TB5-09725

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 : TB5-09725 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 1, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Monica Bharadwaj 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 XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted "new evidence" in support of his claim and he has requested an oral hearing. The Appellant further requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that the Appellant is a Convention refugee. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged that he is at risk from Boko Haram who blamed him for reporting to the police. The Appellant further alleged that on XXXX XXXX, 2013, a friend told him that Boko Haram would attack the following day. The Appellant informed the police and on XXXX XXXX, 2013, the police apprehended members of Boko Haram. On that day the Appellant received threatening phone calls accusing him of reporting to the police. [4] On approximately XXXX XXXX, 2013, the Appellant was warned that Boko Haram had traced his home in XXXX and he relocated to XXXX, an hour away by car. On XXXX XXXX or XXXX, the Appellant's house was burned down. The Appellant and his family remained in XXXX. The Appellant did not report this incident to the police. [5] On XXXX XXXX XXXX 2013, Boko Haram killed XXXX XXXX XXXX in XXXX State. The Appellant received threatening calls from families of the police officers who were killed, blaming him for their deaths. The Appellant did not report the threats to the police or any other authorities. [6] On XXXX XXXX, 2013, the Appellant left Nigeria and travelled to the United States to attend a conference. He completed the one month conference and remained in the United States from XXXX 2013 to XXXX 2014 inclusive. On XXXX XXXX, 2014, he crossed the Quebec border and subsequently made an inland claim for protection. Minister's post-hearing documents and submissions [7] This claim was heard in two sittings held on October 27, 2014 and November 18, 2014. Subsequently, the Minister filed an application to submit post-hearing documents and submissions on credibility.1 The Minister disclosed documents seized by Canada Border Services Agency (CBSA) officials at Pearson Airport, including a blank letterhead and letters similar to the Appellant's documents. Counsel for the Appellant requested a resumption of the hearing to respond to the Minister's Application.2 The resumed hearing was held on August 10, 2015. The issues [8] The RPD panel indicated the determinative issues in this case are credibility, failure to claim elsewhere and internal flight alternative (IFA). [9] The Appellant submits the issues in this appeal are the following: * Whether the panel erred with respect to its application of the two prong test for an IFA. * Whether the panel erred in deciding to give little probative weight to the Appellant's oral evidence on the issue of the blank documents and to the Affidavit of XXXX XXXX.3 * Whether the panel erred in ignoring and/or giving little probative weight to the Appellant's Nigerian documents. * Whether the panel erred by drawing a negative inference as to the Appellant's credibility on the basis of his evidence as to how he crossed the Canadian border with only one piece of paper and no passport. * Whether the panel erred in failing to provide an adequate explanation for not accepting the Appellant's evidence and counsel's submissions regarding why he did not make a refugee claim in the United States. * Whether the panel formed a conclusion based on one document from the police station and dismissed the Appellant's testimony and supporting documentation inconsistent with the panel's view. * Whether the panel erred by finding the Appellant would have an IFA in any area outside the north of Nigeria when the panel failed to indicate at the beginning of the hearing that it wanted the Appellant to address the issue of IFA outside of Lagos specifically. * Whether the panel erred in failing to take account of the particular circumstances of the Appellant in regard to its IFA finding. * Whether the panel erred in not considering that the police were the other agent of persecution. * Whether the RAD should admit new documentary evidence submitted by the Appellant concerning medical treatment in XXXX 2014 pursuant to section 110 (4) of the IRPA, and allow an oral hearing pursuant to section 110(6) of the IRPA. The Role of the RAD [10] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [11] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [12] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.4 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [13] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [14] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Admissibility of evidence presented on appeal [15] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of the claim. [16] The Appellant has submitted three documents as proposed new evidence: * Exhibit B: an emergency record, XXXX XXXX XXXX Hospital, XXXX XXXX, 20145 * Exhibit C: a Surgery Discharge Summary, XXXX XXXX, 20146 * Exhibit D: a letter from Dr. XXXX XXXX, XXXX XXXX, 20147 [17] The RAD notes that the Appellant's hearing was held in three sittings, October 27, 2014, November 18, 2014 and August 10, 2015, and the claim was rejected by the RPD on August 27, 2015. The RAD further notes that all of these documents were available to the Appellant for more than a year before the RPD made its decision. The RAD notes as well that the Appellant had the opportunity to provide these documents to the RPD during the approximately four months between the medical procedure and the issuance of the medical letter, and the first sitting of the hearing. The Appellant had as well an approximately ten month period between the first and third sitting of the hearing to disclose this documentation. [18] The RAD notes that the Appellant states in his Affidavit8 that he instructed counsel to provide the RPD with Dr. XXXX letter (Exhibit D) before his hearing and he does not know why this was not done and why counsel failed to refer to the letter or question the Appellant about it in the hearing. The Appellant further states in his Affidavit that this documentation would have provided a context for his difficulties in giving testimony that resulted in the panel's negative credibility findings. [19] The RAD notes that the Appellant has failed to meet the criteria in the statue cited above that only evidence that arose after the RPD decision may be presented as new evidence. The RAD further notes that the Appellant has failed to establish that this documentation was not reasonably available to him at the time of his hearing. The RAD notes as well that the Appellant could not reasonably have been expected to present this evidence at the time of the rejection of his claim. The RAD finds it strains credulity that the Appellant would not have referred to this documentation or at minimum noted a medical problem in the RPD hearing if in fact this was the cause of his difficulties in responding to the panel's questions. The RAD further finds, in the context of the analysis above, that these documents are not admitted as new evidence. Application for an oral hearing [20] The Appellant asks that an oral hearing be held pursuant to subsection 110(6) of the IRPA. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if in its opinion, there is documentary evidence referred to in subsection110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and if accepted, would justify allowing or rejecting the refugee protection claim. The RAD notes that no new evidence in support of this claim has been admitted. Therefore the request for an oral hearing is dismissed. Credibility [21] The panel found that the Appellant's testimony in key areas was vague, evasive and inconsistent. [22] The Appellant submits the panel erred in its credibility findings and its finding as to the availability of an IFA. Entering Canada [23] The panel found the Appellant's oral evidence was inconsistent as to his ability to enter Canada without a passport or a visa. The panel noted that in response to questions in this regard the Appellant stated a friend drove him across the border and presented a paper to Canadian border officials concerning the Appellant's identity. The Appellant further stated he did not know the nature of the paper submitted by his friend. The Appellant further stated that he was sitting next to his friend but that he was absent minded. The panel found the Appellant's responses were unreasonable and drew a negative inference as to the Appellant's credibility. [24] The Appellant noted that the panel found him to be evasive as to how he entered Canada without a passport or visa. The Appellant submits he did provide detailed evidence as to his travel from Nigeria to the United States. The Appellant further submits he did provide detailed responses as to why he did not know how his friend was able to assist him in crossing the Canadian border and the panel failed to consider this testimony. [25] The Appellant submits that should the RAD not agree with his submissions above concerning his crossing the Canadian border, it is further submitted that the panel's decision to draw a negative inference as to the Appellant's credibility is a reviewable error. The Appellant argues the panel focused on a narrow element of his testimony and did not apply a reasonable standard in concluding that his credibility was destroyed by the implausibility of his testimony regarding the border crossing. The Appellant further argues the issue is peripheral and of limited value in determining his credibility. [26] The RAD has reviewed the evidence in the record, including the CD recording of the hearing, concerning the Appellant's border crossing to Canada. The RAD agrees with the panel that the Appellant's responses to the panel's questions in this regard were unreasonable. The RAD finds that it strains credulity that the Appellant's friend presented a paper, about which the Appellant had no information, to a border officer and the Appellant was allowed to enter Canada without a passport or visa. The RAD finds the Appellant's testimony in this regard is not credible. [27] The RAD finds that the panel might have been more specific in drawing a negative inference in this regard, but further finds that negative inference does not suggest the Appellant's general credibility is "destroyed by that finding." The RAD agrees with the Appellant that the issue is of limited value in determining the credibility of the Appellant's allegations. Fear of Boko Haram [28] The panel questioned the Appellant as to the reasons he believed that Boko Haram was interested in him. The Appellant responded that they called him. He further stated that he knew Boko Haram had burned down his house because a friend told him. The Appellant was asked how his friend obtained this information and the Appellant responded he did not know. The panel found the Appellant's responses to be vague, evasive and lacking detail. [29] The RAD notes the Appellant makes no specific submissions to the panel's finding above. The police report [30] The panel questioned the Appellant as to whether he had a police report. He responded: "there is no way I could get it."9 The panel asked the Appellant to explain the letter he disclosed from the Nigeria Police Force.10 The Appellant responded "I cannot say precisely".11 He subsequently stated that the letter was from the police record but not from the police station where he had reported the Boko Haram threat. He further testified his cousin obtained the letter for him. In response to further questioning the Appellant testified "the police letter was from XXXX, Lagos, from the "central record", and/or "you can get it anywhere." He then stated "I think Lagos."12 [31] The panel found the Appellant's responses were evasive, hesitant and inconsistent. The panel further noted the top of the police letter clearly states "XXXX Police Station."13 The panel gave this document little weight as to establishing the Appellant's allegations, and drew a negative inference in regard to the Appellant's inconsistent testimony. [32] The Appellant notes the panel gave this document little weight on the basis of his inconsistent testimony as to the source of the letter. The Appellant submits there was evidence apart from his testimony which included the internet news reports concerning the attack and the death of XXXX XXXX XXXX. There was as well the Affidavit of Mr. XXXX XXXX,14 the letter of XXXX XXXX U,15 the letter of XXXX XXXX,16 the letter of XXXX XXXX XXXX17 and the letter of Pastor XXXX XXXX18 which substantiated his claim that he needed protection. The Appellant submits the panel was required to assess this evidence regardless of its negative credibility finding against him. The Appellant argues his credibility should have been assessed on the basis of the entire record rather than an initial credibility determination based on one specific document. [33] The RAD has reviewed the evidence in the record, including the CD recording of the hearing, regarding the police document. The RAD agrees with the panel that the Appellant's responses to questions regarding this document were evasive and inconsistent and concurs with the panel's decision to give the document little weight. The RAD notes that although the Appellant testified he could not obtain a police report from the local XXXX Police. The document indicates it is from the XXXX Police. [34] The RAD notes that the other documentation cited by the Appellant concern his alleged need for protection, but they do not concern the integrity of the police document or the Appellant's testimony in this regard. The RAD notes the panel's finding concerned only the police document and not the Appellant's general credibility. The RAD further notes however that such findings may raise a doubt as to the Appellant's credibility. Other Nigerian documents [35] The panel questioned the Appellant as to how he obtained his Nigerian documents and noted the Appellant's responses were vague and hesitant. The Appellant subsequently stated that two cousins obtained the documents for him. The panel noted the documents included some pictures and letters from his employers, neighbours and pastor.19 The panel further noted these documents were not sworn, not witnessed and no supporting identification was provided. [36] The panel noted as well that blank letterhead from the same sources,20 specifically, the XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX., were seized by border officials at Pearson International Airport. The panel noted that also seized in the same package was an affidavit from the Appellant's cousin and unsigned copies of the same letters from the Appellant's employers and pastor that had previously been submitted. [37] The Appellant responded to this information that he did not know who sent the second set of documents and speculated that it was someone trying to harm him. He further testified that it might be the former friend who had warned him about the planned Boko Haram attack and that this friend had taken the documents from the Appellant's cousin and sent them to an unknown person in Canada in order to harm him. The Appellant submitted an Affidavit21 from his cousin to support this theory. The panel did not find the Appellant's explanation to be reasonable, including why his cousin would have shown and shared the documents with this friend and why this friend would now want to harm the Appellant. In the context of the concerns noted above, the panel gave the Appellant's Nigerian documents little probative weight. The panel further noted in this regard that country document evidence indicates that fraudulent documents are easily available in Nigeria.22 [38] The Appellant notes the panel stated that he had not mentioned in his Basis of Claim (BOC) form any information as to why his cousin had shared the documents with his friend and why his friend would now want to harm him. Neither did he mention this information during the October 27, 2014 and November 18, 2014 sittings of the hearing. The issue was only addressed in the August 10, 2015 sitting after the Minister had disclosed information about the blank documents seized by border officials. [39] The Appellant submits that counsel in the RPD hearing informed the panel that this information was not relevant to the claim until the issue was raised by the Minister. The Appellant submits as well that the information not in the BOC but provided in sworn testimony at the hearing does not constitute an inconsistency. The Appellant submits the panel erred in giving little probative weight to his Nigerian documents. [40] The RAD has reviewed all of the evidence in the record concerning the Nigerian documents and in particular the documentation disclosed by the Minister and cited by the panel above. The RAD notes this documentation includes blank letterheads for organizations that provided letters supporting the Appellant's allegations. In addition there were unsigned letters from organizations that provided supporting letters for the Appellant.23 [41] The RAD has assessed the Appellant's explanation as to the source of this documentation and the reason these blank and unsigned documents were sent. The RAD agrees with the panel's finding that the Appellant's explanation was not reasonable. The RAD notes that the Appellant only speculated as to the reasons these documents were sent and the Affidavit from his cousin supported this theory with a rather convoluted story, including an unknown person in Canada. The RAD finds the Appellant's explanation and the information in the Affidavit strains credulity and agrees with the Minister's submission that these documents were more likely than not acquired for fraudulent purposes. [42] While the RAD agrees with the Appellant that he was not required to deal with this issue until it was raised by the Minister, it concurs with the panel's finding, on the basis of the analysis above, that the Appellant's personal Nigerian documents should be given little probative weight. [43] The RAD notes that in addition to these personal documents, the Appellant provided two internet press documents concerning the police foiling an attack on XXXX village24 and the subsequent killing of XXXX XXXX XXXX.25 The RAD further notes that the Appellant indicated in his BOC narrative that he is being pursued by Boko Haram because they know he warned the police about their planned attack in XXXX. He further stated that the subsequent killing of XXXX XXXX XXXX was revenge for the XXXX arrests. He stated as well that the families of these XXXX XXXX threatened to kill him because his warning led to the subsequent killing of XXXX XXXX. [44] The RAD has reviewed these two press stories. The RAD notes the first story: XXXX State: XXXX XXXX XXXX XXXX XXXX Village states that eleven suspected members of an ethnic militia were arrested. The RAD notes that there is no mention of Boko Haram in this story. The RAD further notes that although the Appellant indicated the arrests took place on XXXX XXXX XXXX 2013, this story is undated. [45] The second story: Nigeria Attack: XXXX XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX XXXX 2013, indicates the perpetrators were a local militia and the police were on the way to arrest the XXXX XXXX XXXX XXXX XXXX because they were forcing local villagers to swear an oath of allegiance to the group. Gunmen opened fire on XXXX XXXX. The article notes that XXXXpeople had been killed in north-east Nigeria by Boko Haram but there is no mention of Boko Haram in regard to the XXXX killings. Neither is there any mention that the police killings were revenge for the earlier arrests of XXXX ethnic militia members. [46] The RAD finds that these two articles do not support the Appellant's allegations concerning his alleged role in regard to the arrests and concerning the alleged revenge nature of the subsequent killings and concerning the role of Boko Haram in either of these incidents. Witnesses [47] The panel noted that the Appellant brought two potential witnesses to the resumption of the hearing on August 10, 2015. The panel noted that no notice was given to the Immgiration and Refugee Board (Board) or the Minister as to the attendance of these witnesses. The panel further noted counsel had been advised that the resumption concerned only the Minister's Application and disclosure26 noted above. The panel considered the relevance of the witness testimony and noted that the two individuals did not witness any of the alleged incidents in Nigeria and had no information regarding the seized documents. The panel noted one of the individuals was someone the Appellant met in Canada who happened to be a friend of the Appellant's pastor. [48] The panel found that at best this individual was able to provide hearsay evidence based on a phone conversation with his friend in Nigeria. The panel denied this individual permission to give witness testimony. The second individual was introduced as an old family friend living in Canada with apparent knowledge of the threats in Nigeria. He testified that he had travelled to Nigeria and was told by some of the Appellant's friends and family about the problems faced by the Appellant. The panel considered this evidence but gave it less weight in establishing the Appellant's allegations as it was vague and obtained second or third hand, and the witness was in Canada when the alleged incidents occurred in Nigeria. [49] The RAD notes the panel makes no submission in this regard. Failure to claim in the United States [50] The panel noted the Appellant was resident in the United States on a valid visa for five to six months but he made no claim for asylum. The Appellant explained that he was told the only way he could stay in the United States was to get married. The panel found the Appellant's explanation to be unreasonable in the context of his failure to enquire about the asylum process in that country and as well his alleged fear of a risk to his life in Nigeria. The panel noted in this regard that the Appellant had no apparent difficulty with the English language, that he had a long work history and that he travelled independently to the United States. The panel found the Appellant's failure to make a claim in the United States and his explanation for not doing so undermined his subjective fear as well as his credibility. [51] The Appellant submits he provided a detailed explanation as to why he did not make a claim in the United States. The Appellant further submits he relied on information he received that he would have to marry a United States citizen in order to remain within the country. The Appellant submits as well he travelled to Canada once his United States. visa had expired. The Appellant also submits the panel failed to provide an adequate explanation for not accepting his explanation. [52] The Appellant submits that while in the United States he was not in need of protection and at the first opportunity following the information he received regarding the requirement that he marry an American citizen in order to remain in that country, he came to Canada. [53] The RAD has reviewed all of the evidence, including the CD recording of the hearing, regarding the Appellant's residence in the United States and his failure to seek asylum in that country. The RAD notes the Appellant attended a conference in the United States that was meant to last two weeks but he testified it lasted one month. The RAD further notes the Appellant remained in the United States for approximately five to six months before coming to Canada. [54] The RAD notes the Appellant testified that people at the conference told him the only way to remain in the United States was to marry an American and that a lawyer he met after the conference ended also told him this. The Appellant was asked if he had a card or other contact information for this lawyer and he responded no and he did not know he would need this information. The Appellant also stated that he talked to a lot of people and he was asked if everyone told him he had to marry. He responded "not really" but then said he was told it was the only way. [55] The RAD finds it strains credulity that a lawyer, who had been allegedly told about the Appellant's fear to return to Nigeria, would tell him that marrying an American citizen was the only way to remain in the United States. [56] The RAD further finds, in the context of the Appellant's alleged subjective fear of returning to Nigeria, his five to six month residence in the United States and his knowledge of English that his failure to make a claim or to investigate the possibility of making a claim in the United States during an almost six month residence in that country raises a serious doubt as to the integrity of his alleged subjective fear of persecution in Nigeria. [57] The RAD is guided in this regard by the decision of the Federal Court in Assadi27 in which the Court stated that failure to immediately seek protection can impugn a claimant's credibility including testimony about events in the claimant's country of origin. The RAD is further guided by the Court's decision in Ilie28 in which the Court stated that the tribunal was entitled to consider an applicant's failure to claim protection in other countries and also consider how the applicant's evidence was to be weighted in light of that failure. [58] The RAD finds the panel did not err in its finding in this regard. [59] The panel found in the context of all of the evidence, including the Appellant's vague and evasive testimony, that the Appellant had not provided sufficient credible and trustworthy evidence to establish his claim, including the alleged incidents of persecution by Boko Haram. The panel further found the alleged incidents of persecution by family members of police officers did not occur. [60] The RAD finds, in the context of its review and assessment of all of the evidence in the record that it concurs with the panel's findings noted above. Internal Flight Alternative (IFA) [61] The panel found that even if it had accepted the credibility of the Appellant's allegations, an IFA is available to him, specifically in areas outside the north of Nigeria such as Lagos. The panel questioned the Appellant as to the availability of Lagos as a safe haven. The Appellant testified that Lagos was a nine hour car ride from his home town and that a cousin lived there. The Appellant further testified that he would not be safe in Lagos because some of the XXXX XXXX killed in the Boko Haram raid were from Lagos and he was called by some of their families. He also testified that he had not reported these calls to the police. The panel did not find the Appellant's testimony in this regard to be reasonable and noted that the police cannot be faulted for not offering protection when no report of the threat was made to them. [62] The Appellant testified as well that Boko Haram members are in Lagos and he would be found because his name is in the news. The panel indicated it placed greater weight on the documentary evidence in the National Documentation Package (NDP) on this issue than the Appellant's speculative testimony. The panel noted that country document evidence indicates that relocation is available to those fearing Boko Haram persecution to areas outside the north of Nigeria where attacks are less frequent.29 The panel found that the Appellant would have an IFA in areas outside the north of Nigeria and specifically noted Lagos in this regard. The panel further noted that Lagos has a population of more than 11 million people. The panel found that while there had been some violence in Lagos, that on a balance of probabilities, there was not more than a mere possibility that the Appellant would be at risk from Boko Haram in that city. [63] The panel further found that it would not be unduly harsh or unreasonable for the Appellant to relocate to Lagos. The panel noted that he is male and with a long history of a XXXX career. The panel further noted he had independent travel experience, including to the United States and Canada, and he had at least one supportive relative in Lagos. [64] The Appellant submits that the panel erred in finding that relocation to Lagos would not be unduly harsh or unreasonable. The Appellant further submits that he had established that both Boko Haram and the police are the agents of persecution. The Appellant notes that he had testified that the families of XXXX XXXX killed by Boko Haram as a result of his informing the police of the planned attack had threatened to kill him. Therefore the Appellant cannot seek assistance from the police. The Appellant also submits that both Boko Haram and the police have access to Lagos and as a result Lagos is not a safe haven for him. [65] In the context of the argument above, the Appellant submits the panel's IFA finding is unreasonable. The Appellant further submits the panel ignored evidence concerning a serious possibility of persecution by police and Boko Haram in Lagos. [66] The Appellant submits the panel erred in finding there was at least one supporting relative in Lagos. The Appellant notes he is married with children and the absence of his immediate family in Lagos ought to have been a relevant consideration. In regard to the panel's finding concerning his XXXX career and travel experience, the Appellant submits that this would make his presence in Lagos more visible and enhance the risk of harm by the agents of persecution. The Appellant further submits the panel's finding about areas outside the north of Nigeria suggests that persecution would be confined to the north and this is an unreasonable inference. [67] The Appellant submits the panel erred as to its application of the second prong of the test for an IFA. The Appellant further submits there is no evidence that the panel considered his particular circumstances: his young age, the impact on him of the burning down of his home and the violence to his family in this regard, the threats from family members of the police who were killed, the warnings of violence received from others if he were to return to Nigeria and the substantial period of his absence from Nigeria, in determining the reasonableness of an IFA in Lagos. [68] The Appellant notes the panel cited country document evidence indicating an IFA was available to him in any areas outside of the north of Nigeria. The Appellant argues this is an error or a ground for appeal because the panel failed to indicate at the beginning of the hearing that it wanted to address the issue of IFA outside of Lagos. The Appellant notes the panel was clear that it wanted to hear his response as to why he could not live in Lagos. [69] The Appellant notes the panel found that his risk of Boko Haram harm was not more than a mere possibility, but the Appellant submits the panel failed to consider that the police are the other agent of persecution and this is an error. The Appellant argues in this regard that by relying only on country document evidence concerning the Boko Haram risk it failed to consider his particular circumstances concerning the threat from the police. [70] The Appellant argues the panel ignored letters, affidavits, news reports and photographs that established his fear of persecution. In this regard, the Appellant further argues that the panel erred in finding the alleged threats of persecution by family members of slain police did not occur. The Appellant submits the panel failed to inform him and his counsel that it continued to have concerns regarding his claim that he feared persecution by these family members after evidence was provided in the hearing. The Appellant argues the panel was duty bound to convey any ongoing concerns it may have had in this regard. [71] The Appellant submits the panel's IFA reasons are unsustainable as they ostensibly suggest that he simply accept the risk of harm that may or may not befall him in Lagos because Lagos has a large population and he may not come to the attention of the police or Boko Haram. The Appellant argues the panel has effectively forced him to adduce clear and convincing evidence that he would be found in the IFA which is a misstatement of the applicable legal test and must be set aside. [72] The RAD has reviewed and assessed all of the evidence concerning the availability of an IFA in Nigeria and also the case law in this regard. The RAD agrees with the Appellant that the panel questioned the Appellant in the RPD hearing regarding the proposed IFA is Lagos and that the reference to places outside the north of Nigeria lacks the required specificity. Although not mentioned by the panel in regard to an IFA, the RAD notes that the Appellant moved to XXXX on XXXX XXXX, 2013 and he did not leave Nigeria until XXXX XXXX, 2013. The panel questioned the Appellant in the RPD hearing as to whether he encountered any further trouble after this move. The RAD finds the Appellant's response was evasive and notes no evidence was disclosed that he encountered any trouble after moving to XXXX. The RAD notes the Appellant's family remains in XXXX. The RAD further notes the panel asked the Appellant if they had been discovered, and he responded they were not discovered and "nobody goes there."30 [73] The RAD notes the panel cited country document evidence indicating that although there have been some Boko Haram incidents in Lagos, relocation is available for those fearing Boko Haram. The RAD notes that although the Appellant stated his name was in the news, no documentary evidence was provided to support this allegation. The RAD further notes that the Appellant stated he had established that both Boko Haram and the police are agents of persecution. The RAD finds, in the context of its analysis above concerning the incident in which XXXX were killed, that the Appellant has failed to establish that family members of these policemen are threatening him because he warned the police about the initial planned attack. The RAD finds there is no credible evidence that there is a connection between the two incidents and that families of the XXXX killed in the second incidents are pursuing the Appellant. The RAD finds, in the context of negative credibility findings noted above, the truthfulness of the Appellant's testimony in this regard is in serious doubt. The RAD further finds there is insufficient credible and trustworthy evidence to support the Appellant's allegation that the killing of the XXXX was a revenge attack for the incident in which the Appellant was allegedly involved, and these families and the police would be a danger to the Appellant if he were to relocate to Lagos. [74] The RAD notes that the first prong of the test to be applied in determining whether an IFA is available to the Appellant requires that the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted in the part of the country to which it finds an IFA exists.31 While not using the same language as found in the jurisprudence, the RAD finds the panel has considered the matter appropriately and has provided credible supporting evidence that there is no serious possibility that the Appellant would be at risk of persecution in Lagos. [75] The second prong of the test requires that conditions in the IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the Appellant, for him to seek refuge in Lagos. [76] The RAD notes that the Federal Court of Appeal in Rasaratnam32 states that the onus is on the claimant to show that he or she does not have an IFA, and the burden placed on the claimant is fairly high in order to show that the IFA is unreasonable. The Court further stated that actual and concrete evidence of adverse conditions is required in this regard. [77] The RAD finds, in the context of the cumulative negative credibility findings noted above, that the Appellant has failed to challenge the availability of an IFA in Lagos. The RAD concurs with the panel's finding that an IFA is available to the Appellant in Lagos. The Appellant's hospitalization and surgery prior to the RPD hearing [78] The RAD has considered above the Appellant's submissions regarding new evidence and an oral hearing. The RAD notes that the Appellant did testify in the initial sitting of the hearing that he had to be rushed to the hospital because the pressure on him had raised his blood pressure very high. The RAD further notes that there was no further mention of a health issue in that sitting and none in the two subsequent sittings. The RAD notes as well, on the basis of its review of the CD recording of the hearing that the Appellant was able to participate fully in the proceedings. Disposition [79] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel February 1, 2016 Date 1 Exhibit RPD-1, RPD's Record, at pp. 158-177. 2 Ibid, at pp. 178-182. 3 Exhibit P-2, Appellant's Record, at pp. 41-42. 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, at p. 58. 6 Ibid., at pp. 60-61. 7 Ibid., at p. 63. 8 Ibid., at p. 53. 9 Ibid., at p. 6. 10 Ibid., at p. 35 11 Ibid., at p. 6. 12 Ibid. 13 Ibid., at p. 35. 14 Ibid., at pp. 31-32. 15 Ibid., at p. 33. 16 Ibid., at p. 34. 17 Ibid., at p. 37. 18 Ibid., at p. 38. 19 Exhibit RPD-1, RPD's Record, at pp. 144-146, 152-177. 20 Ibid, at pp.158-177. 21Exhibit P-2, Appellant's Record, at pp. 41-42. 22 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria, 17 July 2015, items 3.9, Responses to Information Requests (RIR), NGA1035083FE., 3.10. 23 Exhibit RPD-1, RPD's Record, at p. 160. 24 Exhibit P-2, Appellant's Record, at p. 12. 25 Ibid, at pp. 13-14. 26 Exhibit RPD-1, RPD's Record, pp. 159-161. 27 Assadi, Nasser-Eddin v. M.C.I. (F.C.T.D., no. IMM-2683-96), Teitelbaum, March 25, 1997. 28 Ilie, Lucian Ioan v. M.C.I. (F.C.T.D., no. IMM-462-94), MacKay, November 22, 1994. 29 Exhibit RPD-1, RPD's Record, NDP for Nigeria, 17 July 2015, item 1.7. 30 The CD Recording of the RPD hearing. 31 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 32 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09725