TB9-05168

RAD File / Dossier de la SAR : TB9-05168 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 7, 2020 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal Ezinwanne Jacqueline Ozor 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 allow this appeal. XXXX XXXX XXXX (the Appellant) is a citizen of Nigeria. She claims that she faces persecution in Nigeria from her husband's family. Having reviewed the evidence, I have allowed the appeal. I substitute my own decision that the Appellant is a Convention refugee. BACKGROUND [2] The Appellant is married and has three children. She and her husband are from Benin City, Nigeria. Currently, her husband and one child live in the United Kingdom (UK). She bases her claim on the following. [3] The Appellant fears persecution in Nigeria at the hands of her in-laws (the family) as they demand that she undergo cleansing rituals, including female genital mutilation (FGM). Against the wishes of his family, the Appellant and her husband were married at court in 2009. She then left Nigeria to join him in the United Kingdom on XXXX XXXX, 2010. In 2014, they returned to Nigeria for their church wedding. After their arrival, the family held a meeting in which they accused the Appellant of adultery and demanded that she undergo a cleansing ritual and ceremonial rites to be accepted as a wife. The Appellant and her husband were held hostage at the family home until the Appellant's father arrived with police. The police, however, were unwilling to intervene after their release as it was a domestic matter. After their release, the Appellant and her husband travelled to Lagos to await their return flight to the UK. While in Lagos, two men from the family attempted to abduct the Appellant. The Appellant and her husband then left Lagos and travelled to Ogun State where they stayed with a friend until they were able to get an earlier flight. While in the UK, the Appellant continued to receive threatening calls from the family; however, she did not report these to the police, as she was worried about affecting her husband's status as well as the implications to her parents back home. The family attributes any misfortune that befalls the family to her refusal to undergo the rites. In XXXX 2017, the Appellant's XXXX XXXX XXXX XXXX XXXX travelled to the UK to stay with the Appellant and her husband. In XXXX, her XXXX XXXX XXXX XXXX XXXX initiated a family conference call which led to a violent altercation with the Appellant. At this time, the Appellant and her husband began to experience marital difficulties, as he began to side with his family. The Appellant left the UK for Canada on XXXX XXXX, 2018. [4] The Appellant claimed protection in Canada. The Refugee Protection Division (RPD) found that the Appellant was not a Convention refugee nor a person in need of protection. It found that the Appellant had an internal flight alternative (IFA) in Abuja, Lagos and Port Harcourt. The Appellant has appealed to the Refugee Appeal Division (RAD). [5] After the appeal was perfected, the Appellant provided additional submissions on an updated version of an Immigration and Refugee Board (IRB) Response to Information Request (RIR) that was in place at the time of the submissions. However, in so doing, she failed to do so through a Rule 37 application. Rule 29(2) clearly states that new submissions must be brought through a Rule 37 application. However, Rule 52 states that the RAD may do what is necessary to deal with the matter. Further, as the RAD may consider the most recent National Documentation Package (NDP) at the time of writing the decision,1 and this same RIR is included in the most recent NDP, the submissions are relevant and address the evidence on record. The RIR was updated in November 2019, after the appeal was perfected, and the Appellant could not have provided the submissions with the record. I will consider the Appellant's additional submissions. Further, I have considered the most recent NDP at the time of writing this decision, namely, that of November 30, 2020. [6] The Appellant also provided new and late evidence, which is addressed below. NEW AND LATE EVIDENCE [7] The new evidence presented by the Appellant is not accepted onto the record. [8] The Appellant provided the following evidence with her appeal record: (a) affidavit of the Appellant, dated XXXX XXXX, 2019;2 (b) e-mail, dated XXXX XXXX, 2019, which appears to show a document that came from the Appellant's father and was sent to the law firm; and (c) affidavit of XXXX XXXX XXXX, father of the Appellant, dated XXXX XXXX XXXX 2019;3 and (d) a copy of a newsletter from the "XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2019.4 [9] According to the law,5 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.6 [11] When I consider if the documents are credible, I must consider the source and circumstances of them. The evidence from Nigeria, the e-mail, the father's affidavit, the copy of the newsletter apparently come from a scan from an e-mail address that appears to be the father's e-mail address. However, there is no confirmation that it is. It was sent to an e-mail address, which I have confirmed is the law firm's address by reviewing other documentation on record. The father's e-mail has no dialogue in it whatsoever; there is no salutation, no discussion of the documents, nothing at all. There is insufficient evidence on who owns the intermediary e-mail address. The evidence regarding the source and circumstances is too scarce and vague to find that the documents are credible. This alone is sufficient reason to not accept the documents on the record. [12] I also find that the new evidence is too fortuitous to be credible. In this case, the facts are similar to the Federal Court's decision in Meng in that the timing is suspiciously convenient.7 Further, the content is suspiciously convenient. It is evidence that appears to have been made after the RPD hearing to address an RPD concern. Specifically, it states that the father has ongoing contact with the family when the RPD specifically noted that, in his previous affidavit, he did not state that there was ongoing contact. Further, after the RPD had identified Abuja as an IFA, the father reported that there was a call from Abuja. The newsletter also addresses the concern regarding the length of time that the Appellant is out of Nigeria. This too is very fortuitous. For these reasons, the documentary evidence from Nigeria is not admitted onto the record. [13] The Appellant's affidavit is also not accepted onto the record. This affidavit repeats evidence already on record. To the extent that it addresses the other new evidence, the same considerations apply. I note that, even if it had been admitted onto the record, the content is not sufficient to address the concerns with the other new evidence. LATE EVIDENCE [14] The Appellant did provide an application to provide late evidence in accordance with rule 29. She provided the following as late evidence: (a) affidavit of XXXX XXXX, the Appellant's sister, dated XXXX XXXX, 2019, stating that the Appellant's father had been shot;8 (b) photographs of the Appellant's father in hospital;9 (c) passport bio page and Titre de Séjour Card (France?) of XXXX XXXX XXXX (d) passport issued XXXX XXXX, 2015; and (e) flight purchase and ticket.10 [15] The evidence regarding the father being shot, namely, the affidavit, pictures and passport are not sufficiently relevant and probative to be entered into evidence.11 There is not enough evidence of a link between this incident and the husband's family for this evidence to have sufficient probative value. While the sister states she "strongly believes" that the incident is related to the issues with the husband's family, this is speculative. In addition, the portion of the plane ticket which purportedly shows that the sister flew to Lagos has been cut off. This evidence is not admitted onto the record. ANALYSIS [16] I have reviewed the entire file, including the transcript of the recording of the hearing. Preliminary issues natural justice/procedural fairness [17] The Appellant argues that when the RPD asked the Appellant why she could not live in Abuja, she had tricked the Appellant,12 resulting in the Panel making assumptions and incorrect conclusions. This is a specious argument. It is fair for the RPD to ask open-ended questions. The Appellant was represented by Counsel and given a fair opportunity to present evidence regarding whether or not she could live in any of the three IFAs. Counsel had every opportunity to ask a question regarding the reasonableness of the IFA: the RPD should not be faulted if Counsel did not do so. It is trite law that, once an IFA is raised, the Appellant has the burden of proof to show why it is not viable. The mere fact that the RPD is the first to question does not alleviate the Appellant of this burden of proof. An allegation of a breach of natural justice is a serious concern; this allegation trivializes this concern. Does the Appellant have an IFA in Abuja, Lagos and/or Port Harcourt? [18] The Appellant has argued that the threat of FGM rituals place her at risk. The RPD found that the determinative issue was an IFA. The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam.13 (1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for him to seek refuge there.14 [19] Both prongs must be satisfied to find that the Appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellant to show that she does not have an IFA. The finding of an IFA must be based on a distinct evaluation of the region for that purpose taking into account the Appellant's personal circumstances. An IFA must be a realistic and attainable option. The Appellant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there. [20] As the recent Jurisprudential Guide regarding IFAs in Nigeria has been revoked, I will not be relying on it. The RPD had made credibility findings limited to the IFA. I will address them to the extent that is necessary in this analysis. [21] When considering an IFA, I will address the Appellant's individual characteristics. In this appeal, the Appellant is educated and had been admitted into a XXXX XXXX XXXX XXXX XXXX. She has worked as a XXXX and as a XXXX XXXX. The Appellant has three children. At the time of the hearing, her eldest son was in the UK, and the Appellant's youngest children, a son and a daughter, were with her in Canada. In the submissions, the Appellant takes the position that she would have the children with her. Is there a serious possibility of persecution in Abuja, Lagos and/or Port Harcourt? Lagos is not an IFA [22] At the outset, the RPD erred when it concluded that Lagos was an IFA. This is because it also accepted that the Appellant had been found with her husband in Lagos by the agents of persecution. The Appellant stated that she had been found and chased by them on the street and by the hotel. Having reviewed the record, I do not find any reason to interfere with the finding that the agent of persecution has a presence in Lagos. As the evidence shows that the Appellant was found by the agents of persecution in Lagos, I do not consider it as an IFA. However, in addition to this evidence, the reasoning regarding the remaining IFAs also applies to Lagos. Abuja and Port Harcourt [23] The evidence regarding the reason for the persecution is not always clear. The Appellant, in her Basis of Claim (BOC) form, describes a ritual that brides must undergo by their husband's family. She also alleges adultery. She describes an incident when a family friend stayed at her home when her husband was not present. This incident did not figure prominently in her testimony. But she claims that it led to a demand that the Appellant undergo rituals for cleansing. She also describes an incident where her XXXX XXXX XXXX XXXX XXXX found her working with her XXXX and accused her of XXXX. This led to the demands for FGM. [24] That being stated, the evidence regarding the animosity towards the Appellant is consistent. She has stated consistently that her husband's family blames her for his lack of success and wealth, for having a child with extra digits, and, in general, for any unhappiness that befalls them. I find that it is plausible that they married without telling his family and that his family was angry. I note that the RPD accepted the account of his family locking the Appellant in a room. The Appellant described visiting their house after the wedding and a violent altercation ensued. She testified that they locked her and her husband in a room overnight; her father and the police helped to release her. The RPD made this finding based on the Appellant's demeanour during the testimony at the hearing. It was in a position of significant advantage over the RAD, and I give this finding of credibility deference. [25] The Appellant fits the profile of a woman who would be subjected to FGM. Documentary evidence regarding whether a person can be forced to undergo FGM is mixed. However, it is clear that it is prominent amongst the EDO, which is the Appellant's ethnicity. The documentary evidence states that FGM remains a deeply ingrained cultural practice and is widely embraced by the Edo ethnic group.15 It is prevalent amongst urban, wealthier and more educated people.16 These factors fit the Appellant's profile. [26] Further, I find that it is more likely than not that the husband's brother is a successful and influential businessman. The RPD noted that the Appellant did not submit documentary evidence to support her contention that her brother-in-law had businesses in major cities. However, there was also not an issue noted regarding the Appellant's testimony about his business and flats in major cities. Without a flaw in the testimony, the necessity for documentary evidence is lowered. I find that it is more likely than not that he does have businesses in major cities. Similarly, it is plausible that the brother-in-law has political connections. The Appellant's evidence that the brother-in-law has a friend who was a senator and that he wanted the husband to marry the senator's daughter is plausible. Granted, her testimony regarding his political involvement was not clear. She stated that he was a member of the political party but that he may have changed parties. That being said, the weight of the evidence leads to the conclusion that the brother-in-law has significant influence and is likely to be able to find the Appellant in the major cities, as he did when they were in Lagos. [27] I have considered the passage of time. The Appellant lived in the UK since 2010. She has visited Nigeria but has not lived there since. Arguably, there is a lapse of time since the Appellant has been in Nigeria. However, I accept that the XXXX XXXX XXXX XXXX XXXX visited in 2017, and at XXXX that year, there was a violent altercation. It is plausible that the XXXX XXXX XXXX XXXX XXXX assaulted her at that time of year. This is the last time that the Appellant was in proximity to the agents of persecution, and, even in the UK, there is clear evidence of an extreme level of animosity. In this case, I do not find that the passage of time weighs against a finding that there is a likelihood of persecution. [28] Further, I accept the Appellant's testimony that the police were not helpful. While they were able to release her on one occasion, the police are susceptible to corruption.17 They are likely to find that any problems are a family matter and to refuse to become involved. I do not find that it is likely that there is effective and/or adequate state protection for the Appellant. [29] The weight of the evidence leads to the conclusion that it is more likely than not that there is a serious possibility of persecution for the Appellant in Abuja, Lagos and/or Port Harcourt. However, I also find that it is not reasonable for the Appellant to relocate to these cities. Is it reasonable for the Appellant to relocate to Abuja, Lagos and/or Port Harcourt? [30] I also find that is likely that the Appellant would experience undue hardship to relocate. In so doing, I have considered the Appellant's individual characteristics. She is educated and has worked as a XXXX and as a XXXX XXXX. She would likely have at least two of her children with her. As noted by the RPD, her husband would likely stay in the UK, as he is working there, and one son is there. The Appellant would have some resources. She speaks English. While her husband would not be present, there is insufficient evidence to find that he would not provide some support. However, essentially, she would still be a single woman with children in Nigeria. [31] For each appellant, different factors which constitute the IFA analysis may be more or less important. Some of the barriers that might exist for some appellants would not apply to this Appellant. Language would not be an issue, as she speaks English, and it is the national language of Nigeria. The Appellant is Christian, which is a major religion. All three cities are major cities and issues regarding indigeneship are of less importance in them. [32] However, I find that the Appellant would face significant barriers in the basics of life, namely, housing and employment. In so doing, I have considered the Chair's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.18 It states that In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA. Employment [33] The Appellant is educated and has worked as a XXXX in Nigeria. However, the evidence leads to a conclusion that there are significant barriers to employment. There is a job shortage in Nigeria. According to the Australian Department of Foreign Affairs and Trade, almost 6 million people enter the labour market yearly with only 10% securing employment in the formal sector.19 Further, the employment is geared towards the agricultural industry which hires the most people.20 The evidence is clear that there is discrimination in employment. This can be because of traditional or religion practices, and in a land of fewer employment opportunities, women have a more difficult time then men to find work.21 [34] While her education and background would help her, she is also likely to be a single parent, and there is insufficient evidence that she would have any support from any family members in any of these three cities. She would likely be subjected to sexual exploitation.22 While a doctoral candidate stated that she would need a political connection to obtain employment,23 the evidence shows that the Appellant would only have political connections with the brother-in-law who would not help the Appellant. [35] I find that the Appellant would have significant challenges finding work in any of the three IFAs. She must also do so while ensuring sufficient care for her children. There is insufficient evidence that she would have any family support in the IFA locations to help her with her responsibilities. These factors weigh against the likelihood that the Appellant would be able to find employment. Accommodation [36] The Appellant would be a single mother with children seeking accommodation. [37] There are significant issues with housing. Rent is notoriously steep, and there is a rising housing shortage. According to an IRB RIR: The EASO states that a "housing problem" exists both in Abuja and in Lagos, where there is an estimated deficit of 600,000 and 2.5 million houses, respectively (EU Nov. 2018, 39). A 2016 World Bank report on the housing situation in Nigeria states the following: In Lagos, Ibadan, Kano, and Abuja, the need for housing is rising by about 20 percent a year. Current total output in the formal housing sector is estimated at no more than 100,000 units. While no good data exist, it is clear that the formal sector is only producing a fraction of the total number of urban units needed each year. (The World Bank 2016, para. 18)24 [38] However, it is not only the lack of housing that is a barrier; in addition, single woman have a more difficult time renting accommodations.25 There is significant stigma for single women, and some landlords in major cities do not rent to single women.26 Sometimes, women will ask men to rent accommodation for them.27 [39] In this context, the Appellant would need to have sufficient financial resources to pay the rent or to buy property for herself and her children. The stigma, reluctance of landlords to rent, and the high cost of accommodation would create a significant barrier for housing. [40] The documentary evidence leads to the conclusion that finding housing would be a significant barrier for the Appellant. Cultural Factors [41] Nigeria is a patriarchal society.28 It is a society where women frequently experience gender-based discrimination and violence.29 The Appellant, as a single woman, could be stigmatized which can lead to sexual exploitation.30 In these cities, woman-headed homes are vulnerable; women are less likely to fend for themselves, have less access to services, and are exposed to abuse, including sexual exploitation.31 There is gender inequality for legal rights, access to education, health and financial services.32 The cultural factors in Nigeria present a significant barrier to the Appellant. Summary for whether it is reasonable to relocate to the IFAs [42] The documentary evidence shows that there are issues with a lack of employment opportunities and housing in Nigeria. I have considered the cumulative effect of the issues with employment, housing and culture. I have done so in the context of a single woman with at least two children who does not have family support in the proposed IFAs. There is not any formal state support for relocating, and the Appellant would have to rely on family connections for help,33 which she does not have in the IFAs. The totality of the evidence shows that relocating to and staying in Abuja, Lagos or Port Harcourt would create an undue hardship for this Appellant. While there is evidence that Lagos may be an easier city to relocate to, it is also the city where the agents of persecution were able to find the Appellant. When I consider the IFAs in the totality of the evidence, I find that Abuja, Lagos and Port Harcourt are not IFAs for the Appellant. Are there other IFAs? [43] I have considered whether there would be other IFAs for the Appellant. However, the same issues with employment, accommodation, and culture would apply. Further, she may encounter issues with indigeneship. I also accept that her brother-in-law is very influential and may have the ability to locate her. For these reasons, I do not find that there is another IFA for the Appellant. Summary [44] I have considered the RPD's decision and the grounds of the appeal. There is a serious possibility of persecution in Abuja, Lagos and Port Harcourt. I find that, given this Appellant's individual circumstances, it is not reasonable for the Appellant to relocate and stay in the IFAs. Further, there are not other IFAs for this Appellant. CONCLUSION [45] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Patricia Broad Patricia Broad December 7, 2020 Date 1 Policy on National Documentation Packages in Refugee Determination Proceedings https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx 2 Exhibit P-2, Appellant's Record, at p. 27. 3 Exhibit P-2, Appellant's Record, at pp. 229-230. 4 Exhibit P-2, Appellant's Record, at p. 231. 5 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 6 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FC 385. 7 Meng, Renxian v. M.C.I. (F.C., no. IMM-1102-14), de Montigny, March 23, 2015, 2015 FC 365. 8 Exhibit P-3, Rule 29, Application to Submit Late Evidence, at p. 3. 9 Exhibit P-3, Rule 29, Application to Submit Late Evidence, at pp. 4-6. 10 Exhibit P-3, Rule 29, Application to Submit Late Evidence, at p. 10. 11 RAD Rule 29. 12 Transcript of the RPD Hearing, at p. 97. 13 Rasaratnam v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.). 14 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 15 NDP for Nigeria (November 30, 2020), item 5.28, IRB, RIR NGA105628.E, "Prevalence of female genital mutilation (FGM), including ethnic groups in which FGM is prevalent, particularly in Lagos State and within the Edo ethnic group; consequences for refusal; availability of state protection; the ability of a family ...", September 13, 2016, at p. 5. 16 NDP for Nigeria (November 30, 2020), item 5.28, IRB, RIR NGA105628.E. 17 NDP for Nigeria (November 30, 2020), item 2.1, United States Department of State, "Nigeria, Country Reports on Human Rights Practices for 2019", March 11, 2020, at p. 11. 18 Gender Guideline: Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the IRPA. 19 NDP for Nigeria (November 30, 2020), item 1.8, Australia, Department of Foreign Affairs and Trade, "DFAT Country Information Report: Nigeria", March 9, 2018, at p. 10. 20 NDP for Nigeria (November 30, 2020) item 1.8 (ibid.), at p. 10. 21 NDP for Nigeria (November 30, 2020) and (November 29, 2019), item 5.9, IRB, RIR NGA106362.E, "Whether women who head their own household, without male or family support, can obtain housing and employment in Abuja, Lagos, Ibadan, and Port Harcourt; government support services available to female-headed households (2017-November 2019)", November 20, 2019, at pp. 6-7. 22 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 13. 23 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 14. 24 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 10. 25 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 3. 26 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 12. 27 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 3. 28 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 2; item 1.8 (supra footnote 18), at p. 21. 29 NDP for Nigeria (November 30, 2020), item 1.8 (ibid.), at p. 20. 30 NDP for Nigeria (November 30, 2020), item 5.9, IRB, RIR NGA106362.E, November 20, 2019, at p. 11. 31 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 1. 32 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 6. 33 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-05168 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