MB9-27906

RAD File / Dossier de la SAR : MB9-27906 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 Montreal, QC Appel instruit / entendu à Date of decision February 25, 2021 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Dolu Ashani 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 INTRODUCTION [1] Mr. XXXX XXXX XXXX (the Appellant), is a citizen of Nigeria. He appeals the decision of the Refugee Protection Division (RPD) rendered on October 23, 2019, rejecting his claim filed pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the Act). [2] The RPD found that the Appellant was not credible, as to the basis of his claim, due to several inconsistencies, contradictions, and lack of corroborative evidence. The Appellant argues that the RPD erred in its credibility assessment. He asks the Refugee Appeals Division (RAD) to grant the appeal. OVERVIEW [3] The Appellant alleges that he inherited part of his father's cocoa farm, which created a big conflict with his half-brothers. Specifically, he alleges that XXXX XXXX XXXX, one of his half-brothers, came to his farm and attempted to kill him in XXXX 2015. In XXXX 2016, the Appellant alleges that his car was riddled with bullets in an attempt to kill him. In XXXX 2016, his brother, XXXX XXXX XXXX, was allegedly murdered for intervening in favour of the Appellant. The Appellant relocated to Achi, in Edo State, and sent his family to XXXX Village, in Ogun State. The Appellant fled the country in XXXX 2017 for the USA. He came to Canada to ask for asylum in XXXX 2018. DECISION [4] Based on my independent analysis of all the evidence on the file, including the recording of the hearing, I am of the view that the determinative issue is the possibility, for the Appellant, to safely relocate to another part of the country. [5] I find that the Appellant did not establish a prospective risk that would make him in need of protection if he were to relocate to Benin City, where he has a viable internal flight alternative (IFA). [6] I therefore confirm the RPD's decision pursuant to which the Appellant is neither a Convention refugee, nor a person in need of protection on other grounds, as explained below. NEW EVIDENCE AND REQUEST FOR A HEARING [7] The Appellant requests the RAD to admit new evidence on appeal and to hold a hearing. Evidence submitted pursuant to Rule 110(4) of IRPA [8] Pursuant the Rule 110(4) of IRPA, new evidence is only admissible if it arose after the rejection of the claim or it was not then reasonably available; or although the evidence was reasonably available, it could not reasonably be expected to have been presented, at the time of the rejection. To be admissible, the evidence must also be credible, relevant and new. [9] Furthermore, pursuant to Rule 3(3)(g)(iii) of the Refugee Appeal Division Rules, SOR/2012-257 (RAD Rules), the appellants are required to make full and detailed submissions showing how the new evidence meets the requirements for admissibility. [10] The Appellant submits several documents as new evidence on appeal: A. Crime Diary regarding the death of his brother, dated XXXX XXXX XXXX 2016; B. Appellant's petition to the police regarding the attacks against him in XXXX 2015 and XXXX 2016, as well as the murder of his brother in XXXX 2016, dated XXXX XXXX, 2017; C. Sworn affidavit from lawyer regarding the correction of errors of name in the will, dated XXXX XXXX XXXX 2019; D. Copy of the will, dated XXXX XXXX XXXX 2011; E. Copy of Lease agreement of XXXX XXXX, dated XXXX XXXX XXXX 2011; F. Copy of the first contract with XXXX, dated XXXX XXXX, 2011; G. Copy of a letter of a statement of fact from XXXX XXXX XXXX, dated XXXX XXXX XXXX 2019; H. XXXX XXXX, XXXX XXXX, dated XXXX XXXX, 2012 and XXXX XXXX XXXX, 2012; I. XXXX XXXXCertificate of Registration, dated XXXX XXXX, 2017. [11] The Appellant submits that because he was not familiar with the requirements of the RPD, he did not submit the Crime Diary about his brother's assassination (Document A) at the hearing. However, given the importance of this report in corroborating his submissions, the Appellant had subsequently requested the report from his late brother's wife. [12] He argues that the petition to the police (Document B), the death certificate (in evidence before the RPD), and the Crime Diary regarding the death of the Appellant's brother "undo all attempt to the claimant's undermined credibility". [13] I cannot accept the Appellant's argument that he failed to submit key evidence, in support of elements central to his claim, because he was not familiar with the RPD requirements, especially in light of the fact that he was represented by counsel in his asylum claim. Document A pre-dates the RPD's decision and the Appellant has not provided a reasonable explanation as to how this document meets the requirements of rule 110(4) of IRPA. I, therefore, deem document A inadmissible. [14] The Appellant submitted a petition to the police regarding the attacks against him in XXXX 2015 and XXXX 2016, as well as the murder of his brother in XXXX 2016, dated XXXX XXXX, 2017 (Document B). He provided no explanation as to why the petition, which pre-dates the RPD's decision, was not made available to the RPD. I note that the RPD explicitly put at issue the absence of this document, at the hearing, but no explanation was provided for failing to submit it. I, therefore, find this document inadmissible. [15] The Appellant submitted a sworn affidavit from the legal practicioner who drafted his grandfather's will regarding attesting to the existence of errors in the will, dated XXXX XXXX, 2019 (Document C). He also submitted a copy of a letter of statement of fact from XXXX XXXX XXXX, dated XXXX XXXX XXXX 2019 (Document G). These documents are new and post-date the RPD's decision. They appear credible on their face. Documents C is relevant to the issue of authenticity of the Appellant's father's will and Document G supports the Appellant's contention that his company, XXXX XXXX, was doing business with XXXX XXXX XXXX since 2011 which was put at issue by the RPD. I accept these documents as new evidence on appeal. [16] Documents E, F and H relate to the issue of the claimant's experience in farming which was addressed at the RPD hearing. They all pre-date the RPD's decision. No submissions were provided with respect of these documents and I don't see how they meet the requirements of section 110(4). I therefore find documents E, F, H inadmissible. [17] Finally, I note that Documents D and I are already in the RPD's record and therefore do not qualify as new evidence. [18] Given that I have not accepted documents A, B, D, E, F, H and I into evidence, and that the admitted documents are not determinative of the appeal (Documents C and G), the request for a hearing pursuant to section 110(6) of IRPA is denied. Evidence submitted pursuant to Rule 29(4) of the Refugee Appeal Division Rules [19] For evidence filed after the perfection of the appeal, I must consider Rule 29(4) of the Refugee Appeal Division Rules and factors such as whether the evidence is relevant and probative, new, or could not have been provided with reasonable effort with the Appeal Record.1 If the evidence meets the Rule 29 requirements, I must consider subsection 110(4) of the IRPA. [20] The Appellant filed additional submissions, with the RAD, on the issue of the IFA, on January 27, 2021. At the same time, he submitted four additional documents as new evidence, namely: J. Copy of the death certificate of Mr. XXXX XXXX XXXX, dated XXXX XXXX XXXX 2020; K. Copy of the medical cause of death of Mr. XXXX XXXX XXXX, dated XXXX XXXX, 2020; L. Sworn affidavit of the declaration of death from the wife of Mr. XXXX XXXX XXXX, dated XXXX XXXX XXXX 2020; M. Coffin and burial arrangement pictures of Mr. XXXX XXXX XXXX; [21] At the outset, I must note again that counsel failed to provide detailed submissions as to how this evidence meets the requirements of the Rule 29(4) and section 110(4). [22] Nonetheless, I have independently examined the documents and note that they post-date the filing of the appeal record and concern new events, and, as such, they could not have been filed at the same time as the appeal record. The documents relate to the death of the Appellant's brother, which is relevant to the issue of the risk that the Appellant faces in Nigeria. The documents appear credible on their face. The documents meet the requirements of Rule 29(4) and section 110(4) and are therefore admissible as new evidence before the RAD. STANDARD OF REVIEW [23] The RAD is required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. Although in exceptional situations where the RPD had a meaningful advantage, the RAD can defer to its findings. In this case, the applicable standard of review is that of correctness.2 ANALYSIS Credibility [24] Although, I do not agree with all of the RPD's conclusions of non-credibility as they relate, for example, to the Appellant's experience on farming and the authenticity of the Appellant's father's will, I find that several central areas remain problematic in the Appellant's evidence, which I address below. [25] At the outset, I am satisfied that the errors in the will are typographical errors. The Appellant has submitted a sworn affidavit (Document C listed above) from the legal practitioner who had drafted the will, attesting to the misspelling of one letter in the Appellant's name (the beneficiary of the will). I am also of the view that the use of the pronoun "her" instead of "him" on one occasion in a legal document does not render it fraudulent or unauthentic. The RPD erred on this point. [26] I do take issue, however, with the lack of corroborating evidence regarding the allegations of attacks on the claimant and the murder of his brother, XXXX XXXX XXXX, by his half-brother XXXX. The RPD did not err in concluding that the lack of documentation relating to key incidents in the Appellant's claim undermine his credibility. [27] The federal Court held that the Commission can require corroborative evidence in situations where the applicant can be reasonably expected to have such evidence available to them.3 Although the Appellant indicated that he had filed a petition with the police regarding the attack against him in XXXX 2015 and that a police report existed with respect to the assassination of his brother in XXXX 2016, he did not provide a satisfactory explanation as to why he failed to submit these documents in evidence before the RPD, nor did he ask for an extension of time to file this evidence. As explained above, I deemed these documents inadmissible on appeal. [28] I find that the Appellant's credibility is thereby undermined as to the attack of XXXX 2015 and the murder of his brother, XXXX XXXX XXXX, by his half-brother XXXX. The RPD did not err on this point. [29] I also agree with the RPD that the Appellant has not established that the incident of XXXX 2016 was an attempt on his life by his brother XXXX. The Appellant explained, at the hearing, that he did not see who shot at him, but assumed it was the same 'thugs'. The Appellant also failed to provide a reasonable explanation as to why he wrote, in his basis of claim form (BOC), that his car was riddled with bullets, while at the hearing he said that only one bullet hit his car. Given the other credibility concerns, I find that the Appellant has not established, on a balance of probabilities, that his half-brother and his allies attempted to kill him. The RPD did not err on this point. [30] That said, I find that the IFA is the determinative issue in this case. Consequently, I will not examine the rest of the credibility conclusions and arguments as they do not bear on the IFA analysis. Internal Flight Alternative (IFA) The Legal test [31] The test for the IFA is twofold.4 Firstly, the tribunal must be satisfied, on a balance of probabilities, that the appellants will not be exposed to a serious possibility of persecution or to any of the risks enumerated in section 97(1) of the IRPA, namely a risk to their lives, torture or cruel and inhumane treatments or punishments, in the proposed IFA locations. The analysis of the risk is prospective in nature and must be done on the basis of the events lived by the appellants, their personal profiles and the objective country documentation. [32] Secondly, the tribunal must ensure that it will not be unreasonable or unduly harsh, in light of all circumstances including those particular to the appellants, for them to seek refuge in the IFA locations. The onus is on the appellants to demonstrate that there is no viable refuge in a different part of the country, before resorting to international protection. [33] As explained below, I find that the appellant has not established a prospective risk of persecution in the IFA locations. Appellant's additional submissions [34] Because the IFA is a new issue on appeal, which was not addressed by the RPD in its decision, the Appellant was provided with the opportunity to make submissions on the viability of an internal flight alternative in Benin City and Ibadan, based on the updated Country Documentation Package of November 30, 2020. The Appellant filed his submissions with the RAD on January 27, 2021. [35] The Appellant argues that he will not be safe from the reach of his persecutors anywhere in Nigeria. It would take less than a few clicks to locate anyone in Nigeria through social media platforms such as Facebook, Twitter, Instagram, etc. Moreover, his persecutors rely on corrupt state security agents, their political strength and magical strength ("juju") to locate the Appellant anywhere in the world. He adds that, prior to coming to Canada, the Appellant attempted to hide from his persecutors, however they left no stone unturned and were gradually closing rank on him. Benin city is in close proximity to Auchi, where the Appellant was persecuted. [36] Furthermore, it is argued that socio-political differences, the inequities between "indigenes" and "settlers" and the prevailing political situation makes an IFA a far-fetched reality. As a farmer, he would not have access to land to earn a livelihood in Benin City, and, as a Yoruba, he would be met with stiff opposition. Moreover, Benin City is rampant with human trafficking, putting the Appellant's wife and daughter at risk in that city. It would be unduly harsh and unreasonable to return to a country where he has been persecuted, attacked, assaulted and harmed. [37] With respect to Ibadan, the Appellant alleges that he is the fourth generation in his family who descended from Ibadan. Numerous relations and family members who were not in support of the Appellant's father testament still live there. Thus, Ibadan is far from a secure place for the Appellant and his family to relocate. [38] Moreover, the Appellant submits that safety is a rare commodity in Nigeria, in light of the violence of Boko Haram, as well as the conflicts between the Muslim herdsmen and Christians in Nigeria. [39] Finally, it is submitted that the Appellant's brother, Mr. XXXX XXXX XXXX, was assaulted because he was updating the Appellant about the moves and plans of the perpetrators to locate him. This led to his death on XXXX XXXX, 2020. Any attempts to secure any help to protect Mr. XXXX XXXX XXXX proved abortive. Currently, it is submitted that the Appellant's wife and children are hiding at the in-law's house. No prospective risk was established in the IFA location [40] I take note of the Appellant's submissions that Ibadan is not a safe place as numerous family members who were not in support of the Appellant's father testament live there. [41] That said, I am of the view that the Appellant could safely relocate to Benin City. More specifically, I find that the Appellant has not established that his persecutors have the motivation and the capacity to find him in the IFA location. [42] According to the Appellant's BOC and testimony, since he left the country, his half-brother XXXX has taken over his coco farm and has rented it. The Appellant also testified that his brother XXXX is in possession of the deed of the farm, having seized it from his late father's home. This shows that his persecutor has attained his goal of taking possession and exploiting the farm in his own interest. As such, the Appellant no longer represents an obstacle to XXXX plans. Although I am cognizant that the Appellant is being deprived of property that legally belongs to him, this does not qualify as persecution under the . [43] Furthermore, the Appellant has not established, on a balance of probabilities, that his agent of persecution has attempted to track him down in order to harm him since he left the country. [44] According to the Appellant's testimony, since he left Nigeria until XXXX 2018, his wife and children have been living in XXXX village Ogun State, with family members, with no incidents or contact from the assailants. They then moved to Alagbado for school, where they are today, according to the Appellant's testimony. The Appellant explained that XXXX and his half-brother do not know where his family lives. Although the Appellant testified that XXXX had contacted his brother XXXX to ask about his whereabouts after he left Lagos and threatened that he will kill him, this information is not mentioned in his BOC, nor in his brother's XXXX affidavit5. [45] The appellant submitted, in his additional observations filed in XXXX 2021, that his brother, XXXX XXXX XXXX. was assaulted, which lead to his death on XXXX XXXX, 2020. The Appellant filed a number of documents, as new evidence, to attest to his death (Documents J-M). [46] I note that, according to the Medical certificate of cause of death, the primary cause of death of XXXX XXXX XXXX was XXXX XXXX, and the secondary cause was assault. The sworn declaration of the deceased's wife corroborates that XXXX XXXX XXXX died as a result of assault and XXXX XXXX. However, nothing in this evidence establishes that the assault was linked to XXXX, the other half-brother, or that it was connected to the property dispute. [47] Although it is being submitted that the deceased was assaulted because he was updating the Appellant about the moves and plans of the perpetrators to find the Appellant, I cannot accept as evidence, allegations solely submitted in the argumentation. [48] Furthermore, I note that the Appellant waited almost three months to submit any evidence regarding the death of his brother, XXXX XXXX XXXX, before the RAD. The highly fortuitous timing of filing this evidence - only after the request for additional submissions from the RAD on the IFA- undermines any allegation that the brother's death was related to the Appellant and the property dispute. [49] I therefore conclude that there is insufficient evidence to establish that the Appellant's brother, XXXX XXXX XXXX, was killed in connection with the XXXX XXXXdispute or that the Appellant's perpetrators have tried to locate him or his family since he left the country, more than three years ago. [50] Finally, it has not been established, on a balance of probabilities, that the Appellant's perpetrators would have the means or the capacity to find the Appellant in Benin City. [51] At the outset, I note that Benin City is a major urban centre with a population numbering 1.7 million people. Thus, it provides an adequate level of anonymity for people seeking refuge from a non-state actor, such as the alleged persecutor in this case.6 [52] The Appellant alleges that his half-brother, XXXX, is politically connected and that the police did not take any action against him. The Appellant testified that XXXX is a member of the ruling party, APC, and that he works for the transportation union, which is used by politicians to rig elections, and that everybody knows XXXX and fears him. [53] To this end, I first note that the Appellant's allegations regarding the assaults in XXXX 2015 and XXXX 2015 and the alleged murder of his brother, XXXX XXXX XXXX, by his half-brother XXXX were deemed not credible. The Appellant failed to provide admissible evidence that the police was involved in any of these alleged events. Secondly, the Appellant has not established that his agents of persecution have an influence over the police or Nigerian authorities such that they would be able to enlist their help to search for him across the country; or that they rely on corrupt state security agents, their political strength and magical strength ("juju"), to locate the Appellant anywhere in the world. The evidence on this is, at best, speculative. [54] I further note that the Appellant was able to relocate to Edo State for XXXX months, without being found by the alleged agents of harm. As to the Appellant's argument that it takes less than a few clicks to locate anyone in Nigeria through social media platforms such as Facebook, Twitter, Instagram, etc, as true as that may be, the Appellant has not established that maintaining such accounts are necessary for his relocation or livelihood. I am of the view that it is reasonable to expect that if the Appellant took the necessary precautions on social media to protect his privacy, his location could not be revealed. [55] I, therefore, conclude that the Appellant has not established a prospective risk from his brother XXXX and his allies if he were to relocate to Benin City. It is not unreasonable or unduly harsh to relocate to the IFA [56] The Federal court has set up a very high threshold for the unreasonableness test. In Ranganathan, the Court stated that: it 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.7 [emphasis added] [57] The Appellant argues that as a farmer and a non-indigene, he would not be able to earn a living in Benin City. He submits that as a Yoruba, he will be met with opposition. [58] According to the documentary evidence, Nigerians can and do freely relocate internally.8 Although there is a high rate of unemployment in Nigeria, the Appellant has not established, with "actual and concrete" evidence, that he will be unable to find any employment in Benin City. [59] The ability to find gainful employment in large cities in Nigeria is facilitated by a good level of "education, experience and expertise."9 The Appellant has a university degree in XXXX and has worked for XXXX XXXX XXXX, a big international company, as XXXX XXXX in the XXXX XXXX from 2003 to 2015.10 He has also acquired experience in XXXX XXXX from 2011 to 2016. I am of the view that his high level of education and experience weight in his favor. [60] Additionally, the Appellant speaks English, Nigeria's official language, as well as Yoruba.11 All residents of cities speak English.12 Benin City is a major urban center, where issues of indigeneity are not considered an important obstacle culturally, or in finding employment in the private sector.13 While relocation can be difficult to anyone, neither the documentary evidence, nor the Appellant's evidence, establishes that he will not be able to earn a livelihood in Benin City or that he will suffer undue hardship because he is Yoruba. [61] Finally, nothing in the objective evidence establishes that the risk of human trafficking, kidnapping, violence from Boko Haram, or Fulani herdsmen are such in Benin City that it would make relocation unreasonable, nor that the Appellant or his family would be more susceptible to such violence than the general population. [62] Based on the foregoing, I conclude that the Appellant has a viable IFA in Benin City. CONCLUSION [63] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD pursuant to which the Appellant, Mr. XXXX XXXX XXXX, is neither a Convention refugee, nor a person in need of protection pursuant to sections 96 and 97 of the IRPA. [64] The appeal is dismissed. (signed) Bianca E. Suciu Me Bianca Eleonora Suciu February, 25, 2021 Date BES/cl 1 Refugee Appeal Division Rules, SOR/2012-257, Rule 29(4). 2 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93, at paras 70-74; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at p. 90-91. 3 Lopera v. Canada (Ministre de la Citoyenneté et de l'Immigration), 2011 CF 653 (CanLII), at paras 29-34 ; Wokwera v. Canada (Citoyenneté et Immigration), 2012 CF 132 (CanLII), at para 39. 4 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA). 5 See RPD-1, RPD's Record, at pp. 104-105. 6 RAD-2, National documentation package (NDP) for Nigeria (November 30, 2020), item 1.17 : Country Policy and Information Note. Nigeria: Internal relocation. Version 1.0., United Kingdom. Home Office, March 2019, at para 3.2.2. 7 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, at para 15. 8 Supra footnote 6, NDP for Nigeria, item 1.17, at para 5.2.2. 9 RAD-2, National documentation package (NDP) for Nigeria (November 30, 2020), item 13.1: ?Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; obstacles faced by non-indigenes when relocating to Abuja, Lagos or Port Harcourt; assistance available to those who relocate (2017- October 2019), Immigration and Refugee Board of Canada, 30 October 2019, NGA106361.E, at p. 14.; item 1.26 : Nigeria: The socio-economic situation, including demographics, employment rates, economic sectors, and crime rates, as well as access to education, health care and housing, particularly for the cities of Lagos, Ibadan and Benin City (2018-November 2020), Immigration and Refugee Board of Canada, 12 November 2020, at p. 2. 10 See RPD-1, RPD's Record, IMM5669, at p. 54. 11RAD-2, National documentation package (NDP) for Nigeria (November 30, 2020), item 1.15: Nigeria. L'aménagement linguistique dans le monde. L'aménagement linguistique dans le monde. Jacques Leclerc. 4 July 2017, at pp. 2-3. 12 RAD-2, National documentation package (NDP) for Nigeria (November 30, 2020), item 1.26 : Nigeria: The socio-economic situation, including demographics, employment rates, economic sectors, and crime rates, as well as access to education, health care and housing, particularly for the cities of Lagos, Ibadan and Benin City (2018-November 2020), Immigration and Refugee Board of Canada, 12 November 2020, at p. 2 13 RAD-2, National documentation package (NDP) for Nigeria (November 30, 2020), item 13.1: ?Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; obstacles faced by non-indigenes when relocating to Abuja, Lagos or Port Harcourt; assistance available to those who relocate (2017- October 2019), Immigration and Refugee Board of Canada, 30 October 2019, NGA106361.E, at p. 13. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MB9-27906 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