TB8-30229

RAD File / Dossier de la SAR : TB8-30229 TB8-30230 / TB8-30231 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 11, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person(s) who is(are) the subject of the appeal Cheryl Robinson Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX(Ms. XXXX), her husband XXXX XXXX XXXX (Mr. XXXX) and their minor sonXXXX XXXX XXXX XXXX ("the minor appellant"), appeal a decision of the Refugee Protection Division (RPD), rejecting their claims for refugee protection. [2] The appellants, who are citizens of Nigeria, argue that the RPD erred in its credibility assessment, that it erred in failing to assess the independent risk to the minor appellant, and finally in its analysis of whether an internal flight alternative (IFA) is available to them in Port Harcourt. [3] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the appeal is allowed. After conducting an independent assessment of the evidence, I agree with the appellants and find that the RPD erred in its credibility assessment, as well as in its analysis of a potential IFA. The matter will be remitted back to the RPD for redetermination before a differently constituted panel. BACKGROUND [4] The appellants claim that they fear persecution on a number of grounds in Nigeria. Mr. XXXX alleges that the Black Axe confraternity wished to forcibly recruit him in 2015. He describes that after he expressed his refusal to join, he and his wife were attacked and threatened. Mr. XXXX fled from Nigeria in XXXX 2016, and travelled to the United States, leaving his wife and son behind because of their financial circumstances. [5] In XXXX 2017, however, Ms. XXXX and her son travelled to the United States. They chose to return to Nigeria after a couple of months, rather than remaining in the United States with Mr. XXXX. Ms. XXXX alleges that after her return to Nigeria, she stayed with her in-laws, who then accused her of being a witch, and who wished to subject her son to tribal marking rituals. [6] With financial assistance from her parents, Ms. XXXX left Nigeria again in XXXX 2017 along with her son. They travelled to the United States for a second time. As Mr. XXXX had already crossed the border into Canada to make a refugee claim in XXXX 2017, Ms. XXXX and her son also travelled to Canada from the United States and initiated their own refugee claims soon after their arrival there. The appellants' claims were all joined together and heard by the RPD, which rejected all of their claims. Role of the Refugee Appeal Division (RAD) [7] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 [8] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. Admissibility of New Evidence and Request for Oral Hearing [9] The appellants have submitted new evidence about the Black Axe confraternity's actions against Mr. XXXX father, which supposedly took place in 2018. A copy of a police report, an affidavit from Mr. XXXX father, and courier envelopes are submitted as evidence of these events. [10] I find that this new evidence is not admissible. [11] The IRPA limits the ability of appellants to present new evidence on appeal to the RAD. Subsection 110(4) of the IRPA 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 claim's rejection. [12] If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.2 [13] In this case, as all of the new evidence post-dates the perfection of the appeal, I must also consider whether the new evidence meets the criteria of Rule 29 of the Refugee Appeal Division Rules. Though I am satisfied that the relevance and probative value of this evidence are sufficient to meet Rule 29, the problem with this evidence is that it does not meet the criteria of s. 110(4) of the IRPA. [14] The affidavit from Mr. XXXX father explains that on May 27, 2018, the cultists went to the father's home to look for Mr. XXXX, and that they returned a number of times in June 2018. This supposedly led the father to file a police report in July 2018. Although the appellants were in possession of a copy of the police report prior to their RPD hearing, they chose not to disclose it. Instead, seeing that there was a minor spelling issue in the report, the appellants chose to send back the original copy to Nigeria for it to be corrected and re-issued. There is no explanation for the appellants' failure to disclose the father's affidavit to the RPD. [15] An appeal at the RAD is not an opportunity for appellants to repair a deficient record that was submitted before the RPD. That is precisely what the appellants seek to do here. The appellants chose not to submit highly material evidence to the RPD, opting instead to try to have the police report re-issued from Nigeria. They describe this as a strategic choice. They received legal advice about whether they should disclose the police report. Despite receiving legal advice, they still chose not to alert the RPD to the fact that they expected to receive additional evidence, nor did they request additional time to submit post-hearing documents. They did not even send the original police report back to Nigeria until after the RPD had already rejected the claim. It cannot be said under these circumstances that this evidence arose after the rejection of the claim or that it was not reasonably available to them at the time of the rejection. [16] In regard to the affidavit from Mr. XXXX father, there is no explanation for the appellants' failure to submit this to the RPD. It is dated July 26, 2018, prior to the appellants' RPD hearing. Absent any explanation, I cannot find that this evidence arose after the appellants' claims were rejected, or that it was not reasonably available to them. [17] As to the request for an oral hearing, there is no new evidence that has been admitted on appeal. The admission of new evidence is a requirement for holding an oral hearing under subsection 110(6) of the IRPA. Therefore, the request for an oral hearing is denied. MERITS OF THE APPEAL [18] The issues on appeal are as follows: a) Whether the RPD erred in its assessment of the appellants' credibility and subjective fear; b) Whether the RPD erred by failing to conduct an assessment of the risk to the minor appellant; and c) Whether the RPD erred in its analysis of whether a viable IFA exists for the appellants in Nigeria. [19] I agree that the RPD erred in both its credibility assessment and whether a viable IFA exists in Nigeria. The appellants' arguments will be addressed in detail below. a) The RPD's credibility assessment [20] The principal reason for the RPD's disbelief at the appellants' allegations is due to the lack of corroborative evidence that the RPD expected to see from them. I agree with the appellants that the RPD's reasoning demonstrates a clear error. [21] The jurisprudence is well-settled on this issue. The starting point in a credibility assessment is that a refugee claimant's sworn testimony carries a presumption of truthfulness.3 Even in the absence of corroborative evidence, a claimant's allegations can be accepted where their account is otherwise uncontradicted and otherwise credible. The absence of corroborative evidence, on its own, is not a valid reason for disbelieving a claimant's allegations. Rather, the jurisprudence sets out that a lack of corroborative evidence is a valid consideration in assessing credibility only when the RPD has already found a valid reason to doubt a claimant's credibility.4 In the absence of such a credibility finding, the presumption of the truthfulness of a refugee claimant's sworn testimony continues to apply. [22] I agree with the appellants that the RPD failed to identify a valid credibility issue before it came to a conclusion on the credibility of the appellants' allegations. In its reasons, the RPD started by assessing the credibility of the risks alleged by Ms. XXXX. It found that there was no documentary evidence regarding the agent of persecution, Ms. XXXX mother-in-law. The RPD noted that there was no police report, nor a medical report, nor a letter from the mother-in-law about the allegations. The RPD went on to erroneously conclude that it did not believe Ms. XXXX allegations. The RPD did not first identify any valid credibility issue upon which to anchor its finding about the lack of corroborative evidence. [23] The RPD then went on to find that it did not believe Mr. XXXX allegations either, as there was no police report about the attacks and threats that he claimed to experience. It acknowledged a medical report regarding his injuries from an attack, but found that it was not conclusive as to the cause of the injuries or the identity of his attackers. Again, based solely on the lack of corroborative evidence, the RPD doubted Mr. XXXX story. [24] Given the cited jurisprudence, the RPD's credibility assessment is in error. Moreover, it appears that the RPD even overlooked material evidence. Although the RPD stated that there was no medical report in regard to Ms. XXXX, this is plainly incorrect. In fact, a medical report was submitted by the appellants in regard to a September 20, 2017 hospital visit. The report, from the XXXX XXXX XXXX in Asubiaro, Osogbo, indicates that Ms. XXXX visited the hospital on that morning, presenting with bruises on her body and a cut to her left hand, reportedly sustained as a result of a dispute with her mother-in-law.5 As this directly contradicts the RPD's finding that there was no medical report, I agree with the appellants that the RPD overlooked this evidence. [25] The appellants make additional arguments in regard to the RPD's treatment of the appellants' supporting evidence and around Mr. XXXX failure to claim in the United States, however, the above errors are, on their own, significant and determinative enough to set aside the RPD's credibility assessment. b) Assessment of risk for the minor appellant [26] The appellants also argue that the RPD erred by failing to independently assess the risk posed to the minor appellant in regard to tribal scarification. I do not agree with the appellants' argument, however given the errors in the RPD's credibility assessment, I find that the RPD also erred in its assessment of the risk to the minor appellant. [27] The appellants argue that the minor appellant presented an independent risk, and that the RPD ought to have made a separate determination about him. The appellants submit that the RPD did not even question the appellants about the tribal scarification issue in the hearing. [28] However, having reviewed the RPD hearing record, I find that the minor appellant's risk in Nigeria is not entirely independent of Ms. XXXX allegations. During the hearing, Ms. XXXX testified that her in-laws only wanted to subject her son to tribal marking rituals because of the dispute between her and her mother-in-law. She confirmed that the family does not put tribal marks on all the sons in the family. [29] As the credibility of the allegations regarding the risks to Ms. XXXX and her son are inextricably linked, I do not agree with the appellants' characterization of the minor appellant's risk as being independent of his mother's risk of persecution in Nigeria. The RPD found that Ms. XXXX allegations of persecution were not credible, and it follows that the risks alleged for her son were also not credible. However, as I have found that the RPD erred in its credibility assessment, the assessment of the minor appellant's risk is also in error. c) Internal Flight Alternative [30] In addition to its determination on credibility, the RPD found that there was a viable IFA for the appellants in the city of Port Harcourt. I agree with the appellants that the RPD erred in its IFA analysis. [31] The test for the availability of an IFA is well-established. The two-prong test is as follows: (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; and (ii) Conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants, for them to seek refuge there.6 [32] The appellants argue that the RPD erred, as it only considered the second prong of the IFA test, and did not consider any factors related to the first prong. The appellants speculate that the RPD simply dismissed the first prong of the test because the RPD had already dismissed the appellants' allegations as lacking credibility. [33] I agree that the RPD's reasons demonstrate that it was aware that there is a two-prong test for the issue of IFA, but the RPD only addressed the second prong of the test. The reasons only speak to the reasonableness of the appellants' relocation to Port Harcourt, by examining factors set out in Jurisprudential Guide TB7-19851,7 such as the appellants' ability to travel there, the language spoken, the availability of accommodation, educational and employment opportunities, among other factors. [34] I have reviewed the hearing record, and find that both the RPD and the appellants' counsel failed to elicit testimony from the appellants in regard to the first prong of the IFA test. There was no testimony in regard to whether or how any of the agents of persecution would be able to locate the appellants in Port Harcourt, or why the risk of persecution would persist there. This is despite the fact that the appellants allege that the Black Axe confraternity was able to locate them rather quickly after they relocated to evade them, and despite documentary evidence about the Black Axe confraternity's presence in many Nigerian cities and even internationally.8,9 Accordingly, there was no assessment in the RPD's reasons as to whether a serious possibility of persecution might still exist for the appellants from any of the agents of persecution in Port Harcourt. [35] By failing to apply the two-prong IFA test, the RPD erred in its analysis. CONCLUSION [36] As the RPD erred in its credibility determination and in its IFA analysis, the RPD decision is set aside. The RPD did not elicit sufficient testimony for the RAD to independently assess whether a viable IFA exists for the appellants. In addition, there are issues that require further exploration through testimony, including the credibility of the allegations and Ms. XXXX reavailment to Nigeria. As the RAD is not in a position to make a substituted decision, this matter will be remitted back to the RPD for redetermination before a differently -constituted panel. [37] The appeal is allowed, pursuant to paragraph 111(1)(c) of the IRPA. (signed) "M. Oh" M. Oh March 11, 2019 Date 1M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93;; see also Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-18), Diner, November 14, 2018; 2018 FC 1145. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para 54. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.). 4 Triana Aguirre v. Canada (Minister of Citizenship and Immigration), 2008 FC 571 at paras 15-17; Ndjavera v. Canada (Minister of Citizenship and Immigration), 2013 FC 452 at paras 6-7. 5 Exhibit RPD-1, RPD Record, pp. 202, Exhibit 6. 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706; (1991), 140 N.R. 138 (C.A.) 7 X(Re), 2018 CanLII 52123. 8 Exhibit RPD-1, RPD Record, pp. 171-182, Exhibit 5. 9 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (10 July 2018) item 7.24. Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR). NGA104208.E. 3 December 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-30229 TB8-30230 / TB8-30231 RAD.25.02 (September 18, 2018) Disponible en français 10 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 (September 18, 2018) Disponible en français