MC3-02689

RAD File / Dossier de la SAR : MC3-02689 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision May 30, 2023 Date de la décision Panel J.W. Richards Tribunal Counsel for the person who is the subject of the appeal Lorne Waldman 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] I dismiss this appeal. [2] XXXX XXXX XXXX (the Appellant) is a citizen of Nigeria. [3] The Appellant fears harm at the hands of Ogboni Fraternity members, due to his refusal to join them. In 2002, 2016, and 2018, the agents of harm tried to coerce the Appellant into becoming a member of the fraternity, like the Appellant's father was. The Appellant was even kidnapped. In XXXX 2019, the Appellant fled Nigeria for the United States. He arrived in Canada, irregularly, on XXXX XXXX, 2019. [4] The Refugee Protection Division (RPD) rejected the Appellant's claims, finding viable internal flight alternatives (IFAs) in Abuja, Lagos, and Enugu. [5] The Appellant contends that the RPD erred by improperly drawing adverse inferences, incorrectly applying the legal test regarding IFAs, and, more broadly, making unreasonable findings. [6] The determinative issue in this appeal is the existence of a viable IFA. After reviewing the record, I find that the RPD did not ultimately err. Following my independent assessment, I find safe and reasonable IFAs exist for the Appellant. There is insufficient credible and trustworthy evidence to establish that he faces a serious possibility of persecution or a likely risk of section 97 harm in Abuja or Enugu. Furthermore, relocation would not be unduly harsh in his circumstances. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [8] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 The nature of the appeal [9] At the heart of this appeal is the Appellant's position that the RPD erroneously assessed the viability of the proposed IFAs. The reasons that follow are not exhaustive and focus on the determinative issue. The RPD correctly articulated the legal test regarding the safety of the proposed IFA locations [10] The Appellant submits that the RPD relied on the wrong legal test. The disputed portion of the RPD's decision is as follows: It also follows that the claimant did not demonstrate, on a balance of probabilities, that the Ogboni Fraternity members would be interested in locating him if he were to return to Nigeria. Consequently, the Tribunal concludes that the claimant has failed to establish that he faces a serious possibility of persecution or that, on a balance of probabilities, he would be personally subjected to a danger of torture or a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to relocate to Abuja, Lagos, or Enugu.2 [11] The first prong of the IFA assessment requires the Tribunal to inquire whether the proposed location is safe. If there is a serious possibility of persecution in that location (or a likely risk of section 97 harm), the proposed IFA will not be viable. The Appellant suggests that the RPD applied a stricter standard to his claim. [12] I disagree. [13] It is important to note that the decision does not indicate that the Appellant had to prove that the agents of harm would harm him in the IFA locations. Refugee claimants cannot be expected to prove future harm. [14] The disputed portion of the RPD's decision must be considered in context. It is part of a broader assessment of the Appellant's witness, Mr. O., who asserted that the agents of harm could locate the Appellant through spiritual powers. The RPD noted the lack of objective evidence supporting this particular assertion. Furthermore, the RPD considered the totality of the evidence before determining that the Appellant's family had not been contacted or threatened by the Ogboni Fraternity after the Appellant left Nigeria in XXXX 2019. The RPD concluded that the Appellant failed to establish that the Ogboni Fraternity members are interested in locating him throughout Nigeria. [15] These are factual findings. The Appellant accepts that factual allegations must be proven, on a balance of possibilities.3 [16] The Appellant fails to appreciate the subtle distinction between the interest (or motivation) of the agents of harm and the existence of a serious possibility of persecution in the IFA locations. In the analysis of the safety of an IFA, the former is a component of the latter. [17] Indeed, an inquiry into the means and motivation of the agents of harm is the chief mechanism through which the safety of an IFA location is assessed. The burden is on the Appellant to establish, through credible and trustworthy evidence, that the agents of harm have the requisite means and motivation to pursue him, such that it would amount to a serious possibility of persecution or a likely risk of section 97 harm in the proposed IFA locations. [18] When significant and specific allegations related to the means and motivation of the agents of harm are not proven, on a balance of probabilities, the credibility of the claimant's forward-facing risk of harm in a proposed IFA location will be called into question. Each case stands on its own facts. For instance, I recognize that even when certain allegations are not proven, the claimant's profile along with the country condition evidence may be sufficient to determine that an IFA location is unsafe. [19] In this case, the disputed portion of the RPD's decision merely summarizes the RPD's findings in response to the Appellant's specific allegations. The RPD did not apply an incorrect legal test. The Appellant failed to establish, on a balance of probabilities, certain factual allegations related to the means and motivation of Ogboni Fraternity members. Ultimately - after considering the entirety of the evidence - the RPD determined that the Appellant failed to establish a serious possibility of persecution in the proposed IFA locations. [20] For all of these reasons, I find that the RPD did not err in articulating the appropriate legal test. There are safe internal flight alternatives for the Appellant [21] Having found that the RPD did not apply an incorrect legal test, I will now address selected negative credibility findings that the Appellant contends are unreasonable and that are highly probative in the assessment of the safety of the proposed IFA locations. [22] Notably, the Appellant submits that the RPD erred by drawing adverse inferences based on the Appellant's delay in leaving Nigeria and his failure to make an asylum claim upon arriving in the United States. Delay in leaving Nigeria [23] To be clear, this is not a case where the RPD rejected the Appellant's refugee claim based on a lack of overall credibility. Instead, the RPD considered the Appellant's explanations with respect to the specific issue of delay and concluded that the explanations were unreasonable. [24] After reviewing the record, I agree with the RPD's assessment. [25] The Appellant's American visa was issued on XXXX XXXX, 2018.4 The Appellant asserts that he did not leave Nigeria because he was supposed to go on a company trip, and by the time the visa came, it was too late to go.5 In light of the gravity of the facts, as alleged, this explanation fails to adequately explain the Appellant's failure to take prompt and meaningful steps to leave the country of reference. Although I appreciate that an escalation occurred with the kidnapping incident of XXXX 2018, the Appellant also advanced serious allegations of being approached by Ogboni Fraternity members, beginning in 2016. Therefore, a negative credibility finding is warranted. The Appellant's conduct undermines the credibility of his allegations regarding a forward-facing risk of harm in the proposed IFA locations. Failure to claim in the United States [26] The Appellant testified that because of the legal advice that he received in XXXX or XXXX 2019, he did not seek refugee protection in the United States.6 In the Appellant's Basis of Claim form (BOC) narrative, he asserts that he tried getting refugee protection but, ultimately, did not do so due to excessive attorney fees and the lack of trust in the previous American administration's refugee determination process.7 [27] The Appellant arrived in the United States on XXXX XXXX, 2019. He came to Canada in XXXX 2019. This means that the Appellant remained in the United States, without status, for approximately six months, thereby risking being removed to his home country. [28] It is important to note that in XXXX or XXXX 2019 (when the Appellant obtained legal advice), he had legal status in the United States; there was a diminished urgency at that time to seek refugee protection. [29] However, considering the entirety of the circumstances, I find that the Appellant's explanations are unreasonable. Lack of confidence in the previous administration, the actual legal advice received, and a lack of funds do not sufficiently explain the Appellant's decision to remain in the United States, without status, for several months without seeking refugee protection. [30] For these reasons, a negative credibility finding is warranted. As with the Appellant's delay in leaving Nigeria, this finding is not sufficient to undermine the Appellant's overall credibility. It does, however, call into question the credibility of the Appellant's allegations regarding a forward-facing risk of harm in the proposed IFA locations. The location of the Appellant's family [31] The Appellant drew an adverse inference based on inconsistent evidence about the residence of his wife and children. The Appellant's BOC indicates that they are in hiding and reside in Nigeria.8 An undated letter from Mr. O. - who also testified at the RPD hearing - indicates that they are in hiding at his church, which is located in Lagos.9 [32] The Appellant and Mr. O. testified that the Appellant's wife and children escaped to the Benin Republic and are still there.10 [33] Asked to explain the discrepancy, the Appellant stated that he thought that his family would return to Nigeria after a while. Mr. O. further explained that the Appellant's family lived in his church until they left for the Benin Republic, and that when the letter mentions that they are living in the church, it means that they are living under the protection of the church.11 [34] After reviewing the record, I find that these explanations are unreasonable. [35] BOC forms invite claimants to provide all important details that are relevant to their claim, as well as particulars concerning close family members.12 The Appellant completed the form, with the assistance of Counsel.13 At the RPD hearing, he confirmed that the form, along with the supporting documentation, was complete, true, and correct.14 Per Mr. O., the Appellant's wife left for the Benin Republic, the month following the Appellant's departure in XXXX 2019. The BOC form was signed on January 22, 2020. [36] An expectation that the Appellant's wife and children would return to Nigeria does not reasonably explain why the BOC form indicates that they reside in Nigeria. If their location was unknown, the Appellant had ample opportunity to indicate that in the BOC form itself, in an amendment to the BOC form, or at the beginning of the RPD hearing. [37] Furthermore, the pastor's letter indicates not only that the family lives "here in the church", but also that, "...not every large service they are brought out as we cannot ascertain everybody that comes to church are true believers."15 The letter is simply incompatible with a figurative interpretation, namely, that the Appellant's family is under the general protection of the church and yet residing in a neighbouring country. I recognize that the letter is undated, but this only makes the Appellant's confirmation of the accuracy of his supporting documentation at the beginning of the RPD hearing all the more problematic. It is the responsibility of the Appellant, who was continuously represented by Counsel throughout the RPD proceedings, to ensure the accuracy of any important and relevant information provided to the Tribunal. Failing to do so, without a reasonable explanation, impugns the credibility of the evidence, at issue. [38] For these reasons, a negative credibility finding is warranted. I agree with the RPD and find that the Appellant's family did not flee to the Benin Republic, as alleged during the RPD hearing. This finding undermines the credibility of the Appellant's allegations of a forward-facing risk of harm in the proposed IFA locations. Abuja and Enugu are safe internal flight alternative under the circumstances [39] Taking into account the above-mentioned credibility findings, I will now independently inquire as to whether the proposed IFA locations are safe in the Appellant's circumstances. Ultimately, I find that there are safe IFA locations for the Appellant. [40] Abuja and Enugu are both large, cosmopolitan cities, far removed from the Appellant's former residence in Port Harcourt as well as the areas of influence of the agents of harm. I appreciate that these factors alone are not sufficient to deem the proposed IFA locations safe. [41] The means and motivation of the Ogboni Fraternity must be examined. The credible evidence before me is that the Appellant's first interaction with the Ogboni occurred at the age of twelve. At the prompting of his father, he participated (along with his siblings) in various protective rites, following the death of the Appellant's brother.16 [42] The more recent encounters with the Ogboni can all be traced to the known whereabouts of the Appellant and/or his relatives. For instance, in XXXX 2002, a man approached the Appellant outside of his wife's shop in Port Harcourt. In XXXX 2016, the Appellant was approached while travelling from Lagos (where he was attending a work-related meeting17) to Port Harcourt (where he lived). In XXXX 2018, the Appellant was approached at the hospital in Lagos where his late father was undergoing XXXX XXXX. In XXXX 2018, the Appellant was at home in Port Harcourt, when individuals broke in and kidnapped him. [43] Based on this evidence, I find that the Appellant had virtually no interaction with the Ogboni between the ages of 12 and 36. In fact, when the Appellant's father became ill in 2018 and disclosed the depth of his Ogboni involvement, the Appellant was surprised. [44] The country condition evidence regarding the agents of harm is mixed. Analyzing the evidence is made more difficult by the fact that there is very little concrete information available about the Ogboni Fraternity. Essentially, it is a secret society, prevalent in Yoruba-dominant regions of Nigeria, that traditionally performed judicial, political, and religious functions. Its power is mostly restricted to cities in Ogun State or Lagos State, including Egba, Egbado, and Abeokuta. Some persons believe that Ogboni Fraternity members have a significant influence over the affairs of the nation. [45] Membership is primarily voluntary, as the Ogboni are seen as a vehicle through which power, financial rewards, and success can be obtained. Depending on the location of a prospective member and their personal proximity to the organization, intimidation tactics may be employed. For instance, the risk of harassment is much greater in rural villages and small towns, where social pressures can effectively coerce individuals into following in the footsteps of one's parent. There is some reporting suggesting that the Ogboni may pursue someone who refuses to take the position of one's father. However, other sources definitively indicate that in Nigerian cities, there are no consequences for refusing to join or trying to leave.18 [46] I recognize that the Appellant relies on other refugee protection cases in this Tribunal that have dealt with the Ogboni. However, I am mindful that my task is to conduct an independent evaluation based on the credible and trustworthy evidence presented by the Appellant. I am not bound by the decisions of other Tribunal members, precisely because each case stands on its own facts. For instance, in one case, the claimants fled to another city in Nigeria and were discovered by Ogboni Fraternity members.19 In another case, new evidence demonstrated that the agents of harm had continuing interest in the claimants.20 [47] Even after considering the Appellant's experiences and the country condition evidence cumulatively, they fail to demonstrate that the agents of harm have the means and motivation to pursue the Appellant in Abuja or Enugu. Therefore, I substantially agree with the RPD's assessment. [48] There is one exception. The RPD accepted the credibility of the Appellant's allegations regarding the incidents that occurred in 2002, 2016, and 2018.21 I have reached the same conclusion. However, as mentioned above, those incidents include events that occurred in Lagos. For these reasons, and out of an abundance of caution, Lagos should not be considered as a potential IFA in the Appellant's circumstances. [49] Overall, my independent assessment leads to the conclusion that Abuja and Enugu are safe IFA locations for the Appellant. The Appellant failed to establish that the proposed IFA locations are objectively unreasonable [50] The second prong of the IFA analysis inquires as to whether relocation would be objectively unreasonable in all of the circumstances. A high threshold must be met; nothing short of conditions jeopardizing the life and safety of the Appellant must be demonstrated. [51] In assessing the reasonability of an IFA, it is important to mention that claimants may face inconvenience, discomfort, reduced quality of life, loss of status, distance from loved ones, and disappointment in a proposed IFA location. Provided that the conditions do not jeopardize one's life or safety, then the IFA will still be reasonable.22 After reviewing the evidence, I find that the Appellant has not met his burden. [52] When asked whether he could relocate to Abuja or Enugu, the Appellant immediately referenced the nationwide scope of the Ogboni Fraternity. However, the perceived nationwide scope of the Ogboni is not sufficient to find that relocation is objectively unreasonable. My analysis, above, reached the conclusion that the agents of harm do not have the means and motivation to pursue the Appellant in Abuja or Enugu. [53] The Appellant also cited the lack of jobs, the presence of Boko Haram in Abuja, and the fact that he is not Muslim.23 As the Appellant does not originate from either Abuja or Enugu, he may also face challenges associated with indigeneship. [54] In considering the reasonability of an IFA, the claimant's profile is highly relevant. The Appellant is 56 years old. He holds a degree in XXXX from the University of XXXX. He has worked as a XXXX XXXX and - in both Qatar and Port Harcourt - as a XXXX XXXX.24 He is Christian and speaks English. 25 He is married and has three daughters, aged 22, 20, and 17.26 [55] The country condition evidence is clear that internal migration is common in Nigeria, especially in cosmopolitan and urban centres. There is an extensive road network throughout the country. Major cities, such as Abuja, have international airports. The federal constitution guarantees freedom of movement, which is curtailed, at times, due to curfews. [56] The Appellant did not raise any medical issues that would impair relocation. [57] I recognize that unemployment, crime, corruption, and a lack of affordable housing are rampant throughout the country. There is even evidence of Islamist and other armed groups targeting Abuja (Nigeria's capital city) in an effort to topple the government, which has sporadically resulted in civilian casualties. However, Islamist threats (including from Boko Haram) are heavily concentrated in the northern and northeastern regions of the country. I note that approximately half of Abuja's population is Christian.27 [58] Weighing the evidence cumulatively, I find that it is not sufficient to establish that relocation to Abuja or Enugu would be unduly harsh for the Appellant. In particular, I find that his academic background and work experiences mitigate the challenges that relocation may present. CONCLUSION [59] Abuja and Enugu are safe and reasonable IFA locations for the Appellant. [60] Therefore, 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) J.W. Richards J.W. Richards May 30, 2023 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 RPD Record, RPD's Reasons and Decision, at para. 25. 3 Appellant's Record, Appellant's Memorandum, at paras. 38-39. 4 RPD Record, Exhibit 1, at p. 125. 5 Appellant's Record, Appellant's Memorandum, at para. 48. 6 Transcript of the RPD Hearing, at p. 12, lines 15-33. 7 RPD Record, Exhibit 2, BOC Narrative, at p. 17. 8 RPD Record, Exhibit 2, BOC form, at p. 22. 9 RPD Record, Exhibit 4, Letter from XXXX XXXX Intl, at p. 190. 10 Transcript of the RPD Hearing, at p. 7, lines 33-48; p. 8, lines 1-11; p. 45, lines 44-49. 11 Appellant's Record, Appellant's Memorandum, at para. 56. 12 RPD Record, Exhibit 2, BOC form, at pp. 14, 22. 13 Ibid., at p. 24. 14 Transcript of the RPD Hearing, at p. 6, lines 7-10. 15 RPD Record, Exhibit 4, Letter from XXXX XXXX Intl, at p. 190. 16 RPD Record, Exhibit 2, BOC narrative, at p. 15. 17 Transcript of the RPD Hearing, at p. 17, lines 30-49. 18 RPD Record, Exhibit 4, Claimant's supporting documents, at pp. 201-202; National Documentation Package (NDP) for Nigeria (November 30, 2022), item 13.3, France: Office français de protection des réfugiés et apatrides, "Sociétés secrètes traditionnelles et confraternités étudiantes au Nigeria", February 27, 2015; item 13.13, Immigration and Refugee Board (IRB), Response to Information Request (RIR) NGA200795.E, "Ogboni Society, including structure, rituals, ceremonies....", October 27, 2021. 19 RPD Record, Exhibit 4, Claimant's supporting documents, at p. 136. 20 Ibid., at p. 147. 21 RPD Record, RPD's Reasons and Decision, at paras. 5, 8. 22 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), paras. 14-15. 23 Transcript of the RPD Hearing, at p. 27, lines 34-49; p. 28, lines 1-16. 24 RPD Record, Exhibit 1, Schedule "A", at pp. 100-101. 25 RPD Record, Exhibit 2, BOC form, at p. 14. 26 Ibid., at p. 22. 27 NDP for Nigeria (November 30, 2022), item 1.47, IRB, RIR NGA 200990.E, "Nigeria: The socio-economic situation...", June 10, 2022; item 2.1, United States, Department of State, "Nigeria: Country Reports on Human Rights Practices for 2021", April 12, 2022; item 7.4, United Kingdom, Home Office, "Country Policy and Information Note, Nigeria: Islamist extremist groups in North East Nigeria, Version 3.0", July 2021; item 7.18, Human Rights Watch, "Nigeria: Insecurity Grips Nation's Capital", August 9, 2022; item 7.32, United States, Department of State, "Boko Haram, Country Reports on Terrorism 2020", December 2021; item 12.5, IRB, RIR NGA105320.E, "Situation of Christians...", November 17, 2015. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC3-02689 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français