TB5-12992

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 : TB5-12992 TB5-12993 TB5-12994 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 XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 11, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I. Jesuorobo 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 (principal Appellant) and her two minor children XXXX XXXX and XXXX XXXX, all citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. [2] The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD, and determine them to be Convention refugees or persons in need of protection. In the alternative, the Appellants ask the RAD to refer their refugee protection claims back to the RPD with directions to accept these claims. [3] The Appellants are not relying on new evidence pursuant to section 110(4), and they are not requesting an oral hearing pursuant to section 110(6) of the Immigration and Refugee Protection Act (IRPA or Act).1 [4] The Minister is not intervening in the appeal. DETERMINATION [5] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. [6] This appeal is dismissed. BACKGROUND/ALLEGATIONS [7] The principal Appellant alleged before the RPD that she feared abuse from her former common-law partner (partner) because she had taken their children out of Nigeria. She fears that her former partner and his family will subject the children to circumcision. For details, refer to the Appellants' Basis of Claim (BOC) form narrative.2 The principal Appellant provided additional details at the hearing. [8] The Appellants' claims for refugee protection were heard on October 28, 2015. In the decision of November 3, 2015, the RPD rejected their refugee claims. [9] The RPD determined that the Appellants are not Convention refugees, nor, persons in need of protection. The RPD found that the Appellants have a viable internal flight alternative (IFA) in Lagos, Ibadan, Port Harcourt, or Abuja.3 [10] The Appellants submit that the RPD drew unreasonable conclusions and/or ignored relevant evidence; imposed undue or excessive burden on the Appellants in finding that the Appellants have a viable IFA outside XXXX XXXX within Nigeria; and breached the principle of procedural justice. [11] The Appellants ask the RAD to allow the appeal. ROLE OF THE RAD [12] In assessing the appeal, the RAD is guided by the Canadian jurisprudence, including the Huruglica4 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. [13] Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made as per subsection 111(1)(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [14] The RAD adopts and applies the Huruglica case law in this appeal. The RAD considered the Appellants' submissions.5 ANALYSIS [15] The determinative issue in this appeal is: * Whether the Appellants have a viable IFA in Lagos, Ibadan, Port Harcourt, or Abuja? [16] Regarding the RPD's credibility findings, the Appellants submit: In the instant case, The RPD did NOT have any problem whatsoever with the credibility of the appellants. It is submitted that the RAD should respect what is essentially a positive credibility finding in favour of the appellants by the RPD given that this aspect of the decision (assessment of credibility) springs from the RPD panel's ability to see, hear and feel the testimony of the appellants at the hearing.6 [17] In reviewing the totality of the evidence in this case, including the principal Appellant's testimony, the RAD finds no significant credibility concerns in this case. [18] The RPD found that the Appellants have a viable IFA in Lagos, Ibadan, Port Harcourt, or Abuja. The Appellants submit that the RPD erred in its IFA findings. The RAD assesses whether the Appellants, in their particular situation and circumstances, have a viable IFA in Lagos, Ibadan, Port Harcourt, or Abuja upon return. [19] The question of whether an IFA exists is an integral part of the Convention refugee definition. It arises when a claimant who otherwise meets all the elements of the Convention refugee definition in his or her home area of the country nevertheless is not a Convention refugee because the person has an IFA elsewhere in that country. The key concepts concerning IFA come from two cases, Rasaratnam7 and Thirunavukkarasu.8 From these cases, it is clear that the test to be applied in determining whether there is an IFA is two-pronged: 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."9 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.10 [20] Both prongs must be satisfied for a finding that the claimant has an IFA. [21] The Appellants submit "that it is an excessive burden to expect a claimant to prove that the agent of persecution has the means, resources or connections to search for them anywhere and throughout Nigeria."11 The Appellants submit that it is one thing to name a location and is quite another to then expect the Appellants to persuasively prove that they can be located throughout the country.12 The Appellants submit that "While it is acknowledged that the RPD panel named specific IFA locations to which it felt the appellants could relocate, it failed in its attempt to justify same by requiring excessive proof from the appellants."13 The Appellants argue that this cannot be the legal test;14 the Appellants refer to specific case law in support of their argument. In this respect, the RAD finds the RPD did not err in applying the IFA test. In Thirunavukkarasu, the Court held since the existence or not of an IFA is part of the question of whether the claimant is a Convention refugee, the onus of proof rests on the claimant 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. [22] In assessing the viability of the IFA named, the RAD finds it was open to the RPD to assess the Appellants' risk in the context of the perpetrators' reach and influence such that they would have the capacity to locate to harm these Appellants in Lagos, Ibadan, Port Harcourt, or Abuja. The RAD is aware that the principal Appellant's partner went to her friend's house in Abuja. The Appellants submit that geographically Abuja is farther than the other cities. The Appellants submit that there is no reasonable rationale for concluding that he cannot go to the other cities that are close to XXXX XXXX in proximity.15 The RAD finds the fact that the principal Appellant's partner went to her friend's house in Abuja does not in or of itself render the proposed IFA unreasonable because the RAD finds the principal Appellant's partner checked in with a mutually-known contact to find these Appellants' whereabouts. Regardless, the principal Appellant's partner was unable to locate these Appellants. The RAD finds the totality of the evidence in this case does not establish that the alleged perpetrators would be able to locate these Appellants in Lagos, Ibadan, Port Harcourt, or Abuja upon return to Nigeria. The RAD considered these Appellants' particular situation and circumstances in the context of the totality of their evidence, including the objective documentary evidence. The RAD finds the Appellants did not provide sufficient reliable probative evidence to establish that the perpetrators would have the capacity to locate these Appellants in Lagos, Ibadan, Port Harcourt, or Abuja. [23] Regarding the second prong the IFA test, the Appellants submit that the Appellants will face harsh forms of discrimination and that the principal Appellant will confront high level of unemployment;16 in this respect, the Appellants refer to the documentary evidence17 that addresses the challenges women who head their own households face in obtaining housing, employment, and government support services that are available to female-headed households. The RAD has considered all of these Appellants' particular situation and circumstances. The second-prong of the test takes into account the particular situation and circumstances of the applicant and the particular country involved. The evidence of circumstances in the IFA must be more than the general country conditions and must be relevant to the applicant's specific circumstances. [24] The Appellants submit that the RPD was unreasonably selective in reviewing the documentary evidence. The Appellants quote the documentary evidence stating that unmarried women in particular endured many forms of discrimination.18 The RAD reviewed the documentary evidence cited, including other country documents in evidence; the RAD finds these documents indicate that women who tend to establish households on their own face economic challenges. The RAD is aware that the principal Appellant has only grade-5 education. The evidence, however, shows the principal Appellant has some employment experience, and has the benefit of being a Christian. Christians constitute a large proportion of the population in and around the IFAs named. The principal Appellant also speaks the local language, and some English. The principal Appellant also has the benefit of having travelled internationally, and having spent some time in an English-speaking country, Canada. [25] The Appellants submit that the RPD failed to consider the harsh impact of family separation on the Appellants.19 In this respect, the RAD finds the Appellants are here in Canada without their family members present. Moreover, the RAD finds in Nigeria the Appellants would be inhabiting in a culture similar to theirs, speaking the same language as others in the area, and would be among a large segment of population with the same religion; the RAD finds these be significant positive factors in finding the reasonableness of the IFAs named. The Appellants cite Thirunavukkarasu in which the Court recognized that the forced separation of families may be reasonable.20 The RAD is guided by the Canadian jurisprudence; however, in this case, the RAD finds the principal Appellant is a young women, who has come all this way to Canada, and is head of the household on her own. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. In consideration of the totality of the evidence in this case, the RAD finds that the second prong of the test is met and that the proposed IFA would be reasonable in all of these Appellants' particular circumstances. [26] The Appellants also argue that the RPD failed to reasonably consider objective documentary evidence which shows that the police and courts hardly intervene, and that relocation of similarly-situated people is fraught with harshness.21 The RAD is aware that domestic abuse is pervasive in Nigeria, and that there is no national legislation on domestic violence in Nigeria. [27] The following provides details regarding the legislation, government's initiative in place, and the various services available to victims of gender and domestic abuse in Nigeria: Sources report that some states have state-level domestic violence legislation, including: Ebonyi (US 27 Feb. 2014, 35; Nwogugu 2014, 113); Jigawa (US 27 Feb. 2014, 35; ProjectAlert 16 Oct. 2014); Cross River (US 27 Feb. 2014, 35; Nwogugu 2014, 113); Lagos (US 27 Feb. 2014, 35; Nwogugu 2014, 114), enacted in 2007 (ibid.); Ekiti State, which has a "gender-based" violence law (ibid., 119). ... In a statement published in the Nigerian newspaper, Premium Times, the Chairman of the Nigerian National Human Rights Commission (NHRC) stated that domestic violence laws, in the states that have them, are "still quite poorly implemented" (Premium Times 25 Nov. 2013). In a telephone interview with the Research Directorate, a representative of the Legal Defence Assistance Project of Nigeria (LEDAP), a non-governmental organization of lawyers that provides free legal assistance to "poor and vulnerable victims of human rights violations," indicated that of the states with domestic violence legislation, Lagos State, is the "most organized" and the "only state where the state-level domestic violence law is being applied in practice" (16 Oct. 2014). In a telephone interview with the Research Directorate, the Executive Director of ProjectAlert, a non-governmental women's rights organization that promotes and protects the rights of women and young girls and that founded Nigeria's first women's shelter, Sophia's Place, in Lagos, indicated that legislation is not being enforced in the states with domestic violence laws, but stated that it is "being used in court" in Lagos State, although there are still "problems with enforcement" (16 Oct. 2014). ... In correspondence with the Research Directorate, the Executive Director of the CLEEN Foundation indicated that some police stations reportedly have "Family Support Units," as well as human rights officers that deal with complaints including those related to domestic violence (21 Oct. 2014). According to Justice for All, a partnership between the Nigerian government and the UK Department for International Development (DFID) formed to build the capacity, accountability and responsiveness of policing, justice, and anti-corruption institutions in coordination with civil society and oversight institutions (J4A n.d.b), there is a model police station in Lagos, which incorporates a Family Support Unit to "eradicate gender inequality in police services" and that the model is being replicated in four states due to a reported increase in "satisfaction with police response rates" (J4A n.d.a). According to sources, the Nigeria Police Force (NPF) announced that, as of October 2014, the Nigerian police had "reconstituted" the Force Gender Unit (FGU) (NPF 13 Oct. 2014; CLEEN Foundation 21 Oct. 2014). The NPF announced on 13 October 2014 that the new gender unit will develop the capacity of officers on gender issues and establish Gender Desk officers nationwide (NPF 13 Oct. 2014). Sources report that in 2012, the NPF launched a "gender policy" in an effort to reduce gender discrimination within the force, and enhance the capacity of officers to handle gender-based violence cases (This Day Live 7 Sept. 2012; UN 7 Sept. 2012). ... Lagos State has reportedly held sensitization campaigns regarding the domestic violence law for key stakeholders such as police and officials (CLEEN Foundation 21 Oct. 2014; Lagos State 17 Apr. 2013). In April 2013, Lagos State held a workshop for government officials, magistrates, presidents of customary courts, law enforcement agents, NGOs, and the public (ibid.).22 [28] The RAD is aware of the difficult situation of adolescent girls and women in Nigeria.23 The RAD is also aware that there are challenges in seeking government services by women due to cultural stigma associated with gender and domestic abuse, and societal insensitivity to gender inequality in Nigeria. The documentary evidence, however, also shows that there are services available for women and families in these Appellants' particular situation and circumstances if these Appellants were to make a diligent effort to seek upon return. [29] The Appellants submit that the RPD did not consider the documentary evidence in its entirety. The RAD finds even though the RPD did not specifically refer to some segments of the country documents in evidence, the RPD's decision is supported by the totality of the evidence submitted/adduced. The RAD finds the issues raised by the Appellants were clearly canvassed at the RPD hearing and were adequately addressed in the RPD's reasons. [30] The RAD finds the RPD correctly stated and applied the two-prong test for determining if a viable IFA exists for these Appellants in Nigeria. Once the issue is raised, the onus is on the claimant to show that he or she does not have an IFA. Having reviewed the totality of the evidence in this case, the RAD finds the Appellants have a viable IFA in Lagos, Ibadan, Port Harcourt, or Abuja. [31] Based on all of the foregoing, the RAD finds the Appellants have not established that there is a serious possibility of persecution on a Convention ground, nor, on a balance of probabilities, that they would be subjected to a danger of torture, or to a risk to life or to a risk of cruel and unusual treatment or punishment upon return to Nigeria. [32] For the reasons set out above, the RAD agrees with the RPD's determination that the Appellants are neither Convention refugees, nor persons in need of Canada's protection pursuant to sections 96 and 97(1) of the IRPA. DISPOSITION [33] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees, nor persons in need of Canada's protection pursuant to sections 96 and 97(1) of the IRPA. [34] This appeal is dismissed. (signed) "S.S. Kular" S.S. Kular April 11, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, RPD Exhibit 2, at pp. 26-29 and Exhibit 16, at pp. 26-29. 3 Exhibit RPD-1, RPD's Record, RPD Decision and Reasons, at p. 6. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 5 Exhibit P-2, Appellant's Record, item 8, Memorandum, at paras. 7-14, at pp. 82-85. 6 Exhibit P-2, Appellant's Record, item 8, Memorandum, at para. 15, at p. 85. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) 8 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) 9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 10 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 709 and 711. 11 Exhibit P-2, Appellant's Record, item 8, Memorandum, at para. 20, at p. 87. 12 Ibid. 13 Ibid. 14 Ibid. 15 Exhibit P-2, Appellant's Record, item 8, Memorandum, at para, 24, p. 88. 16 Exhibit P-2, Appellant's Record, item 8, Memorandum, at paras, 24-32, pp. 88-95. 17 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 3, National Documentation Package (NDP) for Nigeria (17 July 2015), item 5.9, Response to Information Request (RIR) NGA103907.E, "Whether women who head their own households, without male or family support, can obtain housing and employment in large northern cities, such as Kano, Maiduguri, and Kaduna, and southern cities, such as Lagos, Ibadan, Port Harcourt; government...,,"Immigration and Refugee Board of Canada, 19 November 2012. 18 Exhibit P-2, Appellant's Record, item 8, Memorandum, at paras, 26, pp. 89-93. 19 Exhibit P-2, Appellant's Record, item 8, Memorandum, at para, 41, p. 97. 20 Exhibit P-2, Appellant's Record, item 8, Memorandum, at para. 42, pp. 97-99. 21 Exhibit P-2, Appellant's Record, item 8, Memorandum, at paras. 46-49, pp. 100-102. 22 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 3, (NDP for Nigeria (17 July 2015), item 5.3, Domestic violence, including Lagos State; legislation, recourse, state protection and services available to victims (2011-October 2014), RIR NGA104980.E, Immigration and Refugee Board of Canada, 10 November 2014. 23 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 3, NDP for Nigeria (17 July 2015), Item 5.2, Gender in Nigeria Report 2012. Improving the Lives of Girls and Women in Nigeria, United Kingdom. British Council Nigeria, 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-12992 TB5-12993 TB5-12994