TC0-02385

RAD File / Dossier de la SAR : TC0-02385 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 4, 2021 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal Nicholas Owodunni 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] I allow this appeal. XXXX XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Nigeria. She claims that she is a person in need of protection as she interfered with a crime, and robbers seek to harm her. Having reviewed the record, the appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. BACKGROUND [2] The Appellant bases her claim on the following. [3] The Appellant lived in Lagos, Nigeria. She was born on XXXX XXXX XXXX1996. Her husband lives in several different towns. Her children have grown up and live in Lagos. Her husband used to work outside of Lagos, but he now moves around and lives in different towns for different periods of time in Nigeria. [4] The Appellant alleges that she would personally be subjected to a risk to life at the hands of a group of armed robbers because she unintentionally interfered in a robbery. She inadvertently parked her car so that the robbers were unable to leave the crime scene during a warehouse robbery on XXXX XXXX XXXX 2018. The police killed several robbers. The robbers found out her address. On XXXX XXXX XXXX 2018, the robbers went to her home while she was not there. They assaulted and raped her employee. She moved to her friend's home and then to her father's home. During the first week of XXXX 2018, they also left a threatening note on her car. The Appellant left Nigeria for the US on XXXX XXXX XXXX 2018. While she was away, the robbers contacted her husband and told him that they knew she was in US. She came to Canada on XXXX XXXX, 2019 and claimed protection. [5] The Refugee Protection Division (RPD) found that, overall, the Appellant was credible. However, it noted that, on some issues related to an internal flight alternative (IFA), there was a lack of credible evidence. [6] The Appellant has appealed to the Refugee Appeal Division (RAD). There is not new evidence, and there is no request for an oral hearing. As there is no new evidence, the RAD does not have the jurisdiction to hold a hearing.1 ANALYSIS [7] I have conducted an independent assessment of the evidence and arguments. This review includes reviewing the transcript of the entire hearing. A recording of the hearing is on record. [8] In keeping with the "Policy on National Documentation Packages in Refugee Determination Proceedings",2 the RAD has considered the most recent National Documentation Package (NDP) at the time of writing the decision. Further, as a forward-looking risk is being assessed, the most recent NDP is the most relevant. Is the Appellant a Person in Need of Protection? [9] I have considered whether the Appellant is a person in need of protection. This is because the agents of persecution have not targeted her for one of the grounds set out in the definition of a Convention refugee. [10] Claims under subsection 97(1)(b) of the Immigration and Refugee Protection Act (IRPA) require a two-part analysis. First, decision-makers must assess whether, on a balance of probabilities, the claimant personally faces a forward-looking risk to life or a risk of cruel and unusual treatment or punishment. This part of the analysis requires identifying an appellant's precise risk; determining whether that risk is a risk to life or a risk of cruel and unusual treatment or punishment; and expressing the basis for that risk.3 [11] If a claimant establishes that they would be subjected personally to a risk to their life or to cruel and unusual treatment or punishment, the second step of the analysis requires decision-makers to compare the nature and the degree of the risk to see if it is faced generally by other individuals in or from that country.4 I have considered the risk itself without conflating it with the reason for the risk.5 [12] The RPD accepted the evidence as credible except insofar that it related to an IFA. Having reviewed the file, I do not find that there is a reason to intervene to come to a different conclusion regarding the Appellant's narrative. The Appellant did not try to embellish her claim at the hearing. As an example, when she was asked if she received threats while she was staying at her father's house, she testified that she did not.6 The Appellant did not exaggerate or try to mislead the Tribunal by introducing evidence of further incidents to bolster her claim. Aside from her testimony, the Appellant has provided affidavits, police reports, and a medical report. The RPD did not find errors with them. Having reviewed them, I find that there is insufficient evidence to find that they are not authentic or that the content is not credible. I accept the account of events in Nigeria. [13] At first, when the Appellant drove into the scene of a robbery, she was subjected to general violence in a city with a high crime rate. However, when the robbers entered her house, attacked her employee, left a note in her car, and made a phone call to her husband, they were targeting the Appellant. This shows that it is more likely than not that she is a person in need of protection. [14] I also find that there is insufficient evidence to find that there is state protection. The testimony regarding the Appellant's report to the police was confusing, and it was not clear whether she received one of the reports from the police station or from her husband; however, later in the testimony, she did clarify that she did not receive one report at the police station.7 [15] Given the documentary evidence on record, it is not likely that the police would assist the Appellant. There is a low level of trust in the police;8 there is a culture of impunity, corruption, and politicization which results in an ineffective police force. 9 Police regularly demand bribes.10 Mechanisms to enforce discipline appear ineffective,11 and there is an overall culture of "widespread and pervasive corruption" in Nigeria.12 [16] Further, I find that there is sufficient credible evidence that weighs against a finding that the Appellant has an IFA. I note that, in the IFA analysis, the RPD has not made findings of credibility where it would be in a better position than I to make an assessment. I find that the credibility findings are not owed deference. Does the Appellant have an IFA in Nigeria? [17] The RPD found that the Appellant had an IFA in Port Harcourt. The evidence regarding whether the Appellant is a person in need of protection in Port Harcourt is mixed. I find that there is sufficient evidence on record to conclude that it would create an undue hardship for the Appellant to relocate and live in Nigeria. [18] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam. (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 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) 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. [19] Both prongs must be satisfied to find that the Appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellant to show that she does not have an IFA. The finding of an IFA must be based on a distinct evaluation of the region for that purpose taking into account the Appellant's personal circumstances. An IFA must be a realistic and attainable option. The Appellant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable. The standard is high and requires proof of adverse conditions which would jeopardize the life and safety of the Appellant in travelling to and in living in the IFA location. Is the Appellant a Person in Need of Protection in Port Harcourt? [20] I find that there is a lack of evidence that the agents of persecution, the robbers, have the motivation and the capacity to find her.13 There has been a significant lapse of time since the last incident. Although she could have provided new evidence upon appeal, the Appellant has not provided evidence of any event since she lived in the US, which was from XXXX 2018 to XXXX 2019,14 and the agents of persecution phoned her husband to say that they knew that she was in the US. The Appellant testified that the robbers have a network, or a syndicate, where they can be in touch with one another. However, I find that this allegation is speculative. It is not sufficient to find that it is more likely than not that they have the means and the motivation to find the Appellant. [21] Although I accept the account of being targeted by robbers, the Appellant has not provided evidence to substantiate a finding that it is more likely than not that the Appellant is a person in need of protection in Port Harcourt. However, if it is not reasonable for the Appellant to relocate and live in Port Harcourt, she does not have an IFA there. Is it reasonable for the Appellant to relocate and live in Port Harcourt? [22] The RPD properly raised Port Harcourt as an IFA during the hearing. Having done so, the burden of proof then shifts onto the Appellant. However, it is an error in law to ignore evidence on record, including that in the NDP. In order to find that the Appellant has an IFA, there must be sufficient evidence that the Appellant would not face undue hardship relocating and living there. [23] For different appeals, different factors regarding whether an IFA is reasonable may be more important than others. Each analysis should consider the Appellant's individual characteristics. [24] In this appeal, the Appellant was born on XXXX XXXX XXXX1968 and is 53 years old. She has post-secondary education, with a certificate in XXXXand XXXX XXXX from Nigeria.15 She has worked as a XXXX XXXX at a company that provided XXXX at a major company. When the owner was away, she covered for him.16 She can speak English and Yoruba. Her children are adults and are not dependents. Her husband is still in Nigeria. However, he does not live in one place; he moves to different cities. Because of the unique situation of the Appellant's husband, I find that it would be difficult for him to provide support to the Appellant should she return to Nigeria. Rather, the Appellant's situation is more akin to that of a single woman in Nigeria. [25] I have also considered the Chair's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution17 which states that, in determining the reasonableness of a woman's recourse to an internal flight alternative, 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. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and they should consider whether and how these factors affect women in the IFA. [26] Some issues would not be barriers. The Appellant speaks Yoruba and English, so she would not encounter a problem with communication. The Appellant is a Christian. Christians compose about 45.9% of the population.18 The south of Nigeria is composed of a predominantly Christian population.19 There is insufficient evidence that Christianity would present a barrier to relocation. [27] However, there are economic and cultural factors that would create undue hardship for the Appellant. Employment [28] Employment is an economic factor that the Appellant, as a single woman, would have to contend with. The Appellant has some resources. She has worked as a XXXX XXXX in the XXXX industry where she covered for the owner. She has certificates in XXXX and XXXX as well as some which appear to be associated with her volunteer work in Canada. However, as a woman, she would face significant challenges finding work in Nigeria. [29] There is a job shortage in Nigeria. According to the Australian Department of Foreign Affairs and Trade, almost 6 million people enter the labour market yearly with only 10% securing employment in the formal sector.20 Further, the employment is geared towards the agricultural industry which hires the most people.21 The evidence is clear that there is discrimination in employment. This can be because of traditional or religion practices, and in a land of fewer employment opportunities, women have a more difficult time than men to find work.22 [30] There is insufficient evidence that the Appellant would have any support from any family members. She would likely be subjected to sexual exploitation.23 While a doctoral candidate stated that a person would need a political connection to obtain employment,24 the Appellant does not have any such connections. Her husband moves around, and there is insufficient evidence to conclude that her children would be of support. [31] I find that the Appellant would have significant challenges finding work in Port Harcourt. Further, there is insufficient evidence that she would have any family support in the IFA locations to help her with her responsibilities. Her children live in Lagos.25 These factors weigh against the likelihood that the Appellant would be able to find employment Accommodation [32] Accommodation is another economic factor that would present a significant barrier to this Appellant in her circumstances. [33] There are significant issues with housing. Rent is notoriously steep, and there is a rising housing shortage. According to an Immigration and Refugee Board of Canada (IRB) Response to Information Request (RIR): ... The EASO states that a "housing problem" exists both in Abuja and in Lagos, where there is an estimated deficit of 600,000 and 2.5 million houses, respectively (EU Nov. 2018, 39). A 2016 World Bank report on the housing situation in Nigeria states the following: In Lagos, Ibadan, Kano, and Abuja, the need for housing is rising by about 20 percent a year. Current total output in the formal housing sector is estimated at no more than 100,000 units. While no good data exist, it is clear that the formal sector is only producing a fraction of the total number of urban units needed each year. (The World Bank 2016, para. 18)26 [34] However, it is not only the lack of housing that is a barrier; in addition, single women have a more difficult time renting accommodations.27 There is significant stigma for single women, and some landlords in major cities do not rent to single women.28 Sometimes, women will ask men to rent accommodation for them.29 [35] In this context, the Appellant would need to have sufficient financial resources to pay the rent or to buy property. The stigma, reluctance of landlords to rent, and the high cost of accommodation would create a significant barrier for housing. [36] The documentary evidence leads to the conclusion that finding housing would be a significant barrier for the Appellant. Access to health care treatment [37] I find that the Appellant would not have sufficient access to mental health treatment. [38] The evidence shows that the Appellant has a significant mental health condition. Her family doctor referred her to a psychotherapist for symptoms of XXXXand XXXX.30 The psychotherapist noted that the Appellant endorsed XXXX XXXX XXXX.31 Ten sessions for psychotherapy was recommended. The Appellant testified that she attended about 10 sessions.32 However, it appeared from her testimony that, at the time of the hearing, she had not continued with psychotherapy. [39] Granted, it is unclear if the Appellant was continuing with her psychotherapy at the time of the hearing. However, an observation that an appellant endorses XXXX XXXX XXXX is evidence of a significant mental health issue. It would be an error to not consider that, should the Appellant require this level of support, she would not have the same support available in Nigeria. There is a significant shortage of resources available for people with mental health issues in Nigeria. Estimates of mentally ill people who can access services range from 10 to 20%.33 Services have limited budgets and are chronically understaffed.34 There is a stigma associated with mental illness, and people do not access resources.35 The shortages appear to be present throughout Nigeria. In this context, I find it unlikely that the Appellant would be able to access mental health resources in Nigeria. [40] There is an imperfect record regarding whether the Appellant has been accessing mental health resources since prior to the hearing. In and of itself, the shortage of mental health resources would not be sufficient to find that there is not an IFA for the Appellant. However, it is an additional factor that weighs against a finding that the Appellant would have an IFA. Cultural Factors [41] Nigeria is a patriarchal society.36 It is a society where women frequently experience gender-based discrimination and violence.37 The Appellant, as a single woman, could be stigmatized which can lead to sexual exploitation.38 In these cities, woman-headed homes are vulnerable; women are less likely to fend for themselves, have less access to services, and are exposed to abuse, including sexual exploitation.39 There is gender inequality for legal rights, access to education, health and financial services.40 The cultural factors in Nigeria present a significant barrier to the Appellant. Are there other IFAs? [42] I have considered whether there would be other IFAs for the Appellant, including those of Ibadan and Abuja, as raised by the RPD. However, the same issues with employment, accommodation, and culture would apply. While she had a brother in Ibadan, he passed away.41 The issues with housing and employment for single women exist in Ibadan and Abuja.42 It is more likely than not that they exist throughout Nigeria as well as the cultural considerations. I find that there is not another IFA that would merit consideration in the adjudication of this appeal. CONCLUSION [43] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. (signed) Patricia Broad Patricia Broad March 4, 2021 Date 1 Subsection 110(6) of the IRPA. 2 https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx 3 Portillo, Jonatan Guzman v. M.C.I. (F.C., no. IMM-5429-11), Gleason, June 4, 2012, 2012 FC 678, at para. 40; Guerrero, Benancio Corado v. M.C.I. (F.C., no. IMM-2002-11), Zinn, October 21, 2011, 2011 FC 1210, at para. 28. 4 Portillo, ibid., at para. 41. 5 Guerro v. M.C.I. (F.C. no. IMM-2002-11), Zinn, October 21, 2011, 2011 FC 1210, at para. 29. 6 Transcript of the RPD Hearing (December 6, 2019), at pp. 16-17. 7 Transcript of the RPD Hearing (December 6, 2019), at p. 20. 8 NDP for Nigeria (November 30, 2020), item 10.2, Africa Center for Strategic Studies, "Governance, Accountability, and Security in Nigeria", June 21, 2016. 9 NDP for Nigeria (November 30, 2020), item 10.2 (ibid.), at pp. 1-2. 10 NDP for Nigeria (November 30, 2020), item 10.2 (ibid.). 11 NDP for Nigeria (November 30, 2020), item 10.6, IRB, RIR NGA104979.E, "Complaints mechanisms available for cases of police misconduct, including effectiveness (2013-October 2014)", November 7, 2014. 12 NDP for Nigeria (November 30, 2020), item 2.1, United States, Department of State, "Nigeria, Country Reports on Human Rights Practices for 2019", March 11, 2020, at p. 1. 13 Essel v. M.C.I. (F.C., no. IMM-345-20), Grammond, November 2, 2020, 2020 FC 1025. 14 Exhibit RPD-1, RPD Record, at p. 65. 15 Exhibit RPD-1, RPD Record, at p. 66. 16 Transcript of the RPD Hearing (December 6, 2019), at p. 8; it is not clear, but this appears to be what she is expressing in the testimony. 17 Gender Guideline: Issued by the Chairperson, pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the IRPA. 18 NDP for Nigeria (November 30, 2020), item 1.6, United States, Central Intelligence Agency, "Nigeria, The World Factbook", November 18, 2020. 19 NDP for Nigeria (November 30, 2020), item 12.6, IRB, RIR NGA104679.E, "Treatment of Christians who relocate from northern parts of Nigeria by people in Port Harcourt [River State]; ...", December 6, 2013, at p. 1; and item 13.1, IRB, RIR NGA106361.E, "Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; ...", October 30, 2019, at p. 16. 20 NDP for Nigeria (November 30, 2020), item 1.8, Australia, Department of Foreign Affairs and Trade, "DFAT Country Information Report: Nigeria", March 9, 2018, at p. 10. 21 NDP for Nigeria (November 30, 2020) item 1.8 (ibid.), at p. 10. 22 NDP for Nigeria (November 30, 2020) and (November 29, 2019), item 5.9, IRB, RIR NGA106362.E, "Whether women who head their own household, without male or family support, can obtain housing and employment in Abuja, Lagos, Ibadan, and Port Harcourt; ... (2017-November 2019)", November 20, 2019, at pp. 6-7. 23 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 13. 24 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 14. 25 Exhibit RPD-1, RPD Record, at p. 21. 26 NDP for Nigeria (November 30, 2020), item 5.9 (supra footnote 22), at p. 10. 27 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 3. 28 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 12. 29 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 3. 30 Exhibit RPD-1, RPD Record, at p. 92. 31 Exhibit RPD-1, RPD Record, at p. 93. 32 Transcript of the RPD Hearing (December 6, 2019), at p. 29. 33 NDP for Nigeria (November 30, 2020), item 1.27, IRB, RIR NGA200342.E, "Mental health services available; treatment of persons with mental illness by society and by the authorities; ...", November 10, 2020, at p. 2. 34 NDP for Nigeria (November 30, 2020), item 1.27 (ibid.), at p. 3. 35 NDP for Nigeria (November 30, 2020), item 1.27 (ibid.), at p. 5. 36 NDP for Nigeria (November 30, 2020), item 5.9 (supra footnote 22), at p. 2; item 1.8 (supra footnote 20), at p. 21. 37 NDP for Nigeria (November 30, 2020), item 1.8 (ibid.), at p. 20. 38 NDP for Nigeria (November 30, 2020), item 5.9 (supra footnote 22), at p. 11. 39 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 1. 40 NDP for Nigeria (November 30, 2020), item 5.9 (ibid.), at p. 6. 41 Transcript of the RPD Hearing (December 6, 2019), at p. 25. 42 NDP for Nigeria (November 30, 2020), item 5.9 (supra footnote 22). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-02385 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français