TB9-15858

RAD File / Dossier de la SAR : TB9-15858 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 October 12, 2020 Date de la décision Panel L. Krajcovic Tribunal Counsel for the person who is the subject of the appeal Daniel Etoh 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 a citizen of Nigeria. He appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. DECISION [2] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant's allegations are as follows. The Appellant fears harm from the people of the XXXX community of XXXX who want him to take the position as XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant was selected by the XXXX to XXXX XXXX XXXX XXXX, which he refused due to his Muslim beliefs. [4] Many years ago, the Appellant's XXXX was selected to XXXX XXXX XXXX XXXX, following which the XXXX fled to XXXX where he lived safely for forty years until he died mysteriously upon his return to XXXX. The Appellant believes that his XXXX was killed by XXXX XXXX. [5] After finding out that he had been selected to XXXX XXXX XXXX XXXX, the Appellant fled to XXXX XXXX, following which he returned to Nigeria. He then fled to the XXXX XXXX where he married and then divorced. The Appellant arrived in Canada on XXXX XXXX, 2018. He signed his Basis of Claim (BOC) form on June 11, 2018. On May 8, 2019, the Appellant's refugee claim hearing was held and the RPD rejected his claim. [6] The RPD found that the Appellant had a viable internal flight alternative (IFA) in Abuja. The Appellant submits that the RPD erred in its IFA assessment and failed to address the substantial body of evidence. [7] The determinative issue on appeal is whether the Appellant has a viable IFA in Abuja. [8] The Refugee Appeal Division (RAD) gave notice to the Appellant that the most updated version of the National Documentation Package (NDP) for Nigeria dated July 31, 20201 would be considered in this appeal and directed attention to item 13.1. Submissions were received on August 21, 2020.2 [9] As there is no new evidence admitted on appeal, there can be no oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). ROLE OF THE REFUGEE APPEAL DIVISION [10] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. I may defer to the RPD in assessing findings involving the credibility of oral testimony if I find that it had a meaningful advantage in the circumstances.3 In this case, I find that the RPD did not have a meaningful advantage. ANALYSIS Legal test for IFA [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] The test to be applied in determining whether there is an IFA is two-pronged: 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. Moreover, 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 claimant, for the claimant to seek refuge there.4 [12] Both prongs of the test must be satisfied to find that the Appellant has an IFA. Once the issue of an IFA has been raised and a potential IFA has been identified, the burden of proof rests with the Appellant to demonstrate that he does not have an IFA. The RAD finds that the Appellant has a viable IFA in Abuja [11] [12] [13] At the hearing, the RPD Member canvassed Abuja as a potential IFA location and found that the Appellant has a viable IFA in Abuja. No serious possibility of the Appellant being persecuted in Abuja [14] The Appellant bears the burden of establishing that there is a serious possibility of persecution or risk to his life in the IFA location. After reviewing the record, including the audio recording of the hearing, I find that the Appellant has not established, on a balance of probabilities, that his agents of persecution have the ability or motivation to locate him in Abuja. The Appellant has not established that his agents of persecution are highly influential [15] The RPD found that the Appellant had not established that his agents of persecution could find him in Abuja. The RPD drew a negative inference from the Appellant's failure to mention in his BOC that the people from XXXX are highly influential. The RPD found this to be a substantive and significant omission as, if they were highly influential, it would affect their ability to locate him as well as his risk profile. The RPD found that the Appellant had not established that his agents of persecution were highly influential. [16] The Appellant submits that the RPD erred in rejecting his testimony because the influence of his agents of persecution was not contained in his BOC narrative. The Appellant submits that this is an elaborative detail and the Federal Court has stated that negative inferences cannot be drawn on the basis of omitting minor or elaborative details. [17] The Appellant submits that he gave evidence that community members will easily find him if he moved to Abuja given the influence of the people of Abeokuta in government, such as the former President of Nigeria. The Appellant submits that the RPD erred in rejecting his testimony due to the absence of corroborating evidence. The Appellant submits that the RPD did not identify issues with his testimony and erred in not providing any independent reason why this evidence was rejected. [18] The Appellant also submits that item XXXX XXXX XXXX of the NDP outlines the consequences for rejectingXXXX XXXX XXXX and states that individuals could be tracked anywhere. The Appellant submits that XXXX XXXX are very strong in their XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [19] I reject the Appellant's submission that the omission of the influence of his agents of persecution is an elaborative detail and cannot result in a negative inference. I have reviewed the Appellant's BOC form and narrative and agree that there is no reference to his agents of persecution being influential. Question 2(d) of the Appellant's BOC form asks whether the Appellant moved to another part of his country to seek safety, to which the Appellant responds "no", and states "I was afraid that they will find me there using the XXXX."5 Although the Appellant refers to his concern that the XXXX may be used to locate him elsewhere in Nigeria, he fails to mention that his agents of persecution are influential and could use their influence to locate him. I note that the Appellant was represented by counsel at the time that he completed his BOC form.6 [20] I have reviewed the audio recording of the hearing as part of my independent assessment. At the hearing, the RPD Member asked the Appellant why he did not state in his BOC form that people from Abeokuta are highly influential, to which he replied that he "never knew a question like this would come up."7 The RPD Member later asked the Appellant why he did not state in his BOC form that the people from XXXX community have highly influential members in government, to which the Appellant responded "if you hadn't asked me such question, I would have no reason to tell you how influential they are."8 [21] I find that the RPD was correct in finding this to be a significant and substantive omission for the same reasons as the RPD: the Appellant's agents of persecution being highly influential affects their ability to locate him as well as his risk profile. As a result, I find that this information is neither minor nor elaborative and therefore should have been included in the Appellant's BOC narrative. [22] Further, after reviewing the audio recording of the hearing, I find that the Appellant's testimony was vague regarding the influence of his agents of persecution. When the RPD Member asked the Appellant where the evidence was that Abeokuta people are influential, the Appellant replied that they are highly influential, that the former president is from Abeokuta and that there are a lot of Abeokuta people in the government and economy.9 Later in the hearing, the RPD Member asked the Appellant if there was any evidence that the people from XXXX are influential, to which he replied that XXXX is in Abeokuta and generally Abeokuta people are highly influential.10 [23] Considering the omission of the influence of the Appellant's agents of persecution from his BOC form and the Appellant's vague testimony regarding their influence, I find that the Appellant has not established, on a balance of probabilities, that his agents of persecution are highly influential. As a result, I find that the RPD did nor err in drawing a negative inference. [24] I reject the Appellant's submission that the RPD erred by not providing any independent reason why this evidence was rejected. As discussed above, the RPD found that the Appellant omitted the influence of his agents of persecution from his BOC form. However, I agree that the RPD erred in drawing an adverse inference from a lack of corroborating documents as I do not see, nor does the RPD indicate, the documents that the Appellant could reasonably be expected to provide in the circumstances. [25] I reject the Appellant's submissions that his agents of persecution will easily find him if he moves to Abuja, given the influence of the people of Abeokuta in government. The Appellant testified that the people of Abeokuta are highly influential, that there are a lot of Abeokuta people in government and that the former president of Nigeria is from Abeokuta.11 As stated by the RPD, it is not the former President of Nigeria and other people in government that the Appellant fears.12 Furthermore, the former president of Nigeria being from Abeokuta and people from Abeokuta holding positions in government, does not establish, on a balance of probabilities, that they support XXXX XXXX XXXX XXXX or that they would use their influence to assist the Appellant's agents of persecution to locate him outside Abeokuta. [26] I have reviewed item XXXX XXXX XXXX of the NDP.13 Item XXXX XXXX XXXX is an Immigration and Refugee Board Response to Information Request (RIR). While I accept that it outlines the consequences for XXXX XXXX titles, I find that it does not establish that the Appellant could be tracked anywhere. I note that two of the sources in the RIR state that there are presently no consequences for XXXX XXXX XXXX XXXX, whereas another source states there are serious consequences.14 The latter source also states that "government officials may also be unhappy with a person's refusal of a chieftaincy title, and may 'use state machinery' against this individual (ibid)."15 However, as outlined above, there is no credible evidence before me that the Appellant's agents of persecution are highly influential or have links to the government that would allow them to use state machinery to locate the Appellant. [27] I find the Appellant's submission that XXXX XXXX are very strong in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, not relevant to the Appellant's circumstances. Although the article, "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" that was before the RPD, demonstrates that XXXX XXXX flouted XXXX XXXX with respect to XXXX XXXX16, it does not address the treatment of people who XXXX XXXX XXXX XXXX XXXX XXXX or to XXXX XXXX tracking people down outside their local community for XXXX XXXX XXXX XXXX XXXX XXXX. As a result, while the article may indicate that XXXX XXXX are strong in their XXXX, it does not demonstrate, on a balance of probabilities, that the Appellant's agents of persecution are motivated to track him down outside Abeokuta. [28] I agree with the RPD's finding that the evidence does not establish, on a balance of probabilities, that the Appellant's agents of persecution are highly influential or have the ability or motivation to locate the Appellant outside Abeokuta. The Appellant has not established that his agents of persecution can trace him through his phone [29] The RPD found that the Appellant had not established, on a balance of probabilities, that he could be traced through his phone. [30] The Appellant submits that, in order to survive in Abuja, he will need to network and that, due to the Subscriber Identity Module (SIM) card database in Nigeria, which is available to police, the corruption of Nigerian police and the influence of the members of the Abeokuta community, his agents of persecution will be able to obtain his phone number. The Appellant submits that the RPD's reference to his XXXX's situation is erroneous as his XXXX lived at a different time, in which there were no cell phones, so it was more difficult to trace. [31] I reject the Appellant's submission that his agents of persecution could locate him through the SIM card database in Nigeria. As noted above, I find that the RPD was correct in finding that the Appellant did not establish, on a balance of probabilities, that his agents of persecution were highly influential. While I accept that there are SIM card registration requirements in Nigeria and that the database is available to police,17 there is no evidence before me that the Appellant's agents of persecution have links to police or that the police are interested in the Appellant or are seeking him for any reason. Therefore, the documentary evidence does not establish, on a balance of probabilities, that the Appellant's agents of persecution could gain access to the SIM card database. As a result, I agree with the finding of the RPD that the Appellant did not establish, on a balance of probabilities, that he could be traced through his phone. [32] I reject the Appellant's submission that the RPD's reference to his XXXX's situation is erroneous as his XXXX lived at a different time when there were no cell phones. While I acknowledge that it may be easier to locate someone today due to the existence of cell phones, this does not establish, on a balance of probabilities, that the Appellant's agents of persecution have the ability to locate the Appellant in Abuja through his cell phone. As stated above, the evidence does not establish, on a balance of probabilities, that the Appellant's agents of persecution have access to the SIM card database. [33] Further, I note that the Appellant's XXXX lived safely in XXXX for forty years after XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. There is no evidence before me that XXXX XXXX attempted to locate the Appellant's XXXX outside Abeokuta after his XXXX XXXX XXXX XXXX XXXX XXXX, suggesting a lack of motivation on the part of the XXXX XXXX to track the Appellant's XXXX down outside their community. I agree with the following comments of the RPD: He would be living in a new place, just like his XXXX, and his XXXX was safe for 40 years. And it was only when he went back to the community that he was subjected to a risk. And I find that that is the case here; that the Claimant would be safe in Abuja cutting himself off from the local community, and that he would only be at risk from the people of XXXX community if he were to go back, if he were to leave the IFA.18 [34] As a result of the foregoing, I find that the Appellant has not established, on a balance of probabilities, that his agents of persecution have the means to locate him in Abuja. Relocation to Abuja is reasonable in all the circumstances [35] The RPD found it not unreasonable in all the circumstances for the Appellant to relocate to Abuja. The RPD found that the living expenses in Abuja did not put the Appellant at risk, that the Appellant is highly employable and that indigeneship issues are less important in large cities, such as Abuja, which have been overwhelmed by migrants. The RPD found that the issues raised by the Appellant did not rise to a level of rendering the IFA unreasonable in all the circumstances. [36] The Appellant submits that there is no evidence that he will be able to easily find employment in Abuja. The Appellant states that item 13.1 of the NDP that was before the RPD does not state that employment is easy to find, but rather that people can find work where there is a demand for it. The Appellant also refers to item 16.1 of the NDP, which indicates a high unemployment rate in Nigeria. In response to the request for submissions on item 13.1 of the updated NDP, the Appellant submits that it demonstrates that indigeneship will work against him finding employment in Abuja, that the claims of employment in large cities like Abuja are exaggerated, that there are challenges in finding housing, and that if he cannot find employment, he will not be able to afford the prohibitive cost of housing in Abuja and fend for himself. The Appellant also submits that he will not be able to get to the IFA given the pandemic and the risk of being exposed. Indigeneship and language [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] Contrary to the Appellant's submissions that item 13.1 of the updated NDP demonstrates that indigeneship will work against him finding employment in Abuja, the RIR refers to Abuja having a diverse population and being an example of a place where non-indigenous people are demographically dominant. The RIR also refers to a diversity of languages spoken in large cities such as Abuja and there being no language barrier unless one is not English speaking.19 The Appellant speaks fluent English, as evidenced by him testifying in English at the hearing, as well as Yoruba.20 This mitigates in favour of Abuja as an IFA. Employment and accommodation [37] [38] While I accept that the evidence does not indicate that it will be easy to find employment in Abuja, this is not the relevant consideration. As stated by the Federal Court of Appeal "[t]here will always be hardship with relocation, but the threshold for unreasonableness is very high and requires conditions that would jeopardize the life and safety of a claimant."21 [38] [39] The RIR refers to finding accommodation as being a major obstacle in Abuja if one is not financially strong. It identifies financial problems as the greatest obstacles non-natives face when they move to large cities, rent being "notoriously expensive" in Abuja, and that non-natives face huge costs of living. The RIR states that "the ability to find gainful employment, which is facilitated by a good level of 'education, experience or expertise,' is a key factor in finding housing [citation omitted]."22 [40] I find that the challenges of finding employment in Abuja are mitigated by the Appellant's education and employment history. The Appellant has XXXX XXXX of education,23 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.24 The Appellant has a XXXX XXXX XXXX XXXX XXXX XXXX and has work experience in XXXX as a XXXX XXXX and as a XXXX XXXX.25 I agree with the RPD that the Appellant is highly employable. While I accept that there is a high unemployment rate in Nigeria, I find that the Appellant's education and work experience increase his chances of obtaining employment in Abuja, which will assist him in finding accommodation and mitigate the high cost of accommodation in Abuja. [39] [40] [41] As a result of the foregoing, I find that the difficulty of finding employment and accommodation in Abuja does not meet the threshold of undue hardship or jeopardizing the Appellant's life or safety. Access to the IFA [42] The Appellant submits that he will not be able to get to the IFA given the COVID-19 pandemic and the risk of being exposed. [43] In order for an IFA to be viable, it has to be accessible. Appellants bear the onus to present evidence to support their allegations that an IFA is inaccessible. [41] [42] [43] [44] Other than his statement that he will not be able to get to the IFA given the pandemic and the risk of being exposed, the Appellant fails to explain why Abuja is not accessible. I find that the Appellant has not provided full and detailed submissions on this point. Further, the Appellant has not indicated that he has a medical condition that makes him particularly vulnerable to COVID-19 or provided medical documentation of such a condition. I note that the Appellant is in his XXXX XXXX XXXX. [44] [45] While an IFA may not be reasonable if the Appellant cannot access it due to internal travel restrictions, Abuja has an international airport.26 Therefore, the Appellant could access Abuja without having to travel within Nigeria. I find that the Appellant has not established, on a balance of probabilities, that he would be unable to access Abuja. [46] I find that relocation to Abuja is reasonable in all the circumstances. CONCLUSION [45] [46] [47] I find that the Appellant has a viable IFA in Abuja. I find that there is not a serious possibility of persecution in Nigeria pursuant to section 96 of the IRPA. I also find, on a balance of probabilities, that the Appellant 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 of the IRPA. [47] [48] As a result, 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) L. Krajcovic L. Krajcovic October 12, 2020 Date 1 Exhibit RAD-1, Member's Directions, August 21, 2020. 2 Exhibit P-3, Response to Member's Directions, August 21, 2020. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA), at p. 710; Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. 5 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 17. 6 Ibid., at p. 22. 7 RPD Hearing Recording, May 8, 2019, at approx. 21:00. 8 Ibid., at approx. 37:00. 9 Ibid., at approx. 19:07. 10 Ibid., at approx. 38:00. 11 Ibid., at approx. 19:07. 12 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7. 13 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria, (March 29, 2019), XXXX XXXX: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX?; XXXX XXXX XXXX XXXX XXXX XXXX. Immigration and Refugee Board of Canada (IRB). Response to Information Request (RIR) NGA103996.E, 13 November 2012. 14 Ibid., at p. 4/8. 15 Ibid., at p. 5/8. 16 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 141-142. 17 NDP for Nigeria (April 30, 2019), item 1.14, ?Requirements and procedures to obtain a Subscriber Identity Module (SIM) card and to open a bank account; extent to which SIM card and banking information is available to third parties, including authorities and elected politicians (2018-February 2019). IRB. RIR NGA106245.E, 18 February 2019, at p. 5. 18 Exhibit RPD-1, RPD Reasons, at p. 8. 19 Exhibit RAD-1, Member's Directions, August 21, 2020, NDP for Nigeria (July 31, 2020), item 13.1: Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; ability of non-indigenes to relocate to Abuja, Lagos or Port Harcourt; assistance available to those who relocate (2017-October 2019), IRB, RIR NGA106361.E., 30 October 2019. 20 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 12. 21 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164, at paras. 14-15, as referenced in Olalere v. Canada (Citizenship and Immigration), 2017 FC 385 (CanLII), at para. 43. 22 Exhibit RAD-1, Member's Directions, August 21, 2020, NDP for Nigeria (July 31, 2020), item 13.1, supra, footnote 19, at pp. 13-14. 23 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 34. 24 NDP for Nigeria, (March 29, 2019), item 1.6: ?Nigeria. The World Factbook. United States. Central Intelligence Agency. 19 November 2018, at p. 6. 25 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 34. 26 NDP for Nigeria, (March 29, 2019), item 1.7: Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation, United Kingdom. Home Office, August 2016, at s. 6.3.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15858 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