TB6-02571

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 : TB6-02571 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 10, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal, and she has requested an oral hearing. The Appellant further requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that the Appellant is either a Convention refugee or a person in need of protection. Alternatively, the Appellant requests that the matter be remitted to the RPD for reconsideration by a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged she is at risk of harm from members of her late husband's family. The issue is inheritance rights to her late husband's estate. She further alleged that her late husband's will indicates that she committed adultery and was trying to kill him, and, as a result, she was cut out of the will. She alleged as well her husband's family mistreated and threatened her and accused her of being a witch. Her late husband's property was willed to her two sons and not to his family. The family took the matter to court. The Appellant complained about the harassment to the police, but they told her it was a family matter. [4] The Appellant started living with her common-law partner, XXXX, after her husband's death, and they travelled to the United States on vacation in XXXX 2015. While in the United States, the Appellant was informed that the family was demanding she return. XXXX returned to Nigeria on XXXX XXXX, 2015 to determine what her late husband's family intended to do. He contacted the Appellant telling her that there were threats to her life and that, if she did not return, the family and XXXX XXXX, in particular, would use contacts in the United States to force her to return. [5] The Appellant contacted XXXX XXXX, a member of her late husband's family, and he accused her of using witchcraft to make his nephew marry her, leave his property to her and that she probably had killed her husband. He indicated he would arrange to have her arrested for witchcraft. XXXX told the Appellant not to come home and arranged for an agent to smuggle her into Canada. The Appellant alleged that XXXX XXXX is a retired police chief and the police will not go against him. The Issues [6] The panel indicated that the determinative issues in regard to this claim are credibility and internal flight alternative (IFA). [7] The Appellant submits the issues in this appeal are the following: (a) whether the panel's credibility finding was reasonable; (b) whether the family erred in its assessment of the documentary evidence; (c) whether the panel erred in its internal flight alternative analysis; and (d) whether the appeal can succeed on the basis of the newly submitted documents. The Role of the RAD [8] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [9] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [10] In this regard, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [11] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is a "palpable and overriding error". [12] A recent decision of the Federal Court of Appeal has confirmed the central elements of Huruglica.2 The Court held that the RAD should use the correctness standard with respect to questions of fact, law and mixed fact and law. The RAD is to intervene when the RPD is wrong in fact, law and mixed fact and law. The Court further stated that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact and mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. The Court stated as well that an appeal to the RAD is not a true de novo proceeding. It does not start anew, and the original decision is not ignored in all respects. [13] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [14] The RAD notes that the Appellant provided a submission concerning the Standard of Review. The RAD has stated above its view as to the role of the RAD in this appeal. Admissibility of Evidence Presented on Appeal [15] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of the claim. [16] The Appellant has submitted an affidavit from XXXX XXXX, a lawyer, stating that the Appellant contacted his law firm in XXXX 2015, seeking help in obtaining a copy of her late husband's will. The affidavit is dated XXXX XXXX 2016.3 [17] The Appellant further submits a copy of a letter sent by the principal partner of the law firm to the Ministry of Justice dated XXXX XXXX 2015. The letter requests that a copy of the will of the Appellant's late husband be released.4 [18] The Appellant submits as well a copy of a letter from the Ministry of Justice dated XXXX XXXX 2016, indicating that a copy of the will is attached.5 [19] The Appellant also submits a copy of her late husband's will.6 [20] The RAD notes the Appellant testified that she had sent a letter requesting a copy of the will in XXXX 2015, but she had not as yet received a reply. The RAD further notes the affidavit confirms that the Appellant sought the help of his law firm in XXXX 2015, and the letter from the principal partner confirms a request to the Ministry of Justice. The letter from the Ministry of Justice indicates the will was not released until XXXX XXXX 2016. The RAD finds that the delay in obtaining the will and its release on the day of the RPD's decision raises a doubt about its authenticity. The RAD further finds, however, that there is insufficient evidence on which to challenge the authenticity of these documents. As the Appellant could not have reasonably been expected to provide these documents before the RPD's determination of the case, the documents meet the statutory requirement, and therefore the documents are admitted as new evidence. Application for an oral hearing [21] The Appellant asks that an oral hearing be held, pursuant to subsection 110(6) of the IRPA. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and, if accepted, would justify allowing or rejecting the refugee protection claim. [22] The RAD notes that, although the new documents provide a sufficient basis to challenge one of the panel's negative credibility findings, they do not in themselves justify allowing or rejecting the claim. The RAD notes that, in addition to credibility, the availability of an IFA is a determinative issue in this claim. As noted below, the RAD concurs with the panel's finding that an IFA is available to the Appellant. The application for an oral hearing is therefore rejected. Credibility The Appellant's Knowledge of English [23] The panel noted the Appellant requested a XXXX interpreter for the hearing and noted she indicated in her Basis of Claim (BOC) form that she only spoke XXXX. The panel further noted that much of the Appellant's documentary evidence was in English, and she was asked if she spoke and read English. She responded that she did. The panel noted that it was clear in the hearing that the Appellant understood English and concluded that she sought to minimize her proficiency in English to obfuscate the issues and mislead the panel. [24] The Appellant submits that, although she speaks and understands English, the use of a XXXX interpreter was meant to aid in her level of comfort. The Appellant further submits that Refugee Appeal Division Rules indicate that an interpreter will be provided on request. The Appellant submits as well that the issue is peripheral to the core of her claim. [25] The RAD agrees with the Appellant and finds that the panel has provided insufficient evidence for its conclusion that the Appellant sought to obfuscate the issue and mislead the panel. Power of XXXX XXXX [26] The Appellant alleged her late husband's XXXX was a former police officer. She was asked for details as to his profile, and she could not provide them. The Appellant testified that she had been told he had worked for the police and had connections. The panel found it reasonable that if this man had such influence, there would be some specific details about his profile. The panel found the Appellant had not established this allegation and added this component to bolster her case. [27] The Appellant submits that she provided a reasonable explanation for her lack of knowledge of the details of XXXX XXXX police career and influence. The Appellant argues that her lack of information in this regard should not have been the basis of the panel's conclusion that she fabricated this information in order to bolster her claim. The Appellant further argues the panel's finding was purely speculative. [28] The RAD has reviewed the evidence in the record, including the hearing recording, concerning XXXX XXXX position and influence. The RAD notes that although the Appellant stated in her BOC that XXXX XXXX is a retired police chief, in her response to questioning in this regard in the hearing she testified she did not know his rank. [29] The RAD further notes that the panel questioned the Appellant as to why she failed to make a claim in the United States. The Appellant responded that the agent hired by her common-law partner gave instructions that "stems from the fact that my late husband's XXXX had boasted that he will use his international connections to fish me out of the United States..."7 The panel noted that there are 300 million people in the United States and 50 states, and the Appellant could have gone anywhere. The Appellant was asked how she could be found in this large population. She responded that was what XXXX XXXX said, and she believed he was well connected.8 [30] The RAD finds the Appellant's testimony regarding XXXX XXXX influence was vague. The RAD further finds the Appellant's alleged acceptance that this alleged influence allowed him to find the Appellant in the United States and force her to return to Nigeria strains credulity. The RAD finds the panel did not err in its finding in this regard. Will of Late Husband [31] The Appellant was asked if she had a copy of the will and evidence of the case before the Court. The Appellant explained that, because she had been thrown out of the house, she no longer had access to the documents. She further testified that she had sent a letter to request the documents but had not yet received a reply. The panel found the Appellant's explanation for not obtaining the documents not to be credible. The panel noted that the will was the cause of her problems. The panel noted the Appellant had three months since her arrival in Canada to obtain the documents and found her attempts to retrieve them to be insincere. The panel concluded the Appellant was not credible in her allegations that she has been targeted by her late husband's family or that she has been accused of being a witch. [32] The Appellant submits that this appeal should succeed based on the new evidence submitted in this regard. [33] As noted above, the RAD has admitted a copy of the will as well as correspondence that confirms the Appellant's effort to obtain the will in XXXX 2015. The RAD finds there was insufficient evidence to support the panel's finding that the Appellant was insincere in her efforts to provide a copy of the will. As noted above, the RAD further finds that the appeal does not succeed based on the new evidence alone. The RAD considers in this regard the issue of IFA below. Psychological Report [34] The panel indicated that the weight it gave to the report9 is diminished by the fact that the Appellant had not been a credible witness. The panel further indicated that the psychologist relied on the information given by the Appellant. The panel did not dispute the psychologist's findings but noted they were made from information provided by the Appellant. The panel assigned no weight to the report. [35] The RAD agrees with the Appellant that the panel should have reviewed this report on its own terms and assessed the impact of the psychologist's conclusions on its consideration of the Appellant's credibility. [36] The RAD has reviewed the psychological report and notes the psychologist's conclusions are largely based on the Appellant's self-reporting and also on the administration of one psychological test. The report indicates that the Appellant did not report severe cognitive problems but that "these may intensify at the refugee hearing". The report further indicates that the Appellant may have memory problems and difficulty understanding questions. The report notes that the "uncertainty of her immigration status is threatening". [37] The report further notes that the Appellant considers herself depressed, and it then concludes that she satisfies diagnosis criteria for major depressive disorder of moderate severity and post-traumatic stress disorder (PTSD). [38] The RAD has reviewed the transcript of the hearing and finds that the Appellant was able to fully participate in the hearing. The RAD further found that there is no evidence that the Appellant's testimony reflected any of the possible problems noted in the psychologist's report. The RAD notes that the psychologist indicated that such interviews generally last for one hour, and no evidence was provided that the interview on which the report is based lasted more than one hour. While the RAD does not challenge the psychologist's expertise, it is confused by a diagnosis of "XXXX XXXX XXXX" of "XXXX XXXX". The RAD notes as well that a single one-hour interview appears to be an inadequate basis for a diagnosis of so significant a psychological illness as PTSD. The RAD also notes the "Clinical Impression" section is very brief. [39] The RAD cites the decision of the Federal Court in Molefe, in which the Court stated that: "Expert opinion reports should not be given exalted status in administrative proceedings simply because they are prepared by a licensed profession".10 [40] As noted above, The RAD finds that there was no evidence of any constraint on the Appellant's ability to participate fully in the hearing as a result of the possible concerns noted in the psychological report. Rather, the transcript indicates that the Appellant responded to all questions asked and in some cases provided extensive and articulate answers. Internal Flight Alternative (IFA) [41] Although the panel found the Appellant not to be credible, it considered whether an IFA is available to her. The panel provided an analysis of the two-pronged legal test concerning an IFA, and it advised the Appellant at the beginning of the hearing that it proposed Abuja, Port Harcourt and Benin City as IFAs available to her. The Appellant responded that she could not relocate in these cities because she did not understand the local languages, that Boko Haram operated in Abuja, that she had no money, that she has memory problems, and she did not want to be separated from her children. The Appellant also alleged that XXXX XXXX was a retired police officer with influence. [42] In response to the panel's questions, the Appellant testified that she was in the trading business, and she bought stationery in Lagos and sold it to vendors locally. She alleged she would not be free to go to the market and provide supplies to shops. She also stated that she knew no one in the proposed IFAs. [43] The panel noted that English was one of the official languages of Nigeria, that the Appellant had more than an adequate knowledge of English, that the Appellant travelled thousands of miles to Canada where she also knew no one, and that she was an educated and sophisticated woman with an XXXX degree. The panel further noted that the Appellant ran her own business and supported herself before she met her common-law partner and indicated there was little evidence that the Appellant would not be able to establish a new business or find employment given her skills and education. [44] The panel noted that, while the Appellant did not want to be separated from her children, she is currently separated from them, and there is no guarantee they will be reunited in Canada. The panel further noted that the Appellant's common-law partner and his children are neither citizens nor permanent residents of Canada, and they have no right to come to Canada. The panel noted as well that there is no evidence that the Appellant's children and common-law partner could not relocate to the proposed IFA. [45] The panel cited Federal Court jurisprudence that holds that the threshold for a finding that a proposed IFA is "objectively unreasonable" is very high and that a claimant is required to produce actual and concrete evidence of conditions which would jeopardize life and safety in relocating to the proposed IFA. The panel found the Appellant has not provided such evidence. [46] The panel reiterated that the Appellant has not provided sufficient evidence that her late husband's XXXX has any influence or knowledge as to any of the proposed IFAs. The panel further noted that the Appellant has not established that she would be located in the proposed IFAs. The panel acknowledged that Boko Haram are in Abuja, but it noted that there is no evidence that the Appellant would be targeted, and any risk of harm in this regard is speculative. [47] The panel found that the Appellant had failed to establish that it would be objectively unreasonable for her to re-establish herself in the proposed IFAs. [48] The Appellant submits that the panel erred by not carrying out a thorough analysis of her subjective fear, and therefore the panel's finding in regard to an IFA was arbitrary and capricious. The Appellant further submits that the panel failed to properly consider her evidence regarding detection in Abuja, Port Harcourt and Benin City. The Appellant submits as well that the agent of persecution, XXXX XXXX, is a former police chief, and she fears he would use his influence to harm her. The Appellant notes in this regard that the unwillingness of the police in her home town to assist her was due to the influence of the agent of persecution. [49] The Appellant submits the police are pursuing her due to false accusations of witchcraft made against her. She therefore fears the police in addition to the agent of persecution. [50] The Appellant submits in regard to the second prong of the IFA test that the panel failed to properly consider her evidence as to the reasonableness of relocating in the IFA locations. The Appellant further submits in this regard that the panel failed to consider evidence of psychological issues and that the Appellant would require the support from healthcare professionals and her family. [51] The Appellant notes that the country documentary evidence cited by the panel also indicates that "attractive young single women in particular are very vulnerable to abuse and trafficking when relocating to another area without economic means or family networks". This evidence also indicates that economic constraints may require women who relocate to seek help from relatives, and social and cultural constraints may leave women stigmatized in their new communities. [52] The RAD is not persuaded by the Appellant's arguments in this regard. The RAD finds, on the basis of its own review and assessment of the evidence in the record, that it concurs with the panel's finding that a viable IFA is available to the Appellant in Abuja, Port Harcourt or Benin City. [53] The RAD finds the panel properly applied the two-pronged test cited in Rasaratnam.11 The RAD notes the burden of proof to show that no IFA is available rests with the Appellant. The Appellant submits that the panel failed to consider that her late husband's XXXX, the alleged agent of persecution, may use his influence to harm her. The Appellant noted in this regard that he used his influence with the police that resulted in their not offering assistance when she sought their assistance. [54] The RAD finds the Appellant has provided insufficient evidence as to the influence of this man, at least beyond the locality where the family lives. The RAD further noted the Appellant stated that the police refused to help her because it was a family matter and not because any member of the family intervened. The RAD finds that the Appellant provided insufficient evidence to confirm that the police are pursuing her. The RAD concludes that there is no persuasive evidence in the record which suggests that the agents of persecution, the XXXX and the family, have the ability to influence the authorities in order to locate the Appellant in a country as large as Nigeria with a population of approximately 170 million people. [55] The RAD notes that the evidence indicates the Appellant's late husband's family are principally interested in gaining control of the estate of her late husband. In that regard, they have taken the matter to court. The RAD further notes that the Appellant was disinherited by her late husband, according to the will disclosed as new evidence, and that the whole of the estate passed to the Appellant's two sons. The RAD finds, in this context, that it is difficult to understand why the family would have any further interest in the Appellant after she was driven out of the family home. [56] The RAD notes the panel responded in its Reasons to the Appellant's explanation as to why she could not relocate in any of the proposed IFA localities. The RAD concurs with the panel's findings in this regard. The RAD finds that the Appellant's knowledge of English, one of Nigeria's national languages, will allow her to settle in any of the large cities proposed as IFAs. The RAD further finds that the Appellant's education, professional skills and business experience will facilitate her acquisition of employment either in her own business or working for others. [57] The RAD finds in regard to the Appellant's two sons that they appear to be well looked after by the trustees of their father's will and by the Ministry involved in the case. The RAD notes that no evidence was provided that the sons are in any jeopardy. The RAD also notes that the Appellant's family, her sons and her common-law husband and his children may be able to join her in an IFA location at some future time. [58] In regard to the psychological issues noted in the psychological report, the RAD notes that no evidence was provided to indicate that the Appellant could not access counselling services in one of the IFA locations such as that she accessed at the XXXX XXXX XXXX XXXX.12 The RAD notes that all of the proposed IFAs are substantial urban centres. [59] The RAD has reviewed the country documentary evidence cited by the panel and the Appellant. The RAD finds that this evidence indicates that an IFA is available to a woman in the circumstances of the Appellant. The RAD notes in this regard the reference to the particular jeopardy of a young single woman. The RAD further notes that the Appellant is a 43-year-old mature and educated woman and finds her profile does not fit the group reflected in this reference. [60] The RAD concludes, on the basis of its review and assessment of all the evidence in the record concerning the availability of an IFA, that an IFA is available to the Appellant in one of the proposed localities, and that the Appellant is therefore not in need of the protection of Canada. DISPOSITION [61] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel May 10, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's record, p. 70. 4 Ibid., p. 71. 5 Ibid., p. 72. 6 Ibid., pp. 73-77. 7 Exhibit P-2, Appellant's record, Transcript of the hearing, pp. 50-51. 8 Exhibit P-2, Appellant's record, Transcript of the hearing, p. 51. 9 RPD's record, pp. 177-180, Dr. XXXX Psychological Assessment. 10 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015, 2015 FC 317. 11 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.), at 710 12 RPD's record, p. 176. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-02571