TC1-04791

RAD File / Dossier de la SAR : TC1-04791 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX Personne en cause Date of decision December 2, 2021 Date de la décision Panel Kamal Gill Tribunal Counsel for the person who is the subject of the appeal Richard Odeleye 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] The Appellant, XXXX XXXX XXXX (a.k.a. XXXX XXXX), citizen of Nigeria, appeals the decision of the Refugee Protection Division (RPD) dated April 26, 2021, rejecting her claim for refugee protection. BACKGROUND [2] The Appellant fears her father's extended family (Paternal Family). She also fears her husband's family (In-laws). [3] The RPD heard the Appellant's claim for protection on March 21, 2021. On April 26, 2021, the RPD rejected her claim for refugee protection on the basis that Appellant had an Internal Flight Alternative (IFA) in Nigeria. [4] I have considered the Appellant's submissions and conducted my own independent assessment of the evidence. An IFA is determinative of the Appeal. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [5] The RAD conducts its own analysis of the record to decide whether or not the RPD's Decision was wrong. The RAD generally does not owe any deference except in rare cases where the RPD held a meaningful advantage in assessing the credibility of oral testimony. The standard applied on this Appeal is one of correctness.1 DECISION [6] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),2 I dismiss the Appellant's appeal and confirm the decision of the RPD that the Appellant is not a Convention3 refugee nor person in need of protection. NEW EVIDENCE AND ORAL HEARING [7] The Appellant has not submitted new evidence and is not requesting an oral hearing before the RAD. Chairperson's Guideline 4 [8] In my independent assessment of the record, I have considered and applied the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.4 SUMMARY OF ALLEGATIONS [9] The Appellant lived in the United Kingdom (UK) from 2008 - 2015. In the UK the Appellant studied XXXX XXXX. While in the UK she got married, but the marriage was dissolved in 2012. She then returned to Nigeria in 2015. [10] She then married XXXX XXXX XXXX who is a UK citizen. This marriage ended in a separation on XXXX XXXX, 2016. Mr. XXXX resides in the UK. [11] The Appellant's father passed away on XXXX XXXX, 2017 and his funeral was on XXXX XXXX XXXX 2017. The Appellant is the eldest child. After the death of her father, as the eldest child, she is entitled to inherit her father's entire estate. The Appellant's sister informed the Appellant that she had overheard their Paternal Family planning to kill the Appellant when the Appellant attends their father's funeral. As the result of this threat, the Appellant did not attend her father's funeral, instead left Nigeria for Canada on XXXX XXXX, 2017 as the Appellant was already in possession of a study permit. [12] Upon her arrival in Canada, the Appellant pursued her XXXX XXXX XXXX until April 2019. On October 25, 2019, the Appellant made a claim for refugee protection. [13] The Appellant has two children, a girl and a boy, from her second marriage. Both of the children are Canadian citizens. Her In-Laws, who reside in Nigeria, want their granddaughter to have female gential mutilation (FGM). Her husband, Mr. XXXX, also supports the FGM as he does want to become estanged from his family in Nigeria nor does he want to become victim of spiritual curse his family may impart on him. The Appellant is against the FGM. [14] Since the Appellant's arrival in Canada, the Paternal Family and the In-laws, have continued to pursue the Appellant in Nigeria. RPD DECISION [15] The RPD found her allegations of risk to be credible. However, the RPD determined that the Appellant had a viable IFA in Akura and Benin City. The RPD concluded that the Paternal Family and her In-laws do not have the sufficient means to pursue the Appellant in the IFA locations and that it would be objectively reasonable, in all the circumstances, for the Appellant to relocate to the IFA locations. APPELLANTS' ARGUMENTS [16] The Appellants' arguments can be summarized as follows: (1) the RPD erred by making findings on largely peripheral matters rather than on the core allegations of risk; (2) the RPD failed to take all relevant factors into consideration in deciding on the viability of an IFA location. Specifically, the Appellant submits that the RPD ignored important evidence which was before the RPD namely that the Paternal Family believes that as long as the Appellant is still alive she might, still, pursue her rights to her father's estate. The Appellant also submits that the RPD erred in finding that the Paternal Family does not have the means, financial or otherwise, to find her in the IFA locations. The Appellant submits that since her Paternal Family has took over her father's estate they have obviously have the financial means to pursue the Appellant in the IFA locations. [17] With respect to the In-laws the Appellant submits that the RPD failed to consider the objective documentary evidence her husband and his family have the legal right and authority to retrieve the child from the Appellant in Nigeria and that the Nigerian authorities, including the Nigeria Police Force, would be willing to assist in retrieving the child. Therefore, the In-laws have the means in locating the Appellant. [18] Regarding whether it would be reasonable for the Appellant to relocate to the IFA location, the Appellant submits that the RPD was not sensitive to the Appellant's age, gender, level of education, ethnicity, religion, financial circumstances, ability to travel to the IFA location, ability to secure employment, ability to obtain accomodation, and lack of a support network. The Appellant also submits that the RPD failed to properly consider the pyschiatrist evidence that the Appellant suffers from trauma which would impact her ability to relocate to the IFA location. ANALYSIS Appellants' allegations of risk [19] I accept the RPD's findings that the Appellant was credible witness. As such, I accept that her allegations are true, except where otherwise indicated in my analysis. Although, the RPD found several credibility issues regarding the Appellant's employment history and departure from the UK to Nigeria, these were not determinative of the Appellant's claim for refugee protection. The RPD accepted that the Appellant as the eldest child has rights to her father's estate and as a result her Paternal Family threatened to kill her. The RPD also accepted that the Appellant's In-laws wish to submit her daughter to FGM. Akura and Benin City as IFAs [20] To determine that a viable IFA exists, I must first be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted, or personally subjected to risk to life, cruel and unusual treatment or punishment, or torture in the part of the country where the IFA exists and secondly, that the conditions in the location considered to be an IFA are such that it would not be unreasonable, in all the circumstances, for the Appellant to seek refuge there. Both prongs must be satisfied to find that the Appellant have an IFA.5 The burden of proof is on the Appellant. [21] After conducting my own independent assessment of the record, I find that the RPD did not base its findings on the viability of IFA locations on peripheral matters. Rather the RPD's findings are based on the Appellant's core allegations of risk. I also I find that the RPD did not err in its assessment of whether the Appellants faces a serious possibility of persecution or likely risk of harm in either Akura or Benin City. For the reasons explained below, I find that the Appellant has not established with sufficient credible evidence that she faces a serious possibility of persecution or likely risk of harm in the IFA locations or that it would be unreasonable in all the circumstances, including those specific to her, to relocate to the IFA locations. First Prong: Serious possibility of persecution or likely risk of section 97(1) harm in Akura and Benin City Paternal Family [22] The RPD found that although the Appellant's Paternal Family do have the motivation to pursue the Appellant in the IFA locations, they do not have the means to do so. [23] The Appellant submits that the RPD ignored important evidence which was before the RPD namely that the Paternal Family believes that as long as the Appellant is still alive she might, still, pursue the rights to her father's estate. The Appellant also submits that the RPD erred in finding that the Paternal Family does not have the means, financial or otherwise, to find her in the IFA locations. The Appellant submits that since her Paternal Family has took over her father's estate, given the size of the estate, they obviously have the financial means to pursue the Appellant in the IFA locations [24] After conducting my own independent assessment of the record, I find that the RPD did not did not err in finding that the the Paternal Family do not have the means to track the Appellant in the IFAs. The Appellant believes since the Paternal Family has taken over the Appellant's father's estate including businesses in multiple cities in Nigeria that they have the financial means to pursue her in the IFA locations. The Appellant may well have a sincere belief in the power and influence of the Paternal Family as a result of taking over a large estate. However, the Appellant failed to establish how having control of an estate increased the Paternal Family's connections with authorites in the IFA locations which would allow them to search and find the Apellant. The only evidence the Appelllant offered was a listing of 18 properties held by her father.6 Of the 18 properties listed, only three have a value listed whereas the remaining 15 properties value is unknown.7 Of the three properties which have value listed, two of three have been sold.8 Therefore, it is unclear what the Appellant's father's estate value actually is. As such, on a balance of probabilities, I find that the Paternal Family's acquistion of the estate is insufficient to establish that the Paternal Family, now, has the financial means to influence authorities to locate the Appellant in the IFA locations. Therefore, the Appellant failed to provide sufficient evidence of the resources that the Paternal Family is able to marshal given their acquired financial wealth in order to find the Appellant in the IFA locations. [25] At the RPD Hearing, the Appellant testifed that her Paternal Family can locate her in the IFA locations because they have connections everywhere.9 When asked about the type of connections, the Appellant replied because they travel a lot and they can travel to the IFA locations.10 I find the Appellant's evidence is not persuasive because she is simply speculating regarding the Paternal Family's connections without providing any specifics about these connections. The Appellant also did not provide any persuasive objective evidence to link the Paternal Family to any political party, person(s) of influence, or any connections with state authorities in Nigeria. As a result, I find that the RPD's conclusion that the Appellant's Paternal Family do not have the means to locate the Appellant in the IFA locations to be correct. In-Laws [26] The Appellant fears the In-laws because they want to subject her daughter to FGM. The objective country evidence regarding who makes the decision to subject their daughter to FGM is mixed. The objective country condition states that the decision to subject a girl to FGM in Nigeria is up to the girl's parents.11 The European Asylum Support Office (EASO) of the European Union (EU) indicates that there is considerable variation, among both individiuals and ethnic groups, regarding whether it is the father or the mother who makes the final decision.12 According to a social and medical anthropoligist the decision rests mainly with the mother, as well as her mother and sisters.13 Similiarly, a representative of the Centre for Women Studies and Intervention (CWSI) indicated that the decision depends on mothers, who maintain the ancestral custom, but that in a more traditional homes where the women is seen as an unequal to the man and cannot make decisions, the decision will be up to the father instead.14 Extended family may also be involved in the decision including maternal and paternal grandmothers who maybe very influential. [27] The Appellant and her husband are separated. Her husband resides in the UK and has only come to Canada to visit the family. There is no evidence that her husband, who is a UK citizen, continues to maintain his Nigerian citizenship given that he has acquired UK citizenship. The Appellant did not provide any evidence that her husband is a dual citizen. Further, the Appellant did not provide any evidence that her husband, being a UK citizen and a resident, has any intentions of returning to Nigeria. Also given that the Appellant and her husband are separated and live in different countries, it appears that the Appellant is primary caregiver to the children as their father only comes to Canada for visits. It is also unclear given the Appellant's separation from her husband, who has primary custody of the children. [28] After taking into consideration the particular circumstances of the Appellant and the objective country evidence regarding who is responsible for making the decision to subject their daughter to FGM, I find, on a blance of probabilities, that the Appellant will be responsible for making the decision on FGM. Since the Appellant states she opposes FGM, I will, now, consider any consequences she will face given her opposition to FGM. [29] According to the French Office for the Protection of Refugees and Stateless Persons, parents who refuse to let their daughter be mutilated do not face any consequences, that is, neither retaliation nor threats.15 A UNICEF representative notes that even though FGM is an expectation in the community, parents will not face social pressure if the FGM is not done because FGM is considered a family matter.16 [30] According to a CWSI representative, parents who refuse FGM may suffer some form of social exclusion.17 Also if the mother is opposed to FGM, she may be criticized or face pressures, particularly from her husband or mother-in-law.18 [31] According to UK Home Office, consequences may include discrimination, blackmailing, denial of intracultural benefits and ostracism.19 Based on the mixed country condition evidence and taking into consideration that the Appellant did not provide any evidence regarding what the In-laws would do if she prevented them from performing FGM, I find that at best the Appellant may not face consequences and at worst even if she does then these consequences do not amount to persecution. [32] In the alternative, even if the Appellant faced consequences which could amount to persecution as result of her of opposition to FGM, then, for reasons explained below, the In-laws do not have means to locate the Appellant in the IFA locations. [33] The RPD found that the Appellant did not tender any evidence with respect to the In-laws' means, financial or otherwise, to locate her, except that they can find her anywhere in Nigeria including the IFA locations. [34] The Appellant submits that the RPD failed to consider the objective documentary evidence, RIR NGA 200143.E, that her husband and his family have the legal right and authority to recover the child from the Appellant in Nigeria. Also the Nigerian authorities, including the Nigeria Police Force, would be willing to assist in the recovery. Therefore, the In-laws have the means in locating the Appellant. The issue of In-laws having the legal authority to recover the child from the Appellant in Nigeria was not raised before the RPD either in oral testimony, in oral submissions, or in the Basis of Claim Form original or amended narrative. The Appellant provides this evidence for the first time by way of her submissions before the RAD. The Appellant has not provided any explanation for not raising this issue or the RIR before the RPD. After conducting my own independent review of the record, the husband resides in the UK and the Appellant did not provide any evidence that her husband has taken any steps to obtain custody of the children or taken steps to track the children. Therefore, I am not satisfied that there is a serious possibility that the husband would do so in Nigeria. [35] At the RPD Hearing, the Appellant testified that although she and her husband are separated and her husband resides in the UK, he has siblings in Nigeria and everyone is aware of the circumcision thing.20 At the RPD Hearing, the Appellant provided oral submissions and did not raise the specific means the In-laws have at their disposable to allow them to pursue the Appellant in the IFA locations. Also in the Basis of Claim Form, the Appellant did not provide any evidence regarding the In-laws' means to locate the Appellant in Nigeria. Therefore, I concur with the RPD's finding that the In-laws do not have the means to locate the Appellant in the proposed IFA locations. Paternal Family's continued interest in the Appellant and her siblings and the In-laws continued interest in the Appellant [36] The Appellant's siblings all reside in Nigeria. Two of her siblings live in Ibandan, one lives in Lagos, and one lives in Abeokuta. The two siblings who live in Ibandan provided an affidavit in support of the Appellant's claim for refugee protection. The two siblings state that both the Paternal Family and In-laws continue to make inquiries about the Appellant. I accept that the affidavit corroborates the Appellant's allegation that the Paternal Family and In-laws continued to have interest in the Appellant. However, it is unclear from the affidavit what means the Paternal Family have used to track or contact the siblings. Although the Appellant has a brother who resides in Lagos and another brother who lives in Abeokuta, there is no evidence that the Paternal Family contacted either of these brothers to ascertain the Appellant's whereabouts. Therefore, I find that the Paternal Family's interest in the Appellant is limited to the two siblings who reside in the city of Ibandan. [37] It appears that In-laws have limited their inquiries to making phone calls to these two siblings who both reside in Ibandan. Therefore, I find that the In-laws interest in the Appellant is also limited to the city Ibandan. [38] Although I accept that the Appellant's two siblings have been contacted by the Paternal Family and the In-laws to ascertain the Appellant's whereabouts, I find that the siblings' affidavit is insufficient to establish that both the Paternal Family and the In-laws have the means to pursue the Appellant in the IFA locations. [39] The Appellant submits that after the death of her father, her siblings have been in hiding and have been moving from city to city in Nigeria. However, I find that these facts have not been established on a balance of probabilities. With respect to the two siblings in Ibadan, although they filed an affidavit dated December 23, 2020 which says that they have been moving around the country, they provide no evidence as to different locations they have lived in. The affidavit states they are currently in Ibadan. The Appellant's Basis of Claim (BOC) Form, completed October 15, 2019 - more than a year before the affidavit - also indicates that they lived in Ibadan. Although the Appellant filed an amended BOC on February 22, 2021, she did not provide evidence of a changed location (s) and she did not present new evidence, on appeal, that they have moved. [40] With respect to the siblings in Lagos and Abeokuta, the Appellant's BOC, completed October 15, 2019, indicates that they live in Lagos and Abeokuta respectively. Although the Appellant filed an amended BOC on February 22, 2021, she did not provide evidence that they have changed their location (s) and she did not present new evidence, on appeal, that they have moved. [41] Based on the totality of the evidence, I find that the Appellant would not face a serious possibility of persecution or likely risk of harm in the IFA locations. Second Prong: Is Akura or Benin City objectively reasonable as an IFA? [42] The RPD found that it would be objectively reasonable in all the circumstances, including her education, work experience, religion, and lack of family support, for the Appellant to relocate to the IFA locations. [43] The Appellant submits that the RPD was not sensitive to the Appellant's age, gender, level of education, ethnicity, religion, financial circumstances, ability to travel to the IFA location, ability to secure employment, ability to obtain accomodation, and lack of a support network. The Appellant also submits that the RPD failed to properly consider the pyschiatrist evidence that the Appellant suffers from trauma which would impact her ability to relocate to the IFA location. [44] The RPD asked the Appellant whether it would be reasonable for her to relocate to Benin City. The Appellant testified that it would not be reasonable to relocate to Benin City because: she would not be able to find employment as a result of high rate of unemployment; discrimintion faced by women in the workforce; and lack connections in finding a job. She also replied that she would not be able to secure accommodations without proof of employment or a bank account. Further she testifed that she requires a support network because she has two young children. The RPD considered the Appellant's education, work experience, high rate of unemployment, discrimination faced by women in finding employment, her ability to safely travel to Benin City, practice her religion, access to schooling for the children and access to health care. The RPD was cognizant that the Appellant would face challenges as a single women with children and no family support network. After taking all these factors to into considersation, the RPD concluded that it would be objectively reasonable for her relocate to the IFA locations. I have considered the Appellant's circumstances, and the country evidence, and I come to the same conclusion that the IFA locations are reasonable. Therefore, I find that the RPD did not err. [45] The Appellant submits that the RPD failed to properly consider the evidence from the psychologist that the Appellant suffers from trauma which would impact her ability to relocate to the IFA location. [46] The RPD took into account the diagnosis and concluded mental health services are available in Nigeria. The RPD determined that although there is a cost associated with obtaining psychological support and treatment, this would not make relocating to the IFA locations unduly harsh for the Appellant. [47] The RPD notes the following: [20] The claimant submitted a XXXX XXXX that indicates that the XXXX opinion is that the claimant has XXXX XXXX XXXX XXXX XXXX and would benefit from XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Counsel for the claimant submitted that the claimant testified that the claimant will not receive similar medical assistance for her XXXX XXXX in Nigeria.21 [48] After conducting my own independent assessment of the record, I find that the RPD incorrectly describes the Appellant diagnosis and recommended treatment. The RPD also incorrectly notes that Counsel for claimant submitted that the Appellant testifed at the RPD Hearing she would not receive similar medical assistance for her XXXX XXXX in Nigeria. To correct these errors of the RPD, I have independently reviewed the XXXX XXXX, the Appellant's testimony and Counsel's submissions at the RPD hearing, and the objective country condition evidence related to accessibility and affordability of mental health services in Nigeria. [49] The XXXX XXXX was written on April 24, 2020.22 The report states that the Appellant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The recommended treatment includes stress-management training and supportive counselling. The Appellant did not provide any evidence either to the RPD or to the RAD about the type of treatment she is undergoing in Canada, if any, whether her treatment is successful, and whether she requires on-going treatment, opposed to her condition being reasonably managed by a simple plan of action. Although the XXXX XXXX states that the Appellant's condition will deteriorate with exposure to further threats of harm, it does not address the extent to which or the reasons why the Appellant's condition would worsen upon relocation to the proposed IFA locations. The Appellant bears the onus of showing that the IFA is not viable. Therefore, I find that the evidence does not show that the Appellant's mental health issues requires on-going care. [50] Even if I am wrong and the Appellant does require XXXX XXXX XXXX, I find that she is able to access mental health services in Nigeria. At the RPD hearing the Appellant was asked whether she could relocate to Akura and Bennin City. The Appellant did not provide any evidence regarding the accessibility and affordibility of mental health treatment in the proposed IFA locations. I find that while mental health care is difficult to obtain in Nigeria, it is available. Treatment facilities are mainly located in the urban and in some semi-urban areas. There are nine neuropsychiatry hosptilas throughout the country.23 Each of the accredited medical schools and the attached teaching hospitals has a psychiatry department.24 There are also six state-owned mental health hospitals financed and managed by various state governments.25 Mental health treatment is available in public hospitals and there is no form of mental illness which is not available in Nigeria.26 There is also training of health care workers at the primary health care level to diagnose common mental illnesses.27 In and outpatient treatment by psychiatrists and psychologists from public facilities; psychiatric counselling, medical assistance by pyschiatric nurse, care at home by a nurse from private facilities is available.28 Therefore, I agree with the RPD that the Appellant had not met her burden to show that the proposed IFA locations would be unreasonable on the basis of access to or the ability to pay for mental health care. [51] I find it would not be objectively unreasonable, in all the circumstances, for the Appellant to relocate to either Akura or Benin City. CONCLUSION [52] Pursuant to section 111(1)(a) of the IRPA,29 I confirm the decision of the RPD and dismiss the appeal. (signed) Kamal Gill Kamal Gill December 2, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, section 111(1)(a). 3 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 4 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 FC 706 (FCA). 6 Exhibit RPD-1, RPD Record, Exhibit 6; p 67. 7 Exhibit RPD-1, RPD Record, Exhibit 6; p. 67. 8 Exhibit RPD-1, RPD Record, Exhibit 6; p. 67. 9 Exhibit RAD-2, RPD Hearing Transcript (March 23, 2021), p. 47. 10 Exhibit RAD-2, RPD Hearing Transcript (March 23, 2021), p. 47. 11 Exhibit RAD-1, National Documentation Package (NDP) for Nigeria (November 30, 2021), Item 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018), Immigration and Refugee Board of Canada; same document in the NDP version of November 30, 2020 and April 16, 2021. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 Ibid., Item 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0, United Kingdom. Home Office; same document in the NDP version of November 30, 2020 and April 16, 2021. 20 Exhibit RAD-2, RPD Hearing Transcript (March 23, 2021), p. 49. 21 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, p. 9. 22 Exhibit RPD-1, RPD Record, pp. 55-58. 23 Exhibit RAD-1, NDP for Nigeria (November 30, 2021), Item 1.9: Country Policy and Information Note. Nigeria: Medical and healthcare issues. Version 3.0, United Kingdom. Home Office; same document in the NDP version of November 30, 2020 and April 16, 2021. 24 Ibid. 25 Ibid. 26 Ibid., at p. 17. 27 Ibid., item 1.9. 28 Ibid. 29 IRPA, section 111(1)(a). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-04791 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français