TB4-06961

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 : TB4-06961 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 26, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adrienne C. Smith Barrister & 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 and Decision [1] XXXX XXXX XXXX, 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 appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. 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 he fears returning to Nigeria because he believes that XXXX XXXX XXXX will kill him. The Appellant alleged that, while he was employed by the XXXX, he was caught viewing a CD containing images depicting the XXXX engaged in sexual acts with men. The XXXX forced him to remain at his home and to be a sexual partner. [4] The Appellant was able to escape the XXXX compound and flee to Lagos. While in hiding in Lagos, the Appellant learned that the XXXX killed his father with an injection of an unknown compound. Fearing for his safety, the Appellant left Nigeria with the assistance of a smuggler and traveled to Canada. [5] The Appellant's application for refugee protection was heard over two sittings on March 12, 2014 and May 9, 2014. In a decision of July 11, 2014, the RPD rejected the Appellant's claim finding that the Appellant had not established his identity. The Appellant submits that the RPD erred in limiting its assessment of the corroborating documents he tendered to establish his identity. The Appellant argues that the RPD unfairly assessed the credibility of many of his documents based on its findings on the credibility of other documents. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [6] 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 have presented, at the time of the rejection. [7] The Appellant has tendered the following documents1 as proposed new evidence in support of his appeal: (a) Affidavit of the Appellant, sworn XXXX XXXX, 2014; (b) Certificate of Identification/Origin, issued XXXX XXXX XXXX 2014; (c) Affidavit of XXXX XXXX XXXX, sworn XXXX XXXX XXXX 2014; Employment stubs from July to August 2014; (d) Letter from XXXX XXXX, dated XXXX XXXX, 2014; (e) Letter from XXXX XXXX XXXX XXXX dated XXXX XXXX, 2014; (f) Petition/Complaint, XXXX XXXX XXXX, dated XXXX XXXX, 2014; (g) Extract from Crime Diary, XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2014. [8] In assessing whether the proposed new evidence meets the statutory provisions of Section 110(4), the RAD considered the following. [9] 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 [10] 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.3 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. [11] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD 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. [12] 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.4 [13] 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,5 or that it proves a fact that was unknown to him at the time of the hearing?6 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [14] 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.7 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. [15] In the case at hand, the RAD finds that the proposed new evidence does meet the requirements of s. 110(4). The RAD finds that documents one through six all relate to the identity of the Appellant. The RAD finds that the Appellant could not have reasonably known that all of the documents he tendered at his refugee protection hearing to support his identity would be rejected by the RPD. Accordingly, the Appellant could not reasonably be expected to have tendered these additional documents at the time of his hearing or before the rejection of his claim. [16] Documents seven and eight both relate to events which occurred after the rejection of the Appellant's claim which go to the heart of his allegations of persecution. [17] As such, the RAD finds that the proposed new evidence meets the test of new evidence under the statutory provisions and will be accepted as new evidence in this appeal. ROLE OF THE RAD [18] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,8 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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". [19] 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 Alyafi,9 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. [20] 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. ANALYSIS OF THE MERITS OF THE APPEAL [21] 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). [22] 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.10 [23] 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. [24] 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 is not relying on any credibility findings made by the RPD or the RAD. The Appellant's evidence will be assumed to be true for the purposes of this analysis. Accordingly, the RAD accepts the Appellant's identity. [25] In assessing an IFA, the RPD must apply a two-pronged test cited in Rasaratnam11 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. [26] Both prongs must be satisfied to find that the claimant has an IFA. The burden of proof rests with the Appellant to show that he 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 traveling there or staying there.12 [27] The RAD finds that there is a reasonable and viable internal flight alternative available to the Appellant in Port Harcourt or any other major centers in Nigeria. The RAD notes that the Nigerian constitution provides for the right to travel within Nigeria. [28] The Appellant has testified that he fears the XXXX and that the XXXX is famous and highly influential in Nigeria. The Appellant testified that he could not move to another city as the XXXX would be able to find him. However, the RAD finds that the Appellant did not offer persuasive evidence that the XXXX has the influence he alleges. Although this issue was fully explored in the RPD hearing, the Appellant has failed to provide any persuasive evidence to the RPD or the RAD of the power and influence of the XXXX in Nigeria. Given the alleged profile of the XXXX, it is reasonable to expect that the Appellant would have been able to tender media reports, photographs or public documents to verify his alleged profile. Rather, the Appellant has tendered new evidence which tends to suggest that the XXXX does not have the influence he suggests. The Appellant tendered a Petition/Complaint letter13 to the Nigerian police written on behalf of his mother by her Nigerian lawyers together with a copy of the XXXX XXXX14 acknowledging the complaint. It seems reasonable to expect that, if the XXXX has the power and influence suggested by the Appellant, his mother would not have been able to lodge the complaint with police. [29] Furthermore, the RAD finds that the Appellant has failed to provide persuasive evidence that the XXXX has the means or interest to locate and pursue him elsewhere in Nigeria. [30] In addition, he has not provided any persuasive evidence how the XXXX would come to know that he was living elsewhere in Nigeria. The Appellant does not have a high profile in Nigeria, and the RAD finds that he could live in Port Harcourt or another major city. The RAD also finds that the problems faced by the Appellant with the XXXX are local in nature. [31] The RAD has considered the documentary evidence which suggests that the police in Nigeria are corrupt and that people can be bribed. The RAD 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 XXXX has the ability to influence the police actions in Nigeria and/or have the ability to access resources of police or any other authorities in order to locate the Appellant if he were to move elsewhere in Nigeria, a country of 150 million people. The RAD again notes that the Appellant's mother was successfully able to lodge a complaint with police about the actions of the XXXX. [32] Therefore, the RAD finds that the Appellant could live in Port Harcourt without fear or the need to hide. If the Appellant does not inform others of his presence in Port Harcourt, there is no reason to believe that his location would be discovered. [33] Based on the totality of the evidence, the RAD finds that the record contains sufficient evidence to support a finding that an IFA in Port Harcourt or another major city in Nigeria is accessible to the Appellant. [34] The RAD finds, on a balance of probabilities, that there is not a serious possibility of persecution of the Appellant in Port Harcourt, that his removal to Nigeria would not subject him personally to a risk to his 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 he believes he would be discovered and/or harmed in Port Harcourt, and therefore there is no reason to believe, on a balance of probabilities, that he would be harmed. [35] The RAD considered the reasonableness of the IFA 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.15 This requires an evaluation of the conditions in the IFA as well as the Appellant or similarly-situated persons. Thirunavukkarasu 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.16 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.17 [36] The Appellant has testified that it would be difficult for him to live outside of Benin City because he has lived his entire life in Benin and that he knows no other person and lacks family support. The RAD finds that these hardships do not meet the threshold. [37] The Appellant provided no persuasive evidence that he would be unfamiliar with cultural issues and norms in Harcourt. Therefore, the RAD is satisfied that it would be reasonable for the Appellant to adapt to new surroundings in any of these cities 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. 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 has alleged that he a Christian. The documentary evidence states that the southern states of Nigeria (in which Port Harcourt is located) is predominantly Christian. For this reason, the RAD is satisfied that the Appellant will have sources of moral and spiritual assistance and support available to him in Nigeria. [38] The RAD has also considered the Appellant emotional and mental health is assessing the reasonableness of the IFA. The Appellant has tendered documents which indicate that he is being treated on an intermittent basis for XXXX XXXX arising from the trauma of having been sexually assaulted in Nigeria. Although the Appellant's counsel provided extensive submissions on IFA, there are no submissions or persuasive evidence to suggest that the Appellant would be unable to obtain similar treatment in Nigeria. Country condition documents indicate that treatment would be available to the Appellant if he chose to continue his treatment in Nigeria. 26.37 The World Health Organisation 2011 Mental Health Atlas for Nigeria noted with regard to the governance arrangements over mental health availability in Nigeria: 'An officially approved mental health policy exists and was approved, or most recently revised, in 1991. Mental health is also specifically mentioned in the general health policy...A mental health plan exists and was approved, or most recently revised, in1991. The mental health plan components include: ? Shift of services and resources from mental hospitals to community mental health facilities. ? Integration of mental health services into primary care. Dedicated mental health legislation exists and was initiated, or most recently revised, in1958. Legal provisions concerning mental health are also covered in other laws (e.g., welfare, disability, general health legislation etc.).' 26.37 The same source noted that information on mental health and mental hospital expenditures by the government health department were not available. The report went on to list mental health care delivery in the country as follows: 'Primary Care ... Prescription regulations authorize primary health care doctors to prescribe and/or to continue prescription of psychotherapeutic medicines but with restrictions. Similarly, the department of health authorizes primary health care nurses to prescribe and/or to continue prescription of psychotherapeutic medicines, with restrictions. Official policy enables primary health care nurses to independently diagnose and treat mental disorders within the primary care system.18 [39] The RAD notes that the Appellant testified that he remained in hiding while staying with the smuggler in Lagos. However, the RAD notes that the Appellant's decision to remain inside was self imposed, and there is no persuasive evidence that the XXXX made any effort to locate him there. The RAD is aware that the fact that an individual has to remain in hiding to avoid problems is not evidence of an IFA19 and that large urban areas cannot be assumed to be an IFA by virtue of their population size alone.20 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 he would have to live in hiding in Port Harcourt. [40] 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 Rasaratnam21 criteria is not met. The Federal Court of Appeal in Thirunavukkarasu 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 the Appellant has failed to show that the IFA option is not available. [41] 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 his removal to Nigeria would not subject him 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. DISPOSITION [42] The RAD finds that there is an internal fight alternative 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 [43] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD but for different reasons. (signed) "L. Favreau" L. Favreau November 26, 2014 Date 1 Exhibit P-2, Appellant's Record, New Evidence, pp. 119-130 and affidavit pp. 9-12. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, para. 13.3(a). 3 Raza, para. 16. 4 Raza, para. 13.5(b) 5 Raza, para. 13.5(a) 6 Raza, para. 13.3(b) 7 Raza, para. 13.5(a) 8 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 9 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 10 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 11 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. 12 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 13 Exhibit P-2, Appellant's Record, New evidence, pp. 128 and 129. 14 Ibid., p. 130. 15 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.), at 596-599. 16 Ranganathan Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 17 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.), at 596-599. 18 Exhibit RPD-1, National Documentation Package - Nigeria (14 March 2014), item 2.2, United Kingdom Home Office, UK Border Agency, "Country of Origin Information Report: Nigeria", 14 June 2013". 19 Sabaratnam, Thavakaran v. M.E.I. (F.C.A., no. A-536-90), Mahoney, Stone, Robertson, October 2, 1992. 20 Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-2110-94), Muldoon, January 29, 1996. 21 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06961