MB9-20813

RAD File / Dossier de la SAR : MB9-20813 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 December 24, 2020 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the person who is the subject of the appeal Merveille Leunga 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. [2] XXXX XXXX XXXX (the Appellant) is a citizen of Nigeria. [3] The Appellant alleges a risk of harm at the hands of his stepmother and her four children as a result of their mistaken belief that he is in possession of his late father's will; a will they believe would benefit the Appellant due to his close relationship with his father. The Appellant's father died in XXXX 2014, and the Appellant claims to have been threatened by his stepmother since that time. The Appellant left Nigeria on XXXX XXXX XXXX 2016 and entered Canada, irregularly, on XXXX XXXX XXXX 2017. The Appellant's wife and children remain in Nigeria. [4] The Refugee Protection Division (RPD) determined that Benin and Port Harcourt are viable internal flight alternatives (IFAs). The RPD noted that the Appellant maintained the same residence in Lagos (where his stepfamily also resides) for two years after his father's death. Moreover, the Appellant's Basis of Claim (BOC) form omits any mention of the Appellant being followed in Lagos and Akure. Also, there have not been any threats or problems for the Appellant's family since the Appellant's departure. These factors led the RPD to conclude that the agents of harm do not have the means and motivation to harm the Appellant. [5] The Appellant contends that the proposed IFAs are unreasonable and that adequate state protection is not available. The Appellant's stepmother continues to look for his father's will, and the IFAs are unrealistic and unaffordable in light of the Appellant's XXXX health issues, lack of access to childcare, and limited employment opportunities. The Appellant has requested to admit new evidence and to have an oral hearing. [6] The determinative issues in this appeal are nexus and the objective basis of the Appellant's harm (including state protection). After reviewing the record, I find that it does not establish, on a balance of probabilities, a nexus to a Convention ground. The allegations are grounded in a longstanding family feud and multiple claims to the assets of the Appellant's father. Moreover, insufficient evidence was provided to establish an objective basis to the Appellant's harm. As a result, the Appellant is neither a Convention refugee nor a person in need of protection. DECISION [7] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [8] On October 7, 2020, I invited submissions from Counsel on two new issues: the applicable nexus to the Convention and the objective basis of the Appellant's harm.1 Counsel replied on October 23, 2020, and I have considered those submissions in reaching my decision.2 NEW EVIDENCE The evidence presented by the Appellant is partially accepted [9] According to the law,3 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If none of these criteria are satisfied, the inquiry ends there; the evidence cannot be admitted. If the evidence meets one or more of these requirements, I must then decide if the evidence is credible, relevant, and new.4 The evidence will not be considered if it lacks credibility as to its source and the circumstances in which it came into existence or if it is incapable of proving or disproving a relevant fact to the refugee claim.5 The evidence will also be excluded if it fails to prove a new fact, event, or circumstance arising after, or unknown at the time of, the RPD hearing. [11] The Appellant bears the responsibility of making full and detailed submissions about how the proposed new evidence meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the claim.6 [12] The Appellant has requested to admit new evidence. I have assessed the admissibility of the submitted documents as follows: (a) Affidavit of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2019: I find that this declaration from the Appellant's spouse is admissible. The document is dated after the RPD's decision. It refers to a XXXX 2019 encounter with her mother-in-law, who is an alleged agent of harm. It also refers to an XXXX 2019 burglary, which was allegedly organized by her mother-in-law. These events arose after the date of the RPD's decision. The document was sworn at the XXXX XXXX of Lagos State. It is signed and dated by the declarant. The stamps of the court and the commissioner are affixed, and a photograph of the declarant is included. The document attests to the degree of harm faced by the Appellant's family and, by implication, the Appellant himself. For these reasons, the document is credible, relevant, and new. (b) Affidavit of XXXX XXXX XXXX XXXX XXXX XXXX 2019: I find that this declaration from the neighbour of the Appellant's spouse is admissible. This document is dated after the RPD's decision. It indicates that XXXX XXXX XXXX witnessed the XXXX 2019 burglary, mentioned above. The burglary arose after the date of the RPD's decision. The document was sworn at the XXXX XXXX of Lagos State. It is signed and dated by the declarant. The stamps of the court and the commissioner are affixed, and the declarant's e-mail address is included. The document alludes to the risk of harm faced by the Appellant's family. For these reasons, the document is credible, relevant, and new. (c) Affidavit of XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2020: I find that this declaration from the Appellant's sister-in-law is admissible. The document seeks to confirm that the Appellant's wife fled to the deponent's residence following the XXXX 2019 burglary. This event arose after the date of the RPD's decision. Furthermore, the document is signed and dated by the declarant. The stamps of the court and the commissioner are affixed, and the declarant's e-mail address and photograph are included. For these reasons, the document is credible, relevant, and new. (d) Statement of XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2020: I find that this statement from the Appellant's friend is inadmissible. Though dated after the RPD's decision, it merely refers to the death of the Appellant's father in 2014. No other specific incident is mentioned. Instead, the declarant opines generally about the conduct of the Appellant's stepmother and the Appellant's risk of harm if returned. Accordingly, I find that the substantive content of the statement exclusively arose before the RPD's decision. Although Mr. O states that he was not in Nigeria for a year prior to the date of his letter, claimants bear the onus of making reasonable efforts to provide all relevant evidence in support of their claims to the RPD; the Appellant has not explained why this statement could not have been provided at anytime before the RPD's decision. I note the 21-month interval between the Appellant filing for refugee protection (XXXX 2017) and the RPD's decision (XXXX 2019). Under the circumstances, the Appellant could have reasonably been expected to adduce this evidence prior to the RPD's decision. None of the statutory criteria set out at subsection 110(4) of the IRPA are satisfied. (e) XXXX Report from XXXX XXXX of XXXX XXXX XXXX XXXX XXXX XXXX 2019: I find that this XXXX report is inadmissible. This report features the results of the Appellant's XXXX assessment completed on XXXX XXXX XXXX 2019. The assessment postdates the RPD's decision. However, the Appellant has not explained why it could not have been assessed prior to the RPD's decision. The report is unclear as to when the Appellant's XXXX health issues arose. Therefore, I find that subsection 110(4) of the IRPA is not satisfied. I further note that the two-page report is unsigned. Though written by a "Doctoral Candidate", the report itself does not indicate whether XXXX XXXX XXXX was a licensed XXXX health professional at the time of its composition or whether the report was endorsed by XXXX XXXX XXXX listed supervisors (e.g. XXXX XXXXandXXXX XXXX XXXX). This discrepancy is of particular significance given that multiple explicit diagnoses are referenced, including XXXX XXXX XXXX XXXX XXXX. For these reasons, I find that the report lacks credibility as to its source. (f) Employment Letters regarding XXXX XXXX XXXX XXXXand XXXX 2019: I find that these documents are inadmissible. The Appellant failed to explain how these employment letters - related to a person who is not subject to this appeal - meet the criteria set out by the IRPA and the case law. I can nevertheless discern from the Appellant's Memorandum that he is seeking to demonstrate, as part of his internal flight alternative argument, that reference letters are essential to securing employment in Nigeria.7 Though these particular documents postdate the RPD's decision, the substantive content arose and was reasonably available prior to the RPD's decision. The employability of the Appellant throughout Nigeria would obviously be germane to an analysis of an internal flight alternative. The record does not reveal that the Appellant attempted to present this evidence after the RPD hearing by way of an application under RPD Rule 43. For these reasons, I find that the Appellant could be reasonably expected to provide this evidence prior to the RPD's decision. Subsection 110(4) of the IRPA is therefore not satisfied. I further find that this evidence lacks relevance. The Appellant has not articulated any correlation between the subject of these employment letters (XXXX XXXX) and the Appellant. The documents also do not attest, either directly or indirectly, to the general importance of reference letters in Nigeria. Therefore, I find that this evidence is incapable of proving or disproving a relevant fact to the refugee claim. (g) Article, Punch Editorial Board, "Unending public service recruitment scandals": This document is inadmissible. This editorial article purports to expose the corruption and manipulation found in Nigeria's public service. It is dated "Oct 24", but the year of publication is not mentioned. Moreover, the Appellant has not provided submissions on the admissibility of this particular article. On a balance of probabilities, I find that there is insufficient evidence to determine whether the article meets the criteria set out at subsection 110(4) of the IRPA. (h) Article, Punch News, "Correctional officer jailed four years over N1.5m job scam": This document is inadmissible. The article refers to a job scam in Nigeria; an individual was convicted for fraudulently assuring government jobs to his six victims. Similar to the previous article, the year of publication is not mentioned, nor has the Appellant explained how this article is admissible as new evidence. Accordingly, I find that there is insufficient evidence to determine whether the article meets the criteria set out at subsection 110(4) of the IRPA. (i) Article, Premium Times, "1.4 million Nigerians applied for 5,000 Civil Defence jobs", January 22, 2020: This article is admissible. The document provides recent employment statistics in the Nigeria Security and Civil Defence Corps. It suggests that Nigeria is experiencing acute unemployment. The article arose after the RPD hearing, as it addresses the results of a specific recruitment process that ended on September 7, 2019. Subsection 110(4) of the IRPA is satisfied. The name of the publication is provided (Premium Times) as well as the name of the journalist ("Samuel Ogundipe"). This article is relevant to the analysis of viable internal flight alternatives. For these reasons, I find that this evidence is credible, relevant, and new. (j) Article, Punch, "Nigeria may import doctors to address shortage - Medical Guild", October 1, 2019: This article is admissible. The document alludes to the deterioration in the Nigerian health care system, leading the Lagos Medical Guild to urge the federal government to declare a statement of emergency. This article arose after the date of the RPD's decision, given that the actions of the Medical Guild occurred on the Tuesday prior to the publication date, that is, September 29, 2019. It was published by a recognized news organization in Nigeria, and by discussing healthcare availability, the article relates to the analysis of viable internal flight alternatives. For these reasons, I find that this evidence is credible, relevant, and new. (k) Article, Al-Jazeera, "Nigeria has a mental health problem", October 10, 2019: This article is inadmissible. The document references Nigeria's lack of mental health care. Though dated October 10, 2019, the Appellant has not adequately explained how the substantive content of the article arose after the RPD's decision or why it was not reasonably available before that date. On a balance of probabilities, I find that this evidence does not meet the criteria set out at subsection 110(4) of the IRPA. (l) Report, Human Rights Watch, "Nigeria : Des personnes atteintes de troubles mentaux sont enchaînées et maltraitées", November 11, 2019 : This report is admissible. The document references Nigeria's mistreatment of persons with mental health issues. Human Rights Watch investigated this issue from August 2018 to September 2019; therefore, I find the substantive content of this article was not reasonably available before the RPD's decision. Human Rights Watch is a recognized international human rights organization. The article relates to the viability of internal flight alternatives. Therefore, I find that this evidence is credible, relevant, and new. (m) Article, La Presse, "Nigeria : des malades mentaux enchaînés et maltraités", November 13, 2019: This article is admissible. Published by a recognized Canadian news organization, it is a commentary on the Human Rights Watch report, mentioned above. I thus find that it arose after the date of the RPD's decision and is credible, relevant, and new. (n) Article, World Health Organization, "Troubles mentaux", November 28, 2019: This document is inadmissible. It canvasses, in a general manner, different types of mental health issues, including depression, bipolar disorder and schizophrenia. Though the article was published in November 2019, the Appellant has not explained how the substantive content arose after the RPD's decision or why it could not have been reasonably provided before that date. A Refugee Appeal Division (RAD) appeal is not an opportunity to correct a deficient record. For these reasons, I find that this evidence does not meet the criteria set out at subsection 110(4) of the IRPA. Summary regarding new evidence [13] I have admitted the affidavits of the Appellant's spouse, the neighbour of the Appellant's spouse, and the Appellant's sister-in-law. I have also admitted the news article from the Premium Times regarding labour statistics in Nigeria, the news article from Punch regarding the physician shortage, the Human Rights Watch report on the mistreatment of persons with mental health issues and the La Presse article providing commentary on the Human Rights Watch report. The remainder of the submitted new evidence is rejected. An oral hearing is not permitted [14] The new evidence that I have admitted does not raise a serious credibility issue, and therefore a hearing is not permitted, pursuant to subsection 110(6) of the IRPA. ANALYSIS The role of the RAD [15] The RAD reviews the RPD's decision and comes to an independent assessment of the refugee claim.8 In providing a final determination, the RAD will intervene if it finds that the RPD erred, unless the RPD's decision can be confirmed on another basis.9 The standard of correctness applies.10 If the RPD has a meaningful advantage in assessing the credibility of oral testimony, then the RPD's finding may be accorded deference.11 [16] In this case, the RPD did not have a meaningful advantage. Accordingly, I have conducted an independent assessment of the oral and documentary evidence using the correctness standard. The method adopted in analyzing this appeal [17] After reviewing the RPD's decision and the evidentiary record, I determined that the nature of the alleged harm warranted further examination. Prior to evaluating the safety and reasonability of a potential IFA, the nexus to the Convention and the objective basis of the harm should be sufficiently clear. For this reason, as mentioned above, I solicited additional submissions from Counsel. [18] In the end, I find that the Appellant has failed to establish, on a balance of probabilities, a nexus to the Convention or an objective basis of the alleged harm. As these findings are determinative of the appeal, an IFA assessment is not required. There is no nexus to the Convention [19] I reviewed the evidence to determine the applicable Convention ground for the alleged harm and considered Counsel's submissions on this issue. Ultimately, I find that the harm, as alleged, does not have a nexus to the Convention. [20] Counsel submits that the Appellant is a member of a particular social group - the group being "families".12 I disagree with this argument. The Appellant does not allege being pursued because he is a member of a particular family. Rather, the agents of harm are pursuing him because they believe he is in possession of his father's will, and they believe he is preferentially treated in this will. These are not innate or immutable characteristics. The Appellant is essentially embroiled in an intra-family feud that is devoid of a clear link to any of the Convention grounds. As a result, the Appellant cannot be considered a Convention refugee under section 96 of the IRPA. There is insufficient evidence that the Appellant would face section 97 harm [21] Counsel argues that the Appellant faces section 97 harm, if returned. After reviewing the evidence, I find that the Appellant has not established a risk of harm, on a balance of probabilities. [22] Counsel's supplementary submissions make conclusive statements without identifying the supporting evidentiary basis. On the issue of state protection, which forms part of the objective element of the refugee definition, Counsel posits: ...la présomption de la protection de l'état du Nigéria à son égard a été réfutée, l'appelant ayant démontré à travers la preuve documentaire et matérielle convaincante qui fait état de l'inexistence ou de l'inefficacité de la protection de l'état du Nigéria à son endroit;13 The Appellant does not offer a clear and specific explanation of how the presumption of state protection was actually rebutted. The law requires clear and convincing proof and not subjective assertions.14 [23] The Appellant appears to rely on the National Documentation Package (NDP), arguing that it reveals that persecution emanating from a family dispute leads to inadequate state protection.15 More specifically, Counsel cites a report from the Office français de protection des réfugiés et apatrides for the proposition that Nigerian authorities deem some harmful conduct as private matters, in which case no meaningful action is taken. However, when considered in context, the citation clearly refers to cases of conjugal violence, female genital mutilation, and child marriage; the Appellant's alleged harm bears no relation to gender-based situations.16 [24] The Appellant has not provided evidence that the state does not investigate or pursue cases of harassment or breaking-and-entering. I have considered the affidavit of the Appellant's wife regarding the XXXX 2019 burglary. There is insufficient evidence that she made meaningful attempts to report the incident to the police. She states that she went to the police station to file a complaint, but "the police did not do anything to help me".17 This statement does not indicate that the Appellant's spouse was prevented from filing a complaint or that she made any attempts to speak to a supervisor. Therefore, I find that there is insufficient evidence to rebut the presumption of state protection. [25] On the question of whether the cumulative conduct of the Appellant's stepmother amounts to a risk to life, cruel and unusual punishment, or a danger of torture, I make the following observations and findings: (a) The Appellant remained in Nigeria for almost two years after his father's death and was not harmed. The Appellant maintained the same residence in Lagos during this time and remained employed until he left the country.18 These facts are incompatible with the Appellant's assertion that the agents of harm have the means and motivation to harm him. (b) The Appellant testified that he received threatening calls from the agents of harm between his father's death in 2014 and the Appellant's departure in 2016. The threats included a threat to use black magic against the Appellant. When asked how many threats were received, the Appellant could not provide an estimate, only stating that he received "several" and that they were "frequent".19 I find that this testimony is unduly vague and undermines the trustworthiness of the Appellant's testimony. (c) The Appellant testified that he would still be in danger even if he renounced, in writing, all claims to his father's properties because the agents of harm would still be fearful that he could change his mind in the future.20 I find that this Appellant's testimony is purely speculative; it is not anchored in a previous experience, applicable Nigerian law, or other corroborative evidence. (d) The Appellant's stepmother and her children are currently in control of the estate of the Appellant's father.21 Neither the Appellant nor his family have taken any steps to obtain any of his father's properties.22 These facts are incompatible with the claim that the agents of harm have the means and motivation to harm the Appellant. (e) The Appellant's family was not present during the XXXX 2019 break-in. Since the 2014 death of the Appellant's father, the Appellant's family has not been physically harmed. These facts are incompatible with the claim that the agents of harm have the means and motivation to harm the Appellant. [26] As a whole, the evidence demonstrates that the Appellant's stepmother is solely concerned with controlling the estate of the Appellant's father. So long as the Appellant does not insist on receiving his share of the father's estate, he would likely remain in safety. Though the Appellant may face threats or harassment from the agents of harm if returned, I find, under the circumstances, that this conduct is not sufficient to constitute section 97 harm. On a balance of probabilities, the objective evidence does not establish a risk to life, cruel and unusual treatment or punishment or a danger of torture. CONCLUSION [27] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Joseph W. Richards II Joseph W. Richards II December 24, 2020 Date 1 Exhibit RAD-1, Member's Directions, October 7, 2020. 2 Exhibit P-3, Response to Member's Directions, October 23, 2020. 3 Subsection 110(4) of the IRPA. 4 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para. 13. 6 Refugee Appeal Division Rules, section 3(3)(g)(iii). 7 Exhibit P-2, Appellant's Record, Memorandum, at paras. 61-62. 8 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, November 7, 2014, 2014 FC 799, at paras. 54-55; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 9 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 78, 103. See IRPA, s. 111. 10 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 78, 103. 11 Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145, at para. 105; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 70. 12 Exhibit P-3, Additional Submissions, October 23, 2020, at paras. 35-36. 13 Ibid., at para. 42. 14 See M.C.I. v. Olah, Bernadett (F.C.T.D., no. IMM-2763-01), McKeown, May 24, 2002; 2002 FCT 595. 15 Exhibit P-2, Appellant's Record, Memorandum, at paras. 140-141. 16 NDP for Nigeria (April 30, 2019), item 1.5, Office français de protection des réfugiés et apatrides, "Rapport de mission en République fédérale du Nigeria du 9 au 21 septembre 2016", 2016, at p. 76. 17 Exhibit P-2, Appellant's Record, at p. 14 (para. 7). 18 Transcript of the RPD Hearing, July 15, 2019, at p. 9; Exhibit RPD-1, RPD Record, at p. 114. 19 Transcript of the RPD Hearing, July 15, 2019, at p. 18. 20 Ibid., at p. 20. 21 Ibid., at p. 24. 22 Ibid., at p. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-20813 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