TB9-11166

RAD File / Dossier de la SAR : TB9-11166 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 12, 2021 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the person who is the subject of the appeal Nicholas Woodward Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. [2] XXXX XXXX XXXX (the Appellant) is a citizen of Nigeria. [3] The Appellant fears persecution and a risk to her life in Nigeria based on gender-related persecution in the form of domestic violence at the hands of her abusive husband. The Appellant got married on XXXX XXXX XXXX 2005. Shortly thereafter, her husband began exhibiting violent behaviour by way of verbal, psychological, physical, and sexual abuse. The violence was recurring but not constant; her husband was volatile, often triggered by the mere thought that the Appellant might leave him. In 2009, the Appellant suffered a miscarriage, allegedly precipitated by her husband's attacks. On XXXX XXXX XXXX 2009, the Appellant filed a police report, but her husband denied the abuse and was sent home with a warning. Another report was filed in XXXX 2012, but the police told the Appellant that they do not get involved in family matters. The Appellant went to the police station for a third time in 2013, at which time she was advised to separate from her spouse and file for divorce. They further told her that bringing a criminal case against her husband would be difficult because proof of grievous bodily harm would be required. The Appellant and her husband separated in 2013. Her petition for divorce was dismissed by the High Court of Justice in 2016. In XXXX 2017, upon exiting the cinema with a male friend, the Appellant was confronted and beaten by her spouse. He threatened to pour acid on her. As a result, the Appellant left Nigeria for the United States on XXXX XXXX XXXX 2018. The Appellant entered Canada, irregularly, on XXXX XXXX XXXX 2018. [4] The Refugee Protection Division (RPD) determined that a safe and reasonable internal flight alternative (IFA) existed in Port Harcourt. [5] The Appellant contends that the RPD failed to conduct an individualized assessment of her claim by unduly relying on the Nigeria Jurisprudential Guide (JG) and erroneously analyzing the Appellant's risk of harm. The Appellant is requesting to admit new evidence in addition to an oral hearing. [6] The determinative issue in this appeal is the viability of Port Harcourt as an IFA. After reviewing the evidence, I find that Port Harcourt, and any other city in Nigeria, would be unsafe for the Appellant. The RPD did not sufficiently consider the gender-based nature of the persecution. To remain safe in Nigeria, the Appellant would have to remain married to an abusive spouse, in an environment where the legal system is deeply prejudiced against women. This reality is evidenced by the Appellant's multiple attempts to seek state protection in addition to the attempts to divorce her spouse and obtain sole custody of her children. As a result, there is sufficient credible and trustworthy evidence to establish that the Appellant has a well-founded fear of persecution. DECISION [7] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. NEW EVIDENCE The evidence presented by the Appellant is partially accepted [8] 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 Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [9] 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. [10] 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. [11] The Appellant has requested that seven sets of documents be admitted, which are labelled as exhibits (a) to (g). My findings on these documents are as follows: (a) Affidavit of XXXX XXXX XXXX, brother of the Appellant, XXXX XXXX XXXX 2019: The affidavit is admissible. The substantive content of this document arose after the RPD's decision. XXXX XXXX XXXX recounts that he received a phone call from the Appellant's spouse on XXXX XXXX XXXX 2019, an indication that the spouse continues to pursue the Appellant and his children. The affidavit is signed, dated, and stamped by the High Court Registry. It also relates to the Appellant's allegations of a continuing risk of harm and offers new facts in support of that argument. Therefore, I find that the document is credible, relevant, and new. (b) Statement of XXXX XXXX XXXX, friend of the Appellant, undated: This statement is admissible. Though undated it refers to an encounter that occurred on XXXX XXXX XXXX 2019, which is after the date of the RPD's decision. The statement thus satisfies the statutory criteria set out at subsection 110(4) of the IRPA. The document is signed and notarized, relates to the motivation of the alleged agent of harm, and introduces new facts. Therefore, I find that the document is credible, relevant, and new. (c) WhatsApp Message from XXXX XXXX XXXX XXXX XXXX to the Appellant, XXXX XXXX XXXX 2019: This document is admissible for the same reasons as the statement of XXXX XXXX XXXX, mentioned above. (d) The Guardian, "Women dressed 'provocatively' are being arrested in Nigeria", May 6, 2019: The article is inadmissible. The substantive content of the article appears to have arisen after the RPD's decision, as it discusses a "recent police raid" in Abuja.4 The Guardian is an internationally recognized news organization. However, I find that this article lacks relevance and newness. It is incapable of proving or disproving a relevant fact in this claim. The Appellant claims that it establishes the deteriorating condition of women's rights in Nigeria and the fact that women seeking divorce face severe domestic violence. I disagree. The article does not refer, either explicitly or implicitly, to a change of conditions in Nigeria. Moreover, there is no correlation between the Appellant's allegations and the accusations of indecent dress leveled at the women described in the article. Insofar as the article refers to general discrimination against women in Nigeria, and the chauvinistic views of men, the Appellant has not explained how this information differentiates itself from Nigeria's National Documentation Package (NDP). An appeal to the Refugee Appeal Division (RAD) is not an opportunity to correct a deficient record or to gratuitously advance evidence that is already part of the record. For the same reasons, I find that the article from IOL News ("Nigerian women arrested for prostitution, assaulted by police") is also inadmissible. However, I find that the article of April 19, 2019 by the Daily Post is admissible: The content arose after the date of the RPD's decision. It describes an incident where a husband poured a harmful substance on his wife, causing serious burns to her face and body. The husband opposed his wife's demand for divorce. The article includes the URL, refers to the jeopardy faced by Nigerian women when seeking a divorce. Therefore, I find that the article is credible, relevant, and new. (e) Medical Report of the Appellant's daughter (XXXX), XXXX XXXX XXXX 2019: The report is inadmissible. Though dated XXXX XXXX XXXX 2019, the substantive content of the document refers to XXXX treatment regimen prior to the date of the RPD's decision. XXXX has XXXX XXXX XXXX. The Appellant has not adequately explained why the content of this document was not reasonably available prior to XXXX XXXX XXXX 2019 or why the Appellant could not have reasonably been expected to provide it before that date. An appeal to the RAD is not an opportunity to correct a deficient record. Therefore, I find that the statutory criteria set out at subsection 110(4) of the IRPA have not been fulfilled. The PUNCH article of XXXX XXXX XXXX 2019 is also inadmissible. It discusses a recent ban of marriages between XXXX XXXX XXXX in Anambra state. It arose after the RPD's decision. However, I find that it lacks relevance. The document is incapable of proving or disproving a relevant fact in the claim; the Appellant's daughter, XXXX, who has XXXX XXXX XXXX, is not a person subject to the appeal. (f) The Guardian, "Nigeria: The Rate of Unemployment is High but Women are the Worst Hit", February 20, 2019: This article is inadmissible. The Appellant has not adequately explained why it was not reasonably available before the RPD's decision or why it would be unreasonable to expect the Appellant to have provided it before that date. The article was written two days after the RPD hearing, and I note that the Appellant did not attempt to advance this evidence by way of a post-hearing application under RPD Rule 43. An appeal to the RAD is not an opportunity to correct a deficient record. The same reasoning applies for the BBC News article ("Why single Nigerian women battle to rent homes"), which I also determine to be inadmissible. (g) Federal Court Record Entry Summary: This document is inadmissible. It consists of a series of docket entries related to a particular Federal Court case, some of which occurred after the date of the RPD's decision. Nevertheless, I find that it lacks credibility as to its source as well as relevance. The Appellant submits that this is the docket entry for IMM-3373-18. However, the document does not clearly state that fact. Moreover, the docket is unable to prove or disprove a relevant fact in this claim. Summary of findings [12] I find that only exhibits (a), (b), (c), and a portion of exhibit (d) (the Daily Post article of April 19, 2019) are admissible. The remaining documents are inadmissible. An oral hearing is not permitted [13] As the new evidence that I have admitted does not raise a serious credibility issue, I am not permitted to hold an oral hearing, pursuant to subsection 110(6) of the IRPA. ANALYSIS The role of the RAD [14] The RAD reviews the RPD's decision and comes to an independent assessment of the refugee claim.5 In providing a final determination, the RAD will intervene if it finds that the RPD erred, unless the RPD's decision can be confirmed on another basis.6 The standard of correctness applies.7 If the RPD has a meaningful advantage in assessing the credibility of oral testimony, then the RPD's finding may be accorded deference.8 [15] In this case, the RPD did not have a meaningful advantage. Accordingly, I have conducted an independent assessment of the oral and documentary evidence using the correctness standard. The appropriate framework of analysis [16] This appeal ultimately turns on the sufficiency of the IFA analysis. For instance, the Appellant objects to the Panel's undue reliance on RAD decision TB7-19851, which, at the time that the Appellant's Record was filed, was a Jurisprudential Guide (JG). The Federal Court of Appeal recently determined that this JG did not unlawfully fetter the discretion of tribunal members.9 Nevertheless, the JG was revoked effective April 6, 2020, and the RAD decision is now identified as a RAD Reasons of Interest: absent any factual findings, its framework of analysis, as laid out at paragraphs 14-15 and 21-30, continues to be useful.10 [17] In light of these developments, my analysis will focus on independently assessing the evidence, rather than reviewing the RPD's decision; when rendering its decision, the RPD did not have the benefit of the new framework that applies to RAD decision TB7-19851. The applicable IFA test [18] The RPD correctly articulated the legal test for determining whether a viable IFA exists. The proposed IFA must be free from a serious possibility of persecution, and it must be objectively unreasonable for the Appellant to relocate there.11 In interpreting the second part of the test, the RPD cited relevant case law, noting that to be objectively unreasonable, there must be conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area and that actual and concrete evidence of such conditions is required.12 Port Harcourt would not be safe [19] I have determined that the Appellant has advanced sufficient evidence to establish a serious possibility of persecution if she relocated to Port Harcourt. The principal error of the RPD was failing to adequately consider the Gender Guideline in its decision. I acknowledge that female claimants have a particular challenge in advancing credible and trustworthy claims.13 [20] The following observations and findings animate my decision: (a) On a balance of probabilities, the evidence establishes that the Appellant experienced a pattern of physical abuse at the hands of her husband from the start of her marriage in 2005 until they separated in 2013. For instance, the Appellant suffered miscarriages in 2009 and 2012, as a result of the abuse.14 Moreover, while pregnant in 2010, the Appellant was assaulted by her husband, in the presence of her mother and aunt.15 (b) The Appellant initiated divorce and custody proceedings in 2015. The court denied her application in 2016, due in part to the lack of corroboration of the abusive behaviour of the Appellant's spouse.16 I note that the Appellant's application was virtually uncontested, as her spouse did not meaningfully participate in those proceedings. The country documentation establishes that, within Christian denominations in Nigeria, divorce is prohibited, and couples are expected to stay together "...even at the risk of their lives..."17 Under the law, obtaining a divorce requires a high level of proof; an irretrievable breakdown of the marriage must be established. Based on the negative outcome from the Appellant's essentially uncontested divorce and custody applications, I find that it is unlikely that the Appellant would succeed if she restarted the process. I note that, in southern Nigeria, the dominantly male judiciary is prejudiced against women, and divorced women are stigmatized. Attempts to divorce lead to employment discrimination, sexual harassment, and, for women experiencing domestic violence, even more extreme violence.18 Many women are denied custody and access to their children upon divorce. In practice, children, especially older ones, are perceived by the courts as "belonging" to their father.19 (c) In XXXX 2017, the Appellant was attacked by her husband as she came out of a movie theatre. Her husband threatened to pour acid on her. I note that this incident took place after the Appellant's applications for divorce and custody were dismissed. Therefore, these facts are consistent with the country documentation, mentioned above, which indicates that abused women are exposed to more extreme violence after attempting to divorce. (d) The Appellant's two daughters - ages XXXXandXXXX XXXX - remain in Nigeria, under the care of the Appellant's maternal aunt in Osun state.20 To this date, the Appellant's spouse has not located the children. (e) On XXXX XXXX, and XXXX XXXX XXXX 2018, the Appellant's spouse entered the home of the Appellant's parents, physically searched it and made threats of harm against the Appellant.21 (f) The Appellant's new evidence indicates that the Appellant's spouse continues to actively inquire about the whereabouts of the Appellant and his children. He contacted the Appellant's brother on XXXX XXXX XXXX 2019 and encountered the Appellant's friend at church on XXXX XXXX XXXX2019. He is aware that the Appellant is not in Nigeria. [21] Not only was the Appellant's testimony generally credible, but it was also supported by ample documentation, including affidavits, statements, and medical and court records. [22] While the evidence does not demonstrate that the Appellant's spouse would likely locate the Appellant anywhere in Nigeria - thus far, he has not even been able to find his children - the first part of the IFA test inquires into the claimant's safety from persecution. While the RPD was correct in asserting that the Appellant's daughters are not persons subject to the appeal, the safety of a proposed IFA must consider the Appellant's profile as a woman, mother, and wife. [23] In order to ensure her safety in Port Harcourt, the Appellant would have to remain married to her abusive spouse and live apart from her children. The Appellant followed the legal steps to secure her autonomy, and she repeatedly encountered a system that was deeply prejudiced against women. If she were to attempt further divorce and custody applications, she would be forced to notify her spouse, which, at the very least, would alert him that she is in Nigeria. The same is true if she attempted to lawfully assert her parental rights. These circumstances, viewed cumulatively, amount to gender-based persecution: the Appellant faces serious limitations to her basic human rights - namely, the right to liberty and security of the person - due in part to her profile as a wife of an abusive husband and as a mother.22 The proposed IFA is thus unsafe. [24] As I have determined that Port Harcourt would not be safe for the Appellant, I need not determine whether it would be objectively reasonable for her to relocate there. Port Harcourt is not a viable IFA. Furthermore, I have not identified any other location within Nigeria where the Appellant could be safe. Adequate state protection would not be forthcoming [25] The issue of state protection is an integral part of the refugee definition under sections 96 and 97 of the IRPA. [26] The Appellant reported her spouse to the police in 2009 and 2012. The authorities did not take any meaningful action. The Appellant brought her allegations before a court in Nigeria, and, though the proceedings were essentially uncontested, she was unable to prove her case. Meanwhile, the Appellant's spouse has not stopped pursuing and threatening her, by communicating with the Appellant's family and friends. [27] Though domestic violence legislation has been enacted in Nigeria, the country documentation indicates that implementation is poor to non-existent. This contradictory reality has caused domestic violence to flourish and encouraged law enforcement to be reluctant in intervening in domestic disputes. Victim-blaming is common.23 [28] Under these circumstances, I find that adequate state protection would not be reasonably forthcoming for the Appellant. [29] Overall, the Appellant has adduced sufficient credible and trustworthy evidence to establish a well-founded fear of persecution based on her membership in a particular social group, that is, as a woman subjected to domestic violence. CONCLUSION [30] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Joseph W. Richards II Joseph W. Richards II January 12, 2021 Date 1 Subsection 110(4) of the IRPA. 2 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para. 13. 4 Exhibit P-2, Appellant's Record, at p. 33. 5 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, November 7, 2014, 2014 FC 799, at paras. 54-55; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 6 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 78, 103. See IRPA, s. 111. 7 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at paras. 78, 103. 8 Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145, at para. 105; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 70. 9 Canadian Association of Refugee Lawyers v. M.C.I. (F.C.A., no. A-382-19): Near, De Montigny, Leblanc, November 13, 2020, 2020 FCA 196. 10 See Immigration and Refugee Board (IRB), "Decisions", Refugee Appeals, Reasons of Interest, https://irb-cisr.gc.ca/en/decisions/Pages/index.aspx. 11 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at paras. 6-7. 12 Ibid., at paras. 11-12. 13 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender): Update, Guideline Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx , "D. Special Problems at Determination Hearings". 14 Exhibit RPD-1, RPD Record, at p. 27 (para. 9), at p. 28 (para. 15), at p. 82. 15 Ibid., at pp. 230-231. 16 Ibid., at pp. 123-124. 17 NDP for Nigeria (November 30, 2020), item 5.5, IRB, Response to Information Request NGA104209, "Divorce law and practices among Christians, including grounds, procedures...", November 2, 2012, p. 3. 18 Ibid., at p. 9. 19 Ibid., at p. 8. 20 Audio Recording of the RPD Hearing, at 00:50:00. 21 Exhibit RPD-1, RPD Record, at pp. 213-214. 22 Consider Article 3 of the Universal Declaration of Human Rights. 23 NDP for Nigeria (November 30, 2020), item 5.1., OECD, "Nigeria: Social Institutions and Gender Index 2019", December 7, 2018, at p. 7; item 5.3, IRB, Response to Information Request NGA106360, "Domestic violence, including legislation; protection...", November 14, 2019, at pp. 12, 14-15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11166 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français