MB9-22411

RAD File / Dossier de la SAR : MB9-22411 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 1, 2020 Date de la décision Panel Maureen Carter-Whitney Tribunal Counsel for the person who is the subject of the appeal Serge Khoury 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 appealed a decision of the Refugee Protection Division (RPD), dated September 5, 2019, rejecting his claim for refugee protection. The Appellant argues that the RPD erred in assessing his claim, and asks the Refugee Appeal Division (RAD) to allow his appeal and determine that he is a Convention Refugee. DECISION [2] I dismiss the appeal, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleges that he fears persecution by his half-brothers, particularly XXXX, and the Neo Black Movement of Africa cult group, also known as "Black Axe" and as "Aye", which is connected to XXXX.1 [4] The RPD found that the Appellant has a viable internal flight alternative (IFA) in Lagos, Abuja, or Delta State. The RPD accepted the Appellant's evidence to be generally credible. [5] On appeal, the Appellant submits that the RPD erred in not providing him with notice of the IFA issue, and incorrectly analyzed the IFA test. [6] The Appellant did not submit new evidence and, having admitted no new evidence, the RAD did not have jurisdiction to convene an oral hearing.2 Practice notice regarding COVID-19 pandemic [7] On June 12, 2020, the RAD issued a practice direction related to the COVID-19 pandemic, which linked to a Communiqué on RAD Graduated Return to Business? that set out time frames for submitting additional documents in pending appeals in light of the resumption of regular time limits at the RAD. With respect to appeals that had not yet been assigned to a RAD member, the communiqué advised that a document or written submissions in support of the appeal would be accepted by the RAD without an application until August 19, 2020, and Rule 29 and s. 110(4) continue to apply. I note that Counsel has not submitted any document or written submissions in response to the communiqué. DETERMINATIVE ISSUE [8] The determinative issue is IFA. ROLE OF THE RAD [9] My role is to look at all the evidence and decide if the RPD made the correct decision.3 I have carried out my own independent analysis of the evidence to determine whether the RPD erred. ANALYSIS [10] For the following reasons, I find that the Appellant has a viable IFA in Lagos or Abuja. As discussed below, I have decided not to consider Delta State as an IFA. [11] 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 the Appellant has a viable IFA. First, I must find, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted under s. 96, nor a risk to life, danger of torture or risk of cruel and unusual treatment or punishment under s. 97, in the proposed IFAs. Second, I must find, on a balance of probabilities, that conditions in the proposed IFAs are not such that it would be objectively unreasonable in all of the circumstances, including those particular to the Appellant, to relocate and reside there. Once an IFA has been proposed, the Appellant bears the burden of proof to show that he does not have an IFA.4 I note that the Appellant must adduce actual and concrete evidence to establish, on a balance of probabilities, that it would jeopardize his life and safety to relocate to one of the proposed IFAs.5 [12] RAD Decision TB7-19851, regarding IFA locations in major cities in south and central Nigeria for claimants fleeing non-state actors,6 was previously identified as a jurisprudential guide, but this designation was revoked on April 6, 2020 due to developments in the country of origin information. The RPD stated in its decision that, because the underlying facts were sufficiently close, it was expected to follow the reasoning in TB7-19851 addressing IFA in major cities in south and central Nigeria for claimants fleeing non-state actors.7 [13] The Appellant submits that the RPD referred to TB7-19851 during the hearing but did not refer specifically in the RPD decision, and that the RPD's analysis was not clear or complete. The Appellant further submits that the facts in his case are not similar to those of TB7-19851. [14] I agree with the Appellant that the RPD's IFA analysis did not make a clear distinction between the two prongs of the test, but I find that the RPD did address both prongs. I find that I need not address the RPD's analysis of TB7-19851 because it has since been revoked and, therefore, I have not relied on it in my analysis. The RPD identified specific IFA locations and there was no breach of procedural fairness [15] The Appellant submits that the RPD did not give proper notice of the IFA issue because it did not identify Lagos, Abuja or Delta State as potential IFA locations as early as possible at the hearing. The Appellant argues that, as a result, he was not able to present proper arguments and evidence on IFA. [16] Where IFA is at issue, the RPD must give notice to the refugee claimant by expressly raising IFA at the beginning of the hearing,8 and identify one or more specific IFA locations within the country of origin.9 I have listened to the audio recording and note that the RPD member stated, prior to beginning questioning at the hearing, that the only issue was IFA and whether the Appellant could go to Lagos, Port Harcourt, Abuja or another big city.10 Later in the hearing, the RPD member asked the Appellant questions about whether he could relocate to Delta State, Lagos or Abuja.11 [17] I find that the RPD's identification of the proposed IFA locations was somewhat confusing. While consistently identifying Lagos and Abuja, the RPD initially mentioned Port Harcourt, which is in Rivers State,12 but later questioned the Appellant about Delta State as an IFA. Notwithstanding this confusion, the RPD clearly stated early in the hearing that IFA was at issue and asked specific questions about Lagos, Abuja, and Delta State during the course of the hearing. [18] I find that, over the course of the hearing, it became clear which IFAs the RPD had identified and the Appellant answered questions about these locations. Therefore, there was no breach of procedural fairness. However, even if there had been a breach of procedural fairness, I am able to correct such a breach with my own independent assessment of the RPD record. However, given the confusion relating to the RPD's reference to both Delta State and Rivers State, I have analyzed only Lagos and Abuja in my IFA assessment. The Appellant has not established that he faces a s. 96 or 97 risk in Lagos or Abuja [19] The Appellant submits that the RPD did not question the credibility of his evidence overall, including his testimony that XXXX and the cult group have the means and motivation to find him throughout Nigeria because they were able to locate him in Benin City. He submits that his agents of persecution have the influence and motivation to search for him across Nigeria, and that Black Axe has connections all over Nigeria and can find him. The Appellant also submits that he would stand out in the suggested IFAs and should not be expected to live in hiding to remain safe. He argues that he has provided sufficient credible evidence to establish that the agents of persecution will locate him in the proposed IFAs. [20] The Appellant testified that his half-brother XXXX is very dangerous and is a member of the Black Axe cult group, noting that one of the threatening letters he received from the group stated that he had insulted their boss,13 which the Appellant said was a reference to his half-brother.14 The Appellant stated that he could not relocate to Lagos or Abuja because the Black Axe group has his picture, and because he is publicly known due to being a member of XXXX XXXX and distributing XXXX in Nigeria. He testified that there is nowhere he can stay in Nigeria.15 [21] Although the Appellant has testified to his fear of his half-brother and the Black Axe group, I find that he has not provided actual and concrete evidence to establish that his half-brother and the Black Axe cult have the means to locate him in the suggested IFAs. While the Appellant believes that they can find him anywhere in Nigeria, the objective evidence does not confirm this. The objective country condition evidence states that politicians and state officials recruit and pay the Black Axe cult members to serve them.16 However, the objective evidence does not indicate that politicians or state officials are under the influence of the Black Axe cult or would assist members of the cult in locating an individual in Nigeria. The Appellant has not specified any other means by which XXXX and the cult would be able to locate him in Lagos or Abuja. [22] I also find that the Appellant has not provided evidence to demonstrate, on a balance of probabilities, that the cult group has the motivation to find them. The Appellant received two threatening letters from the cult, one on XXXX XXXX XXXX 2016,17 and the other on XXXX XXXX XXXX 2017.18 After receiving the first letter, which threatened him with death, the Appellant continued to live and continue his XXXX farming operation in XXXX Village in Edo State, the same state where the family home that XXXX wanted to sell is located, in Benin City. Although the Appellant testified that he relocated within XXXX Village during that time, there is no evidence stating that he was actively pursued by XXXX or the Black Axe between XXXX 2016 and XXXX 2017, other than in XXXX 2017 when the second letter was left for him and his XXXX was destroyed.19 In fact, the Appellant initiated a visit to XXXX in XXXX 2016 to ask for his forgiveness.20 [23] Furthermore, because the Appellant never relocated or was pursued to another part of Nigeria outside of Edo State, there is no evidence that XXXX and the Black Axe cult would be motivated to attempt to find him outside of Edo State, in any of the suggested IFAs. The Appellant testified that his mother and siblings have been on the run from the agents of persecution, stating that his mother has relocated several times and is now in XXXX in Edo State, four hours away from Benin City. He stated that his other siblings have moved away but he doesn't know all their locations because he has not been able to reach all of them. He thinks that one brother is in the country of Benin and one sister is in Ibadan, but that others are still in Edo State.21 Although a number of the Appellant's family members may feel that they must continue to move or hide because they are located in Edo State, I find that the Appellant has not provided evidence to demonstrate, on a balance of probabilities, that his agents of persecution would be able to locate him in Lagos or Abuja. Both are very large cities - Lagos has a population of 13.463 million and Abuja has a population of 2.919 million22 - and both are located a significant distance away from Edo State. [24] The Appellant stated that XXXX and the Black Axe cult members know what he looks like and have his picture, and that he has distributed XXXX in Nigeria in the past.23 I find that this evidence, however, is not sufficient to establish that the agents of persecution would locate the Appellant outside of Edo State, whether in Lagos or Abuja. While the Appellant's photograph would assist in identifying him, that evidence alone does not establish the Black Axe cult's ability to locate him in the suggested IFAs. Also, the Appellant did not explain how his past activity of distributing XXXX with XXXX XXXX would allow the agents of persecution to locate him in the proposed IFAs, even if he were to distribute XXXX there in the future. [25] The Appellant provided a newspaper article from XXXX XXXX XXXX, dated XXXX XXXX, 2016, entitled "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX".24 This article describes the events that are central to the Appellant's allegations. I note, as the RPD did at the hearing, that the font on the copy of the newspaper article is larger than the articles on the page. When asked about this, the Appellant responded that he was not an expert in printing but the article may have been made larger to fill the space available.25 I am not satisfied by this response and I also note that the objective country condition evidence indicates the prevalence of "brown envelope journalism" in Nigeria, where individuals bribe journalists to create news stories.26 I find that this article is fraudulent and, therefore, give it no weight. Finding on prong 1 [26] Therefore, I find that the Appellant has not met the onus to establish, on a balance of probabilities, that there is a serious possibility that he will be persecuted under s. 96, or that there is a risk to life, danger of torture or risk of cruel and unusual treatment or punishment under s. 97 in Lagos or Abuja. The Appellant has not established that it would be unreasonable for him to relocate to Lagos or Abuja [27] Regarding the second prong of the IFA test, the threshold for the unreasonableness test is very high, and requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant in traveling or relocating to a safe area.27 [28] The Appellant argues that the RPD did not consider the second prong of the test in its decision. He submits that the RPD did not clearly identify the regional conditions and his specific circumstances in assessing IFA and did not ask him questions about the reasonableness of the suggested IFAs. The Appellant submits that: he only studied as a technician and never worked in Nigeria so he would not be able to find work in the proposed IFAs; he would not be able to find employment due to the Black Axe threats; he was never questioned about whether he would be able to afford accommodation in the suggested IFAs; and he was not asked about his religious involvement. The Appellant submits that he does not have family in the suggested IFAs, which is a factor that must be taken into consideration in assessing reasonableness. [29] The RPD questioned the Appellant about his education and work experience, which speaks to the second prong of the IFA test. However, the RPD did not address the second prong of the test explicitly in its decision, although it made note of the Appellant's education, work, and fluency in English. I find that the RPD's analysis of the second prong of the test was inadequate. [30] However, the Appellant bears the burden of proof to show that he does not have an IFA; IFA is always a potential issue in a refugee claim and the RPD stated at the hearing that it would be determinative in this case. The Appellant was represented by counsel who could have anticipated the need to provide evidence to speak to the IFA test. I note that the Appellant's counsel at the RPD hearing chose to ask him no questions after the RPD member finished her questioning. Regardless, I can correct the deficiencies of the RPD's analysis in my assessment of the evidence on the record. [31] The objective country condition evidence indicates that indigeneship status is less important in big cities, including Lagos and Abuja, even in relation to access to public jobs and land ownership, than it is in other parts of Nigeria because there are large migrant populations in those cities.28 The Appellant has 16 years of education, including four years of post-secondary, having studied for two years at the XXXX XXXX XXXX, XXXX, Delta State and two years at XXXX XXXX.29 This is a higher level of education than the average of nine years of education for a male in Nigeria.30 The Appellant testified that he is a XXXX XXXX,31 and he gave detailed testimony about his development of a successful XXXX XXXX business in Nigeria. [32] I find that the Appellant has demonstrated that he has the education, accreditation, and resourcefulness to find employment in the proposed IFAs. I further find that the Black Axe cult would not hamper his ability to find employment in Lagos or Abuja, based on my analysis under the first prong of the IFA test. Therefore, it would not be unreasonable for him to relocate to one of these cities based on employment. The Appellant also demonstrated at the hearing that he is fluent in English, which is the official language of Nigeria,32 which would contribute to his ability to find employment. Given his ability to find employment, there is no evidence before me to suggest that the Appellant would not be able to secure accommodation in the proposed IFAs; I find that accommodation would not make it unreasonable for him to relocate to Lagos or Abuja. [33] Regarding the Appellant's religious involvement with XXXX XXXX, the objective country condition evidence indicates that Christians reside in approximately equal numbers with Muslims in the central part of the country where Abuja is located, and in the southwestern states, including Lagos.33 Therefore, his Christian affiliation would not make it unreasonable for him to relocate to one of the suggested IFAs. While a lack of family connections may be a barrier for a female-headed household relocating, the Appellant has presented no evidence to establish that a lack of family would make it unreasonable for him to relocate to Lagos or Abuja. [34] The Appellant did not make any submissions regarding how his relocation to the proposed IFAs could be affected by the international COVID-19 pandemic, nor did he present any evidence in this regard. I find that there is no evidence before me of circumstances particular to the Appellant that would render the IFAs objectively unreasonable due to the COVID-19 pandemic. Finding on prong 2 [35] Therefore, I find that the Appellant has not provided sufficient evidence to establish, on a balance of probabilities, that conditions in the proposed IFAs are such that it would be objectively unreasonable for him to relocate and reside there. CONCLUSION [36] I dismiss the appeal, pursuant to section 111(1)(a) of the IRPA, and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Maureen Carter-Whitney Maureen Carter-Whitney October 1, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) forms, narrative and amended narrative, pgs. 7-26. 2 Subsection 110(6), IRPA, S.C.2001, c.27. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706, at pgs. 709-710; Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA). 5 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), para. 15. 6 X(Re), 2018 CanLII 52123 (CA IRB). Identified by the Chairperson as a Jurisprudential Guide on July 6, 2018; Revoked as an identified Jurisprudential Guide on April 6, 2020. Currently identified as a RAD Reasons of Interest decision. 7 Exhibit RPD-2, Amended RPD Record, RPD Reasons, pg. 5, paras. 7-9. 8 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FCR 589, paras. 9-10; and Rasaratnam [1992] 1 FCR 706 (FCA), para. 9. 9 Gallo Farias v. Canada (Minister of Citizenship and Immigration), 2008 FC 1035 (CanLII), para. 34. 10 RPD audio recording of the hearing, August 14, 2019, at 13:35. 11 RPD audio recording of the hearing, August 14, 2019, at 1:00:33, 1:05:40, 1:13:18. 12 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, item 1.2: ?Nigeria. United Nations. Cartographic Section. August 2014. 13 Exhibit RPD-2, Amended RPD Record, Exhibit 4, pg. 115. 14 RPD audio recording of the hearing, August 14, 2019, at 33:45. 15 RPD audio recording of the hearing, August 14, 2019, at 1:00:33. 16 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, item 1.13: ?EASO Country of Origin Information Report. Nigeria: Targeting of Individuals. European Union. European Asylum Support Office. November 2018. Pg. 46. See also Item 7.24: ?The Black Axe confraternity, also known as the Neo-Black Movement of Africa, including their rituals, oaths of secrecy, and use of symbols or particular signs; whether they use force to recruit individuals (2009-November 2012). Immigration and Refugee Board of Canada. 3 December 2012. NGA104208.E. Pg. 8. 17 Exhibit RPD-2, Amended RPD Record, Exhibit 4, pg. 115. 18 Exhibit RPD-2, Amended RPD Record, Exhibit 4, pg. 116. 19 RPD audio recording of the hearing, August 14, 2019, at 53:10. 20 RPD audio recording of the hearing, August 14, 2019, at 51:05. 21 RPD audio recording of the hearing, August 14, 2019, at 34:42, 45:10. 22 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, item 1.6: ?Nigeria. The World Factbook. United States. Central Intelligence Agency. 23 April 2019. Pg. 4. 23 RPD audio recording of the hearing, August 14, 2019, at 50:15, 1:00:33. 24 Exhibit RPD-2, Amended RPD Record, Exhibit 5, pg. 109. 25 RPD audio recording of the hearing, August 14, 2019, at 1:09:07. 26 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, item 11.5: ?Brown envelope journalism, including types of publications that are affected; efforts to combat the phenomenon (2015-November 2017). Immigration and Refugee Board of Canada. 3 November 2017. NGA106001.E. Pgs. 1, 4. 27 Ranganathan v. Canada (Minister of Citizenship and Immigration), CanLII 16789 (FCA), paras 15-16. 28 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, 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. NGA104216.E. Pg. 9. 29 Exhibit RPD-2, Amended RPD Record, Exhibit 1, Schedule A Background/Declaration, pg. 89. 30 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, item 1.6: ?Nigeria. The World Factbook. United States. Central Intelligence Agency. 23 April 2019. Pg. 6. 31 RPD audio recording of the hearing, August 14, 2019, at 39:10. 32 RPD audio recording of the hearing, August 14, 2019, at 1:09:07. 33 Exhibit RPD-2, Amended RPD Record, Exhibit 3, National Documentation Package, Nigeria, 30 April 2019, item 12.1: ?Nigeria. International Religious Freedom Report for 2017. United States. Department of State. 29 May 2018. Pgs. 2-3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-22411 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