TC0-04811

RAD File / Dossier de la SAR : TC0-04811 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 April 23, 2021 Date de la décision Panel Karen McGovern Tribunal Counsel for the person who is the subject of the appeal Jagdeep Singh Dhaliwal 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 dismiss this appeal. XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. a. The Appellant fears harm from a secret cult, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, as a result of his wife's work as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Beginning in XXXX 2017, the Appellant's wife, ZE, received a threatening note and was approached by a man who tried to bribe her about a case she was working on. After ZE's neighbor observed a group of men trying to enter their home in XXXX 2017, ZE reported to the police. She was advised to change her residence and did so in XXXX 2017. In XXXX 2018, while driving on the highway, an object was thrown at ZE's car causing her to crash into a guard rail. One of the men approached and told her to stop pursuing the case. ZE successfully prosecuted the case and was approached by a man who told her that she had destroyed one of the XXXX Cult and that they would kill her. ZE and their two children left Nigeria to join the Appellant in Canada on XXXX XXXX, 2018 and they claimed asylum in January 2019. b. The Refugee Protection Division (RPD) accepted ZE's narrative overall despite some minor concerns. The RPD concluded that internal flight alternative (IFA) in Port Harcourt was determinative. The Appellant argues that the presumption of truth was not rebutted and that the RPD erred in failing to consider the testimony and documentary evidence that establish that there is a risk of harm in Port Harcourt. The Appellant further argues that the RPD erred by finding Port Harcourt is objectively reasonable. c. The status of the Appellant's marriage with ZE was identified as a new issue and the Appellant was invited to respond with evidence and submissions. d. The determinative issue is lack of individual risk. e. The Appellant has been separated from ZE since XXXX 2019. Given the significant and ongoing conflict between them, it is not likely that they will reconcile. With this change in relationship, the Appellant would no longer face a risk to his life or of being subjected to cruel and unusual treatment or punishment from the XXXX Cult. DECISION [2] The appeal is dismissed. The Appellant is neither a convention refugee nor a person in need of protection. ANALYSIS [3] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Separate appeal [4] At the RPD, the Appellant made a joint claim with ZE and their two children. The Appellant filed his appeal to the Refugee Appeal Division (RAD) without ZE and their children but did not provide any information about why his appeal was separate. [5] With administrative assistance, I was able to determine that: * ZE and the two children appealed to the RAD separately and the appeals were not subsequently joined; * the appeal of ZE and the children was concluded; and * in an affidavit filed in her appeal, ZE stated, "I have filed this appeal without my husband because we are currently estranged."2 Disclosure of redacted affidavit of ZE to the Appellant [6] I concluded that ZE's statement in her affidavit was relevant to the Appellant's appeal and considered whether I could disclose the statement to the Appellant. As the RAD Rules do not set out an express mechanism for disclosing information from one private RAD proceeding to the parties in another RAD proceeding, I followed a process similar to the one set out in RPD Rule 21 regarding the disclosure of information from another claim. [7] I sent written notice to ZE's appeal counsel indicating that I was intending to disclose ZE's statement about appealing separately to another appellant and asked to be provided with any objections ZE had to the disclosure in writing. I enclosed a redacted copy of ZE's affidavit that contained ZE's signature, the date and proof that the affidavit was sworn, and the one-line statement, "I have filed this appeal without my husband because we are currently estranged". Despite two written notices, no response was received from ZE or her appeal counsel. [8] Based on the information available to me, I decided to disclose ZE's redacted affidavit to the Appellant. I made this decision because I was satisfied that there was not a serious possibility that disclosing the information would endanger the life, liberty, or security of any person, and disclosing the information was not likely to cause an injustice. New issue [9] I sent written notice to the Appellant that I had identified a new issue in his appeal: the status of his marital relationship with ZE. I enclosed a copy of ZE's redacted affidavit and requested that the Appellant provide me with: * An explanation as to why his wife and family have not been joined on his appeal; * Evidence on the status of his marital relationship with his wife; and * Submissions on the status of his marital relationship with his wife. [10] In response, the Appellant provided an affidavit with three exhibits attached: a. Copy of a Criminal Court Disposition; b. Copy of the Appellant's 2019 tax return; and c. Application and Answer in Ontario Court of Justice. [11] I note that, although invited to, the Appellant did not make submissions on the new issue. NEW EVIDENCE The evidence presented by the Appellant is accepted [12] According to the law,3 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [13] 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.4 [14] The Appellant submitted the following as new evidence: a) Affidavit of Appellant dated April 13, 2021; b) Copy of Toronto Police Information form; c) Copy of letter to the Appellant dated XXXX XXXX, 2020 enclosing the Appellant's 2019 tax return; d) Copy of an Application in the Ontario Court of Justice dated XXXX XXXX, 2020; and e) Copy of an Answer and Claim by Respondent in the Ontario Court of Justice dated XXXX XXXX, 2021. Item a) Appellant's affidavit is admitted [15] The affidavit is signed by the Appellant and sworn on April 13, 2021. In the affidavit, the Appellant indicates that he and ZE have been separated since XXXX XXXX, 2019. He states he was charged with one count of assault and one count of uttering a threat to cause bodily harm against ZE. The terms of his bail prohibited him from contact with ZE. He indicates that the criminal charges were withdrawn on XXXX XXXX, 2021, without a peace bond imposed on him. He further states that after receiving the RPD decision dated January 22, 2020, he contacted his then lawyer to appeal the RPD decision and was informed that ZE would not join him in her appeal to RAD. He then filed his appeal to the RAD on his own. Finally, he states that ZE has initiated proceedings in the Ontario Court of Justice seeking child and spousal support, as well as full custody of the children. [16] The affidavit describes events that occurred before the RPD decision as well as events that arose after the RPD decision on January 22, 2020. The content that describes events that pre-date the RPD decision - the separation of the Appellant and ZE and the criminal charges - could not have been reasonably expected in the circumstances to be provided to the RPD before the decision. It was only after the RPD decision that ZE refused to include the Appellant in her and the children's appeal to the RAD, which required the Appellant to file his appeal separately. The content relating to the outcome of the criminal matter and the initiation of proceedings for custody and support meet the requirements of subsection 110(4) as these events occurred after the RPD decision. The prior events described as well as those that occurred after the RPD decision are new and are directly relevant to the new issue identified in this appeal. I have no concerns as to the credibility of the document. The affidavit is admitted. Item (b) is admitted [17] The document is a Toronto Police Services Information (Information), which indicates that the Appellant was charged with the criminal offences of one count of assault and one count of uttering a threat to cause bodily harm against ZE on XXXX XXXX, 2019. The remainder of the Information describes multiple court appearances beginning on XXXX XXXX, 2019 and ending on XXXX XXXX, 2021 with the charges being withdrawn. [18] The Information describes events that occurred before the RPD decision as well as events that arose after the RPD decision on January 22, 2020. The content that describes events that pre-date the RPD decision - the criminal charges and court appearances up to January 22, 2020 - could not have been reasonably expected in the circumstances to be provided to the RPD before the decision. It was only after the RPD decision that ZE refused to include the Appellant in her and the children's appeal to the RAD, which required the Appellant to file his appeal separately. The court appearances that occurred after the RPD decision, which ended on XXXX XXXX, 2021, are events that arose after the RPD decision. The events described in the Information are directly relevant to the new issue identified in this appeal. I have no concerns as to the credibility of the document. The Information is admitted. Item c) Letter with Appellant's 2019 Tax Return Summary is admitted [19] The XXXX XXXX, 2020, letter is from XXXX XXXX XXXX XXXX., and is addressed to the Appellant. The letter describes the attached Tax Return Summary of 2019 for the Appellant. The Tax Return Summary contains information about the Appellant's marital status at the time he filed his return. The document contains information that arose after the RPD decision and could not have been provided to the RPD. The document is new and relevant to the new issue identified in this appeal. I have no concerns as to the credibility of the documents. The letter and Tax Return Summary are admitted. Item d) Application and e) Answer and Claim by Respondent are admitted [20] The Application to the Ontario Court of Justice by ZE seeks child and spousal support and child custody and is dated XXXX XXXX, 2020. The Answer and Claim by Respondent by the Appellant seeks access to the children and is dated XXXX XXXX, 2021. The documents arose after the RPD decision and could not have been provided to the RPD. The documents are new and relevant to the new issue identified in this appeal. I have no concerns as to the credibility of the documents. The Application and Answer and Claim by Respondent are admitted. No individualized risk [21] Having reviewed the RPD record, ZE's redacted affidavit, and the affidavit and attached documents submitted by the Appellant, I am of the view that the Appellant does not face a risk to his life or of being subjected to cruel and unusual treatment or punishment because he is separated from ZE. The Appellant's risk is based on being a member of ZE's family [22] The Appellant's fear of being attacked and killed by the XXXX Cult is entirely based on the fact that he is a member of ZE's family. In his basis of claim form, the Appellant references ZE's narrative as the basis of his need for protection. ZE's narrative states that she fears being attacked and killed by the XXXX Cult because she XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX for XXXX XXXX in Nigeria. She states she fears harm to her family because the XXXX Cult wish to harm her family as a way to settle a score with her: ... I believe that the XXXX Confraternity who are after my life have some of the people whose XXXX XXXX XXXX XXXX XXXX XXXX XXXX as was later revealed to me and they see my work as a threat against their members and their activities to the extent that they now wish to settle a personal score with me by harming my family and ending my life as they have been threatening.5 .... There have been few reported cases where staff of the XXXX have been killed, kidnapped, threatened and murdered and cases where family members of staff of the XXXX have been attacked and kidnapped as well. It is unfortunate that sometimes certain people see the criminal investigation and prosecution of certain persons as a personal vendetta and would do anything to get rid of the person(s) assigned to undertake such duties.6 [23] ZE was specifically threatened that she and her family would be harmed in a letter left on her car, "You will pay with your our blood. You and your family."7 [24] At the hearing, the Appellant testified that he fears the XXXX Cult because he is a member of ZE's family: COUNSEL: Are you telling this panel that your fear of going back to Nigeria was contingent on the fear and persecution your wife was going through in Nigeria? CO-CLAIMANT: Yes, because I knew that the people involved, they are a deadly cult group that is well-known for deadly attacks in Nigeria and I knew that it's just a matter of time before [inaudible] happen. So, I -- I knew that I needed to do what I needed to do to make sure that the family is -- is safe. So, that was why I just felt, okay, what we needed to do was to -- for me to bring them over so we can all be safe. COUNSEL: Well, part of your testimony to this panel was that [inaudible] started coming to -- that was a report you got from your wife anyway because you were no longer there at that time. [inaudible] started coming to visit the home with -- which actually culminated your spouse having to run away from home and all that. How does that actually affect you, you know? CO-CLAIMANT: Well, the residence we -- we were just talking about was where we all used to stay together. And for them to have spotted that that was where my family lived, it shows that they've done a lot of underground findings about our movements, about where she stays, about our family, and that because this cult group is a -- apart from the fact that they are very, very deadly, they are also very, very structured. They have their cells all around Nigeria and they have a way of doing their findings and making sure [inaudible] and then going after their targets, it -- the -- their -- I mean, with their members who are -- who are, I mean, said -- sent to do all those bad things. COUNSEL: Okay. If I understand what you said to this point very clearly, are you insinuating that if, for any reasons, you know, your wife is not at home, that you fear the -- the XXXX Confraternity descending on you and your children, is that what you're saying? CO-CLAIMANT: The way it has always been is that -- that is known, is that they go -- they -- once they -- they have a target, they don't -- they don't relent until they wreak the havoc. And if the primary target cannot be -- cannot be caught, they go for a family member, thinking that, 'Okay, if we -- if we can't get you, we can get your -- a loved one that you -- that is important to you.'8 The Appellant is no longer a member of ZE's family [25] The new evidence indicates that the Appellant and ZE have been separated since XXXX 2019, which is prior to their RPD hearing on November 8, 2019. In her court application, ZE states that she and the Appellant had marital issues in Nigeria and that is why she and the children arrived in Canada separately in XXXX 2018. She does, however, state that she and the Appellant did intend to reconcile at that time.9 [26] In his affidavit, the Appellant states that he has been living on his own after ZE and the children moved out of their house on XXXX XXXX, 2019.10 The Information indicates that the criminal charge of uttering a threat to cause bodily harm was alleged to have occurred on XXXX XXXX, 2019. Following the charge, the Appellant's bail conditions included no contact with ZE. The Appellant identified his marital status as separated in his 2019 tax return.11 [27] After the RPD decision on January 22, 2020, ZE did not agree to include the Appellant in her appeal to the RAD. [28] On XXXX XXXX, 2020, ZE filed an Application for spousal and child support and for sole custody of the children. In her Application, she states that she and the Appellant separated after the Appellant assaulted her. She indicates the Appellant has not inquired about or sought access to the children since their separation. She further states: 9. Throughout the course of the relationship, the Applicant/Mother suffered emotional and mental abuse. For example, the Responent/Father hit her, cheated on her, and called her names such as a whore. At times, the abuse occurred in front of the children. 10. Since separation, the parties have communicated only once, to address some immigration concerns the Respondent/Father has had for himself. 11. During the relationship, the parties had strained communication. The parties often had misunderstandings and miscommunications which resulted in arguments. 12. Considering the history of domestic abuse and the parties lack of communication, this case is not suitable for joint custody.12 [29] On XXXX XXXX, 2021, the criminal charges against the Appellant were withdrawn without a peace bond. [30] In his Answer and Claim by Respondent filed on XXXX XXXX, 2021, the Appellant seeks an order for access to the children. He states: 1. In order to avoid continued conflict for the children, and not for the reasons claimed by the Applicant, the Respondent is agreeable to the Applicant having sole decision-making and primary residence of the children subject to the following parameters:13 [31] The Appellant acknowledges that he and ZE engaged in frequent arguments but denies that he was verbally and emotionally abusive to her and did not threaten her with bodily harm. The Appellant states that the separation resulted from an argument over money ZE requested and he was unable to provide her with. He further states ZE threatened to and then separated the family's refugee claim. He states that in the past ZE would physically lash out at him when she became angry and that she maintained sexting relationships with former boyfriends. He denies any adultery. Further, the Appellant states that he has not seen or inquired as to his children since the separation because of his bail terms.14 [32] I am mindful that the Appellant and ZE remain married and that there is no evidence that divorce proceedings have been initiated by either the Appellant or ZE. Despite the fact that they remain officially married, I am of the view that ZE and the Appellant are unlikely to reconcile and the separation is permanent. [33] Marital issues began in Nigeria and there was separation in the family's travel to Canada. The couple lived together in Canada for less than a year, from XXXX 2018 until XXXX 2019. The physical assault of ZE by the Appellant was alleged to have occurred during this period in XXXX 2019 and the threat of bodily harm was alleged to have occurred on the day they separated. ZE's decision to not include the Appellant in her appeal to the RAD is significant as it demonstrates that she does not consider him to be related to her and the children. Although both ZE and the Appellant dispute many of each other's claims, they both acknowledge ongoing conflict and neither seeks joint custody for the children. The parties have now been separated for approximately one and a half years and have communicated only once in that time period. [34] Based on this evidence, I find, on a balance of probabilities, that the Appellant is not a member of ZE's family. Since the Appellant is no longer a member of ZE's family, he would not be a target of the XXXX Cult. In reaching this conclusion, I have considered whether the Appellant could still be perceived as being part of ZE's family by the XXXX Cult. I note that in her narrative, ZE indicates that she found a threat letter on her car in XXXX 2017. She testified that when she told the Appellant about the note, he said it was probably just kids playing around.15 It was only after learning that men had been to her house in XXXX 2017 that ZE perceived a threat to herself and her family. The Appellant testified that he came to Canada in XXXX 2017 to pursue studies at XXXX XXXX College.16 Given that the Appellant was not in Nigeria in XXXX 2017, the Eiye Cult would not have seen him at the house that ZE and the children lived in nor at the second home they moved to until coming to Canada in December 2018. In addition, ZE is the primary target of the Eiye Cult. As the Appellant would not be returning to Nigeria with ZE, it is unlikely that the Appellant would be perceived as being a member of her family. [35] It is not necessary to address the Appellant's arguments as this finding is determinative. [36] I find, on a balance of probabilities, that the Appellant would not face a risk to his life or of being subjected to cruel and unusual treatment or punishment if he were to return to Nigeria. CONCLUSION [37] The appeal is dismissed. The Appellant is neither a Convention refugee nor a person in need of protection pursuant to section 97(1)(b) of Immigration and Refugee Protection Act (IRPA). (signed) Karen McGovern Karen McGovern April 23, 2021 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit RAD-1, Members Directions (April 8, 2021), Affidavit of ZE Redacted. 3 Subsection 110(4), Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 5 Exhibit RPD-1, RPD Record, Exhibit 2.4, Basis of Claim, p. 69. 6 Ibid., pp. 69-70. 7 Exhibit RPD-1, RPD Record, Exhibit 6, p. 464. 8 Transcript of (August 24, 2020) RPD Hearing, p. 27. 9 Exhibit P-3, Response to Members Directions (April 14, 2021), p. 24. 10 Exhibit P-3, Response to Members Directions (April 14, 2021), p. 1. 11 Exhibit P-3, Response to Members Directions (April 14, 2021), p. 16. 12 Ibid., p. 24. 13 Ibid., p. 32. 14 Exhibit P-3, Response to Members Directions (April 14, 2021), p. 33. 15 Transcript of (August 24, 2020) RPD Hearing, p. 39. 16 Transcript of (August 24, 2020) RPD Hearing, p. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-04811 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