MB9-05319

RAD File / Dossier de la SAR : MB9-05319 MB9-05320 / MB9-05321 / MB9-05322 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 XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 15, 2019 Date de la décision Panel Joel Bousfield Tribunal Counsel for the persons who are the subject of the appeal Michael Dorey 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] The appellants' are citizens of Nigeria from Benin City. They appeal a Refugee Protection Division (RPD) decision dated February 5, 2019, rejecting their claims for refugee protection. They are requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that they are Convention refugees or persons in need of protection. In the alternative, they request that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. They have not requested to submit new evidence or an oral hearing. DETERMINATION [2] The RAD dismisses the appeal and confirms the decision of the RPD that the appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). 1 BACKGROUND Basis of Claim [3] The appellants fear female genital mutilation by the adult claimant's in-laws, kidnapping and/or severe punishment for continuing to refuse it. The particular allegations in the case are set out in paragraphs [3] through [5] of the RPD decision.2 RPD Decision [4] The RPD rejected the claims because it found that the appellants have a viable internal flight alternative (IFA) in Port Harcourt. In arriving at this conclusion, the RPD applied Nigeria Jurisprudential Guide TB7-19851 (the "JG"). The RPD found that the appellants did not face a serious possibility of being persecuted or personally subjected to a danger of torture, or to a risk to their lives, or to a risk of cruel and unusual treatment or punishment in Port Harcourt because the adult appellant did not provide any explanation as to how her in-laws could track the appellants down in Port Harcourt if they sought refuge there. The RPD also found it reasonable to expect the claimants to seek refuge in Port Harcourt because it assessed the reasonableness factors set out in the JG - language, education and employment, housing, religion and indigeneship, as weighing overall in favour of finding a reasonable IFA for the appellants in Port Harcourt. Appeal Grounds [5] The appellants submit that the RPD erred assessing the IFA issue. The appellants submit that the RPD erred in assessing the first prong of the IFA test - whether the appellants face a serious possibility of being persecuted or would be personally subjected to a danger of torture, or to a risk to their lives or to a risk of cruel and unusual treatment or punishment in Port Harcourt. The appellants submit that the RPD erred in finding that the appellants had to demonstrate that the agents of harm had the means and ability to find the appellants in Port Harcourt. The appellants submit that the RPD did not apply Chairperson's Guideline 43 correctly in assessing this prong of the IFA test, in that it should have considered the lack of state protection in deciding whether the appellants face a serious possibility of being persecuted or would be personally subjected to a danger of torture, or to a risk to their lives or to a risk of cruel and unusual treatment or punishment in Port Harcourt. The appellants submit that the RPD also erred in assessing the second prong of the IFA test - reasonableness, because it failed to consider two factors enumerated in the JG - travel and transportation and the availability of medical and mental health care and did not properly follow Chairperson's Guideline 4. ANALYSIS [6] In rendering this appeal decision, the RAD has considered Chairperson's Guideline 4 and the latest NDP.4 The RAD has also done an independent assessment of the record. Determinative Issue [7] The determinative issue in this appeal is whether the RPD erred in assessing whether the appellants have a viable IFA in Port Harcourt. First Prong of the IFA Test - Well-founded fear [8] The RAD finds that the RPD assessed this prong of the IFA test correctly. [9] Again, the appellants submit that the RPD erred in finding that the appellants had to demonstrate that the agents of harm had the means and ability to find the appellants in Port Harcourt. The appellants also submit that the RPD did not apply Chairperson's Guideline 4 correctly in assessing this prong of the IFA test, in that it should have considered the lack of state protection in deciding whether the appellants face a serious possibility of being persecuted or would be personally subjected to a danger of torture, or to a risk to their lives or to a risk of cruel and unusual treatment or punishment in Port Harcourt. However, it was not an error for the RPD to look for evidence that the agents of harm had the means and ability to track the appellants down in Port Harcourt, and having reviewed the record and assessed it independently, the RAD notes, as the RPD also did, that the adult appellant never provided any explanation or evidence as to how the agents of persecution - her in-laws, could track the appellants down in Port Harcourt. Not having any such evidence, there is no basis upon which to conclude that the appellants face a serious possibility of being persecuted or would be personally subjected to a danger of torture, or to a risk to their lives or to a risk of cruel and unusual treatment or punishment in Port Harcourt. An analysis of state protection in Port Harcourt was therefore not necessary for the RPD and is not necessary for the RAD because there is no indication that state protection would ever be needed, again because there is no indication that the agents of persecution can find and harm the appellants in Port Harcourt. Second Prong of the IFA Test - Reasonableness [10] The RAD also finds that the RPD also assessed this prong of the IFA test correctly. [11] Again, the appellants submit that the RPD erred in assessing the second prong of the IFA test - reasonableness, because it failed to consider two factors enumerated in the JG - travel and transportation and the availability of medical and mental health care. [12] Having reviewed the record and assessed it independently, the RAD finds that the RPD did not overlook any reasonableness factors that might have weighed against finding a viable IFA in Port Harcourt. The RAD notes that the adult appellant testified that the only reason the appellants could not live in Port Harcourt was their fear of being tracked down by her in-laws and that she also testified that there were no other factors that would make it unreasonable for the RPD to expect the appellants to seek internal refuge in Port Harcourt. Moreover, her counsel did not lead evidence on any reasonableness factors enumerated by the JG in his questions. So, the appellants never provided any indication that they would have any travel or transportation difficulties, and/or any medical and mental health issues in attempting to relocate to Port Harcourt, the RPD therefore had no need to discuss these two factors. Furthermore, the RAD agrees with the RPD's assessment that the remaining reasonableness factors as they apply to the evidence in this case weigh overall toward a finding that Port Harcourt is a reasonable IFA for the appellants. The RAD is therefore satisfied, on a balance of probabilities, that it was correct for the RPD to expect the appellants to seek internal refuge in Port Harcourt. The RAD also comes to the same conclusion. [13] The RAD therefore agrees with the RPD and finds that the appellants have a viable IFA in Port Harcourt. As the appellants have a viable IFA in Port Harcourt, the RAD finds that the appellants do not have a well-founded fear of persecution on a Convention ground and that, on a balance of probabilities, they would not be personally subjected to a danger of torture or to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they returned to Nigeria. CONCLUSION [14] Having reviewed and independently assessed the evidence, the RAD concludes that the RPD correctly concluded that the appellants have a viable IFA in Port Harcourt, and therefore that they do not have a well-founded fear of persecution on a Convention ground and, on a balance of probabilities, would not be personally subjected to a danger of torture or to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they returned to Nigeria. [15] Pursuant to section 111(1)(a) of the IRPA, the RAD therefore confirms the decision of the RPD and finds that the appellants are not Convention refugees and not persons in need of protection. [16] The appeal is therefore dismissed. (signed) "Joel Bousfield" Joel Bousfield October 15, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit RPD-1, RPD Record, RPD Reasons, at pp.10-16. 3Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the IRPA. 4 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Nigeria, (August 20, 2019), see all items; 1, 2, 5, and 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-05319 MB9-05320 / MB9-05321 / MB9-05322 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français