TB5-06175

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 : TB5-06175 TB5-06176 TB5-06177 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 2, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nicholas Omere Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The principal Appellant XXXX XXXX XXXX, and the minor Appellants, XXXX XXXX XXXX and XXXX XXXX XXXX, are citizens of Nigeria, and appeal a decision of the Refugee Protection Division (RPD) dated June 4, 2015, rejecting their claims for refugee protection. The principal Appellant was appointed, the designated representative of the minor Appellants. The Appellants are not submitting new evidence. They are requesting that in the event the RAD does not set aside the RPD's determination, it refer the matter back to the RPD. [2] The RPD hearing was held on May 26, 2015 and a decision rendered on June 4, 2015. The RPD found that the principal Appellant failed to establish her sexual orientation. With respect to the minor Appellants, the RPD found that they were not Convention refugees or persons in need of protection because they could avail themselves of an internal flight alternative (IFA) in Nigeria. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [4] The principal Appellant fears returning to Nigeria on account of her sexual orientation. The minor Appellants allege that they cannot return to Nigeria because their father's family has threatened them with genital mutilation. The RPD heard all of the claims in one hearing and made one decision for all of the claimants. ROLE OF THE RAD [5] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [6] While there has been some conflict in the case law from the Federal Court regarding the standard to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection and will consider only the issues raised by the Appellants. ANALYSIS OF THE MERITS OF THE APPEAL [8] The RPD found that the determinative issue in the claim of the principal Appellant was credibility with respect to her alleged sexual orientation, failure to claim in the United Kingdom and the United States, and an IFA with respect to the claims of the minor Appellants. Issues Raised by Appellant [9] The Appellants raise the issues of credibility, failure to claim and IFA. THE PRINCIPAL APPELLANT Credibility [10] The principal Appellant alleges that she is bisexual and that, prior to arriving in Canada, she had two gay relationships. The first relationship was with a XXXX XXXX. The RPD drew a negative inference due to the principal Appellant's evasive responses, lack of spontaneity and detail when describing her relationship with XXXX XXXX3 [11] Counsel argues that the RPD's negative credibility findings were "...based on pure speculation and perverse ... and were made capriciously and in disregard of the evidence before the RPD."4 The RAD disagrees with this submission. The RAD has had an opportunity to listen to the recording of the RPD's session and found the evidence of the principal Appellant with respect to her relationship with XXXX to be laboured with the RPD having to repeat the same question several times before the principal Appellant attempted to provide a response even though the testimony, with very few exceptions, was provided in English. Her testimony also lacked the spontaneity of evidence rooted in reality. [12] The principal Appellant alleges that she and XXXX had been classmates and friends for two years prior to beginning a gay relationship. In addition to the issues of credibility raised by the RPD on this allegation, the RAD notes that the RPD member asked the principal Appellant several times to describe how the relationship had changed from friendship to lovers, and the principal Appellant could only reply that they did things together. It is reasonable to expect that an individual who experiences a transformation from being friends to being lovers would be able to verbalize the emotions surrounding this transformation. [13] What is most troubling to the RAD is the fact that the principal Appellant did not mention her gay relationship with XXXX in the narrative in her Basis of Claim (BOC). The RPD asked her why she had omitted this information from her BOC, and the principal Appellant replied that she thought that she should just talk about the incident which forced her to leave Nigeria. [14] The RAD rejects this explanation. Being gay is a lifestyle and not a question of one or two incidents. The principal Appellant alleges that she began a gay relationship with XXXX at the age of 16, a relationship which had lasted for two years. This is an important part of her allegation for it demonstrates that she had experienced a gay relationship at an early age which had lasted for nearly two years. The new information in her oral testimony amounts to omissions regarding significant aspects that go directly to the heart of the principal Appellant's claim.5 It is reasonable to expect the principal Appellant to have remembered this fact when writing her narrative in the BOC. The principal Appellant provided no reasonable explanation for this omission. The RAD finds, on a balance of probabilities, that the principal Appellant did not have a gay relationship with XXXX XXXX The Board has been upheld when rejecting major evidence which has been omitted from the Personal Information Form (PIF).6 [15] The principal Appellant then alleges that she had a second gay relationship with XXXX XXXX. She testified that this relationship at first lasted for four years, from 1998 to 2002 and then for six years from 2008 to 2014. The RPD concluded that the principal Appellant's testimony with respect to her relationship with XXXX lacked spontaneity, and was vague, evasive, and superficial.7 [16] After having had an opportunity to listen to the recording of the RPD's session, the RAD agrees with the conclusion of the RPD. The principal Appellant stated that she had her first sexual encounter with XXXX in XXXX of 1998 even though they had known each other for some time. The RPD asked her to explain how they knew that they were attracted to each other and her response was, "how is one to know". It is reasonable to expect that an individual would be able to explain one's feelings and emotions for the person with whom they fall in love. [17] As with the previous relationship, what is most troubling to the RAD is the fact that the principal Appellant only mentions in her BOC that she had a relationship with a woman by the name of XXXX XXXX without providing further details. The RPD asked her about this omission, and the principal Appellant stated that she did not know how to go about doing it. [18] The RAD rejects this explanation. This is not a question of providing intimate and personal information with respect to the relationship but a question of providing facts which would demonstrate that the principal Appellant had been in a gay relationship with XXXX. The principal Appellant alleges that the first relationship lasted four years, an important fact for it demonstrates the seriousness and duration of the relationship. Yet this important information is missing from her BOC. The new information in her oral testimony amounts to omissions regarding significant aspects that go directly to the heart of the principal Appellant's claim.8 It is reasonable to expect the principal Appellant to have remembered this fact when writing her narrative in the BOC. The principal Appellant provided no reasonable explanation for this omission. The RAD finds, on a balance of probabilities, that the principal Appellant did not have a gay relationship with XXXX. The Board has been upheld when rejecting major evidence which has been omitted from the PIF.9 [19] After having conducted its own independent analysis, the RAD finds that the principal Appellant has failed to prove her sexual orientation. As a result, the RAD gives the documentary evidence submitted by the principal Appellant with respect to her sexual orientation little evidentiary weight since they seem to support an allegation which the RAD does not believe. THE MINOR APPELLANTS Internal Flight Alternative [20] The principal Appellant testified that the family of her former husband is threatening the female minor Appellant with female genital manipulation (FGM). The RPD asked the principal Appellant if she, as a mother, could refuse to have their daughter undergo the FMG procedure and she replied that she has no say in the process. This reply contradicts the available documentary evidence which indicates that parents are free to refuse to have FMG performed on their daughters.10 [21] The RPD also found that the Appellants had a viable IFA in Abuha or Benin City in Nigeria. [22] In assessing an IFA, the RAD must apply a two-pronged test cited in Rasaratnam11 suitably modified to take account of s. 97 of the IRPA: 1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. 2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claim, for him to seek refuge there [23] Both prongs must be satisfied to find that the Appellant has an IFA. The burden of proof rests with the Appellant to show that she does not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose, taking into account the Appellant's identity. An IFA must be a realistic and attainable option. An Appellant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.12 [24] The RAD finds that there is a reasonable and viable IFA available to the Appellants in Abuha or Benin City in Nigeria. [25] The RAD considered whether the RPD erred in its application of the first prong of the Rasaratnam13 test. The principal Appellant alleges that her former husband's family are well known. The RPD asked her what resources were available to her former husband's family that would allow them to locate the Appellants in the IFA, and she replied that it's a small world. The RAD finds that the Appellants have failed to provide any convincing evidence that they would suffer harm or persecution at the hands of the principal Appellant's former husband's family if they were to relocate in any of the cities suggested in the IFA. The RAD agrees with the RPD's finding that there was no serious possibility that the Appellants would be persecuted or that they would be subject, on a balance of probabilities, to a danger of torture, or to a risk to their lives, or to a risk of cruel and unusual treatment or punishment in the proposed IFA. [26] The RAD also considered whether the RPD assessed the second prong of the Rasaratnam14 test: reasonableness of the IFA. The RAD considered the reasonableness of the proposed IFAs. The test for reasonableness is whether it would be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking status abroad, as per Thirunavukkarasu.15 This requires an evaluation of the conditions in the IFA as well as the Appellants or similarly-situated persons. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.16 However, it is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.17 The RAD notes that the Federal Court has established a very high threshold for the unreasonableness test. A decision by Justice Zinn cites the Thirunavukkarasu18 decision that indicates that, in order for an IFA to be unreasonable: ...it requires nothing less than the existence of conditions which would jeopardize the life and safety of the claimant in traveling or temporarily relocating to a safe area...This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.19 [27] The RPD found that it would not be unreasonable for the Appellants to find refuge in the proposed IFA. The RAD notes that the RPD questioned the principal Appellant in regard to the proposed IFA. She replied that they cannot relocate there because of her former husband's family. The RAD has already dealt with that concern. From the documentary evidence, the RAD notes that the Appellant is an educated woman who holds a university degree and several years of work experience as an XXXX XXXX. The RAD finds that the principal Appellant has not demonstrated that she would not be able to find employment in the proposed IFA. [28] The RAD notes that the United Kingdom Home Office Operational Guidance Note for Nigeria20 states that the Nigerian constitution provides for the right to travel within Nigeria. The report also states that internal relocation to escape ill-treatment from non-state agents is almost always an option and, in the absence of exceptional circumstances, it would not be unduly harsh for any individual to internally relocate. [29] The evidence in the record, in particular, the United Kingdom Home Office Operational Guidance Note for Nigeria indicates that Nigeria is a large country and internal relocation will generally be a viable option for those who fear, or who have experienced ill-treatment at the hands of non-state agents. Based on this jurisprudence, and based on the general concerns put forward regarding the reasonableness of the IFA (lack of employment, being cut-off from family), the RAD finds that the RPD did not err in finding that the IFA was reasonable for the Appellants, as argued by counsel. [30] The RAD finds that the RPD carefully considered the totality of the evidence before it in regards to the reasonableness of an IFA. Its finding that the proposed IFA was reasonable was transparent and considered the particular situation of the Appellants. For these reasons, the RAD finds that the RPD did not err in finding that the Appellants had a reasonable IFA in the proposed cities. [31] Given the finding above, that the Appellants have an IFA in Nigeria, the RAD finds that the Appellants do not face a serious possibility of persecution there and also finds that their removal to Nigeria would not subject them personally to a risk to their lives, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. CONCLUSION [32] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino September 2, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 3 RPD's Record, p. 6, para. 12. 4 Appellant's Record, p. 27, para. 6. 5 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012; 2012 FC 728, para.17. 6 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241; Jin, Hai Long v. M.C.I. (F.C., no. IMM-6988-11), Pinard, May 24, 2012; 2012 FC 595; Wei, Kai Bin v. M.C.I. (F.C., no. IMM-8613-11), Russell, July 19, 2012; 2012 FC 911. 7 RPD's Record, p. 8, para. 14. 8 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012; 2012 FC 728 at para.17. 9 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013; 2013 FC 1241; Jin, Hai Long v. M.C.I. (F.C., no. IMM-6988-11), Pinard, May 24, 2012; 2012 FC 595; Wei, Kai Bin v. M.C.I. (F.C., no. IMM-8613-11), Russell, July 19, 2012; 2012 FC 911. 10 RPD's Record, National Documentation Package for Nigeria (November 28, 2014), item 5.12. 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 Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.), at 596-599. 13 Rasaratnam, supra, footnote 11, at 709-710. 14 Ibid., at 709-710. 15 Thirunavukkarasu, supra, footnote 12, at 596-599. 16 Ranganathan, Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 17 Thirunavukkarasu, supra, footnote 12, at 596-599. 18 Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.). 19 Idugboe, Osamede Joseph v. M.C.I. (F.C., no. IMM-2241-07), Zinn, April 21, 2008; 2008 FC 509. 20 RPD's Record, NDP for Nigeria (November 28, 2014), item 1.7, United Kingdom Home Office, UK Border Agency, Operational Guidance Note: Nigeria --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-06175 TB5-06176 TB5-06177