TB9-07317

RAD File / Dossier de la SAR : TB9-07317 TB9-07318 / TB9-07319 / TB9-07320 TB9-07321 / TB9-07322 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX 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 July 28, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the persons who are the subject of the appeal Solomon Orjiwuru Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant), XXXX XXXX XXXX (Associate Appellant), and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Minor Appellants), citizens of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated February 20, 2019, rejecting their claims for refugee protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellants alleged before the RPD that, upon return to Nigeria, they will be harmed by members of the Fulani herdsmen. The Appellants state this is due to the fact that the Fulani herdsmen threatened the Appellants after the Principal Appellant provided information to the police that led to the arrest of Fulani herdsmen members. [4] The Appellants' applications for refugee protection were heard on November 7, 2018. By a decision of February 20, 2019, the RPD rejected the claims. The RPD found that the Appellants' failure to claim asylum in the United States of America (USA) indicated a lack of credibility, and the RPD found that the Appellants have a viable Internal Flight Alternative (IFA) in Lagos. [5] The Appellants submit that the RPD erred in its credibility assessment by failing to provide adequate reasons for rejecting the Appellants' explanations for not seeking protection in the USA. They also submit that the RPD erred in its IFA analysis because adequate state protection is not available in Lagos, the Appellants will not be safe in part due to the impact of online services and social media, and they would face hardship in finding employment, housing, practicing religion, discrimination due to ethnicity, and violence. ROLE OF THE RAD [6] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract deference. Unless specifically stated below, I have applied a correctness standard. ANALYSIS First new evidence application rejected [7] In support of their appeal, the Appellants initially submitted two documents as new evidence. I will assess these documents below. To be accepted under subsection 110(4) of the IRPA, evidence must have arisen after the rejection of the claim, or must not have been reasonably available at the time of rejection, or that the person could not have reasonably been expected in the circumstances to have presented it at the time of rejection. The new evidence must meet at least one of these criteria to be accepted. [8] If the evidence passes subsection 110(4) of the IRPA, I must then assess the evidence in accordance with the Federal Court decisions of Raza and Singh. The documents must be credible, relevant, and new. All three criteria must be met. [9] The Appellants provided two articles from 2012 about Fulani herdsmen activities in Lagos. These are rejected as they do not meet any of the three criteria under subsection 110(4) of the IRPA. The articles are dated in 2012, therefore the evidence did not arise after the rejection of the claim. Lagos was raised as a potential IFA at the hearing in November 2018 and the decision was not rendered until approximately three months later. Therefore, I find that the evidence was reasonably available at the time of rejection and that the Appellants could have made reasonable efforts to provide the articles at the time of rejection, and could have been reasonably expected to provide them at the time of rejection. Therefore, the articles are rejected, as they do not meet the criteria under subsection 110(4) of the IRPA. Subsequent Rule 29 Application [10] In response to correspondence from the RAD dated June 15, 2020 allowing the submission of new evidence pursuant to Rule 29 without an application, the Appellants submitted the following new evidence, along with the Principal Appellant's affidavit dated July 11, 2020 and a Rule 29 Application dated July 11, 2020, which I have considered in my analysis: a. Exhibit A - letter of XXXX XXXX XXXX, dated July 6, 2020; b. Exhibit B - photographs showing attacks on MrXXXX XXXX family and XXXX XXXX; c. Exhibit C - Online article: Amotekun: Don't back down, Nigerians tell South-West governors, Premium Times, dated January 26, 2020; d. Exhibit D - Online article: Amotekun, a masterstroke for this time, The Guardian, dated January 21, 2020; e. Exhibit E - Online article: Daughter of Afenifere leader murdered, group blames armed herdsmen, Premium Times, dated July 12, 2019; f. Exhibit F - Online article: Police Arrest Alleged Killers of Afenifere Leader's Daughter, ThisDay, dated April 17, 2020; g. Exhibit G - Online article: Living under siege of herdsmen in South-South, The Guardian, dated February 19, 2020; h. Exhibit H - Online article: Herdsmen kill farmer, palm wine tapper in Edo State, dated February 20, 2020; i. Letter from XXXX XXXX XXXX, dated July 17, 2020; and j. Submissions regarding IFA, dated July 18, 2020. [11] For the reasons that follow, only items/exhibits c, d, and f are admitted as new evidence. [12] I find the articles listed as items/exhibits c, d, and f, meet the requirements of Rule 29 as they are relevant to the proposed IFA of Lagos, they have some probative value, they bring new evidence about the activity of the Fulani herdsmen in Nigeria's South-west states, and as the articles all post-date the date the appeal was perfected, I do not find they could have been provided with the Appellants' record. I also find the articles meet the requirements of section 110(4) and the Singh/Raza factors as the articles post-date the rejection of the claim, appear credible on their face, and are relevant and new as discussed. Therefore, they are admitted as new evidence. [13] The remaining documents, items/exhibits a, b, e, g, h, and items i and j from the list above, are rejected as new evidence as I find they do not satisfy the requirements of Rule 29. [14] Item/Exhibit A - letter of XXXX XXXX XXXX, dated July 6, 2020 and Item i. letter from XXXX XXXX XXXX, dated July 17, 2020: I find these letters have low relevance and probative value as they primarily refer to incidents that did not occur in Lagos. Though the author refers to XXXX XXXX XXXX XXXX being killed in Lagos, he notes that the Fulani herdsmen only discovered his whereabouts through his son. There is no evidence before me that the Appellants' have told or will tell their family members of their residence in Lagos. There is also no evidence that members of the Fulani herdsmen have asked the Appellants' family members in Nigeria about their whereabouts, or that family members have been harmed by the Fulani herdsmen due to not providing details about the Appellants' whereabouts. I find these factors outweigh the new evidence contained in the letters and that they could not have been provided with the Appellants' record. [15] Item/Exhibit B - photographs showing attacks on Mr. XXXX family and XXXX XXXX: I find these photographs have no relevance and probative value as they refer to incidents outside of Lagos. I find these factors outweigh the new evidence contained in the photographs and that they could not have been provided with the Appellants' record. [16] Exhibit E - Online article: Daughter of Afenifere leader murdered, group blames armed herdsmen, Premium Times, dated July 12, 2019, Exhibit G - Online article: Living under siege of herdsmen in South-South, The Guardian, dated February 19, 2020, and Exhibit H - Online article: Herdsmen kill farmer, palm wine tapper in Edo State, dated February 20, 2020: I find these articles have low relevance and probative value as they refer to incidents outside of Lagos. I find these factors outweigh the new evidence contained in the articles and that they could not have been provided with the Appellants' record. [17] Item j - Submissions regarding IFA, dated July 18, 2020: I find these submissions are relevant and probative; however, I do not find that they bring new evidence, I find they could have been provided with the Appellants' record with reasonable effort, and I find these factors outweigh their relevance and probative value. The submissions are regarding the reasonableness of Lagos as an IFA, and specifically the topics of the Appellants' ethnic groups, language, access to employment, housing, healthcare, education, and indigeneship. I find the submissions are duplicative of the submissions already provided in the Appellants' Record, and they could have been provided at that time. [18] As the new evidence admitted does not meet the requirements of section 110(6), the Appellants' request for an oral hearing is denied. The RPD did not err in its IFA assessment [19] In order to determine whether a viable IFA exists, the RAD must consider the two-prong test outlined in Rasaratnam3 and Thirunavukkarasu.4 The test to be applied in determining whether there is a viable IFA is: a) The RAD must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellants being persecuted in the part of the country to which it finds an IFA exists;5 and, b) Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the Appellants, for them to seek refuge there.6 [20] Both prongs must be satisfied to find that the Appellants have an IFA. The Appellants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA area. In this case, the proposed IFA area is Lagos, Nigeria. [21] The Appellants argue that the RPD erred in several respects in its analysis under both prongs of the test for whether the Appellants possess an IFA in Lagos. Prong 1: Is there a reasonable chance of persecution in Lagos? The RPD's Findings [22] The RPD found that the Appellants had a viable IFA in Lagos. The RPD found that on a balance of probabilities, the Appellants would not face a risk to life or risk of cruel and unusual treatment or punishment or danger of being tortured by the Fulani herdsmen in Lagos, based on "insufficient evidence to indicate that the Fulani herdsmen are present in the City of Lagos killing people."7 The Appellants' Arguments [23] The Appellants argue that the RPD erred in its assessment. They argue that the agents of persecution are motivated and have the means to locate them, as they did so at their homes in XXXX and XXXX XXXX, and that they will continue to do so if the Appellants were to relocate to Lagos. They further argue that the type of work or roles the Principal Appellant would engage in, according to his XXXX background, would be ones that would increase his visibility to the public, which means he would always face a risk of being discovered by the agents of persecution because the industry is small and everyone comes to know one another. They argue the attacks by the Fulani herdsmen have extended to the South of Nigeria and the new evidence submitted supports that attacks occur in Lagos. [24] The Appellants also submit that the second prong of the IFA test cannot be satisfied where the possibility of state protection is in doubt; however, I have understood their submissions to apply to the first prong. They submit that it was not unreasonable for the Appellants to conclude that it was highly possible that the police were bribed to aid the agents of persecution. They argue that adequate and effective state protection would not be available in Lagos. [25] The Appellants also argue that by taking up employment, going to school, and practicing their faith, they risk being found by their agents of persecution. They also argue that they cannot work or communicate with others without using the internet and social media, which, in addition to the era of smartphones and mass data surveillance, also puts them at risk of being found by their agents of persecution. They argue that there is no reason to believe the agents of persecution will not be able to find the Appellants in Lagos, given that they found them in XXXX. The RAD's Assessment [26] I reject the Appellants' arguments and find the RPD did not err. First, I agree with the RPD, in part. The RPD found there is insufficient evidence to suggest that the Fulani herdsmen are active in Lagos. The new evidence admitted refers to the presence of Fulani herdsmen in South-west states; however, there is no information about their activity in Lagos as compared to the other states. I find there is an insufficiency of evidence to suggest the Appellants' risk under section 97 would reach the balance of probabilities threshold. [27] As to the Appellants' argument that the Fulani herdsmen will find them in Lagos because they found them in XXXX XXXX, I disagree. Assuming without determining their allegations about being found in XXXX XXXX are true, there is no evidence before me that the Fulani herdsmen have the ability to locate the Appellants in Lagos, which the RPD noted is a city with a population of over 8 million people, or that the Fulani herdsmen have attempted to locate the Appellants since they left Nigeria, or that the Fulani herdsmen would even know when the Appellants return to Nigeria. [28] Further, with regard to the Appellants' allegation that the police were bribed to aid the agents of persecution, even if true, I cannot find, on a balance of probabilities, that the agents of persecution and the police in Nigeria will even know the Appellants are living in Lagos or when they return. Therefore, I find the Appellants have presented insufficient evidence that their agents of persecution have the motivation and means to locate them in Lagos. [29] The Appellants argue that the type of work the Principal Appellant would engage in would put him at risk of discovery by the agents of persecution. However, I find there is no requirement that the Principal Appellant engage in XXXX XXXX in Lagos. He is educated and had a previous career XXXX XXXX XXXX XXXX. Therefore, there is no need for him to be involved in the XXXX XXXX. [30] With regard to the Appellants' arguments that their day-to-day lives and the internet and social media would put them at risk of being found, I disagree. Lagos is a city with a population of over 8 million people and there is no evidence to suggest the agents of persecution would know to look for the Appellants there. With regard to the suggestion that any risk would arise as a result of the Appellants' use of the internet and social media, I find this is speculative and does not mean they face a reasonable chance of persecution. The Appellants retain control over what they post online. Even if some information appears online, I find, on a balance of probabilities, that it would be unlikely to come to the attention of the agents of persecution, and further, that it would be unlikely to lead them to the Appellants' location. The Appellants can also exercise privacy settings in their online accounts, thereby avoiding the possibility that their posts would come to the attention of their agents of persecution. I find that exercising such privacy settings would not result in an unreasonable restriction on their daily online activities. [31] Based on this analysis, I find the Appellants have not established, on a balance of probabilities, that they would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture in Lagos. Having found this, I do not find it necessary to address whether adequate state protection would be available to them. Prong 2: Is it reasonable in all the circumstances for the Appellants to seek refuge in Lagos? The RPD's Findings [32] The RPD found Lagos to be reasonable for the Appellants as it is a large metropolitan city with a large population and it is easily accessible, the adult Appellants have post-secondary education, previous work experience, speak English, and found that they would be able to find employment, churches, hospitals, and schools for the Minor Appellants, though they may face some difficulty at first in finding employment. The Appellants' Arguments [33] The Appellants argue that the RPD erred in its assessment under the second prong of the test. In particular, they submit that the Principal Appellant could not return to Nigeria as a XXXX without being harassed or persecuted by his agents of persecution. They also argue they would face financial difficulties given the high cost of living in Lagos and high rents. They also argue they will face discrimination because of their ethnic background. They also argue the Principal Appellant's wife would face undue hardship in Lagos in the areas of employment and housing, and that she would face violence. The RAD's Assessment [34] I find that the RPD did not err in concluding that the conditions in Lagos were not such that it would be unreasonable, in all circumstances, for the Appellants to seek refuge in that city. [35] With respect to the particular circumstances of the Appellants, I find the RPD's analysis correctly considered a variety of factors, as assessed below. [36] Employment: The adult Appellants both have post-secondary education, the Principal Appellant has many years of work experience, and his wife did not work in Nigeria. Though they argue the Principal Appellant could not return to Nigeria as XXXX XXXX without facing a risk, I find there is no requirement for him to be XXXX XXXX in Nigeria. The Appellants have not produced any evidence to suggest they could not obtain employment in Lagos. The Appellants have shown themselves to be industrious and capable, having relocated to Canada via the USA. There is no evidence that they would not be able to do the same when relocating to Lagos, a city with which they would have more familiarity than a city in North America. Given the profile of these Appellants and their circumstances, I find, on a balance of probabilities, that they would not have a more difficult time obtaining employment in Lagos than other Nigerians. Challenges or difficulties the Appellants may face in finding employment are not such that it would be unreasonable for them to relocate to Lagos. Therefore, on the totality of the evidence before me, I do not find that the issue of employment makes the IFA unreasonable for these Appellants. [37] Cost of Living and Accommodation: The Appellants argue that the cost of living in Lagos is high, rent is expensive, and landlords typically ask for two to three years' rent in advance. The Appellants have not provided any evidence that they would not be able to obtain housing in Lagos. Though it is reported that housing is expensive,8 given the profile of these Appellants and their circumstances, I find, on a balance of probabilities, that they would not have a more difficult time obtaining housing in Lagos than other Nigerians. The Appellants have not provided evidence to suggest they would not be able to afford housing in Lagos. The Appellants were more than capable of relocating a greater distance to Canada via the USA. In doing so, they have demonstrated they are resourceful individuals capable of relocating. [38] Discrimination: I have considered the Appellants' arguments and objective evidence about discrimination. It is reported that with respect to discrimination generally, local governments discriminated against ethnic groups not indigenous to their areas;9 however, it is also reported that indigeneship status is less important in Lagos because there has been an overwhelming number of migrants to this city.10 Therefore, though I find the Appellants may face some discrimination in Lagos on the basis of indigeneship, I do not find that it makes Lagos an unreasonable IFA for them. [39] Religion, Transportation, and Travel: Furthermore, I agree with the RPD's findings, which are uncontested in this appeal, that there are churches in Lagos and that it is easily accessible, therefore it is likely the Appellants will be able to find a community in which they can freely practice their faith in Lagos. Lagos also has an airport, so it is not necessary for the Appellants to travel via where their agents of persecution reside. [40] Violence: Finally, the Appellants argue that they cannot relocate to Lagos because there is a risk of violence to the Principal Appellant's wife. The quote they provide from the National Documentation Package (NDP) refers largely to the risk faced by women who head their own households and do not have a male partner, which is not applicable to these Appellants. Therefore, I find the Appellants have not established they possess a particular risk profile that makes the IFA of Lagos unsafe for them. [41] The onus is on the Appellants to establish, based on objective evidence, that the relocation to the IFA is unreasonable,11 and I do not find that they have done so. [42] Based upon the Appellants' circumstances, including age, education, work experience, language capabilities, and religion, I find there are no serious social, cultural, familial or economic barriers to the Appellants relocating to Lagos. The proposed IFA city is not unreasonable in their circumstances. The Appellants' argument that the RPD erred in its assessment of the Appellants' credibility is not determinative in this appeal [43] The Appellants argue that the RPD erred in finding they lacked credibility due to their failure to claim asylum in the USA. However, since I find the Appellants have a viable IFA in Lagos, I need not address this argument. The availability of an IFA in Lagos is determinative of this appeal. CONCLUSION [44] After conducting its own analysis of the record, including the audio recording, the RAD finds that the RPD did not err in finding that the Appellants have a viable IFA in Lagos. The RAD finds that there is no serious possibility that the Appellants would be persecuted, or that the Appellants would be personally subjected, on a balance of probabilities, to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment in Lagos. Furthermore, the Appellants have not provided sufficient evidence that relocating to the IFA of Lagos is unreasonable in their circumstances. Therefore, the RPD's final determination that the Appellants are not Convention refugees or persons in need of protection is correct, and this appeal is dismissed. [45] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "I. Singh" I. Singh July 28, 2020 very good use of heading Date Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 3 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 4 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 6 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 7 Exhibit RPD-1, RPD Record, Reasons and Decision, at p. 8, para. 22. 8 National Documentation Package (NDP) for Nigeria (29 November 2019), Response to Information Request (RIR) NGA106362, Item 5.9. 9 Ibid. 10 NDP for Nigeria (29 November 2019), RIR NGA106361, Item 13.1. 11 Flores Argote v. Canada (Citizenship and Immigration), 2009 FC 128 (CanLII), at para. 12. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07317 TB9-07318 / TB9-07319 / TB9-07320 TB9-07321 / TB9-07322 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