VC2-03403

RAD File / Dossier de la SAR : VC2-03403 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision August 16, 2022 Date de la décision Panel Jennifer Anne Moore Tribunal Counsel for the person who is the subject of the appeal Serge Khoury 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) is a citizen of Nigeria. He claims to fear unidentified persons connected to his ancestral village because of his refusal to follow traditional customs and rituals including subjecting his daughters to female genital mutilation (FGM). The Refugee Protection Division (RPD) found the Appellant had a viable IFA in Lagos and rejected his claim in a decision dated March 21, 2022. [2] The Appellant appeals the RPD's decision to the Refugee Appeal Division (RAD).1 The Appellant asks that the RAD set aside the decision of the RPD and substitute its own determination that he is a Convention refugee or person in need of protection. In the alternative, the Appellant requests that the matter be referred to a different panel of the RPD for redetermination. DECISION [3] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [4] The Appellant is a 47-year-old Christian man from Uromi. He has a degree in XXXX from XXXX XXXX University and was a business owner in Nigeria. He is married and has four children. His family continues to reside in Abuja, Nigeria. [5] The Appellant moved to Abuja in 2000 because he fundamentally disagreed with the customs of his ancestral village, and he refused to engage in the rituals expected of him after the death of his stepmother. His refusal angered the village elders. He remained in Abuja until 2015. [6] In 2012, he claims to have been summoned by the village elders who wanted him to assume a leadership role on the village council and wanted him to explain why he had not subjected his daughters to FGM. After refusing the requests of the elders, the Appellant was allegedly stabbed as he tried to leave the meeting. [7] The Appellant claims that the village elders were able to track his whereabouts in XXXX 2015 and they contaminated his XXXX, which was his primary source of income. A threatening note was also left for the Appellant. The Appellant and his wife sought medical treatment in the United States of America (USA) in XXXX 2015. His wife was denied entry and, upon her return to Nigeria, she found another note warning that the Appellant would be in danger if he returned to Nigeria. It was then he decided not to return. [8] The Appellant resided in the USA until XXXX 2018, when then he entered Canada and made a claim for protection. It is alleged that the agents of harm continue to pose a threat to the Appellant's family who remain in hiding in Abuja. [9] His hearing before the RPD was held on March 8, 2022. ROLE OF THE RAD [10] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.2 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.3 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [11] Following my independent assessment of the record, including reading the transcript of the RPD proceedings, I agree with the RPD and find the Appellant not to be a Convention refugee or person in need of protection. [12] Given that I have found the Appellant has a viable IFA in Lagos, I do not need to address the negative credibility inferences drawn by the RPD. IFA [13] In Rasaratnam,4 the Court of Appeal held that, with respect to the burden of proof, once the issue of an IFA is raised, the onus is on the claimant to show that he does not have an IFA. [14] In order to find that the Appellant has a viable IFA in Nigeria, I must be satisfied, on a balance of probabilities, that he would not be subjected personally to a danger of torture, or to a risk to life or a risk of cruel and unusual punishment or face a serious possibility of persecution in the proposed IFA and that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the Appellant, to seek refuge there.5 Consequently, if there is a safe haven for the Appellant in his own country, where he would be free of persecution or harm, he is expected to avail himself of it unless he can show that it is objectively unreasonable for him to do so. There is not a serious possibility of persecution or risk of harm to the Appellant in Lagos [15] There can only be a serious possibility of persecution or risk of harm if the agents of harm have both the means and motivation to locate the Appellant in the proposed IFAs.6 I find the Appellant has not established that the agents of harm would be motivated to look for him in the proposed IFAs. [16] The Appellant argues that the RPD erred in its analysis of the first prong of the IFA test by placing too much emphasis on whether the Appellant's family had experienced threats in the past seven years. The Appellant also argues that once the RPD has found the Appellant to be credible it is unfair to find the Appellant has no serious fear in the proposed IFA. I am not persuaded by either of these arguments. The onus is upon the Appellant to establish that the agents of harm have the means and motivation to find him in the proposed IFAs. For the reasons given below, I find he has not done so. [17] The Appellant testified that his wife and children are also targeted by the agents of harm. However, they have not been subjected to any threats nor have they had any contact with the agents of harm for the past seven years. I find the lack of contact between the agents of harm and alleged targets of harm speaks directly to a lack of motivation. [18] In his Basis of Claim (BOC), the Appellant claims that his family is in hiding in Abuja and that his children have been required to change schools three or four times to ensure their safety. The evidence provided in his testimony is inconsistent with these assertions. He testified that his wife continues to work at the same place of employment that she has worked at since prior to their 2008 wedding and that people from his village attended their wedding. Maintaining the same known place of employment for the last 14 years is inconsistent with being in hiding. An agent of harm could simply follow her home. That an agent of harm has not contacted the Appellant's spouse at her place of employment or while travelling to or from her place of employment speaks directly to a lack of motivation to find the Appellant. [19] The Appellant claims to have submitted school documents as proof that his children have been required to change schools several times to evade the agents of harm. The documents provided do not support this assertion. The documents provided indicate that the Appellant's children moved between schools, but this movement occurred prior to the Appellant's departure from Nigeria and prior to the alleged threats received in XXXXand XXXX of 2015. Therefore, any need for the children to move between schools is unrelated to the threat posed by the agents of harm. Additionally, the Appellant testified that his children have been attending the same school since approximately XXXXor XXXX 2015. The documentary evidence and his testimony are inconsistent with the claims made in his BOC that his children have had to change schools to maintain their safety. This inconsistency undermines the credibility of his claim that his children have had to change schools for their safety, and I find that the children have not changed schools to evade the agents of harm. That the children have attended the same school for the past seven years and have had no contact with the agents of harm speaks directly to a lack of motivation to locate the Appellant. [20] The RPD found that the Appellant lived at the same location from 2012 until he left Nigeria in 2015 which is consistent with the information contained in his Schedule A. There was some confusion in his testimony about where he lived from 2012 until 2015, as he initially said that he lived in the same location but then changed his testimony to say he had moved. Even if I were to accept that the Appellant's family moved homes between 2012 and 2015 and moved again four times since 2015, the fact that the Appellant's wife has maintained the same job and his children continue to attend the same school foils any efforts made to conceal their whereabouts. I find, on a balance of probabilities, that the Appellant's family is not trying to conceal their whereabouts which undermines the Appellant's assertion that the agents of harm are actively motivated to find them. [21] The Appellant testified that his family had been spared further threats because the agents of harm have not made the connection between himself and his family. Like the RPD, I do not accept this explanation as reasonable. The Appellant claimed the village elders called him after the birth of his third child to enquire why he had not subjected his daughters to FGM. He also testified that several members of his village had attended his wedding. The Appellant's own testimony indicates that members of his village have knowledge of the identity of the Appellant's spouse, the birth of his children, the sex of his children and an awareness that his daughters had not been subjected to FGM. Accordingly, I find the agents of harm are aware of the Appellant's family and their identity, but rather, are not motivated to approach them. [22] The Appellant was asked why the elders of his village would still be motivated to look for him after seven years. His response was only to refer to the note his wife found seven years earlier that indicated that he should "keep running." In the absence of any contact between the agents of harm and the Appellant's family during the past seven years, a dated note telling the Appellant to keep running is insufficient to demonstrate that the agents of harm have the current motivation to locate the Appellant in an IFA. [23] Given that I have found the Appellant has failed to establish that the agents of harm would be motivated to find him in the proposed IFA, it is not necessary for me to address whether they have the means to do so. It is reasonable for the Appellant to relocate to Lagos [24] Having found the Appellant has not established that the agents of harm would be motivated to find him in Lagos, I must now determine whether it would be unreasonable, in all of the circumstances, for him to relocate there. [25] The Federal Court of Appeal set a very high threshold for the "unreasonableness test," requiring nothing less than the existence of conditions which would jeopardize the life or safety of the Appellant. Further, there must be actual and concrete evidence of such conditions.7 In other words, the Appellant must present credible evidence that an IFA is untenable8 and I find he has not done so. [26] The Appellant argues that his fear of the village elders would not allow him to live at peace in Nigeria, rendering any IFA unreasonable. He also argues that he is not familiar with the IFAs, and it is not possible to live peacefully in a state that is strange to him. Lastly, he argues that he has no connections or network in the proposed IFA rendering it unreasonable. I do not find any of the Appellant's arguments rise to the level of jeopardizing his life or safety which the court has established as the test for unreasonableness. Employment and Accommodation [27] The Appellant is a well-educated man with a notable work history. He has a XXXX of XXXXinXXXX XXXX. He has worked in the XXXX XXXX in Nigeria and started his own XXXX XXXX business. In Canada, he has been employed as a XXXX XXXX with a XXXX XXXX company. [28] Notably, the Appellant is entrepreneurial which indicates he has self-discipline, a business sense and management skills. At one point, the Appellant testified that he could survive and fend for his family as long as he had his hands which I took to mean that he is self-sufficient and resourceful as long as he has his health. World Bank9 indicators show that measures taken by the Nigerian government between 2016 and 2018 have favourably impacted the ability to start a business in Lagos [29] I find, on a balance of probabilities, that the Appellant has the skills and experience necessary to find suitable work in Lagos. [30] Given that I have found the Appellant will be able to secure a livelihood in Lagos, I also find that he will have the income necessary to secure appropriate accommodation. Language and Religion [31] The Appellant speaks English which is an official language in Nigeria10 and is commonly spoken language in Lagos.11 I find the Appellant will not encounter any communication barriers in Lagos. [32] The Appellant is Christian, and Christians form the majority in Lagos.12 I find the Appellant will be able to freely practise his religion in Lagos. Kidnapping Risk [33] The Appellant indicated that moving to an IFA would expose him to a risk of being kidnapped and referred to the fact that his sister had gone missing. I acknowledge that life in Nigeria has a generalized risk of danger higher than that found in Canada. However, the risk of the Appellant being kidnapped is speculative. [34] I further acknowledge that moving to a new area can be challenging but the challenges the Appellant would face in moving to Lagos are not untenable. I find that the Appellant has not established, with actual and concrete evidence, the existence of conditions which would jeopardize his life or safety in Lagos. CONCLUSION [35] I find the Appellant has not established that he would be subjected personally to a danger of torture, or to a risk to life or a risk of cruel and unusual punishment or face a serious possibility of persecution in the proposed IFA or that conditions in that part of the country are such that it would be objectively unreasonable for him to seek refuge there. [36] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Jennifer A. Moore Jennifer Anne Moore August 16, 2022 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, ss. 111(1)(b) & s. 111(1)(c). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. 5 Ibid. 6 Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at para. 35. 7Momodu, Cordilia Gift v. M.C.I. (F.C., no.IMM-656-15), 2015 FC 1365. 8 Velasquez v. Canada (Citizenship and Immigration) (F.C. No. IMM-4439-20), 2021 FC 482. 9 RPD-1, RPD record, National Documentation Package (NDP) on Nigeria, November 30, 2021, Tab 1.19: EASO Country of Origin Information Report. Nigeria: Key socio-economic indicators. European Union. European Asylum Support Office. November 2018, at p 23. 10 Ibid., Tab 1.6: Nigeria. The World Factbook. United Central Intelligence Agency. 16 November 2021, at p.4. 11 Ibid., Tab 1.26: The socio-economic situation, including demographics, employment rates, economic sectors, and crime rates, as well as access to education, health care and housing, particularly for the cities of Lagos, Ibadan and Benin City (2018-November 2020). Immigration and Refugee Board of Canada. 12 November 2020. NGA200338.E, at p.5. 12 Ibid., Tab 1.26, at p.5. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC2-03403 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français