MB9-18996

RAD File / Dossier de la SAR : MB9-18996 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 Ottawa, ON Appel instruit / entendu à Date of decision October 26 2020 Date de la décision Panel Pamela Arnott Tribunal Counsel for the person who is the subject of the appeal Claudia Andrea Molina Conseil de la|des personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX XXXX XXXX is a citizen of Nigeria. Ms. XXXX XXXX XXXX fears the family of her ex-husband who blames her for not having a child, accusing her of witchcraft and of homosexuality, and for not joining the cult of her sisters-in-law. The RPD rejected her claim based on internal flight alternatives (IFA). I agree that the determinative issues are the IFA and the correct application of several policy guides. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] Ms. XXXX XXXX XXXX indicates that her ex-husband's influential and powerful family harassed and assaulted her when she was unable to conceive a child. She was accused of witchcraft and of homosexuality by her in-laws. She was also harassed and assaulted when she refused to join the cult practises of in-laws, who are members of the XXXX XXXX or XXXX XXXX cult. The marriage ended in 2003. Ms. XXXX XXXX XXXX fled to the United States in XXXX 2017 and to Canada in XXXX 2018. [4] The RPD found that Ms. XXXX XXXX XXXX had not established that her in-laws had the motivation to find her in the proposed IFAs of Lagos, Abuja or Port Harcourt. The RPD found that there had been no incidents following her departure from Nigeria which could show that the in-laws continue to search for her. The RPD also found that Ms. XXXX XXXX XXXX embellished her testimony by referring to the XXXX XXXX and XXXX cults, which were not mentioned in her written evidence. The RPD also found that the proposed IFAs were reasonable based on her personal circumstances including her education, work experience and demographic profile. NEW EVIDENCE The evidence presented by the Appellant is accepted [5] New evidence is only admissible before the RAD if it arose after the rejection of the claim, if it was not reasonably available, or if the Appellant could not have reasonably been expected in the circumstances to have presented the evidence at the time of the rejection of the claim.1 In addition to these legislative requirements, under the Federal Court of Appeal decisions in Singh and Raza, admissibility is limited to evidence that is relevant, new, and credible.2 [6] The Appellant has provided a letter and identity documents from a nephew. The sworn letter recounts that, in XXXX 2018, the nephew was abducted at gun point from his workplace, beaten and questioned about the whereabouts of his aunt. Ms. XXXX XXXX XXXX explains that she could not provide this letter prior to the RPD decision as she had avoided contact with her family, had not spoken to her nephew for some time and didn't have his phone number. The nephew did not report this incident to the police or any person. There is no explanation from the nephew or Ms. XXXX XXXX XXXX of how she learned of this attack, as the nephew indicates that he did not have a phone until XXXX 2019. While this letter is dated after the RPD audience, I find that the lack of contact between the nephew and the Appellant also means that the letter could not reasonably have been provided before the rejection of the claim. The letter provides new evidence that is relevant and probative to her claim of future risk. This letter is admitted. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.3 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations. 4 [8] Ms. XXXX XXXX XXXX argues that the RPD erred in a. ignoring the basis for her claim as a person accused of witchcraft and homosexuality; b. applying the Jurisprudential Guide (JG) for Nigeria5 as it is not applicable to persons accused of witchcraft and homosexuality; c. not applying the SOGIE Guide6 and the Guide on Vulnerable Persons7; d. making errors in its determination of fact; and e. making negative determinations of her credibility. [9] As I have found that a viable IFA is determinative of this appeal, I will only address those issues which are part of the IFA analysis as well as the foundational issues of the correct application of the JG, the SOGIE Guideline and Vulnerable Persons Guideline. [10] I will also note at the outset that a viable IFA is determinative of claims under section 96 and under section 97. It is for that reason that the RPD did not undertake a specific analysis of the Appellant's membership in a social group as a victim of gender violence, her perceived sexual orientation or a person accused of witchcraft. The same applies for her risk under section 97 as a person in need of protection. The RPD erred in its consideration of the SOGIE Guideline but was correct in its consideration of the other guides. a) Jurisprudential Guide [11] The JG for Nigeria was revoked in April 2020: at the time of the hearing before the RPD, it was in force. The question is whether the RPD sufficiently considered the Appellant's individual circumstances when it applied the principles from the former Guide. The RPD decision, in its summary of the facts, mentions the Appellant's fear of her in-laws and the accusations of homosexuality and witchcraft8 but did not mention these accusations in its analysis of the safety of the IFAs. I find that this is an error, but also find that I can remedy this error in my independent analysis. [12] I also note that, since the date of this RPD decision, the Federal Court has clarified that these JGs cannot be used to fetter the decision-making of members9. The Court also specifically upheld the ability of the Chairperson to issue future JGs on issues of law, mixed fact and law, and fact.10 I find that the RPD was correct to use the criteria set out in the JG to structure its analysis. I also find that the RPD did not adopt the JG "blindly" as alleged by the Appellant: the RPD notes where she considered the Appellant's individual circumstances and the objective evidence available to her.11 I find that the RPD did not fetter itself in its use of the JG. [13] The RPD indicated the factors that were similar between the JG and this case: gender, above-average education, religion, non-state agents of persecution and proposed IFAs in the south of Nigeria. The Appellant is correct that there are also distinguishing facts between her case and the JG: this is not a case of female circumcision, she is not the same age as the woman in the JG and is divorced without children. Nonetheless, I agree with the RPD that there are sufficient similarities that the criteria in the JG can be used to analyze the risks for Ms. XXXX XXXX XXXX. b) SOGIE Guideline [14] The Appellant argues that the RPD did not apply the SOGIE Guideline in deciding her appeal. The RPD decision notes at the outset of her decision that she did consider the SOGIE Guideline12. However, I have noted that the RPD member did not consider the accusations of homosexuality in her analysis of the safety of the IFA, which is an error. I also find that I can remedy this error in my independent analysis. The Appellant argues that the accusation of being lesbian is enough to show that she would be subject to the generalized oppression of sexual minorities in Nigeria. I do not agree: the SOGIE guideline is clear that a claim based on SOGIE is subject to the same evidentiary requirement of any other claim. According to the Guideline: Cases involving individuals with diverse SOGIE are no different from other cases before the IRB in that decision makers may draw a negative inference from material inconsistencies or contradictions in the evidence that have no reasonable explanations.13 [15] Further, the burden of proving that the claimant fits the definition of a Convention refugee or person in need of protection lies with claimants themselves. [16] Having reviewed the audio hearing and the RPD decision, I find that there were no other errors in the application of the SOGIE guide. c) Vulnerable Persons Guideline [17] The Appellant has not pointed to any specific questions or instances where the RPD should have considered the Guideline on Vulnerable Persons. No application was made prior to, or at the hearing, for Ms. XXXX XXXX XXXX to be considered a vulnerable person. The medical report provided at the hearing indicates that Ms. XXXX XXXX XXXX suffered physical injuries in XXXX 2017 and was hospitalized for XXXX XXXX. There is no reference to psychological injuries and no other evidence of lasting psychological conditions. Ms. XXXX XXXX XXXX was clear-spoken, eloquent and direct at the RPD hearing. There was one instance when counsel interjected to ask for a break and referenced the Guideline on Vulnerable Persons14. It is also obvious that Ms. XXXX XXXX XXXX, like most refugee claimants, was testifying about difficult and traumatic events from her past in the unfamiliar environment of a hearing room. Having reviewed the audio transcript and the medical evidence15, I am unable to find that the Appellant was unable to present her evidence due to an impairment. I find that there was no error with regard to the Guideline on Vulnerable Persons. The RPD did not error in its analysis of the Internal Flight Alternatives [18] An IFA is a determinative issue because, if a claimant can find safety from persecution by fleeing within Nigeria, they are not entitled to Canada's surrogate protection.16 This is true for claims under section 96 or section 97. A claimant must be a refugee from a country, not from a particular region or city. Accordingly, the Appellant bears the onus to demonstrate that there is a serious possibility of persecution throughout the country, including the proposed IFA.17 The existence of a viable IFA is determinative of any refugee claim. [19] The analysis for assessing an IFA has two parts.18 I must first determine whether there is a serious possibility that the Appellant will be persecuted, or whether she faces, on a balance of probabilities, a risk to her live, torture, cruel and unusual treatment or punishment in the proposed IFA. Secondly, I must also be satisfied, after considering the Appellant's individual circumstances and the conditions in the proposed IFA, that it would not be unreasonable to seek refuge in the IFA. An IFA will only be viable if both criteria are met.19 A high threshold of "nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area," applies equally to both parts of this test.20 For the reasons that follow, I find that the Appellant failed to meet her onus of proof under either prong. a. It is safe for the Appellant in the proposed IFAs. [20] The Appellant has a viable IFA where she does not face a serious possibility of persecution or a risk of harm in the proposed IFA. An IFA analysis requires a contextual approach, looking at the profile of the agents of harm, their motivation to search for the Appellant, and their ability to find her throughout Nigeria. There can only be a serious possibility of persecution or a risk of harm if the agents of harm have both the "means and the motivation" to locate the Appellant.21 [21] The Appellant's memoranda is, unfortunately, lacking in specifics about where the RPD committed its errors. It is not the RAD's role to supplement the weaknesses of an Appellant's arguments or to come up with new ideas that might assist the Appellants in succeeding with their appeal. The RAD is not required to consider an argument that was not raised before it and to do so would be contrary to the statutory scheme and established jurisprudence.22 [22] The Appellant broadly argues that the RPD erred in not considering the specific risks to her based on the domestic violence which she suffered and the allegations against her of homosexuality and witchcraft. The Appellant did not point to any specific paras or facts where the RPD committed this error. I agree that the analysis of a viable IFA must be specific to the claimant. I have considered the evidence in the NDP regarding the treatment of sexual minorities which indicates that there remains widespread social and legal persecution and discrimination against sexual minorities in Nigeria.23 I also note the evidence cited in the RPD decision of the particular level of violence associated with the cults mentioned by the Appellant.24 On the other hand, there is also evidence that Ms. XXXX XXXX XXXX would not herself be subjected to the increased risks related to the profiles mentioned above: she testified that her friend was touching her body to ascertain the extent of her injuries after a beating, and that the allegation of lesbianism is a false accusation.25 She has also testified that she has had no contact with her former in-laws who are involved in cult practises and who levelled false accusations at her. Given her physical and temporal distance from her in-laws, she is not at risk based on these false accusations of lesbianism and witchcraft. Finally, based on the distancing from her in-laws, she is no more at risk from the XXXX or XXXX XXXX XXXX than is any other person in Nigeria. [23] The Appellant argues that she is at risk because of the false labels of lesbianism and witchcraft and the influence of her former in-laws. The RPD found that her evidence about the influence of her in-laws and their ability to make public these accusations was speculative. Ms. XXXX XXXX XXXX testified that the fighting occurred within the family: there is no evidence that these allegations were made publicly or were broadly known. I have also reviewed the audio recording and agree with the RPD's conclusion that Ms. XXXX XXXX XXXX's evidence about the influence of two members of the ex-in-laws was not credible26. This evidence was provided late in the hearing and does not appear in any of the written evidence. Having reviewed the audio hearing, I find that Ms. XXXX XXXX XXXX has not provided sufficient evidence that she is at risk due to the false allegations of lesbianism and witchcraft. [24] The Appellant has provided new evidence from a nephew that in XXXX 2018, he was abducted at gun point from his workplace, beaten and questioned about the whereabouts of his aunt, the Appellant. There is no evidence about the identity of these assailants. This assault occurred in Benin City. There is no evidence of any other attempts to find Ms. XXXX XXXX XXXX since she left Nigeria in XXXX 2017. I find, on a balance of probabilities, that one attempt to find her 3 years after her departure is insufficient to show, on a balance of probabilities, that her in-laws have the means and motivation to find her in the proposed IFAs. [25] For all of the reasons outlined above, I am satisfied that the Appellant faces neither a serious possibility of persecution, nor, on a balance of probabilities, a danger of torture, a risk to their lives, cruel and unusual treatment or punishment in the proposed IFAs. I now turn to the second part of the test to consider the reasonableness of the proposed IFAs. b. It is reasonable for the Appellant to relocate to the proposed IFAs [26] The Appellant has challenged the RPD's use of the JG in relation to the second prong of the IFA test but has not identified specific areas in the second prong which were incorrect. The RPD considered relevant issues which inform the analysis of whether the proposed IFA locations are reasonable in the Appellant's specific circumstances, including her past employment, her level of education, her religion and languages. I have reviewed the RPD's analysis of the second prong, found no error in their analysis and adopt their conclusions. [27] The Federal Court in Adebayo explained that the high onus on the refugee claimant to demonstrate that a proposed IFA is unreasonable requires "nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area".27 I have reviewed the RPD's decision in light of the oral evidence and the Appellant's memoranda. In my view, none of the factors in the Appellant's circumstances establish that her life and safety would be jeopardized if she relocated to Lagos, Abuja or Port Harcourt. [28] For all of the reasons outlined above, I am satisfied that it would not be objectively unreasonable in the circumstances for the Appellant to relocate to Lagos, Abuja or Port Harcourt. CONCLUSION [29] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Pamela Arnott Pamela Arnott October 26 2020 Date 1 Subsection 110(4) of the IRPA. 2 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 at para. 13; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 3Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 at paras. 122-126. 5 Re X 2018 CanLII 52123 (Refugee Appeal Division decision TB7-19851, dated 17 May 2018). 6 Guideline 9: Proceedings before the IRB involving sexual orientation and gender identity and expression Guideline issued by the Chairperson pursuant to paragraph 159 (1)(h) of the Immigration and Refugeee Proection Act. (May 1, 2017) (SOGIE Guideline). 7 Guideline 8: Procedures with respect to vulnerable persons appearing before the IRB Guideline issued by the Chairperson pursuant to paragraph 159 (1)(h) of the Immigration and Refugeee Protection Act. (December 15, 2012.) 8 RPD-1, Reasons for Decision at para 4. 9 Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration) 2019 FC 1126. 10 Ibid. 11 See para 13, 14 16, 18, 19, 23, 24, 29-33. 12 RPD-1, Reasons for Decision at para 2. 13 SOGIE Guideline at section 7.14 14 RPD-1, Audio hearing at 01:14:00. 15 RPD-1, Exhibit 4 "XXXX Hospital Letter of XXXX XXXX, 2019". 16 Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at 752. Thirunavukkarasu v. Canada ( Minister of Employment and Immigration ), [1994] 1 FC 589. 17 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. See also: Okechukwu v. Canada (Citizenship and Immigration), 2016 FC 1142 at para. 35. 18 Ibid. 19 Ibid. at 711; Calderon v. Canada (Citizenship and Immigration), 2010 FC 263 at para. 10. 20 Adebayo v. Canada (Immigration, Refugees and Citizenship), 2019 FC 330 at para. 53. 21 Nimako v. Canada (Citizenship and Immigration), 2013 FC 540 at para. 7; Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at para. 35. 22 Dhillon v Canada (Citizenship and Immigration), 2015 FC 321 at paras 18-20; Ilias v Canada (Citizenship and Immigration), 2018 FC 661 at para 39; Broni v Canada (Citizenship and Immigration), 2019 FC 365 at para 15; and Canada (Citizenship and Immigration) v Chamanpreet Kaur Kaler, 2019 FC 883 at paras 11-13. 23 NDP for Nigeria (31 April 2019) item 6.1 "Nigeria: Treatment of sexual minorities, including ....." IRB NGA 105321.E (13 November 2015); item 6.4, Same Sex Marriage (Prohibition) Act, 2013, 2013, Nigeria,20 November 2014; item 6.5, "Not dancing to their music": The Effects of Homophobia, Biphobia and Transphobia on the lives of LGBT people in Nigeria (January 2017), Immigration and Refugee Board of Canada, 9 November 2017. These items are unchanged in the NDP most current at the time of this decision, being 31 July 2020. 24 RPD-1, Reasons for Decision at para .. 25 RPD-1, Audio Recording at .. 26 RPD-1, Reasons for Decision at paras 22-23. 27 Adebayo v. Canada (Immigration, Refugees and Citizenship), 2019 FC 330 at para. 53. Citing Rasaratnam, supra note 7. See also: Armando v. Canada (Citizenship and Immigration), 2020 FC 94 at para 62; Brahim v. Canada (Citizenship and Immigration), 2019 FC 503 at para. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-18996 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