MB9-12590

RAD File / Dossier de la SAR : MB9-12590 MB9-12591 / MB9-12592 / MB9-12593 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 29, 2019 Date de la décision Panel Joel Bousfield Tribunal Counsel for the persons who are the subject of the appeal Orr Kolesnik Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the decision in the appeals of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX. The appellants are citizens of Nigeria from Lagos. They appeal a Refugee Protection Division (RPD) decision dated May 3, 2019, rejecting their claims for refugee protection. They are requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that they are Convention refugees or persons in need of protection. In the alternative, they request that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. They have not requested to submit new evidence or an oral hearing. DETERMINATION [2] The RAD allows the appeal and sets aside the decision of the RPD. The RAD substitutes the determination that, in its opinion, should have been made, namely that the appellants are Convention refugees, pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA).1 BACKGROUND Basis of Claim [3] The appellants fear persecution in Nigeria because an Islamic fatwa was declared on them when the principal appellant's father learned of his conversion to Christianity. In January 2015, the principal appellant converted to Christianity after 7 years of marriage to his Christian wife. His father, a chief Imam, learned of the appellant's conversion in September 2, 2017, when he refused to partake and perform in some Islamic rights. He was disowned by his family and the Ansar-Ud-Deen Islamic Society of Nigeria (Ansaruddeen), he was notified by his mother that a proclamation was made against him. Fearing for their safety, the appellants fled to Port Harcourt until they were able to secure United States (U.S.) visas. After the principal appellant's mother told the principal appellant on December 9, 2017, that the Ansaruddeen agents of persecution had extended their search for the appellants outside of Lagos to other Nigerian cities including Port Harcourt and Benin City, the claimants then decided to flee to Canada via the U.S. on XXXX XXXX XXXX 2017, to seek protection. RPD Decision [4] The RPD rejected the claims because it found that the appellants have a viable internal flight alternative (IFA) in Benin City. ANALYSIS Determinative Issue [5] The determinative issue in this appeal is whether the RPD erred in finding that the appellants have a viable internal flight alternative in Benin City. For the following reasons, the RAD finds that it did. [6] In rendering this decision, the RAD has also done an independent assessment of the record. The RAD is reviewing the RPD decision on a standard of correctness. IFA assessment errors [7] The RPD was not persuaded that there is a serious possibility that the influential Ansaruddeen agents of persecution will locate and harm the appellants in Benin City. It drew a negative inference about that issue because the agents of persecution were not able to locate the appellants during the four months they hid in Port Harcourt between early September and late December 2017. The RPD did not believe the appellants were not using cellphones and did not have bank accounts during this time of hiding because the principal appellant did not mention those details in his amended Basis of Claim (BOC) narrative.2 The RPD found it speculative for the appellants to insist that they could be found in Benin City because the principal appellant knew only one influential person in Benin City and that person is not a member of Ansaruddeen. The RPD found the evidence insufficient to establish that the agents of persecution could wield influence to obtain confidential information from cellphone service providers and banks or from the minor appellants' school in Benin City. [8] The appellants argue that the RPD erred in finding that the appellants do not have a well-founded fear of persecution by Ansaruddeen in Benin City. The appellants argue that the RPD failed to consider the fatwa in assessing this question. The appellants also argue that the RPD essentially ignored the fact that the principal appellant's mother confirmed to the principal appellant that the agents of persecution were searching for the appellants in Benin City when they spoke on the telephone on December 9, 2017. The appellants argue that the RPD also essentially ignored the principal appellant's testimony and supporting documentary evidence3 indicating that Ansaruddeen is influential, and that the appellants would have to provide biometric information and other personal information to cellphone service providers and banks if they were to live viable non-hiding lives in Benin City. The appellants further argue that the RPD should not have disbelieved the principal appellant's testimony that the appellants did not use cellphones or bank accounts in Port Harcourt simply because those details were not in his amended BOC narrative. [9] The RAD agrees with the appellants. The RPD was wrong to find that the appellants do not have a well-founded fear that Ansaruddeen could find and persecute them in Benin City. A fatwa is serious and long-lasting. So, there is no issue that the agents of persecution would ever lose interest in pursuing the appellants. Moreover, according to the principal appellant's credible testimony, his mother had already confirmed before they left Nigeria that the agents of persecution are actively looking for the appellants in cities all over Nigeria including Benin City. The RAD also agrees that it was microscopic and wrong for the RPD to refuse to believe that the appellants did not use their cellphone or bank accounts in Port Harcourt simply because these details did not appear in the principal appellant's BOC narrative. The questions to which BOC narratives respond do not clearly ask for these details concerning IFA behaviour. The RAD is also satisfied, based on the appellants' testimony and the documentary evidence,4 that Ansaruddeen is influential, that Nigeria suffers from serious levels of corruption, and therefore that there is a serious possibility that the agents of persecution could find the appellants in Benin City by improperly accessing biometric information provided for cellphone SIM cards and bank accounts and through the minor appellants' school(s). The RAD therefore disagrees with the RPD and finds that the appellants have a well-founded fear of persecution at the hands of Ansaruddeen in Benin City and throughout Nigeria. [10] In its independent analysis, the RAD therefore finds that the appellants do not have a viable internal flight alternative in Nigeria. The rest of the evidence [11] The affirmed evidence of refugee claimants is presumed to be true unless it is internally inconsistent, inherently implausible, or inconsistent with the documentary evidence on country conditions.5 Having reviewed the record and assessed it independently including an audiotape of the hearing, the RAD finds almost no such issues with the rest of the appellants' evidence. The RAD also notes that the principal appellant delivered his testimony with persuasive displays of spontaneous emotion and detail when testifying about his conversion from Islam to Christianity. [12] There was one significant discrepancy. Contrary to their oral evidence, the appellants' claim intake forms6 do not indicate that they hid in Port Harcourt between September and December 2017. The RPD did not discuss this contradiction in its reasons for decision. However, it did ask the appellants to explain it during the hearing. The appellants indicated that they did not know the address where they hid in Port Harcourt and that they misunderstood the forms and thought the question was asking about official addresses and not hiding addresses. The RAD does not accept these explanations as reasonable. After all, these explanations beg the question of how the appellant could have even found the hiding home in Port Harcourt if they did not know the address. Nevertheless, as this contradiction was the only issue with otherwise problem-free lengthy testimony by the appellants, the RAD finds it to be an insufficient basis to support a negative credibility finding. Claims are credible [13] Therefore, as the appellants' testimony is presumed to be true and there are insufficient good reasons to disbelieve them, the RAD finds that the appellants are credible and trustworthy witnesses and that the central allegations in this case are all true, on a balance of probabilities. Claims are well-founded [14] The country documentary evidence7 indicates that religious violence is a serious ongoing problem in Nigeria. It also indicates that Nigerian police are corrupt and untrustworthy, and cannot be relied upon for protection. Therefore, based on the credible allegations and the country documentary evidence, the RAD is satisfied that the appellants face a serious possibility of serious harm at the hands of the agents of persecution throughout Nigeria, and that adequate state protection is not available to them. CONCLUSION [15] The RPD erred in finding that the appellants have a viable IFA in Benin City. After an independent assessment of the evidence in the case, the RAD has found that the appellants do not have a viable IFA anywhere in Nigeria. The RAD also finds that the appellants' claims are credible, that their fears of persecution are objectively well-founded, and that adequate state protection is not available to them. The IFA assessment errors are therefore fatal to the RPD's determination of the claims. [16] The RAD finds that the appellants have a well-founded fear of persecution throughout Nigeria at the hands of the principal appellant's father and Ansaruddeen by reason of their Christian religion and/or their family relationship to the principal appellant. [17] The RAD therefore allows the appeal and sets aside the decision of the RPD. The RAD therefore substitutes the determination that, in its opinion, should have been made, namely that the appellants are Convention refugees, pursuant to section 111(1)(b) of the IRPA. (signed) "Joel Bousfield" Joel Bousfield November 29, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 372-375. 3 Ibid., at pp. 302-305 and 350-359. 4 Ibid. See also documentary sources cited in State Protection section herein. 5Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.). 6 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A, at pp. 161, 162, 170, 172. 7 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (December 21, 2018), all items in sections 1, 2, 7, 9, 10, and 12, at pp. 106-149; See also Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 259-292, 300-316, 340-347, 360-378. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-12590 MB9-12591 / MB9-12592 / MB9-12593 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français