TC0-10392

RAD File / Dossier de la SAR : TC0-10392 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 May 10, 2021 Date de la décision Panel Paul Muldoon Tribunal Counsel for the person who is the subject of the appeal Mbong Elvira Akinyemi 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 OVERVIEW [1] XXXX XXXX XXXX (Appellant) is appealing a decision of the Refugee Protection Division (RPD), dated August 14, 2020, dismissing her claim for protection. The Appellant submits that the RPD erred in assessing her claim and asks the Refugee Appeal Division (RAD) to allow the appeal and determine that she is a Convention refugee or a person in need of protection, pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA) or to refer the matter back to the RPD for redetermination by a differently constituted panel. BACKGROUND [2] The Appellant is a citizen of Nigeria. Because she is unable to have a child, the Appellant fears her brother-in-law and sister-in-law will spread this news to the family and community, and they will discriminate against her and may kill her for being infertile. The Appellant later disclosed that she has been HIV-positive since 2010 and fears her in-laws will disclose this information, and she will be persecuted by the society at large. On XXXX XXXX, 2018, the Appellant left Nigeria for Canada on a visitor's visa and claimed for refugee protection in January 2019. DETERMINATION [3] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [4] The Appellant did not make a request for new evidence in this appeal and did not request an oral hearing. Because I have not admitted new evidence, I have no authority to hold an oral hearing. THE ROLE OF THE RAD [5] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 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. [6] I have reviewed the RPD Record, the transcript of the hearing and the submissions on the appeal and have conducted an independent assessment of this appeal. I have also considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guideline).2 Issues in the Appeal [7] The RPD found that the determinative issues were whether there is an internal flight alternative (IFA) for the Appellant, whether there is discrimination amounting to persecution and whether paragraph 97(1)(b)(iv) of the IRPA with respect to the exception of health care is applicable. I would reformulate the determinative issues to be: (a) Does the Appellant face a serious possibility of persecution in Nigeria as a result of her HIV-positive status? (b) Is paragraph 97(1)(b)(iv) of the IRPA applicable? (c) Is there a viable IFA for the Appellant in Nigeria? Issue No. 1: Does the Appellant face a serious possibility of persecution in Nigeria as a result of her HIV-positive status? [8] The RPD found that the Appellant is HIV-positive through documentary evidence submitted by the Appellant. The RPD found that the Appellant has been treated in Canada for HIV since 2019 and has been on the antiretroviral medication in Nigeria, and the Appellant's CD4 count was in the normal range of Canadian antiretroviral medications. [9] The RPD found that there is legislation which supports the non-discrimination of HIV-positive persons and that there is a lack of objective evidence that the Appellant will be a victim of discrimination amounting to persecution. It found that, while some persons may face discrimination, the Appellant would not face discrimination based on her HIV status that would rise to the level of persecution. [10] The Appellant states that the RPD erred in finding that there would not be discrimination against the Appellant who is HIV-positive. The Appellant submits that, although Nigeria may have anti-discrimination legislation for persons with HIV, there is no evidence that it has decreased the incidents of discrimination or that the legislation is enforced. The Appellant states that the RPD erred in relying on the existence of the legislation without understanding whether it has worked.3 The Appellant also submits that the RPD erred in finding that there is no discrimination for HIV-positive persons in Nigeria in that the National Documentation Package (NDP) has information that demonstrates that there is discrimination amounting to persecution in Nigeria. Findings - Discrimination for the Appellant with her HIV-positive status does not rise to persecution [11] I find that the RPD was correct in finding that the Appellant would not suffer discrimination that amounts to persecution for being a HIV-positive person in Nigeria. I have reviewed the NDP with respect to this issue as well as considered the particular circumstances of the Appellant by reviewing the RPD record, the transcript of the hearing and her appeal documents. General Principles pertaining to when discrimination rises to persecution [12] I recognize that the jurisprudence does not provide a clear dividing line between persecution and discrimination or harassment. In assessing whether discrimination rises to persecution, I must review the evidence adduced to understand the particular circumstances of the Appellant and then undertake a proper balancing of the various elements contained therein.4 In general terms, persecution involves a sustained or systemic violation of basic human rights.5 Hence, if I find that there are incidents of discrimination or harassment, I have to assess whether they are serious or systemic to rise to persecution.6 [13] The UNHCR Handbook states that not all discrimination will amount to persecution. In order for discrimination to amount to persecution, a person must establish that the actions would be substantially prejudicial in nature such as serious restrictions on one's right to earn a livelihood, one's right to practice religion, or one's access to normally available educational facilities. All of the circumstances must be assessed to determine whether or not such measures of discrimination in themselves amount to persecution,7 including an assessment of the discriminatory act that can be sufficiently cumulative in nature that a finding of persecution can be made.8 The Appellant's Status [14] In reviewing the evidentiary record, I find that there is no dispute that the Appellant is HIV-positive. A letter from the Appellant's Canadian physician confirms that the Appellant is HIV-positive and states that she has an excellent prognosis as long as she has uninterrupted access to her antiretroviral medication and specialist HIV care and that the "absence of either would have catastrophic consequences on her health and longevity."9 Documentary Evidence [15] In my review of the objective documentary evidence, I find that there is stigma and discrimination against persons with HIV in Nigeria while also acknowledging that Nigerian authorities continue to make efforts to address the stigma and discrimination through legislation, policy and more access to treatment. [16] The U.S. Department of State notes that persons in Nigeria consider HIV to be a disease, as a result of immoral behaviour.10 The report notes that persons with HIV/AIDS "often lost their jobs or were denied health-care services" although authorities and non-governmental groups seek to reduce the stigma through public education campaigns.11 The report states that employers frequently discriminate against people living with HIV.12 [17] The NDP also notes that Nigeria is making efforts to reduce the discrimination affecting HIV-positive persons and providing better access to medication for HIV-positive persons. Nigeria passed legislation directly dealing with discrimination with respect to HIV-positive persons13 and has instituted a HIV stigma reduction strategy.14 Nigeria's HIV stigma reduction strategy was established to address the persistent problem of discrimination. In its Executive Summary, the reports states: The Nigerian HIV prevalence rate is declining however, stigma indices does not show corresponding decline. Drivers of the HIV epidemic include the structural, contextual and social factors, such as poverty, gender inequality, inequity and poor access to health care, as well as stigma and discrimination and other human rights violations. However, several positive actions have been taken to address stigma and discrimination issues in the country. These actions include the passage of the HIV and AIDS (Anti-Discrimination) Act, 2014 with the main objective is to protect the rights and dignity of PLHIV by eliminating all forms of discrimination based on HIV status. Other actions include the domestication of religious principle and the law in several states in the country. Worrying however, is the occurrence of stigma and discrimination against people living with HIV especially at community level and in faith institutions.15 [18] Another report notes that stigma remains a key barrier to the HIV response in Nigeria, "... with 46.8% of people reporting that they would not buy vegetables from a shopkeeper living with HIV, in 2016."16 The report also notes that 21% of people with living with HIV had been denied access to health services and reproductive health services due to their status. [19] The 2019 report by the Nigerian National Population Commission states that forty-seven percent of women and forty-six percent of men do not think that children living with HIV should be able to attend school with children who are HIV negative.17 The report also notes:18 The proportion of women and men with discriminatory attitudes generally decreases with increasing education; 61% of women and 66% of men with no education have discriminatory attitudes, as compared with 46% of women and 43% of men with more than a secondary education reported (Figure 13.4). Discriminatory attitudes also generally decrease with increasing wealth. The percentage of women with discriminatory attitudes decreases from 68% among those in the lowest wealth quintile to 56% among those in the highest wealth quintile. Among men, the percentage decreases from 71% among those in the lowest wealth quintile to 54% among those in the highest quintile. [20] My finding is supported by the particular circumstances of the Appellant. [21] Hence, I find that discrimination and stigma continue to exist in Nigeria although Nigerian authorities are furthering measures to address the situation. I must now consider whether the particular circumstances of the Appellant to assess whether she has endured discrimination and whether that discrimination rises to the level of persecution. The courts have held that not all HIV-positive persons are subject to persecution or physical harm in Nigeria,19 and it is necessary to examine the particular circumstances of each case. [22] Although I found that the objective documentary evidence suggests there is stigma and discrimination against persons with HIV in Nigeria, I find that the Appellant's particular circumstances pertaining to discrimination do not amount to persecution. Personal Circumstances of the Appellant [23] First, I disagree with the Appellant's submission that the RPD has not shown that the Nigerian anti-discrimination legislation has not been implemented. The onus is on the Appellant to demonstrate that she has endured discrimination that amounts to persecution rather than suggesting the onus is on the RPD to establish the success or failure of government programs. [24] In her Basis of Claim form (BOC), the Appellant states that, owing to her HIV-positive status, she would be physically and mentally abused. In her BOC, she provided no specific examples or incidents where she faced discrimination owing to HIV-positive status. The Appellant refers to the problems of losing customers at the store that she operated in Nigeria; however, most of those concerns relate to the disputes with her sister-in-law.20 [25] In her testimony, the Appellant states that people in Nigeria discriminate against people with HIV.21 However, the only evidence of discrimination the Appellant identifies as it applies to her own circumstances is that she fears that, if her status is disclosed, it may impact the success of her business. The Appellant states that she owns her own XXXX XXXX XXXX XXXX XXXX business. She testified that the disclosure of her being HIV-positive would have a serious impact on her business because her customers would no longer deal with her business.22 She also noted that she would not be able to rent any place because landlords discriminate against persons who are HIV-positive.23 She also states that she was receiving treatment for HIV in Nigeria, although she states that the treatment in Canada is better than that in Nigeria.24 [26] In the review of her evidence, the only specific instance of discrimination with respect to her HIV-positive status is that she may have problems operating a business if her HIV-positive status is disclosed. The Appellant's submission that her business success may be negatively affected does not necessarily suggest that this issue is sufficient for the finding of persecution. The courts have held that discrimination that limit some employment opportunities may not in and of itself be sufficient to raise that discrimination to the threshold of persecution.25 While she may have challenges renting a space for her business, there is no evidence that she could not find some suitable locations should she want to re-establish her business. The Appellant has not put forth any further evidence that she would face systemic, persistent or cumulative discrimination in any other manner.26 There is no evidence that she could not continue to live her life in Nigeria in a largely unencumbered manner. [27] The Appellant has not established that she would be unable to obtain treatment for her HIV should she return to Nigeria. Although she prefers the treatment in Canada, the Appellant has not submitted evidence that she would be denied treatment or medication in Nigeria. [28] In light of my review of the Appellant's evidence, I find that the Appellant has not provided sufficient credible and trustworthy evidence that she has personally experienced stigma and discrimination based on her HIV-positive status that amounts to persecution. In fact, her allegations of discrimination remain speculative. I also find that the evidence presented does not cumulatively amount to persecution in that the acts were not of a persistent and repeated nature which caused her physical or psychological harm or denial of basic human rights. Issue No. 2: Is paragraph 97(1)(b)(iv) of the IRPA applicable? [29] The RPD noted that the Appellant stated that medical care was better in Canada than in Nigeria, and she needed to remain in Canada to access this health care. The RPD held that paragraph 97(1)(b)(iv) of the IRPA does not cover risks which are caused by the inability of a country to provide adequate health and medical care to the Appellant and that the Nigerian healthcare system is not as good as the Canadian healthcare system to be outside of the refugee determination process due to paragraph 97(1)(b)(iv) of the IRPA. [30] The Appellant submits that the RPD erred in finding that paragraph 97(1)(b)(iv) is applicable in this appeal. However, the Appellant does not provide specific submissions with respect to how the RPD erred or otherwise why paragraph 97(1)(b)(iv) is not applicable to the facts of this appeal. The only other submission made by the Appellant relevant to this issue is that there is no corroborative evidence that HIV-positive persons are receiving free medication. Findings [31] Paragraph 97(1)(b)(iv) of the IRPA states: 97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally... (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if... (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [32] The RPD based this finding on evidence submitted that medication for HIV is available without user fees in the part of Nigeria that the RPD found to be a viable IFA, namely, Port Harcourt. In particular, the RPD cited evidence that antiretroviral drugs would be available in the Rivers State without any user fees.27 The Appellant submitted that this finding is not corroborated. Further, the Appellant testified that the quality of treatment and the type of drugs are different in Nigeria than she has received in Canada. Findings [33] I find that the RPD did not err in finding that paragraph 97(1)(b)(iv) of the IRPA is applicable in this appeal. The Appellant, both in her testimony28 and in her submissions in her Legal Memorandum,29 focussed on the discriminatory behaviour toward people that are HIV-positive. She did not specifically allege that she had no access to the required drugs, but instead she testified that she preferred the treatment in Canada because of the quality of treatment, and the type of drugs are different in Nigeria than she has received in Canada.30 [34] In my review of the country condition evidence and the evidentiary record in this appeal, there is no evidence that Nigeria has chosen not to fund HIV treatment because of the stigma related to HIV or another discriminatory reason. There is no evidence to establish that the Appellant would not get treatment for any other reason other than availability of the medication, if she returned, and it is apparent that there are substantial efforts being made to improve availability particularly in the Three Rivers State area. There is a June 26, 2019 media report in the RPD record that states that medication for HIV is available without user fees in the Rivers State area of Nigeria, an area that includes Port Harcourt.31 Port Harcourt, as I find below, is a viable IFA for the Appellant. This report is consistent with information in the NDP that states, although Nigeria has not met its target of enrolling 90% of the people diagnosed with HIV on appropriate treatment, it intends to triple treatment coverage to ensure that goal is met by 2021.32 [35] I disagree with the Appellant that there is no corroborative evidence to establish that HIV-positive persons are receiving free medication. The issue is not whether the medication is free but whether paragraph 97(1)(b)(iv) of the IRPA is applicable. I find that it is in this appeal. Issue No. 3: Is there a viable IFA in Nigeria? [36] I find that the Appellant does have a viable IFA in Port Harcourt. [37] The test for assessing an IFA is well established. It has two prongs: (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 of torture, believed on substantial grounds to exist, 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 the claimant to seek refuge there.33 [38] Further, the Federal Court of Appeal has stated: We read the decision of Linden J.A. for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.34 [39] Under the test, both prongs must be met once an IFA has been identified. First Prong of the Test: Is there a serious possibility of persecution in Port Harcourt? [40] The RPD found that the Appellant had a viable IFA in Port Harcourt. The RPD found that the Appellant had not established a serious possibility of being located by the agents of persecution should she relocate to Port Harcourt. [41] The Appellant submits that the RPD erred in finding that the agents of persecution will not find her in Port Harcourt. She states that she has no control over the agents of persecution, and the RPD is speculating that they will not try to find her in Port Harcourt. The Appellant states that she provided uncontradicted testimony that her husband's relatives would pursue her, and the RPD should presume that testimony is true. She states that the agents of persecution have the motive to pursue her because they want to protect her husband from her, who cannot have any children. [42] The Appellant states that she has a high profile because she uses social media to promote her business,35and her husband has a high profile because he is a successful businessman and travels for work. The Appellant also states that the agents of persecution know influential people.36 Findings on the First Prong: There is no serious possibility of persecution in Port Harcourt [43] I find that the Appellant has not established that the agents of persecution have either the means or motivation to pursue her in Port Harcourt. [44] First, the Appellant submits that the RPD ignored the sworn testimony of the Appellant and failed to find that it was not credible, thus violating the principle that sworn testimony is presumed to be true. When I review the Appellant's testimony and the evidentiary record, I find that the issue is not one of credibility as much as whether there is a sufficiency of evidence to establish the allegation. The Federal Court has recently noted that there is a difference between credibility and sufficient evidence. It stated: [11] One might be forgiven for thinking that there is no meaningful difference between insufficiency and lack of credibility. In this regard, counsel for the applicants argued that a conclusion that the applicants have brought insufficient evidence practically means that the Court does not believe them. Even though both situations may lead to the rejection of the claim, there is nonetheless a significant distinction. As counsel for the Minister noted, the applicants may well have a sincere belief in the power and influence of the agent of persecution. Without sufficient evidence, however, a decision-maker is unable to ascertain that this belief is objectively grounded. Thus, a conclusion of insufficiency is logically distinct from a negative credibility finding.37 [45] The Court's reasoning is directly applicable to the facts of this appeal because the Appellant states that her husband's relatives know influential people, and she provided no evidence to establish their influence or connections that would enable them to locate the Appellant. The Appellant has established that her in-laws would seek her out in Port Harcourt or have the means to do so other than her speculative views that they would do so. [46] Apart from some very general statements she made in testimony,38 there is no documentary evidence that is particularly probative in this regard. Affidavits from the Appellant's sister,39 dated December 23, 2019, and XXXX XXXX XXXX,40 dated December 23, 2019, outlines the historical difficulties the Appellant has had with her brother-in-law and sister-in-law. These brief affidavits do not address as to a forward-looking risk in the sense of giving any indication if the in-laws are still interested in pursuing the Appellant and whether they have any current interest with respect to the Appellant. The Appellant's husband's affidavit,41 sworn in January 2020, again recounts past problems. He makes only a vague statement that he is concerned about her safety when she returns to Nigeria. None of the affidavits indicates if there is any continuing interest of the agents of persecution to find the Appellant, cites any recent efforts by the in-laws to seek the Appellant or issue threats towards her. [47] Second, I disagree with the Appellant's submission that she will always be able to be found because she maintains a high profile on social media. I agree that social media can be used as a means to locate persons. However, in this appeal, the germane question is whether it is objectively unreasonable for the Appellant to find alternative employment or undertake a business strategy where she does not have to advertise on social media. I deal with this issue under the second prong of the IFA analysis. [48] I find that the Appellant has not established that there is a serious possibility that she will be persecuted in Port Harcourt or would be personally subject to a risk to her life, or to a risk of cruel and unusual treatment or punishment, or a danger of torture in Port Harcourt. Prong 2: Is it Reasonable in all of the circumstances for the Appellant to seek refuge in Port Harcourt? [49] Under the second prong of the IFA test, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all of the circumstances, including those particular to the claim, for the claimant to seek refuge there. [50] The RPD found that there were no issues with respect to travel and owing to the fact that the Appellant speaks both Yoruba and English, so language would not be an issue for her in Port Harcourt. The RPD found that, in light of the Appellant's education and work experience, the issue of employment would not make it unreasonable to locate to Port Harcourt. The RPD also found that the Appellant would be able to practice her Christian religion owing to the large population of Christians in Port Harcourt. The RPD recognized that accommodation is expensive in Port Harcourt but found that the Appellant's husband would be in a position to assist the Appellant to relocate. [51] The RPD found that Nigeria provides HIV treatment, that the program is a well financed national program with the stated goals of providing free HIV treatment to HIV-positive persons. It noted that treatment is free for those in the Three Rivers State, where Port Harcourt is located, and all user fees will be waived for the purpose of removing barriers to treatment. [52] The Appellant focussed her submissions on the hardship the Appellant would endure with respect to finding employment and accommodation, the issue of indigeneship, and whether the RPD appropriately applied the Gender Guideline. Findings on the Second Prong: It is not objectively unreasonable for the Appellant to relocate to Port Harcourt [53] I have considered a variety of factors as to whether it would be objectively unreasonable for the Appellant to relocate to Port Harcourt including employment and accommodation, language, religion, transportation and travel and access to health care. Employment and Accommodation [54] The Appellant states that it would be difficult for her to find employment and accommodation,42 and she cites country documentation with respect to this issue.43 I recognize that there are challenges in finding employment and housing in Port Harcourt; however, I find that such challenges would not be objectively unreasonable in the particular circumstances of the Appellant to relocate to Port Harcourt. The NDP also notes that there is a greater likelihood of employment for women if she is educated.44 It is reported that, of working Nigerians, 57.37 percent of women were working full time while 70.70 percent of men are working full time. Twenty-six point six (26.6) percent of women looking for work are unemployed as compared to 20.3 percent for men.45 It has been noted that women in urban areas, with advanced language skills and with more years of education, are more likely to be employed.46 Further, 65 percent of women were employed in Nigeria with this rate increasing by 10 percent over the last decade.47 [55] The Appellant is fifty years old and has 12 years of education, including three years of post-secondary education. She speaks Yoruba and English. For five years, she was a XXXX at the XXXX XXXX XXXX. The Appellant has travelled internationally. She testified that she had run her own business as a XXXX. At the present time, she is not caring for any dependent children. Hence, the Appellant would stand in far better position than most women in Port Harcourt in search of employment. [56] I recognize that the Appellant owned a business where she advertised on social media and that she fears that the agents of persecution will find her if she continues to use social media.48 I find that it would not be unreasonable that she will be required to either change her business strategy or find alternative employment without the use of social media. In a recent Federal Court decision,49 the Court noted that it is only in exceptional circumstances that a mere lack of employment opportunities in the identified IFA would be sufficient to render the IFA unreasonable.50 The Federal Court has also found that the denial of employment interests does not engage a principle of fundamental human rights or dignity worthy of refugee protection.51 [57] The Appellant cites country documentation demonstrating the challenges involved for single women when seeking accommodation and financial resources in Nigeria. I recognize that country documentation does state that the housing in Port Harcourt is expensive.52 However, I find that the Appellant's submissions are misleading in that she relies on the documentation relating to the challenges faced by single women to find employment and accommodation. The Appellant and her husband remain in a matrimonial relationship. There is no evidence as to why that relationship would change if she relocates to Port Harcourt. It can reasonably be expected that her husband could financially support her relocation to Port Harcourt in terms of accommodation and assisting her until she finds employment. The RPD noted that he is a successful businessman living in Lagos with fourteen years of education.53 I find that, given the profile of the Appellant, and the support from her husband, she would not have a more difficult time in obtaining accommodation in Port Harcourt than other Nigerians, and, hence, it would not be unreasonable for her to relocate to Port Harcourt. Language [58] I do not find language is a barrier for the Appellant to relocate to Port Harcourt. The Appellant speaks Yoruba and English. The Appellant would be able to function in English, as it is the official language of the country and used for most governmental administrative functions, including education and business. Although there may be some challenges, the country documentation does suggest that language would not make it objectively unreasonable for the Appellant to relocate to Port Harcourt.54 Religion, Transportation and Travel [59] The Appellant is a Christian, and there appears to be no impediment for her to practice her religion in Port Harcourt.55 Port Harcourt has an airport, and there does not seem to be any impediment for the Appellant to travel through the areas where the alleged agents of persecution reside.56 [60] The Appellant cites the NDP to establish the challenges with respect to indigeneship in Nigeria. The documentation the Appellant cites, however, was not the current NDP at the time of the hearing. The Appellant cites a 2012 version of Item 13.1 while the November 2019 version of the NDP, the one current at the time of the hearing, is an October 2019 document from the Immigration and Refugee Board of Canada (IRB).57 That document states that that indigeneship status is less important in big cities such as Port Harcourt because of the large number of people relocating to the city.58 Access to Health Care [61] In her Legal Memorandum, the Appellant did not raise the issue of access to health care, and in particular, she did not submit that she would not have access to health care with respect to her HIV-positive condition or any other medical issue. She did not submit that she had issues with regard to the quality of health care for her own medical conditions. [62] I agree with the RPD that Nigeria does provide HIV treatment, and efforts are being made to make treatment more accessible for all HIV-positive persons. There is also evidence that the Nigerian government was offering free treatment to those in the River State, where Port Harcourt is located.59 Despite her HIV-positive status, I find it would not be unduly harsh for the Appellant to relocate to Port Harcourt. Gender Guideline [63] The Appellant states that the RPD failed to consider the Gender Guideline in assessing whether Port Harcourt is a viable IFA. The Appellant does not specifically state how or in what manner the RPD strayed from the Gender Guideline except to state that it should have considered the ability of the Appellant to travel, practice her religion, as well as cultural and economic considerations. I have read both the RPD's decision and the transcript of the hearing. My assessment is that the RPD undertook the hearing in a respectful manner and with due regard for the particular circumstances of the Appellant. [64] I have also undertaken my assessment in light of the Gender Guideline where I am to consider religious, economic, social and cultural factors, and any other relevant factor to assess the reasonableness of the IFA for a woman fearing gender-related persecution. I have reviewed all of these factors in light of the Gender Guideline, and my finding remains that it would not be unreasonable for the Appellant to relocate to Port Harcourt. Summary [65] I find that the Appellant has a viable IFA in Port Harcourt. I am satisfied that there is no serious possibility of persecution in Port Harcourt, and the Appellant would not, on a balance of probabilities, be personally subject to a risk to her life, or to a risk of cruel and unusual treatment or punishment, or a danger of torture, in Port Harcourt. I also find that the conditions in Port Harcourt are such that it would not be unreasonable in the circumstances, including those particular to the Appellant, for the Appellant to seek refuge there. [66] I have also considered any particular circumstances to the Appellant that would make it unreasonable for the Appellant to relocate to Port Harcourt. I recognize that the Appellant is a HIV-positive person; however, that condition alone does not make it unreasonable for the Appellant to relocate. There is no evidence that the Appellant has any other medical or psychological condition that would be a barrier for her to reside in Port Harcourt. CONCLUSION [67] My independent conclusion based on all of the evidence is that there is not a serious possibility that the Appellant faces persecution for a Convention ground or, on a balance of probabilities, would be subjected personally to a risk set out in section 97. [68] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Paul Muldoon Paul Muldoon May 10, 2021 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Update, Guideline issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the IRPA. 3 Transcript of the RPD Hearing (January 20, 2020), at p. 30, lines 3-10. 4 Sagharichi v. M.E.I. [1993] F.C.J. No. 796, 182 N.R. 398, 42 A.C.W.S. (3d) 494, at para. 3. 5 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 20 Imm. L.R. (2d) 85. 6 Sagharichi, at para. 2. 7 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reissued, Geneva, December 2011, at paras. 54-55. 8 Mete, Durson Ali v. M.C.I. (F.C., no. IMM-2509-04, Dawson, June 17, 2005, 2005 FC 840, at para. 5. 9 Exhibit RPD-1 RPD Record, Letter from Dr. Megan Saunders, January 15, 2020, at p. 121 (Exhibit 5). 10 NDP for Nigeria (November 30, 2020), Item 2.1, United States Department of State, "Nigeria: Country Reports on Human Rights Practices for 2019", March 11, 2019, at section 6. 11 NDP for Nigeria (November 30, 2020), Item 2.1 (ibid.), at p. 39. 12 NDP for Nigeria (November 30, 2020), Item 2.1 (ibid.), section 7(d). 13 NDP for Nigeria (November 30, 2020), Item 2.5, Nigeria, "HIV and AIDs (Anti-Discrimination) Act, 2014", 2014. 14 NDP for Nigeria (November 30, 2020), Item 2.4, Nigeria, National Agency for the Control of AIDS, "National HIV/AIDS Stigma Reduction Strategy", 2016. 15 NDP for Nigeria (November 30, 2020), Item 2.4 (ibid.), at p. 8. 16 NDP for Nigeria (November 30, 2020), Item 2.2, AVERT, "HIV and AIDS in Nigeria", August 5, 2020, at p. 12. 17 NDP for Nigeria (November 30, 2020), Item 1.25, Federal Republic of Nigeria, National Population Commission; ICF. Demographic and Health Surveys Program, "Nigeria Demographic and Health Survey 2018", October 2019, at p. 347 18 Ibid. 19 Ifeanyi v. M.C.I. (F.C., no. IMM-4514-17), Gascon, April 19, 2018, 2018 FC 419, at para. 33. 20 Exhibit RPD-1, RPD Record, BOC Amendment, at pp. 28-29, Exhibit 6. 21 Transcript of the RPD Hearing (January 20, 2020), at p. 26 lines 47-50; p. 27, lines 1-4, p. 28, lines 36-48. 22 Transcript of the RPD Hearing (January 20, 2020), at p. 28, lines 36-48. 23 Transcript of the RPD Hearing (January 20, 2020), at p. 29, lines 19-27. 24 Transcript of the RPD Hearing (January 20, 2020), at p. 10, lines 10-42; p 28, lines 16-33; p. 28, line 50; p. 29, lines 2-7 and p. 32, lines 7-25. 25 Campaz Arce v. M.C.I. (F.C., no. IMM-234-19), Annis, October 29, 2020, 2020 FC 1016, at para. 30. 26 Ifeanyi v. M.C.I. (F.C., no. IMM-4514-17), Gascon, April 19, 2018, 2018 FC 419, at para. 16. 27 Exhibit RPD-1, RPD Record, at pp. 142-144, Nigerian News, "Rivers Govt. abolishes user-fees for treatment for HIV/AIDS patients", June 26, 2019, Exhibit 7. 28 Transcript of the RPD Hearing (January 20, 2020), at p. 28, lines 16-20. 29 Exhibit P-2, Appellant's Record, at p. 6, para. 8. 30 Transcript of the RPD Hearing (January 20, 2020), at p. 10, lines 10-42; p. 28, lines 16-33; p. 28, line 50; p. 29, lines 2-7; and p. 32, lines 7-25. 31 Exhibit RPD-1 RPD Record, Nigerian News, "Rivers Govt abolishes user-fees for treatment for HIV/AIDS patients", at pp. 142-144, Exhibit 7. 32 NDP for Nigeria (April 16, 2021), Item 2.2, AVERT, "HIV and AIDS in Nigeria", August 5, 2020. 33 Rasaratnam v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.), at 710; and Thirunavukkarasu v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 34 M.C.I. v. Ranganathan (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000; [2001] 2 F.C. 164 (C.A.), at paras. 15-16, citing Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 35 Transcript of the RPD Hearing (January 20, 2020), at p. 23, lines 32-44. 36 Transcript of the RPD Hearing (January 20, 2020), at p. 24, lines 10-11. 37 Adeleye, Adedamola Oladapo v. M.C.I. (F.C., no. IMM-5229-19), Grammond, May 22, 2020, 2020 FC 640. 38 Transcript of the RPD Hearing (January 20, 2020), at p. 17, lines 11-17. 39 Exhibit RPD-1, RPD Record, at p. 130, Attestation Letter from XXXX XXXX Exhibit 6, C-7. 40 Exhibit RPD-1, RPD Record, at p. 131, Attestation Letter from XXXX XXXX XXXX, Exhibit 6, C-8. 41 Exhibit RPD-1, RPD Record, at pp. 139-140, Attestation Letter from Claimant's Spouse, Exhibit 6, C-11. 42 Transcript of the RPD Hearing (January 20, 2020), at p. 23, lines 23-28 and lines 48-50 and p. 24, lines 1-5. 43 NDP for Nigeria (April 16, 2021) Item 12.6, IRB, Response to Information Request (RIR) NGA104679.E, "Treatment of Christians who relocate from northern parties of Nigeria by people in Port Harcourt [Rivers State]; whether they face linguistic, economic and social difficulties (2012-November 2013). 44 NDP for Nigeria (April 16, 2021), item 5.9, IRB, RIR NGA106362.E, "Whether women who head their own household, without male or family support, can obtain housing and employment in Abuja, Lagos, Ibadan, and Port Harcourt; government support services ... (2017-November 2019)", November 20, 2019, section 2.2 45 NDP for Nigeria (April 16, 2021), item 5.9 (ibid.), IRB, RIR NGA106362.E, section 1.4.1. 46 NDP for Nigeria (April 16, 2021), item 5.9 (ibid.), IRB, RIR NGA106362.E, section 1.4.1. 47 NDP for Nigeria (April 16, 2021), item 5.9 (ibid.), IRB, RIR NGA106362.E, section 1.4. 48 Transcript of the RPD Hearing (January 20, 2020), at p. 23, lines 32-44. 49 Ambroise, Belynda v. M.C.I. (F.C., no. IMM-3417-19), McHaffie, January 19, 2021, 2021 FC 62. 50 Ibid., Ambroise, 2021 FC 62, at paras. 36-37. 51 Trujillo Sanchez v. M.C.I. (F.C., no. IMM-3818-05), Barnes, May 16, 2006, 2006 FC 604, at para. 20. 52 NDP for Nigeria (April 16, 2021), item 12.6, IRB, RIR NGA104679.E, "Treatment of Christians who relocate from northern parts of Nigeria by people in Port Harcourt [River State]; whether they face linguistic, economic and social difficulties (2012-November 2013)", section 2. 53 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at para. 33. 54 NDP for Nigeria (April 16, 2021), item 12.6 (supra, footnote 52), section 7. 55 NDP for Nigeria (April 16, 2021), item 12.6 (ibid.), section 1. 56 NDP for Nigeria (April 16, 2021), item 1.6, United States, Central Intelligence Agency, "Nigeria: The World Factbook", November 18, 2020. 57 NDP for Nigeria (April 16, 2021), item 13.1, IRB, RIR NGA106361.E, "Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; obstacles faced by non-indigenes when relocating to Abuja, Lagos or Port Harcourt; ...", October 30, 2019. 58 Ibid., section 5.1. 59 Exhibit RPD-1 RPD Record, Nigerian News, "Rivers Govt abolishes user-fees for treatment for HIV/AIDS patients", at pp. 142-144, Exhibit 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-10392 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