TC0-04195

RAD File / Dossier de la SAR : TC0-04195 TC0-04196 / TC0-04197 / TC0-04198 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 3, 2021 Date de la décision Panel L. Krajcovic Tribunal Counsel for the persons who are the subject of the appeal Nicholas Owodunni Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Male Appellant), and XXXX XXXX XXXX XXXX XXXX (Female Appellant), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Minor Appellants) are citizens of Nigeria. They appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. BACKGROUND [3] The Appellants' allegations are as follows. The Appellants are from the village of XXXX in Oyo State. The Male Appellant's extended relatives and community want the Female and Minor Appellants to undergo Female Genital Mutilation (FGM) as it is a traditional practice in their community. The Male and Female Appellant are opposed to FGM, as is the Male Appellant's mother. The Male Appellant's relatives have harassed the Appellants and threatened to forcibly impose FGM on the Female and Minor Appellants, and to kill the Male and Female Appellants if they do not relent. The Appellants approached police for assistance, but police declined to intervene on the basis that it was a family issue. The Appellants relocated to Lagos to hide but were found there. [4] The Appellants left Nigeria for the United States on XXXX XXXX, 2017. They arrived in Canada on XXXX XXXX XXXX 2018 and filed their refugee claims upon arrival. [5] The Appellants' refugee claims were heard on November 29, 2019. On January 23, 2020, the RPD rejected the claims on the basis of lack of credibility and well-foundedness. The Appellants submit that the RPD erred in its credibility and well-foundedness assessments. [6] The Appellants do not request to submit new evidence on appeal. As there is no new evidence, there can be no oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA).1 ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. The RAD may defer to the RPD in assessing findings involving the credibility of oral testimony if it finds that it had a meaningful advantage in the circumstances.2 In this appeal, I find that the RPD did not have a meaningful advantage. ANALYSIS [8] In deciding this appeal, I have considered the Chairperson's Gender Guidelines3 and Guidelines on Child Refugee Claimants.4 The RPD erred in finding that the Appellants were not in hiding based on a minor omission [9] The RPD found that the Appellants were never hiding in Lagos based on their failure to indicate their address in Lagos in their Schedule 12 form and for which it found they did not provide a reasonable explanation. [10] The Appellants submit that omitting the Lagos address from the Schedule 12 form was minor, that they provided a reasonable explanation and that the RPD ought not to have elevated it to the level that it did. [11] I find that the RPD erred for the following reasons. While I agree with the RPD that the Appellants failed to indicate their address in Lagos in their Schedule 12 forms and that the question states to list all addresses where they lived, I find that this was a minor omission that should not result in a negative credibility finding. [12] I have reviewed the transcript of the hearing as part of my independent assessment. At the hearing, the Appellants explained that they moved to Lagos where they lived in hiding for one month.5 They explained that they did not include this address in their Schedule 12 form as it was temporary, they still had their permanent address and had no formal documents related to the address in Lagos because they were sub-leasing.6 [13] While I agree that the Appellants' time in Lagos is significant as it is where they were allegedly in hiding, I find that the Appellants' failure to indicate this address in their Schedule 12 form is minor and not sufficient to conclude that the Appellants were not in hiding in Lagos or to undermine their overall credibility. Further, I find the Male Appellant's explanation not unreasonable in the circumstances. I note that the Appellants made their claims upon arrival in Canada and that their other evidence, including their testimony and BOC narratives, refers to them being in hiding. At the hearing, the Male Appellant provided the address that they were hiding in Lagos.7 [14] As a result of the foregoing, I find that the RPD erred in finding that the Appellants were not in hiding in Lagos and that this undermined their overall credibility. I set this finding aside. The RPD erred in finding the police reports not genuine [15] The RPD found that the dates at the top of the police reports were at variance with the dates in the bodies of the reports. The RPD found that the reports were incongruous and inconsistent and therefore not genuine. The RPD found that the Appellants never went to the police for protection. [16] The Appellants submit that the RPD's conclusions are far reaching, founded upon an unarticulated position and render unreasonable results. [17] I find that the RPD erred for the following reasons. In its reasons, the RPD member refers to the Male Appellant's explanation for the dates in the documents being that a friend obtained the documents. In my review of the transcripts, I note that the Male Appellant's explanation was that the dates at the top of the police reports refer to the date that his friend requested and obtained the reports, but that the incident occurred on the date contained in the body of the report.8 I find that the RPD erred in failing to consider the Male Appellant's explanation. After my review of the police reports9 and the Male Appellant's testimony, I find this explanation reasonable in the circumstances. As a result, I find that the RPD erred in finding that the police reports were not genuine, that the Appellants never approached police for protection and that and this undermined their overall credibility. I set this finding aside. The Appellants are credible [18] I have reviewed the RPD record, including the transcript of the hearing, as part of my independent assessment. I do not note any significant inconsistencies or contradictions in the Appellants' evidence. In addition to their testimony, the Appellants have provided documents to corroborate their claim, including two police reports, affidavits from family members and colleagues, a letter from a priest and psychological reports, all of which corroborate their claims. Considering the Appellants' evidence and my above-noted findings that the RPD erred in its credibility findings, I find, on a balance of probabilities, that the Appellants are credible. The RPD erred in finding the Appellants' claim inconsistent with the country conditions evidence [19] The RPD found the Appellants' claim that their relatives and community would inflict FGM on the Female and Minor Appellants and harm the Male and Female Appellants inconsistent with the documentary evidence contained in the National Documentation Package (NDP). After reviewing the NDP, the RPD states "given the fact that both adult claimants and the minor claimants' grandmother are opposed to FGM, there is not a serious possibility of it being done over their objections to the minor claimants or the procedure being forced upon the female claimant given the opposition of her spouse... nor a serious possibility of the adult Appellants being killed or harmed for their refusal to surrender her or her children."10 [20] The Appellants submit that the RPD erred in taking the documentary evidence as the law of the land and finding that there was no possibility of persecution once both parents disagree with FGM. The Appellants submit that the reality in each case may be different. [21] I find that the RPD erred for the following reasons. The RPD reasons rely heavily and quote extensively from a Response to Information Request (RIR) of the Immigration and Refugee Board of Canada contained in the NDP.11 The RPD refers to the RIR stating that the decision whether to subject a girl to FGM is up to the girl's parents, that parents who refuse have their daughters undergo FGM do not face serious consequences, that parents can refuse and that there is little that society can do to force a wife to undergo FGM if her husband opposes it.12 Based on this and the opposition of the Male and Female Appellants and the Minor Appellant's grandmother, the RPD found that there was no serious possibility of FGM being done nor a serious possibility of the Male or Female Appellants being killed or harmed for their refusal to surrender the Female and Minor Appellants. [22] While I agree that the documentary evidence indicates that generally FGM is not imposed over the objections of a girl's parents and that parents can refuse it without serious consequences, there is contradictory evidence in the NDP. The EASO Country of Origin Report on Nigeria states that parents who choose not to submit their children to FGM are "...generally not subjected to violence or threats of violence in Nigeria. It also seems very unusual that the parents' decision not to subject a daughter to FGM/C is disregarded by other relatives, who then take the matter into their own hands, but a few such cases are mentioned in available source material."13 [23] Regarding the treatment of parents who refuse to have their daughters undergo FGM, one source states "...in general, this treatment is unlikely by virtue of its nature and repetition to reach the high threshold to constitute persecution or serious harm," but proceeds to stress the need to consider each case on its own facts.14 The Home Office Country and Policy Information Note on FGM in Nigeria refers to parents' refusal resulting in threats to the life of a father and his immediate family, threats of banishment and attacks which resulted in a couple giving in and allowing FGM, in addition to mental and physical abuse, abduction and rape.15 The source acknowledges that these situations are not necessarily reflective of the general situation.16 Another source refers to refusal resulting in physical abuse.17 Considering the foregoing, I find that the RPD erred in finding the Appellants' claim to be inconsistent with the documentary evidence. [24] Regarding the tradition of FGM, sources state: FGM is a 'deeply' engrained cultural practice [...] it is incumbent on both woman and man, either from the same or different ethnic groups (especially in the Southwest, Southeast and South-South) to socialise their children according to the traditions of their home towns since they know the appropriate ritual practice is part of the way their children can prove they are rightful members of their mother's and father's kin groups or home communities.18 [footnotes omitted] [25] The Male Appellant testified that FGM is a longstanding tradition in his family, which is why his relatives are so adamant that it be done and have threatened to force the Female and Minor Appellants to undergo FGM. The Male Appellant testified that his mother and sisters were forced to undergo FGM.19 The RPD Record contains an affidavit from the Male Appellant's mother which indicates that the Male Appellant's sisters were forcibly circumcised.20 The affidavits of the Male Appellant's mother and his two sisters refer to the family tradition and threats of harm to the Appellants.21 I find that the Appellants' testimony and affidavit evidence from family members corroborate the significance and prevalence of FGM in the Male Appellant's family and their claim that relatives would take extreme measures to see that the Female and Minor Appellants continue the tradition. There is a lack of state protection [26] I find that there is not adequate state protection for the Appellants in Nigeria. A Home Office Report on FGM in Nigeria states: 2.5.1 The Violence against Persons (Prohibition) Act 2015 (VAPP Act) prohibits FGM, making it a federal offence and provides for proportionate penalties. The VAPP Act applies within the Federal Capital Territory, however it still needs to be passed in each of the 36 States of the Federation. To date, some states have passed the VAPP Act, others have not, particularly those where FGM is prevalent. There are low rates of reporting given that family members are often the perpetrators and to date there have been no prosecutions. 2.5.1 Implementation of the law varies across the country and depends on state and federal police capacity and willingness. NGOs have found that they have to convince local authorities that state laws apply in their districts. The laws are reportedly harder to enforce in rural areas where there is limited police presence and activity. 2.5.2 Police are also reported to treat the practice as a family or community affair, who [police] may also respect the tradition themselves, and may not intervene at all.22 [footnotes omitted] [27] The Appellants' evidence is consistent with the documentary evidence. The Male Appellant testified that they approached police twice, but that police refused to intervene because it was a family matter.23 This is corroborated by the two police reports.24 There is no internal flight alternative (IFA) available to the Appellants [28] The first prong of the IFA test requires that the Appellants establish that they face a serious possibility of persecution or that they would, on a balance of probabilities, be subjected to a risk to life, danger of torture, or risk of cruel and unusual treatment or punishment in the proposed location.25 [29] The Appellants testified that they moved to Lagos to hide from their agents of persecution but that they were found there.26 The Appellants testified that their family and community is large and far reaching and many members of the community live in other places in Nigeria.27 At the hearing, the RPD member asked the Male Appellant if they could move to Abeokuta or Benin City, to which the Appellants replied that they have family there.28 There is evidence in the record that refers to the Male Appellant's relatives searching for the Appellants in Abuja, Port Harcourt Illorin and Lagos.29 Based on the Male Appellants' relatives' ability to locate the Appellants in Lagos and their persistent attempts to locate them elsewhere, I find, on a balance of probabilities, that they have the means and motivation to locate the Appellants throughout Nigeria. As a result of this finding, there is no need to consider whether it would be reasonable for the Appellants to seek refuge elsewhere. I find that the Appellants have no viable IFA in Nigeria. CONCLUSION [30] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees pursuant to paragraph 111(1)(b) of the IRPA. (signed) L. Krajcovic L. Krajcovic January 3, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, at ss. 110(4), 110(6). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. 3 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. 4 Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues: Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: September 30, 1996. 5 Transcript of November 29, 2019 RPD Hearing, at pp. 11-12. 6 Ibid., at p. 13. 7 Ibid., at p. 12. 8 Ibid., at pp. 13-14. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 141-142. 10 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 8, para. 16. 11 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (November 29, 2019), item 5.12: ?Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018), Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) NGA106183.FE, 29 October 2018. 12 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 7-8, para. 15. 13 NDP for Nigeria (November 30, 2020), item 1.4: ?EASO Country of Origin Information Report: Nigeria. Country Focus, European Union. European Asylum Support Office, June 2017, at p. 41. 14 NDP for Nigeria (November 30, 2020), item 5.16: ?Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0, United Kingdom. Home Office, August 2019, at p. 9. 15 Ibid., at pp. 40-41, paras. 7.1.6-7.1.9. 16 Ibid., at p. 41, para. 7.1.9. 17 NDP for Nigeria (November 30, 2020), item 5.28: 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 to refuse a ritual practice such as FGM (2014-September 2016), IRB, RIR NGA105628.E, at p. 12. 18 Ibid., at p. 7. 19 Transcript of November 29, 2019 RPD Hearing, at pp.18-19. 20 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 147-148. 21 Ibid., at pp. 147-152. 22 NDP for Nigeria (November 30, 2020), item 5.16, supra, footnote 14, at p. 10. 23 Transcript of November 29, 2019 RPD Hearing, at pp. 10-11. 24 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 141-142. 25 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA), at p. 710; Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. 26 Transcript of November 29, 2019 RPD Hearing, at p. 11. 27 Ibid., at p. 22. 28 Ibid., at pp. 11-12. 29 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 144-146. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-04195 TC0-04196 / TC0-04197 / TC0-04198 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