MC0-08725

RAD File / Dossier de la SAR : MC0-08725 MC0-08726 / MC0-08727 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personne|s en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 9, 2021 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the person|s who is|are the subject of the appeal Tshiombo Achille Kabongo Barrister & Solicitor Conseil de la|des personne|s 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] These are my reasons for dismissing the appeal of XXXX XXXX XXXX ("Principal Appellant") and her minor children XXXX XXXX XXXXand XXXX XXXX XXXX ("Minor Appellants"). The Refugee Appeal Division ("RAD") upholds the determination of the Refugee Protection Division ("RPD") that the Appellants are neither Convention refugees nor persons in need of protection. [2] The Appellants, citizens of Nigeria, claim a fear of persecution at the hands the Principal Appellant's in-laws, who disapprove of her marriage because she is from a different tribe. According to their allegations, the Principal Appellant's in-laws have physically attacked her and attempted to kidnap her children; the police refused to assist. [3] The RPD noted credibility concerns with the claim; in particular, the panel did not accept that the Appellants had relocated from Warri to Lagos to get away from the Principal Appellant's in-laws and concluded the family had actually already been living in Lagos. Nevertheless, the panel accepted the remaining allegations as credible for the purposes of its internal flight alternative ("IFA") analysis. The RPD ultimately found that the Appellants had a viable IFA in Abuja. [4] On appeal, the Appellants submit that the panel erred in applying a revoked Jurisprudential Guide; erred in ignoring the Minister's submissions, the Principal Appellant's testimony, and corroborative evidence; intimidated the Principal Appellant and failed to apply the Chairperson's Gender Guideline; and applied the incorrect framework to its IFA analysis. They continue to submit they do not have a viable IFA, and further argue that the new evidence they are presenting establishes an ongoing risk to them upon return. SCOPE OF THE APPEAL Role of the RAD [5] Generally, I must review a decision of the RPD on a standard of correctness.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing the credibility of oral testimony, which may attract deference in particular cases.2 In this case, however, the RPD had no advantage. I have therefore considered whether its decision was correct. New evidence rejected [6] The Appellant seeks to admit the following new evidence on appeal, by way of a Rule 29 application: i. Affidavit of the Principal Appellant, sworn XXXX XXXX 2020 ii. Affidavit of the Principal Appellant's husband, sworn XXXX XXXX 2020 iii. Affidavit of the Principal Appellant's younger brother, sworn XXXX XXXX 2020 [7] The RAD can only accept evidence that arose after the RPD decision, or was not reasonably available at the time of the decision, or could not reasonably have been expected to be presented to the RPD before it made its decision.3 If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.4 Rule 29 imposes additional requirements on evidence submitted after the Appellant's record has been filed. In order for a document to be admitted, I must first consider its relevance and probative value; any new evidence the document brings to the appeal; and whether the person subject to the appeal could have, with reasonable effort, provided the document with the record.5 [8] In this case, the affidavit of the Principal Appellant's younger brother actually speaks to a meeting which occurred on XXXX XXXX 2020, prior to the RPD's rejection of the claim on 24 June 2020. The Appellants have not provided an explanation as to why his affidavit could not have been provided in post-hearing submissions prior to the RPD's decision, let alone when the appeal record was filed. For this reason, the affidavit is rejected. [9] The affidavit of the Principal Appellant's husband recounts the basis of the Appellants' claim and speaks to a threatening visit from his family on XXXX XXXX 2020. While the visit post-dates the rejection, the Appellants have failed to explain why they could not have provided his affidavit with their appeal record. For this reason, it is rejected. [10] Because the Principal Appellant's affidavit merely speaks to the affidavits of her husband and brother, it too is rejected. [11] In any event, none of this evidence would have been determinative of the appeal. The affidavits did not actually address the means of the agents of persecution to locate the Appellants in the proposed IFA of Abuja. The fact that the Principal Appellant's in-laws have continued to issue threats does not establish that they would be able to find the family in a new location. Oral hearing not required [12] The Appellants have requested an oral hearing. The RAD can only hold a hearing if there is new evidence that raises a serious issue with respect to the Appellants' credibility, which is central to the decision in the claim, and, if accepted, would justify accepting or rejecting the claim.6 In this case, because the new evidence has been rejected, I have no jurisdiction to convene a hearing. ANALYSIS Determinative issue remains IFA [13] The determinative issue on appeal remains IFA. For the following reasons, I am not persuaded that the RPD erred and agree with the panel that the Appellants have a viable IFA in Abuja. [14] The test for IFA is two-pronged. The Board must be satisfied on a balance of probabilities that there is no serious possibility of persecution or personal risk to life, torture, or cruel and unusual treatment or punishment in the proposed location,7 and conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there.8 Both prongs of the test must be satisfied for a viable IFA to be established. Once the issue is raised, the onus is on the claimant to demonstrate that they do not have a viable IFA. [15] The Appellants have made a number of preliminary arguments which are simply not made out: * First, the Appellants submit that the RPD erred by relying on a Jurisprudential Guide which has been revoked.9 In fact, there is no mention of the Jurisprudential Guide in the panel's reasons. * They further argue that the RPD applied the incorrect framework to its analysis. They have not actually specified where the RPD erred or why the framework was incorrect.10 A review of the RPD decision shows that the panel correctly identified and applied the test for IFA.11 * In addition, the Appellants submit that because Minister's counsel before the RPD conceded that IFA was not an issue for him, the panel erred in finding the Appellants could relocate.12 With respect, the Minister's position is not determinative of the claim. Regardless of his position, the onus was on the Appellants to show they did not have a viable IFA. * They also argue that the Principal Appellant was afraid of the male board member.13 With respect, this is a serious allegation which the Appellants have failed to support with any evidence. A review of the hearing does not indicate there were any problems, nor have the Appellants provided any examples. Counsel at the RAD also represented the Appellants before the RPD. At no time did they object to the questions being asked, nor is there any evidence to suggest a request for accommodation was made, let alone denied. [16] On the first prong of the test, the Appellants submit that the RPD erred by not considering the alleged persecution by the Principal Appellant's in-laws.14 With respect, this argument is also not made out. The RPD analyzed the allegations in depth. It explained why it did not find the Appellants had credibly established their relocation from Warri to Lagos.15 For this reason, the panel did not accept that the in-laws had actually found the family in Lagos, but that their location in Lagos was already known. The Appellants have not challenged this finding on appeal. The panel further found that, even if the alleged threats were credible, the Appellants had not established that their agents of persecution would be able to locate them in Abuja.16 [17] The Appellants further submit that the Principal Appellant's ongoing marriage to her husband, including their intention to reside together upon return, means that the in-laws would necessarily know the family's location.17 According to the Principal Appellant's evidence, her husband continues to support her, and has rejected demands from his family to leave her.18 Given the Principal Appellant's husband has stood up to his family, I do not accept, on a balance of probabilities, that he would give up the family's location in Abuja. The Appellants have failed to explain how the ongoing relationship would result in their location being known. [18] The Appellants also repeat their submission that the Principal Appellant's brother-in-law is a powerful thug, popular and well-known to politicians, who would be able to use her photo to have her located in Abuja.19 The RPD rejected this argument as speculative.20 In Kassim, the Federal Court found that a claimant's belief that their agent of harm is powerful does not establish such an allegation on a balance of probabilities.21 A finding that there is a lack of evidence establishing an agent of persecution's influence and connections does not represent an adverse credibility determination or offend the principle that it is an error to reject a claim because of a lack of corroborative evidence in the absence of a reason to doubt the claimant's credibility.22 A focus on the profile of the agents of persecution is supported by the jurisprudence.23 In this case, the Appellants have not provided any corroborative evidence to establish the reach of the agents of persecution. The RPD did not err in finding the Principal Appellant's concerns speculative. I agree that the Appellants have failed to establish their agents of persecution have the means to locate them in Abuja. [19] The Appellants further submit that the RPD ignored corroborative affidavits on the record.24 They do not actually specify which documents were ignored or how this evidence would have established their allegations. Ultimately, while the panel accepted for the purposes of its IFA analysis that the Principal Appellant had been threatened by her in-laws, it did not find that the Appellants had established that they would be located in Abuja. Having reviewed the record, I find that the affidavits do not actually help in this regard.25 They speak to threats faced by the Appellants in Lagos; the panel's unchallenged finding was that the Appellants were already living in Lagos, so their location was known to their in-laws. On a balance of probabilities, I do not find that the affidavits before the RPD establish the reach of the agents of persecution. The panel did not err in this regard. [20] On the second prong of the test, the Appellants submit that they would not be able to travel safely to Abuja.26 They did not raise this as an issue before the RPD, nor have they provided any evidence in support of their argument on appeal. I note that Abuja has an international airport.27 As such, the Appellants would be able to travel to the city directly without transiting through Lagos, where they were previously threatened. On a balance of probabilities, I find the Appellants would be able to reach Abuja safely. [21] They also submit that the RPD ignored the Chairperson's Gender Guideline. They argue that the high cost of living combined with the difficulties the Appellants would face finding shelter and employment, in particular noting gender discrimination in labour force participation and wages, make relocation unreasonable. I note that apart from the high cost of living, the Appellants did not raise these issues when questioned on whether they could relocate to Abuja at the hearing, nor did counsel, who remains counsel before the RAD. [22] At the RPD, the Appellants submitted that they would be relocating without the Principal Appellant's husband, since he would be unable to start over in a new city.28 The panel found that the Principal Appellant's husband would be able to find work if he were to relocate to Abuja, and that even if he did not make the move, he could continue to support the family.29 The Appellants have not actually challenged this finding on appeal. As noted above, they are now submitting that they would be residing with the Principal Appellant's husband upon return.30 [23] Given this support, while I acknowledge that women face discrimination in employment and that single women in particular face difficulties accessing housing,31 I find that the impact of gender discrimination will be mitigated. In addition, I note that women's employment opportunities reportedly increase with their level of education, and women in urban areas are more likely to find employment than their rural counterparts.32 The Principal Appellant herself is well-educated, with 18 years of education in total, including 5 years of university and an additional 2 years of post-secondary.33 She has a XXXX XXXX in XXXX as well as a XXXX XXXX in XXXX.34 She was self-employed for approximately 4 years in Lagos, XXXX XXXX and XXXX to the public.35 The average level of education for women in Nigeria is 8 years.36 I find that with her education and work experience, the Appellant is in a better position than the average Nigerian woman to find employment. Together with the ongoing support of her husband, I find that the Principal Appellant will be able to support the family. While I acknowledge the cost of living is high in Abuja and housing is expensive,37 because I have found the Appellants will be able to support themselves, I am not persuaded that they will not be able to afford housing. [24] Finally, the Appellants repeat their submission that there is general insecurity in Abuja.38 At the RPD, the Principal Appellant noted violence by Fulani herdsman and Boko Haram in particular. The panel determined that the herdsman violence was actually taking place in the surrounding states. While it acknowledged sporadic violence by Boko Haram in Abuja, it found that its primary areas of influence were outside of the Federal Capital Territory and that, as such, it was unlikely the Appellants would be targeted in Abuja, on a balance of probabilities.39 Apart from noting insecurity in Abuja, the Appellants have not actually challenged these findings on appeal. Having reviewed the record and the country documentation, I agree with the RPD's findings and conclude the panel did not err. [25] Relocation will always involve some level of hardship. The threshold to find an IFA objectively unreasonable is very high and requires, at a minimum, concrete evidence of adverse conditions which would jeopardize the Appellant's life and safety.40 The Appellants bear the onus of establishing that it is unreasonable to expect them to seek safety in a different part of the country. In this case, they have failed to do so. The RPD did not err in its conclusion on the second prong. CONCLUSION [26] For the reasons set out above, I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Caitlin Maxwell" Caitlin Maxwell February 9, 2021 Date 1 Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, at para. 103. 2 Ibid., at para. 70. 3 Immigration and Refugee Protection Act (S.C. 2001, c. 27) ["IRPA"], s. 110(4). 4 Canada (Citizenship and Immigration v Singh, 2016 FCA 96, at para. 74. 5 Refugee Appeal Division Rules (SOR/2012-257), Rule 29(4). 6 IRPA, s. 110(6). 7 Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 8 Ibid., at 709, 711. 9 Exhibit P-2, Appellants' Memorandum, p. 15, para. 33. 10 Ibid., at para. 31. Refugee Appeal Division Rules (SOR/2012-257), s. 3(3)(g) requires Appellants to include full and detailed submissions regarding how the RPD erred, and specifically where the RPD erred in its decision; see also, Liu v Canada (Citizenship and Immigration), 2017 FC 736, at para. 25; Yimer v Canada (Citizenship and Immigration), 2019 FC 1335, at para. 16; Dakpokpo v Canada (Citizenship and Immigration), 2017 FC 580, at para. 14. 11 Exhibit RPD-1, RPD Record, Reasons and Decision, paras. 16-17. 12 Exhibit P-2, Appellants' Memorandum, p. 15, para. 32. 13 Ibid., p. 17, para. 36. 14 Ibid., p. 15, para. 31. 15 Exhibit RPD-1,RPD Record, Reasons and Decision, paras. 20-23. 16 Ibid., paras. 13, 24-27. 17 Exhibit P-2, Appellants' Memorandum, p. 15, para. 31. 18 Exhibit RAD-1, Transcript of RPD hearing, 24 February 2020, pp. 23-24, lines 49-1; Exhibit RPD-1, RPD Record, BOC Narrative, pp. 149-152. 19 Exhibit P-2, Appellants' Memorandum, p. 16, para. 34. 20 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 26. 21 Kassim v Canada (Citizenship and Immigration), 2018 FC 621, at para. 22. 22 Ibid. 23 Mayorga v Canada (Citizenship and Immigration), 2012 FC 987, at para. 31; Nimako v Canada (Citizenship and Immigration), 2013 FC 540, at para. 7; Gonzalez Martinez v Canada (Citizenship and Immigration), 2012 FC 5, at para. 11. 24 Exhibit P-2, Appellants' Memorandum, p. 17, para. 37. 25 Exhibit RPD-1, RPD Record, Affidavit of Principal Appellant's husband, p. 153; Affidavit of friend of Principal Appellant's husband, p. 158; Affidavit of Principal Appellant's sister-in-law, p. 160. 26 Exhibit P-2, Appellants' Memorandum, p. 15, para. 33. 27 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package ("NDP") for Nigeria (31 July 2020), Item 1.2, United Nations Cartographic Section, Nigera, August 2014. 28 Exhibit RAD-1, Transcript of RPD hearing, 24 February 2020, p. 32, lines 12-17; Exhibit RPD-1,RPD Record, Reasons and Decision, para. 32. 29 Exhibit RPD-1, RPD Record, Reasons and Decision, para. 32. 30 Exhibit P-2, Appellants' Memorandum, p. 15, para. 31. 31 See, e.g., Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (31 July 2020), Item 5.9, IRB Research Directorate, "Whether women who head their own household, without male or family support, can obtain housing and employment in Abuja, Lagos, Ibadan, and Port Harcourt; government support services available to female-headed households (2017-November 2019)," NGA106362.E, 20 November 2019. [I note that this document remains in the current NDP (30 November 2020).] 32 Ibid., p. 5. 33 Exhibit RPD-1, RPD Record, Exhibit 1, Principal Appellant's Schedule A, p. 100. 34 Ibid. 35 Ibid., p. 101. 36 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (31 July 2020), Item 1.6, US Central Intelligence Agency, ?Nigeria: The World Factbook, 13 November 2019, p. 7. [This rate remains the same in an updated version of this document contained in the current NDP: see NDP for Nigeria (30 November 2020), Item 1.6, US Central Intelligence Agency, ?Nigeria: The World Factbook, 18 November 2020, p. 7.] 37 See, e.g., Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (31 July 2020), Item 13.1, IRB Research Directorate, "?Role of indigeneship in obtaining employment, housing and social services; how indigeneship is established and identified; obstacles faced by non-indigenes when relocating to Abuja, Lagos or Port Harcourt; assistance available to those who relocate (2017- October 2019)," NGA106361.E, 30 October 2019, p. 16 [I note that this item remains in the current version of the NDP (30 November 2020).] 38 Exhibit P-2, Appellants' Memorandum, p. 16, para. 34. 39 Exhibit RPD-1, RPD Record, Reasons and Decision, paras. 30-31. 40 Singh v Canada (Citizenship and Immigration), 2013 FC 988, at para. 40. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-08725 MC0-08726 / MC0-08727 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