TB5-01439

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 : TB5-01439 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 May 20, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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 (Appellant) a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that she would be at risk of undergoing female genital mutilation (FGM) if she is forced to return to Nigeria. She alleges that her father-in-law is insisting that she must undergo the procedure, as it is the family tradition. The Appellant alleges that her daughter faced the procedure without her knowledge or consent and subsequently died due to complications from the procedure. The Appellant has since had a second daughter born in Canada and fears that her newborn daughter will face the same risk. The Appellant who is a Christian, adamantly refuses to undergo the procedure and she will have no protection. [4] The Appellant's refugee claim was heard on November 13, 2014. In a decision of January 15, 2015 the RPD rejected the claim, finding that the Appellant was not a credible witness and that she had not established the central elements of her claim and that she did not have a well-founded fear of persecution. [5] The Appellant submits the following issues: a) The RPD erred by impugning the credibility of the Appellant based on peripheral issues and an incorrect assessment of the evidence. b) The RPD did not consider the application of The Chairperson's Gender Guidelines1 to the Appellant's claim. c) The RPD ignored or failed to consider relevant evidence. d) The RPD failed to conduct a thorough analysis of s.97 of the IRPA REQUEST FOR AN ORAL HEARING [6] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [7] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [8] The Appellant has submitted no admissible new evidence in support of her appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and her application for an oral hearing is denied. ROLE OF THE RAD [9] The RAD finds that the recent Federal Court decision in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error".3 [10] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi4 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [11] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [12] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides 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 present, at the time of the rejection. [13] The RAD notes that he Appellant in her Statement of Appeal5 at paragraph 2 declares, "I am not relying on new documentary evidence referred to in subsection 110(4) of the Immigration and Refugee Protection Act". Yet the RAD finds in its review of the Appellant's Statement an affidavit referred to at paragraph 4 as "Exhibit B".6 The affidavit of XXXX XXXX XXXX appears at page 150 of the Appellant record. The RAD notes this document is not further addressed in any aspect of the Appellant's Statement of Appeal or Memorandum of Claim. [14] The RAD in an effort to ensure fairness will review the document as the submission of new evidence. [15] The RAD finds there is a requirement on the Appellant to provide an explanation about why the proposed new evidence meets the statutory requirement. The Court in examining a provision almost identical to that of s.110(4) has held that if an applicant believes that the evidence meets the requirements of paragraph 113(a), it is up to the applicant to provide explanations as to why it conforms to the statutory requirement.7 For example, if the evidence pre-dates the RPD's decision, it is the duty of the person submitting the new evidence to provide why it had not been placed in front of the RPD under the express statutory requirements under paragraph 113(a).8 [16] Similarly, the Refugee Appeal Division Rules9 (RAD Rules) provide that the appellant's record must contain: (i) a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, and (ii) a memorandum that includes full and detailed submissions regarding how any documentary evidence that the appellant wants to rely on in the appeal meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. [17] The RAD has considered the recent Federal Court decision in Singh10 and finds that there is nothing in the decision which takes away the burden of the Appellant to provide an explanation of how the proposed new evidence meets the test set out in s. 110(4) IRPA. [18] The RAD has noted the Appellant submitted that she is not relying on new evidence and she has provided detailed submissions regarding how the documentary evidence meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. [19] Even though the Appellant has not provided any explanation as to whether this new evidence meets the requirements of subsection 110(4), the RAD has gone on to assess it in light of that section. In determining how the statutory provisions of Section 110(4) apply to this proposed new evidence, the RAD considered the following: 1. First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim. 2. The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove. For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. 3. It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD's hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. 4. If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance and materiality of the document. 5. Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. 6. Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. 7. In the case at hand, the proposed new evidence does not meet the requirements of s. 110(4). The Appellant's claim for refugee protection was heard on November 13, 2014 and decision was rendered on January 15, 2015. The RAD notes as much as the document is dated as being prepared on February 23, 2015, the events described in the document began on May 27, 2014. The affiant states, "over the next few months XXXX (the Appellant) and I started getting closer and I fell in love with her". The affiant further notes that she informed the Appellant that she was a lesbian. The affiant described that she shared her first kiss with the Appellant on XXXX XXXX, 2014 and stated, "slowly we started building a relationship". The RAD finds in its review of the affidavit, the description of events described in the document began and continued to develop prior to the rejection of the Appellant's claim. 8. The Appellant was represented by experienced counsel who ought to know the importance of this evidence in establishing the Appellant's sexual orientation and that this would be an issue at the Appellant's hearing. The RAD finds that this evidence was reasonably available to the Appellant prior to the rejection of her claim and that the Appellant has provided no persuasive explanation of why she could have not reasonably have tendered that evidence at the time of her hearing or at least before the rejection of her claim. Accordingly, the RAD finds that the affidavit from XXXX XXXX XXXX does not meet the test of new evidence and, as such, will be not accepted as new evidence in this appeal. 9. The Appellant has submitted no admissible new evidence in support of her appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL [20] After a review of the complete record, including a recording of the hearing, the RAD finds that notwithstanding the findings of the RPD and the allegations of error in those findings by the Appellant, there was evidence before the RPD of the existence of the determinative issue of an accessible and reasonable internal flight alternative (IFA). [21] Although the RPD questioned the Appellant about the existence of an IFA, the RPD made no findings 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. In confirming a determination, just as in substituting, the RAD is not bound by the reasoning in the RPD's decision. This is evident from the use of the word "determination" in paragraphs 111(1)(a) and (b). 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. This analysis is consistent with the recent Federal Court decision in Huruglica.11 [22] For the reasons that follow, in this case the RAD can confirm the RPD's determination by making its own findings on the IFA issue. The issue was fully canvassed at the RPD hearing, and the Appellant made submissions 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. [23] 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 will review and assess the credibility findings made by the RPD, which have applicability to this determination. [24] The Chairperson's Gender Guidelines12 were taken into account when considering the facts in this appeal. The RAD considered all relevant factors, such as the social and cultural context in which the Appellant's allegations arose. In addition, issues of country conditions were examined with consideration of the Chairperson's Gender Guidelines.13 [25] The Appellant submits that the Chairperson's Gender Guidelines (Gender Guidelines) were not applied appropriately in this claim. The RPD in its Reasons14 addressed the application of the Chairperson's Gender Guidelines. The Appellant further argues that the RPD should address in its Reasons how the Gender Guidelines are applied to each of its credibility findings. The RAD is not persuaded by the Appellant's argument in this regard. [26] The RAD notes that case law establishes that there is no need for the RPD to specifically mention the Gender Guidelines in a decision provided it adequately applies the principles enshrined in them.15 The Honourable Mr. Justice S. Noël commented on the Appellant's submissions in respect to the application of the Gender Guidelines:16 As for the Applicant's argument that the RPD failed to consider the Gender Guidelines, I agree with the Respondent that the RPD's failure to make an explicit reference to the Gender Guidelines is not a reviewable error in this case. The Gender Guidelines are an important tool in reviewing refugee claims based on domestic violence, more specifically when assessing credibility (Tsiako v Canada (Minister of Citizenship and Immigration), 2012 FC 1253 at para 24). [27] The RAD notes that the Appellant in her submission did not identify any specific instance where she felt the Chairperson's Gender Guidelines were not applied. The RAD reviewed the record as well as the audio recording of the hearing and notes a representative example at paragraph 13 of its Reasons where the RPD utilizes the consideration addressed in the Chairperson's Gender Guidelines. The RAD further finds its review of the audio recording of the hearing confirms that the Appellant was dealt with professionally without any indication of an insensitive approach from the RPD. The RAD finds the Appellant's argument in this instance is without merit. Internal Flight Alternative (IFA) [28] In assessing an IFA, the RPD must apply a two-pronged test cited in Rasaratnam17 suitably modified to take account of section 97 of the IRPA. 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 a risk of cruel and unusual treatment or punishment or a 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. [29] Both prongs of the test must be satisfied to find that the claimant has an IFA. 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 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 travelling there or staying there.18 [30] The RAD considered whether it would be unreasonable to expect the Appellant to relocate in the proposed IFAs. The test for reasonableness is whether it would be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking status abroad, as per Thirunavukkarasu.19 This requires an evaluation of the conditions in the IFA as well as the Appellant or similarly-situated persons. Thirunavukkarasu20 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.21 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.22 [31] The RAD finds that there is a reasonable and viable internal flight alternative available to the Appellant in XXXX or XXXX XXXX XXXX [32] The Appellant has testified that she fears her husband's family. The United Kingdom Home Office Operational Guidance Note for Nigeria23 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. The Appellant's father-in-law [33] The Appellant testified that she could not move to the proposed IFA, as her father-in-law would be able to trace her due to his influence. She testified that her father-in-law was a politician and had many people working for him. She added that he was able to locate her in XXXX at her sister's home and at the home of a friend in XXXX XXXX She alleges that he could use this influence to locate her anywhere in Nigeria. [34] The RAD notes that the RPD Reasons24 addressed the identity, problems and influence of the Appellant's father-in-law and found the Appellant's testimony is lacking in credibility. The Appellant submits the RPD erred by reaching this conclusion. The RAD is not persuaded by the Appellant's argument in this regard. [35] The RAD has reviewed the audio recording of the hearing and finds the Appellant's testimony indicates that her father-in-law's surveying business was going badly and he is not getting any more government contracts. The Appellant was subsequently questioned about a number of aspects in respect to the affidavit25 submitted by her father. The RPD noted the affidavit provides details about the Appellant's father-in-law. The RAD in its review of the record finds that the Appellant's testimony indicates she omitted significant details about her father-in-law from her Basis of Claim (BoC) form narrative. The RAD further finds her testimony evolved in an attempt to enhance her claim for refugee protection. The RPD concluded that the Appellant's allegation that her father-in-law was a rich and powerful businessman was not credible. The RAD supports the RPD conclusion. [36] Additional review of the record confirms the Appellant further testified that her father-in-law had found her at her sister's home. The RAD notes the Appellant's sister resides in Ibadan, the same area as the Appellant. The RAD notes the ability of the Appellant's persecutors to find her in an obvious location does not establish that they have the ability to locate her elsewhere in the country. [37] The Appellant next travelled to a friend's home in XXXX to hide. She subsequently testified that her father-in-law "came there and fished me out". A further review of the audio recording of the hearing indicated the RPD questioned the Appellant about when and how her father-in-law managed to find her in XXXX. The RAD notes the Appellant's response to this inquiry was contradictory and evasive. She subsequently modified her testimony, stating, "My husband told me that my father-in-law had a notion that I'm in XXXX or I was in XXXX and that if I'm staying in any part of Nigeria he will look for me", in an attempt to offset the contradictions in her prior statements. The RAD finds that no evidence has been adduced that her father-in-law had located her in XXXX. The RAD further finds the Appellant's testimony in respect of the pursuit of her father-in-law and his ability to locate her in Nigeria was lacking in credibility. [38] The RAD finds that the Appellant did not provide any persuasive evidence that her father-in-law located her in XXXX and has the influence she alleges. The RAD further finds that given the alleged profile of this individual, it is reasonable to expect that the Appellant would also have been able to tender media reports, photographs or public documents to verify his profile. The RAD finds there is no persuasive evidence to support the Appellant's statement that her father-in-law can find her anywhere in Nigeria. Documentary Evidence [39] The RAD notes that counsel for the Appellant addressed documentary evidence pertaining to an IFA, in his submissions to the RPD. The RAD has reviewed and considered these documents. In particular, the United Kingdom Home Office Operational Guidance Note for Nigeria stated that:26 Nigeria is a large country and internal relocation will generally be a viable option for those who fear, or who have experienced ill-treatment at the hands of non state agents. [40] The RAD notes that evidence in the record, in particular, the United Kingdom Home Office Operational Guidance Note for Nigeria states:27 'WACOL [women's NGO] explained that internal relocation is possible for any adult woman irrespective of whether the case is about FGM, domestic violence or forced marriage. It is possible for adult women to relocate and look for jobs to sustain themselves, however, FGM and forced marriage cases very often involve underage girls. WRAPA (Women's Rights Advancement and Protection Alternative) advised that internal relocation is legally possible, based on the right to freedom of movement as guaranteed by the 1999 Nigerian Constitution, for adult women seeking to escape domestic violence, FGM, forced marriage, and adult women seeking to protect their daughters against FGM. WRAPA considered that internal relocation is a realistic option for such women ... the United Nations Development Fund for Women (UNIFEM) found that in theory, it is not difficult for a woman to relocate within Nigeria and in this way find physical safety...'UNIFEM added that [while seeking to relocate] attractive young, single women, in particular, are very vulnerable to abuse, harassment and trafficking when relocating to another area without economic means or family networks." The same source noted that: "According to UNIFEM, the sheer size of the country and its large population means that it would be very difficult for a husband, or other family members, to locate a woman who has escaped FGM, a forced marriage, or is a victim of domestic violence. UNIFEM believed that, should a husband know where his wife has fled to, there is a high risk that he would try to contact her or force her to return home." However, economic constraints may mean that women wishing to relocate may be required to seek assistance from relatives. In addition, social and cultural constraints may leave women stigmatised in their new communities. 'BAOBAB further added that young women and/or single women, in particular, who have relocated within Nigeria, are vulnerable to unscrupulous men that may target these women. Some of them might even end up as commercial sex workers' [41] The RAD notes the record confirms the Appellant is a sophisticated individual with an XXXX XXXX. She has worked as a XXXX XXXX for many years with a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Further review of the record including the audio recording of the hearing confirms the Appellant has relocated within Nigeria prior to her departure to Canada. She has experience in international travel. She has relocated and established herself in a new country, learning a new culture and establishing a support network. The RAD finds, on a balance of probabilities, that the Appellant may be able to resume her stated employment or find some other form of employment to support herself. [42] In considering the viability of the IFA, the RAD has given consideration to the Chairperson's Gender Guidelines 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. 28 [43] The RAD has considered the objective documentary evidence on the difficulty that would be faced by the Appellant as a single woman living in XXXX XXXX. The RAD acknowledges that there are challenges faced by women who head their own household in obtaining employment and securing housing and loans. However, the RAD notes that there are more female-headed households in large southern cities (such as XXXX XXXX). The RAD also notes that it is easier for women to live alone without male support if they are educated and have a high social status. The Appellant has testified that she has previously lived in XXXX as a single woman. The RAD finds based on the Appellant's level of sophistication and experience, in Nigeria that she would be able to locate to XXXX XXXX and access services there. [44] The Appellant testified that people in XXXX XXXX speak a different dialect than she understands, but it was noted that she was educated in English and would be able to communicate using the English language. The Appellant provided no persuasive evidence that she would be unfamiliar with cultural issues and norms in these cities. Therefore, the RAD is satisfied that it would be reasonable for the Appellant to adapt to new surroundings in any of the cities identified and be able to obtain employment. In addition, although most Nigerians depend upon their family, relying on immediate and extended family is not the only option.29 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, secret societies and guilds. Many such organizations are expected to aid their members in ways that would be fairly unusual in a Western context. The Appellant alleges that she is a Christian. The documentary evidence states that the southern states of Nigeria (in which XXXX XXXX is located) are predominantly Christian. For this reason, the RAD is satisfied that the Appellant will have sources of moral and spiritual assistance and support available to her in Nigeria. [45] The RAD is aware of the fact that an individual has to remain in hiding to avoid problems is not evidence of an IFA30 and that large urban areas cannot be assumed to be an IFA by virtue of their population size alone.31 The RAD's finding of an IFA 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 Appellant did not adduce persuasive evidence to indicate that she would have to live in hiding in these cities. [46] The RAD takes note that the Appellant has stated that she has a network of extended family and friends in Nigeria who have already provided her assistance. There is no evidence before the RAD that these individuals will not continue to provide assistance to the Appellant. [47] The Women's Rights Watch Nigeria project coordinator stated that if women are educated, it is "easier to cope" with running a household without male or family support.32 The same document states that there are more female-headed households in large southern cities than in large northern cities. For this reason, the RAD is satisfied that the Appellant does have access to sources of moral and spiritual assistance and support available to her in the proposed IFAs outside of her network of family and friends. [48] The RAD takes note that the Appellant has stated that her husband lives in Nigeria and that he provided support and assistance in leaving Nigeria. The Appellant has testified that she has not been in contact with him recently, but there is no evidence before the RAD that her husband could not continue to provide assistance to the Appellant. [49] The Appellant does not have a high profile in Nigeria, and the RAD finds that she could live in either of the IFA cities. The RAD also finds that the problems faced by the Appellant with her father-in-law are local in nature. [50] The RAD also considered counsel's submissions to the RPD in which he argued that there is no protection against gender-based violence in Nigeria, as well as the Appellant's testimony that the police in Nigeria cannot protect any woman who is abused. The RAD takes note that the Appellant has received and continues to receive strong support from her family. They have demonstrated a commitment to her throughout the hardships she has experienced in Nigeria, and there is no reason to believe that they will not continue to provide her with ongoing support. [51] The RAD has considered the profile and influence of the agent of persecution in relation to the IFA. The RAD notes, however, that there is no persuasive evidence in the record which suggests that the agent of persecution has the ability to influence the police actions in Nigeria, and/or has 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. [52] Therefore, the RAD finds that the Appellant could live in XXXX or XXXX XXXX without fear or the need to hide. The RAD notes that the cities are large and located at a substantial distance from her home state. [53] Based on the totality of the evidence, the RAD finds that the record contains sufficient evidence to support a finding that an IFA in XXXX or XXXX XXXX in Nigeria is accessible to the Appellant. [54] The RAD finds, on a balance of probabilities, that there is not a serious possibility of persecution of the Appellant in these cities, that her removal to Nigeria would not subject her personally to a risk to her life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The Appellant has failed to provide a reasonable explanation as to why she believes she would be discovered and/or harmed at any of these locations, nor has she provided sufficient evidence as to why the IFA would not be reasonable. Therefore there is no reason to believe, on a balance of probabilities, that she would be harmed. The Psychological Report [55] The RPD assessed the psychological report33 submitted in evidence and assigned it little evidentiary weight based on its content and the lack of credibility demonstrated by the Appellant. The Appellant submits that the RPD did not assess the document and made its finding without considering the document. The RAD is not persuaded by the Appellant's argument in this regard. [56] The RAD notes a review of the record confirms that the RPD addressed aspects of the Appellant's ongoing psychological care and during the hearing. The RPD Reasons acknowledge the expertise of Dr. XXXX and they do not dispute his diagnosis. [57] The RAD has reviewed and considered the report, which indicates the assessment consisted of a clinical impression based upon a sixty-minute interview, including the administration of one test. Dr. XXXX' clinical impression is that the female Appellant suffers from depression of moderate severity and posttraumatic stress disorder, which will require treatment. The conclusion reached by the clinician is that treatment and guaranteed freedom from the threat of removal to Nigeria will result in recovery. He also notes that it will be impossible for the Appellant to feel safe anywhere in Nigeria, but offers no explanation of how he has reached this deduction. Dr. XXXX also states that the female Appellant's condition will deteriorate if returned to Nigeria, but he again fails to state on what medical basis he has come to this opinion. Without an explanation of the clinical basis on which these opinions were formed, the RAD finds that Dr. XXXX' opinions amount to mere speculation. [58] The RAD also finds that the psychological opinion contained in Dr. XXXX's report was largely formulated on the Appellant's self- report rather than on independent clinical studies. The RAD further finds the Appellant has not provided persuasive evidence that she is unable to obtain the psychological treatment recommended by Dr. XXXX in the IFA location. The RAD finds it cannot give the report weight in assessing the viability of the IFA.34 The RAD agrees with the finding of the RPD in this matter. In Summary [59] 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 Rasaratnam35 criteria is not met. The Federal Court of Appeal in Thirunavukkarasu36 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 not 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 RAD finds that after its review of the documentary evidence and the testimony provided at the hearing, the Appellant has failed to show that the IFA option is not available to her. [60] The RAD finds that the Appellant could live in either of the two cities proposed as IFA locations in Nigeria. 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 there and also finds that her removal to Nigeria would not subject her personally to a risk to her life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. [61] The Appellant has failed to provide a reasonable explanation 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. [62] The problem faced by the Appellant with her father-in-law is local in nature. [63] The Appellant has not provided any persuasive evidence how her father-in-law would come to know that she was living elsewhere in Nigeria. [64] The RAD finds it reasonable that the Appellant could live in either of the two cities proposed as IFAs. [65] The RAD further finds on the basis of the foregoing that the findings in regard to the Appellant would apply to her child only if she were to accompany the Appellant to Nigeria. Disposition [66] The RAD finds that there is an IFA for the Appellant, and since IFA is a determinative issue, the Appellant is neither a Convention refugee nor a person in need of protection. CONCLUSION [67] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD but for different reasons as stated above. (signed) "Robert Bebbington" Robert Bebbington May 20, 2015 Date 1 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. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., paras 54, 55. 4 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 5 P-2 Appellant Record, pp.12-13 6 P-2 Appellant Record, pp. 150-151 7 Bengabo v. M.C.I. (F.C., no. IMM-2750-08), Shore, February 23, 2009; 2009 FC 186, at para. 23 8 Jessamy supra, footnote 16. See also: Aleziri v. M.C.I. (F.C., no. IMM-360-08), Lagacé, January 15, 2009; 2009 FC 38 and Haque v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-5356-08, O'Keefe, June 26, 2010; 2010 FC 703. 9 Refugee Appeal Division Rules, SOR/2012-257 http://laws-lois.justice.gc.ca/eng/regulations/SOR-2012-257/index.html. See RAD Rules 3(3)(d)(i) and (g)(iii), 5(2)(d)(ii), and 29(3). 10 Singh v. M.C.I., 2014 FC 1022 11 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 12 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. 13 Ibid. 14 Exhibit RPD-1, RPD Record, p.4. 15 Sukhu v Canada (Minister of Citizenship and Immigration), 2008 FC 427 at para 18; Tsiako v Canada (Minister of Citizenship and Immigration), 2012 FC 1253 at para 25); (Mubaya v Canada (Minister of Citizenship and Immigration), 2013 FC 372 at para 7). 16 Sargsyan, Kseniya v. M.C.I. (F.C., no. IMM-7784-13), Noël, March 17, 2015; 2015 FC 333. 17 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.), at 710. 18 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 19 Ibid. 20 Ibid. 21 Ranganathan, Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 22 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599.. 23 Exhibit RPD-1, National Documentation Package (NDP) for Nigeria (December 21, 2012), item 1.7, United Kingdom Home Office, UK Border Agency, Operational Guidance Note: Nigeria, 4 October 2012. 24 Exhibit RPD-1, RPD Record, pg. 7-8, paragraphs 17-21. 25 Exhibit RPD-1, RPD Record, pp.127-129. 26 Exhibit RPD-1, NDP for Nigeria (December 21, 2012), item 1.7, United Kingdom Home Office, UK Border Agency, Operational Guidance Note: Nigeria, January 2013, para. 2.39. 27 Exhibit RPD-1, National Documentation Package - Nigeria (29 November 2013), item 2.2. United Kingdom Home Office, UK Border Agency, "Country of Origin Information: Nigeria," 14 June 2013, para. 23.39. 28 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. 29 Exhibit RPD-1, NDP for Nigeria (December 21, 2012), item 2.2, United Kingdom, 6 January 2012, Home Office. United Kingdom, 6 January 2012, Home Office. Country of Origin Information (COI) Report: Nigeria, para. 24.60. 30 Sabaratnam, Thavakaran v. M.E.I. (F.C.A., no A-536-90), Mahoney, Stone, Robertson, October 2, 1992. 31 Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-210-94), Muldoon, January 29, 1996. 32 Exhibit RPD-1, RPD Record, National Documentation Package - Nigeria (29 November 2013), item 5.9. 33 Exhibit RPD-1, RPD Record, pp. 121-125. 34 Saha, Gobinda Chandra v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-5193-08), Phelan, March 23, 2009; 2009 FC 304. 35 Rasaratnam, Sivaganthan v. M.E.I., [1992] 1 F.C. 706 (C.A.), at 710. 36 Thirunavukkarasu, Sathiyanathan v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01439