MB9-26403

RAD File No. / No de dossier de la SAR : MB9-26403 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 Montréal, QC Appel instruit / entendu à Date of decision April 12, 2021 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Claudia Aceituno 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 INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Nigeria, is appealing the Refugee Protection Division (RPD) decision rejecting his refugee protection claim. [2] The appeal is dismissed for the reasons set out below. BACKGROUND [3] In his Basis of Claim Form (BOC Form), the appellant, a university graduate with a master's degree, alleges that he was a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and had been in charge of its "XXXX XXXX" since 2005, which made his colleagues jealous. [4] The appellant alleges that students vandalized his home and beat him and his fiancée in 2007. [5] In his BOC Form, the appellant also alleges that one of his XXXX, a fraternity member who XXXX XXXX XXXX XXXX threatened him in May 2016. [6] The appellant left his country for the United States on XXXX XXXX XXXX 2016, and arrived in Canada to claim refugee protection in December 2017. [7] In an addition to his BOC Form, which was filed in September 2019, the appellant alleges that his former office at the XXXX was vandalized in 2017 and that some of his colleagues were kidnapped and murdered. [8] At the RPD hearing, the appellant added that he also fears his aunt in Nigeria, who wants to kill him because she is jealous of her sister (the appellant's mother). He alleged that this aunt is responsible for the death of his sister and had conspired with the husband of the appellant's sister. [9] After a hearing on September 13, 2019, the RPD rejected the refugee protection claim because the appellant has an internal flight alternative (IFA) in Nigeria, in the cities of Lagos, Abuja and Benin City. [10] Before the Refugee Appeal Division (RAD), the appellant submits that the RPD erred in its IFA assessment, for reasons that will be detailed in the Analysis section, if necessary. [11] For these reasons, the appellant requests that the RAD set aside the RPD's determination and grant him protection or, alternatively, refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND THE REFUGEE APPEAL DIVISION'S ROLE [12] The RAD's role is to review RPD decisions using the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. NEW EVIDENCE [13] Before the RAD, the appellant filed a document in his appellant's record that he submits is new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), which states that: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [14] In addition to the explicit conditions in subsection 110(4) of the IRPA, the RAD must also take into account the implicit conditions concerning the admissibility of new evidence, as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96), specifically, the credibility and relevance of the new evidence. [15] The document filed is a death certificate for the appellant's sister dated May 16, 2016. [16] I do not accept this document in evidence for the reasons that follow. [17] First, this document predates the rejection of the claim, and in his memorandum, the appellant fails to explain why it was not available, or why it was not presented to the RPD if it was available. [18] Second, I am of the opinion that this document is not relevant to this case. The RPD did not question the credibility of the death of the appellant's sister, and this document is merely a certificate, which does not establish the causes or circumstances of the death. [19] On September 3, 2020, pursuant to rule 29 of the Refugee Appeal Division Rules, the appellant presented two documents, which he submits are also new evidence under subsection 110(4) of the IRPA, to the RAD. [20] The first document, which is dated July 24, 2019, is an affidavit signed by the appellant's alleged wife, who confirms the attack at his home in 2007. [21] I do not accept this document in evidence before the RAD for the reasons set out below. [22] This document predates the rejection of the claim, and the appellant fails to explain why it was not available at that time, or why it was not presented to the RPD if it was available. There is also no explanation for why this document was not filed with the appellant's record or why this affidavit was allegedly signed some nine years after the events in 2007. I further note that the RPD did not question the facts in the affidavit, and it is therefore not relevant to try to corroborate them. [23] The second document is an affidavit dated August 12, 2020, from the same person, that is, the appellant's wife, and it refers to the following facts: the oldest woman in the signatory's family ("oldest woman in my family") died; someone was murdered in front of XXXX XXXX XXXX on XXXX XXXX, 2020; the signatory got scared when she saw "a strange car" with two young men in front of her home on July 30, 2020. [24] I do not accept this document in evidence either. I am of the opinion that the appellant failed to establish why this document is relevant to this case. The IFA is the determinative issue in this case, and I do not see how the facts reported in the affidavit are related to the appellant's allegations or how they would have any impact on the IFA, as determined by the RPD. ANALYSIS [25] The issue in this case is whether the RPD erred in its assessment of the appellant's IFA in Nigeria. [26] After analyzing the evidence submitted, which included reading the transcript of the RPD hearing, the RPD's reasons and the appellant's submissions, I am of the opinion that the answer to this question is no, for the reasons set out below. [27] The test to be applied to assess the IFA was set out by the Federal Court of Appeal in Rasaratnam1 and Thirunavukkarasu.2 It is clear from these decisions that the test to be applied in determining whether there is an IFA is two-pronged: i. ... the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists. ii. Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. [28] Both prongs must be satisfied for a finding that an IFA exists. [29] In its analysis, the RPD applied the jurisprudential guide issued by the Chairperson of the Immigration and Refugee Board of Canada in TB7-19851, which addresses IFAs in Nigeria for claimants fearing non-state actors. The Chairperson has since revoked this jurisprudential guide, but it is now part of the Reasons of Interest that are published on the Board's website because of the value of its analytical framework in the absence of any findings of fact. [30] Nevertheless, the RPD conducted an analysis of the IFA in this case based on the facts in it, as follows. [31] For the first prong of the analysis, the RPD concluded that the appellant has an IFA in Lagos, Abuja and Benin City for the following reasons. A. There is no evidence establishing that the appellant's former colleagues, who were XXXX XXXX XXXX XXXX, are looking for him in Nigeria. [32] In his memorandum, the appellant submits that the RPD erred in that regard because it found that his testimony was credible and because he testified that he believed that his former colleagues were responsible for vandalizing his former office at the XXXX in 2017. [33] For my part, I come to the same conclusion as the RPD in this regard. [34] First, in the addition to his BOC Form, the appellant states that the damage to his former office happened during student riots. In my opinion, there is no basis for concluding that the professors were responsible for the vandalism or that the appellant was personally targeted during the riots because he had left the country and his XXXX XXXX XXXX XXXX 2016. [35] The appellant adds that the fact that one of his former colleagues was then appointed as XXXX XXXX XXXX XXXX XXXX to replace him shows that his former colleagues vandalized his office and still want to go after him. [36] I cannot agree with that statement. On the contrary, I find it likely that, since the appellant left his job and the country, his former colleagues would not be interested in vandalizing his office or searching for him all over the country. It also makes perfect sense to me that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX to replace the appellant. [37] Even if the RPD had found that the facts alleged by the appellant were credible, the fact remains that the panel must assess the objective basis for his fear. That is what the RPD and RAD have done in this case by concluding that the appellant's fear of his former colleagues is not objectively well founded based on the analysis of the evidence submitted. B. There is no evidence establishing that the appellant's former students, members of a fraternity or "cult group," are looking for him in Nigeria or that those students would be able to locate him in the proposed IFA locations. [38] In his memorandum, the appellant submits that the RPD erred by failing to consider that the student fraternity members could track him down in the proposed IFA locations. [39] On the contrary, I am of the opinion that the RPD considered that ability. The RPD concluded that the students operate on campuses and that the appellant has not worked there for three years (over four years now). The RPD was also of the opinion that the appellant could find a job off campus if he had to relocate to the proposed IFA locations. Lastly, the RPD was of the opinion that there is no evidence establishing that his former students are looking for him in Nigeria, for instance, through his family, friends or former colleagues. Based on the analysis of the evidence submitted, I come to the same conclusion as the RPD in that regard. [40] The appellant also submits that he could be easily found in Nigeria by simply entering his name into social media search engines. [41] Like the RPD, I am also of the opinion that the appellant is speculating and that he has not submitted any evidence to that end. C. The evidence submitted does not establish that the appellant's aunt wants to kill him and, even assuming that she would like to do so, the evidence does not establish that she would be able to find him in the proposed IFA locations. [42] This is, in fact, a conclusion on the appellant's objective fear of his aunt. [43] Like the RPD, I am also of the opinion that the evidence submitted does not establish that the appellant's aunt is responsible for his sister's death or that she also wants to kill him. The appellant's statement is based a dream his sister reportedly had, which she allegedly describes in a letter. I am also of the opinion that the appellant is speculating and that this fear is not objectively well founded in this case. [44] Moreover, I would add that the appellant's aunt could directly target her sister, the appellant's mother, if she really were jealous of her to the point of murdering her children, which she has not done according to the evidence submitted. [45] As a result of this conclusion on the appellant's alleged fear of his aunt, the RAD does not need to further assess the correctness of the RPD's alternative finding that his aunt would not be able to locate the appellant in the proposed IFA locations. [46] Moreover, the appellant submits in his memorandum that the RPD erred by analyzing his testimony [translation] "through the lens of a Western paradigm" without considering Nigeria's cultural context. [47] I cannot agree with the appellant in that respect. It is not enough to make such a general statement. It also has to be established, which the appellant fails to do in this case. There is no evidence on the record that could establish that statement. [48] As for the second prong of the IFA analysis, the reasonableness of the IFA, the RPD was of the opinion that nothing in the evidence provided demonstrates that it would be objectively unreasonable for the appellant to settle in Lagos, Abuja or Benin City. [49] In his memorandum, the appellant does not specifically challenge this conclusion, and I do not see how the RPD would have erred in that respect. [50] In its analysis, the RPD considered the fact that the appellant has a university education and extensive work experience that would help him find a job and, therefore, housing. He speaks Yoruba and English, languages that are widely spoken in the proposed IFA locations. [51] There are no laws or regulations, for example, that would prevent the appellant from settling in the proposed IFA cities. There is also nothing to demonstrate that the appellant could not access the public services available to citizens in those cities. [52] Based on the analysis of the evidence submitted, I come to the same conclusion as the RPD that it would not be objectively unreasonable for the appellant to relocate to the proposed IFA cities. [53] Accordingly, in light of all of the above, I conclude that the appellant failed to establish that the RPD committed errors that would justify the RAD's intervention. REMEDY [54] For these reasons, I confirm the RPD's determination, namely that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [55] The appeal is dismissed. (signed) Normand Leduc Normand Leduc April 12, 2021 Date IRB translation Original language: French 1 Rasaratnam v. Canada (1992) 1 F.C. 706 (C.A.), p. 710. 2 Thirunavukkarasu v. Canada (1994) 1 F.C. 589 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-26403 RAD.25.02 (January 2020) Disponible en français 3 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