TC0-10634

RAD File / Dossier de la SAR : TC0-10634 TC0-10635 / TC0-10636 / TC0-10637 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 22 March 2021 Date de la décision Panel R. Stratigopoulos Tribunal Counsel for the persons who are the subject of the appeal Charlotte Suzanne Cass 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 XXXX XXXX (Associate Appellants) are citizens of Nigeria. Joel is also a citizen of the United States of America (U.S.A.). They are appealing a decision of the Refugee Protection Division (RPD), dated August 31, 2020, rejecting their claims for refugee protection. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. The determinative issue in this appeal is the availability of an Internal Flight Alternative (IFA). BACKGROUND [3] The Principal Appellant (PA) is accompanied by her four minor sons. Her youngest boy is a Canadian citizen. Her third child is a dual citizen of Nigeria and the U.S.A. The PA's father died on XXXX XXXX, 2013. In his Will he left one property to his son, and his two other properties to be shared by his six children with the income to support his grandchildren's education. The Will also left his six children with XXXX XXXX XXXX XXXX XXXX XXXX, with the condition that 10% of the income from the plantations go to his unnamed younger siblings. The PA alleges that her aunts and uncle were not happy with the arrangement and that they wanted everything. The aunts and uncle allegedly threatened all the siblings, who hired a lawyer in May 2014 to assist them. The lawyer backed out in July 2014 due to death threats to him and his family. The police would not intervene as they deemed it a family affair. On July 28, 2014, the PA alleges she was sexually assaulted in front of her husband and children, at gunpoint by alleged agents of her uncle, who forcibly entered her home. After the assault, the PA was treated at Lagos State Hospital and released hours later. Fearing for their lives, the PA, her husband and her two sons applied for and were issued U.S.A. visas on August 28, 2014. Prior to their departure, the PA and her husband filed for divorce due the challenges they experienced from the assault. On XXXX XXXX XXXX 2014, the PA, her husband, and the children all entered Florida. The PA alleges that after two weeks her husband abandoned her and the children. The PA discovered she was pregnant, and on XXXX XXXX XXXX 2015, she gave birth to her third son, the youngest claimant. In XXXX 2017, the Appellants left the church they were staying at in Florida and relocated to Texas. The PA married an American citizen on XXXX XXXX, 2017, but they separated in January 2018. The PA alleges that after conducting online research, she learned about Canada's refugee process. She and the associate Appellants irregularly entered Canada on XXXX XXXX, 2018 and made claims for refugee protection. ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD determined that it was not plausible that the PA would immediately return to work and not seek any psychological assessment following the attack. It drew a negative credibility inference for her failure to credibly explain why she did not seek protection in the U.S.A. The RPD was not persuaded on balance of probabilities that the threat from her uncle still existed after more than five years, and also determined that the Appellants had a reasonable IFA in Ibadan. The Appellants argue that the RPD erred in its credibility assessment, erred in finding that the Appellants had a viable IFA, and that the RPD failed to conduct the hearing in the spirit of the Gender Guidelines. For the purposes of this appeal, I have accepted as credible that the PA was assaulted as she has alleged. Although the RPD should have provided a more fulsome analysis regarding its IFA determination, after an independent assessment of the record, I find that the Appellants can safely relocate to Ibadan. [5] The Appellants argue that the RPD demonstrates a lack of sensitivity or understanding about victims of sexual violence in violation of the spirit of the Gender Guidelines. I have reviewed the record and the transcript of the hearing and have also listened to the audio of the hearing. The RPD was unbelieving of the time that the PA spent in the hospital after the attack, as the Appellants have argued. The RPD also made an implausibility finding. Given the Federal Court instruction in Valtchev,2 that plausibility findings should be made only in the clearest of cases, I agree with the Appellants that the RPD erred in its decision that it was not believable that the PA did not pursue any mental health treatment following the assault and quickly returned to work. There is no linear response to such a heinous act. The RPD implausibility finding was wrong. The questioning, however, was not perverse or problematic. A careful review of the transcript shows that the line of questioning stemmed from the PA's testimony about the events surrounding the assault. Difficult questions had to be asked about the aftermath of the assault and the medical help the PA sought. The tone of the RPD in asking these questions during the hearing was not insensitive. The RPD was respectful and courteous with its questions. The PA was provided proper opportunity to provide answers to the questions put to her, the RPD was not dismissive. At various points during the hearing the RPD is quick to stop the PA from talking about details that may give rise to insensitivity. For example, the RPD states that it did not want the gory details about why the PA's ex-husband wanted a divorce, referring to the sexual assault. Later, when the PA is testifying about the events of July 28, 2014, and describing the assault the RPD remarks 'Yeah, that sounds awful.'3 I cannot find that the RPD demonstrated a complete lack of sensitivity and understanding during the hearing as the Appellants have argued. [6] I note that the Appellants were assisted by an experienced law office before the RPD. The same office has assisted them for the purpose of this appeal. A review of the record shows that at no time during the hearing did counsel intervene during the RPD questioning. Counsel does not raise any issue with the line of questioning pursued by the RPD. The first opportunity to address insensitivity or lack of understanding by the RPD would have been during the hearing, counsel never raises any such concerns. I find that the RPD demonstrated an appropriate level of sensitivity and was not in breach of the spirit of the Gender Guidelines. [7] I have found that the RPD is correct and the Appellants have an IFA. The case law indicates that credibility findings that do not impact the determinative issue of IFA need not be addressed.4 The implausibility finding that the RPD made in respect to the lack of a psychological assessment and the PA's quick return to work, as addressed above, was in error, but is not fatal to the RPD decision as it is not determinative of the appeal. [8] The Federal Court of Appeal (FCA), in Rasaratnam5, provides that the test to be applied in determining whether there is an IFA has two prongs: a. 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. b. And 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 them to seek refuge there. [9] For the Appellants to have an IFA, both prongs of the test must be satisfied. The onus shifts to the Appellants to prove that they do not have an IFA once the issue has been raised and potential IFA locations have been proposed. [10] The FCA went on to provide guidance with respect to the "unreasonableness test" in the second prong of the test in Thirunavukkarasu.6 It spelled out a very high threshold regarding what makes an IFA unreasonable in all the circumstances. Hardship that is associated with dislocation and relocation is not one that would render an IFA unreasonable. The Appellant is required to provide proof of adverse conditions which would jeopardize their life and safety in travelling to and living in the IFA location. Is there a serious possibility of persecution and/or risk to life in Ibadan? [11] Nigeria is Africa's most populous country; it has a population of over 200 million and a total landmass of over 900,00 square kilometres.7 Ibadan is a city with a population that is approaching 3.5 million people and is located in the south-western state of Oyo. [12] The RPD determined that there was no persuasive evidence that the alleged agents of harm would be able to locate the PA in Ibadan. The Appellants argue that the RPD did not consider the evidence of ongoing risk or consider the proximity of Ibadan to Lagos. [13] The record shows that the PA testified that aside from the assault on July 28, 2014, nothing else happened to her at the hands of her aunts and uncle, the agents of persecution.8 The evidence indicates that the PA remained in her home for three more months after the assault, until she could secure a visa to go to the U.S.A. There is no evidence that the PA suffered any harm during this time. [14] The PA testified that her aunts and uncle would still be a threat to her safety if she returned to Nigeria, and that even if she gave up her claim to the properties that would not suffice.9 When the RPD asked the PA how her aunts and uncle would locate her in Ibadan, she replied 'they will find me, sir.' The RPD had to ask the PA two more times as to how they would find her, the PA replied only that 'they know how they are doing their thing. They know, they know how to find, there are so many.'10 This response is evasive and does not address the means available to the agents of persecution in locating the Appellants. The PA also testified that only her father, amongst his siblings, had attended school.11 The agents of persecution are elderly, uneducated, and their whereabouts are unknown. They may have sent assailants to the home of the Appellants in 2014, but that does not indicate a capacity to locate the Appellants in Ibadan going forward. The Appellants have not established, on a balance of probabilities, that the agents of persecution have the means to locate them in Ibadan. [15] The Appellants argue that the RPD did not consider the close proximity of Ibadan to Lagos but did not expound. Although the PA states in her Basis of Claim (BOC) form that her uncle lives in Lagos, under oath she testified that she did not know where her aunts and uncle lived and did not know what kind of work they did.12 A review of the record shows that the PA has not had any contact with her aunts and uncle since the summer of 2014 when she fled to the U.S.A., a period of seven years. When asked by her counsel as to why she believed that her aunts and uncle would still be interested in her after so many years, the PA replied that since they had sent a gang to assault her, they could do worse.13 This reply does not answer the question regarding the motivation of the agents of persecution to continue to pursue her after seven years. The affidavit from the PA's sister confirms the risk to the PA in 2014. But the sister allegedly fled Nigeria shortly after the Appellants in 2015; the affidavit is not demonstrative of ongoing risk or the ongoing motivation of the agents of persecution. The Appellants have not established, on a balance of probabilities, that the agents of persecution are motivated to locate the Appellants in Ibadan. I find that the Appellants do not face a serious possibility of persecution and/or, on a balance of probabilities, the Appellants 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, or torture in Ibadan. Is it unreasonable, under all the circumstances, for the Appellants to relocate in Ibadan? [16] The RPD determined that it was not unreasonable for the Appellants to relocate in Ibadan. The Appellants argue that the RPD failed to adequately consider the evidence on the reasonableness of Ibadan as an IFA. The bar for what constitutes unreasonableness is a difficult one to overcome, as discussed above. [17] The objective evidence does indicate that there are challenges that single women face in heading their own household in Nigeria, but these challenges do not rise to the level of rendering Ibadan an unreasonable IFA. The Appellants have noted the challenges of finding work and housing, and that even wealthy women are seen as unsuitable tenants. However, the same objective evidence indicates that women who were divorced were more likely to be employed than married women, women living in urban areas were more likely to be employed than women living in rural areas, and that the employment rate of women generally increased with their level of education.14 As well, the objective evidence presented by the PA states 'professional women who are well educated may not experience [many] problems' in large cities such as Lagos and Ibadan.15 The Appellants argue that the RPD should have considered the evidence from the Appellants' perspective, however, the test is an objective one. They have also argued that stigma from being a divorced mother would make it difficult for the PA to secure housing, and that her absence from the Nigerian employment market since 2014 would make it hard for her to pay for food and schooling. [18] The Appellants have referred to evidence that speaks in general terms about the difficulties faced by single women; here, I have applied the circumstances specific to the PA. The record shows that the PA is a well-educated woman. She has studied at the university level for four years and has received two diplomas in XXXX, including a higher national diploma in XXXX from XXXX XXXX in Ibadan dated January 7, 2010.16 In a country where the literacy rate for adults is at about 50%,17 this level of education places the PA in the top 10% of all Nigerians.18 [19] The PA testified that she completed her national youth service working as an XXXX in local government. The Appellants have argued that the PA would have no connection to the employment market in Ibadan. In 2011, she began working as an XXXX XXXX for a XXXX XXXX XXXX until she left Nigeria in 2014. The PA was asked by the RPD if she just applied for the position or if she had family at the company, the PA testified that she simply applied for it and was hired.19 The PA has demonstrated that she can secure employment without any connections. Accounting skills are inherently transferable, and the work is performed worldwide. The PA has also demonstrated that she is industrious, as she engaged in XXXX XXXX for 4 years in the U.S.A. to support her family. When asked if she could be an XXXX in Ibadan, the PA replied that no one would take her with her kids, and that she could not work because of her life, her body, her children, and that she was not okay to work in such a situation.20 The PA was later asked to clarify by her counsel and provided that given her fear and her children that her mind could not settle to work and that with everything going on around her she would not be able to work.21 The situation is not ideal, but not being able to focus on her work simply does not reach to the level of undue hardship that the court outlined in the jurisprudence above. [20] Though the issue of her father's estate was unresolved when she left Nigeria, and his Will indicated that the rents from two of her father's three houses were to be used by his children to pay for the schooling of his grandchildren,22 I note that the objective evidence indicates that education is free in Nigeria and the children will not be deprived an education. [21] The Appellants note that women heading their own households are vulnerable to sexual exploitation. The evidence when read in context, refers to women engaging in commercial sex work in order to be able to pay their rent. The evidence shows that women with funds to pay rent would be able to access accommodation.23 The PA is a professional, educated woman, who is likely to find employment, I find that, on a balance of probabilities, the PA will be able to support herself and her children in Ibadan. [22] The Gender Guidelines inform that with respect to the reasonableness of recourse to an IFA, decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. I note that Ibadan is serviced by an airport; she can easily travel there from nearby Lagos which is serviced by an international airport. The Appellants have demonstrated an ability to travel internationally, having visited Tanzania and the U.S.A. prior to coming to Canada. The Appellants have also demonstrated an ability to relocate to large metropolises such as Hollywood/Ft. Lauderdale, Dallas, and Montreal. As a result, I find that they could reasonably relocate to Ibadan. [23] The PA speaks both English, which is the official language of Nigeria, and Yoruba which is spoken widely in Nigeria's south-west. I find that language would not be a barrier to the Appellants relocating in Ibadan. The PA speaks Yoruba and may be of Yoruba ethnicity, although this is not clearly identified in the record. I note that Yoruba is the major ethnic group in Oyo State.24 I find that indigeneship would not be a barrier to relocation. With respect to religion, I find that the Appellants would not face undue hardship in relocating in Ibadan. The National Documentation Package (NDP) states that approximately 40 percent of Nigeria is Christian.25 The Appellants are Christian; the objective evidence indicates that they would be able to practice their religion freely in Ibadan. [24] Based upon all the evidence, I find that a viable IFA exists for the Appellants and that they can safely relocate to Ibadan. I find that there is not a serious possibility of persecution should the Appellants return to Nigeria, pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA). I also find, on a balance of probabilities, that 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(1) of the IRPA. CONCLUSION [25] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Ron Stratigopoulos R. Stratigopoulos 22 March 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Valtchev v. M.C.I. (F.C.T.D., no. IMM-4497-99), 2001 FCT 776. 3 Transcript of February 3, 2020, RPD Hearing, at page 37, line 43. 4 Dakpokpo v. Canada (Citizenship and Immigration) 2017 FC 580, paragraph 10. 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 6 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 7 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (29 November 2019) item 1.6. 8 Transcript of February 3, 2020, RPD Hearing, at page 40, line 23. 9 Ibid., at page 44, lines 20-48. 10 Ibid., at page 45, lines 7-17. 11 Ibid., at page 49, line 17. 12 Ibid., at page 48, lines 8, 36. 13 Ibid., at page 48, lines 18-19. 14 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (29 November 2019) item 5.9, Response to Information Request (RIR), Immigration and Refugee Board (IRB) of Canada, 20 November 2019. NGA106362.E. Page 5. 15 Ibid., page 9. 16 Exhibit RPD-1, RPD record, Exhibit 6, page 116. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (29 November 2019) item 1.8, page 10. 18 Ibid., item 1.17, paragraph 4.6.2. 19 Transcript of February 3, 2020, RPD Hearing, at page 14, line 23. 20 Ibid., page 43, lines 18-23. 21 Ibid., page 50, lines 18 -24. 22 Exhibit RPD-1, RPD record, Exhibit 6, page 130. 23 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria, 29 November 2019, item 5.9, RIR, IRB of Canada, 20 November 2019. NGA106362.E. Page 11. 24 Ibid.item 1.8, page 2. 25 Ibid., item 12.5, RIR, IRB of Canada. 17 November 2015. NGA105320.E. Page 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-10634 TC0-10635 / TC0-10636 / TC0-10637 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français