquartered in Lagos. The Appellants also submit that the RPD erred when it determined that the Fulani do not target their critics in Lagos. The Appellants cite the new evidence regarding the kidnapping and murder of priests as evidence of one such organized attack in Lagos. The Appellants also cite objective evidence in the NDP to support their claim that, while the Fulani violence may have initially been directed against farmers over the use of land in northern Nigeria, recent evidence indicates that the conflict has become highly politicized and has spread throughout the country. [18] They refer to the November 2018 European Asylum Support Office report which states that Fulani violence has increased in Nigeria and that there are three dimensions to the conflict according to the director of the Armed Conflict Location and Event Data Project: ethnic (Fulani v. other ethnicities) religious (Muslim v. Christian) and cultural (nomadic v. sedentary).10 This report also states that the conflict has increased political dimensions as President Buhari, a Fulani, was accused of tribalism and looking away from the conflict. In addition, the report states that the conflict has worsened because of ineffective or corrupt security forces, and a dysfunctional legal regime in Nigeria that allows crime to go unpunished and encourages parties to take matters into their own hands.11 [19] I accept, as the RPD did, that if the Appellants were to relocate to Lagos the Principal Appellant would continue to be an outspoken critic of the wrongful violence committed by Fulani herdsmen against civilians. In my view, on a balance of probabilities, the objective evidence, and the Appellants' evidence and appeal submissions, demonstrate that the Appellants would face a serious possibility of being persecuted by the Fulani for the Principal Appellant's activism against Fulani violence. I find that based on the evidence, the dimensions of the Fulani conflict have continued to grow and evolve and there appears to be an emerging trend that critics of Fulani violence will be targeted throughout Nigeria including Lagos. I also find that the objective national documentation and the Appellants' evidence demonstrates that, on a balance of probabilities, adequate state protection would not be available for the Appellants in Lagos. Therefore, I find that the Appellants are Convention refugees under s.96 of IRPA. CONCLUSION [20] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) "Delia Lewis" Delia Lewis November 8, 2019 Date 1 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 and Singh v. Canada (Minister of Citizenship and Immigration) 2016 FCA 96. 2 RAD record at pages 13 - 16. 3 RAD record at page 17. 4 RAD record at pages 18 - 20. 5 RAD record at pages 21. 6 RPD-1, RPD Record, RPD Reasons at page 6,. Jurisprudential Guide TB7-19851. 7 Nigeria NDP version 30 April 2019 and updated version. 8 30 April NDP 7.31: Fulani herdsmen, including motivations, modus operandi and recruitment methods; raids by Fulani herdsmen in schools in Benin City in October 2016, August 10, 2018. 9 30 April 2019 NDP 7.20: Stopping Nigeria's Spiralling Farmer-Herder Violence. Africa Report N°262, July 26, 2018. 10 30 April 2019 NDP, Nigeria, item 1.13: EASO Country of Origin Information Report. Nigeria: Targeting of Individuals, November 2018, at page 95. 11 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-06518 VB9-06519 / VB9-06520 / VB9-06521 RAD.25.02 (April 04, 2019) Disponible en français 8 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