TB8-24426

RAD File / Dossier de la SAR : TB8-24426 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 May 16, 2019 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal Hamlet Gunness 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 (the Principal Appellant), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated September 4, 2018, rejecting her claim for refugee protection. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes it with its own determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant is from Nigeria. She was born on XXXX XXXX, 1960. She bases her claim on the following. [4] The Appellant has been married for many years. Her husband is retired. She runs a business where she XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She has travelled for her work. In XXXX, 2016, she was travelling with her son and a sales clerk. The police stopped her car and demanded that she give them her items. She refused. The Appellant, the sales clerk, and her son were held overnight in custody. They were released, but the police kept some of the items. [5] The Appellant engaged the services of a lawyer. He laid a complaint with the Lagos State Commissioner of Police in XXXX, 2016. She had a meeting with an officer from the Commissioner's office. She began to receive threatening phone calls. The Appellant and her family began to be harassed by the police. Her husband and son were stopped by the police and threatened. The Appellant then complained to the Inspector General's Office in Abuja in XXXX, 2017. However, the threats continued. [6] On XXXX XXXX XXXX 2017, the police went to the Appellant's store and beat the sales clerk because she would not tell them where the Appellant was at the time. The police accused the Appellant of XXXX XXXX XXXX. [7] The Appellant came to Canada on XXXX XXXX, 2017. [8] In XXXX, 2018, the Appellant's husband told her that his car was searched when he travelled to Ibagan1 and that there was a group of police by her home.2 Further, on XXXX 2017, the police again went to her store. [9] In XXXX 2018, the Appellant's son was stopped by the police when he travelled to Ikorodu. [10] The RPD held a hearing on July 27, 2018. It found that the Appellant had an internal flight alternative in Port Harcourt. In so doing, it assessed the Appellant's credibility and whether there was a serious possibility of persecution in Port Harcourt. Further, it found that it was reasonable that the Appellant relocate there. The Appellant has appealed. ISSUES [11] Is there sufficient credible evidence that the Appellant is a Convention refugee and/or a person in need of protection? [12] Does the Appellant have an internal flight alternative in Port Harcourt? ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL AND DETERMINATION ON WHETHER TO HOLD AN ORAL HEARING [13] The Appellant is not submitting new documentation at the RAD and has not requested an oral hearing. Subsection 110(6) of the Act delineates when the RAD is permitted to hold a hearing. It states that the RAD can hold a hearing when there is new evidence that raises a serious credibility issue. Further, the evidence must be central to the decision. In addition, there is a requirement that the evidence would justify a final decision allowing or rejecting the claim. Given that there is not new medical evidence, the RAD does not have jurisdiction to hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL [14] I have conducted an independent assessment of the evidence and arguments.3 This review includes reviewing the transcript of the hearing and listening to the testimony in the recording of the hearing. The CD of this recording is in evidence. [15] In addition, I have considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.4 Deference to Credibility Assessment [16] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the Appellant's testimony where the RPD would have been in a better position than the RAD to judgefr it. The RPD states that the evidence was vague and lacked detail. It did not find it reasonable that the Appellant's lawyer was not exposed to risk for uncovering police corruption. These comments relate to the substance of the testimony and not to any behavioural or any other item that the RPD could observe and the RAD could not. Having reviewed the transcript, I find that I am in the same position as the RPD to assess these matters. For these reasons, I do not find that the credibility findings are owed deference. Interpretation [17] The Appellant has argued that there was an error in interpretation, as the Appellant would testify at length, and the interpreter would provide brief interpretation. She points out one interval at 1:20:08 to 1:20:55, describing it as the Appellant's response and 1:20:56 to 1:21:14 as the interpreter's translation. It states that the Appellant testified for one minute, and the translation was 18 seconds. [18] The Appellant has only pointed out one occurrence. It is not for the RAD to search for evidence to support the Appellant's arguments.5 The Appellant has the burden of proof. [19] I have listened to the recording of the hearing. In the interval from 1:20:08, the Appellant was answering a question about why she thought the police were interested in her. The Appellant begins to respond; however, at about 1:20:39, it sounds like the interpreter is asking her the question again. If anything, it sounds like the interpreter is trying to help the Appellant or was seeking clarification. The Appellant starts to talk again. Interpretation begins at 1:20:56. I do not find that this is an error in interpretation. Further, the Appellant speaks sufficient English;6 if there was an issue, she could have raised it. During the hearing, at several times, she answered in English, and the RPD took steps to ensure sufficient communication by reminding her to testify through the interpreter. Although given the opportunity to provide further evidence through testimony, Counsel did not ask any questions. Nor did he raise any objection throughout the hearing. [20] The Appellant has argued that the RPD constantly told the Appellant to use the interpreter and interrupted the Appellant. The RPD only did a few times. It was being responsible and providing the Appellant with a full and fair opportunity to present her case. It facilitated communication; it did not impede it. The Appellant was represented by Counsel who did not object at any time to the interpretation, although he was there during the interval in question. In the Appeal Memorandum, Counsel argued at the hearing that that the Appellant was not trying to be evasive when she testified, that it was a language barrier; this is not a complaint about the quality of the interpretation. Although given the opportunity to provide further evidence through testimony, Counsel did not ask any questions. Nor did he raise any objection throughout the hearing. [21] Having reviewed the transcript and listened to the testimony on the recording of the hearing, I find that the translation was sufficiently precise, continuous, competent, impartial and contemporaneous. It does not have to be perfect; it is more likely than not that there was linguistic understanding.7 There is insufficient evidence that the Appellant was not afforded the opportunity to fully present her case, or that the RPD did not understand the testimony or the evidence. There is insufficient evidence that there was a breach of natural justice at the hearing or that the interpretation affected the Appellant's credibility. [22] In addition, I find that the hearing was well-conducted and that the RPD asked relevant questions in a respectful manner. Is the Appellant a Convention refugee and/or a person in need of protection? [23] The Appellant argues that the RPD erred when it did not consider whether the Appellant is a Convention refugee and/or a person in need of protection.8 Much of the evidence and reasoning that applies to whether there is an internal flight alternative also applies to whether there is more than a mere possibility of persecution. However, as the Appellant has raised it as an issue, I have considered it. [24] I find that there is sufficient evidence that the incident of XXXX 2016 occurred. In her Basis of Claim, the Appellant provided a detailed description of the events that occurred. The evidence in the affidavits on this point is consistent, as is her testimony. Further, that the police would stop a successful business woman and try to extort from her is consistent with the objective documentary evidence in the National Documentation Package (NDP).9 [25] Further, I accept that the Appellant lodged two complaints with the police. Her testimony was consistent and detailed. The Appellant provided the two letters that were sent with the complaint. That the Appellant complained and did not receive an answer is also consistent with the NDP.10 [26] In addition, I accept that the store was raided in XXXX 2017 and that her clerk was assaulted. On record is a medical report stating that she was assaulted by a policeman in a shop.11 The raid occurred about XXXX months after the Appellant was arrested. However, it was only about one month after the lawyer wrote the second last complaint which went to the Inspector General.12 The son states in his affidavit that the clerk was assaulted because she would not say where the mother was located.13 Similarly, the husband stated that the raid was not a search for XXXX in his affidavit.14 I accept that the shop was raided and that the clerk was assaulted. Further, given the proximity in dates between the second complaint and the raid, I find that there is a link between the two. In other words, the evidence leads to the conclusion that it is more likely than not that the police were retaliating against the Appellant. [27] Not all of the evidence is as convincing. There is little detail about her husband being stopped on his way to Ibagan and her son being stopped when he went to Ikorodu. It is too vague to be a credible description of an incident that linked the events to the Appellant's complaint. The son and husband may have been stopped, but there is not sufficient evidence that they were being targeted because of their affiliation with the Appellant. The descriptions are vague. The Appellant testified that her family told her that they asked about her,15 but, again, this is not direct evidence. [28] Further, the affidavit evidence, while supportive, is vague. The son's affidavit, dated September 2017, has a general statement that he is harassed and that there is no doubt in his mind that this is in association with the quest for justice. Similarly, the husband has written that the police do not hide the "fact that they are carrying out instructions meant to intimidate us and make us live under their fear" when they stop his family.16 [29] Similarly, the descriptions of other incidents are vague. The Appellant testified that her husband told her that the police went to her store in XXXX 2017, but she was unable to provide any information about that, despite having talked to her husband in XXXX, 2018. While he told her that the police were by her house, there is a lack of detail; how many police, how long they were there, whether they took anything, and other aspects were not described. Summary [30] While some of the evidence is vague, the weight of it is compelling. I accept that the Appellant was subjected to an attempt at extortion; she refused and was incarcerated overnight. She lodged a complaint with the Commissioner of Police and then with the Inspector General. She began to receive threatening phone calls. A few weeks after lodging the complaint with the Inspector General, her store was raided. She left for Canada shortly thereafter. While extortion may be the price of doing business in Nigeria, the fact that the Appellant complained about it twice to higher ranks and the police sought to retaliate is sufficient to find that there is more than a mere possibility of serious harm to the Appellant. Further, as the state is the agent of persecution, namely, the police, I do not find that there is state protection for the Appellant. When she tried to invoke the process to provide protection, there was retaliation. It is not reasonable for her to seek it out. Internal Flight Alternative [31] As an internal flight alternative is part of the test for assessing an internal flight alternative, which is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam.17 (1) 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/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the internal flight alternative. (2) Moreover, the conditions in the part of the country considered to be an internal flight alternative must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for him to seek refuge there.18 [32] Both prongs must be satisfied to find that the Appellant has an internal flight alternative. Once the issue of internal flight alternative has been raised and the potential internal flight alternatives have been identified, the burden of proof rests with the Appellant to show that she does not have an internal flight alternative. The finding of an internal flight alternative must be based on a distinct evaluation of the region for that purpose, taking into account the Appellant's personal circumstances. An internal flight alternative must be a realistic and attainable option. An Appellant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there. [33] In this case, the RPD raised this issue properly at the hearing. Further, the onus of proof shifts onto the Appellant when it is raised. However, the evidence on this issue is limited. Relying on the best evidence available, I find that it is sufficient to make a sound decision with confidence on this issue. In other words, I do not find that there is such a paucity of evidence in this case that the reasons are speculative;19 otherwise, I would have to refer this matter back to the RPD for redetermination. Is there an Internal Flight Alternative in Port Harcourt? [34] While there is a jurisprudential guide addressing women in Port Harcourt,20 I note that it involves non-state actors, and in this appeal, there are state actors involved. In this appeal, I do not find that it provides persuasive reasons. Is there a serious possibility of persecution in Port Harcourt? [35] The Appellant argues that the police are centralized. She argues that the RPD relied on old, outdated information in a Response to Information Request (RIR) that there is not centralized communication.21 The Appellant states this information is dated May 31, 2012. There is a more recent RIR, which states that there is a system in place to deploy databases, which is designed but is not yet in place.22 The police have a presence in airports. There is a bill that was passed for data exchange. This RIR confirms that the researchers could not find information about the obligation for a police officer to report people who relocate and on the extent of communication among police officers. The objective evidence on this point is inconclusive about the amount of communication from one area in Nigeria to another. However, it certainly shows that there is a movement towards increasing communication, and I must consider a forward-looking risk. Further, the evidence does not contradict the Appellant's argument that the police will know where she is located. [36] When asked at the RPD hearing, the Appellant provided evidence that showed that she would not be able to hide her identity in Port Harcourt. The Appellant argues that they would find her because she would have to recharge her phone, that she would have to register a business to work, and that her car and plate number are in her name. The police want to shut her down, as she is a common woman who wants to expose them.23 She believes they will kill her.24 This evidence leads to the conclusion that her identity will be exposed. [37] I find that the weight of the evidence leads to a conclusion that it is more likely than not that there is a serious possibility of persecution in Port Harcourt. Ondo [38] Further, while Ondo was considered as an internal flight alternative, any reasonable finding that there is one would be speculative.25 The Appellant's sister lives there. However, in this appeal, the agents of persecution are the police, which are similar, if not the same, as the state. I do not find that, in this appeal, the likelihood of an internal flight alternative in Ondo would lead to referring the appeal to the RPD for redetermination. DISPOSITION [39] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) "Patricia Broad" Patricia Broad May 16, 2019 Date 1 Transcript of the RPD Hearing, at pp. 32-33. 2 Transcript of the RPD Hearing, at p. 30. 3 Tekle, Dawit Abraham v. M.C.I. (F.C., no. IMM-1727-17), Annis, November 15, 2017, 2017 FC 1040. 4 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx 5 Huang, Xiaoshan v. M.C.I. (F.C., no. IMM-2460-17), Phelan, December, 1, 2017, 2017 FC 1090; and Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, at para. 20. 6 Exhibit RPD-1, RPD Record, at p. 33, Generic application. 7 Singh, Resham v. M.C.I. (F.C., no. IMM-2300-10), Lemieux, November 19, 2010, 2010 FC 1161. 8 Exhibit P-2, Appellant's Record, at p. 71, Appellant's Memorandum. 9 Exhibit RPD-1, RPD Record, NDP for Nigeria (July 10, 2018), item 10.6, Immigration and Refugee Board of Canada (IRB), RIR NGA104979.E, November 7, 2014; and item 10.10, Africa Center for Strategic Studies, "Governance, Accountability, and Security in Nigeria", June 21, 2016. 10 Exhibit RPD-1, RPD Record, NDP for Nigeria (July 10, 2018), item 7.5, United Nations Office on Drugs and Crime, "Corruption in Nigeria, Bribery: public experience and response", July 2017, at p. 65; and item 10.6, supra, footnote 9, which states that very few complaints are actually investigated. 11 Exhibit RPD-1, RPD Record, at p. 139. 12 Exhibit RPD-1, RPD Record, at p. 133. 13 Exhibit RPD-1, RPD Record, at p. 135. 14 Exhibit RPD-1, RPD Record, at pp. 137 and 138. 15 Transcript of the RPD Hearing, at pp. 30 and 32. 16 Exhibit RPD-1, RPD Record, at p. 138. 17 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 18 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 19 Chauhdry, Mukhtar Ahmed v. M.C.I. (F.C.T.D., no. IMM-3951-97), Wetston, August 20, 1998, 1998 CanLII 8322 (FC). 20 Jurisprudential Guide TB7-19851, identified by the Chairperson, pursuant to paragraph 159(1)(h) of the IRPA, effective date: July 6, 2018. 21 Exhibit P-2, Appellant's Record, at p. 70, Appeal Memorandum, at paragraph 12. 22 Exhibit RPD-1, RPD Record, NDP for Nigeria (July 10, 2018), item 10.4, IRB, RIR NGA106000.E, November 21, 2017. 23 Transcript of the RPD Hearing, at p. 38. 24 Transcript of the RPD Hearing, at p. 38. 25 Chauhdry, Mukhtar Ahmed v. M.C.I. (F.C.T.D., no. IMM-3951-97), Wetston, August 20, 1998, 1998 CanLII 8322 (FC). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-24426 RAD.25.02 (April 04, 2019) Disponible en français 6 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