TB8-29002

RAD File / Dossier de la SAR : TB8-29002 TB8-29003 TB8-29004 TB8-29005 TB8-29006 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXX XXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 22, 2019 Date de la décision Panel Erin Bobkin Tribunal Counsel for the person(s) who is(are) the subject of the appeal Krishanthan Cathiresan Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the principal Appellant) and XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX (the associate Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD), dated October 5, 2018, rejecting their claims for refugee protection. [2] The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision and either substitute a decision that they are Convention refugees or persons in need of protection, or to send the matter back to the RPD for redetermination. In determining this appeal, I have considered the Guideline for Women Refugee Claimants Fearing Gender-Related Persecution.1 DETERMINATION [3] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND AND OVERVIEW OF APPEAL [4] The Appellants allege that a powerful chief/politician (Chief Roland) wants to marry the associate Appellant, XXXX XXXX XXXX, because an oracle advised him that this would bring him fortune and longevity.2 The principal Appellant and her husband oppose this marriage because their daughter is very young (a minor at the time of proposal). The Appellants allege that, as a result of their opposition to the marriage, Chief Roland is threatening to harm them and that they fled to Canada and claimed refugee protection.3 The RPD rejected the claim, finding that the principal Appellant was not credible, and therefore the Appellants had not established their claims, on a balance of probabilities. The Appellants alleged a number of errors in the credibility analysis. [5] After the perfection of their appeal, the RAD notified the Appellants that the issue of internal flight alternative (IFA) would be considered on appeal. The issue of IFA was raised by the RPD, and the cities of Port Harcourt and Abuja were considered at the hearing but not decided upon in the RPD's reasons. The Appellants were provided the opportunity to respond to the issue of IFA, and they argued that the Appellants do not have a viable IFA in Port Harcourt or Abuja because Chief Roland's influence and connections extend across Nigeria and because of finances, and the principal Appellant's mental health make relocation unreasonable.4 NEW EVIDENCE AND ORAL HEARING [6] The Appellants have submitted the national identity card of the principal Appellant's mother-in-law as new evidence and have not requested an oral hearing. For the following reasons, I find that this card is admissible, but it does not meet the requirements for granting an oral hearing. [7] Subsection 110(4) of the IRPA5 provides that the persons who are the subject of the appeal may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the persons could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claims. If the proposed new evidence meets the requirements of subsection 110(4), I must assess, pursuant to the Federal Court of Appeal's decisions in Raza6 and Singh,7 the newness, credibility and relevance of the evidence in order to determine whether it is admissible. [8] The Appellants argue that the national identity card of the principal Appellant's mother-in-law is new evidence because it is evidence they could not have reasonably been expected to provide prior to the rejection of their claim.8 The RPD held that there was no corroboration for the principal Appellant's testimony that her husband returned to Nigeria to assist his aging mother, and the Appellants submit that they could not have known that proof of the mother's age would be required.9 In this instance, I agree. It appears that the RPD member thought that the evidence that the principal Appellant's husband returned to Nigeria to care for his mother was implausible, but given that there was no evidence to contradict the testimony on this point, I do not find this is something the Appellants would have expected to corroborate at their hearing. Accordingly, I find this evidence is new, pursuant to subsection 110(4) of the IRPA. I also find it meets the jurisprudential requirements, as it is a government-issued ID; it speaks to a finding of the RPD and could prove a fact which was relevant to the RPD's decision. Accordingly, I will admit the card as new evidence. [9] I do not find that the card meets the requirements of subsection 110(6), as the issue of the principal Appellant's mother-in-law's age is not determinative of this appeal. Accordingly, an oral hearing will not be convened. THE ROLE OF THE RAD [10] When reviewing the RPD's decision, the RAD is required to independently assess whether the RPD was correct in relation to each alleged error of fact, law or mixed fact and law.10 I may defer to the RPD on a finding of credibility on oral evidence where the RPD had a meaningful advantage in the circumstances. In this instance, the RPD did not determine the claim on the basis of IFA, and therefore I am conducting my own independent assessment on this issue, and there is no need to defer to the RPD's decision. ANALYSIS [11] For the following reasons, I find that the Appellants have a viable internal flight alternative in Port Harcourt. As I find that IFA is determinative, I am not addressing the Appellants' arguments regarding the RPD's decision on credibility. I did find that portions of the RPD's analysis of credibility were microscopic and overzealous. Therefore, I am not relying on the RPD's findings on credibility in this appeal. For the purposes of this analysis, I accept the allegations as credible, except where stated. I am also not addressing the Appellant's arguments regarding an IFA in Abuja, as I find the IFA in Port Harcourt is determinative of this appeal. [12] The test to be applied in determining whether there is a viable IFA is two-pronged, and both prongs must be satisfied for a finding that an appellant has a viable IFA. First, I must find that there is no serious possibility of the Appellants being persecuted, nor risk to life, danger of torture or of cruel and unusual treatment or punishment, on a balance of probabilities, in the suggested IFA. The Appellants bear the burden of proof to show that there is a reasonable chance that the section 96 or 97 risk will occur in the entire country and, specifically, in the suggested potential IFA. Secondly, I must be satisfied that conditions in the suggested IFA are not such that it would be objectively unreasonable in all of the circumstances, including those particular to the Appellants, to relocate and reside there. [13] In this instance, I find that both prongs of the test are met in the proposed IFA location of Port Harcourt. The Appellants do not face a section 96 or 97 risk in Port Harcourt [14] For the following reasons, I find that there is not a serious possibility of the Appellants being persecuted, nor risk to life, danger of torture or of cruel and unusual treatment or punishment, on a balance of probabilities, in Port Harcourt. [15] At their hearing, the principal Appellant was asked whether she feared anything or anyone in Port Harcourt.11 She testified that she feared the Bakassi Boys, whom she described as terrorists in Port Harcourt.12 She also testified that she fears the Fulani and the Katu Main.13 She testified that the Fulani were waging a religious war against Christians in the North, including in Port Harcourt.14 Finally, she testified that she feared Chief Roland would find her family in Port Harcourt or anywhere in Nigeria and that he could use his wealth to find them and command the police to arrest them.15 In submissions, counsel for the Appellants argued that Chief Roland would be able to find the Appellants in Port Harcourt because he is powerful, corrupt and has police connections, and therefore the only way the Appellants could live in Port Harcourt is if they remained in hiding.16 I will address each of these arguments in turn. Risk from Bakassi Boys, Fulani or Katu Main is speculative and not borne out in the evidence [16] For the following reasons, I find that the Appellants do not face a section 96 or 97 risk in Port Harcourt from the Bakassi Boys, Fulani or Katu groups. [17] The documentary evidence shows that the Bakassi Boys were a vigilante group which emerged in Nigeria in the late 1990s.17 However, the evidence also shows that the group's efficacy was limited to a period of a few years in the late 1990s and early 2000s in the area of Abia State and surrounding region.18 The European Asylum Support Office notes: "In late 2002 the Federal Government moved in and wiped out the Bakassi Boys and they were quickly disbanded."19 Accordingly, I find that this group does not pose a section 96 or 97 risk to the Appellants. [18] The documentary evidence on the "Fulani" shows that they are nomadic herders, but indicates that they are in conflict with farmers, which the Appellants are not.20 Documents also indicate that there has been a 50% reduction in deaths caused by the Fulani and that their area of operation is largely in the middle-belt of Nigeria, which is further north than Port Harcourt.21 There has been some suggestion that the Fulani attacks are religiously motivated (against Christians), but, again, these attacks are generally occurring in the middle-belt and North of Nigeria.22 Accordingly, I find that this group would not pose a section 96 or 97 risk to the Appellants. [19] With regard to the Katu Main, Katu Riaras, Katu Liaras or Katu groups, as mentioned in the principal Appellant's testimony, there is no objective documentation to support the existence of this group, and, as such, I find that any risk from them is speculative and not supported by objective evidence. Therefore, I find that the Appellants do not face a section 96 or 97 risk from the Bakassi Boys, Fulani or Katu groups in Port Harcourt. The evidence shows that Chief Roland has limited power, and reach, on a balance of probabilities [20] Counsel for the Appellants submits that Chief Roland is a powerful and corrupt chairman, with connections to the police, and therefore he would be able to use this power and connection to track the Appellants to Port Harcourt. I find that the evidence shows that Chief Roland has limited power and reach, on a balance of probabilities and that any connections to the police do not demonstrate an ability to track the Appellants to Port Harcourt, on a balance of probabilities. [21] I accept the evidence that Chief Roland was a chairman of the Local Government Authority in Orhionmwon Local Government Area and that there are allegations he has been involved in corrupt actions in this office.23 However, the evidence also shows that his term ended in April 2016 and that, before the end of his term, he was suspended by the state Governor so that an investigation into his administrative actions could be conducted.24 The evidence on file shows that the investigation led to the suspension of four chairmen and that two were reinstated, but Chief Roland was not.25 Accordingly, this evidence shows that Chief Roland is not above the law, and where he has potentially engaged in corruption, the government has addressed this. [22] Furthermore, the principal Appellant's own evidence demonstrates that Chief Roland's influence does not extend outside of his local area. The principal Appellant testified that she and her husband sent their daughter (whom the Chief wanted to marry) to Iba, to stay with an aunt for about a month, and Chief Roland only discovered her location because the principal Appellant and her husband informed Chief Roland that she was there.26 Furthermore, the principal Appellant testified that she spent time at her parents' home without issue. Accordingly, the evidence shows that Chief Roland's power and influence is limited to his area of operation. I do not find that his power would extend to Port Harcourt, on a balance of probabilities. [23] The Appellants argue that Chief Roland has connections to police, as they saw him with police escorts and that, because he is corrupt, he would be willing to bribe police, and therefore they could be found in Port Harcourt. I accept that Chief Roland might have connections to local police and that he might be willing to bribe police; however, I find that this does not establish an ability to track the Appellants to Port Harcourt, on a balance of probabilities. The evidence before me indicates that the Nigerian Police, though national, has no effective means of national communication because the attempts to create a National Public Security Communication System have been "mothballed" because the government does not operate, fund or maintain the system.27 Accordingly, given the limited abilities of the Nigerian police force to communicate, any connection to the police or willingness to bribe them would not lead to a section 96 or 97 risk for the Appellants in Port Harcourt. [24] On the whole, the evidence before me shows that Chief Roland's influence is limited, both geographically and temporally, and that he has already been under investigation by the state in Nigeria. The evidence does not support counsel's submission that the Appellants would have to live in hiding in Port Harcourt. Accordingly, I find that the Appellants have not established that they face a serious possibility of persecution or risk to life, danger of torture or of cruel and unusual treatment or punishment, on a balance of probabilities, in Port Harcourt. It is not unreasonable for the Appellants to relocate to Port Harcourt, on a balance of probabilities [25] The Appellants submit that it is unreasonable in their personal circumstances for them to relocate to Port Harcourt. I find that this is not established on the evidence, on a balance of probabilities. [26] At the RPD hearing, the principal Appellant testified that it's very expensive to live in Port Harcourt and that she would have nowhere to stay there.28 Counsel argued that the Appellants would not be able to pay for the children's education, that the principal Appellant would not be able to work as an accountant, and that her mental health issues would be exacerbated. I find that these issues are either not established, on a balance of probabilities, or do not render relocation unreasonable. [27] First, with regard to the submission that the principal Appellant could not work as an accountant in Port Harcourt because it would lead to her discovery, the Appellants have not provided any objective evidence as to how this would occur.29 As discussed above, I do not find that Chief Roland has a capacity to track the Appellants to Port Harcourt, on a balance of probabilities. Accordingly, I do not find that working as an accountant would be unavailable to the principal accountant on this basis. [28] As for the expense of Port Harcourt both generally and in terms of schooling, I accept that Port Harcourt is an expensive city to live in; however, I do not find that this renders relocation unreasonable based upon the profile of the principal Appellant. She has post-secondary education and work experience as an accountant; she speaks English and Yoruba, and she has a sister in Port Harcourt.30 All of these factors would assist in her relocation to Port Harcourt. Additionally, the principal Appellant is married, and there is no evidence that her husband would not be able to relocate to Port Harcourt as well. Her husband assisted the Appellants in coming to Canada and provided evidence to support them in their claim, which demonstrates a continued interest in assisting and supporting them. Accordingly, I find that, in this instance, the profile of the principal Appellant and her family demonstrates that relocation to Port Harcourt is not unreasonable. [29] Finally, with regard to the principal Appellant's mental health, I accept that she was seen by a psychotherapist who found she was exhibiting symptoms of PTSD, generalized anxiety disorder and major depressive disorder and that she has undergone counselling in Canada.31 I accept that the psychotherapist indicated that the principal Appellant's symptoms will increase considerably in Nigeria if she is "exposed to intense stress, re-traumatization, and/or dangerous circumstances."32 However, as explained above, I do not find that the Appellants would be at risk in Port Harcourt, and, as such, I do not find that the principal Appellant would be exposed to dangerous circumstances, on a balance of probabilities, in Port Harcourt. Additionally, the principal Appellant would have the support of her husband, as would the associate Appellants. Finally, there is some mental health care available in Nigeria, although it is not at the level available in Canada.33 Accordingly, I do not find that the principal Appellant's mental health renders relocation unreasonable, although it may make it more difficult than average. [30] The Federal Court has held that the threshold for the "objectively unreasonable" standard is very high and requires, at a minimum, the proof, through actual and concrete evidence, of adverse conditions which would jeopardize the life and safety of the Appellants in relocating to a safe area.34 I find that the Appellants have not provided such evidence, and, as such, it would not be unreasonable for them to relocate to Port Harcourt. CONCLUSION [31] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Erin Bobkin" Erin Bobkin March 22, 2019 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: 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 Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx. 2 Exhibit RPD-1, RPD Record, the principal Appellant's Basis of Claim (BOC). 3 Exhibit RPD-1, RPD Record, the principal Appellant's BOC. 4 Exhibit P-3, Response to Directions from Member. 5 Subsection 110(4) of the IRPA. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, [2008] 1 F.C.R. 7 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; [2016] 4 FCR 230. 8 Exhibit P-2, Appellants' Record, at p. 19. 9 Exhibit P-2, Appellants' Record, at p. 19. 10 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 11 Oral testimony, RPD Hearing, August 3, 2018. 12 Oral testimony, RPD Hearing August 3, 2018. 13 Oral testimony, RPD Hearing, August 3, 2018. 14 Oral testimony, RPD Hearing, August 3, 2018. 15 Oral testimony RPD Hearing, August 3, 2018 and August 22, 2018. 16 Exhibit P-3, Response to Directions from Member. 17 National Documentation Package (NDP) for Nigeria (December 21, 2018), item 1.3, European Union, European Asylum Support Office, "EASO COI Meeting Report: Nigeria", August 2017, at p. 28. 18 Ibid., item 1.3, at p. 28. 19 Ibid., item 1.3, at p. 28. 20 NDP for Nigeria (December 21, 2018), item 1.3, supra footnote 17, at p. 20; and item 1.24, European Union, European Asylum Support Office, "EASO Country of Origin Information Report, Nigeria: Security Situation", November 2018, at p. 34. 21 NDP for Nigeria (December 21, 2018), item 1.4, European Union, European Asylum Support Office, "EASO Country of Origin Information Report: Nigeria. Country Focus", June 2017, at p. 22; and item 1.18, CLEEN Foundation, "Security and Governance in North-East Nigeria", 2016, at p. 187. 22 NDP for Nigeria (December 21, 2018), item 1.24 supra footnote 20, at p. 49. 23 Exhibit RPD-1, RPD Record, at p. 572. 24 Exhibit RPD-1, RPD Record, the BOC of the principal Appellant; and RPD Record, at p. 572. 25 Exhibit RPD-1, RPD Record, at p. 574. 26 Oral testimony, RPD Hearing, August 3, 2018. 27 NDP for Nigeria (December 21, 2018), item 10.4, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) NGA106000.E, November 21, 2017, at pp. 1-2. 28 Oral testimony RPD Hearing,August 22, 2018. 29 Exhibit P-3, Response to Member's Direction. 30 Exhibit RPD-1, RPD Record, at pp. 15 and 101; and Oral testimony, RPD Hearing, August 22, 2018. 31 Exhibit RPD-1, RPD Record, pp. 797 and 525. 32 Exhibit RPD-1, RPD Record, at p. 797. 33 NDP for Nigeria (December 21, 2018), item 1.9, United Kingdom, Home Office, "Country Policy and Information Note, Nigeria: Medical and Healthcare Issues, Version 2.0", August 28, 2018, at pp. 15-16. 34 Singh, Barinder v. M.C.I. (F.C., no. IMM-826-13), Noël, September 26, 2013, 2013 FC 988. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-29002 TB8-29003 TB8-29004 TB8-29005 TB8-29006 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français