VB8-06716

RAD File / Dossier de la SAR : VB8-06716 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 21, 2019 Date de la décision Panel Maureen Carter-Whitney Tribunal Counsel for the person who is the subject of the appeal Odaro Omonuwa Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), rejecting her claim for refugee protection. The Appellant has not submitted new evidence and, having admitted no evidence, the Refugee Appeal Division (RAD) has no jurisdiction to convene an oral hearing.1 She asks the RAD to refer the matter back to the RPD or substitute its own determination that she is a Convention refugee or person in need of protection. DETERMINATION [2] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). OVERVIEW OF APPEAL Background [3] The Appellant alleges that she fears persecution by: members of her immediate family, who want her to undergo female genital mutilation (FGM); and members of Boko Haram, who abducted her in 2016 when she lived in Adamawa State. [4] The Appellant's allegations are set out in detail in her Basis of Claim (BOC) form2 and her oral testimony at the hearing. The Appellant was born, raised and educated in Benin City, Edo State, Nigeria and her family still lives there. After completing university, the Appellant's family insisted that she follow their traditions and undergo FGM. She alleges that she resisted them, got married without their approval in XXXX 2015, and moved with her husband to Adamawa State, where he worked as a XXXX XXXX. Her husband's family also lives in Benin City. [5] While in Adamawa State, the Appellant and her husband were allegedly persecuted by members of Boko Haram. In XXXX 2016, the Appellant, her husband and other women from their church were abducted; she and the women were taken to a different location than her husband, where one of the other women was sexually assaulted and another died after undergoing FGM. The Appellant alleges that she was able to escape and returned to Benin City. She has not heard from her husband again since that time. [6] The Appellant alleges that she first turned to her own family for help, but they drove her away because she would not adhere to their ways, calling her an outcast and saying they were going to kill her with the family deity and that they were watching her. Next, the Appellant stayed with her husband's parents for about one week, but her presence reminded her in-laws of the trauma of their son's disappearance, so she moved to stay with a friend. During this time, the Appellant alleges that she heard that members of Boko Haram were searching for her. [7] After staying in Benin City for approximately five months following her escape from the Boko Haram, the Appellant left Nigeria for the United States in XXXX 2016. She entered Canada on September 17, 2017 and made a claim for refugee protection. RPD Hearing and Decision [8] The RPD found that the Appellant had not demonstrated that she would face a serious possibility of persecution by her family or by the Boko Haram in Benin City, or that it would not be reasonable for her to live there. On this basis, the RPD determined that the Appellant had a viable internal flight alternative (IFA) in Benin City and rejected her claim for refugee protection. In its decision, the RPD stated that Benin City was the most reasonable IFA to examine, acknowledging that it is [t]echnically...not an internal flight alternative because that's the city you were born in and educated in, and grew up in, but...the events of persecution by Boko Haram happened in the northern areas, and it seemed to me to be the most reasonable internal flight alternative to examine, since you had other family members who were living in Benin City, especially your husband's family.3 [9] In its reasons, the RPD stated that it "must" rely on the Immigration and Refugee Board's Jurisprudential Guide (JG) decision TB7-19851 in making its determination on IFA. [10] The Appellant argues that the RPD erred in the following manner: a. The panel erred in law in its finding that the Appellant had a viable IFA in Benin City; and, b. The panel erred by rigidly relying on JG TB7-19851 without regard to the significant differences in facts between both cases, and as such, failed to sufficiently consider the Appellant's personal circumstances and specific risks feared by her, and made its IFA decision without regard to the relevant evidence before it. ROLE OF THE RAD [11] In determining this appeal, I have considered whether the decision of the RPD is correct on all questions of law, fact or mixed law and fact.4 In doing so, I have carried out my own independent analysis of the evidence before the RPD to determine whether, as the Appellant submits, the RPD erred. In this matter, I am reviewing the RPD's decision on the standard of correctness, as I do not find that the RPD enjoyed any meaningful advantage on a finding of credibility on the oral evidence. ANALYSIS [12] For the following reasons, I find that: * the determinative issue in this matter is whether the Appellant has established that there is a reasonable chance, or serious possibility, of persecution if she returns to Nigeria; and * the Appellant has not established that there is a reasonable chance, or serious possibility, that she will be persecuted in Nigeria, either by her family or Boko Haram. Determinative Issue [13] Having reviewed the RPD Record, I conclude that the RPD erred in characterizing Benin City as an IFA. The Appellant has lived in Benin City for most of her life, other than a period of less than 18 months during which she lived with her husband in Adamawa State. The Appellant was raised and educated in Benin City, her family and her husband's family live there, and she returned there after escaping from an abduction by the Boko Haram in Adamawa State. [14] The RPD acknowledged that Benin City is not "technically" an IFA, but went on to apply an IFA analysis in determining this matter. However, the RPD's error in characterizing Benin City as an IFA is not fatal to its determination for the following reasons. I find the determinative issue to be more accurately framed as whether the Appellant has met the onus of establishing that there is a reasonable chance, or serious possibility, that she will be persecuted if she returns to Nigeria.5 That is the same burden of proof that the Appellant bore with respect to the first prong of the test for an IFA at the RPD hearing, which required her to establish that she would face a serious possibility of persecution by her family or by the Boko Haram in Benin City. This means that the Appellant has provided evidence and submissions to address this legal test and I have everything before me that is necessary to address the determinative issue of whether there is a reasonable chance, or serious possibility, that the Appellant will be persecuted if she returns to Nigeria. Therefore, I have considered the Appellant's submissions to the RAD on this issue (the first prong of the IFA test), but will not address her submissions directed to the second prong of the IFA test. [15] Furthermore, as set out in my analysis below, I agree with the RPD's conclusion that the Appellant failed to meet her onus to demonstrate that she would face a serious possibility of persecution, either by members of her family or Boko Haram in Benin City. Is there a reasonable chance, or serious possibility, of persecution in Nigeria? Persecution by the Appellant's Family [16] The RPD found that the evidence demonstrated that the Appellant's family has ostracized her as punishment for going against their cultural practice of FGM and, although her father was insisting that she undergo FGM, she was able to avoid having the procedure and to marry a man who did not believe in the practice. For these reasons, the RPD found that the Appellant had not demonstrated, on a balance of probabilities, that her family would seek her out to perform FGM on her, so there would not be more than mere possibility of persecution. [17] The Appellant argues that the RPD erred in concluding that she faced no additional risks other than being ostracized from her family due to her refusal to undergo FGM. She submits that the documentary evidence before the RPD indicates that the consequences of a woman refusing to take part in FGM could include ostracism, but also could include stigmatism and blackmailing, denial of intracultural benefits and physical abuse; she notes that her family threatened to kill her. While not conceding that the only harm she faces is ostracism, the Appellant further submits that, even if that is the case, ostracism can have a damaging impact on the mental health of those targeted. [18] I find that the Appellant has not established that there is a reasonable chance, or serious possibility, that she will be persecuted by her family in Benin City. In conducting my independent analysis of the evidence, I have considered and applied, as appropriate, the Chairperson's Gender Guidelines.6 [19] The evidence demonstrates that the Appellant's father has ostracized her from the family for not following tradition, but does not demonstrate that he is trying to force her to undergo FGM. The Appellant testified that her family insisted she follow their traditions and undergo FGM when she finished school and reached the age to marry.7 Because she did not want to be circumcised, in part because her cousin died as a result of the procedure,8 she ran away from her family to marry her husband.9 The Appellant further testified that, upon her escape from the Boko Haram in Adamawa State, she returned to her family in Benin City, but they rejected her, driving her away as an outcast.10 The Appellant testified that she is in contact with her mother and brother, who provided affidavit evidence for her refugee claim,11 but her father is the head of the family and has the final say on FGM.12 Her mother stated in her affidavit that the Appellant is now an outcast of her family and has been chased out due to her refusal to perform the rite of FGM.13 The Appellant submits that her family is trying to kill her, stating that when she returned from Adamawa State, they said they were watching her and would kill her with the family deity.14 [20] Even if I accepted the credibility of the Appellant's allegation that her family wanted her to undergo FGM, she failed to provide sufficient trustworthy and credible evidence that her family would pursue her and/or try to kill her if she returns to Benin City. I find that their behaviour has not been consistent with this threat. I further find that the Appellant's mother's evidence confirms that the Appellant has been ostracized, but does not, in any way, suggest that the family is pursuing her to perform FGM or to try to kill her. [21] Moreover, having independently assessed the objective documentary evidence, which includes research specific to Edo State, I find that it indicates that women who are more educated and informed have better means of refusing FGM.15 It further indicates that one of the possible consequences for refusing to take part in FGM may be ostracism.16 This evidence is consistent with the Appellant's situation; she is well educated and has refused to undergo FGM, and her family has ostracized her as a result. The Appellant submits that ostracism can have a damaging impact on the mental health of those targeted. The country condition evidence acknowledges that the parent of a minor child who is opposed to their child undergoing FGM may face ostracism for going against tradition, but adds that, in general, this is unlikely to reach the threshold to constitute persecution or serious harm.17 I find that, while it may be difficult for the Appellant, as an adult daughter who has refused to undergo FGM, to be ostracized from her family, this does not rise to the level of persecution. Persecution by the Boko Haram [22] The Appellant's allegations concerning her treatment by Boko Haram indicate a nexus to the Convention refugee definition on religious grounds and the nature of the harm is gender-based under the Gender Guidelines.18 The Appellant stated in her BOC that her captors told her, while in captivity, that if she ever escaped, they would find and kill her.19 She testified that, while in Benin City after escaping from Boko Haram, she was frightened because a friend had told her that people were coming in search of her.20 The Appellant testified concerning her belief that Boko Haram would continue to look for her because they had promised her in marriage to a chief.21 [23] The RPD found that the Appellant did not meet her evidentiary burden to show that she would face a possibility of persecution from members of Boko Haram, if she returned to Benin City. The RPD found that Boko Haram control areas in the north of Nigeria, but not in the south, noting that Boko Haram did not find the Appellant during the approximately five months she lived in Benin City after her escape. The RPD concluded that the Appellant had provided only hearsay evidence, information from a friend who heard from someone else that members of Boko Haram were looking for her, which caused her to remain in hiding. On this basis, the RPD found that the Appellant had not demonstrated, on a balance of probabilities, a reasonable chance that Boko Haram would persecute her in Benin City. [24] The Appellant argues that the RPD erred by failing to properly engage with the evidence concerning her past persecution in Benin City and Adamawa State, including the loss of her husband, and did take account of the fact that she does not know her husband's whereabouts following his abduction. She also argues that the RPD provided no reasons why the Appellant would not be persecuted in Benin City. The Appellant further argues that the RPD erred in not discussing the state protection available to the Appellant in Benin City. [25] I find, based on my independent analysis of the evidence, that the Appellant has not established that there is a reasonable chance, or serious possibility, that she will be persecuted by Boko Haram in Benin City. The documentary evidence about Boko Haram's ability to pursue individuals who relocate to another region or city within Nigeria states that Boko Haram is primarily active in northern Nigeria,22 and their ability to track down an average citizen who fled one of the cities they captured is doubtful, even in the northeast of Nigeria.23 Boko Haram is decentralized and local, and does not appear to have the interest or capacity to go after an individual outside of the northeast;24 "there is no evidence of Boko Haram tracking down people beyond their area of operation in the northeast and north-central region of Nigeria."25 The documentary evidence also suggests that there have not been any targeted attacks by Boko Haram on individuals in the south.26 [26] The Appellant's testimony reflects her fear of Boko Haram, but the evidence does not demonstrate that it is more likely than not that Boko Haram will locate her in Benin City. I find that the objective country condition evidence indicates that there is less than a mere possibility that Boko Haram will harm her if she returns to Nigeria and does not return to Adamawa State. [27] I have considered the Appellant's allegations of past persecution and her particular circumstances, including the loss of her husband and ostracism by her family, together with the Gender Guidelines. While these are difficult circumstances for the Appellant, I find that the evidence on the record does not establish, on a forward-looking basis, that the Appellant faces a reasonable chance, or serious possibility, that she will be persecuted in Nigeria. Overall Finding on Determinative Issue [28] Based on the RPD Record and the Appellant's submissions, I find that the Appellant has not established, on the balance of probabilities, that there is a reasonable chance, or serious possibility, that she will be persecuted by her family or Boko Haram. [29] Given my finding that the Appellant has not established that there is a reasonable chance, or serious possibility, that she will be persecuted by her family or by Boko Haram, it is not necessary to consider the adequacy of state protection in Nigeria. Jurisprudential Guide [30] The Appellant raised the issue of whether the RPD erred by rigidly relying on JG TB7-19851 without regard to the significant differences in facts between both cases, failing to sufficiently consider the Appellant's personal circumstances and specific risks she feared, and making its IFA decision without regard to the relevant evidence before it. [31] Given that I have reframed the determinative issue and applied my own independent analysis, I have not considered JG TB7-19851, which specifically addresses IFAs in major cities in south and central Nigeria for claimants fleeing non-state actors. CONCLUSION [32] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection, pursuant to paragraph 111(1)(a) of IRPA. (signed) "Maureen Carter-Whitney" Maureen Carter-Whitney November 21, 2019 Date 1 Subsection 110(6), IRPA, S.C.2001, c.27. 2 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim, pp.7-25. 3 Exhibit RPD-1, RPD Record, pp.3-4, RPD Reasons, at p. 1, line 38 to p. 2, line 4. 4 Subsections 110-111, IRPA; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Adjei v. Canada (Minister of Employment and Immigration), 1989 CanLII 5184 (FCA), [1989] 2 F.C. 680. 6 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) from IRPA ("Gender Guidelines"). 7 Exhibit RPD-1, RPD Record, Exhibit 2, p. 12. 8 RPD audio recording of the hearing, September 24, 2018, at 1:00:05. 9 Exhibit RPD-1, RPD Record, Exhibit 2, p. 12. 10 Exhibit RPD-1, RPD Record, Exhibit 2, p. 16. 11 Exhibit RPD-1, RPD Record, Exhibit 5. 12 RPD audio recording of the hearing, September 24, 2018, at 1:09:48. 13 Ibid. 14 Exhibit RPD-1, RPD Record, Exhibit 2, p. 16. 15 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (10 July 2018), item 5.28, at p. 10. 16 Ibid., at p. 12. 17 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (10 July 2018), item 5.30, at p. 6. 18 Gender Guidelines, section A. 19 Exhibit RPD-1, RPD Record, Exhibit 2, p. 16. 20 RPD audio recording of the hearing, September 24, 2018, at 47:40. 21 RPD audio recording of the hearing, September 24, 2018, at 1:06:12. 22 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (10 July 2018), item 7.26, at p. 1. 23 Ibid., at p. 3. 24 Ibid., at p. 4. 25 Ibid. 26 Ibid.,at p. 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-06716 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français