TB7-10740

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 : TB7-10740 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 3, 2017 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I Jesuorobo 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 (the "Appellant") is a citizen of Nigeria and is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that she 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 for redetermination by a differently constituted panel. RAD DETERMINATION [2] Pursuant to ss.111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD allows the appeal and finds that the Appellant is a Convention refugee.1 BACKGROUND [3] The Appellant alleges that she is a citizen of Nigeria. She fears her common law partner, XXXX XXXX XXXX XXXX XXXX XXXX XXXX in the Nigerian Army, due to incidents of domestic violence committed by him against her. [4] The Appellant came to Canada and made her refugee claim, which was refused by the RPD on the basis that the Appellant could safely and reasonably relocate to Port Harcourt, Nigeria. [5] The Appellant has argued that the RPD erred in its assessment of the evidence, and that she cannot safely or reasonably relocate to Port Harcourt. ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. NO NEW EVIDENCE OR ORAL HEARING [7] The Appellant did not submit any new evidence to be considered under s.110(4) of the IRPA, so no analysis of such evidence is required. As an oral hearing can only be held where there is new evidence that has been admitted under s.110(4), and there is no new evidence in this case, no oral hearing is required in this case. ISSUES IN APPEAL [8] The Appellant argues the following issues in her appeal: a. The RPD erred in ignoring the Chairperson's Guidelines on gender-based violence (the Guidelines) when assessing the Appellant's evidence about the activities of XXXX. b. XXXX would be able to track the Appellant to Port Harcourt or anywhere else in Nigeria, and that there is therefore no safe Internal Flight Alternative (IFA). c. That there is no reasonable IFA for the Appellant due to the poor conditions for lone women in Nigeria, and that the only way she would be able to live anywhere in Nigeria would be in hiding, which does not constitute a reasonable IFA. [9] In assessing this appeal, I find that the determinative issue in this case is whether or not there is a reasonable IFA available to the Appellant if she were to be returned to Nigeria. RAD ANALYSIS [10] In assessing this appeal, I must take into account the Chairperson's Guidelines on Gender Based Violence (the Guidelines). IFA - Reasonableness Analysis [11] In relation to the reasonableness prong of its IFA analysis, the RPD stated that while it accepts that there is discrimination facing women living in Nigeria without male or family support, it assessed that there was objective evidence to show that, for women who are educated, it is easier to manage running a household without such male or family support. As the Appellant had a Masters degree, the RPD felt that the Appellant fell into this category, and that therefore, it would not be unreasonable for her to relocate to Port Harcourt. [12] The Appellant argued that the RPD had erred in its assessment of the situation of women in Nigeria, and that single women face high degrees of discrimination in obtaining housing and employment without male or family help, to the point that it makes internal flight unreasonable. [13] I have conducted an independent analysis of the evidence including the audio record, documentary evidence, National Documentation Package (NDP) evidence,4 the RPD decision and the Appellant's Memorandum. [14] Particular attention was paid by the RPD to the Response to Information Request (RIR) at Item 5.9 of the NDP. The RPD felt that as the RIR stated that those women who are educated found it "easier" to run a household, this equated to being reasonable for an educated woman to live on her own in Nigeria. I do not agree with this analysis. [15] The overall impression made by the RIR is that single women overall face heavy discrimination in all aspects of life. Directly below the passage quoted by the RPD member, in paragraph 3.1 of the RIR, the document states, "...educated women in the south can obtain employment, but 'many of them face sexual harassment,'"5 a situation the Appellant is all too familiar with and is the type of persecution she is trying to flee. Further on, the RIR states that, "...landlords often refuse women as tenants if they are unmarried or not living with their husbands..." or that male "sureties" are required.6 Overall, women in the south of Nigeria, including Port Harcourt, are stigmatized, exposed to psychological violence, and half of unmarried women in parts of southern Nigeria have experienced physical violence.7 All of these factors need to be borne in mind when considering that this Appellant, as a victim of gender based violence, would be thrown back into a situation where she would face that kind of violence again, which cannot be considered as reasonable. [16] One element of concern in relation to the RIR at Item 5.9 is the fact that it dates back to 2012. However, I have also reviewed Item 5.22 of the NDP, which is a further RIR from June 2016. It continues to paint the same picture as Item 5.9, stating that "...all categories of single women -never married, widowed and divorced- face 'varying degrees of abuse from society'...."8 It is true that this particular RIR focuses on Abuja, but the indications are that this behaviour exists across Nigeria. The 2016 United States (US) Department of State Report (DOS Report)9 reinforces this stating that, "The practice of demanding sexual favors in exchange for employment...remained common"10 and that "women experienced considerable economic discrimination."11 [17] In her own testimony, the Appellant stated that in Nigeria there is no system that supports women, particularly single women, and that as a result, others would take advantage of that situation. She stated that this would make it extremely difficult for her to find work anywhere. This testimony is consistent with that found in the NDP. [18] While it may be true that educated single women may have an "easier" time getting employment in southern Nigeria than uneducated women, this does not mean that it is therefore "easy" or "reasonable" for them to do so. In this case, based on the evidence before me, I find that on a balance of probabilities, even with her Masters degree, it would not be reasonable for the Appellant to relocate to Port Harcourt, or anywhere else in Nigeria. [19] As I have found that there is no reasonable Internal Flight Alternative available to the Appellant, there is no need for me to conduct an analysis in relation to the safety prong of the IFA analysis. Identity [20] The RPD found that it was satisfied the Appellant had established her identity as a Nigerian national based on her Nigerian passports, birth certificate and oral testimony. I have conducted my own independent analysis of the evidence available and find that the RPD made no error in this regard. Having considered her evidence, including her passports, birth certificate and other Nigerian documents such as her education certificates, I also find, on a balance of probabilities, that the Appellant is a Nigerian national as claimed. Credibility [21] I note that in its decision, the RPD felt that in relation to the Appellant's account of domestic violence at the hands of her husband, on a balance of probabilities, the Appellant was found credible. Credibility on this aspect was therefore not raised as an appeal issue by the Appellant. Nevertheless, I must still carry out an independent assessment of the Appellant's evidence on this matter. [22] As the RPD Member had the ability to decide on which questions to ask, and to observe elements such as body language and demeanour of the Appellant that would not come through in the audio recording, I find the RPD Member had a meaningful advantage, and I therefore apply the RAD Reasonableness standard of review to this element of the appeal. [23] The Appellant stated in testimony that she feared for her life at the hands of XXXX due to multiple instances of abuse at his hands. The Appellant described different incidents in detail, such as the series of events when she returned from the US with XXXX that eventually led to her being attacked, treated in hospital and losing the baby that she was carrying. [24] Furthermore, the Appellant provided a medical examination report from Dr. XXXX XXXX12 which confirmed injuries consistent with those described by the Appellant in her testimony and narrative stemming from various incidents. [25] In assessing the Appellant's evidence, I found the Appellant's account of abuse at the hands of XXXX to be credible, and that the RPD's conclusion that she was credible to be a reasonable one. State Protection [26] State protection was not explicitly addressed by the RPD as it had relied on the availability of an IFA to Port Harcourt as its determinative issue. As I am overturning this decision, I must make my own findings on state protection. [27] The Appellant stated in her testimony that after one particular incident of abuse at the hands of XXXX she had approached the police for help. However, the police then told XXXX about her report and also told the Appellant that they could do nothing and that this was a family affair. [28] The US DOS Report13 states that "[t]here is no comprehensive law for combatting violence against women. As a result, victims and survivors had little or no recourse to justice."14 It goes on to state that "Police often refused to intervene in domestic disputes or blamed the victim for provoking the abuse."15 This is entirely consistent with the experiences described by the Appellant. [29] Accordingly, I find on a balance of probabilities, that there would be inadequate state protection available to the Appellant against domestic violence should she be returned to Nigeria. CONCLUSION [30] Pursuant to ss. 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee as she has a well-founded fear of persecution on the basis of her membership in a particular social group as a single woman. This appeal is allowed. (signed) "T. Card" T. Card November 3, 2017 Date 1 Section 111(1)(c), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (March 31, 2017). 5 Ibid, Item 5.9, NGA103907.E, Immigration and Refugee Board of Canada (December 2012), at p. 7, section 3.1. 6 Ibid, at p. 8, section 4.1. 7 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Nigeria (March 31, 2017), Item 5.9, NGA103907.E, Immigration and Refugee Board of Canada (December 2012). 8 Ibid, Item 5.22, NGA105523.E, Immigration and Refugee Board of Canada (30 June 2016), at p. 1, section 1. 9 Ibid, Item 2.1, United States. Department of State (3 March 2017). 10 Ibid, at p. 31, section 6. 11 Ibid, at p. 32, section 6. 12 Exhibit RPD-1, RPD's Record, Exhibit 7, at pp. 150-152. 13 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Nigeria (March 31, 2017), Item 2.1, United States. Department of State (3 March 2017). 14 Ibid, at p. 28, section 6. 15 Ibid, at p. 30, section 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-10740