TB9-10382

RAD File / Dossier de la SAR : TB9-10382 TB9-10383 / TB9-10384 / TB9-10385 TB9-10386 Private Proceeding / Huis clos Reasons and Decision ? Redetermination of Appeal Motifs et decision ? Nouvel examen de l'appel Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 3, 2021 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the persons who are the subject of the appeal Ezinwanne Jacqueline Ozor Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow the appeals. [2] XXXX XXXX XXXX XXXX XXXX (the Principal Appellant or the PA), XXXX XXXX XXXX XXXX XXXX XXXX (the Minor Male Appellant or the MMA), XXXX XXXX XXXX XXXX XXXX XXXX (Minor Female Appellant #1 or MFA #1), XXXX XXXX XXXX XXXX XXXX XXXX (Minor Female Appellant #2 or MFA #2), and XXXX XXXX XXXX XXXX XXXX XXXX (Minor Female Appellant #3 or MFA #3) are citizens of Nigeria. [3] The PA gave birth to two sets of twins - the four Minor Appellants - through fertility treatments, which her husband's family considered to be a bad omen. The latter demanded that the Minor Appellants undergo spiritual cleansing rituals. For the Minor Female Appellants, these rituals would include female genital mutilation (FGM). When the PA relocated to Abuja, she was discovered by her father-in-law and was beaten. She then fled to Lagos, where she was found once again. The PA and her children fled Nigeria for the United States of America (USA) on XXXX XXXX, 2017. They entered Canada irregularly on XXXX XXXX, 2018. [4] The Refugee Protection Division (RPD) rejected the Appellants' claims, noting the material delay in leaving Nigeria, multiple trips to the USA, failure to make claims in the USA, and failure to corroborate the physical assault of 2017. The Panel found that the documentary evidence was insufficient to overcome the credibility concerns. [5] The Appellants contend that the RPD erred in characterizing their departure from Nigeria and their multiple trips to the USA. They further submit that the supporting documentation was not properly assessed, and the relevant Chairperson's Guidelines were not applied, thereby constituting a violation of the rules of natural justice. The Appellants assert that the RPD misapprehended the nature of the claim and failed to address the independent risk of the Minor Appellants. They are relying on new evidence and have requested an oral hearing. [6] The determinative issue in this appeal is the Appellants' credibility. After reviewing the record, I find that the RPD erred in assessing the Appellants' credibility. The PA's testimony was generally consistent. There were no material inconsistencies in the supporting documentation. The Appellants established a serious possibility of persecution based on their membership in a particular social group. The MFAs face a serious possibility of gender-based violence (e.g. FGM). The risk of the PA and the MMA is grounded in their relationship to the MFAs. DECISION [7] The appeals are allowed. I substitute my own decision that the Appellants are Convention refugees. BACKGROUND [8] This appeal is a return from a judicial review application in Federal Court. In a decision dated March 8, 2021, the Court found that the original RAD decision engaged in a microscopic examination of the evidence, inexplicably used the PA's personal experience of undergoing FGM to find that the PA's credibility was undermined, failed to clearly show how the Gender Guidelines were actually applied, and failed to reach an intelligible conclusion with respect to the date of the submitted police report. As a result, the judicial review application was granted, and the matter was remitted to the RAD for reconsideration. NEW EVIDENCE The applicable law [9] According to the law,1 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If none of these criteria are satisfied, the inquiry ends there; the evidence cannot be admitted. If the evidence meets one or more of these requirements, I must then decide if the evidence is credible, relevant, and new.2 The evidence will not be considered if it lacks credibility as to its source and the circumstances in which it came into existence or if it is incapable of proving or disproving a relevant fact to the refugee claim.3 The evidence will also be excluded if it fails to prove a new fact, event, or circumstance arising after, or unknown at the time of, the RPD hearing. [11] The Appellant bears the responsibility of making full and detailed submissions about how the proposed new evidence meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the claim. The evidence presented by the Appellants is accepted [12] The new evidence consists of a bank statement and a copy of the passport of the PA' s husband that shows a Nigerian entry stamp. [13] The affidavit of the PA's husband was afforded no weight by the RPD because it did not include corroborative evidence that he returned to Nigeria after escorting the Appellants to the USA in 2017. Only the biographical details page of the passport of the PA's husband was presented to the RPD.4 The new evidence purports to directly respond to the RPD's specific findings. [14] Prior to the RPD's decision, the Appellants could not have been reasonably expected to present corroborative documentation of the travel history of a non-claimant. The Appellants could not have reasonably anticipated that such evidence would be determinative in evaluating the weight that the affidavit should be afforded. Therefore, the statutory test set out at subsection 110(4) is satisfied. [15] Furthermore, the new evidence is credible as to source and circumstances. The passport copies appear to correspond with the details provided to the RPD. The stamped pages contain a legitimizing imprint, which matches the passport number of the PA's husband. The bank statements contain the letterhead of the banking institution, the name of the PA's husband, and account transactions between XXXX XXXX, 2017 to XXXX XXXX XXXX 2017. [16] The new evidence is relevant in that it seeks to corroborate the Appellants' allegation that the PA's husband escorted them to the USA and subsequently returned to Nigeria. The evidence's newness stems from the fact that it squarely responds to a specific, unanticipated finding in the RPD's decision. [17] For all of these reasons, the new evidence is admissible. An oral hearing is not permitted [18] The admissible new evidence does not raise a serious credibility issue. Pursuant to subsection 110(6) of the IRPA, an oral hearing is not permitted. ANALYSIS [19] My role is to look at all of the evidence and decide if the RPD made the correct decision.5 The RPD partially erred in evaluating the Appellants' credibility [20] The RPD made multiple adverse credibility inferences because: i. the Appellants failed to provide a reasonable explanation for the material delay in leaving Nigeria; ii. the PA, who had experienced FGM herself, travelled to the USA in 2016 and 2017, and returned to Nigeria, without attempting to make an asylum claim in the USA; iii. there was a lack of credible evidence to corroborate the XXXX 2017 assault of the PA in Abuja; iv. the submitted police report was issued eighteen months after the PA allegedly went to the police station; and v. the Appellants failed to credibly establish that the PA's marriage has broken down [21] The RPD concluded that the remaining documentary evidence did not overcome the credibility concerns. [22] However, I find that the RPD failed to fully appreciate that the Appellants' fear of persecution only crystallized during the summer of 2017. It was then that the PA left her husband to live with her sister in Abuja, and was subsequently found and physically assaulted by her father-in-law. [23] The PA's allegations have been generally consistent. Although her in-laws had previously informed her that at the age of 5, the Minor Appellants would be subjected to twin sacrifice and circumcision, "We [the PA and her spouse] didn't care about them. Life was good and my husband and I continued to work and raise our children together."6 After returning from the USA in 2017, the PA attended the funeral of her husband's grandmother. She was confronted again by her in-laws who expressed their renewed intent to carry out the rituals. The PA's husband was threatened by his own family. Only then did the PA flee to Abuja with the Minor Appellants. [24] The RPD erroneously reasoned that the PA should have known better. The Panel essentially found that given her personal traumatic history with FGM in addition to the gravity of the threat of harm, the PA acted unreasonably by not fleeing at the earliest opportunity. However, this type of implausibility finding is problematic because it fails to consider the particular challenges faced by women in advancing credible refugee claims. The PA was not familiar with the intricacies of her husband's family rituals. On one occasion, when she raised her opposition to the traditions, she was quieted by her in-laws, who instructed her not to speak. [25] The PA's personal experience with FGM would not necessarily prompt a quicker departure, because the reactions of women claimants fearing gender-based persecution can be so varied. Every case must turn on its own facts. For this reason, I find that it is plausible that the PA - a Nigerian woman in a childless marriage for over 13 years, who then gave birth to two sets of twins in a span of 13 months - was not overly concerned about the threats from her in-laws prior to XXXX 2017. [26] The PA's travel history merely confirms her allegations; her subjective fear only arose in mid-2017. In XXXX 2016, she travelled to the USA with her husband, when one set of twins was over the age of five. In XXXX 2017, all four Minor Appellants were over five years old, when the PA left Nigeria unaccompanied. In light of the threats of harm against the Minor Appellants, the PA's voluntary trips, however brief, cannot be reconciled with a genuine fear of persecution at those times. This is precisely why I find that the Appellants' fears only crystallized in XXXX 2017. [27] It remains noteworthy, however, that despite the PA's absences in 2016 and 2017, the Minor Appellants were unharmed. This is a material factor when evaluating the objective basis of the risk of harm. After reviewing the evidence, I find that this evidence does not impugn the PA's credibility in terms of her honesty or believability. It does however detract from the reliability or trustworthiness of the alleged risk posed by the agents of harm. The PA's in-laws had ample opportunity to harm the Minor Appellants during the multiple occasions that their most vocal opponent - the PA - was outside of the country. Because the harmful rituals were not carried out in the PA's absence, I can infer that it is unlikely that they would have occurred without her presence and approval. [28] As a result, I weighed the PA's travel history alongside her testimony about the XXXX 2017 attack, and the affidavits of her husband and her sister. I note that in XXXX 2017, the tone of the threats appears to have changed; the PA's father-in-law began to intimate that the rituals would be forcibly performed, if necessary. The following month, after refusing to disclose the whereabouts of the Minor Appellants, the PA was severely beaten by her father-in-law and his associates in Abuja. Given these facts, I again find that XXXX 2017 marked a significant shift in the nature of the threat of the harm. [29] Overall, the Appellants' evidence was generally consistent, and the RPD did not provide sufficient reasons to disregard the supporting documentation. [30] The fact that the police report was issued on XXXX XXXX, 2018 (eighteen months after the reported incident) affects the weight afforded to the report. However, given the PA's candid and forthright testimony, I find that the events described in the report did occur, as alleged. [31] Simply because the Appellants did not originally submit evidence to confirm that the PA's husband returned to Nigeria after accompanying the Appellants to the USA, does not mean that the affidavit of the PA's husband could not be relied upon. A lack of material inconsistencies arising from the affidavit coupled with the PA's consistent testimony leads to a finding, on a balance of probabilities, that the PA's husband returned to Nigeria, as alleged. This conclusion is further supported by the new evidence submitted in this appeal: the passport pages include a Nigerian entry stamp for the relevant period. [32] Furthermore, the affidavit of the PA's husband confirms that although the couple are still together, the marriage is seriously strained. Their communication is limited to issues affecting their children. I have no reason to doubt that this marital breakdown has occurred. [33] For all of these reasons, the RPD erred in assessing the Appellants' credibility. The Appellants have a well-founded fear of persecution [34] After independently assessing the evidence, I reach the following findings: i. The Appellants' fear crystallized when the PA returned to Nigeria in mid-2017 and subsequently faced more severe threats from the PA's father-in-law. ii. The PA was attacked, as alleged, by her father-in-law in Abuja. iii. The twin sacrifice rituals that the Appellants' fear include FGM and tribal markings (cuts) on the bodies of the Minor Appellants.7 [35] Given these facts, the Appellants have provided sufficient evidence to establish a serious possibility of persecution. They are Convention refugees based on their membership in a particular social group. The Minor Female Appellants fall into the category of women who fear gender-based violence (e.g. FGM). The actual harm inflicted on the PA in Abuja is tied to her status as the mother of female children who have been threatened with gender-based violence. [36] The MMA also faces a forward-facing risk of persecution due to the tribal markings that are part of the twin sacrifice rituals. His risk is specifically and inextricably linked to his twin sister, the MFA #1, since they are the same age. The MMA's fear is thus legitimately tied to being the close relative of a woman who faces gender-based violence. [37] I find that adequate state protection would not be available in this case. It is unlikely that the Nigerian authorities would take the threats of violent traditional rituals seriously. In fact, the PA and her spouse went to the police in mid-2017, but to no avail; the police refused to take further action because the agents of harm had not yet inflicted any harm.8 [38] Lastly, I recognize that the agents of harm pursued and found the PA, after she fled to both Abuja and Lagos. As a result, I am satisfied that no viable internal flight alternative exists for the Appellants. CONCLUSION [39] The appeals are allowed. I substitute my own decision that the Appellants are Convention refugees. (signed) Joseph W. Richards II Joseph W. Richards II November 3, 2021 Date 1 Subsection 110(4), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 64; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, at para. 13. 4 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 221. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Exhibit RPD-1, RPD Record, Exhibit 7, Basis of Claim (BOC) narrative, at pp. 71-72 (para. 8); Audio Recording of the RPD Hearing, at 00:28:50. 7 Audio Recording of the RPD Hearing, at 00:25:50. 8 Ibid., at 01:00:30. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TB9-10382 TB9-10383 / TB9-10384 / TB9-10385 TB9-10386 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français