TB9-30531

RAD File / Dossier de la SAR : TB9-30531 TB9-30532 / TB9-30533 / TB9-30534 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision January 29, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Benjamin Allison Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal for the reasons that follow. XXXX XXXX XXXX and her children, XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX, (Appellants) are citizens of Nigeria. [2] Ms. XXXX is married to her husband who remains in Lagos, Nigeria. She fears that her husband's family will subject her daughter to female genital mutilation (FGM) and her sons to tribal incisions if the Appellants return to Nigeria. Ms. XXXX and her husband are opposed to these practices and Ms. XXXX fears that her husband's family will kill her due to her refusal to subject her children to them. Ms. XXXX also fears that her husband's family will seriously harm her because she and her husband allegedly converted from Islam to Christianity. According to Ms. XXXX, her husband's family began telling her that her daughter had to be circumcised as of three months after she was born in 2008. They renewed this pressure after her son was born in 2013. Ms. XXXX travelled to the United States on her own in XXXX 2016 to stay with a friend, and she returned to Nigeria that same month. She and her three children then left Nigeria for the United States in XXXX 2016. They remained in the United States after the expiry of their visas and ended up crossing the border into Canada in XXXX 2017. [3] The RPD did not find Ms. XXXX to be credible as it found her conduct to be incompatible with her account of the risk she faced while in Nigeria and the risk she claimed that she and her family would face if they returned to Nigeria. Relying on the objective documentary evidence, the RPD also found that there was no a serious possibility that Ms. XXXX children would be subjected to FGM or tribal incisions because both Ms. XXXX and her husband opposed the practice. In addition, the RPD found that there was no serious possibility that Ms. XXXX would be killed due to her refusal to subject her children to these practices. Finally, the RPD found that the objective documentary evidence did not support Ms. XXXX contention that she and her husband faced a serious possibility of persecution due to their conversion to Islam. The Appellants challenge some of these findings. DECISION [4] The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. I agree with the RPD that the credibility of Ms. XXXX account of the events that led her to leave Nigeria was undermined by her return to Nigeria in 2016 and the Appellants' extended delay in crossing into Canada to claim asylum. I also agree with the RPD that Ms. XXXX account of the risk she would face in Nigeria is inconsistent with the objective documentation. In the circumstances of this case, I agree with the RPD that all of the above, considered cumulatively, renders Ms. XXXX account of events not credible. ANALYSIS [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Uncontested findings [6] The Appellants did not contest the RPD's decision regarding the risk they claimed to face at the hands of Ms. XXXX in-laws due to their religious conversion. Therefore, I will limit myself to finding that the RPD was correct in its conclusions on this issue for the reasons set out at paragraphs 23-26 of the RPD's decision. [7] The Appellants also did not contest the RPD's findings regarding the risk that Ms. XXXX sons would be subjected to tribunal markings if they returned to Nigeria. I also agree with this conclusion for the reasons the RPD provided at paragraphs 20 and 21 of its decision. [8] Finally, the Appellants also did not contest the RPD's finding that Ms. XXXX credibility was negatively affected by her return to Nigeria after her first trip to the United States in XXXX 2016. The RPD found this conduct inconsistent with what she claimed was happening to her and her family and with her claim that she risked being killed by her husband's family. I agree. Ms. XXXX return to a country where she claimed to be at risk of serious harm and even death as a result of her opposition to the demands being made by her husband's family are thoroughly incompatible with the risk she claimed to face in Nigeria. Failure to claim asylum in the United States and delay in claiming asylum [9] I do not agree with the Appellants that the RPD erred in finding that their failure to seek asylum in the United States undermined the credibility of their account of events in Nigeria and of the risk they would face if they returned to Nigeria. [10] I note that the Appellants seek to rely upon the Federal Court's decision in Wangchuk to make this argument.2 I note at the outset that the quotation that the Appellants seek to rely upon from that decision are not in fact the words of the court, as the Appellants claim, but instead they form part of the court's summary of the submissions made by the applicants in that case. In any event, while I do not disagree with the result in Wangchuk, I find that the circumstances of this case are significantly different than the circumstances in that case. In Wangchuk, the court found it unreasonable for the RPD to deny the applicant's claim solely on the basis of a lack of subjective fear due to his failure to claim asylum in the United States. The RPD in that case did not even consider the protections for persons in need of protection found in s.97 of the Immigration and Refugee Protection Act, a section for which the element of subjective fear is not required. In addition, the court took issue with the fact that the RPD did not seriously consider the reasons that the applicant gave for not claiming asylum in the United States. Among these reasons, were the fact that the applicant had a sister in Canada, he had always intended to come to Canada and he was awaiting documents that he believed he would need to make his asylum claim. I also note that the applicant in that case made a claim in Canada just two days after his registry certificate for the United States had expired. [11] The RPD in this case did not base its decision on a lack of subjective fear. It found that the Appellants' credibility was undermined by their failure to claim asylum in the United States and their delay in crossing the border to claim in Canada. It properly acknowledged that refugee claimants are under no obligation to seek protection in the first country they reach after fleeing their homeland. However, a failure to seek asylum in another country or a delay in claiming asylum may affect credibility. The RPD also took into account the explanations provided by Ms. XXXX but found that they did not satisfactorily explain the Appellants' failure to claim asylum in the United States and their delay of almost five months between the expiry of their visas and their crossing of the border to claim refugee status in Canada. [12] When the RPD asked Ms. XXXX whether she had made an asylum claim in the United States, she replied that she did not know that there was anything like asylum in the United States. She said she did not ask anyone and did not know anything about it. When asked about her decision to come to Canada, Ms. XXXX said that she saw online that people were trying to go to Canada. When asked what she did from XXXX 2017 to XXXX 2017 when the Appellants' visas had expired, she said that she tried contacting a lawyer to extend her stay but that she did not have the money necessary for his fee. [13] I agree with the Appellants that the RPD mistakenly stated that one of the reasons that Ms. XXXX gave for failing to claim asylum in the United States was that she could not afford a lawyer. She actually gave that explanation to the RPD's question about remaining in the United States illegally for almost five months. In my view, Ms. XXXX explanation that she did not seek asylum in the United States because she knew nothing about this process is not satisfactory. She herself said she did not look into the process in the United States but, meanwhile, obviously had the capability of performing online searches as she found out about the option of coming to Canada online. I note that Ms. XXXX is not an unsophisticated individual without potential sources of information. She is university-educated and has the ability to use the internet to obtain information. I note that she also testified that she had a friend in the United States. For all these reasons, I do not find satisfactory, the reasons she gave for not claiming asylum in the United States. [14] In addition, there is the Appellants significant delay of five months during which time they remained illegally in the United States before arriving in Canada. I agree with the RPD that, had what Ms. XXXX alleged happened in Nigeria truly happened and were her fears of returning genuine, she would not have run the risk of remaining in the United States illegally and would have made the necessary inquiries about her other options earlier. [15] For all these reasons, the RPD correctly concluded that, in the circumstances of this case, the Appellants' failure to claim asylum in the United States and their delay in choosing to come to Canada undermined the credibility of their account of the risk they faced in Nigeria. Documents relied upon were available to the Appellants [16] I disagree with the Appellants that the RPD relied upon a document contained in the National Documentation Package (NDP) for Nigeria that was not available to them and to which they had not the opportunity to respond. [17] Among other documents, the RPD relied upon a Response to Information Request found at Tab 5.12 of the August 20, 2019, NDP for Nigeria. This was the version of the NDP in place at the time of the hearing on October 2, 2019, and therefore it was the version of the NDP that formed part of the RPD record in this case. For this reason, the situation in this case is not at all analogous to the Federal Court decisions cited by the Appellants in their memorandum. In those cases, the document relied upon by the RPD was not in the record at the time of the hearing but was instead published after the hearing. That was not the case here. The document was before the RPD at the hearing and the Appellants' counsel in fact made submissions in relation to it at the hearing. RPD did not err in its reliance on the documentary evidence [18] The Appellants argue that the Response to Information Request found at Tab 5.12 of the NDP for Nigeria is not conclusive. That document states that the decision to carry out FGM is up to parents, even if there are variations among ethnic groups regarding whether a father or mother makes the final decision.3 The Response to Information Request also states that parents who refuse to let their daughters be subjected to FGM at most may face social exclusion or may be publicly criticized.4 The Appellants argue that the Federal Court has recognized that FGM remains a growing danger to females from the southwest Yoruba part of Nigeria where Ms. XXXX come from.5 [19] I do not agree with this argument. To begin, both of the Federal Court cases cited by the Appellants, the claimants were from Edo State and would be returning to Edo State. The Appellants in this case live in Lagos, a large cosmopolitan city and the commercial center of Nigeria. [20] In addition, I agree with the RPD that Ms. XXXX account of the risks she and her family face are at variance with the information contained in the NDP for Nigeria regarding the situation when parents oppose FGM. While I accept that the RPD cannot exclusively rely upon the objective documentation to find that the Appellants' own account of events is not credible, I do not find that it was an error for the RPD to find Ms. XXXX not credible in the circumstances of this case. As noted above, Ms. XXXX account of events was not only incompatible with the information in the NDP for Nigeria but also with her own actions in returning to Nigeria after her first trip to the United States, her failure to claim asylum in the United States, and her delay in seeking out other options such as coming to Canada. [21] Having considered all of these factors cumulatively, I find that the RPD did not err in finding not credible, the appellants account of the risk they would face if they returned to Nigeria. CONCLUSION [22] For these reasons, I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Jo-Anne Pickel Me Jo-Anne Pickel January 29, 2020 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Wangchuk v. Canada (Citizenship and Immigration), 2016 FC 160. 3 Tab 5.12 of the NDP for Nigeria (November 29, 2019) at p. 1. 4 Tab 5.12 of the NDP for Nigeria (November 29, 2019) at p. 3. 5 Oboh v. Canada (Citizenship and Immigration), 2012 FC 186; Ohaka v. Canada (Citizenship and Immigration), 2010 FC 1037. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-30531 TB9-30532 / TB9-30533 / TB9-30534 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