VB9-08635

RAD File / Dossier de la SAR : VB9-08635 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 February 26, 2020 Date de la décision Panel James Sloan Tribunal Counsel for the person who is the subject of the appeal Lydie-Magalie Stiverne 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 [1] XXXX XXXX XXXX, a Nigerian national, claims that if she returns to Nigeria she will be persecuted or otherwise harmed by her uncles who are attempting to claim property she inherited from her mother. She claims that, beginning on XXXX XXXX XXXX 2016, her maternal uncles threatened to take her inheritance or to kill her. She decided to flee the country. [2] She left Nigeria for the US on XXXX XXXX XXXX 2016 on a US visa that she happened to have arranged before her uncles threatened her. She entered Canada irregularly on XXXX XXXX, 2017. [3] In a Decision dated June 24, 2019, the Refugee Protection Division (RPD) of the Immigration and Refugee Board (Board) rejected her claim. For the reasons that follow, I agree with the RPD and dismiss this appeal. DETERMINATIVE ISSUE [4] The determinative issue is the existence of a viable internal flight alternative (IFA). STANDARD OF REVIEW [5] In my review of the RPD's decision, I will apply a standard of correctness.1 This is not a case where the RPD enjoyed a meaningful advantage in making its findings.2 ANALYSIS [6] The RPD found that the Appellant had a viable IFA in Benin City or Abuja. As such, it found that she was not a Convention refugee3 or a person in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). [7] The Appellant argues that the RPD erred in finding that Benin City or Abuja were viable IFAs.4 [8] In addition, the Appellant's Legal Memorandum contains the following sentence fragment under the heading "Summary of the Facts": "pressuring the principal claimant to have both daughters circumcised." Given that there is no "principal" claimant or appellant as referred in the sentence (the Appellant's claim is not a joint one), that the Appellant has only one daughter (therefore the reference to "both daughters" appears in error), the lack of any discussion of female circumcision in the Basis of Claim (BOC) narrative or the Legal Memorandum itself, I find that this sentence fragment has been included in the Legal Memorandum in error. In the alternative, if the sentence fragment has been included deliberately and it is somehow being argued that the Appellant is a Convention refugee or a protected person by virtue of the possible future treatment of her daughter, given that there has been no argumentation in the Legal Memorandum about forced circumcision, I find the claim to have been abandoned. Legal framework [9] The Federal Court has made clear that the onus is on the Appellants to demonstrate that it is unreasonable to seek refuge in a different part of their country before resorting to international protection.5 The Federal Court of Appeal has held that, in determining the viability of an IFA, a two-pronged test must be considered. First, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of persecution in the part of the country where it has suggested an IFA may exist.6 Second, the conditions in the part of the country proposed as an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants, to seek refuge there.7 As I will outline below, both prongs of the test are met. First Prong: Is there a serious risk of persecution in the proposed IFA? [10] The RPD found that the Appellant's testimony-which centred on her fear that because her uncles were both "natural doctors" who travelled throughout the country they could find her anywhere-was insufficient to prove that they had the capacity to find her in either Benin City or Abuja. While it accepted that she was credible, it found her evidence to be speculative in nature. [11] At appeal, the Appellant repeats her claim that she fears being traced and kidnapped by her uncles due to the peripatetic nature of their work. She argues that the fact that the proposed IFAs are far from the cities where he uncles live is not a full answer if "the same risk exists throughout the country".8 Nor does that fact that Benin City and Abuja are large cities mean she will be safe in either location. [12] I agree with the Appellant that the fact that the proposed IFAs are far from where her uncles live (one lives in Ibadan and one in Lagos) or that Benin City and Abuja are large cities does not provide a full answer if the Appellant shows that there is a risk to her throughout the country. However, based on my review of the Appellant's evidence, I agree with the RPD that the Appellant has not shown that her uncles have the capacity to locate her throughout Nigeria. While, as noted, I have found the Appellant to be credible, I must be cautious with those aspects of her testimony that are speculative or where she makes conclusions that are unsupported. I agree with the RPD that her fear regarding her uncles' ability to find her everywhere in Nigeria is speculative. I do not accept that the fact that the uncles' jobs means that they need to travel provides a sufficient basis to find that they would be able to locate her in Benin City or Abuja. As the RPD noted, Nigeria is a country with an area of 900,000 square kilometres and a population of over 170 million people. There is no objective evidence that her uncles have any particular capacity to locate someone who is avoiding them in any part of the country. [13] Given that there is no evidence to prove that her uncles have the ability find her, I find that she has not shown that there is a serious possibility that their actions will lead to her persecution or a likelihood that they will cause her harm as described in subsection 97(1). [14] I note that the Appellant also argues that she would not be able to obtain effective state protection in either Abuja or Benin City.9 As regards state protection, she argues, "the resources on the ground must be effective and concrete."10 Given my findings above that there is a lack of evidence that either uncle has the capacity to seek out the Appellant in Benin City or Abuja in order to persecute or otherwise harm her, I need not consider the issue. Whether or not the Appellant has rebutted the presumption that she would benefit from state protection is not relevant in a case such as this one, where there is not a serious possibility of persecution or a likelihood of harm to seek protection from. Second Prong: Unreasonableness test [15] I find the RPD did not err in concluding that the conditions in Benin City or Abuja were not such that it would be unreasonable, in all the circumstances, for the Appellants to seek refuge there. The Federal Court of Appeal in Ranganathan11 made clear that there is a very high threshold for the unreasonableness test in this context: [The unreasonableness test] 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.12 [16] The RPD considered the Appellant's religion, her indigeneship, her family life, her language skills, her education, and her work experience. It concluded that, while there would be challenges for her in relocating to Benin City or Abuja, those challenges did not meet the test of unreasonableness. [17] The Appellant argues that even in a large city such as Benin City or Abuja, she "would have to reinstall with people from her own tribe" to avoid discrimination from other tribes.13 Moreover, she argues that the RPD failed to assess whether she would be safe, whether the police could be trusted to protect her if she needed them, or her ability to "establish herself." She argues that the jurisprudence is clear that it would be unreasonable for her to be required to go into hiding. [18] I note at the outset that the onus of showing that neither IFA is reasonable falls to the Appellant. It does not-as the Appellant appears to argue in her Legal Memorandum-fall to the RPD, or me, to consider all possible concerns that the Appellant might potentially have in either of the proposed IFAs and rebut them. [19] In her argument that she would have to "reinstall" with people from her own tribe, the Appellant appears to contest the RPD's finding that indigeneship is not a significant barrier to relocating to either city. However, she does not elaborate as to why she believes this to be so; nor does she refer to or introduce any evidence in support of this claim. I have reviewed the objective evidence, including that referred to by the RPD, and find that the Appellant has not shown that either IFA is unreasonable on this basis. [20] The Appellant also faults the RPD for not taking sufficient account of her safety. I am unable to find evidence that shows on a balance of probabilities that her safety would be in jeopardy in either Benin City or Abuja, or that the police would be inattentive if she were to be the victim of crime. Nor does she offer any. She testified about her fear of Boko Haram; however, it is clear from the objective evidence that that organization operates in the northeast of the country, primarily in Borno state,14 while Abuja is in central Nigeria and Benin City is in the south of the country. Aside from that, the focus of her testimony was her fear of her uncles, addressed above under the first prong. I find that the Appellant has not shown either city to be unreasonable on this basis. [21] Because the Appellant does not make clear the basis on which she claims she will not be able to able to "establish herself," I am unable to address her assertion that this inability means that both proposed IFAs are unreasonable. Once again, I note that it falls to her to prove that the proposed IFAs are unreasonable. Without more, I do not find her inability to establish herself has been shown to make Benin City or Abuja unreasonable IFAs. [22] Finally, I agree that it would be unreasonable to expect her to go into hiding. However, I can see no basis to find that this is what the RPD was asking her to do. It is certainly not what I am proposing she does. [23] In short, I find that none of the concerns the Appellant has raised, whether individually or collectively, lead me to find that either Benin City or Abuja would be unreasonable IFAs. CONCLUSION [24] I confirm the decision of the RPD that the Appellant, who has a viable IFA in Nigeria, is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan February 26, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74. See also Rosas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras 124-125, relying on Guo v. Canada (Citizenship and Immigration), 2017 FC 317, at paras 15-19 and Jeyaseelan v. Canada (Citizenship and Immigration), 2017 FC 278, at paras 19-21. 3 The question of whether there was a nexus to a Convention ground based on the facts, as alleged, was not considered by the RPD. 4 She also argues that she is credible; however, as this was not an issue for the RPD, I need not address it. I will assume she is credible. 5 Momodu, Cordilia Gift v. Minister of Citizenship and Immigration (F.C., no. IMM-656-15), Annis, December 9, 2015, 2015 FC 1365, at para. 6; Abdalghader, Bahi I Khaith v. Minister of Citizenship and Immigation. (F.C., no. IMM-5529-14), Noël, May 5, 2015, 2015 FC 581, at para 22. 6 Rasaratnam, Sivaganthan v. Minister of Employment and Immigration. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.), at 710. 7 Thirunavukkarasu, Sathiyanathan v. Minister of Employment and Immigration. (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.). 8 Exhibit P-2, Appellant's Record, at p. 3, para 14. 9 I note that it is not entirely clear from her Legal Memorandum if the Appellant is making her state protection argument in the context of the first prong or the second prong. However, I will consider it here. 10 Exhibit P-2, Appellant's Record, at p. 3, para 15. 11 Minister of Citizenship and Immigration v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000; [2001] 2 F.C. 164 (C.A.). 12 Ibid., at para 15. 13 Exhibit P-2, Appellant's Record, at p. 3, first para (unnumbered). 14 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria, April 30, 2019 version, item 7.4, p. 7, para 2.4.1. Because the April 30, 2019 version of the NDP was relied upon by the RPD, my reference is to this version of the NDP. I note, however, that I have also considered the current NDP in assessing forward-looking risk in accordance with the Board's Policy on National Documentation Packages in Refugee Determination Proceedings, June 5, 2019 (https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx), at s. 5(II). The current NDP on Nigeria features the same document as item 7.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08635 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