TB5-02549

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 : TB5-02549 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 8, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bola Adetunji 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 XXXX (the Appellant) a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD), denying her claim for refugee protection. She is submitting new evidence in support of her appeal and she is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing and find her to be a Convention refugee. In the alternative, the Appellant is asking the RAD to refer the matter back to a newly-constituted panel of the RPD. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant's claim is based on an abusive relationship at the hands of her former common-law partner, named XXXX XXXX, whom she met on XXXX XXXX, 2009. Their common-law partnership began on XXXX XXXX, 2010 in Lagos. [4] XXXX had his own private business in the XXXX field, selling XXXX and XXXX. He was also a member of the XXXX XXXX XXXX, a group considered illegal by the government of Nigeria and a secret cult in Nigerian Universities causing atrocities and civil unrest in most parts of the country. [5] Although initially the relationship was good, when he became abusive, his family supported him even though he abused alcohol and was womanizing. [6] The abuse became physical and sexual, particularly when he abused alcohol. The Appellant attempted to obtain assistance from the police, however they considered it to be a domestic affair. Eventually, when the Appellant sustained injuries from an incident, she sought medical treatment. When XXXX put a gun to the Appellant's head, her aunt and sister came to her rescue financially and made arrangements for her to come to Canada. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL Express Statutory Conditions [7] Section 110(4) of the IRPA provides that the Appellant may present only the evidence that arose after the rejection of 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. [8] The following new evidence was submitted in support of the Appellant's appeal: * A copy of the Appellant's expired Nigerian international passport (XXXX XXXX, 2010).1 * The Appellant's driver's licence from Nigeria.2 * School certificates - XXXX XXXX University dated XXXX XXXX, 2004, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.3 RAD'S DECISION [9] The foregoing documents deal with the identity of the Appellant which was called into question by the RPD. The RAD admits the foregoing documents pursuant to s. 110(4) of IRPA, however it is not necessary to analyze them, as the RAD accepts them. The RAD finds that the RPD made an alternative finding with respect to an internal flight alternative (IFA), which is sustainable. It is, therefore not necessary to analyze the documentation above which relates to the issue of identity. [10] The Appellant argues that the credibility findings with respect to identity affected the internal flight alternative conclusion. The RAD's analysis will follow, however, with due respect, the RAD notes that the new evidence relates only to the issue of identity. The analysis with respect to the issue of internal flight alternative follows. ROLE OF THE RAD [11] Counsel has made submissions in this regard in line with the reasoning from the Federal Court in Huruglica,4 wherein 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." [12] 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 Alyafi5 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. The RAD has applied the reasoning as set out in Huruglica.6 SUBMISSIONS BY COUNSEL [13] Did the RPD err in its internal flight alternative findings based on an expectation of the Appellant going into hiding for safety, since the RAD has now accepted the issue of identity. Internal Flight Alternative (IFA) [14] The RPD examined the viability of an IFA in two locations, namely in Port Harcourt or Abuja, and identified these cities at the outset of the hearing. [15] With respect to the first prong of the IFA test, the RPD considered the following: * The Appellant's former partner's alleged businesses in Nigeria * Pursuit of the Appellant since her departure * The Appellant's allegations that her former partner belonged to a cult which is condemned by the Nigerian authorities. [16] The RPD questioned the Appellant with respect to her testimony surrounding her former common-law's businesses, purportedly throughout Nigeria, in six locations. It had credibility concerns with respect to the omission of this information in the Appellant's BOC (Basis of Claim) form narrative and section 2(e) of her BOC form, given that she was unable to provide an explanation for this omission. Moreover, the RPD noted that the Appellant had not made any effort to obtain any records of the existences of these businesses. Accordingly, the RPD concluded that the Appellant had embellished her perpetrator's business profile to bolster her claim. [17] The RPD further found that the testimony surrounding the perpetrator's pursuit at the home of her sister was lacking in credibility, given that this evidence was not included in the Appellant's BOC. The RPD further notes that the Appellant's sister's affidavit did not contain this information and no reasonable explanation was provided for this omission. The RPD concluded that the perpetrator had not been to the Appellant's sister's home and by acknowledgement from the Appellant; he had not been to the home of her aunt, as he was unaware of where she resided. [18] With respect to the evidence surrounding her former partner belonging to a cult, the RPD found the Appellant's assertions to be speculative as she was unable to provide any details regarding how he continued to be a member of the cult or how his membership would help locate her, if she were to move to Port Harcourt or Abuja. [19] In conclusion, with respect to the first prong of the IFA test, the RPD concluded that the Appellant had provided limited evidence with respect to the connections and degree of effort her former partner is employing to seek her out, particularly in the absence of any objective evidence to support the Appellant's assertion that he is a successful entrepreneur and a member of a cult, which would then enable him to seek her out in other cities in Nigeria. [20] With respect to the second prong of the IFA, the RPD considered the Chairperson's Gender Guidelines.7 It found that the Appellant is a highly educated and employable woman despite her alleged lack of employment in Nigeria in the past. It further considered the United Nations development Fund for Women (UNFEM), in which it states that it would be difficult in such a large country to locate a woman who is a victim of violence, and the Appellant had not provided sufficient evidence to support the assertion that the agent of persecution had the resources to do so. The RPD also considered the fact that the Appellant speaks English and Yoruba, one of the three main languages in Abuja, which would facilitate her life without the impediment of language barriers. [21] The Appellant submits that the RPD's decision suggests that a refugee claimant should be compelled to hide out in order to feel safe. She cites Huerta8 in support of the argument that not to be able to share your whereabouts with family or friends is tantamount to requiring the Appellant to go into hiding. The Appellant submits that the RPD accepted evidence that the Appellant's former partner continues to pursue her and has been to the home of her parents and neighbours, it is further argued that the Appellant was hardly questioned at the hearing on any substantive issue related to the two prong test of an IFA, and the RPD's finding was made without a proper understanding of the Appellant's identity and the basis of her fears. RAD'S FINDINGS [22] After conducting an independent assessment of the entire record, the RAD finds that the RPD's findings with respect to a viable IFA are sustainable. [23] The RAD finds that the RPD properly applied the two prong-test as set out by the Federal Court. [24] In assessing whether a viable IFA exists, the RAD is guided by the cases of the Federal Court. If there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it before they seek safety in Canada, unless they can show it is objectively unreasonable for them to do so.9 The IFA must be realistic, attainable and accessible. Barriers to getting to the IFA must be reasonably surmountable and the claimant cannot be required to encounter great danger or undergo undue hardship either in travelling there or in remaining there. A claimant cannot reject an IFA for frivolous reasons, such as them not liking the weather there, having no friends or family in the region or not being able to find suitable work there. In law, the fact that a claimant may be better off in Canada economically, physically or emotionally, than they would be in their own country, is not a factor to consider when assessing the reasonableness of an IFA.10 If a viable IFA exists, a claimant is not then a Convention refugee.11 It directs the Board to use a two-pronged test in considering cases where a potential IFA presents itself.12 Firstly, the Board must be satisfied that there is no serious possibility of persecution in the part of the country in which the IFA is located. If the Board is satisfied of this, then, secondly, it must further consider whether or not it would not be unreasonable, in all of the circumstances, for the claimant to seek refuge there. [25] The claimant always bears the burden of proof to show that there is a reasonable chance that persecution will occur in the entire country and specifically in the potential IFA area named.13 [26] Firstly, the RAD finds that the RPD in the absence of corroborative evidence, in light of conjecture on the part of the Appellant and omissions in the BOC, concluded that the first prong of the IFA test had not been met. The RAD concurs with the RPD that the burden of proof rests with the Appellant to establish the grounds upon which she could not reside safely in another part of Nigeria. The RAD cannot help but note the absence of any corroborative evidence referred to in both the transcript of the proceedings and the RPD decision. Although argued by counsel that the findings with respect to the identity of the Appellant somehow bled into her findings with respect to the issue of IFA, the RAD finds this argument has no merit. As noted earlier, the new evidence relates to the issue of identity only and cannot assist the RAD in its consideration of the issue of an internal flight alternative. We, therefore, rely on the evidence on the record which was before the RPD with respect to this issue to make this determination. The RAD also acknowledges the Appellant's argument that there were few questions as it related to the IFA part of her claim at the hearing. However, the RAD notes after reviewing the transcript of the proceedings, that the Appellant was aware of the concerns of the RPD with respect to this lack of evidence and yet she made no effort to obtain further evidence to alleviate those concerns. [27] The RAD finds that the business profile of the agent of persecution is significant, in terms of the ability to pursue the Appellant in another city in Nigeria. There is no evidence to corroborate this, which in and of itself may not be significant, however, given the credibility concerns, and the opportunity to submit new evidence in this regard, the RAD finds that the business profile has not been established. [28] The RAD further finds that continuing pursuit on the part of the agent of persecution is paramount when considering the viability of an IFA. In this regard, the alleged visit to the Appellant's sister's home ought to have been contained in the BOC, and this, together with the lack of such significant information from the affidavit of the Appellant's sister, is even more telling. Therefore, the RAD finds that there was insufficient credible evidence that the agent of persecution had at any time pursued her at the home of her sister. [29] The RAD finds that the evidence surrounding the agent of persecution's relationship with a cult was purely conjecture on the part of the Appellant. Upon review of the transcript, the RAD finds that no details were provided as the Appellant has no direct knowledge that the agent of persecution is currently a member of the cult. Moreover, the RAD finds that there was insufficient evidence to demonstrate how, if this was in fact true, his membership would assist in locating the Appellant in an IFA either in Port Harcourt or Abuja. [30] In totality, the lack of evidence and the foregoing credibility concerns, the RAD finds that the first prong of the IFA test had been met. [31] With respect to the second prong of the IFA test, the RAD finds that the Appellant is a highly educated and employable woman, and notes its consideration of the report from UNFEM with respect to a victim of violence. After conducting an independent assessment of the entire record, the RAD further finds that the Appellant has no dependents, and she speaks the language. The Appellant submitted a psychological report from Canada at the last minute. No questions were elicited in this regard by the RPD. However, the RAD noted from the transcript that the Appellant had attended some counseling in Nigeria prior to her departure. The RAD finds that should she require therapy upon her return to Nigeria, both cities would be able to offer her similar services to that which she attended in Lagos. [32] Lastly, the RAD finds the Appellant's argument that she would have to hide in an IFA, to be without merit. The RAD concurs that to have to hide would not make it a viable IFA. However, there is no suggestion that such is the case here. The RAD finds that there is insufficient evidence to support the assertion that she would be pursued in another location. The mere fact that the agent of persecution has been to the home of her parents and neighbours is hardly an example of someone who is bent on pursuing his victim. Moreover, the RAD finds that there was no evidence to suggest that the pursuit by the agent of persecution was such that the Appellant would be required to sever all relations with her family. CONCLUSION [33] The RAD finds that even if it accepts the identity of the Appellant, the determinative issue is internal flight alternative. We find, after conducting an independent assessment of the entire record, that the Appellant could relocate to either Port Harcourt or Abuja. Accordingly, the RAD finds that she is not a Convention refugee or a person in need of protection. [34] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "Roslyn Ahara" Roslyn Ahara June 8, 2015 Date 1 Exhibit P-2, Appellant's Record, at p. 89. 2 Ibid., at p. 90. 3 Ibid., at pp. 91-95. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 5 Alyafi, Aghiad v. M.C.I. (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 6 Supra, footnote 4. 7 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 8 Huerta v. M.C.I. (2008) F.C.J. No. 737 (F.C.T.D.), per Blanchard J. 9 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) ; (1993), 22 Imm. L.R. (2d) 241 (F.C.A.) 10 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 11 Supra, footnote 8. 12 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 13 Supra, footnote 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02549