TB4-01234

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 : TB4-01234 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 July 14, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Cari Gombinsky 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 (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. The Appellant has submitted new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA or the Act). DETERMINATION [2] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This Appeal is dismissed. Background [3] The Appellant alleged before the RPD that she suffered domestic abuse in Nigeria. She was physically beaten and abused by her common-law partner, XXXX XXXX XXXX XXXX XXXX XXXX The Appellant met XXXX, and she moved in with him in XXXX 2011. The Appellant testified that she noted that XXXX was changing his attitude towards her, and became possessive of her and also started to physically assault her during arguments. The Appellant fled to her Aunt's house, and in XXXX XXXX, 2013 she then travelled to Canada, where she applied for refugee protection at an inland office in early November 2013. [4] The Appellant's refugee claim was heard on January 06, 2014. By decision and reasons dated January 14, 2014, the RPD rejected the claim, finding that the Appellant had not established her personal identity, nor her credibility and the existence of an internal flight alternative (IFA). The RPD found that the Appellant failed to provide other, acceptable documents establishing identity, such as her Nigerian passport or identity documents from Nigeria. [5] In her memorandum, the Appellant did not provide any submissions on standard of review. [6] The Appellant has provided no specific references to errors in the RPD decision, no legal authorities, and no supporting arguments. The RAD interprets that the Appeal is based on the new evidence for identity, however the Appellant does refer to some findings of the RPD that she does dispute, such as the name she is addressed by her aunt. [7] The RAD finds that the Appellant did not meet the requirements of RAD Rule 3(3) which states: (g) a memorandum that includes full and detailed submissions regarding: (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the Appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing. [8] For these reasons, while the Appellant was not in strict compliance with the rule, I have reviewed the reasons in light of his vague and confusing submissions. However, the Appellant has filed an appeal and is entitled to one; therefore, the RAD will review the reasonableness of the RPD's decision. Admissibility of Evidence Submitted on Appeal [9] Section 110(4) of IRPA indicates that: "the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." RAD Rule 3(3) (g) (iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of IRPA. The Appellant's memorandum did not provide a detailed explanation of why her documents were unavailable before the rejection by the RPD. [10] The jurisprudence for assessing "new evidence" relates mainly to the admissibility of evidence in Pre-Removal Risk Assessment proceedings. The leading case is Raza.1 In addition to the statutory conditions for new evidence, Raza sets out four criteria which provide guidance in the assessment of evidence. These criteria include: credibility, newness, relevance, and materiality. [11] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: Appellant's copy of a birth certificate in the name of XXXX XXXX XXXX XXXX;2 Nigerian Driver's Licence;3 Identification letter of XXXX XXXXand copy of his passport;4 Reference letter from Mrs XXXX XXXX. and her ID;5 [12] The RAD finds that these documents are not admissible, for the following reasons. [13] Document (a) is a very poor photocopy of Registration of a Birth in the name of XXXX XXXX XXXX XXXX with the date of birth of XXXX XXXX, 1984. The Appellant's refugee claim was heard on January 06, 2014 and was rejected on January 14, 2014. It is for the Appellant to set out why this document meets the requirements in Section 110(4), and she has not done so. In the absence of an explanation as to why it wasn't available at the hearing, then this something that does not even pass the statutory test. As such, the RAD finds the Registration of Birth not to be admissible. [14] The second document is a photocopy of a Nigerian Driver's Licence, however the copy is extremely poor and not legible; it is undated and there is no explanation from the Appellant as to why this document was not available before the hearing. There is no evidence of how it was obtained, what steps the Appellant took prior to the hearing to obtain it, no previous evidence of its existence, and, as such, the RAD does not find it meets the statutory criteria. It does not meet the requirements of section 110 (4) as not reasonably available.....nor does it meet the test in Raza. [15] Documents (c) and (d) are dated post hearing and, again, there is no explanation from the Appellant why these documents were not available prior to the rejection, and what steps she took to obtain them. Further, RAD Rule 3(3) (g) (iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of IRPA. [16] The RAD finds that the documents submitted by the Appellant were reasonably available before the rejection of the claim and are not new, as set out in Raza.6 [17] As such, the RAD finds that these documents are not admissible as new evidence. ANALYSIS [18] The RPD's decision focuses on the issues of identity, credibility and existence of an internal flight alternative. A claim for refugee protection may be denied as soon as the RPD determines that a claimant's identity has not been established,7 including the Appellant's alleged domestic abuse. However, the Appellant argues that the determinative issue is State Protection and that the Appellant has a well-founded fear of persecution in XXXX, by reason including whether the Appellant has rebutted the presumption of state protection.8 The RAD interprets the above as possible typographical error made by the Appellant, as the claim is against Nigeria, and not XXXX. The determinative issues in the RPD reasons were clearly cited as: identity, credibility and the existence of an internal flight alternative (IFA). So, the RAD is somewhat puzzled by the arguments set out by the Appellant. [19] Based on the foregoing, I am going to consider only the IFA as the determinative issue. The IFA is a question of mixed law and fact, as will be shown by the following analysis. The IFA involves the application of a legal test to the facts of the case, and, in assessing IFA, the RPD must apply the two-pronged test set out in Rasaratnam9 to the specific circumstances of a refugee claimant when considering a prospective IFA location. [20] The RPD questioned the Appellant about the existence of an IFA, the RPD made a finding with respect to the IFA. The RAD has the power to confirm or substitute the determination of the RPD under paragraphs 111(1)(a) and 111(1)(b) of IRPA, respectively, or send the matter back, under paragraph 111(1)(c) if the conditions in subsection 111(1)(2) are met. Further, the restrictions on remittal in subsection 111(2) suggest that Parliament's intent was to have the RAD finalize refugee protection claims where it can do so fairly, including by confirming a determination on alternative grounds. For the reasons that follow, in this case, the RAD can confirm the RPD's determination based on its findings on the IFA issue. The issue was fully canvassed at the RPD hearing, and the Appellant had the opportunity to make submissions at the RPD hearing with respect to it. Therefore, because the RAD is able to fairly dispose of this appeal by making a decision on the IFA issue, it is unnecessary to decide if the RPD made the errors alleged by the Appellant. Standard of Review [21] The Appellant did not provide any submissions on standard of review. [22] The Federal Court in Iyamuremye10 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.11 The correctness standard is applicable to questions of law and issues of general legal importance. [23] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.12 [24] Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact in this claim and considered whether the findings meet the reasonableness test. ANALYSIS OF THE MERITS OF THE APPEAL [25] As identified above, based on a review of all of the evidence, the RAD focused on whether the Appellants have an accessible and reasonable IFA in Lagos, Ibadan, Abuja or Port Harcourt. The RAD relied on the review of the recorded testimony and the Reasons for Decision. The RAD again notes that the IFA was fully canvassed at the RPD hearing and that the Appellant made submissions on the issue before the RPD which the RAD has reviewed. Furthermore, in making a determination on the viability of an IFA, the RAD is not relying on any credibility findings by the RPD or the RAD. The Appellant's evidence will be assumed to be true for the purposes of this analysis. [26] The Chairperson's Gender Guidelines13 were taken into account when considering the facts in this Appeal. In addition, issues of country conditions were examined with consideration of the Chairperson's Gender Guidelines.14 Furthermore, the RAD notes that during the hearing there was no objection or any issue raised by either the Appellant or counsel in regards to any breach of the Guideline. [27] In assessing an IFA, the RPD must apply a two-pronged test cited in Rasaratnam,15 suitably modified to take account of section 97 of the IRPA. [28] 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 and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. [29] Moreover, the 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 claim, for him to seek refuge there. [30] Both prongs must be satisfied to find that the claimant has an IFA. The burden of proof rests with the Appellant to show that he/she does not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose taking into account the Appellant's identity. An IFA must be a realistic and attainable option. An Appellant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.16 [31] The RAD finds that there is a reasonable and viable internal flight alternative available to the Appellant in Lagos, Ibadan, Abuja or Port Harcourt. The RAD finds, on a balance of probabilities, that she is most likely to be able to resume her stated employment as a XXXX running an XXXX XXXX [32] The Appellant testified that she fears her common law spouse. The United Kingdom Home Office Operational Guidance Note for Nigeria17 states that the Nigerian constitution provides for the right to travel within Nigeria. The report also states that internal relocation to escape ill-treatment from non-state agents is almost always an option and, in the absence of exceptional circumstances, it would not be unduly harsh for any individual to internally relocate. [33] The RAD notes that the RPD questioned the Appellant about these four cities in regards to an internal flight alternative. [34] The Appellant testified that she could not move to another city as she didn't know what awaited her back home; the RPD asked the question several times, and the Appellant responded in generality, that she wanted to be far away where no one could reach her. The Appellant did not testify why she could not be safe in any of the four cities suggested to her; she only testified that she thought the only place she could go was her aunt's place. [35] The RAD finds that the explanation offered by the Appellant does not adequately explain why she could not live in any of the cities suggested. In addition, the Appellant did not provide any persuasive evidence how his family would come to know that she was living elsewhere in Nigeria. The Appellant does not have a high profile in Nigeria, and the RAD finds that she could live in any of the four cities. The RAD also finds that the problems faced by the Appellant with her family and her common law family were local in nature. [36] The RAD considered the profile and influence of the agent of persecution in relation to the IFA. The RAD notes, however, that there is insufficient evidence in the record which suggests that the agent of persecution has the ability to influence the police actions in Nigeria and/or have the ability to access resources of police or any other authorities in order to locate the Appellant if she were to move elsewhere in Nigeria, a country of 150 million people. [37] Therefore, the RAD notes, as per the RPD finding, that the Appellant could live in any of the four cities without fear or the need to hide. If the Appellant does not wish to inform others of her presence in these cities, there is no reason to believe that her location would be found out. The RAD notes that the cities are large and located at a substantial distance from where she was previously residing with her common-law partner XXXX XXXX [38] Based on the totality of the evidence, the RAD notes that the record contained sufficient evidence to support a finding that an IFA in Ibadan or Abuja is accessible to the Appellants. [39] The RAD finds the RPD finding that, on a balance of probabilities, there is not a serious possibility of persecution of the Appellant in these cities, that their removal to Nigeria would not subject her personally to a risk to his life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The RAD reviewed the RPD finding that the Appellant has failed to provide sufficient evidence as to why she believes she would be discovered and/or harmed at any of these locations, and therefore there is no reason to believe, on a balance of probabilities, that she would be harmed. The RAD finds the RPD finding to be reasonable. [40] The RAD considered the reasonableness of the IFA in Lagos, Ibadan, Abuja or Port Harcourt, as set out the RPD in its reasons. The test for reasonableness is whether it would be unduly harsh to expect the claimants to move to another, less hostile part of the country before seeking status abroad, as per Thirunavukkarasu.18 This requires an evaluation of the conditions in the IFA as well as the Appellants or similarly situated persons. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.19 However, it is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.20 [41] In considering the viability of the IFA, the RAD has given consideration to the Chairperson's Gender Guidelines,21 specifically as it relates to IFA. The Guidelines state in part: In determining the reasonableness of a woman's recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. [43] The Appellant provided no persuasive evidence that she would not be familiar with cultural issues and norms in these cities. Therefore, the RPD was satisfied as is the RAD that it would be reasonable for the Appellant to adapt to new surroundings in any of these cities and be able to obtain employment in her respective areas. In addition, although most Nigerians depend upon their family, relying on immediate and extended family is not the only option. Many Nigerians try to establish other support networks that may complement or, in some cases, replace the extended family. Examples of such support networks are religious congregations, religious organizations, age grades/sets, political organizations, charities and guilds. Many such organizations are expected to aid their members in ways that would be fairly unusual in a western context. The documentary evidence states that the southern states of Nigeria (in which Ibadan is located) are predominantly Christian while both Muslims and Christians reside in large numbers in the Federal Capital Territory where Abuja is found. For this reason, the RAD is satisfied that the Appellants have sources of moral and spiritual assistance and support available to them in Nigeria. [44] The RAD is aware that the fact that an individual has to remain in hiding to avoid problems is not evidence of an IFA,22 and that large urban areas cannot be assumed to be an IFA by virtue of their population size alone.23 The RAD's finding of an IFA in Lagos, Ibadan, Abuja or Port Harcourt is not dependent on the size of these cities but is made in consideration of the totality of the evidence. The RAD finds that the Appellants did not adduce persuasive evidence to indicate that they would have to live in hiding in these cities. [45] Once the issue of an internal flight alternative is raised, the onus is on the refugee claimant to show that the option does not exist, by establishing that either of the two tests cited in Rasaratnam24 criteria is not met. The Federal Court of Appeal in Thirunavukkarasu stated that an applicant need only show that there is a serious possibility of being persecuted in the new location or that their removal to Nigeria would subject them personally to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The RPD found that the Appellant has failed to show that the IFA option is not available to her. The RAD reviewed the evidence in its entirety, and finds the RPD findings regarding the availability of an IFA for the Appellant to be reasonable. [46] The RAD finds that the RPD finding applies to both sections 96 and 97 of the IRPA as cited in its reasons. [47] The RPD considered the educational and professional background of the Appellant and finds that, given her successful experience in business, she would be able to seek employment in Lagos, Ibadan, Abuja or Port Harcourt. The Appellant is educated and of the middle class. [48] The RAD finds that the RPD did consider the totality of the evidence and made clear and coherent findings related to the reasonableness prong of the IFA and therefore the RPD findings were reasonable. [49] Given the finding above that the Appellant has an internal flight alternative in Nigeria, the RAD finds that the Appellant does not face a serious possibility of persecution in Nigeria, and it also finds that her removal to Nigeria would not subject her personally to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. Disposition [50] Upon a review of the evidence, the RAD agrees with the RPD decision that there is an internal fight alternative for the Appellant, and since IFA is a determinative issue, the RAD finds that the RPD's decision to reject the Appellant's refugee claim falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. CONCLUSION [51] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho July 14, 2014 Date 1 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R 2 Appellant's Record, page 30 3 Appellant's Record, pages 31 (the copy of this licence - not legible regarding both the writing and picture) 4 Appellant's Record, pages 32-33 5 Appellant's Record, pages 34-35 6 Supra, footnote 3 7 Ipala, Nkum-Ilub v. M.C.I. (F.C., no. IMM-3932-04), Blanchard, April 8, 2005; 2005 FC 472. 8 Appellant's Record, page 37 (bottom of page) 9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 10 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 11 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 47. 12 Dunsmuir, paragraph 47; in Khosa, paragraph 4, the "range of reasonable outcomes." 13 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 14 Ibid. 15 Rasaratnam v. Canada (Minster of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 16 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 17 National Documentation Package-Nigeria, 20 April 2011, item 2.3. United Kingdom Home Office, UK Border Agency, "Operational Guidance Note: Nigeria," 14 April 2009. 18 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 19 Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (T.D.); (1999), 1 Imm. L.R. (3d) 245 (F.C.T.D.) 20 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 21 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 22 Sabaratnam, Thavakaran v. M.E.I. (F.C.A., no A-536-90), Mahoney, Stone, Robertson, October 2, 1992. 23 Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. Imm-210-94), Muldoon, January 29, 1996. 24 Rasaratnam v. Canada (Minster of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-01234