TB8-01759

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 / Dossier de la SAR : TB8-01759 TB8-01760 / TB8-01761 / TB8-01762 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision February 1, 2019 Date de la décision Panel Christina Harrison Baird Tribunal Counsel for the person(s) who is(are) the subject of the appeal Ochiemuan Okojie Conseil(s) (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] XXXX XXXX XXXX, and her minor daughters, XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX, are citizens of Nigeria.1 They appeal the decision of the Refugee Protection Division (RPD), which rejected their claims. They allege that if they return to their country they will be harmed by female genital mutilation (FGM) and other rituals forced upon them by the family of the Appellant's spouse, who is the father of the minor Appellants. The Appellant claims that her spouse's family is threatening and harassing her in order to make her produce a male heir. She states that the family is powerful and networked throughout Nigeria, and that her attempt to get protection from the police in XXXX was unsuccessful. [2] The determinative issue in this appeal is whether the RPD erred in concluding that there is an internal flight alternative (IFA) for the Appellant and her daughters in Port Harcourt. The RPD found that the Appellants would not face a risk in Port Harcourt because more likely than not, the people seeking to harm them would not find them there. In addition, the RPD found that FGM is prohibited in Rivers State and that documentary evidence showed women and girls in the Appellants' situation could refuse it. The RPD also found that it was reasonable for the Appellants to relocate to Port Harcourt. [3] The Appellants submit that the RPD erred in rejecting the Appellant's evidence about the ability of her husband's family to find them. The Appellants also submit that the RPD was selective in its use of documentary evidence, ignoring evidence that contradicts its conclusion about FGM, and evidence about the reasonableness of Port Harcourt in view of violence and kidnapping occurring there. [4] The RPD was correct in its assessment of the IFA. Therefore I dismiss the appeal. The Appellants are not refugees or persons in need of protection. ANALYSIS The Affidavit of the Appellant's spouse is admissible as new evidence [5] In light of the RPD's conclusion regarding the IFA in Port Harcourt, described in its Reasons dated November 10, 2017, the Appellants have proposed new evidence. [6] The test for admissibility of new evidence is provided in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), which states that the person who is the subject of the appeal ?here, the Appellants? 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 addition, the jurisprudence requires the evidence to be new, credible and relevant.2 [7] The Appellant presents an affidavit from her spouse dated February 6, 2018. Her spouse attests that sometime in XXXX 2017, his cousin who had been living in Port Harcourt, contacted him with the intention to relocate to XXXX and moved there in XXXX 2018, due to "the incessant murders and kidnapping in the Port Harcourt." Moreover, the Appellant's spouse swears that he believes, due to his own reading of the news, that Port Harcourt "has become unsafe" due to the "activities of the Fulani herdsmen and the Niger Delta Militants including other violent groups."3 [8] I find that the evidence of the cousin's relocation clearly arose after the RPD rejection of the Appellants' claim. This evidence is new, credibly emanates from the Appellant's spouse, and is directly relevant to the determinative question of IFA in this appeal. The Affidavit is admitted as Exhibit PA-1. Some news articles are admissible as new evidence [9] The Appellants also propose a series of eleven news articles with dates throughout January 2018. The news reported therein clearly arose after the rejection of the Appellant's claim and appears to be from credible news sources. Articles about cult violence are admissible [10] Several of the news articles describe two violent incidents linked to cults, and also mention kidnapping and murder in Rivers State. The specified incidents occurred in Omoku, Egbeda and Andoni, each more than 70 km outside of Port Harcourt.4 From this I conclude that they have limited relevance to the IFA proposed for the Appellants. However, the incident in Omoku affected Christians returning from worship and for this reason I recognize some relevance. This relevance is mitigated by information that the worshippers were not the cult's original target, and that within one week of the cult incidents, the leaders responsible were arrested or killed. 5 I understand from these articles that the issue of security in Rivers State is highly politicized: a state representative claims that Rivers is the subject of false allegations, that it receives insufficient federal assistance, and that "insecurity can affect anybody."6 In contrast, a federal representative claims that the state has abdicated its responsibility to safeguard lives and property.7 I admit these articles as Exhibit PA-2, for my consideration below of the reasonableness of the IFA.8 In so doing, I note that the RAD Rules require the Appellants to explain how each document proposed as new evidence relates to them.9 These Appellants have not done so. Lacking such a submission, I find the value of these articles is diminished. Articles about herdsman-farmer violence are not admissible [11] Some of the articles also refer to violence between Fulani herdsmen and farmers.10 However, none of the incidents described occurred in Port Harcourt. In addition, the incidents did not touch people who share the profile of the Appellants, that is, urban females of Igbo ethnicity with no links to either herding or farming. The evidence indicates that the family of the Appellant and her spouse made their living in selling XXXX XXXX and in a XXXX XXXX.11 While I recognize that there have been security incidents in Rivers State, I find it more likely than not that the Appellants would be untouched by herdsman-farmer violence in Port Harcourt. Moreover, even though the news articles presented by the Appellants arose after the rejection of their claim, the conflict between the famers and herdsmen existed well before that rejection.12 Refugee claimants must do their utmost to present their best case at the RPD, including addressing the issue of IFA. They are not permitted to split their case by presenting evidence on appeal that would have been available earlier with reasonable effort. I find the information in these news articles does not impact the reasonableness of the IFA. [12] These news articles are not admissible as new evidence in this appeal because the Appellants have failed to demonstrate the relevance of the articles to the reasonableness of their IFA in Port Harcourt. No oral hearing is convened [13] The general rule is that the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD.13 The RAD only has discretion to hold an oral hearing when there is additional documentary evidence and all of the conditions in subsection 110(6) of IRPA are met.14 [14] I have held that some of the documents proposed by the Appellants meet the criteria for admission as new evidence. Neither Exhibit PA-1 nor PA-2 raises an issue with respect to the credibility of the Appellants that is both serious and central to my decision, and that could result in the rejection or the acceptance of this refugee claim. Therefore they do not meet the criteria for examination at an oral hearing. [15] The Appellants' request for an oral hearing is denied. The RPD analysis of the IFA was correct [16] The RPD correctly stated the two-part test for IFA in Port Harcourt, including the aspects of both risk and reasonableness.15 The Appellants would not face a serious possibility of persecution in Port Harcourt [17] Having conducted an independent assessment of the evidence, I find that the Appellants have failed to show it is more likely than not that they would be found in Port Harcourt by the family of the Appellant's spouse. Moreover, I find that the Appellant and her spouse, standing together, would be able to refuse FGM for the Appellant and her daughters. i. The Appellants have not shown that they would be found [18] The Appellant testified at the RPD that her husband had a cousin in Port Harcourt and that this fact made it more likely that the Appellants would be found by their persecutors if they relocated there. The new evidence does not augment the evidence in the RPD Record about how the family of the Appellant's spouse would find the Appellants in Port Harcourt. If anything, Exhibit PA-1 may indicate a diminished risk. The Appellant's husband gave written testimony that his cousin from Port Harcourt is now living with him in XXXX.16 Whether or not this is the same cousin to whom the Appellant referred, I find the Appellant has given insufficient evidence to establish that her husband's family could find the Appellants in Port Harcourt. [19] The record confirms that RPD asked the Appellant several times how they would find her.17 The Appellant testified that they would locate her by mentioning her at monthly community meetings and spreading out to look for her. She also claimed that she would have to be in hiding to avoid being discovered and that her children would be unable to go to school.18 [20] On appeal, Counsel argues that the RPD failed to confront the Appellant with a question about the likelihood of running into her husband's family. Moreover, Counsel argues that had the RPD posed such a question, the Appellant would have been able to explain specific places where she might run into them, and Counsel names several.19 I do not find this argument persuasive for two reasons. First, once the issue of IFA has been raised and the potential IFA identified, the burden of proof rests with the Appellants to show that they do not have an IFA. Therefore it was up to the Appellant to give the necessary evidence at the RPD about the likelihood and places that she might meet members of her husband's family. Second, it is not for Counsel to give evidence for the Appellant in the Memorandum of Argument. The Appellant could and did name one of the locations Counsel lists at the RPD hearing, and she did not see fit to mention the others in her Affidavit sworn on February 8, 2017.20 The Appellants' argument about procedural unfairness is not persuasive. [21] Moreover, simply naming locations where the Appellants might run into members of their extended family does not lead logically to a finding that it is more likely than not that the Appellants would be found in Port Harcourt. I adopt the RPD reasons for finding that the Appellant's testimony on this point was speculative and not supported by sufficient evidence.21 In legal terms, the Appellant may be subjectively fearful of being discovered in Port Harcourt, but she has failed to demonstrate that her fear is objectively well founded. ii. The Appellants have not shown that they would be forcefully subjected to FGM [22] The RPD also found that since FGM is prohibited in Rivers State and the Appellant and her spouse oppose it, the Appellants would be able to refuse and would not be subject to this harmful practice. The RPD referred to three expert opinions that parents have an important role to play and can refuse FGM, noting that one expert opined "nobody will walk into somebody else's home" to perform it.22 Moreover, the RPD referred to evidence that where women and girls are supported by their husband or father, there is little or nothing to force them to undergo FGM.23 The RPD emphasized that higher education seemed to correlate to greater resistance to the practice, which pertained to the Appellant and her spouse, both university educated.24 [23] The Appellants argue that the RPD was selective in its use of documentary evidence, ignoring evidence that contradicts its conclusions about FGM. In particular, they refer to evidence that the prohibition of FGM cannot be considered effective since police view this as a family issue and refuse to enforce the law; and since, consequently, few people lodge complaints with the police.25 [24] I take the Appellants' point that the RPD Reasons do not reflect that it weighed contradictory aspects of the documentary evidence in coming to its conclusion. I do so here. In addition to the views highlighted by the RPD, experts also indicated that even though parents can lodge complaints at the police station in states where FGM is prohibited, including Rivers State, many people view FGM as a family issue. Moreover, the police are most likely to use this very rationale for refusing to intervene.26 This documentary evidence does paint an uncertain picture of state protection from the Nigerian police, which concords with the Appellant's evidence. [25] In this case, I find that the most important means of protection is the will of both the Appellant and her spouse to refuse harmful traditional practices and protect their daughters. Since the evidence is that they are educated, in possession of transferable job skills, and united in their opposition, I give the adequacy of police protection less weight in this case. I note also the documentary evidence that non-governmental organizations, civil society organizations and religious leaders are considered more effective recourse for protection against FGM than the police.27 In the Egbesola case, the RAD and the Federal Court upheld the conclusion of the RPD that Port Harcourt was a viable IFA for refugee claimants alleging a threat of FGM at the hands of their family.28 [26] Having reviewed the cited documents in the NDP, I find that the record contains insufficient evidence the Appellant's in-laws have either the will or the means to find and carry out their alleged intentions to harm the Appellants. Based on this reasoning, I am satisfied on a balance of probabilities that there is no serious possibility of the Appellants being persecuted in Port Harcourt. [27] In addition, since the Appellants have not adduced evidence to this effect, I am further satisfied that in Port Harcourt the Appellants would not be personally subject to a risk to life, or risk of cruel and unusual treatment or punishment, or danger of torture. I consider below their arguments about the general security situation in Port Harcourt. It is reasonable for the Appellants to relocate to Port Harcourt [28] I find that the conditions in Port Harcourt are such that it would not be unreasonable in all the circumstances, including the Appellants' particular situation, for them to seek refuge there. Approximately a quarter of the population in Port Harcourt is Igbo.29 The Appellants did not originate in Port Harcourt and indigeneship status is important in some parts of Nigeria. However, indigeneship is said to be less important in big cities like Port Harcourt because the indigene population has been overwhelmed by migrants.30 [29] In addition, there is a significant Christian population in Port Harcourt. There is no indication that this population is a target for cult violence, despite the tragic incident on New Year's Day 2018. I find that the Appellant and her daughters would be able to practise their Catholic faith in Port Harcourt. Indeed, the church has been active in assisting women to relocate and re-establish upon return to Nigeria after being trafficked abroad.31 Given that the Appellants' vulnerabilities and relocation needs may be somewhat analogous, I infer that the Catholic Church may be a useful resource in helping them to establish. In addition, the RAD has noted previously that this city is easily accessible by air travel and offers ample access to healthcare.32 [30] The Appellants submit that the RPD relied on an irrelevant consideration to find that relocation to Port Harcourt was reasonable. They argue that the Appellant's adaptability in Canada is irrelevant to the reasonableness of the IFA. This argument is not persuasive. The RPD was correct to refer to the evidence that the Appellant possesses "the skills necessary to be self-reliant" if she returns to Nigeria, given her evidence that her husband would not join her in any IFA.33 I acknowledge that the economic challenges of relocation to Port Harcourt are significant. The cost of living is very high and it is very difficult to obtain employment in the formal sector in Port Harcourt.34 Housing is very expensive and in short supply.35 However, the Appellant has worked in both XXXX and XXXX, has earned a university degree, and has traveled widely. Therefore I agree with the RPD that she is comparatively well-equipped to find employment in the capital of Rivers State, which is an industrial centre and the primary oil refining city in Nigeria, and which hosts multinational corporations and foreign nationals. [31] I distinguish the Utoh case, cited by Counsel for the proposition that adaptability demonstrated in Canada is irrelevant to the IFA assessment. In that case the RPD did not cite any evidence for its assertion that the claimant had managed to establish herself in Canada, and failed to consider the refugee claimant's testimony about the significant social, economic and cultural challenges she would face to relocate alone in Nigeria.36 In this case, the RPD considered these factors, including ethnicity, faith, education, employment experience, language, and experience living outside her previous home city.37 I adopt and amplify the RPD Reasons on this point. The RPD also accepted and gave due consideration to a psychotherapist report, but concluded that its content did not render relocation unreasonable.38 I agree that the Appellants have not established mental health as a barrier to the reasonableness of the IFA. [32] In part based on the new evidence in Exhibit PA-2, I find that the greatest challenges for the Appellants upon relocation are socio-cultural, regarding the security situation and social isolation. As noted above, there have been security incidents in Port Harcourt. However, the incidents described in the documentary evidence do not demonstrate that the Appellants would endanger their life and safety simply by relocating to Port Harcourt. They may wish to avoid the social networks of the Appellant's in-laws, with the result that they may feel socially isolated. However, the Appellant testified that she was from a different village from her spouse's, and I find there is no evidence that she would need to avoid her own people in order to remain safe. CONCLUSION [33] Having conducted my own analysis of all the evidence, I conclude that the RPD did not make any determinative error in its assessment of the evidence, and that the IFA finding of the RPD was correct. I agree with the RPD that the Appellants do not face a serious possibility of persecution in Port Harcourt. The RPD showed sensitivity to the potential vulnerability of the Appellant and her daughters and gave due consideration to all four claims, including the gender dimension and the best interests of the children. [34] The IFA of Port Harcourt offers adequate protection from the alleged harms, whether persecution under section 96 or the harms described in section 97 of IRPA. The Appellants have not demonstrated that they would be at risk throughout Nigeria. As a result they are not refugees or persons in need of Canada's protection. [35] The appeal is dismissed. (signed) Christina Harrison Baird Christina Harrison Baird February 1, 2019 Date 1 At the RPD, XXXX XXXX XXXX (the Appellant) was appointed to be the designated representative of the minor Appellants. This designation continues for the purpose of the appeal pursuant to Rule 23(1), Refugee Appeal Division (RAD) Rules. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44-49. 3 Appellant's Record, Affidavit of Facts, page 59, hereinafter Exhibit PA-1. 4 Appellant's Record, News articles, pages 60?72 and 76?78. 5 Ibid., pages 70?72 and 79?83. 6 Ibid., pages 60?64. 7 Ibid., pages 76?78. 8 Appellant's Record, News articles, pages 60?72 and 76?83, hereinafter Exhibit PA-2. 9 RAD Rule 3(3)(g)(iii). 10 Appellant's Record, News articles, pages 73?75 and 79?94. 11 Transcript of RPD hearing on October 31, 2017, page 16, lines 9?35; page 26, lines 11?24; and page 38, lines 10?31. 12 Appellant's Record, News articles, pages 93?94. 13 Subsection 110(3) of IRPA. 14 Balde v. Canada (Minister of Citizenship and Immigration), 2015 FC 624 at para. 32. 15 RPD Reasons, para. 17. 16 Exhibit PA-1, Appellant's Record, Affidavit of Facts, page 59. 17 Transcript of RPD hearing on October 31, 2017, page 26, lines 42 and 48, page 27, line 8, and page 41, line 30. 18 Ibid., page 26, line 31 to page 27, line 34. 19 Appellant's Record, Memorandum of Appeal, para. 8. 20 Appellant's Record, Appellant's Affidavit, pages 14?18, see especially para. 14. 21 RPD Reasons, paras. 19?26. 22 National Documentation Package (NDP) for Nigeria, March 31, 2017, Tab 5.12. 23 Ibid., Tab 5.17. 24 Ibid., Tab 5.12. 25 Appellant's Record, Memorandum of Appeal, paras. 9?10. 26 National Documentation Package (NDP) for Nigeria, March 31, 2017, Tab 5.12. 27 Ibid., Tab 5.17. 28 Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204; RAD decision: X (Re), 2015 CanLII 111326 (CA IRB). See also Onyeme v. Canada (Citizenship and Immigration), 2018 FC 1243; RAD decision: X (Re), 2017 CanLII 145533 (CA IRB). 29 National Documentation Package (NDP) for Nigeria, March 31, 2017, Tab 12.6, Response to Information Request (RIR) NGA104679.E, December 6, 2013, page 2. 30 Ibid., Tab 13.1, Response to Information Request (RIR) NGA104216.E, November 20, 2012, pages 8?9, cited in X (Re), 2018 CanLII 52123 (CA IRB), at para. 28. 31 Ibid., Tabs 5.2 and 5.8. 32 X (Re), 2015 CanLII 111326 (CA IRB). 33 National Documentation Package (NDP) for Nigeria, March 31, 2017, Tab 5.9, Response to Information Request (RIR) NGA103907.E, November 19, 2012, page 4. 34 Ibid., Tab 12.6, Response to Information Request (RIR) NGA104679.E, December 6, 2013, page 3. 35 Ibid., pages 5?6. 36 Utoh v. Canada (Citizenship and Immigration), 2012 FC 399 (CanLII). 37 RPD Reasons, paras. 39?41. 38 RPD Reasons, para. 44. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-01759 TB8-01760 / TB8-01761 / TB8-01762 12 RAD.25.02 (September 18, 2018) Disponible en français