TB5-08256

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 No. / N° de dossier de la SAR : TB5-08256 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(A.K.A. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 14, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Aleksandr Radin Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The Appellant did not submit documents to be considered as new evidence pursuant to s.110(4) of the Immigration and Refugee Protection Act1 (the Act or IRPA). The Appellant however, seeks a hearing pursuant to s.110(6) of the Act. Since no new evidence is submitted or accepted, the Refugee Appeal Division (RAD) will not hold an oral hearing and will consider the appeal based on documentary evidence and the Appellant's Memorandum. [3] The Appellant requests that the RAD quash the decision of the RPD and declare the Appellant to be a "Protected Persons pursuant to s.111(1)(b) of IRPA".2 DETERMINATION [4] Pursuant to subsection 111(1)(a) of the Act, the RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection, and thus confirms the decision of the RPD. [5] This appeal is dismissed. Background [6] The Appellant alleged before the RPD that he is afraid to return to Nigeria because his family wishes to perform female genital mutilation (FGM) on the Appellant's minor daughters. The Appellant suffered maltreatment at the hands of his stepmother and father when he was a boy. He ran away to live with his maternal uncle in XXXX as a teenager. He reconnected with his family and informed them of his two daughters. He began receiving calls from his family in the village to bring his daughter to start circumcision rituals. The Appellant decided against this practice and the threats increased. There was an attempt to kidnap him but he managed to evade the kidnappers. He fears that he will be harmed or killed because of his refusal to be involved with the Egwugwu cult and based on his refusal to have his children initiated or to allow for circumcision. [7] The Appellant left Nigeria on XXXX XXXX, 2015 and claimed protection. [8] His claim was heard on May 25, 2015, and the RPD rejected his claim by a written decision dated July 20, 2015. The Issues [9] The Appellant's issues are: 1. Did the RPD err in law by failing to conduct a s. 97 analysis? 2. Did the RPD err in law by failing to apply the proper test for Internal Flight Alternative ("IFA")? 3. Did the RPD err and breach the Appellant's procedural fairness by failing to raise concerns at the hearing? 4. Did the RPD err by relying on unreasonable credibility findings? 5. Did the RPD err in its assessment of the evidence in its subjective fear analysis? [10] I will rephrase the Appellant's key issue as: is the Appellant a Convention refugee or a person in need of protection? Role of the RAD [11] The jurisprudence on the appropriate role of the RAD is still evolving and several questions have been certified. The Appellant cited Federal Court decision, Huruglica,3 that provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [12] This decision is generally accepted and followed, awaiting decision by the Federal Court of Appeal. Thus, I will be guided by the Huruglica decision, and arrive at my determination after a review of the totality of the evidence before me. Also, following Huruglica,4 I will recognize and respect the RPD's credibility findings where it enjoys a particular advantage. In a number of recent decisions,5 the Federal Court also confirmed that the RAD may show a certain level of deference towards the RPD's findings when credibility issues are involved, and that the RAD must conduct an independent assessment of the evidence as a whole. [13] After considering the totality of the evidence, I find that the RPD did not err in its overall determination and I find that the Appellant is neither a Convention refugee nor a person in need of protection, for reasons discussed below. Thereby, I confirm the RPD's determination. [14] The RPD conducted a thorough analysis on credibility and found that the Appellant is not credible. Moreover, the RPD identified the internal flight alternative (IFA) as an issue, and suggested the cities of ...as potentially viable IFAs. Internal flight alternative The Law [15] It is trite law that the question of whether an IFA exists is an integral part of the refugee definition. If the Appellant can indeed find safety from persecution (and risk of harm) by fleeing within Nigeria, then he is not entitled to Canada's surrogate protection. Therefore, the issue of the IFA is determinative in disposing of this appeal, and it is not necessary for the RAD to consider the other grounds raised by the Appellant. [16] The two pronged test for a viable IFA is derived from Rasaratnam6 and Thirunavukkarasu7 and it is as follows: 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. 2) Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. [17] Both prongs must be satisfied for a finding that the Appellant has an IFA. An IFA cannot be speculative or theoretical only; it must be a realistic and attainable option. The Appellant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or staying there. [18] The burden of proof rests on the Appellant to show, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA, and they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.8 Even though the burden of proof rests upon the Appellant, the Board cannot make a finding that there is an IFA, in the absence of sufficient evidence, solely on the basis that the Appellant has not fulfilled the onus of proof.9 [19] The recording of the hearing and the RPD's reasons clearly show that the RPD identified the IFA as an issue at the start of the hearing; initially suggesting three potential internal flight alternatives. After some deliberations, the RPD dropped Benin City, one of the three IFAs, and kept the other two cities as potential IFAs. [20] The RPD found "...that there is no serious possibility that the claimants would be subjected to persecution or, on a balance of probabilities, to a risk to their lives or a risk of cruel and unusual treatment or punishment or a danger of torture in Abuja or Port Harcourt" [21] The RPD applied correct law and considered the Appellant's reasons for not willing to relocate to either of the two cities suggested as IFAs. The RPD found that the two cities are viable internal flight alternatives for the Appellant in Nigeria and, therefore, decided that the Appellant is neither a Convention refugee nor a person in need of Canada's protection. [22] The Appellant allegedly fears that his father's cronies want to inflict FGM on his minor daughters and want the Appellant to follow the cult Egwugwu and Ogboni fraternity. The RPD suggested Abuja and Port Harcourt as potential IFAs where the Appellant could flee his father's kinsmen and live safely and reasonably. [23] Guided by Huruglica,10 I recognize and respect the RPD's credibility findings. The RPD found that the Appellant is not credible, and provided a number of reasons for that finding. The RPD had concerns about the Appellant's credibility; the Appellant could have provided some credible corroborative evidence to alleviate that concern, but did not. The Appellant's father has been dead since 1998.11 The Appellant listed his father's title as Chief. Nigeria has so many chiefs that it has a Ministries of Local Government and Chieftaincy Affairs12 with offices in 24 states. The Appellant could have provided some corroborative evidence about his late father's title, the Appellant's alleged membership in Ogboni fraternity, or the fraternity's capacity to find the Appellant in the two cities identified as potential internal flight alternatives. [24] The Appellant submits that the RPD erred in its reasons at paragraph 57 by misconstruing the evidence and considering the Appellant to be a Yoruba. The Appellant submits that the "Appellant and his family are not Yoruba. They are Igbo."13 I am not persuaded. The Appellant submitted that his father's links and his own links to the Ogboni fraternity are the root cause of his fears. The documentary evidence clearly states that members of the secret and powerful society or fraternity are Yoruba. Documentary evidence14 shows that Ogboni society is "...an 'assembly of elders' that created a cult based on the cosmology of Yorubas (ibid., 20). Sources note that the Ogboni society emerged among the Yorubas." Moreover, documents regarding Ogboni15 states, "...membership is open to Yorubas and other ethnicities, and that men and women are eligible for initiation within the society, although the 'predominance of male elders is undeniable'." [25] Documentary evidence regarding the Ogboni also states that: ...the Ogbonis acted as the "check and balance" against the power of the king to the point of having the authority to remove him if necessary... even though the Ogbonis had judicial functions, their primary role was the preservation of the 'Ife oracle'. ...during the pre-colonial era, the Ogboni society was the highest court in Yorubaland... . ... after Nigeria's independence, the Ogboni "had no formal role to play in society". ... 'since the people no longer had any use for them as their protectors, they now protect any of the self-centered interests of their members by blackmail, intimidation, and murder.' In a chapter on organized crime in Nigeria in the book entitled Traditional Organized Crime in the Modern World, Obi N. I. Ebbe catalogues the Ogboni secret society as an organized crime organization. [26] Objective documentary evidence16 also shows that an IFA is possible for someone running away from the Ogboni and states: In response to a question on whether a woman, her husband and children would be able to internally relocate to avoid being detected by Ogboni members (the context of the question implied but did not specifically state, to escape FGM) the Inter African Committee on Harmful Traditional Practices Affecting Women and Children's Health stated in a July 2011 interview with CORI that they had not had experience of cases involving Ogboni members, but that a family could relocate to avoid detection. [27] Documentary evidence citing WACOL, a women's NGO, also states that internal relocation is possible for any adult woman irrespective of whether the case is about FGM, domestic violence, or forced marriage. "According to UNIFEM, the sheer size of the country and its large population means that it would be very difficult for a husband, or other family members, to locate a woman who has escaped FGM, a forced marriage, or is a victim of domestic violence".17 The alleged problems for the Appellant arose from demand for FGM on his older minor daughter and therefore, the above information applies. If a female with a child, in a male dominated society, can relocate as the documentary evidence suggests, I would conclude that on a balance of probabilities, so can a man. The Appellant is highly educated and is a world traveller.18 Therefore the cities suggested are viable IFAs. [28] The Appellant used the word "Ogboni Fraternity". Documentary evidence shows in Nigeria, there is a Ogboni Society and another Ogboni Fraternity. Regarding the latter, documents19 show: ...the [Reformed Ogboni Fraternity] (ROF) 'pursues the same objectives as the Ogboni, namely to form a network that promotes its supporters politically and economically and supports them in their public functions.' ...the Ogboni group is a 'powerful traditional institution [that] represent[s] the traditional attitude [in the] moral, legal, social and political life' of the Yoruba. 2. Aims and Objectives With regard to the aims and objects of the ROF, the website indicates the following: * To associate for the promotion of the Principle of Universal Fatherhood of God - the All-Seeing Eye, and Universal Brotherhood of Man, without any discrimination as to Race, Colour, Creed, Sex, Religion or Political Affiliation. * To associate for the principal purpose of knowing God better such that all the undertakings of the fraternity will be in accordance with His Holy will. * To encourage the diffusion of the practice of benevolence, charity and chastity. * To offer assistance (as a bounding duty) to all poor and distressed members and non-members, without detriment to themselves and their connections, or injustice to others who are not members of this Fraternity. * To see to the mortal remains of any deceased members by providing a coffin or financial assistance up to a reasonable cost and to give his/her remains a decent deposit in the bosom of Mother Earth. * To inculcate in all members, the constant practice of the Golden Rule, 'to do unto others (members and non-members) as one would wish them to do unto him'. * To provide necessary funds for the successful prosecution of the business of the Fraternity, according to this Constitution. * To keep and obey the Laws and Constitution of the Federal Republic of Nigeria and those of any other Country in which one resides. 3. Membership * Membership shall be opened to all who embrace a non-idolatrous faith in God. * An applicant for membership shall be at least Twenty One years (21), if male, and Forty years old (40) if Female... [29] Based on the above, the Ogboni fraternity does not appear to be a body that is out to hunt down the Appellant and his family for refusing FGM on their daughters. In contrast, it sounds like a law abiding and benevolent fraternity. [30] The Appellant suggests that his father's kinsmsn would be able to locate him in both identified IFAs; however, there was no persuasive evidence adduced at the hearing by the Appellant that his father's kinsman are either interested in locating him and/or that they have resources to carry out a widespread and continuous search throughout the country of over 150 million people. [31] Thus, the RAD finds, on a balance of probabilities, that even if Ogboni fraternity wants to locate him, they will not be able to do so. [32] The RAD, after reviewing the recording of the hearing regarding the IFA analysis, finds that the RPD's application of the legal test to the facts of the Appellant's case is supportable. Request for a hearing before the RAD [33] According to section 110(6),20 the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in section 110(3)21 that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in section 110(3) must be understood in relation to section 110(4).22 [34] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new23 evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, it is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [35] Therefore, the RAD will not hold an oral hearing in this appeal. Determination [36] I find that the Appellant is neither a Convention refugee nor a person in need of Canada's protection, as he has two viable internal flight alternatives in Nigeria. In my opinion, the RPD provided cogent and transparent reasons for its findings and found that the Appellant is not credible, which I recognize and respect, guided by Huruglica.24 I note the Appellant's concerns regarding the RPD's credibility determination. However, an IFA is determinative and thus I will not consider other issues raised by the Appellant. [37] Therefore, the appeal fails and the RAD confirms the RPD's determination. CONCLUSION [38] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [39] The appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal October 14, 2015 Date 1 The Act or IRPA, as enacted by S.C. 2001, c. 27. 2 Exhibit P-2, Appellant's Record, Memorandum, p. 53. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 5 Youkap, Felicie Kouamo v. M.C.I. (F.C., no. IMM-5051-14), Shore, February 27, 2015, 2015 FC 249. 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 7 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 8 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 9 Chauhdry, Mukhtar Ahmed v. M.C.I. (F.C.T.D., no. IMM-3951-97), Wetston, August 17, 1998. 10 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 11 Exhibit RPD-1, RPD's Record, at p. 67. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (28 November 2014), item 12.3, NGA104232.E. 13 Exhibit P-2, Appellant's Record, at p. 36, para. 52 14 Exhibit RPD-1, RPD's Record, NDP for Nigeria (28 November 2014), item 13.5, NGA104213.E. 15 Ibid. 16 Exhibit RPD-1, RPD's Record, NDP for Nigeria (28 November 2014), item 5.10, CORI Thematic Report, Nigeria: Gender and Age. 17 Exhibit RPD-1, RPD's Record, NDP for Nigeria (28 November 2014), item 2.2, paras. 23.39. 18 As per dozens of exit and entry stamps in the Appellant's passport; see Exhibit RPD-1, RPD's Record, pp. 77- 89. 19 Exhibit RPD-1, RPD's Record, NDP for Nigeria (28 November 2014), item 13.6, The Reformed Ogboni Fraternity( ROF), NGA104054.E. 20 IRPA, supra, footnote 1. 21 Ibid. 22 Ibid. 23 Ibid., at s. 110(4). 24 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08256