MB9-12364

RAD File / Dossier de la SAR : MB9-12364 MB9-12365 / MB9-12366 / MB9-12367 MB9-12368 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 28, 2019 Date de la décision Panel Susan Brown Tribunal Counsel for the persons who are the subject of the appeal Maja Mitreva 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] The Appellants, XXXX XXXX XXXX (Principal Appellant), his spouse, XXXX XXXX XXXX, their minor son XXXX XXXX XXXX XXXX XXXX and their minor daughters XXXX XXXX XXXX and XXXX XXXX XXXX, citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD), dated April 29, 2019, rejecting their claims for refugee protection. The Principal Appellant is the designated representative of his minor children. The Appellants fear the family and community of the Principal Appellant because they refused to allow the minor female Appellants to be circumcised. [2] The RPD found that the Appellants have an internal flight alternative (IFA) in Kano, Abuja, Port Harcourt or Benin City. The Appellants argue that the proposed IFAs are not safe. They submit travel advisories for Kano, Abuja and Port Harcourt issued by the governments of Canada, the United Kingdom and New Zealand as new evidence under section 110(4) of the Immigration and Refugee Protection Act (IRPA) and request a hearing under section 110(6). I have accepted the new evidence but deny the hearing request. [3] Following my independent review, I dismiss the appeal and confirm the decision of the RPD that the Appellants have a viable IFA in Abuja, Port Harcourt or Benin City. BACKGROUND [4] According to their Basis of Claim Forms (BOCs),1 the Appellants were born in 1974, 1975, 2003, 2005 and 2010. The first born child of the adult Appellants died from XXXX XXXX in 2002 after XXXX XXXX XXXX XXXX XXXX without the adult Appellants' consent. Following their loss the adult Appellants relocated from XXXX to XXXX XXXX XXXX. After the older female minor Appellants were born in 2005, the Principal Appellant received a message from his father that she should be circumcised. [5] The Appellants lived without incident until XXXX 2015 when the Principal Appellant brought his parents to live with them due to their ill health. Visiting family members insisted the Appellants circumcise the female minor Appellants. In 2017 the Appellants obtained visitor visas for the United States. The Principal Appellant and the older female minor Appellant left Nigeria arriving in the United States on XXXX XXXX, 2017 the other three Appellants followed on XXXX XXXX, 2017. [6] The Principal Appellant and the older female minor Appellant entered Canada on XXXX XXXX, 2017 and were followed by the other three Appellants on XXXX XXXX, 2017. [7] The claims of the Principal Appellant and the older female minor Appellant were received November 29, 2017 and the claims of the other three Appellants were received on January 10, 2018. The claims were heard on January 28, 2019 and the RPD gave its decision on April 29, 2019. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] Section 110(4) of the IRPA provides that an appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In Singh2 the Federal Court of Appeal dictates a narrow interpretation of section 110(4): the conditions set out therein must be met, and there is no room for discretion on the part of the RAD. If the section 110(4) threshold is met, then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.3 [9] The Appellants are applying to submit the following new documents: A. Travel Advisory for Nigeria, last updated by the Government of Canada on June 21, 2019;4 B. Travel Advisory for Nigeria, last updated by the Government of the United Kingdom, on June 17, 2019;5 C. Travel Advisory for Nigeria, reviewed by the Government of New Zealand, on May 13, 2019.6 [10] I find that all three travel advisories are admissible because they postdate the rejection of the claims so meet the section 110(4) threshold. I also find that the new documents are relevant to the viability of an IFA, are new, and originate from credible sources. ORAL HEARING AT THE RAD [11] The Appellants request a hearing pursuant to section 110(6) of the IRPA which says the RAD may only hold a hearing if there is new (section 110(4)) evidence that raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. I find that the new evidence does not raise issues with respect to the Appellants' credibility and dismiss their application for a hearing. SCOPE OF THE RAD REVIEW [12] 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 assessing and weighing the oral testimony heard, which in particular cases attracts deference.7 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [13] The RPD identified IFA as the determinative issue and found that the Appellants have viable IFAs in Port Harcourt, Kano, Abuja or Benin City. [14] The Appellants submit that the proposed IFAs do not meet the second prong of the IFA test. The Appellants do not challenge the RPD's findings on the first part of the IFA test and only make submissions about the reasonableness of the proposed IFAs. The Appellants argue that the proposed IFAs are unreasonable because the conditions in the IFA locations, based on the recent travel advisories I have accepted as new evidence, are such that they would jeopardize the lives and safety of the Appellants. [15] Following my own review of the record, the testimony of the Principal Appellant, the arguments of the Appellants, and applying the framework of assessment outlined in the IFA Jurisprudential Guide,8 I find, for the reasons outlined below, that the RPD did not err in its finding that the Appellants have viable IFAs in Port Harcourt, Abuja or Benin City. Preamble: IFA in Nigeria [16] Pursuant to section 159(1) (h) of the IRPA, the Chairperson of the Immigration and Refugee Board has identified RAD decision9 (IFA Jurisprudential Guide) as a jurisprudential guide which addresses internal flight alternatives in major cities in south and central Nigeria for claimants fleeing non-state actors. [17] The Federal Court has recently found that this IFA Jurisprudential Guide does not unlawfully fetter Board members' discretion or improperly encroach upon their adjudicative independence because it repeatedly refers to the need for each case to be adjudicated on the basis of its particular facts.10 The IFA Jurisprudential Guide is only a guide and is not binding. [18] The RPD found that the facts of the Appellants' refugee protection claim are similar to those set out in the IFA Jurisprudential Guide and correctly concluded that it is applicable in this case.11 [19] I note that the IFA Jurisprudential Guide addresses relocation to south and central Nigeria. One of the IFAs proposed by the RPD, Kano, is not located in south or central Nigeria but in northern Nigeria closer to the border of Niger. As the IFA Jurisprudential Guide is being applied to this case, I find that the RPD erred when it considered Kano as a potential IFA. I will not consider Kano as a potential IFA. [20] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam:12 (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 risk of cruel and unusual treatment or punishment or 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.13 [21] Both prongs must be satisfied to find that an appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with an appellant to show that they do not have an IFA. The finding of an IFA must be based on a distinct evaluation of the region for that purpose, taking into account the appellant's personal circumstances. An IFA must be a realistic and attainable option. The appellant cannot be required to encounter great physical danger or undergo undue hardship in travelling there and staying there. [22] IFA in Nigeria is often considered by the RPD and RAD. After reviewing the relevant country documentation and jurisprudence, internal relocation in Nigeria is generally considered to be viable for refugee claimants and appellants fearing non-state actors. The Federal Court has recently upheld determinative findings of viable IFAs in Nigeria in cases where the alleged fear is related to allegations of, for example, witchcraft,14 female genital mutilation (or the refusal to submit one's child to such mutilation),15 forced participation in rituals,16 Boko Haram, threats of domestic violence at the hands of a former partner, Fulani herdsmen, and kidnappers.17 [23] The RPD complied with the procedural requirements to raise an IFA before or during the hearing. The RPD identified IFA as one of the determinative issues as the outset of the hearing on January 23, 2019.18 The RPD correctly identified the two-prong IFA test.19 First prong of the IFA test: no serious possibility of persecution in the proposed IFA [24] The RPD found that the Appellants did not establish, on a balance of probabilities, the ability and/or motivation of their agents of persecution to search for them throughout Nigeria and locate them in the proposed IFAs. [25] The Principal Appellant testified that he did not have any family members20 or know anyone in the proposed IFAs21 but that his agents of persecution would find him because people from the same tribe stay together in places where they don't have roots and they run into each other.22 When asked how his agents of persecution would find him, the Principal Appellant testified that members of his community participate in religious rituals and celebrations all over the country and that he could encounter them on the street, in a market or in church. He testified that he "could run into anyone at any place at any time."23 The RPD found this speculative and that the Appellants had not demonstrated how his agents of persecution would be able to search for the Appellants throughout Nigeria and find them in Abuja, 2.4 million, Port Harcourt, 2.3 million or Benin City, 1.5 million. [26] The RPD also found the Appellants' experience in Nigeria indicative of the inability of their agents of persecution to find them. The Appellants lived without incident in XXXX XXXX XXXX (in the same state and a XXXX XXXXhour drive away24 from their agents of persecution in XXXX) from XXXX 2002 to XXXX 2015 until, at their invitation, the Principal Appellant's parents came to live with them. [27] The Appellants do not make any submissions about the RPD's finding on the first prong of the IFA test. Following my own review I agree with the RPD that the Appellants did not demonstrate, on a balance of probabilities, that they would face more than a mere possibility of persecution or a risk of harm in the proposed IFAs. Second prong of the IFA test: it is not objectively unreasonable or unduly harsh for the Appellant to relocate to the proposed IFA [28] The issue is whether it would be unduly harsh or objectively unreasonable, in all the Appellants' circumstances, for them to relocate to the proposed IFAs in Abuja, Port Harcourt or Benin City. As detailed above I am not considering Kano as a potential IFA. After considering the Appellants' language, education and employment, religion and their documentary evidence the RPD concluded that the Appellants did not establish, on a balance of probabilities, that it would be unreasonable for them to move to the IFAs. [29] The Appellants submit that the IFAs are not reasonable for the following reasons: based on the travel advisories accepted as new evidence relocation to Kano, Port Harcourt or Abuja, would jeopardize the life and safety of the Appellants; the proximate location of Benin City to their community; the high cost of living in large Nigerian cities; and their lack of financial resources to re-establish themselves. [30] The Federal Court of Appeal has held that there is a very high threshold for the unreasonableness test and has reiterated the importance of not lowering that threshold:25 It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. 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. [31] I have considered each of the Appellants' arguments and, for the reasons detailed below, I find that the Appellants have not met the very high threshold for the unreasonableness test. Travel advisories [32] I have reviewed the travel advisories issued for Nigeria by the governments of Canada, the United Kingdom and New Zealand and note that they are not consistent in their advice about Port Harcourt and Abuja. [33] Canada advises against non-essential travel to Port Harcourt, while New Zealand counsels avoiding all travel and the United Kingdom does not mention Port Harcourt. [34] Canada counsels the exercise of a high degree of caution in Abuja due to the incidence of crime but also says, "the security situation is more stable and facilities are relatively well developed compared to the rest of the country."26 New Zealand also advises increased caution in Abuja due to the threat of terrorism and violent crime. The United Kingdom does not give a travel advisory for Abuja or Niger State but reports terrorism attacks and protests. [35] The travel advisories report indiscriminate acts of terrorism as well as the targeting of certain groups for attack, robbery and kidnapping. Target groups identified in the travel advisories include: foreign interests; oil and gas facilities and workers; foreign oil companies and expatriate workers; foreign nationals; tourists; and humanitarian and private sector workers. [36] To pass the very high threshold of the unreasonableness test the Appellants must establish that the risks they face are not also faced generally by other individuals in Nigeria.27 The Appellants are not foreigners to Nigeria or members of the target groups identified in the travel advisories. I find that the issues identified in the travel advisories are generalized risks faced by all Nigerians in the proposed IFAs. [37] Both Abuja and Port Harcourt have airports which would allow the Appellants to return directly.28 Benin City [38] I note that the travel advisories do not reference Benin City. The Appellants argue that the proximity of Benin City to their community, XXXX, would allow them to be easily located by their agents of persecution. [39] Benin City is approximately XXXX km from XXXX.29 The RPD observed that the Appellants lived without incident in XXXX XXXX XXXX in the same state and XXXX km away from their agents of persecution in XXXX from XXXX 2002 to XXXX 2015 until, at their invitation, the Principal Appellant's parents came to live with them. I find that the Appellants have not demonstrated that the distance between XXXX and Benin City or any other reasons which would render Benin City an unreasonable IFA. Cost of living [40] The Appellants submit that the cost of living in large cities in Nigeria is high and that the recommendation in the Canada travel advisory to stay in secure or guarded accommodations would make the cost of housing more expensive. The RPD assessed the adult Appellants' ability to secure employment and earn a living to cover their living expenses. The Principal Appellant ran his own business from 2003 to 2017 assisted by the adult female Appellant. Both of the adult Appellants are university educated and bilingual in English and Yoruba, the female adult Appellant also speaks Igbo. The objective evidence reports that women face considerable economic discrimination, however, educated women are far more likely to secure employment.30 In their circumstances, I am satisfied, on a balance of probabilities, that the Appellants would be able to secure both employment and accommodation in the IFAs. Lack of financial resources [41] The Appellants submit that they do not have any assets to help them re-establish in Nigeria. While I find that the Appellants could face hardship relocating to the proposed IFAs, "the hardship associated with relocation is not the kind that renders an IFA unreasonable."31 [42] With respect to the second prong of the IFA test, following my assessment of the RPD findings, the arguments of the Appellants and my own review, I find that the Appellants did not meet their high onus to demonstrate that relocating to Abuja, Port Harcourt or Benin City would be unduly harsh or objectively unreasonable in their particular circumstances. CONCLUSION [43] I agree with the RPD that the Appellants have a viable IFA in Abuja, Benin City or Port Harcourt. I am satisfied, on a balance of probabilities, that there is no serious possibility of the Appellants being persecuted in the proposed IFAs and that it would not be objectively unreasonable or unduly harsh in all the circumstances for them to live there. [44] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Susan Brown" Susan Brown November 28, 2019 Date 1 RPD-1, RPD Record, Exhibit 1, pages 24-103, as amended. 2 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 3 Ibid., and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 4 P-2, Appellants' Record, pages 14-32. 5 Ibid., pages 33-49. 6 Ibid., pages 50-53. 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 8 X (Re), 2018 CanLII 52123 (IFA Jurisprudential Guide). 9 Ibid., IFA Jurisprudential Guide. 10 Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126 (CanLII), para. 7. 11 RPD-1, RPD Record, page 6, RPD Decision, para. 13. 12 Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1 FC 706. 13 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1994 1 FC 589. 14 Doherty v. Canada (Citizenship and Immigration), 2017 FC 661. 15 Dakpokpo v. Canada (Citizenship and Immigration), 2017 FC 580; Egbesola v. M.C.I., 2016 FC 204. See RAD decisions: X (Re), 2016 CanLII 105374 (CA IRB) and X (Re), 2015 CanLII 111326 (CA IRB). 16 Melford-Jowoh v. Canada (Citizenship and Immigration), 2017 FC 455. See RAD decision X (Re), 2016 CanLII 106181 (CA IRB). 17 Dibia v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1076. 18 RPD-1, RPD Record, Hearing of January 23, 2019, Audio Recording 0:28:00. 19 RPD-1, RPD Record, RPD Decision, page 6, para. 12 and page 8, para. 21. 20 RPD-1, RPD Record, Hearing of January 23, 2019, Audio Recording 1:39:40-1:40:05. 21 RPD-1, RPD Record, Hearing of January 23, 2019, Audio Recording 1:49:45. 22 RPD-1, RPD Record, Hearing of January 23, 2019, Audio Recording 1:51:30-1:53:30. 23 RPD-1, RPD Record, Hearing of January 23, 2019, Audio Recording 1:43:00-1:43:45, 1:44:10-1:44:30, 1:44:45- 1:45:13, 1:46:15-1:46:25, 1:47:20-1:47:40, 1:48:20-1:48:30 and 1:49:25-1:49:40. 24 RPD-1, RPD Record, Hearing of January 23, 2019, Audio Recording 0:43:00-0:43:27. 25 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, paras. 15-16, citing Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. 26 P-2, Appellants' Record, page 17. 27 IRPA, section 97(1)(b)(ii). 28 RPD-1, RPD Record, Exhibit 3, National Documentation Package, Nigeria, 21 December 2018, tab 1.1: Nigéria. L'Encyclopédie en ligne. Larousse. 29 Ibid., tab 1.2: Nigeria. United Nations. Cartographic Section. August 2014. 30 Ibid., tab 5.9: 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... Immigration and Refugee Board of Canada. 19 November 2012. NGA103907.E., page 4. 31 Okechukwu v. Canada (Citizenship and Immigration), 2016 FC 1142 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-12364 MB9-12365 / MB9-12366 / MB9-12367 MB9-12368 RAD.25.02 (April 04, 2019) Disponible en français 11 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