TB8-11314

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 File / Dossier de la SAR : TB8-11314 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision January 9, 2019 Date de la décision Panel Delia Lewis Tribunal Counsel for the person(s) who is(are) the subject of the appeal Ochiemuan Okojie Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD), dated April 19, 2018, rejecting her claim for refugee protection. The Appellant alleges that she was forced to marry her uncle's friend, XXXX XXXX, in 2012. She claims that her husband died on XXXX XXXX, 2014 and she fears persecution in Nigeria from her late husband's family and kinsmen who are forcing her to marry her late husband's eldest son in accordance with their tribal custom. [2] In XXXX 2015, the Appellant fled Nigeria for the United States with a new common-law partner. In XXXX 2016, she crossed the border into Canada alone. She claims that she is no longer in contact with her common-law partner. In September 2017, when the Appellant was 35 years of age, she suffered a XXXX XXXX. As a result, she must use a cane for short-distance walking and a wheelchair for long-distance travelling and it is extremely difficult for her to travel, work and care for herself.1 [3] The RPD rejected the Appellant's claim on the basis that, on a balance of probabilities, her identity had not been established, and she had not presented a reasonable explanation for why she had not taken steps to confirm her identity since arriving in Canada. The Appellant submits that the RPD erred by failing to accept her identity evidence as sufficient and to correctly assess the severity of her medical condition. In addition, she requests that the Refugee Appeal Division (RAD) admit new evidence including her recently issued passport. [4] I find that the determinative issues in this appeal are identity, credibility and internal flight alternatives (IFA). I find that the Appellant is a Convention refugee under s. 96 of the Immigration and Refugee Protection Act (IRPA) because she faces a serious risk of gender-related persecution in the form of forced marriage in Nigeria. DETERMINATION [5] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. ANALYSIS Role of the RAD [6] The RAD reviews RPD decisions on a standard of correctness. In limited circumstances, the RPD may have a meaningful advantage over the RAD in assessing evidence that was before the RPD. In those cases, the RAD will show deference to the RPD. In this appeal, I have applied the correctness standard unless specifically stated otherwise. Admissibility of New Evidence [7] The Appellant submitted the following new evidence related to the Appellant's Nigeria passport application in Canada with the Appellant record on May 30, 2018: - An affidavit from the Appellant dated May 28, 2018 in which she states that after the RPD rejected her claim, her pastor went with her to Ottawa to apply for a new passport which had not yet been issued;2 - An affidavit from the Appellant's pastor, XXXX XXXX XXXX, dated May 29, 2018 in which he states that he and the Appellant attend the same church and that he accompanied her to the Nigerian High Commission Office in Ottawa to apply for a Nigerian passport;3 and - A copy of a computer-generated receipt for the new E-passport from the Nigeria Immigration service passport office in Ottawa for XXXX XXXX XXXX.4 [8] I find that these affidavits are new and were not previously available therefore they pass the s. 110(4) test. I also find that the affidavits pass the Singh/Raza factors because they relate to the central issue of identity in this claim and appear on their face to be credible as they are both sworn affidavits and the pastor's affidavit is accompanied with photo identification. Therefore I allow these affidavits to be admitted as new evidence. The E-passport receipt is undated but it does bear a file number, receipt number and enrolment ID number, and appears, on a balance of probabilities, to be credible. As I have no reason to doubt the Appellant's claim that the receipt is new, I find that the E-passport receipt also meets the applicable tests and is admissible as new evidence. [9] The Appellant's passport was later issued on XXXX XXXX, 2018 and the Appellant also requests that the RAD admit her recently issued passport as new evidence. The passport is an Economic Community of West African States (ECOWAS) passport and was issued in the name of XXXX XXXX XXXX from the authority in Ottawa, Canada, and expires on XXXX XXXX, 2023. On October 23, 2018, the Appellant filed an application to submit this new passport under RAD Rules 29 and 37 as new evidence not previously provided. Counsel argues the following grounds for this application: - the passport was not reasonably available to the Appellant at the time of the submission of the Appellant's record; - the passport meets the new evidence requirements of s. 110(4) because it arose after the rejection of the Appellant's claim; - the new evidence is relevant to the central issue of identity in the Appellant's claim; and - if the passport is rejected as new evidence, the Appellant will suffer procedural unfairness and injustice. [10] In support of this application, the Appellant also submitted an affidavit in which she states that when she filed the appellant's record, she had applied for her Nigerian passport at the Nigerian High Commission in Ottawa, however it had not yet been issued.5 [11] I have reviewed the Appellant's submissions and examined the original ECOWAS passport. I find that the passport meets the s. 110(4) criteria because it is new and was not previously available. The passport has the following features which the national documentation describes as features of valid ECOWAS passport:6 the front cover has an ECOWAS emblem; the back cover has the Nigerian coat-of-arms; it is the correct colour, is valid for five years, and has the correct number of pages; the biodata page appears to be consistent with the national documentation; and the inner pages have appropriate watermarks and holographic security features. I also find that the passport meets the Raza/Singh factors as it is credible because it appears to be authentic, is new, and relates to proving the central issue of identity in this case. Therefore, I allow the application and find that the passport is admissible as new evidence. Merits of the Appeal [12] The Appellant submits that the RPD erred by ignoring relevant testimony; failing to accept her identity evidence as sufficient; and by failing to correctly assess the severity of her medical condition. [13] In determining this appeal, I have considered the Chairperson Guideline 4: on Women Refugee Claimants Fearing Gender-Related Persecution7 as this claim contains allegations of forced marriage which is a form of gender-related violence. I have also considered the Chairperson Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada8 as counsel requested that the Appellant be designated a vulnerable person due to her medical condition. The RPD did not err by failing to accept the Appellant's identity evidence as sufficient [14] The Appellant stated in her Basis of Claim (BOC) form9 that her name was "XXXX XXXX XXXX," her nationality was "Nigerian," and her date of birth was XXXX XXXX, 1982. The only identity document the Appellant had at the time of the RPD hearing was a copy of a declaration of her age sworn by her aunt.10 During the RPD hearing, the Appellant testified that she did not have any documents from Nigeria with her name, date of birth and photograph.11 However, she did testify that she had been issued a Nigerian passport approximately three years before she left Nigeria but she did not know where it was but last remembered having it when she entered the United States.12 She also testified during the hearing that she had never had a driver's license or a national identification card, but that she had a voter's card that she left in Nigeria.13 [15] With regard to secondary identity documents, the Appellant testified that she had finished secondary school but did not have a diploma or any school records.14 When asked by the RPD Panel whether she had made any attempts to contact the High Commission of Nigeria since she had come to Canada to obtain a passport or other identity documents, the Appellant replied that she had not because doing so would be expensive because things are very expensive in Canada.15 The RPD found that the Declaration of Age alone had little probative value as it did not include a photograph, physical description or biometric information. Based on the lack of probative identity documentation, the RPD found that the Appellant had not met the burden of producing acceptable documentation to establish her identity on a balance of probabilities or made reasonable efforts to do so. I have independently reviewed the Declaration of Age, the Appellant's BOC and the transcripts of the RPD hearings, and based on the record that was before the RPD, I agree with the RPD and find that it did not err in its identity determination. The Declaration of Age alone was not adequate proof of the Appellant's identity. The new evidence before the RAD establishes the Appellant's identify [16] Since the hearing the Appellant has applied for and obtained an ECOWAS passport which was admitted as new evidence in this appeal. Based on my examination of the original passport discussed above, I find that the passport appears to be authentic and establishes the Appellant's identity on a balance of probabilities. I will now turn to the issues of credibility, state protection and IFA because identity is no longer an issue in this appeal. The Appellant's allegations are credible and Nigerian state protection is inadequate [17] The Appellant's claim is fully set out in her BOC.16 She alleges that in 2012 when she was 30 years old, her uncle forced her to marry his friend, XXXX XXXX, who was in his sixties. The Appellant's uncle threatened to put the Appellant and her mother out of his home if the Appellant did not marry his friend. Because of this threat, the Appellant married XXXX XXXX on XXXX XXXX, 2012 and went to live with him as his fourth wife. She alleges that when she moved in with him, he abused her and his other wives verbally abused her and accused her of marrying the XXXX for his wealth. [18] The XXXX died in XXXX 2014 and the Appellant has provided his death certificate as supporting documentation.17 The death certificate bears the seal of the Nigerian National Population Commission and states that the XXXX XXXX XXXX died at age 66 on XXXX XXXX, 2014. Based on the certificate's form and content, it appears to be authentic on a balance of probabilities. The Appellant alleges that because she was the youngest of his wives, his family and kinsmen told her that she had to marry his first son, who was 48 years old at the time and already had two wives, after the traditional thirty days of mourning. The Appellant claims that she fled from her family in XXXX to XXXX in XXXX 2014 before the period of mourning had ended. The Appellant alleges that she lived with her friend XXXX and supported herself by helping XXXX at her store which sold provisions. She claims that she met a man named XXXX in December 2014 at the store and moved in with him in March 2015. [19] The Appellant alleges that on May 15, 2015, her late husband's son and his thugs traced her to XXXX and visited XXXX. The Appellant alleges that the men said that they had information that she had been living with XXXX and was with another man. The Appellant claims that XXXX told her late husband's son that she had not seen the Appellant. She states that the men did not believe her and searched the house before threatening that they would continue to look for her and her new partner. The Appellant claims that as soon as the men left, her friend XXXX called her and the following day she fled to Lagos with XXXX where they stayed with her partner's friend XXXX. [20] The Appellant and XXXX hid in Lagos until XXXX 2015 when they travelled to the United States with the help of an agent. The Appellant claims that they lived with an agent in the United States and that she crossed the border into Canada alone on XXXX XXXX, 2016. She alleges that at the time she had been assured that her partner would cross into Canada later to join her but she has since lost contact with him. [21] The Appellant's evidence before the RPD included the following affidavits: - An affidavit from the Appellant's mother, XXXX XXXX, dated May 17, 2016 in which her mother states that her daughter was forced to marry the XXXX and abused by the XXXX and his other wives. The Appellant's mother also states that her daughter fled because her late husband's family was trying to force her to marry her late husband's son and that his family and thugs went to her home twice looking for her daughter. The Appellant's mother further states that her daughter will not be safe in Nigeria because her late husband's son and his thugs have threatened to harm her when they find her.18 - An affidavit from the Appellant's friend, XXXX XXXX, dated April 5, 2016 stating that the Appellant fled her late husband's family and son and came to live with her in XXXX on July 22, 2014. She also states that the Appellant's late husband's son and his thugs came looking for the Appellant at her place but that she told them that she had not seen her and then called the Appellant to tell her that the men were in XXXX looking for her and her partner.19 [22] Both the above affidavits were sworn before a Commissioner for Oaths and appear on their face to be genuine. The contents of both affidavits are consistent with the Appellant's narrative and corroborate the Appellants central allegations that: she has been the victim of forced marriage; she was abused by her husband and his wives; and she fled Nigeria because she now fears that she will be harmed and forced to marry a second time, this time to her late husband's son. The objective national documentation for Nigeria includes a Response to Information Request (RIR) on the prevalence of forced marriage in Nigeria.20 The RIR states that there is a high incidence of forced marriage and that the prevalence of this traditional practice is higher where the cultural and religious practice of polygamy is practiced.21 [23] There have been legislative attempts to protect children from forced marriage but, as of the date of the relevant National Documentation package, there was no legislation in place to protect adults from forced marriage.22 The research states that there are a few other laws which can be creatively employed to protect victims but many people will not go to the courts because forced marriage is considered to be cultural and people are reluctant to question customs.23 In addition, the Women's Rights Watch Nigeria project coordinator stated that the men that women are forced to marry are usually old.24 The objective research states that a woman's ability to refuse a forced marriage or escape is contingent upon the family and her level of education. The consequences for refusing a forced marriage could include total neglect and ostracism, and could be dangerous for the victim as there have been cases of women being beaten, raped, or killed and having their legs or hands cut off for trying to escape.25 Based on the national documentation, the Appellant's documentary evidence and testimony, I find that the Appellant has established, on a balance of probabilities, that she has been persecuted by her late husband's family. [24] In her testimony before the RPD, the Appellant stated that she did not report the abuse by her late husband and the threats made against her by her late husband's family and son to the police because her late husband was a very popular and rich XXXX and the police were his friends.26 The RIR on forced marriage did not find evidence that Nigeria provides any protection for women who refuse forced marriages or any legislation that supports women's marital decisions.27 The research does however mention a case where a woman who was forcibly married to a Nigerian senator took her case to the Nigerian High Court and the judge ruled that the case was under the jurisdiction of the Islamic court and federal court did not have the jurisdiction to intervene in such matters. In that case, the judge also indicated that forced marriage was not a violation of the woman's human rights and dismissed the case.28 [25] The onus is on appellants before the Board to demonstrate that they have sought state protection and that the state protection available was inadequate. In this case, the Appellant did not seek state protection. As this is a case of persecution related to gender-based violence, I am mindful of the Gender Guideline which states that in such cases, the testimony of the Appellant herself may be considered when assessing state protection. Because of the abuse the Appellant suffered at the hands of her late husband who benefited from his wealth and his community standing as a XXXX, I find it more likely that not that the Appellant believed that the state would not protect her and that seeking protection may have placed her in greater danger. I find that based on the evidence this was a reasonable belief for the appellant to have on a balance of probabilities. While the onus is on appellants to demonstrate that they have sought state protection, they are not required to do so if this would place them at risk of being harmed. In my view, taking the Appellant's testimony into consideration along with the clear and convincing evidence of a lack of state protection provided in the RIR, I find that there is no adequate state protection for the Appellant in Nigeria. The Appellant does not have a viable IFA [26] The RPD did not address the issue of IFA in its reasons. However, during the hearing, the RPD did identify the cities of Lagos and Port Harcourt as potential IFAs. The IFA analysis is a two-part test which requires the RAD to determine that (1) there is no serious possibility of persecution or risk to life, or risk of cruel and unusual treatment or punishment, or danger of torture in the IFA; and (2) it would not be objectively unreasonable or unduly harsh for the Appellant to relocate to the proposed IFA. [27] With regard to the first part of the IFA test, the Appellant testified that her late husband's family remains motivated to force her into a traditional marriage. She claimed that neither Lagos nor Port Harcourt were viable IFAs because her late-husband's family has oil and gas business interests in these cities where they are well known and could find her through their network. In my view, the Appellant's testimony demonstrates a mechanism through which she could be located in either of these cities and describes the reach and influence of her persecutors, which may be probative evidence related to the possibility of persecution according to the Board's jurisprudential guide on IFAs in Nigeria.29 I find that the Appellant's allegation that her persecutors remain motivated to find her is credible on a balance of probabilities. Therefore, based on this first part of the test, I find that the Appellant does not have a viable IFA as I have already determined that there is not adequate state protection for the Appellant in Nigeria. [28] Furthermore, even if I advance to consider the second part of the IFA analysis, I find that the identified IFAs are not objectively reasonable under the Appellant's circumstances. The Appellant is a single woman who only has a secondary school level of education. She has never worked in Nigeria as she was previously supported by her family and then her late husband. Due to the severity of her XXXX, she has limited mobility and is unable to live independently. As a result, it is extremely difficult for her to travel, work and care for herself, and she has no family in either identified IFA who can offer her support. [29] The national documentation demonstrates that Nigeria has fewer medical services than Canada and many of these services must be paid for privately. The mere fact that there may be fewer mental health and medical services or that they may only be available privately does not mitigate against the suitability of an IFA.30 However, the objective national documentation indicates that Nigerians, such as the Appellant, who have not worked in Nigeria would not have a disability pension as the pension is calculated based on the insured's account balance and life expectancy.31 Because of the financial hardship the Appellant would more likely than not face in Nigeria, it would be very difficult for the Appellant to access the medical services she requires in Nigeria. In light of the Appellant's personal circumstances, I find that it would be objectively unreasonable and unduly harsh for the Appellant to relocate to either IFA. [30] Based on the above analysis, I find that the Appellant is a Convention refugee because I have determined that the Appellant's allegations of persecution are credible on a balance of probabilities and she has neither state protection nor viable IFA in Nigeria. CONCLUSION [31] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Delia Lewis Delia Lewis January 9, 2019 Date 1 RPD-1, RPD Record, Exhibit 9, page 87, Medical record correspondence. 2 P-2, Appellant's Record, Affidavit of XXXX XXXX XXX, dated May 28, 2018 at paragraphs 15-17. 3 Ibid., Affidavit of XXXX XXXX XXX, dated May 29, 2018 at paragraphs 2-4. 4 Ibid., Exhibit C at page 82. 5 P-2, Affidavit of XXXX XXXX XXX, dated October 23, 2018, at paragraph 7. 6 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria dated November 30, 2017, Document 3.20 "Passports, including whether passports from the Economic Community of West African States (ECOWAS) are issued in Nigeria; information included in the passport; security measures to detect passport fraud; procedures for issuing passports within Nigeria...", Source: Immigration and Refugee Board of Canada, 4 November 2015. 7 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guideline). Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa March 9, 1993 amended November 1996. 8 Chairperson Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB (the Vulnerable Persons Guideline). Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa December 2006 amended December 2012. 9 RPD-1, RPD Record, BOC, Exhibit 2. 10 RPD-1, RPD Record at page 50. 11 Transcript of March 27, 2018 RPD hearing pages 6-7. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. at page 8. 16 Supra note 9. 17 RPD-1, RPD Record, Exhibit 4, page 57. 18 RPD-1, RPD Record, Exhibit 4 at page 52. 19 Ibid. at page 53. 20 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Nigeria dated November 30, 2017, Document 5.7 "Nigeria : Prevalence of forced marriage, particularly in Muslim and Yoruba communities; information on legislation, including state protection; ability of women to refuse a forced marriage" Source: Response to Information Request, 9 November 2012. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Transcript of March 27, 2018 RPD hearing at pages 23-24 and Transcript of June 7, 2017 RPD hearing at page 41. 27 Supra note 20. 28 Ibid. 29 RAD jurisprudential guide addressing IFAs within Nigeria X (Re), 2018 CanLII 52123 (CA IRB) IRB decision TB7-19851, L. Gamble, May 17, 2018 at paragraph 34. 30 Ibid. at paragraph 29. 31 RPD-1, RPD Record, Exhibit 3, Nigeria National Documentation Package dated 30 November 2017, Document 1.24 "Nigeria. Social Security Programs Throughout the World: Africa, 2017," Source: United States Social Security Administration, Date: September 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11314 RAD.25.02 (September 18, 2018) Disponible en français 13 RAD.25.02 (September 18, 2018) Disponible en français