TB9-00833

RAD File / Dossier de la SAR : TB9-00833 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 9, 2020 Date de la décision Panel K. Qureshi Tribunal Counsel for the persons who are the subject of the appeal Matthew Tubie Conseil des personnes en cause Designated representative Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated December 12, 2018, rejecting his claim for refugee protection. The Appellant's allegations are as follows. [2] The Appellant is from Ikorodu and fears the Badoo cult members. He alleges that the Badoo cult had been terrorizing his neighbourhood and perpetrated attacks in August and September 2017 which killed several people, including his father. The Appellant states that in September 2017, he saw two members of the cult in his area around 11pm that were not wearing masks and therefore he is able to identify them. The Appellant states that because he is able to identify these cult members, they wish to harm him and his family. The Appellant sent his wife and children to stay with a relative and he himself relocated to a friend's home. The Appellant and his family obtained US visas and fled to the US in XXXX 2018. They came to Canada in XXXX 2018 and claimed for refugee protection. [3] The claims were heard on October 17, 2018 and rejected on December 12, 2018 on the basis of an Internal Flight Alternative (IFA) in Port Harcourt. The Appellant appeals to the Refugee Appeal Division (RAD). [4] After the filing of the appeal, the Appellant's claim was disjoined from the claims of his family. ANALYSIS [5] I have reviewed the RPD decision on a standard of correctness and conducted an independent assessment of all of the evidence.1 In the course of my analysis, I acknowledge that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity. [6] The Appellant submits that the RPD erred as follows: a. By unfairly undermining the Appellant's credibility without regard to the evidence.2 b. By failing to assess the totality of the evidence in a fair manner.3 c. By breaching procedural fairness by failing to give the Appellant an opportunity to respond to its concerns.4 d. By finding that the Appellant has an IFA in Port Harcourt.5 [7] Notwithstanding these issues that were raised by the Appellant, having reviewed the Appellant's memorandum, I note that the Appellant only provided substantive arguments with respect to IFA, which was also the determinative issue in the RPD decision. Accordingly, I will restrict my analysis to a consideration of whether the Appellant has a viable IFA in Port Harcourt. RPD did not err in concluding Appellant has a safe IFA in Port Harcourt [8] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam.6 First, I must be satisfied on a balance of probabilities that there is no serious possibility of an appellant being persecuted in the part of the country where an IFA exists and/or the appellant would not be personally subjected 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. Secondly, 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 appellant, for an appellant to seek refuge there. Both prongs must be satisfied to find that an appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the appellant to show that they do not have an IFA. [9] The RPD decision found that the Appellant would be safe from members of the Badoo cult in Port Harcourt.7 Specifically, the RPD stated Ikorodu is at a considerable distance from Port Harcourt, a 10-hour drive by car, and Port Harcourt is a populous city. Furthermore, the decision notes that when the Appellant was asked how the Badoo cult members would find him in Port Harcourt, the Appellant testified that the Badoo cult has members everywhere. The RPD did not find this answer was responsive to the question posed. The Appellant raises the following issues with the RPD's findings. [10] First, the Appellant submits that the 10 hour travel time between Ikorodu and Port Harcourt, as quoted by the RPD, is misleading because the actual distance between Ikeja, a city close to Ikorodu, and Port Harcourt is only 454 km.8 The Appellant explains that the travel time of 10 hours is only because of bad road conditions. Based on my independent assessment, I do not find that the Appellant's explanation for the distance between Ikorodu and Port Harcourt affects the bottom line that for the Ikorodu Badoo cult members to accost the Appellant in Port Harcourt, they would have to travel for 10 hours, which is a long time. I do not find, on a balance of probabilities, that the Ikorodu Badoo cult members would go to such lengths to accost the Appellant in Port Harcourt. For example, when the Appellant and his family relocated to areas outside of Ikorodu, such as Ketu Alapere in Lagos and Ogudu, Ojota Lagos,9 there is no evidence that any Badoo cult members looked for them or found their locations notwithstanding that these areas are under 25 kilometres away from Ikorodu. Accordingly, I find that the amount of effort that would be required to accost the Appellant 10 hours away in Port Harcourt mitigates against the Ikorodu Badoo cult members having the motivation to seek the Appellant there. In fact, the Appellant also stated that Ikorodu to Port Harcourt was "very, very far". 10 In any event, I find that the distance of 454km is not insignificant in and of itself. [11] The Appellant also submits that Badoo cult members are spread all over southern Nigeria, and word of the Appellant's relocation will become known by family and friends through whom the cult members can obtain information.11 I find that the Appellant's submission is speculative. While the Appellant bears the onus of establishing that he would not be safe in an IFA, the Appellant has not provided any details or objective evidence as to what sort of a presence or network Badoo cult members have throughout southern Nigeria. The Appellant also has not explained how the Badoo cult members in other parts of southern Nigeria would be able to find him in Port Harcourt, or find his family or friends, or which family or friends these are and in what cities they are located, etc. Furthermore, I again note that while the Appellant and his family actually did relocate to the homes of a friend and relative, there is no evidence to suggest that this friend or relative were ever found or approached by Badoo cult members looking for the Appellant. [12] The Appellant also submits that the Badoo cult can use their spiritual powers to locate the Appellant.12 First, I note that there is no evidence that the Badoo cult have spiritual powers and this was also not a response that the Appellant provided at the hearing. Secondly, the Federal Court has found that a person's fear of the spiritual may be genuine on a subjective basis, but that it also must be objective.13 Therefore, I do not accept that the Badoo cult will be able to find the Appellant through supernatural powers. [13] The Appellant's claim falls under s. 97, a proposition with which he does not disagree. Overall, on the basis of the preceding paragraphs, I do not find that the Appellant has established that he would face danger of torture or risk to life or of cruel and unusual treatment or punishment, on a balance of probabilities, in the IFA of Port Harcourt. Relocating to Port Harcourt would not be unreasonable [14] In respect of analyzing the reasonableness of a proposed IFA under the second prong, the Federal Court of Appeal has held that there is: 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.14 [15] At the hearing the Appellant testified that relocating to the IFA would be unreasonable because of a language barrier, he would have to find a job and start all over, his children would have difficulty and because of Boko Haram and Fulani herdsmen.15 The RPD did not find these concerns were insurmountable and relied on the former Jurisprudential Guide which has since been revoked. In this appeal, the Appellant does not make any arguments as to why he does not have a viable IFA under the second prong of the test. Nevertheless, based on my independent assessment, I do not find that relocating to Port Harcourt would be unreasonable for the following reasons. [16] Regarding employment, I acknowledge that the Appellant only has a primary education and that finding employment in Port Harcourt is difficult. However, I note that the Appellant was a XXXX in Nigeria and therefore has employable skills. While relocating to Port Harcourt may require him to start over, I note that the Appellant relocated to Canada, a country with which he had no familiarity, but where he was able to start over. I therefore do not find that starting over in Port Harcourt rises to the level of undue hardship. [17] Regarding language, the Appellant's Basis of Claim form (BOC) indicates that, in addition to Yoruba, he also speaks English.16 The objective evidence states that Nigerian Pidgin English (NPE) is known as the 'second language lingua franca' by more than a third of the population, in particular in the south.17 Even if the Appellant's English-speaking abilities are limited, I do not find that any difficulties the Appellant may have linguistically rise to the level of undue hardship. [18] Regarding travel, although the Appellant did not make any specific arguments in this regard, there is no evidence to suggest the Appellant would be unable to travel to Port Harcourt, which has an international airport. Notably, the Appellant demonstrated the ability to travel to Canada. I therefore do not find that any difficulties the Appellant may have with regards to travel or transportation rise to the level of undue hardship. [19] With respect to accommodation, the Appellant has provided insufficient evidence that he would be unable to find housing in Port Harcourt and his submissions are silent in this regard. Accordingly, the Appellant has not established that the IFA is unreasonable in his particular circumstances. [20] Regarding religion, the Appellant is Christian.18 Although the Appellant did not make any specific arguments in this regard, the objective evidence indicates that in southern Nigeria, the majority of the population are Christians and "Local conflicts in the south rarely have a religious dimension."19 Therefore, I do not find that any difficulties the Appellant may have with his religion rise to the level of undue hardship. [21] With respect to indigeneity, although the Appellant did not make any specific arguments in this regard, the objective evidence states that "indigeneship status is less important in big cities such as Lagos, Abuja and Port Harcourt than it is in other places, in terms of access to public jobs or ownership of land, because the indigene population in these areas has been 'overwhelmed' by migrants to the cities [citation omitted]."20 Moreover, while the document says that non-indigenes are disadvantaged in the field of politics, and indigenes of Port Harcourt are pushing for greater allocation of jobs in the region's oil industry, these are not occupations that are particular to the Appellant. Therefore, while I acknowledge that indigeneship can make relocation difficult, I prefer the passages of the National Documentation Package (NDP) that relate specifically to the IFA and find that the difficulty the Appellant may experience does not rise to the level of undue hardship. [22] Regarding the availability of medical and mental health care, the Appellant does not make any specific arguments in this regard and there is no evidence that he is in any particular need of medical or mental health care. Therefore, I do not find that any potential challenges the Appellant may have with accessing medical care rises to the level of undue hardship. [23] Regarding the Fulani herdsmen, the objective evidence indicates that the conflict is primarily between herders and farmers, is resource-driven and is mostly in the northern and middle states.21 Contrarily, Port Harcourt is in the far south and the Appellant is not a farmer. Therefore, I find the conflict from Fulani herdsmen in Nigeria does not render relocation to Port Harcourt unreasonable or jeopardize his life or safety. [24] Regarding Boko Haram, the objective evidence indicate that the group's influence "outside of the north east appears limited."22 Therefore, while, there is a speculative and small chance that anyone who is in the wrong place at the wrong time can be harmed by Boko Haram, I do not find that Boko Haram renders the IFA unreasonable. [25] Therefore, while I acknowledge that relocation is difficult, having reviewed a number of factors relevant to the assessment of reasonableness of an IFA, I do not find that challenges associated with relocating to Port Harcourt rise to the level of undue hardship or jeopardizing the Appellant's life or safety. [26] Overall, based on the foregoing analysis, I do not find that the Appellant faces a risk to life or risk of cruel or unusual punishment if he was to locate to the IFA, on a balance of probabilities, and that the conditions in the IFA are not such that it would be unreasonable in all the circumstances, including those particular to the Appellant, for him to seek refuge there. There is a safe and viable IFA in Port Harcourt and therefore, the RPD's analysis is correct. CONCLUSION [27] 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 section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) K. Qureshi K. Qureshi October 9, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 2 Exhibit P-2 Appellant's Record, Appellant's Memorandum, at p. 75. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 75. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 75. 5 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 18-24 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 7 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 11. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 18-20. 9 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) Narrative, at p. 20-21. 10 Transcript of October 17, 2018, RPD Hearing, at p. 13, line. 35 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 23. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 24. 13 Ajayi v. Canada (Citizenship and Immigration), 2007 FC 594, at para. 16 14 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164, at para. 15. 15 Transcript of October 17, 2018, RPD Hearing, at p. 14. 16 Exhibit RPD-1, RPD Record, Exhibit 2, BOC, at p. 11. 17 Exhibit RPD-1, RPD Record, Exhibit 6, National Documentation Package (NDP) for Nigeria, (10 July 2018), tab 1.4: ?EASO Country of Origin Information Report: Nigeria. Country Focus, European Union. European Asylum Support Office,. June 2017 at p. 18. 18 Exhibit RPD-1, RPD Record, Exhibit 2, BOC, at p. 11. 19 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria, (10 July 2018), tab 1.4: ?EASO Country of Origin Information Report: Nigeria. Country Focus, European Union, European Asylum Support Office, June 2017 at 1.2. 20 Exhibit RPD-1, RPD Record, Exhibit 6 (NDP) for Nigeria, (10 July 2018), Item 13.1 : Whether a member of an ethnic group can be identified by physical characteristics, manner of dress, or by any other means; obstacles faced when relocating to Abuja, Lagos or Port Harcourt., Immigration and Refugee Board of Canada, 20 November 2012, Response to Information Request (RIR) NGA104216.E. 21Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria, (10 July 2018), tab 7.20: ?Herders against Farmers: Nigeria's Expanding Deadly Conflict. Africa Report N° 252. International Crisis Group. 19 September 2017. 22 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria, (10 July 2018), tab 1.16: ?Country Information and Guidance. Nigeria: Fear of Boko Haram. Version 1.0. United Kingdom. Home Office. June 2015 at 2.6.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-00833 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