TB5-02348

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 : TB5-02348 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 25, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul D Ocheje 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, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA or the Act). [2] The Appellant did not submit documents for consideration as new evidence pursuant to ss. 110(4) of the Act. The Appellant is not requesting a hearing before the Refugee Appeal Division (RAD). [3] The Appellant requests that the RAD allow his appeal and find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests a new hearing by a newly constituted panel of the RPD. DETERMINATION OF THE APPEAL [4] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of Canada's protection, and pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the RPD's determination. This appeal is dismissed. BACKGROUND [5] The Appellant alleged before the RPD that he worked with his father at the XXXX XXXX in Mubi, Adamawa State in the Northeast Nigeria along the border with Cameroon.1 In XXXX 2014, a bomb blast in the XXXX destroyed his father's store and killed his father. The Appellant was informed that Boko Haram suspected his father to be an informer and thus he was targeted. The National Emergency Management Agency helped relocate the Appellant and family to Abuja. The family house was destroyed a few days later, and their Church was also attacked. The Appellant left Nigeria on XXXX XXXX, 2014, and claimed protection the next day in Canada. His claim was heard on February 3, 2015 and the RPD rendered an oral decision at the end of the hearing. The RPD found that a viable internal flight alternative (IFA) was available to the Appellant. Role of the RPD [6] The Appellant did not make submissions on the standard of review to be applied by the RAD. The jurisprudence on the role of the RAD is evolving, however, at present; guidance provided by Justice Phelan in Huruglica2 seems to be accepted widely. I am guided by this case where the court stated the following: [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 a "palpable and overriding error." [7] Guided by Huruglica, I will consider the evidence in totality and arrive at my own determination. The Issues [8] The Appellant's issues as follows: 1. Did the Immigration and Refugee Board (Board) fail to apply the proper test for an internal flight alternative? 2. Did the Board ignore or misconstrue relevant evidence? 3. Did the Board fail to review or assess relevant documentary evidence? [9] I will rephrase the issue as - is the Appellant a Convention refugee or a person in need of protection? [10] Guided by Huruglica (above), I will consider the totality of the evidence and make my own determination while recognizing and respecting the RPD's credibility determination where it enjoys a particular advantage. [11] The RPD found that the Appellant has viable internal flight alternatives in Abuja, Lagos, and Port Harcourt. [12] The Appellant submits that the RPD did not apply the proper test for internal flight alternative as it feels it must take into consideration the personal circumstances of the Appellant. The Appellant adds that the RPD "only considered the claimant's educational qualification, his work experience (in the informal sector of the economy), his age, and religion."3 The Appellant further submits that he "lost all of their belongings, including his educational certificates, money, clothes," and that the attack left emotional scars and that "in addition to language and cultural difficulties, he did not know anyone in Lagos or Port Harcourt who would help him to settle in those places." [13] I am not persuaded by his arguments. Loss of belongings is not one of the factors in finding a viable IFA. Even if he has lost his educational documents, he can approach the University and get these documents. The RPD has considered the personal circumstances of the Appellant and made a determination that, in my opinion, is supportable. [14] The Appellant also submitted that, The law is that if the claimant's fear of persecution was found by the Board to be well-grounded after the gruesome attack on his family at Mubi and his arrival at Abuja, then it is unreasonable to conclude that the fact that the claimant hid with a friend for a short period at Abuja, without coming to harm, demonstrated that his fear was no longer well-founded. [15] I have considered the RPD's reasons and nowhere do I find the use of the words "well-founded." Not only that, the RPD had concerns about the Appellant's allegation that he was also a target of the Boko Haram. [16] The RPD noted that the Appellant did not provide any documents from the authorities regarding the Appellant's father being killed in the blast, or that the Appellant worked with his father, or that the authorities helped the Appellant and his family relocate and provided him with protective custody. The RPD considered the three affidavits provided by the Appellant - from his church pastor4 that states that the Appellant's father died in a bomb blast on XXXX XXXX XXXX 2014, and that his church was attacked on XXXX XXXX XXXX 2014 and 22 people were killed. [17] The Appellant's mother's affidavit5 also mentions the attack and that her husband is buried in a mass burial - indicating a loss of many lives. [18] The third affidavit6 is from a police officer who states that on XXXX XXXX, 2014 the Appellant's house was razed and "on the same day" the church where the Appellant and his family prayed was also attacked. [19] These three affidavits were signed in the months of XXXX and XXXX 2014. I note that none of these documents mention that the Appellant also worked at his father's place of business. The affidavit of the pastor contradicts the information contained in the affidavit of the police officer regarding the date of attack on the church. Moreover, all three affidavits use rather curious wording that Boko Haram terrorists believed that the Appellant's father was a police informer. The RPD had concerns about that when it stated in its reasons: However, Mr. XXXX does not state the source of his information. We do not know how he came to that opinion. We do not know what information was shared, or why, given the modus operandi of Boko Haram, a specific individual would be targeted. There is an abundance of references to bombs being used for the purpose of terrorism. Boko Haram is quite capable of bombing marketplaces and churches through their acts of terrorism. [20] The Appellant alleged that the Boko Haram has targeted him and his family, yet he is in Canada claiming protection while his family, including his mother, continues to live in Nigeria. [21] The Appellant submits the RPD "ignored or misconstrued the evidence the evidence before it that (a) the claimant was targeted by Boko Haram (b) that Boko Haram was capable of attacking anyone, whether considered a target or not, in any part of Nigeria, and (c) that Boko Haram had sympathizers in the police, the army, and in the civil service." [21] Documentary evidence shows that "Boko Haram promotes a version of Islam which makes it "haram", or forbidden, for Muslims to take part in any political or social activity associated with Western society ....This includes voting in elections, wearing shirts and trousers or receiving a secular education...the radical Islamist movement Boko Haram." is based in northeastern Borno State.7 "The group burned schools, bombed newspaper offices, and assassinated Muslim clerics, politicians, and traditional leaders."8 [22] Documentary evidence9 also shows that Boko Haram was responsible for, targeted assassinations involving political figures...and prominent clerics such as Bashir Kashara, a well-known Wahhabi figure. Boko Haram's methods have also evolved. The NST has documented at least twenty-eight alleged suicide bombings, ten of which targeted churches and mosques. [23] Moreover, documentary evidence shows that Boko Haram killed targeted politicians, prominent clergy members both Christian as well as Muslim. Boko Haram targets and attacks such people due to the profile and what they represent. The Appellant does not have the profile that has brought him to the attention of Boko Haram, thus the evidence does not support this objective fear of the Appellant that he is being targeted. [24] The Appellant also submits that the RPD "failed to review and assess the evidence about the presence of Boko Haram cells in government agencies, such as the police, the army and the civil service." I am not persuaded as RPD's reasons make it clear that the RPD took these factors into consideration. [25] The Appellant mentions emotional scars, the RPD and the RAD are sympathetic to the Appellant, unfortunately country conditions in Nigeria are such that nearly 3,000,000 people have been internally displaced and it is estimated that nearly 650,000 people are internally displaced due to Boko Haram. Documentary evidence also shows that Nigeria has several instruments to assist such persons at local state and federal levels. [26] The RPD put the Appellant on notice regarding IFA being an issue,10 and considered both prongs of the test. It would appear that RPD was alert to the fact that there is no onus on a refugee claimant to personally test the viability of an IFA before seeking protection in Canada,11 yet the burden is on the Appellant to persuade the RPD that the suggested IFA is not safe or reasonable. In my opinion, the Appellant has not done so. [27] I want to make a comment that the RPD's reasons appear to lack coherence and consistency and are repetitive. I also acknowledge that these reasons were rendered at the end of a more than three hour long hearing. [28] Based on the foregoing, I find that the RPD's determination, despite my comments above, is supportable and therefore I confirm the RPD's finding. After careful consideration of the evidence, I find that the Appellant is neither a Convention refugee nor a person in need of Canada's protection. CONCLUSION [29] Pursuant to ss. 111(1)(a) of the Act, the RAD finds that the Appellant is neither a Convention refugee nor a person in need of Canada's protection and confirms the determination of the Refugee Protection Division. [30] This appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal May 25, 2015 Date 1 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (November 28, 2014), items 1.2 and 14.4. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, at p. 25. 4 Exhibit RPD-1, RPD's Record, at p. 109. 5 Ibid., at p. 110. 6 Ibid., at p.111. 7Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (November 28, 2014), item 2.2, at para 3.09. 8 Ibid., item 1.7 9 Ibid., item 7.1 10 RPD-1 Audio recording at 25:37 minute mark 11 Estrado Lugo, Regina v. M.C.I. (F.C., no. IMM-1166-09), O'Keefe, February 18, 2010; 2010 FC 170 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02348