TB8-21213

RAD File / Dossier de la SAR : TB8-21213 Private Proceeding / Huis clos Redetermination of Appeal - Nouvel examen de l'appel 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, 2021 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the person who is the subject of the appeal Cheryl Robinson 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] This is the redetermination of the decision of the Refugee Protection Division (RPD), rejecting the claim of XXXX XXXX XXXX (Appellant), a citizen of Nigeria. These are my reasons for allowing the appeal. [2] The Appellant and her son XXXX fear persecution from the Appellant's husband's family because of her son's XXXX. By decision dated August 13, 2018, the RPD rejected the claim of the Appellant and her son, finding they lacked credibility. By decision dated May 14, 2019, the Refugee Appeal Division (RAD) found the RPD erred in its credibility assessment, found the son to be a Convention refugee, but denied the Appellant's appeal finding that there was no evidence of a forward-looking risk for the Appellant. By decision dated February 19, 2020, the Federal Court granted the Appellant's application for judicial review and returned the matter back to a differently constituted RAD for a redetermination of the RPD decision. The Federal Court found that the first RAD panel overlooked significant and material evidence related to a forward-looking fear and erred by considering the Appellant's risk independently of her son. [3] My role is to consider all the documents before me and determine if the RPD made the correct decision vis a vis the Appellant. In coming to my decision, I have taken into account the RPD Record, the Appellants' Record,1 the Appellant's Supplementary Record,2 including the Application for New Evidence,3 as well as the Chairperson Guidelines 4.4 In addition, I am guided by Mr. Justice Dinar's decision allowing the Appellant's Application for Judicial Review.5 [4] Having carried out an independent assessment of all the evidence, I find the RPD erred in its analysis of the evidence and its negative credibility findings. I find the Appellant has demonstrated, on a balance of probabilities, a serious possibility of persecution and a forward-looking fear of persecution from the Appellant's husband's family if she returns to Nigeria. I find the Appellant is a Convention refugee.6 NEW EVIDENCE AND ORAL HEARING Application for new evidence at the first appeal to the RAD [5] The Appellant sought to admit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act ( IRPA) in its first appeal to the RAD.7 I have considered the application. [6] The Appellant seeks to admit copies of her and her son's Basis of Claim (BOC) forms.8 I reject the admission of these documents. The BOCs, along with amendments, already form part of the RPD Record.9 As a result, it is not necessary to admit them. [7] The Appellant also seeks to admit a copy of the transcript of the RPD hearing.10 It is not necessary to admit the transcript, as I have received and reviewed an official transcript of the RPD audio recording.11 [8] The Appellant also seeks to admit a letter from XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2018.12 It confirms that the Appellant's son has been diagnosed with XXXX. The letter postdates the RPD hearing. The Appellant has not offered any explanation for why the letter was not submitted prior to the rejection of her claim. I therefore reject the admission of this document. I note, however, that I accept that the Appellant's son is XXXX. [9] As I am not accepting any new evidence, I do not have discretion to hold a hearing under subsection 110(6) of IRPA. Application for new evidence at the RAD redetermination [10] The Appellant seeks to admit three affidavits as new evidence on this redetermination.13 I find these documents are all dated after the RPD rejection of the Appellant's claim.14 In addition, I find the three documents meet the requirements established by the Raza and Singh cases. 15 [11] Affidavit of the Appellant and exhibits, sworn XXXX XXXX XXXX 202016 - The Appellant's affidavit is dated after the RPD rejection and provides information concerning events that happened in Nigeria after the rejection of her claim. Exhibit A to the affidavit is a letter from the school attended by the Appellant's children who remain in Nigeria. The letter describes attempted abductions of the children at their school in XXXXand XXXX 2019 by the Appellant's husband's family. Exhibit B is a photograph of the Appellant's brother with his leg in a cast, along with a letter from the hospital confirming his injury. I find the affidavit and the attached exhibits are from credible sources. The Appellant's affidavit is properly sworn. Exhibit A, on its face, is a letter from the XXXX XXXX School, with contact information and Exhibit B is a letter from Federal Medical Centre. In addition, the documents provide new information that is relevant to issues in this appeal, specifically whether the Appellant's husband's family are still interested in the Appellant and her family. I allow admission of the affidavit and attached exhibits. [12] Affidavit of the Appellant's husband, sworn XXXX XXXX XXXX 202017 - The husband's affidavit provides evidence of the attempted abductions of the Appellant's children by his family and states that the wife will not be safe if she comes back to Nigeria. It corroborates the information provided by the letter from the children's school. It is a duly sworn affidavit, which I find to be authentic. It is evidence relating to events that happened post-rejection and it is relevant to an issue in this appeal, namely the motivation of the agents of persecution to find the Appellant. I allow the admission of the affidavit. [13] Affidavit of the Appellant's brother, sworn XXXX XXXX XXXX 202018 - I allow the admission, in part, of the brother's affidavit. [14] The brother's affidavit refers to three attacks on him by the husband's family, where they asked for the brother to produce the Appellant and her son for spiritual cleansing. I allow the admission of paragraphs 1 to 3 and paragraphs 12 to 24, which provide evidence of contact between the Appellant's husband's family and her brother in Abeokuta after the rejection of the Appellant's claim. The affidavit appears to be duly sworn, with authentic identification. It provides new evidence that is relevant to the issues in this appeal, namely the motivation of the agents of persecution to find the Appellant. [15] I reject the admission of paragraphs 4 to 9 of the brother's affidavit as they refer to an attack that occurred prior to the rejection of the Appellant's claim. I note that the Appellant's brother submitted an affidavit which refers to this same attack that is already part of the RPD Record.19 I have considered that affidavit in my assessment of the RPD Record. [16] The Appellant has requested an oral hearing under subsection 110(6) of the IRPA20. I reject the application for an oral hearing. I find the that the information is relevant but not central to my decision on this appeal. ANALYSIS The RPD erred in its negative credibility finding [17] The RPD rejected the Appellant and her son's claim after making negative credibility findings. The RPD focused on the omission in the Schedule A Background /Declaration form of the address where the Appellant fled to; the plausibility or lack thereof, of the husband's family having the motivation to kill the son; the Appellant's delay in obtaining a passport for the son; and the delay in filing an asylum claim in the United States of America (U.S.A.). [18] In its decision allowing the son's claim, but rejecting the Appellant's claim, the first RAD overturned all four of the RPD's negative credibility findings. I agree with the first RAD's rationale for overturning the negative credibility findings. Omission in Schedule A [19] In relation to the omission of the friend's address in the Schedule A Background/ Declaration form, the Appellant testified that she did not include that address as she did not consider it to be a residence. Instead, it was a hiding place. Schedule A requests information on all the places the applicant lived. It does not call for the applicant to list any and all places they have stayed in since the 18th birthday or the past 10 years. I find the Appellant is credible when she said that she considered this a hiding place she stayed in, and not a place she lived. I find this to be a reasonable explanation. Implausibility of the husband's family having the motivation to locate the Appellant and her son [20] The RPD made what amounts to an implausibility finding that the Appellant's husband's family lacked motivation. Findings of implausibility must be based on the evidence and be made in the clearest of cases.21 I find the RPD failed to consider evidence before it that contradicts this finding. Both the husband's and the friend's affidavits22 provide supporting evidence that is overall consistent with the Appellant's testimony that the husband's family were motivated and did make attempts to find the Appellant and her son. [21] In addition, I find the RPD was wrong to find that the husband's family's actions were implausible because the Appellant was not able to explain why the husband's family took no action against the Appellant and her son for three years.23 I find it reasonable that the Appellant cannot explain why the husband's family wanted to kill her son, but delayed in taking any action. She is not able to explain what was in their minds. [22] I find the Appellant has provided sufficient evidence to demonstrate, on a balance of probabilities, that the husband's family have the motivation to find her and her son. Delay in obtain a passport for the Appellant's son [23] The RPD had credibility concerns because of the Appellant's delay to obtain a passport for her son. I agree with the Appellant that the RPD concerns are based on the member's idea or speculation of what the member thought the Appellant should have done, and not based on any direct or objective evidence. I find the delay to obtain a passport has little relevance to the question of whether the Appellant has demonstrated a subjective fear for herself and her son at the hands of the in-laws. Delay in claiming in the U.S.A. [24] The RPD also had concerns regarding the Appellant's failure to claim protection in the U.S.A. While a delay in claiming asylum can raise credibility concerns, I find the Appellant's explanation for why she did not file a refugee claim in the U.S.A is reasonable. The RPD indicated that it would be reasonable to expect that the Appellant would contact a lawyer or make enquiries about making an asylum claim when she was in Maryland. The Appellant explained that she and her son arrived in Maryland in winter and did not go to the mosque; she was always at home and she did not know anyone. She explained to the member that she talked with her host in Maryland about making a claim, but her host told her that they could not seek asylum in the U.S.A. I find the Appellant has reasonably explained why she did not file a claim in Maryland. [25] When the Appellant and her son moved to Indianapolis, she received assistance from a mosque and a social worker for her son and received a work permit. In addition, they were in the U.S.A. lawfully. I find these factors also explain why she did not claim in the U.S.A. I draw no negative credibility inference from the failure to claim. [26] Having carried out my own assessment of the Appellant's evidence, supporting and objective documentation, I find that she has provided sufficient, credible evidence to indicate that she has a well-founded fear of persecution from the husband's family because of her membership in a particular social group, namely a mother of a child with XXXX who has been threatened with ritual killing. The Appellant has demonstrated a forward-looking fear of persecution [27] The Appellant submits that she has demonstrated a forward-looking fear of persecution. For the reasons above, I agree with the Appellant. I find the RPD erred in failing to consider whether the Appellant faces a future risk of harm in Nigeria. Based on my review of the RPD Record and the new evidence I have admitted, I find the Appellant has established, on a balance of probabilities, a forward-looking fear of persecution from the agents of persecution if she is returned to Nigeria. [28] Supporting evidence before the RPD indicates that the husband's family members were willing to use force to and coercion to find the Appellant and her son. For example, the friend of the Appellant deposed that two men sent by the husband's family came to her house where the Appellant and her son were hiding. They demanded that she hand over the Appellant and her son.24 The Appellant's friend further stated that one week later, she was detained by the Nigerian police and questioned about the Appellant's whereabouts,25 which indicates that the husband's family have connections with the police. In addition, she indicated that the in-laws have not stopped searching for the Appellant and her son in order to force the rituals on them.26 [29] The Appellant's husband confirms that in addition to looking for the son to inflict significant harm on him, his family is also interested in locating the Appellant. He states that the family wish to force the Appellant to go through rituals separately from her son.27 [30] The RPD gave the Appellant's husband's affidavit little weight because it did not address what the family members planned to do with the Appellant and her son prior to XXXX XXXX XXXX 2015, and because the husband was not present at the XXXX XXXX XXXX 2015 family meeting.28 The RPD failed to make any finding on a key allegation in the husband's affidavit, namely that the Appellant would be forced to go through rituals separately from her son. I find this allegation credible. [31] In addition, I find the RPD failed to consider the affidavits from the Appellant's brother and her friend in its assessment of the evidence. The affidavit from the Appellant's friend confirms that the Appellant fled to the friend's house in XXXX 2015. It confirms that children who are developmentally delayed are tormented and ostracized by the community and family and many are killed. The friend states that two men from the husband's family came to her house looking for the Appellant and her son, demanding that she hand the Appellant over. The friend goes on to explain that a week later she was detained by the Nigerian police and asked about the Appellant's whereabouts.29 [32] The Appellant's brother indicates in his affidavit that he was beaten by thugs and police when the chief of the husband's family came to his house looking for the Appellant.30 [33] I have reviewed the three affidavits and find nothing that leads me to question their authenticity. I find the three affidavits provide credible support to the Appellant's allegation that the agents of persecution have threatened her directly, and that they have detained and harmed persons who may know her whereabouts. [34] In addition, I have considered the new evidence I have admitted. The letter from the Nigerian school for the Appellant's two children who remain in Nigeria provides evidence that the husband's family remain interested in the Appellant's family. The letter indicates that the head of the husband's family came to the school with four other men and tried to abduct the two children.31 [35] The affidavit from the Appellant's brother provides further evidence that the husband's family remains interested in the Appellant and her son. He states that the chief of the husband's family came with six thugs to his compound. The brother injured his leg during his escape.32 [36] According to Maldonado: When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.33 When I apply the Maldonado principle to the evidence in this case, I find no reason to doubt the truthfulness of the Appellant's allegations. Furthermore, I find that the supporting documentation presented, provides credible corroboration for her claim. [37] Having carried out an independent assessment, I find the Appellant has established, on a balance of probabilities, a forward-looking fear of persecution. State protection [38] The Appellant's narrative, testimony and supporting documentation indicate that she and her husband did report the agents of persecution to the police as well as the Imam of their mosque, but were told that as it was a family matter, these authorities would not get involved. In addition, the evidence indicates that the chief of the husband's family is able to enlist police to assist him in locating the Appellant and her son. In these circumstances, I find it unlikely that Appellant would benefit from police protection if she returned to Nigeria. Internal flight alternative [39] I have considered the viability of an internal flight alternative (IFA) for the Appellant were she to return to her country. I find that she has no objectively reasonable IFA. The Appellant is a mother of an XXXX child who has been found to be a refugee in Canada. The evidence indicates that she would not return to Nigeria alone and leave her child in Canada without anyone to take care of him. [40] There is no absolute right for family members' refugee claims to be processed together or to share the same, positive outcome.34 However, in this case, the claims of the mother and son are, as noted by the Federal Court, "inextricably bound together." They hid together, they fled together, and the agents of persecution continue to search for both of them together. Given the Appellant's particular circumstances, I find it would be objectively unreasonable for her to return to Nigeria and relocate to any other place with or without her son. CONCLUSION [41] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, I substitute my own decision that the Appellant is a Convention refugee. (signed) Madeleine Schwarz Madeleine Schwarz February 26, 2021 Date 1 Exhibit P-2, Appellants' Record (September 27, 2018). 2 Exhibit P-3, Supplementary Appellant's Record (October 13, 2020). 3 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at ss. 110(4). 4 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. 5 Misrat Adebola Sadiq v. (Minister of Citizenship and Immigration), 2020 FC 267. 6 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at para. 111(1)(b). 7 Exhibit P-2, Appellant's Record, at p. 14, para. 2. 8 Ibid., at pp. 19-42. 9 Exhibit RPD-1, RPD Record, Exhibits 2,3, pp. 14-42. 10 Exhibit P-2, Appellant's Record, pp. 44-81. 11 Transcript of July 9, 2018, RPD Hearing. 12 Ibid., at p. 83. 13 Exhibit P-3, Supplementary Appellant's Record (October 13, 2020). 14 IRPA (S.C. 2001, c. 27), as amended, at ss. 110(4). 15 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, as endorsed in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230. 16 Exhibit P-3, Supplementary Appellant's Record (October 13, 2020), pp. 1-8. 17 Ibid., at pp. 9-10. 18 Ibid., at pp. 12-13. 19 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 252-254. 20 Exhibit P-2, Appellant's Record, at p. 14, para. 2. 21 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 10, para. 30. 22 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 246-251. 23 Exhibit RPD-1, RPD Record, RPD Reasons, p. 10, para. 30. 24 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 249-251, para. 8. 25 Ibid., at para. 13. 26 Ibid., at para. 14. 27 Ibid., at pp. 246-248, para. 10. 28 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 10, para. 31. 29 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 249-251. 30 Ibid., at pp. 252-253. 31 Exhibit P-3, Supplementary Appellant's Record (October 13, 2020), at p. 5. 32 Ibid., at pp. 12-13, para. 14. 33 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.), at para. 5. 34 Nazari v. Canada (Citizenship and Immigration), 2017 FC 561 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-21213 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