TB7-24028

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 File / Dossier de la SAR : TB7-24028 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 10, 2018 Date de la décision Panel Sasha Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject of the appeal Johnson Babalola Barrister and Solicitor Conseil(s) (de la/des) personne(s) 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 ("Principal Appellant"), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated November 2, 2017, rejecting her claim for refugee protection. She has asked the Refugee Appeal Division (RAD) to substitute the RPD decision and recognize her as a Convention refugee or, in the alternative, to remit this matter back to a different RPD member for redetermination. [2] She is seeking to admit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), and is also requesting an oral hearing. DETERMINATION [3] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. BACKGROUND AND OVERVIEW OF APPEAL [4] The Appellant, a XXXX-year old Yoruba Muslim woman living in Lagos, fled Nigeria because she did not wish to marry XXXX XXXX XXXX ("Mr. XXXX"), an XXXX-year-old Christian man with multiple wives and children. Her father was a long-time employee and friend of Mr. XXXX and he had promised her hand in marriage in order to repay a debt. [5] In January 2016, the Appellant went to stay with her aunt in Abuja but she was found by the police and forcibly returned to Lagos on the request of Mr. XXXX. The wedding was originally planned for August 1, 2016 but then had to be postponed until May 27, 2017. The Appellant went to stay at a friend's house in March 2017 and left Nigeria on XXXX XXXX XXXX XXXX. She made an inland refugee claim in Canada in May 2017. NEW EVIDENCE [6] The Appellant seeks to admit an affidavit from XXXX XXXX ("XXXX"), a cleaner who works and lives at her father's home, and a wedding invitation that XXXX was able to locate as new evidence in this appeal. For the reasons that follow, I reject this request and find this evidence inadmissible for the purposes of this appeal. [7] She explains that this evidence was not reasonably available to her at the time of the hearing because she was reluctant to contact XXXX who lives in the same house as the agent of persecution. No explanation is provided as to why the Appellant is suddenly willing to take the extra step of contactingXXXX XXXX and there is nothing before me to explain why this step was not taken sooner, specifically, before the RPD decision was rendered. [8] As will be discussed below, I do not find the Appellant's explanation for failing to gather evidence to support her claim before leaving the country to be reasonable. I would have therefore, expected the Appellant to have gathered this sort of evidence before leaving the country. [9] I find that this new evidence does not meet the criteria of IRPA subsection 110(4) as I would have expected the Appellant to provide this type of corroborative evidence before her claim was rejected by the RPD. REQUEST FOR AN ORAL HEARING [10] The Appellant requests an oral hearing. According to the case law, the onus is on the RAD to determine whether the requirements for an oral hearing set out in subsection 110(6) of the IRPA have been met.1 One of the determining factors is that evidence presented on appeal must have been found to be admissible. As I have found the new evidence to be inadmissible, there is no new documentary evidence to be analyzed in a hearing before the RAD2 and, consequently, the request is denied. ROLE OF THE RAD [11] The recent Federal Court of Appeal decision in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions made by the first-level administrative tribunal. The RAD will conduct its own analysis of the record to determine whether the RPD erred. With respect to findings of fact and mixed fact and law, the RAD is to review the RPD's decisions applying the correctness standard. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the credibility and weighing of oral testimony heard, which, in particular cases, may require a standard of review of reasonableness modified for the RAD.4 [12] I will apply a standard of correctness throughout this decision unless I specify that a standard of reasonableness is appropriate. ANALYSIS Summary of Analysis [13] I agree with the Appellant that the RPD erred in assessing the affidavits from the Appellant's aunt and friend. I give them some weight. The country documentation does not definitively say that forced marriage does not take place only with young girls and taking into account the presumption of truthfulness, I find that the Appellant has established on a balance of probability that she has been a victim of forced marriage and would face a serious possibility of persecution if she were to return to Nigeria. The other findings of the RPD which I will assess below are either in error or insufficient to outweigh my determination. Affidavits from friend and aunt [14] The RPD gave little weight to affidavits from the Appellant's friend and aunt because they were not accompanied by identity documents. I agree with the Appellant that this finding was in error. It is standard practice for a commissioner to verify the identity of the deponent in Nigeria5 and all of the proper stamps, signatures and seals are present on both affidavits. I also note that photos of the deponents are attached to each affidavit. The RPD erred in giving these affidavits little weight for this reason. [15] The RPD further found that the friend's affidavit relies solely on information provided by the Appellant and that the police visit described in the affidavit was not mentioned in the Appellant's testimony. Both of these findings are incorrect. The Appellant's friend asserts many things that come from her direct knowledge such as the time period that the Appellant stayed with her and the April 22 police visit. The Appellant correctly points out that she did in fact mention this visit in her testimony. [16] The RPD also gave little weight to the aunt's affidavit because it lists an address in Lagos while she actually lives in Abuja and because she is described as Christian while the Panel understood her to be Muslim. The Appellant is again correct in pointing out that an Abuja and Lagos address is listed in the affidavit as she has two residences and that she was never described as Muslim anywhere in the evidence or testimony. [17] I give these affidavits some weight in establishing the allegations of the Appellant. I note that they describe in detail the events leading up to the Appellant's departure from Nigeria. They are both consistent with the Appellant's testimony and evidence and assist in establishing the allegation of the Appellant that she was being forced into a marriage against her will. The country documentation does not preclude the possibility of adult women being victims of forced marriage [18] The RPD found that the Appellant does not fit the profile of someone who would be a victim of forced marriage. According to the country documentation, forced marriage is most common among poor and uneducated Muslim populations in Northern Nigeria and mostly affects much younger girls and women.6 The RPD found it unlikely that an urban, educated, middle-class XXXX XXXXyear-old woman living in Lagos would be a victim of forced marriage. [19] I agree with the Appellant that the country documentation does preclude the possibility of adult women being forced into marriage. While most discussions of forced marriage in the country documentation are tied to child and early marriage,7 there is an example of a 26-year-old woman, not much younger than the Appellant, who was forced into a marriage.8 In the same document, there is also a reference to the fact that there are no laws that protect adults from forced marriage, which is presumably mentioned because it is something that does happen. [20] There are also certain aspects of the Appellant's allegations that align with the country documentation. She is Muslim and forced marriage is more common among Muslims.9 Additionally, as the Appellant points out, her father wanted to marry her off to pay for a family debt which is specifically described as a common motivation for forcing a woman to marry.10 Finally, there is an example of a woman who was married off to a much older man in his 80s,11 and this is the case here. [21] It is also important to consider the difficulty of obtaining information about forced marriage for adult women. The statistics and reports on forced marriage may focus on children because a child marriage is inherently forced as a minor cannot consent. Figuring out which adult women were forced into marriage involves a much larger undertaking which may impact the availability of data on this topic. [22] I am to assess evidence on a balance of probabilities. While the Appellant's situation does not appear to be the most common, given the presumption of truthfulness, my reading of the country documentation and the affidavits that corroborate the allegations of the Appellant, I find that the Appellant has established on a balance of probabilities that she was a victim of forced marriage. Corroboration of the Appellant's allegations [23] The RPD made a negative credibility finding based on the fact that the Appellant did not provide corroboration of her upcoming marriage and her father's links to Mr. XXXX. I agree with the RPD that she did not provide a reasonable explanation for failing to gather this evidence before leaving the country. She had contemplated leaving Nigeria for a long time and remained in her house for weeks after she knew about her father's intentions. [24] Her explanation for failing to gather this evidence after leaving the country, however, is reasonable. If her father is continuing to search for her and is still mad at her and the evidence can only be found in her home, this would reasonably make it quite difficult for a friend or family member to collect it in secret. I am therefore only able to agree with the RPD in part and only take issue with her failure to gather this evidence before she left Nigeria, not after. [25] I also note that the affidavits from the Appellant's aunt and friend both corroborate the marriage plans and the family links to Mr. XXXX. I have given these affidavits some weight. While further documentation would have been preferable, I find that these affidavits together with her reasonable explanation for failing to obtain evidence after her departure from Nigeria assist in establishing her allegations on a balance of probabilities. [26] I also note that this claim type involves informal decisions and plans being made within a family which does not produce as much of a paper trail as, for example, political or professional activities where there are often personal or objective documents which corroborate membership in a political party or employment. Country documentation supports allegation of proposed inter-religious marriage [27] The RPD found that it would be unlikely that Mr. XXXX, a Christian, would marry a Muslim woman under the influence of an oracle. I agree with the Appellant that this finding cannot stand as the country documentation specifically points out that inter-religious marriages are common among the Yoruba, the ethnic group to which the Appellant belongs.12 The RPD erred in assessing the country documentation and finding the scenario described by the Appellant to be unlikely. The Appellant's testimony about Mr. XXXX was not vague [28] The RPD also found the Appellant's testimony about Mr. XXXX vague and inconsistent. To support this finding, the RPD pointed out that the Appellant described Mr. XXXX as a politician, sportsman and a very nice man but later on described him as a wealthy businessman who has considerable influence with authorities. I do not see how these statements contradict each other as it is possible for Mr. XXXX to be involved in sports, politics and business. [29] Regarding the vagueness of her testimony, the RPD found that the Appellant failed to describe Mr. XXXX's other wives and children. I agree with the Appellant that this question was not even asked at the hearing. Considering how much of the hearing consisted of closed questions, it is inappropriate to draw a negative inference as to the Appellant's credibility because she did not answer a question she was never asked. While I understand that the RPD might have a certain advantage over me as the RPD member was the one observing the Appellant giving her testimony, I have done an independent assessment of her testimony and I come to a different conclusion as the RPD and find the RPD's conclusion to be unreasonable. Delay in marriage [30] The motivation for marrying off the Appellant was the debt that her father incurred with Mr. XXXX in caring for her mother before her death in 2003. The RPD found that the Appellant failed to reasonably explain why her father waited so many years before he insisted that she marry Mr. XXXX. I agree with the Appellant that this is not something she should be expected to know as it might have involved private discussions between the Appellant's father and Mr. XXXX. [31] There are a multitude of reasons for why this delay could have taken place such as Mr. XXXX's life situation or the fact that the Appellant's father might have become more desperate to marry his daughter as she aged. It is clear from the Appellant's testimony that she was not privy to all of the arrangements and negotiations for the marriage. [32] Since it is reasonable for the Appellant not to be aware of all of the negotiations and discussions between her father and Mr. XXXX, I find that the RPD erred by drawing a negative inference as to the Appellant's credibility for failing to reasonably explain this delay. Other RPD findings do not outweigh my determination I have considered other findings by the RPD surrounding the date of the Appellant's mother's death and whether or not the Appellant consistently mentioned the debt that her father incurred because of her mother's medical bills. I find that neither of these findings outweigh the conclusion I have come to as they pertain to peripheral details of the claim. No state protection available [33] The Appellant alleged that she and her aunt attempted to involve the police on two separate occasions and they refused to assist as it was a family matter.13 There is no law to protect adults who are victims of forced marriage and people are reluctant to seek justice from the authorities as forced marriage is a matter of customs and culture.14 Taking this into account, I find that the Appellant has established on a balance of probabilities that the state would not be able to protect her from the threat of forced marriage. No internal flight alternative [34] The Appellant moved to Abuja and lived with her aunt to escape the threat she faced in Lagos. On January 25, 2016, she was found in Abuja by police officers and other people who knew Mr. XXXX and she was forcibly returned to Lagos. Abuja is almost 700 kilometres away from Lagos and if they were able to find her in Abuja, I do not see how she can safely relocate anywhere else in the country. She was also found at her friend's house when she stayed there in March and April 2017. I find that the Appellant has established on a balance of probabilities that there is no Internal Flight Alternative available to her. CONCLUSION [35] The appeal is allowed. The Appellant has established that she would face a serious possibility of persecution if she were to return to Nigeria. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Sasha Cragg-Gore" Sasha Cragg-Gore July 10, 2018 Date 1 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018, 2018 FC 147, paragraph 18. 2 Borubae v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018, 2018 FC 125, at paragraph 21. 3 M.C.I. v. Huruglica. Bujar (F.C.A., no.A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Ibid., at paras. 69-74 and X (Re), 2017 CanLII 33034 (CA IRB). 5 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria, March 31, 2017, at item 9.2, see also Ouya v. Canada (Citizenship and Immigration), 2017 FC 55 (CanLII), <http://canlii.ca/t/gx5m1>, retrieved on 2018-07-09, at para. 17. 6 Ibid., at item 5.7. 7 See for example, ibid., NDP, at item 5.7; Exhibit P-2, Appellant's Record, Appellant's disclosure, at p. 81. 8 Ibid., NDP, at item 5.7 at section 4. 9 Ibid., NDP, at item 5.7. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 78, 11 Exhibit RPD-1, RPD's Record, NDP, at item 5.7, at section 3. 12 Ibid., at item 12.9. 13 Exhibit RPD-1, RPD's Record, Basis of Claim (BOC) form, at p. 22; RPD's Record, aunt's affidavit, at pp. 258-260. 14 Exhibit RPD-1, RPD's Record, NDP, at item 5.7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24028 RAD.25.02 (April 24, 2018) Disponible en français 2 RAD.25.02 (April 24, 2018) Disponible en français