TB9-07515

RAD File / Dossier de la SAR : TB9-07515 TB9-07516 / TB9-07517 / TB9-07518 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 10, 2019 Date de la décision Panel J. Lourenço Tribunal Counsel for the persons who are the subject of the appeal Oluwakemi Oduwole Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Principal Appellant) and her children XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX (collectively, the Minor Appellants), are citizens of Nigeria. They have appealed a decision of the Refugee Protection Division (RPD), dated March 4, 2019, rejecting their claims for refugee protection. They are asking the Refugee Appeal Division (RAD) to substitute the RPD decision with a positive one recognizing them as Convention refugees or, in the alternative, to send the matter back to the RPD for redetermination. BACKGROUND [2] The Principal Appellant became a widow when her husband passed away in XXXX 2017. She alleges that he died after an illness that the doctors could not definitively diagnose, although they suspect it may have been cancer. She alleges that her late husband's family suspected that she was responsible for his illness and ultimate death. As such, her husband's family headed by his eldest uncle XXXX XXXX, demanded that she perform death rituals to prove her innocence. These rituals included being locked in a room with her husband's body and drinking the water that was used to cleanse his body in preparation for his burial. The Principal Appellant claims that while she was locked in the room with her husband's body, her in-laws attempted to have her son drink a concoction and a struggle ensued which resulted in his arm being broken. She also alleges that the family demanded that her daughter undergo female genital mutilation (FGM) and her sons have incisions/tribal marks made on their faces and chests. [3] The Principal Appellant alleges that she was able to escape with the help of a friend. She claims that following her escape she obtained passports and United States visas for herself and her children. She left Nigeria on XXXX XXXX, 2018 for the United States after her friends and family raised the money she needed to purchase airline tickets. She entered Canada on February 23, 2018 through an irregular border crossing and initiated refugee claims. [4] The RPD found that the Appellants' evidence was not credible and that they lacked subjective fear. The RPD also found that they have an internal flight alternative (IFA) in Port Harcourt and rejected their claims. For the following reasons, the appeal is denied. ROLE OF THE REFUGEE APPEAL DIVISION [5] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Appellants' arguments [6] The Appellants argue that the RPD mischaracterized and misunderstood the evidence before it and failed to properly assess the central issues of the claims. The Appellants also argue that the RPD failed to observe the principles of natural justice by using evidence that was not put to the Principal Appellant to impugn her credibility. Further, the Appellants argue that the RPD was unreasonable in assessing the subjective fear of the Appellants. Finally, the Appellants argue that the finding that there is an available IFA in Port Harcourt is unreasonable and not supported by the objective evidence. [7] I have independently reviewed the evidence and I find that the determinative issue in this case is the viability of the internal flight alternative. I agree that the RPD made errors in its credibility and subjective fear analyses, however these were not fatal to the decision. Credibility [8] The RPD found that the Principal Appellant's allegations were not credible, and found on a balance of probabilities, she was untruthful when she testified about being wanted in Nigeria. In coming to this conclusion, the RPD cites that the Principal Appellant testified that there was an arrest warrant for her in Nigeria but when asked if she had seen the warrant she testified that she did not know. [9] The Appellants argue that the RPD did not ask the Principal Appellant about an arrest warrant and that she testified that she was not certain that she was wanted in all of Nigeria but only that the police had her photograph and had come looking for her at her friend's home. [10] Having independently reviewed the evidence, including listening to the audio recording of the hearing, I agree with the Appellants' argument that she did not testify that she was the subject of a warrant. The RPD asked the Principal Appellant "do you know if there is a warrant for your arrest in Nigeria? Are you wanted by the police?" and the Principal Appellant replied "yes I am."2 The RPD asked the Principal Appellant if she was wanted throughout Nigeria, and she responded she was not sure. The RPD then asked the Principal Appellant how she knew she was wanted and she indicated that she was told by a friend that the police were looking for her. The RPD then asked if the Principal Appellant had seen the warrant, at which point her Counsel interjected, pointing out to the Member that she had only testified that she was wanted, not that there was a warrant. The Member took note of Counsel's objection and asked no further questions about the warrant. [11] I find that the two part question put to the Principal Appellant by the RPD led to an answer that seemingly referred only to the second part of the query, namely if she knew she was wanted. The Principal Appellant never testified that there was a warrant for her, and also makes no such allegation in her Basis of Claim Form narrative. Further, her Counsel clarified this before the RPD and the Member made no further inquiries into the warrant. As such, I find the credibility findings by the RPD around the warrant not being produced by the Principal Appellant are incorrect. [12] Further, the RPD found that it is not credible that the Appellants would be able to leave Nigeria without encountering difficulties with the authorities given the warrant. This finding is also premised on the faulty assumption that the Principal Appellant was the subject of an arrest warrant and therefore is incorrect. I therefore find that the credibility findings related to the issues around the arrest warrant are not supported by the record and are set aside. Subjective fear [13] The RPD found that the Appellants lacked subjective fear as they did not claim asylum during the time that they were in the United States. The Appellants argue that this finding is unreasonable and that the relatively short delay in claiming is not determinative of subjective fear. Further, they argue that there is no requirement to claim at the first opportunity and that they did not pursue asylum claims in the United States due to President Trump's policies on refugees. [14] I find that the delay in claiming in this case is not determinative of subjective fear. While there may be instances where a delay in claiming would lead to this conclusion, the delay in this case does not rise to that level. The Appellants were in the United States for approximately one month before travelling to Canada. Given the relatively brief time they were in the United States, coupled with the fact that they had valid visas and were not at risk of removal, I find that the RPD erred in concluding that the Appellants lacked subjective fear. Natural justice [15] The Principal Appellant testified before the RPD that she could be located throughout Nigeria because her biodata would be collected if she were to activate a SIM card or open a bank account. The RPD rejected these arguments, citing Internet sources which indicated that it was difficult for authorities to confirm the identities of mobile phone users through their SIM cards. The RPD also stated that an Internet search indicated that information related to bank accounts was only accessible via court order. [16] The Appellants argue that the Member committed a breach of natural justice and procedural fairness in considering its own Internet research after the hearing evidence without allowing the Appellants to respond. I agree with the Appellants. It was improper for the RPD to conduct Internet searches post hearing and consider evidence that was not disclosed to the Appellants. As such, the findings based on this evidence about SIM cards and bank accounts are set aside. Determinative issue - IFA [17] The RPD found that notwithstanding the findings about the Appellants' lack of credibility and subjective fear, there was an IFA available to them in Port Harcourt. The Appellants argue that this finding was unreasonable. I have conducted my own independent analysis of the evidence and find that there is a viable IFA for the Appellants in Port Harcourt. [18] Nigeria is a large country with an area of over 900,000 square kilometres in 36 states. Nigeria has a population of over 170 million people.3 Port Harcourt is one of the largest cities in Nigeria with a population of over 2 million, and is located in Rivers State in Southern Nigeria.4 First prong: Is there a serious possibility of persecution in Port Harcourt? [19] The RPD found that the Appellants did not face a serious possibility of persecution in Port Harcourt. The RPD found that there was no objective evidence suggesting that XXXX XXXX could find the Appellants throughout Nigeria. The Appellants argue that the RPD erred by drawing a negative inference from the Appellants' lack of documentary evidence about XXXX XXXX. [20] The Appellants have the burden of establishing that there is a serious possibility that they will be persecuted in a named IFA. I find that the Appellants have not established that their agents of persecution could locate them in Port Harcourt. The Principal Appellant testified that XXXX XXXX is the head of her late husband's family. There is no evidence that XXXX XXXX has any influence in Port Harcourt or holds a position that would allow him to locate the Appellants. [21] The Appellants argue that they could be located via information collected if they activated a SIM card or opened bank accounts. Even if I accept that this information is collected and stored by certain institutions, the Appellants provided no evidence of how their agents of persecution would access this information. The documents submitted by the Appellants to the RPD on the issue of privacy in Nigeria outline the legally recognized right to privacy and the way in which law enforcement can access data, as well as some past data breaches.5 However, there is nothing in the record to indicate that the agents of persecution have the ability to access any of this data. The Appellants simply make the vague argument that this information would make them traceable. As such, I do not accept the argument that this information could be accessed by the agents of persecution to locate the Appellants. [22] The Appellants also argue that the belief that the Principal Appellant is responsible for her husband's death is widespread and that the police will be looking for her. They argue that the police could access the information stored by financial institutions or phone companies to locate them in Port Harcourt. I do not accept this argument. The Principal Appellant testified that she is not certain that she is wanted by the police throughout Nigeria, only that they were looking for her at one point. Even if I accept her allegation that they were attempting to locate her at one point, there is no objective evidence to suggest that this was for the purpose of detaining her and/or returning her to her husband's family. [23] Also, the Principal Appellant herself argues that she is not aware of any warrant for her arrest in Nigeria. She alleges that she went to the police herself about the difficulties with her late husband's family. She alleges that the police declined to intervene and told her it was a family dispute. At no point does she allege that she was detained or questioned by the police regarding her husband's death. I also note that the death certificate proffered by the Appellants identifies that the cause of her late husband's death was tumor progression of pancreatic cancer, indicating that the objective evidence does not suggest she had anything to do with his passing.6 I find that there is no evidence that the police would be seeking to arrest the Principal Appellant. [24] There is insufficient evidence on the record to suggest that the agents of persecution have the reach or influence to locate the Appellants. There is nothing to support the allegation that the police would search for the Principal Appellant even considering corruption and the potential to bribe individual officers. Again, even if I accept that XXXX XXXX was able to convince a local police officer to look for the Principal Appellant at one point, there is nothing to suggest he could influence officers in Port Harcourt to locate the Appellants. [25] I note that the Appellants have raised the fear that the Minor Appellants would be required to undergo FGM and tribal markings. The Appellants argue that these practices are prevalent in Nigeria and that therefore they would be at risk of persecution throughout the country. The Appellants allege that their agents of persecution would force them to undergo these practices, but offer no evidence that any other actors would require this of the children. As such, without the agents of persecution locating the Appellants, I am not persuaded that this risk would continue. [26] In view of the evidence, I find the risk of the Appellants being harmed in Port Harcourt is not more than a mere possibility. Second prong: Is it reasonable for the Appellants to relocate to Port Harcourt? [27] The RPD determined the Appellants failed to meet the threshold of establishing it would be objectively unreasonable or unduly harsh for them to relocate to Port Harcourt. The Appellants advance many of the same arguments at the RAD that were before the RPD. They argue that this case is distinguishable from the facts of the case in the Jurisprudential Guide on IFA in Nigeria (JG).7 The Appellants also argue that the RPD failed to consider the specific profile of the Principal Appellant as a widow in its assessment of the viability of Port Harcourt as an IFA. They argue that the difficulties the Appellants would face in terms of language, educational opportunities, gender based discrimination and financial hardships render it unreasonable for them to relocate to Port Harcourt. [28] The Federal Court of Appeal has held that [t]here will always be hardship with relocation, but the threshold for unreasonableness is very high and requires conditions that would jeopardize the life and safety of a claimant: Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 at paras 14-15.8 It is also recognized that the burden is not on the RAD to establish that the IFA is safe but rather on the Appellant to demonstrate that it is not reasonable.9 I find that the Appellants have not established that it is unduly harsh or objectively unreasonable for the Appellants to relocate to Port Harcourt. [29] The Principal Appellant argues that as a widow, it would be particularly unreasonable for her to relocate. She argues that the situation the National Documentation Package (NDP) sets out for widows in Nigeria is dire. While I acknowledge that widows can face difficulties, the NDP indicates that the undesirable treatment they face is often at the hands of their spouse's family, rather than from society at large.10 Further, the evidence sets out that widows face more difficulties in the north than in the south, and that there are more female-led households in large southern cities. According to the Director of Widows for Peace through Development, the situation for widows in Nigeria cannot be generalized and is dependent on a number of factors, including education and location.11 [30] In the case at hand, the Principal Appellant is highly educated, having obtained a Bachelor of Science. She also has significant work experience, having been an administrator in a hospital for 15 years. Given this, I find that the Principal Appellant would likely be able to establish and support herself. Further, according to the NDP, she is more likely to find employment in the south than in the north.12 [31] The Principal Appellant indicates that she speaks Ika, English and Pidgin English and the Minor Appellants speak English. The Appellants argue that they would be unable to relocate due to language difficulties and the numerous dialects spoken in Nigeria, however I am not persuaded by this argument. I agree with the RPD that English is the official language of Nigeria, and since all the Appellants are fluent in English I find there is nothing to suggest that language would be a barrier for them, particularly in a large city. Further, I would note that all the Appellants have been successful in pursuing their studies in Benin City, another large Southern city, with their language profile. The Principal Appellant has also secured stable employment in the South with her language skills, and therefore I am not persuaded that she would have difficulties in the future on this basis. [32] The Appellants argue that the RPD failed to properly consider the impact of the Principal Appellant's gender on her ability to relocate. I find that while women may face some hardship in securing accommodations, I do not find that this rises to the level of being unreasonable or unduly harsh. I find that given the specific profile of the Principal Appellant, being well educated with significant work experience, she would be able to re-establish herself and find employment and accommodations. As referenced in the NDP and the aforementioned JG,13 it is easier for women to lead households in large cities in Southern Nigeria, such as Port Harcourt. [33] The Appellants argue that they would also face undue hardship because they are not indigenes of Rivers State. They argue that their lack of indigeneship in Rivers State would lead to them being unable to secure employment or access education. I note that the Principal Appellant herself is an indigene of XXXX in Delta State and has spent her adult life studying and working in Benin City, seemingly without difficulty. The Minor Appellants have attended school, with all the children reaching secondary school in Benin City. This is consistent with the NDP and the JG, which indicate that indigeneship is less of a factor in large cities, such as Port Harcourt, given the prevalence of non-indigenes in those cities. [34] The Appellants also have previous experience with relocation within Nigeria. As well, the Principal Appellant was able to relocate herself and her children to the United States and Canada. While I acknowledge that she is now a widow and the Appellants may face some challenges with relocation, they have not established relocation to Port Harcourt is unreasonable or unduly harsh. [35] Based upon all the evidence, I find that a viable IFA does exist for the Appellants in Port Harcourt. As such, I find that there is not a serious possibility that the Appellants would be persecuted if they returned to Nigeria, pursuant to section 96 of the Immigration and Refugee Protection Act ("the Act").14 I also find, on a balance of probabilities, the Appellants would not be personally subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment in Nigeria pursuant to section 97 of the Act. CONCLUSION [36] 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 paragraph 111(1)(a) of the Act. (signed) "J. Lourenço" J. Lourenço October 10, 2019 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, at para 103. 2 RPD Hearing Recording, February 25, 2019, at 21:50. 3 Exhibit RPD-1, RPD Record, Exhibit 6, National Documentation Package (NDP) for Nigeria (21 December 2018), item 1.7, United Kingdom. Home Office, Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation, August 2016. 4 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (21 December 2018), item 1.6, United States. Central Intelligence Agency, Nigeria. The World Factbook, 19 November 2018. 5 Exhibit RPD-1, RPD Record, Exhibit 8, at pages 182-207. 6 Exhibit RPD-1, RPD Record, Exhibit 8, at page 242. 7 Jurisprudential Guide - Decision TB7-19851, Guide identified by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date 6 July 2018. 8 Olalere v. Canada (Citizenship and Immigration), 2017 FC 385, at para 43. 9 Melford-Jowoh v. Canada (Citizenship and Immigration), 2017 FC 455, at para 13. 10 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (21 December 2018), item 1.3, EASO COI Meeting Report: Nigeria, August 2017. 11 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (21 December 2018), item 16.9, Whether women who head their own households, without male or family support, can obtain housing and employment in large northern cities, such as Kano, Maiduguri, and Kaduna, and southern cities, such as Lagos, Ibadan, Port Harcourt; government support services available to female-headed households, Response to Information Request Number: NGA103907.E, 19 November 2012. 12 Exhibit RPD-1, RPD Record, Exhibit 6, NDP for Nigeria (21 December 2018), item 16.9, Whether women who head their own households, without male or family support, can obtain housing and employment in large northern cities, such as Kano, Maiduguri, and Kaduna, and southern cities, such as Lagos, Ibadan, Port Harcourt; government support services available to female-headed households, Response to Information Request Number: NGA103907.E, 19 November 2012. 13 Jurisprudential Guide - Decision TB7-19851, Guide identified by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date 6 July 2018. 14 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07515 TB9-07516 / TB9-07517 / TB9-07518 RAD.25.02 (April 04, 2019) Disponible en français 12 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