TB9-21881

RAD File / Dossier de la SAR : TB9-21881 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 14, 2020 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the person who is the subject of the appeal Jared Will 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] These are my reasons for granting the appeal of XXXX XXXX XXXX XXXX XXXX ("the Appellant"). I am substituting a decision that the Appellant is a Convention refugee. [2] The Appellant is a citizen of Nigeria. She claims a fear of gender-based persecution at the hands of her husband's royal family, who seek to perform cleansing rituals on her in the wake of her extramarital affair, which are against her Christian beliefs. The Refugee Protection Division ("RPD") accepted the Appellant as credible, but ultimately concluded she had a viable internal flight alternative ("IFA") in Abuja. On appeal, the Appellant argues that the panel erred in its treatment of the psychotherapist's report and in its IFA analysis. SCOPE OF THE APPEAL [3] Generally, I must review a decision of the RPD on a standard of correctness.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing the credibility of oral testimony, which may attract deference in particular cases.2 In this case, however, the RPD had no advantage. I will therefore consider whether its decision was correct. [4] I am not determining the admissibility of the new evidence, as I find the record before me sufficient to grant Convention refugee status. ANALYSIS [5] The determinative issues on appeal are a lack of state protection and viable internal flight alternative for the Appellant. Appellant credibly established allegations [6] While the RPD identified credibility and IFA as the determinative issues, it stated that it had "no reason to doubt the credibility of the claimant in terms of any inconsistencies or contradictions."3 The panel appears to have made a veiled credibility finding in its IFA analysis, where it cites a document in the National Documentation Package ("NDP") to suggest that cleansing rituals for infidelity are rare and require the husband's consent;4 however, it did not actually draw any credibility conclusions on this basis. [7] In fact, as the Appellant points out, the RPD actually ignored evidence in the cited document which specifically indicates that if a husband comes from a royal family, the chances of his wife being subjected to infidelity rituals are higher and that even if he is personally opposed to the practice, he may nevertheless allow it if he fears his family.5 The document further notes that, in some cases, a woman's in-laws may enforce the rituals without the involvement of her husband.6 Given this, while infidelity rituals may be rare, I find the objective documentation nevertheless supports the Appellant's allegations. [8] In my independent assessment, having reviewed the record and the audio recording of the hearing, I agree with the panel that the Appellant testified in a credible manner. I find her allegations to be consistent with the objective documentation. I therefore find she has established a well-founded fear of persecution. State protection not operationally adequate [9] The Appellant provided evidence that her brother attempted to report the threats she was facing to police in Nigeria, but that they refused to become involved in what they believed was a family matter. Her experience is in line with the country documentation. While the evidence on state protection for ritual practices is somewhat mixed;7 the balance of the country documentation suggests that police protection for victims of ritual practices remains deficient. While some sources indicate that complaints can be made and protection can be sought, other sources note that the level of protection available depends on one's influence. Police remain a part of the culture in which these practices take place, which can impact their ability to properly consider complaints and provide an appropriate response.8 [10] Sources indicate there is no comprehensive national law applied throughout the country to combat violence against women.9 The 2015 Violence Against Persons (Prohibition) Act (VAPP) was a positive development, prohibiting gender-based violence, including harmful traditional practices. However, sources report that as a federal law, the VAPP is only effective in the Federal Capital Territory (FCT) of Abuja; only the high court of the FCT has jurisdiction to hear and grant applications, including restraining orders.10 While some states have their own legislation, only a handful have ratified the VAPP to date.11 Evidence of enforcement of the VAPP is lacking.12 The most recent US Department of State report continues to indicate that victims of gender-based violence continue to have little to no recourse to justice.13 [11] While I acknowledge that Nigeria is making efforts to address gender-based violence, including harmful traditional practices, the existence of legislation alone is not enough to support a finding of state protection.14 Absent more concrete evidence of enforcement, I am unable to conclude, on a balance of probabilities, that state protection would be forthcoming to the Appellant in the event she has to return to Nigeria. IFA not reasonable in the Appellant's particular circumstances [12] While I agree with the panel that the Appellant did not establish the reach of her agents of persecution,15 I find that relocation would not be reasonable in her particular circumstances.16 For this reason, it is not necessary for me to deal with the first prong of the test for IFA in any depth. [13] I agree with the Appellant that while the RPD acknowledged the "substantial clinical experience" of registered psychotherapist XXXX XXXX as well as her diagnosis of the Appellant with XXXX XXXX and XXXX XXXX XXXX,17 and the fact that the Appellant was attending weekly counselling sessions,18 it failed to consider the impact of the diagnosis in its IFA assessment. While the panel explained at length why XXXX XXXX XXXX assessment could not usurp its own in determining the merits of the claim, this was ultimately to no end, as the Appellant's allegations were accepted by the panel. [14] Having accepted the Appellant as credible, the relevant question for the panel was whether the accepted diagnosis affected the reasonableness of relocation.19 In my own independent assessment, having reviewed the current NDP for Nigeria, I find that adequate mental health care would not be available to the Appellant. [15] Nigeria's only existing mental health policy document dates from 1991. Although a bill for the establishment of a Mental Health Act was introduced in 2003 and re-introduced in 2013, it has yet to be passed into law.20 [16] A 2018 report from the UK Home Office indicates that psychological treatment is generally more available in urban centres, where both in and outpatient treatment is available in public facilities, including psychiatric counselling, medication, and assisted living.21 There are reportedly eight neuropsychiatry hospitals throughout the country, and each of the accredited medical schools and the attached teaching hospitals have a psychiatry department. There are also six state-owned mental hospitals financed and managed by various state governments.22 [17] In contrast, the 2019 US Department of State report indicates that mental healthcare services in Nigeria are "almost nonexistent."23 Estimates of the number of psychiatrists in the country range from 13024 to less than 300.25 A more recent UK Home Office report from 2019 indicates that access to and availability of quality medical services are inadequate, with most Nigerians unable to afford health care.26 A 2019 report by Human Rights Watch notes that "deep-rooted problems in Nigeria's healthcare and welfare systems leave most Nigerians unable to get adequate mental health care or support in their communities."27 [18] Human Rights Watch further reports that thousands of people with mental health conditions across Nigeria face detention, chaining, and violent treatment in many settings, including state hospitals, rehabilitation centers, traditional healing centres, and faith-based facilities.28 Sources agree that stigma against mental health issues remains a serious issue.29 [19] Considering the balance of the documentary evidence, particularly the more recent reports on the availability of mental health care and the treatment of those with mental health conditions, I find, on a balance of probabilities, that adequate mental health care would not be available to the Appellant if she were to relocate to Abuja. This renders the proposed IFA unreasonable in her particular circumstances. CONCLUSION [20] For the reasons set out above, the appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Caitlin Maxwell" Caitlin Maxwell August 14, 2020 Date 1 Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, at para. 103. 2 Ibid., at para. 70. 3 Exhibit RPD-1, RPD Record, Reasons and Decision, at p. 6, para. 13. 4 Ibid., at pp. 9-10, para. 25, citing Exhibit 3, National Documentation Package ("NDP") for Nigeria (30 April 2019), Item 5.27, IRB Research Directorate, Response to Information Request NGA105465.E, "Oaths and rituals for infidelity among Yoruba Christians in Lagos; consequences for refusal; state protection (2014-March 2016)," 15 March 2016. 5 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 April 2019), Item 5.27, IRB Research Directorate, Response to Information Request NGA105465.E, "Oaths and rituals for infidelity among Yoruba Christians in Lagos; consequences for refusal; state protection (2014-March 2016)," 15 March 2016, at pp. 6-7. 6 Ibid. 7 NDP for Nigeria (29 November 2019), Item 10.8, IRB Research Directorate, Response to Information Request NGA105659.E, "Availability and effectiveness of state and police response in both urban and rural areas of southern Nigeria, for people who refuse to participate in ritual practices (2014-October 2016)," 14 November 2016. 8 Ibid. 9 NDP for Nigeria (31 July 2020), Item 5.3, IRB Research Directorate, Response to Information Request NGA106360.E, "Nigeria: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019)," 14 November 2019, p. 8; see also, Item 2.1, US Department of State, Country Reports on Human Rights Practices 2019: Nigeria, 11 March 2020, at p. 30. 10 NDP for Nigeria (31 July 2020), Item 5.3, IRB Research Directorate, Response to Information Request NGA106360.E, "Nigeria: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019)," 14 November 2019, p. 9. 11 Ibid., pp. 11-12. 12 See, e.g., NDP for Nigeria (31 July 2020), Item 5.2, 28 Too Many, Nigeria: The Law and FGM, June 2018, at p. 6, which indicates it has not been possible to identify any prosecutions under the VAPP Act since its introduction. 13 NDP for Nigeria (31 July 2020), Item 2.1, US Department of State, Country Reports on Human Rights Practices 2019: Nigeria, 11 March 2020, at p. 30. 14 Park v Canada (Citizenship and Immigration), 2010 FC 1269, at para. 56, citing Zaatreh v Canada (Minister of Citizenship and Immigration), at para. 55; Jabbour v Canada (Minister of Citizenship and Immigration), at para. 42. 15 See, e.g., Kassim v Canada (Citizenship and Immigration), 2018 FC 621, at para. 22, where the Court held that even where a claimant is found credible, it is not an error to require corroborative evidence of the reach of the agents of persecution. While affidavits from the Appellant's husband and his cousin provide corroboration of the allegations, they do not speak to the influence or reach of the family: see Exhibit RPD-1, RPD Record, Exhibit 5, pp. 131-134. 16 Rasaratnam v Canada (MEI), [1992] 1 F.C. 706 (C.A.). 17 Exhibit RPD-1, RPD Record, Reasons and Decision, at p. 6, para. 10. 18 Ibid., at para. 11. 19 Olalere v Canada (Citizenship and Immigration), 2017 FC 385, at paras. 56-60. 20 NDP for Nigeria (31 July 2020), Item 1.19, European Asylum Support Office, EASO Country of Origin Information Report, "Nigeria: Key socio-economic indicators," November 2018, at p. 53. 21 NDP for Nigeria (31 July 2020), Item 1.9, UK Home Office, ?Country Policy and Information Note, "Nigeria: Medical and Healthcare Issues," Version 2.0, 28 August 2018, at p. 16, ss. 9.1.4 - 9.1.6. 22 Ibid., at p. 15, s. 9.1.1. 23 NDP for Nigeria (31 July 2020), Item 2.1, US Department of State, Country Reports on Human Rights Practices 2019: Nigeria, 11 March 2020, at p. 37. 24 NDP for Nigeria (31 July 2020), Item 1.19, European Asylum Support Office, EASO Country of Origin Information Report, "Nigeria: Key socio-economic indicators," November 2018, at p. 52. 25 NDP for Nigeria (31 July 2020), Item 1.9, UK Home Office, ?Country Policy and Information Note, "Nigeria: Medical and Healthcare Issues," Version 2.0, 28 August 2018, at p. 15, s. 9.1.2. 26 NDP for Nigeria (31 July 2020), Item 1.17, , UK Home Office, ?Country Policy and Information Note, "Nigeria: Internal relocation," Version 1.0., March 2019, at p.19, s. 4.5.1. 27 NDP for Nigeria (31 July 2020), Item 2.11, Human Rights Watch, "Nigeria: People With Mental Health Conditions Chained, Abused," 11 November 2019, at p. 2. 28 Ibid., at p. 1. 29 See, e.g., NDP for Nigeria (31 July 2020), Item 1.19, European Asylum Support Office, EASO Country of Origin Information Report, "Nigeria: Key socio-economic indicators," November 2018, at p. 52; Item 1.9, UK Home Office, ?Country Policy and Information Note, "Nigeria: Medical and Healthcare Issues," Version 2.0, 28 August 2018, at p. 16, s. 9.1.3; Item 2.11, Human Rights Watch, "Nigeria: People With Mental Health Conditions Chained, Abused," 11 November 2019, at p. 2. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-21881 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