TB9-34151

RAD File / Dossier de la SAR : TB9-34151 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 December 28, 2020 Date de la décision Panel David Morris Tribunal Counsel for the person who is the subject of the appeal Max Chaudhary 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. The Appellant left Nigeria in March 2013, in order to attend university in Italy. He has not returned to Nigeria since. [3] The Appellant fears persecution by government officials and oil company executives due to his political opinion. [4] In XXXX 2015, the Appellant completed his thesis, titled, 'XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant posted the thesis on the university website and Facebook. Subsequently, on XXXX and XXXX XXXX 2015, the Appellant received two calls from an unidentified caller who had a Nigerian accent. The Appellant was told to take down his thesis. He refused, and, as a result, he was threatened. The Appellant believes the caller was from the Nigerian government or an oil company. [5] Between 2015 and 2018, the Appellant posted on Facebook, criticizing the government. In XXXX 2017 he traveled to the U.S. where he remained until coming to Canada and claiming refugee protection on XXXX XXXX 2018. RPD findings [6] The RPD found that publishing a thesis did not make the Appellant a political activist. There was no evidence that his thesis had come to attention of, or that he was threatened by, oil executives or government officials. The Appellant had not posted on Facebook for at least three years. The Appellant therefore failed to establish, on a balance of probabilities, that his claim is objectively well-founded. Summary of Appellant's arguments [7] The Appellant raises the following issues which I have revised and reordered for the sake of clarity: 1. The Refugee Protection Division (RPD) erred in its assessment of whether the Appellant faced persecution due to his political opinion. The issue is whether the Appellant would be viewed as a political opponent, not whether he is an "activist"; 2. The RPD ignored material evidence determining that the Appellant had not posted online any opinions critical of the government for the past three years. The evidence showed that he had posted on Facebook on XXXX XXXX 2018; 3. The Appellant's claim is well-founded. There is a reasonable possibility he would be persecuted in Nigeria; 4. The claim must also be assessed under section 97 of the Immigration and Refugee Protection Act (IRPA). [8] The Appellant does not seek to admit any new evidence or request an oral hearing. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [10] I have reviewed the Appellant's testimony and the documentation he filed in support of his claim as well as the objective documentation. I find that the RPD had no meaningful advantage over the Refugee Appeal Division (RAD) in evaluating this evidence. Therefore, I have not deferred to the RPD's findings. [11] I find the RPD was correct in determining the Appellant has failed to show that he faces a serious possibility of persecution in Nigeria due to his political opinion. Although I find that the RPD did err with respect to when the Appellant's last Facebook post was made, I find this error was not determinative. I find that the Appellant's testimony and the documentation he provided in support of his claim do not, on a balance of probabilities, show that the Appellant's activities would bring him to the attention of the Nigerian authorities or actors within the petroleum industry. The Appellant is not required to show that he is a "political activist" [12] I agree with the Appellant that there is no requirement that he show he is a "political activist" to make out a claim based on his political opinion. However, having reviewed the RPD's decision, I find no basis for the Appellant's suggestion that the RPD imposed such a requirement. Rather, the RPD found that the evidence did not support the Appellant's counsel's submission that he was an activist. The Appellant himself testified that he was not involved in any political activities.2 He also testified that his thesis and some Facebook posts were the only things he had posted online.3 [13] It is therefore clear from his evidence and testimony that the Appellant's claim was based entirely on his thesis and his Facebook posts. The RPD considered these posts and the content of the thesis and determined that it was unlikely these would bring negative attention from the government or from oil companies. The RPD did not impose an arbitrary standard as alleged by the Appellant. Rather, it determined that the Appellant had not met his burden of showing, on a balance of probabilities, that the government or oil companies would be aware of, or concerned about, his activities. It is unlikely the Appellant would be viewed as a political opponent or that he would be known to the authorities [14] The Appellant argues that the RPD erred in finding that the Appellant had not posted any political opinion on his Facebook page for more than three years. In fact, the Appellant made one post on his Facebook page on XXXX XXXX 20184 (the 2018 post). It therefore appears the RPD did err as the Appellant's last post was approximately a year and a half before his hearing and not three years. [15] However, when I consider the XXXX 2018 post along with the four other Facebook posts and the thesis submitted into evidence, I find the RPD correctly determined that the Appellant's activities, such as they were, were unlikely to attract negative attention from the government or oil industry officials. [16] The Appellant provided evidence of a total of 5 Facebook posts over a period of about three years (from XXXX 2015 to XXXX 2018).5 The last post before the XXXX 2018 post was on XXXX XXXX 2016 - a gap of two years. The Appellant testified that, aside from his thesis, he did not post anywhere else other than on Facebook and he received no threats related to the Facebook posts.6 I find such limited activity is unlikely to bring him to the attention of the authorities or industry officials. [17] In content, the posts are somewhat critical of the Nigerian federal government and the President. However, having read the posts, I find that they are not likely to cause anyone in government or industry much concern. Further, there is no indication that these posts were shared outside the Appellant's circle of Facebook friends. Even assuming the Nigerian authorities had the ability to monitor Facebook posts which, like these, emanated from outside of Nigeria, there is no evidence that they did so in this case. In summary, I find the Facebook posts submitted by the Appellant show content that was indeed political but amounts to a very limited number of posts with no evidence at all as to how widely they were shared or why they would be of concern to the government. [18] Although I accept the Appellant's thesis was posted on the university website and his Facebook page, there is also no evidence which shows that the government or anyone in the oil industry are aware of the thesis or that they would be so concerned by its content that they would threaten the Appellant. Although he received two vaguely threatening phone calls more than five years ago, the Appellant's own evidence was that he did not know who made the calls. His testimony was that, "... I presume it must be government actors or state actors, which is the Federal government, or people who work in the oil industry, specifically for XXXX XXXX."7 [19] I find the evidence falls well short of establishing, on a balance of probabilities, that the government or oil industry are aware of the Appellant or his political views. [20] Although the Appellant's former counsel referred at his hearing to an article which shows that Nigeria's cyber-crime laws are being used to muzzle the press,8 as the Appellant acknowledged in testimony, he is not a journalist.9 I find that the objective evidence which does provide evidence of journalists and activists being targeted by the government10 simply does not apply to the Appellant's situation. [21] For these reasons, I find that the RPD was correct in determining that the Appellant's claim is not objectively well-founded and that therefore he does not face a serious possibility of persecution. The Appellant has not established, on a balance of probabilities, that he would face harm under section 97 of the IRPA [22] I reject the Appellant's argument that the RPD erred in failing to conduct a separate analysis of his risk under s. 97 of the IRPA. First, the RPD clearly indicated it considered section 97. Second, given that the evidence did not establish a serious possibility of persecution, I find that the Appellant has also failed to demonstrate, on a balance of probabilities, that he would be at risk of harm. [23] In summary, I find the Appellant has not demonstrated a serious possibility that he would be targeted because of his thesis and Facebook posts. [24] I therefore reject this appeal. CONCLUSION [25] 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) David Morris D. MORRIS 28 December 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 RPD Hearing Recording, 29 October 2019, at 00:15:35. 3 RPD Hearing Recording, 29 October 2019, at 00:12:40 and 00:13:22. 4 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 173 to 175. 5 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 173 to 175. 6 RPD Hearing Recording, 29 October 2019, at 00:13:22. 7 RPD Hearing Recording, 29 October 2019, at 00:10:12. 8 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 140-142. 9 RPD Hearing Recording, 29 October 2019, at 00:31 37. 10 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (20 August 2019), item 11.4: Nigeria: Journalists, Activists Detained, Allege Torture, Human Rights Watch, 21 August 2018. This document is also included as Item 11.4 of the current NDP for Nigeria (30 November 2020). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-34151 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