TB9-15125

RAD File / Dossier de la SAR : TB9-15125 TB9-15126 / TB9-15127 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 Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 20, 2019 Date de la décision Panel Joseph Wyger Tribunal Counsel for the persons who are the subject of the appeal Pius Okoronkwo 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] The Principal Appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX citizens of Nigeria, ("the Appellants") appeal a decision of the Refugee Protection Division ("RPD"), dated May 29, 2019, rejecting their claims for refugee protection. The Appellants dispute the RPD's determination that they lacked credibility, and have a viable Internal Flight Alternative ("IFA") in Abuja. DETERMINATION [2] Based on my independent review of the record, I disagree with the RPD's determinations on both issues, set aside the RPD decision and substitute my own determination that the Appellants are Convention refugees. [3] The appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. BACKGROUND [4] The Appellants are a family from the Okpueze community in Enugu State, Nigeria. They claim a fear of persecution from the husband's father, kinsmen and the extended Okpueze community, because they refused to allow the Female Genital Mutilation ("FGM") of their nine-month-old daughter, in opposition to long-standing tradition and custom. On December 27, 2016, while visiting family in Okpueze for Christmas, the Appellants allege that Mr. XXXX father forcibly took XXXX from Mrs. XXXX sister, while Mr. and Mrs. XXXX were visiting friends, and gave her to a woman with cutting instruments prepared to perform FGM. Mr. and Mrs. XXXX rushed back to prevent the ritual procedure, and left for their home the next day, cutting short their two-week visit. [5] On March 12, 2017, while attending church near their home in Lagos, Mr. XXXX received numerous phone calls from his neighbour which he ignored while observing mass. He finally went outside to answer his phone and was told that several local young men came to his house with an urgent message that they were forwarding from the Okpueze community. They insisted that Mr. and Mrs. XXXX return to the village with their daughter in order for her to be circumcised, so that ancestral, generational curses would not befall the Okpueze community. If they failed to comply with this directive, then XXXX would be forcefully taken from them. Mr. and Mrs. XXXX went to the police, who refused to do anything because it was a family matter. [6] On March 13, 2017, the day after the threats were received, Mrs. XXXX took XXXX with her to stay at her sister's house in Abuja. Within weeks she was receiving threatening phone calls from the President of the Okpueze Town Union Meeting Abuja branch, ordering her to bring her daughter back to the village for FGM. He made it clear that some members of the Okpueze community living in Abuja were already experiencing some misfortunes and curses that he attributed to their refusal to follow tradition. He vowed to harm the Appellants if they resisted. [7] A friend of the Appellants who was a member of the Okpueze community advised them that the parent Town Union Community Meeting directed all the branches of the Okpueze Town Union Meetings all over the country to be on the lookout for them, and ensure they are compelled to return with XXXX to undergo traditional FGM. [8] The Appellants made plans to leave Nigeria and received a United Sates ("U.S.") visa on August 7, 2017, but did not leave until XXXX 2017, when they had sufficient funds from winding up their business, selling off all the inventory and raising money from friends. They decided not to apply for asylum in the U.S. due to the hostile attitude toward asylum seekers by the current administration. On XXXX XXXX XXXX 2018, the Appellants entered Canada and made refugee claims. [9] The RPD determined that the Appellants lacked credibility because they failed to claim asylum in the U.S. The RPD also found it implausible that they were surprised to learn of the staunchly held family belief in FGM. [10] The RPD decided that the Appellants had a viable IFA in Abuja largely based on its negative credibility concerns around a confusing account of the phone calls received from the President of the Town Meeting Abuja branch while Mrs. XXXX was with her sister in Abuja. The RPD also drew a negative credibility inference from the fact that the Appellants did not pursue legal advice or go to a higher police authority after being dismissed by the police in Lagos. ROLE OF THE REFUGEE APPEAL DIVISION ("RAD") [11] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which may attract deference to the RPD. Having reviewed all of the evidence, including the audio of the RPD hearing, I find that there is no meaningful advantage to the RPD in this case. I have applied the correctness standard throughout this decision. ISSUES [12] I find that the determinative issue is whether the Appellants have a viable IFA in Abuja. In determining that issue, the overall credibility of the Appellants' narrative must be considered and analyzed. ANALYSIS [13] Following an independent assessment of the record, including reading the transcript and listening to the audio of the hearing, I find that the Appellants have a well-founded and credible fear of persecution in Nigeria, and that they do not have a viable IFA in Abuja. [14] The Appellants set out the grounds for their appeal: 1. The RPD erred in finding that the Appellants' fear was not well-founded because of their failure to claim asylum in the U.S. 2. The RPD erred in finding the Appellants' narrative not credible. 3. The RPD erred in its determination that Appellants have a viable IFA in Abuja. Credibility Appellants failed to claim refugee protection while in the U.S. for three months [15] I find that the Appellants had reasonable explanations for not claiming asylum in the U.S. [16] The RPD found that it would have been reasonable for the Appellants to have immediately claimed in the U.S. where they had temporary legal status, and drew a negative credibility inference from their failure to do so. It determined that the Appellants showed a lack of diligence in exploring those alternatives through an immigration lawyer during the three months they were in the U.S. These actions went directly to the Appellants' lack of subjective fear. [17] The Appellants contend that they gave a reasonable explanation for not seeking asylum in the U.S., arguing that anti-immigrant sentiment and hostility of the U.S. administration toward asylum seekers is a very real concern, and engenders genuine fear in the mind of a prospective refugee. The Appellants were particularly fearful that they might be separated from their minor child, as they have seen on television happen to other refugee claimants in the U.S. The Appellants cite the proposition that in the majority of refugee cases, a short stopover is inconsequential to a determination of subjective fear, where there is a plausible explanation for not claiming asylum. 1 [18] I disagree with the RPD that the Appellants had no reasonable response on this issue. I agree with the Appellants that they gave good reasons for not seeking asylum in the U.S. The animosity of the current U.S. administration towards asylum seekers is readily apparent, and the separation of young children from their parents for long periods of time is actually happening there. I adopt the view of Professor James Hathaway: "Aware of the severe consequences if status is not recognized, it seems completely plausible that genuinely fearful persons might postpone making a claim until they have learned something about the country's status determination system, retained counsel, or otherwise sought to minimize the risk of rejection.2 [19] Having determined that the U.S. status determination system was likely to result in rejection, with a possibility of being separated from their child, they opted not to claim there. Furthermore, the Appellants remained in legal status with no real risk of removal from the U.S. during that time. I accept their argument that a short stopover with a plausible explanation should not be consequential to their refugee determination. I conclude that the three month stay in the U.S. does not affect the credibility of their subjective fear. Appellants' narrative of the Christmas visit is credible and trustworthy [20] I find that the RPD erred in determining the Appellant's narrative not credible. I conclude that the RPD miscontrued some evidence and made an implausibility finding that is not supported. [21] The RPD found it not credible that Mr. and Mrs. XXXX who are Catholic, had never had a conversation with Mr. XXXX family about their apparent staunch beliefs regarding the ritual of FGM. The panel found it reasonable to expect that if the grandfather and the community were so intent in those beliefs, that the Appellants would have received some knowledge or hint. The RPD stated that those beliefs were a surprise to the Appellants when they learned of them on their Christmas visit in 2016. It was on the basis of that supposed implausible surprise that the RPD determined that the incidents as described had never occurred. [22] The Appellant argues that nowhere in his testimony did Mr. XXXX say that he was not aware or surprised to learn of the family tradition of circumcising female children. It had been a long time since his sister had been circumcised and it just did not come into his mind that the family might be planning the ritual for his daughter on their Christmas visit. Mr. XXXX explained to the RPD that the only surprise was that his father attempted to arrange for the FGM of his daughter without his knowledge or consent. [23] I found in listening to Mr. XXXX on the audio recording, that he was unambigous, forthright and believable. His explanation that he had no reason to think about FGM on their Christmas visit does not mean that he was unaware of what happened to his sister years ago, but that the topic was simply not discussed. I intuit a more likely scenario is that the family decided not to broach the topic with Mr. and Mrs. XXXX, anticipating the refusal to consent to it, while awaiting the opportunity to perform the ritual without their consent. [24] I see no contradictions, inconsistencies, discrepancies or implausibilities in the testimony of the Appellants. The Affidavit of Mrs. XXXX sister XXXX XXXX3 corroborates the Appellants' version of events on December 27, 2016. The presumption of truthfulness of her evidence and the Appellants' narrative holds unless there is reason to doubt its truthfulness. I find the RPD's reasons for doubting the truthfulness of these witnesses are insufficient to rebut the presumption. I conclude that the events did occur as described by the witnesses. Internal Flight Alternative [25] I conclude that the RPD erred in finding that the Appellants have a viable IFA in Abuja. RPD erred in determining that the threatening caller was not aware that Mrs. XXXX was in Abuja [26] The RPD identified the area of Abuja as an IFA, noting that it was 450 kilometres from any alleged problems originating in Okpueze. The panel cited credibility concerns in regard to a confusing account of phone calls that Mrs. XXXX received while staying with her sister in Abuja. Mrs. XXXX testified that she was surprised and afraid that the Town Union members had found her in Abuja. The RPD decided that because the call to Mrs. XXXX was on her cell phone, she could have been residing anywhere, and so it was reasonable to determine that the callers were not aware of her location. [27] The Appellants argue that Mrs. XXXX went into hiding in Abuja immediately after the March 12, 2017, visit to their home in Lagos by a group of threatening members of the Okpueze Town Union, and subsequent police inaction. They contend there was no confusion in Mrs. XXXX evidence regarding the phone calls from the President of the Okpueze Town Union Meeting Abuja branch. The Appellants assert that the RPD was wrong to say that the Okpueze community did not know Mrs. XXXX was in Abuja, because it is not supported by the evidence. [28] I agree with the Appellants that the RPD misconstrued the testimony detailing the phone calls. On reviewing the audio, it is apparent that the RPD equated Mrs. XXXX receiving the calls on a cell phone, with the unlikelihood that the Okpueze community knew she was in Abuja. The problem with that conclusion is the testimony of Mrs. XXXX who repeated three times that the President on the calls, told her directly that he knew she was in Abuja with her daughter. I accept as probable the submission from Appellants' counsel that, given that a directive went out to all members to find them, the Appellants were likely being monitored or followed or otherwise surveilled. RPD erred in concluding that there was adequate state protection for the Appellants in Abuja [29] I find that in the particular circumstances of the Appellants, state protection is not available to them in any meaningful way in Abuja. [30] The RPD allowed for the possibility that the husband's family might locate them in Abuja, but that they had recourse to legal counsel and could have the police charge the members of the Town Union under the Violence Against Persons Act ("VAPP"). [31] The RPD correctly stated that the Appellants bear the burden of rebutting the presumption of state protection. The member referred to the incident of the young men sending a threatening message to the Appellants through their neighbour, while they were at church in Lagos. The RPD found that after receiving a negative response from the police, they did not take it to a higher police authority or seek legal counsel. The panel determined that the Appellants can exercise these options and also have the perpetrators charged under the VAPP. The panel drew a negative credibilty inference from the Appellants not taking these steps, and determined that the Appellants had not presented clear and convincing proof of Nigeria's inability to protect its citizens. [32] The Appellants contend that after the police showed an unwillingness to help them, it is unreasonable to expect them to keep seeking ineffective state protection. They did not make further complaints to the police because of the fact that the police did nothing to pursue the persons that threatened them. Mr. XXXX testified that they are corrupt and interested only in money. [33] As far seeking legal help, the Appellants asserted that a lawyer does not have the mandate or capacity to protect the Appellants, but that the police have that responsibility. They cite the Ignacz case for the proposition that "...other government or private institutions are presumed not to have the means nor the mandate to assume that responsibility."4 The Appellants further argued that the good intentions of the state in enacting VAPP is not sufficient where in practice, enforcement is operationally ineffective. [34] The police report in evidence is on the letterhead of the Assistant Commissioner of Police from his Command Headquarters at the Nigeria Police Force in Lagos. The report duly noted the allegations of threats to the Appellants' lives and named the leading culprit. It ended with this: "Action: having listened to his complaint, he was advised to go home and resolved(sic) their issues amicably since the matter bordered purely on family issues while report is refused civil."5 The question arises whether the Appellants would have received some help going to a higher police authority, say the Commissioner of the Nigeria Police Force. The answer, on a balance of probabilities, is no. [35] The statement on the police report appears to be clear evidence of a policy of the Nigerian Police Force with respect to cases of FGM. Citizens are expected to resolve alleged death threats amicably with those threatening them. This attitude of non-involvement is widely reported in the country condition evidence. The RPD itself cites documentary evidence6 that supports the Appellants' contentions that people don't generally go to the police with FGM issues because many consider it a family issue, and besides "...most likely, police will also consider it a family affair and refuse to interfere." The country condition evidence suggests that enforcement and prosecutions over FGM are rare; and that the state lacks the capacity to protect females against violence, and despite VAPP the federal authorities take no legal action to curb the practice.7 [36] Other objective evidence suggests that going to the police may yield temporary relief and the police may urge restraint, but that this may be the extent of their response because the "...custodians of cultural or traditional rites ultimately determine the fate of the individual who is undergoing ritual practices."8 The U.S. State Department notes that despite FGM being banned in many states, "...even in states that have enacted legislation agaist it [FGM], the laws are weak and most times not even implemented."9 This attitude or policy is reflected in the Nigeria Police Force report in this case. The Federal Capital Territory in Abuja is one of the states that have enacted VAPP, and I could find no evidence to suggest that the police attitude or policy of non-involvement in the rest of the country does not prevail in Abuja. [37] State protection need not be perfect, but it must be operationally effective. The word protection connotes some measure of proactiveness to discourage or dissuade or deter the committing of crime i.e. protect the potential victims. What sort of protection is it that the police might lay charges after the harm is committed, while refusing to make any attempt to deter the crime ahead of time even when they know the perpetrators? I conclude that the deterrent effect of VAPP is minimal, where perpetrators know that enforcement is reluctant and/or variable as it appears to be in Nigeria, and police state their policy of non-involvement in writing. Having people prosecuted after the commission of FGM crimes, while even that is not certain, is small comfort to the victims and hasn't really "protected" them from the harm they feared. [38] The RPD determined that the Appellants failed the first prong of the IFA test which requires that it be satisfied on a balance of probabilities that there is no serious possibility of the Appellants being persecuted in Abuja. The RPD's finding that the Appellants would be safe in Abuja was partially premised on it's erroneous conclusion that the President of the Abuja Town Union Meeting branch likely did not know that Mrs. XXXX and her daughter were in Abuja. The audio reveals that Mrs. XXXX was clearly surprised and distraught that the Okpueze community had obtained her phone number and her location. The uncontraverted evidence, based on the presumption of truthfulness, is that the Okpueze community located the Appellants in both Lagos and in Abuja. [39] In her evidence Mrs. XXXX testified that the Okpueze have representatives at state or regional Meetings in many cities, all over the states in Nigeria, including Lagos, Abuja, Port Harcourt and Enugu. Corroborating that uncontradicted evidence, is an affidavit and a letter from the HonourableXXXX XXXX XXXX, a Legislative Member of Ezeagu Local Government Council of Enugu State10 affirming that the parent Town Union Meeting in Okpueze sent out a directive to all of the Town Union Meetings in all of the cities of Nigeria instructing all members to be on the lookout for the Appellants and to return them to the home village for the rituals. The Affidavit of Mrs. XXXX mother, XXXX XXXX also confirms her awareness of "...of the vehement threat of the people of Okpueze...". 11 I find the fact that the Appellants were approached by different Okpueze members in both Lagos and Abuja lends credence to the narrative of these three witnesses. [40] I find that there is no reason to doubt the truthfulness of this evidence. Mr. XXXX evidence, and that of the Appellants was that the whole community has a stake in performing FGM on XXXX, as all other female children have been, because they believe otherwise great misfortune and generational curses will befall members of the community. I find on a balance of probabilities that the Okpueze community would continue to use their network to search for the Appellants in different parts of Nigeria. CONCLUSION [41] Based on an independent review of all the evidence, including listening to the audio recording, I conclude that there is a serious possibility that the Appellant's family, kinsmen and/or members of some branch of the Okpueze Town Union Meeting will locate and cause harm to them. Given that there has been one attempt to actually carry out FGM without the parent's knowledge or consent, I find that there is a reasonable chance that such harm may occur before police or any other entity can protect the Appellants. I conclude that there is an objective basis for the Appellant's fear and that there is inadequate state protection for them, in these particular circumstances. Therefore the Appellants do not have an IFA in Nigeria. [42] The appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) "Joseph Wyger" Joseph Wyger December 20, 2019 Date 1 Tung v Canada (Minister of Eployment and Immigration), (1991) 124 N.R. 388 (F.C.A.) 2 Law of Refugee Status, James C. Hathaway and Michelle Foster, 2nd Edition, 2014, at p. 99. 3 Exhibit RPD-1, RPD Record, Exhibit 6, Personal Documents C-9, at p. 128. 4 Ignacz et. al.v. The Minister of Citizenship and Immigration, 2013 FC 1164 at para. 22 5 Exhibit RPD-1, RPD Record, Exhibit 6, Personal Documents C-14, at p. 23. 6 Exhibit RPD-1, RPD's Record, Exhibit 5, National Documentation Package (NDP) for Nigeria (April 30, 2019), item 5.12. 7 Exhibit RPD-1, RPD's Record, Exhibit 5, National Documentation Package (NDP) for Nigeria (April 30, 2019), item 5.28. 8 Exhibit RPD-1, RPD's Record, Exhibit 5, National Documentation Package (NDP) for Nigeria (April 30, 2019), item 10.8. 9 Exhibit RPD-1, RPD's Record, Exhibit 5, National Documentation Package (NDP) for Nigeria (April 30, 2019), item 5.28. 10 Exhibit RPD-1, RPD Record, Exhibit 6, Personal Documents C-11 & 12, at p. 17 & 19, 11 Exhibit RPD-1, RPD Record, Exhibit 6, Personal Documents C-10, at p. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15125 TB9-15126 / TB9-15127 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