MB9-21810

RAD File / Dossier de la SAR : MB9-21810 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 12, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Jerome Fanmi Olorunpomi 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. The Appellant, XXXX XXXX XXXX, is a citizen of Nigeria. Digital audio recordings of the hearings are available, as well as transcripts. Summary of Basis of Claim (BOC) Narrative [2] The Appellant lived in northern Nigeria before moving to Libya as a result of an ethnic conflict between the Yoruba and Hausa Fulani which resulted in his house being burned and his brother killed. He returned to northern Nigeria in 2000 where he lived until he moved to South Africa in 2009. He left South Africa on XXXX XXXX XXXX 2016 for the United States (US) with a visitor's visa as a result of xenophobic attacks, but he did not claim asylum in that country. The Appellant came to Canada over one year later, on XXXX XXXX XXXX 2018 where he made a refugee claim. Refugee Protection Division (RPD) Reasons for Decision [3] The RPD rejected the claim for the following reasons: i. The Appellant has a viable internal flight alternative (IFA) in Lagos; ii. The evidence does not establish that members of Boko Haram have the means to find the Appellant in the proposed IFA location; iii. It would not be objectively unreasonable for him to relocate; iv. There is no evidence that the Hausa Fulani people have either the motivation or the means to locate Appellant in the proposed IFA; v. The Appellant has not established that he has a subjective fear of persecution in Nigeria; and vi. The Appellant's fear is not objectively founded. Grounds for the Appeal [4] The Appellant submits that the RPD erred for the following reasons: i. The RPD erred in finding that the Appellant has a viable IFA in Lagos; ii. The RPD erred in its assessment of the claim; and iii. The RPD make selective use of the National Documentation Package (NDP) and of the documentary evidence. Summary of the Refugee Appeal Division (RAD) Decision [5] The determinative issue is a viable IFA in Lagos. [6] The RPD correctly considered the applicable documentary evidence and did not make selective use of sources. The RPD correctly concluded that the Appellant is not at risk from Boko Haram in Lagos. The RPD correctly considered the Appellant's personal circumstances in concluding that he could reasonably return to the city of his birth, Lagos. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is rejected [8] According to the Immigration and Refugee Protection Act (IRPA),1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [10] The Appellant applies to admit an affidavit after the perfection of the appeal in accordance with Rule 29 of the RAD Rules.3 The document is from S.S., a childhood friend of the Appellant, dated XXXX XXXX XXXX 2020. He states that four men came to his house on XXXX XXXX XXXX 2019 to look for the Appellant. They threatened him and gave him two weeks to locate the Appellant. One person told him that they were looking for the Appellant because he refused to join Boko Haram. The author filed a complaint with the Isoko Police Station in Lagos, but the police demanded a bribe rather than offering protection. A copy of the first page of his Nigerian passport was attached and certified by a notary public. [11] According to counsel, this document is admissible because it postdates the RPD decision, is relevant, has probative value, and it was not in existence when the Appellant's record was filed. RAD Assessment [12] The RPD hearing was conducted over two days, on June 25, 2019 and July 2, 2019. The reasons for decision were rendered on August 22, 2019. The Appellant's record was received on October 15, 2019. The affidavit submitted as new evidence was declared on January 9, 2020. The deponent lives in the proposed IFA area, Lagos. According to this statement, four huge guys who speak Hausa came to his house in Agege, Lagos, to ask about the Appellant. Two men brandished guns and threatened his life if he did not disclose the Appellant's whereabouts. They gave him two weeks to comply. They really mean to kill the Appellant and him. The deponent is no longer safe because they were able to locate his house. Although he went to the Isoko Police Station in Agege, they did nothing to protect him. [13] One of the criteria for admissibility established by the Federal Court of Appeal in the Singh decision concerns the credibility of the document. The allegation of a direct targeting by Boko Haram was not identified in the BOC, nor was consistent testimony presented about it. According to the BOC narrative, he fled to Libya as a result of ethnic conflicts and after Boko Haram burned his house and killed his brother. He returned to Nigeria in 2000 where he lived until going to South Africa in 2009. On the contrary, he filed a death certificate which shows that his brother died in 2007.4 In addition, this person is not listed among family members in the BOC. No mention is made to any significant event in 2007 in the BOC narrative. However, he testified that Boko Haram began approaching his family in 2007 to demand that he join them. He stated that he was able to remain in Nigeria for a few years afterwards because he did not have a fixed address and he was travelling around the country for his work. The statement in his BOC that his brother was killed before 2000 is inconsistent with his allegation that this took place in 2007. His testimony then dated the beginning of the threats to 2007, many years after first contact with Boko Haram. In short, the Appellant's testimony was materially inconsistent with his BOC narrative. [14] The Appellant has not been back to Nigeria since 2009. According to the affidavit, four members of Boko Haram came to the deponent's house in Lagos on XXXX XXXX XXXX 2019 to demand that he reveal where the Appellant is. Although the Appellant testified that members of this group visited his father in the north, no mention is made to any visits of Boko Haram to his brothers' who live in Lagos. According to this affidavit, Boko Haram was able to identify and locate a friend of the Appellant's in the proposed IFA area ten years after the Appellant left Nigeria and while an appeal was pending before the RAD on the issue of IFA. The allegations outlined in the affidavit are inconsistent with the documentary evidence which will be considered below. [15] When all of the previously-outlined factors are taken together, this statement from a friend which alleges that Boko Haram is actively looking for him in the proposed IFA in the south and has the means to identify and locate his friends lacks credibility. As a result, it is inadmissible pursuant to Rule 29 of the RAD rules and subsection 110(4) of the IRPA. [16] The Appellant did not request a hearing. ANALYSIS [17] My role is to look at all the evidence and decide if the RPD made the correct decision.5 Risk from Boko Haram in Lagos RPD Reasons for Decision [18] The RPD summarized the Appellant's testimony as follows. Members of Boko Haram began to visit his parents' house in Talata Mafara, Zamfara State, in 2007 and insisted that he join, otherwise he would be killed. He never had personal contact with them. Messages were conveyed through his parents. Their home was attacked in 2007 and burned down. His brother died in an accident while trying to escape two weeks later. He moved to South Africa in 2009. He stated that Boko Haram could find him all over Nigeria because they have his photograph. They will not stop until they find him. They did not tell his parents why they are interested in him. His father told him two weeks before his death in 2019 that Boko Haram are still looking for him in Zamfara. [19] The RPD proceeded to assess the claim on the basis that the determinative issue is IFA. As a result, it did not engage in a meaningful assessment of the evidence from the point of view of credibility. In particular, the RPD accepted the allegations of fact made by the Appellant without considering significant omissions and inconsistencies. The RPD failed to provide intelligible reasons why it accepted the facts as stated by the Appellant. According to the IRPA, decisions are based on credible and trustworthy evidence. The RPD did not explain how it complied with this statutory requirement. [20] Nevertheless, the RPD accepted that Boko Haram members are still interested in pursuing him in the north. However, the RPD concluded that they do not have the means to find him in the proposed IFA. Testimony about the ability to locate the Appellant in a city the size of Lagos by circulating a photograph is speculative. Furthermore, it is not supported by the evidence which indicates that the ability of Boko Haram to track down an average citizen is limited. Intelligence capabilities are not very advanced, nor are they likely to use them for this purpose. Boko Haram does not have the sophistication in cyber hacking required to track people by this means. Boko Haram seldom acts in the south. In 2016, only one Boko Haram operation in Lagos was reported. Its activities are concentrated in three states in the north. Although they can attack targets in the northeast, security forces maintain control outside of these areas. Lagos has a large population of over 13.46 million people. There is not a serious possibility that he would be persecuted or subject to a likelihood of a serious risk of harm in Lagos. Submissions by Counsel [21] Counsel submits that the RPD erred in this assessment of the first prong of the IFA test by ignoring relevant evidence about risk from Boko Haram in Lagos. First, everyone who uses a phone in Nigeria can be traced because the law requires that every number be registered. Second, there have been pockets of arrests of Boko Haram members in some parts of Lagos. RAD Assessment [22] The RPD correctly considered the evidence concerning risk resulting from a Hausa Fulani-Yoruba conflict and concluded that the Appellant is not at risk on this basis. Not only does the evidence not substantiate such a conflict in the north, the Appellant lived there between 2000 and 2009 without problems resulting from this issue. The RPD then went on to consider risk from the Fulani herdsmen even though this was not advanced by the Appellant, and correctly concluded that the Appellant is not at risk on this basis. Counsel did not challenge the RPD's findings on these issues. The RAD upholds the RPD's assessment of this risk. [23] Counsel's submissions with respect to the first prong of the IFA test concern the interpretation of the documentary evidence about Boko Haram. Members continue to kill and kidnap Nigerians, and pockets of arrests have been reported in Lagos. [24] The RPD considered a Response to Information Request (RIR) concerning risk from Boko Haram in Lagos.6 It indicates that Boko Haram operates as three or four geographically autonomous factions with "the loosest of operational ties." The various cells and factions are not united into a single hierarchical structure, although they have a Shura Counsel. Boko Haram's ability to pursue people is greatest in the northern regions of Borno, Adamawa and Yobe. Their ability diminishes as one moves away from these areas. Although Boko Haram has intelligence capabilities, "they are not that advanced nor are they likely to use them for this purpose." Boko Haram is "decentralized and local and does not appear to have the interest or capacity to go after an individual outside the northeast, except for former Boko Haram operatives who have crossed the current leadership." In addition, they do not have "the cyber sophistication to track individuals through hacking electronic systems." Their ability to track people "would depend largely on word of mouth." Boko Haram adherents are "most likely to track and target relatively high-status individuals." One source indicates that it is not aware of targeted attacks by Boko Haram in the south. Another source stated that this organization's capacity in the south is limited. Its reach in the south is weak for religious, ethnic, linguistic and cultural reasons. The group is "almost entirely inactive in Lagos" and has only carried out one attack on a fuel depot in Lagos and a few isolated incidents in Akwa Ibom and Eboyni. The government has enacted expansive security measures which make it difficult for Boko Haram to operate in Lagos. [25] The RPD considered a United Kingdom Home Office report concerning Boko Haram.7 According to paragraph 4.4.1 Boko Haram members are usually ethnic Kanuris from the northeast who operate rarely outside of their home territory, "and certainly not way down south to the coastal areas." Paragraph 4.4.3 indicates that the locations of attacks have remained generally stable over the last few years, with attacks being most common in Borno State. Violence is "largely confined to the north-east." According to paragraph 4.4.2, there were several attempted attacks in Lagos in 2014, but Boko Haram's reach in the south appears to be limited. Paragraph 4.4.7 indicates that "Boko Haram-related violence is all but absent" in the south and east, including Lagos. According to paragraph 3.1.3 the City of Lagos has a population of about 14 million people, with 21 million living in the Lagos State. [26] The current NDP does not indicate that there has been a material change of country conditions. The documents relied on by the RPD continue to be included in the NDP. The current United States Department of State, Human Rights Report indicates that the Boko Haram insurgency with its attacks continue in the northeast.8 Many abductions have been noted in Borno and Yobe States. Although Boko Haram has lost control part of the territory it once controlled, it continues to be able to launch attacks across the northeast. [27] My independent assessment of the supporting documentary evidence leads me to the same conclusion as was reached by the RPD. It did not make as selective use of the evidence, as submitted, nor did it overlook important evidence which did not support its conclusions. The Appellant would not likely be located by Boko Haram in Lagos if he obtains a phone number. [28] The RPD considered the Appellant's submissions about how Boko Haram could locate him in Lagos, and correctly concluded that it is unlikely that he could be located on the basis of his photograph being passed around. The RPD did not err in its conclusion that Boko Haram would likely have neither the motivation nor the means to locate the Appellant in Lagos. The Reasonableness Branch of the Test RPD Reasons for Decision [29] The RPD considered the Appellant level of education (Ordinary National Diploma) and his employment as a XXXX who XXXX XXXX before leaving the Country. In addition, he worked as a XXXX XXXX in South Africa for a number of years. He speaks both Yoruba and English, and he is a Muslim. He lived in Lagos as a child and a number of his brothers live there now. Although the unemployment rate is high in Nigeria, his level of education is higher than average. Given his personal profile, including the adaptability he demonstrated in South Africa and Canada, he would likely be able to find work and successfully establish himself in Lagos. Submissions by Counsel [30] Counsel submits that people who relocate to other cities are subject to state-sponsored discrimination. In addition, the unemployment rate in Nigeria is very high. It would be difficult for the Appellant to navigate and find work in Lagos because he left the city when he was young. In addition, the crime rate in Lagos is high, including the risk of abduction. RAD Assessment [31] The RPD considered the issue of re-establishment in Lagos but did not err in its assessment. The RPD considered an Australian report which is relevant to the issue of the reasonableness of the proposed IFA in Lagos.9 Although non-indigenes may have difficulty in establishing themselves in other regions without family connection or financial support, this does not apply to larger centers such as Lagos. Given that the Appellant was born in Lagos, he does not risk state-sponsored discrimination in that city as a result of his indigene status. Nigerians are free to pursue internal relocation. The Nigerian unemployment rate was about 14.2%. The RPD is correct that the Appellant does not face any particular obstacles to finding work and establishing himself in the city he was born in and where he has family connections. [32] Counsel is correct that there is a high rate of abductions for ransom in Nigeria.10 Those most at risk include high-profile people, including wealthy families, government officials, relatives of celebrities, businesspeople, doctors, teachers and religious leaders. Although the police do sometimes arrest kidnappers, lack of resources and corruption undermine their effectiveness. The Appellant has not lived in Nigeria since 2009 and is unknown to people in Lagos outside of his immediate circle of family and friends. He has not been the victim of abduction in the past, nor is he the target of kidnappers now. The chances that he would be kidnapped if he returns to Lagos is speculative, given that the level of risk would depend to a large extent on choices that he makes with respect to personal security in that city. He has not established that he would more likely than not be kidnapped. As a result, the risk does not attain the legal threshold pursuant to section 96 of the IRPA. In addition, this concerns a general risk to which residents of Lagos in general face. Risk arising from being a potential victim of crime is excluded by operation of paragraph 97(1)(b)(ii) of the IRPA because he has not been personally targeted. Final Remarks [33] The RPD assumed the reliability of the Appellant's testimony but concluded that he has a viable IFA on the basis of the two prongs of the applicable test. The RPD considered the relevant documentary evidence in light of the Appellant's profile and correctly concluded that he is not at risk in Lagos and could reasonably relocate there in light of his personal circumstances and country conditions. My independent assessment leads me to the same conclusion. Although the Nigeria Jurisprudential Guide has been revoked, the RPD conducted its own assessment of the documentary evidence and did not inappropriately rely on the Guide in its analysis. The RPD reasons for decision do not contain any errors which warrant intervention by the RAD. CONCLUSION [34] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. (signed) H. Shepherd H. Shepherd August 12, 2020 Date 1 Immigration and Refugee Protection Act (IRPA), subsection 110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), FCA 385 (CanLII). 3 Exhbit-3, Rule 29 (January 17, 2020). 4 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 134. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (April 30, 2019), item 7.26, The capacity of Boko Haram to pursue individuals who relocate to another region or city, such as Lagos (2013-March 2016), Response to Information Request (RIR) NGA105451.E, 11 March 2016. 7 Ibid., item 7.4, Country Policy and Information Note. Nigeria: Boko Haram. Version 2.0. United Kingdom. Home Office January 2019. 8 NDP for Nigeria (April 9, 2020), item 2.1, Nigeria. Country Reports on Human Rights Practices for 2018. United States. Department of State. 11 March 2020. 9 NDP for Nigeria (April 30, 2019), item 1.8, DFAT Country Information Report: Nigeria. Australia. Department of Foreign Affairs and Trade. 9 March 2018. 10 Ibid., item 7.3, Kidnapping for ransom, including frequency, profile of victims and kidnappers; response by authorities (2013-July 2014), RIR NGA104917.E, 31 July 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-21810 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