TB9-14262

RAD File / Dossier de la SAR : TB9-14262 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 August 17, 2020 Date de la décision Panel Madeleine Schwarz Tribunal Counsel for the person who is the subject of the appeal Orr Kolesnik 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] XXXX XXXX XXXX (Appellant), citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) dated April 11, 2019, rejecting her claim for refugee protection. [2] The Appellant fears persecution on the basis of gender. She claims she is a victim of domestic violence at the hands of her former boyfriend, who she met in 2008. The former boyfriend was very controlling and abused her. In 2010, he threw a bottle of acid at the Appellant and she was left with a bad scar on her neck. She claims she became pregnant three times during their relationship, and he forced her to have abortions. [3] The Appellant obtained a visa to go to a conference in Canada and arrived in Canada on XXXX XXXX XXXX 2018. She claims the former boyfriend has threatened her with further violence if she returns to Nigeria. [4] The RPD found the Appellant lacked credibility, highlighting inconsistencies in her testimony, the limited reliability of the police and psychotherapist reports, and inconsistencies in the supporting documentation. [5] The Appellant argues the RPD erred in its analysis and assessment of the evidence offered in support of the Appellant's claim. [6] I allow the appeal. I substitute my own decision that the Appellant is a Convention refugee who faces a serious risk of persecution on the basis of her gender. I further find she does not have a viable internal flight alternative (IFA) in Nigeria. ANALYSIS [7] After carrying out an independent assessment of the RPD Record,1 I find the RPD erred by focussing on peripheral issues, failed in its findings regarding the police and psychotherapist reports, and failed to consider the basis of the Appellant's subjective fear. Although not raised by the Appellant, I also find that the RPD member failed to meaningfully apply the Gender Guidelines2 in assessing the Appellant's claim. The RPD failed to meaningfully apply the Gender Guidelines [8] The RPD reasons indicate that the Gender Guidelines were considered.3 The Gender Guidelines require decision makers to show a substantial degree of sensitivity in assessing gender-related crimes. After reviewing the audio recording and transcript of the hearing, I find, overall, the questioning by the RPD member lacked sensitivity, demonstrated little understanding of the complexities of domestic violence and was at times confusing. The RPD erred in finding that the Appellant did not go to the police [9] The RPD concluded that because of inconsistencies between the Appellant's narrative and testimony and the police report submitted on her behalf, the Appellant did not go to the police to report the acid attack by her former boyfriend in 2010.4 [10] I find the RPD was wrong in this conclusion. [11] In her Basis of Claim (BOC) narrative, the Appellant states that after her former boyfriend threw acid on her, she went to the hospital where her cousin, XXXX XXXX, worked as a XXXX (the XXXXcousin). She and the XXXXcousin went to the police station in Wuze zone 1 to report the assault. When the Appellant returned to the police station, the officer was not much help. The officer told her that officers went to the former boyfriend's house to arrest him. The boyfriend told the police that the Appellant was his wife and he could treat her anyway he liked. The former boyfriend also told her that he had met the police and told them he was jealous and had been under the influence. [12] In her testimony, the Appellant testified on what she heard from both the police and her boyfriend. The Appellant confirmed that she reported the attack to the police, and the police went to arrest the former boyfriend, but they were not successful. She confirmed her BOC narrative and indicated that the police said that the boyfriend told them that she was his wife, and so he can do anything, and the police left.5 Her BOC also indicates that the boyfriend told her that the police came, and he told them that he had acted under the influence of alcohol.6 [13] Paragraph 3 of the police report, however, indicates that the police visited the house of the former boyfriend, but he was at large and they were not able to arrest him.7 [14] When asked about the differences with the police report, the Appellant said she had no idea why it was different. The RPD found her explanation not reasonable. [15] I find the RPD's reasoning on this point confusing.8 The member seems to base his negative credibility assessment of the Appellant on his expectation that the Appellant's XXXX cousin, who provided an affidavit in support of the Appellant's claim and who went to the police with the Appellant to report the attack, would have noticed that the police report gave a different story when she collected it in March 2019 at the request of the Appellant. I find nothing in the evidence that supports this expectation, and nothing to indicate that the XXXX cousin would have reviewed the report or would have been in a position to tell the police what to write in their report. [16] In addition, the RPD incorrectly concluded that the Appellant was not credible about the source of the police report and when it was actually made. This is incorrect. From my review of the audio and the transcript, the Appellant clarified for the member that the police report is dated March 2019 and was made in response to her request for a report in connection with her refugee hearing. [17] I find the Appellant was credible and consistent about her actions following the attack, and when she obtained the report. Her BOC narrative and testimony are corroborated by her XXXX cousin's affidavit, which confirms the Appellant came to the clinic, the XXXX cousin accompanied the Appellant to report the attack to the police, and they returned back to the hospital for further treatment.9 [18] The police report confirms that the Appellant reported an assault by her former boyfriend with a substance suspected of being acid. Given that the police report is dated March 6, 2019 and refers to an attack that occurred on November 2010, I accept that it confirms she went to the police to report the attack by her former boyfriend. Given that the former boyfriend was never arrested, I find what the police report does or does not say about the actions they took is peripheral to the Appellant's claim that she reported the boyfriend's attack to the police, and that he was not arrested. [19] I find support for coming to this conclusion in objective documentary evidence that indicates that Nigerian police often "exhibit bias and discriminatory attitudes in their treatment of female victims of violence", are "reluctant to intervene", and often "blam[e] the victim for provoking the abuse."10 I find, on a balance of probabilities, the Appellant did report the attack to the police, and the police did little to investigate the attack. The addresses where the Appellant stayed between 2016 to 2018 [20] The RPD found the Appellant was inconsistent and omitted some addresses from Schedule A.11 Schedule A indicates that the Appellant lived in Wumba Village, Apo, Abuja from XXXX 2016 to XXXX 2018, when she left Nigeria for Canada.12 While I agree that there were inconsistencies and omissions in her Schedule A, I find, in the particular circumstances of the Appellant, the explanations she provided are reasonable. [21] The Appellant explained that after she left the former boyfriend's house, she stayed with her XXXX cousin. She also indicated that she stayed with another cousin (the sister of the XXXX cousin) in Abuja at times between 2016 and 2018. She said she could stay in both places. The RPD pressed the Appellant for the street address or plot number of the house of her XXXX cousin, and asked her to explain why she did not mention the second cousin in Schedule A. The Appellant explained that she did not know the full address of the XXXX cousin's home and that a landmark or something like a tree is often how a place gets described. [22] She explained that they call the place "XXXX XXXX (phonetic)" and explained where it was. She said "...if you climb in the back of him, a motorcycle, to her (the XXXX cousin) place, that is where we call the place. So, I said it's a city close to FCT. And the city is Nasarawa. Sometimes people call it FCT because if you are there, you also tell people, I stay in Abuja."13 [23] I appreciate that the Appellant's testimony on exactly where she lived between 2016 and 2018, could be considered contradictory by some. However, taking into account how villages and places can be described in Nigeria, for example, by a landmark, and taking into account that street or plot numbers may not always be used to indicate where a person lives, I find the Appellant's testimony that she lived with her XXXX cousin credible. [24] When asked why she did not include the address of the second cousin, the Appellant explained that she forgot to include the other cousin in Schedule A. The RPD did not question the Appellant on when or how often she stayed with the second cousin, and thus there is no information on whether she actually lived there or stayed there from time to time. I find her explanation reasonable. [25] The RPD questioned the Appellant on why she would be safe at either cousins' house, given that the boyfriend is a bad guy and abusive, and knew the cousins and where they lived. The member asked her what was the point of staying with them since the boyfriend could find her. The Appellant explained that the boyfriend had given her permission to stay with her cousins. The RPD appears to find this incredible, as the panel appears to be of the view that she was hiding,14 and wondered why the boyfriend would not go to the cousins and abuse her.15 [26] The Appellant never testified that she was hiding. The Appellant stated that the boyfriend was controlling, monitored her and only let her go places and mingle with people he approved of. She indicated that the boyfriend was ok with her staying with her cousins, but she still needed to come each week and cook and tidy his house. In other words, the boyfriend exerted control over her - he allowed her to stay with the cousins, whom he knew, but still required her to come back to him. The RPD's determination that she was hiding is incorrect. The Appellant indicated that the boyfriend knew where she was. [27] I find the Appellant's explanation for why she could stay with her cousins, even though the boyfriend knew where she was, reasonable in the context of the abusive and controlling relationship she found herself in with the boyfriend. [28] I find the question of the actual address of where the Appellant stayed between 2016 and 2018, peripheral to her claim. She was consistent in her BOC and in her testimony that after the Appellant left her former boyfriend's house in 2016, she stayed with her cousin in Abuja during the two years before she left Nigeria, and still went to the boyfriend's house to clean and cook at times. She said she left to avoid or limit the abuse. I find her testimony on this issue credible. How the Appellant left Nigeria [29] The RPD concluded that it was not credible that the Appellant could casually leave Nigeria given that the former boyfriend knew of her plans to go to Canada for a conference and told her she could not go. The Appellant explained that while the boyfriend knew about the trip, he did not know the date and time of her departure. The RPD member found her testimony on this issue "inherently contradictory".16 [30] The member asked: "So, what? So, what if he didn't know the actual date? He could just keep you there..."17. First, I find the RPD's questioning in this manner does not comply with the sensitive questioning required by the Gender Guidelines. Second, I find no evidence to support the RPD conclusion that the Appellant was able to "casually leave" Nigeria. The RPD did not question the Appellant about how she felt as she prepared to leave, and there is no evidence that would lead to the conclusion that she was casual about her departure. Third, abusive relationships are complex. The Appellant testified that the former boyfriend knew she was staying with her cousins and had given his approval. She confirmed that she still visited the boyfriend, despite his violent actions. The Appellant confirmed that yes, the boyfriend could have stopped her. However, in the end he did not. [31] The fact that the former boyfriend did not take the Appellant away from the cousins' homes, nor keep her prisoner in his home, nor stop her from leaving Nigeria does not lead to the conclusion that her allegations of domestic violence are not credible. No documentary evidence of relationship [32] The RPD made a negative credibility finding because the Appellant did not provide any documentation or photos that demonstrates the former boyfriend exists. [33] I agree with the RPD's concern with the nurse cousin's affidavit failing to mention the boyfriend. [34] I note the XXXX cousin's affidavit confirms the acid attack, but fails to mention the boyfriend's name, or that the boyfriend was responsible for the attack. However, the RPD failed to ask the Appellant why the XXXX cousin did not mention him in connection with the attack. Without being given the opportunity to explain, I find the RPD was wrong to draw a negative inference. [35] I note that the police report provides corroboration of the boyfriend as it gives his full name and indicates he is the suspect in the acid attack on her. [36] When asked why she did not have any pictures of events with the boyfriend, the Appellant explained that she does not have them because they bring back memories. I find this reasonable given the circumstances of her relationship and her departure to Canada to attend a conference. I find her explanation that it was not easy for the cousins to obtain pictures sufficient. They do not appear to have had any contact with the former boyfriend. [37] I find the evidence supports my finding, on a balance of probabilities, that the former boyfriend exists. Forward-looking risk [38] I have some concern regarding some elements of the Appellant's evidence, such as the failure of the XXXX cousin to mention the boyfriend in her affidavit and the lack of documentation confirming the existence of him. However, I find the Appellant provided consistent and credible evidence, and the explanations she provided to answer concerns identified by the RPD are reasonable in the context of an abusive domestic relationship. She testified that her boyfriend told her he would not let her be with another man. I find no reason to doubt this testimony. I find there is sufficient credible and trustworthy evidence to demonstrate a serious possibility of persecution, or on a balance of probabilities, a risk to life, or to cruel and unusual treatment or punishment, or to torture, if she is returned to Nigeria. State protection and Internal Flight Alternative [39] In terms of state protection, the Appellant has indicated that she reported the attack to the police, but they did not do very much. Objective documentary evidence confirms that police are reluctant to intervene in domestic violence cases. I find the Appellant, given her profile as a vulnerable and scarred woman, would not be able to rely on the state to protect her from the former boyfriend. [40] The RPD proposed Port Harcourt, Aba and Lagos as possible IFA locations. [41] If the Appellant is returned to Nigeria, she returns as a single woman with a prominent scar on her neck and chest caused by an acid attack by her former boyfriend. She testified that the scar causes her concern, as people seem to stare and ask her questions about it. She feels stigmatized. She appears to be somewhat fragile. She has worked in a XXXX XXXX and as a XXXX. Her mother and father are deceased. Her brother and sister live in Aba, Nigeria, which is where the boyfriend is from. She has cousins in Abuja, which is the city from which she fled. [42] Objective documentary evidence indicates that the plight of single women is dire in many parts of Nigeria. One researcher states that without support, surviving in any place in Nigeria, including cities where relocation may be possible, is very difficult for women heads of households. The researcher further indicates that: it would be very difficult for such women [widows, divorced or separated women, abandoned women, married women with a non-resident (polygynous or migrant) husband, single women or single mothers] to settle down successfully if they relocate to any place in Nigeria because of the risks and vulnerabilities that they may be exposed to, [such as] stigmatisation/labelling, insecurity, economic hardship, family problems and trauma, among others.18 [43] The European Asylum Support Office (EASO) states that "'single able-bodied women' who attempt to relocate 'may encounter additional difficulties in relation to education, work, housing, etc.'" The Executive Director and founder of the Women's Rights and Health Project (WRAHP) indicated that "skills, family situation, psychological situation, economic status and the existence of a network of contacts could influence a woman's ability to relocate."19 [44] Given the objective evidence, I find on a balance of probabilities, as a single woman with no family in the proposed IFA locations, the Appellant would face significant challenges. [45] First, while I agree with the RPD that there is insufficient evidence to support a well-founded fear of persecution because of her scar, I find the fact that the Appellant has a prominent scar from the acid attack is a factor to consider. The Appellant submits that this "noticeable abnormality" on her skin could cause people to think she is afflicted or a witch. The Appellant offers no objective evidence to support this submission, however, I am willing to give her the benefit of the doubt that having a prominent scar could result in people treating her differently and traumatize her. [46] Second, objective documentation indicates that relocations are most successful when the person has a network of contacts, family members or a community who can support her. In this case, the Appellant could face challenges in obtaining accommodation or employment in the proposed IFA locations, as she does not have a male relative who could assist her. In addition, there is no evidence that she has family members or contacts in any of the proposed IFA locations. [47] Third, I note the mental health issues the Appellant has. The Appellant is a victim of domestic violence and did come across as fragile, and at times confused. I accept from the psychotherapist's report that the Appellant is, at a minimum, depressed. This weighs against her having a viable IFA in another Nigerian city. [48] The country documentation indicates that treatment of mental illness is possible in Nigerian public hospitals, however, human resources are insufficient for the country's needs. Nevertheless, mental health issues remain highly stigmatised in Nigeria, with many families hiding conditions or blaming family members' mental illness on curses or witchcraft.20 People still regard mental health as a taboo.21 The combination of her mental health issues, as well as the prominent scar, could put the Appellant at significant risk and expose her to hardship and stigma. [49] I find it would not be objectively reasonable for the Appellant to relocate. The Federal Court of Appeal has stated that an IFA will only be unreasonable if relocating would jeopardize the life and safety of the appellant.22 I find, given the Appellant's particular circumstances that this high standard is met. CONCLUSION [50] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act23, the Refugee Appeal Division sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Madeleine Schwarz Madeleine Schwarz August 17, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. 3 Exhibit RPD-1, RPD Record, RPD Reasons, p. 4, lines 18-19. 4 Ibid., p. 5, lines 39-40. 5 Transcript of April 11, 2019, p. 29. 6 Exhibit RPD-1, RPD Record, Exhibit 2, p. 23, at para. 4. 7 Ibid., Exhibit 5, p. 95 at para. 3. 8 Exhibit RPD-1, RPD Record, RPD Reasons, p. 5. 9 Transcript of April 11, 2019, pp. 29-30. 10 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (29 March 2019), item 1.11, at paras. 5.1.1 and 5.1.3; item 5.1, at para. 2; see also item 5.3, Response to Information Request (RIR) NGA104980.E . 11 Exhibit RPD-1, RPD Record, RPD Reasons, p. 6, lines 8-13. 12 Exhibit RPD-1, RPD Record, Exhibit 1, p. 37. 13 Transcript of April 11, 2019, p. 17, lines 15-16; p. 18, lines 9-12 14 Exhibit RPD-1, RPD Record, RPD Reasons, p. 7, lines 5-6. 15 Transcript of April 11, 2019, p. 22, line 5-7. 16 Exhibit RPD-1, RPD Record, RPD Reasons, p. 7, line 26. 17 Transcript of April 11, 2019, p. 22, lines 11-12. 18 Exhibit RAD-1, NDP for Nigeria (31 July 2020), item 5.9, RIR NGA106362.E, p. 2. 19 Ibid., p. 2. 20 Ibid., item 1.8, p. 9, para. 2.21. 21 Ibid., item 1.19, p. 52. 22 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164. 23 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at para. 111(1)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-14262 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