MB3-02612

N° de dossier de la SAR/RAD File No.: MB3-02612 Huis clos/Private Proceeding Motifs et décision - Reasons and Decision Personne(s) en cause XXXXX XXXXX XXXXX Person(s) who is(are) the subject of the appeal Appel instruit à Montréal, Québec Appeal considered / heard at Date de la décision October 8th, 2013 Date of Decision Tribunal Stephen J. Gallagher Panel Conseil(s) de l'Appelant Johnson Babalola Counsel for the Appellant Représentant(e)(s) désigné(e)(s) N/A Designated Representative(s) Conseil du (de la) Ministre N/A Counsel for the Minister REASONS AND DECISION [1] Ms. XXXXX XXXXX XXXXX is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. She has not presented new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD, namely, that Ms. XXXXX is neither a "Convention refugee" pursuant to s. 96 of IRPA nor a "person in need of protection" pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellant alleges that she is at risk of gender related persecution at the hands of a Chief, identified as Chief XXXXX XXXXX. The Appellant alleges that her uncle, identified as Mr. XXXXX XXXXX, instigated an arranged marriage with this Chief and in order to consummate this marriage the Appellant is required to undergo Female Genital Mutilation (FGM). The Appellant alleges that the police aided the Chief and her uncle to place pressure on the Appellant to go through with this marriage with its associated persecution elements. [4] The Appellant alleges that she 'secretly' married her husband identified as Mr. XXXXX XXXXX and with the aid of an agent traveled to the United States in order to escape. The Appellant alleges that after a period of time in the US she was smuggled into Canada where she made a protection claim at an inland office on March 19, 2013. SUBMISSIONS [5] The Appellant alleges that the RPD made numerous errors in its decision. The core problem with the decision relates to the RPD determination that the Appellant would have a viable International Flight Alternative (IFA) in Abuja. The Appellant alleges that the RPD did not properly 'assess' the claim given that the RPD had taken notice of the Chairperson's Gender Guidelines. With this forming the context of the claim the Appellant alleges that the RPD 'ignored vital evidence' in its assessment of an IFA and that it undertook "a perverse and capricious assessment of the totality of the evidence" (Memorandum, paragraph 11, p. 266). The Appellant seeks to have the RPD decision reversed or returned for a redetermination. Issue 1: Did the RPD error with respect to the first prong of the IFA analysis which is stated as: "there is no serious possibility that the claimant would be persecuted, or that she would be subjected, on a balance of probabilities, to a danger of torture or to a risk to her life or a risk of cruel and unusual treatment or punishment in the capital city of Abuja" (RPD, paragraph 7). [6] The Appellant argues that if the RPD found her credible with respect to her allegations then by extension the RPD must also accept the allegations, reasoning and documentary evidence which supports the Appellant's conclusion that she would be at risk anywhere in Nigeria including Abuja. STANDARD OF REVIEW [7] I conclude the various alleged errors identified with both prongs of the RPD's IFA analysis are issues of fact and mixed fact and law and as such attract a 'reasonableness' standard of review. This is because the RPD has held a hearing and a deferential reasonableness standard is appropriate in such cases because the RPD directly listened to the claimant and asked questions of her. The RPD is also directly reviewing the evidence in a hearing setting to reach its conclusion. I must conclude therefore that the standard of review for an assessment of the RPD conclusions on IFA, which in this case constitutes the determinative issue, is "reasonableness". My objective is therefore to review the RPD decision for the: "existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". This understanding flows from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. [8] I also note that the Appellant draws attention to 'reasonableness' as an appropriate standard of review in its summation of 'Issues' (Memorandum, Paragraph 12, p. 266). ANALYSIS [9] The first consideration is to address the RPD's treatment of the credibility of the Appellant. In the RPD decision I can find no explicit credibility assessment. The RPD explicitly identifies IFA as the determinative issue and the decision is written implicitly accepting the allegations of the Appellant. The key to understanding this decision is to recognize that while the RPD does not dispute the allegations of the Appellant with respect to the events that she experienced or with respect to the events set out in the Affidavits, however, the RPD does explicitly reject those elements of the testimony which the RPD identifies as 'conjecture'. Specifically the RPD provides an explicit and negative assessment of the Appellant's 'conjecture' or speculation with respect to the 'reach' of her uncle and Chief XXXXX. 1 [10] This question of 'reach' requires an assessment of the status, wealth and influence of the agents of persecution (Uncle XXXX and Chief XXXXX). This also includes an assessment of the possibility of using police resources to find the Appellant. On a balance of probability the RPD rejects the Appellant's assertion that at a minimum there is a serious possibility that she would be found anywhere in Nigeria by the agents of persecution. This assertion (conjecture) is rejected on the bases of documentary evidence, noted below, which notes that finding a woman fleeing a forced marriage or some form of gender related persecution in Nigeria is a challenge such that there is only a mere possibility of being located by any agent of persecution. In this case it is not clear how the agents of persecution would know that the Appellant had returned to Nigeria and relocated to Abuja. Also the RPD concludes that the Appellant has not shown that the influence of the agent of persecution extends to Abuja. The RPD concludes that the Appellant would be safe in Abuja which is a city where the Appellant does not have family and the Appellant cannot confirm that the agents of persecution have any connection. [11] The Appellant argues that given that in her case the police constitute an agent of persecution and organizationally there is but one national police force in Nigeria and given that the RPD did not provide documentary evidence that it was not possible for the agents of persecution to initiate a national police search for the Appellant, the conclusion should be that there is a serious possibility that the Appellant would be found in Abuja. According to the Appellant: "The panel also erred by finding a material fact not supported by evidence: that because the Nigerian Police is not properly equipped and because there are twelve zonal and thirty six state commands (of the same organization) they are not capable of initiating a nationwide search for someone. There is no reference to any documentary evidence for this conclusion by the panel (Memorandum p. 22, p. 271)." [12] In its analysis I find the RPD reaches reasonable conclusions after it identifies the elements of this analysis which would be required to accept the speculation of the Appellant. Specifically the thrust of the Appellant's allegation is that there is no arrest warrant out for the Appellant. It is the personal influence of the agents of persecution to secure the aid of specific policeman through some unknown corrupt means which is the means available to the agents of persecution to find the Appellant. [13] The evidence that nowhere is safe in Nigeria also allegedly arises from an extrapolation from the fact that she was found in two cities outside Lagos. In one instance, where the agents of persecution find the Appellant in XXX this is because they tortured her father to discover her whereabouts. After the Appellant fled from XXX she went to a friend's place in XXXX state where the agents of persecution also came to look for her the day after she had left for the US. No explanation was provided as to how she was discovered there. In any case there appears to be limitations on the knowledge and investigation skills of the agents of persecution given that, according to testimony, the agents of persecution are unaware that the Appellant is married2 and by extension that her husband lives in XXXXX. [14] The RPD notes documentary evidence which provides evidence that an IFA is generally available to woman in Nigeria in the sense of safety. The RPD identifies a United Nations Development Fund for Woman report which concludes it is "very difficult" for an agent of persecution to find a woman who runs away (RPD Decision, paragraph 11). I would add that the UK Operational Guidance Note for Nigeria in its section on IFA states that "... internal relocation can be relevant in both cases of state and non-state agents of persecution, but in the main it is likely to be most relevant in the context of acts of persecution by localised non-state agents."3 [15] Therefore, in this case the importance and resources available to the agents of persecution take on great importance in determining the degree of risk faced by the Appellant. This is because it is well established in the documentation that the police in Nigeria are often corrupt and that they tend not to get involved in 'family matters'. The question arises; therefore, is it reasonable for the RPD to conclude that the agents of persecution would not have the resources to accomplish a national search for the Appellant? [16] With respect to this question, the RPD notes that the Appellant could not provide corroborating evidence with respect to important aspects of the status, resources or influence (political or personal) of the agents of persecution. In the case of Chief XXXXX, who constitutes the core risk to the Appellant because of his supposed loss of reputation due to the disappearance of the Appellant, the RPD notes that: "the claimant identified Chief XXXXX as wealthy and powerful due to his position as a Chief but was unable to provide evidence as to how he was appointed Chief or what tribe he was a Chief". The RPD also identified vagueness in the Appellant's testimony with respect to the relationship between the agents of persecution and the police. The Appellant basically argues that the Chief can 'call the local police'. [17] I find it reasonable for the RPD to conclude, given the lack of clarity and absence of specific knowledge on the part of the Appellant with respect to the influence of the agents of persecution and their capacity to seek out the Appellant, that corroborative evidence be required. Aside from references to the agents of persecution in the Affidavits from family and friends there was no other corroborative evidence of the agents of persecution including Chief XXXXX who the Appellant described as a "famous man" in her interview with a Psychologist.4 This is in a situation where the Appellant is a XXXXX XXXXX XXXXX XXXXX who maintains connection to numerous individuals in her country of origin including her husband, mother and at least two friends. Given the absence of corroborating evidence with respect to the influence of the agents of persecution, I find it reasonable for the RPD to conclude, even while accepted that the Appellant believes that these individuals are this powerful, that the agents of persecution do not objectively have a level of resources and influence that would give them national reach. Evidence in support of this conclusion might be found in the fact, as noted above, that in testimony the agents of persecution are believed not to know that the Appellant is married to Mr. XXXXX. [18] In response to this line of reasoning, the Appellant appears to be arguing that it was the RPD that should have provided documentary support for a conclusion that the agents of persecution do not have the requisite resources to track the Appellant and that the police cannot be used to find a woman who has run away from gender related persecution. "The uncontradicted evidence of the appellant both in her BOC and orally at the hearing spoke to that. Assuming but not accepting that there was no evidence of the extension of their influence to Abuja, the panel erred when it concluded based on its own imagination and speculation that there is no proof of their wealth and influence and by extension, that their influence does not extend to Abuja. The panel erred by making this material finding of fact without any evidence to back it up (Memorandum p 24 p 272)." [19] I conclude that it is the Appellant's burden to provide evidence that might reasonably be available with respect to the agents of persecution in order to establish that there is no safe area in the country.5 With respect to the possibility of corruptly using the police to aid in a search for the Appellant, the RPD notes the reality of the size and population of Nigeria and the organizational and resource shortcomings of its police force. Included in these shortcomings was the capacity to communicate and investigate crimes across regions in Nigeria (RPD, Paragraph 13-14). [20] I note in addition that the Appellant did not provide any reference in her appeal to a case where the police were involved in finding a woman who had run away from a forced marriage or gender related persecution including FGM. Given that such a case, if it existed, would undoubtedly attract significant attention among rights groups and interested individuals, I must conclude that the absence of some such reference gives support to a conclusion that the RPD reached a reasonable conclusion with respect to the possibility of using police in the manner the Appellant asserts would occur in her case (i.e., a police search throughout Nigeria). [21] Overall, I conclude with respect to this core concern that the police could be used as an instrument of the agent of persecution which would make the chosen IFA insecure to a level at or above a serious possibility, that the RPD considered this at length and explained why it preferred its own conclusion over the conjecture of the Appellant. [22] This is not to say that the Appellant's own analysis as to her risk is unreasonable or that I would not agree with it. This means that I conclude that the RPD's conclusion on this first prong of the IFA meets the Dunsmuir criteria of falling within a range of acceptable and defensible outcomes. Issue 2: Did the RPD err with respect to the second prong of the IFA analysis that it would not be unreasonable for the Appellant to return to Nigeria and live in Abuja. [23] The Appellant alleges that because of her subjective fear and socio-economic situation on return it would be unreasonable for her to live in Abuja. The Appellant provides several legal cases where a decision of the Federal court found that an IFA in Nigeria (in some cases Abuja) was unreasonable. [24] I conclude that the RPD's analysis of the second prong of the IFA is very developed and must be viewed as reasonable. To begin with jurisprudence holds that the unreasonableness test has a "very high threshold".6 The RPD sets out at the onset that it is considering Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution in writing its analysis. Evidence that this was the case can be seen from the many factors considered which recognizes that the RPD is required to examine an extensive array of issues. Part of the Guideline that relates to IFA reads: "In determining the reasonableness of a woman's recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA". [25] In its analysis the RPD specifically reviewed a range of considerations including employment, ethnic discrimination, language considerations, and religious affiliation to reach its conclusion on the second prong that an IFA in Abuja was reasonable. [26] The Appellant countered that there are many aspects of life in Abuja that would make it unreasonable for her to live there and she identified Federal Court cases which would support this perspective. In one it was found unreasonable for a single mother with no formal education to relocate to Abuja (Memorandum, paragraph 41, pp. 283-4). Another argument is that the Appellant would not have her husband or family to give her support in Abuja. I must conclude that these situations do not fit the Appellant's profile and the RPD did situate the Appellant as someone who was married and had a relatively portable and lucrative skill set (XXXXX XXXXX XXXXX). I find reasonable the conclusion that the Appellant would be able to expect the support of her husband and possibly family and friends. It is a matter of record that the Appellant's husband who lives in XXXXX has expended significant resources to aid the Appellant leave Nigeria and has since continued to aid her. There is nothing in the record to suggest that this aid would end if the Appellant returned and relocated to Abuja. In addition the Appellant's mother and friends do not appear to have disowned the Appellant which can be seen from their affidavits. [27] The one area where the Appellant makes a stronger argument is that there is no mention of the Psychological Report undertaken by Dr. XXXXX which alleges that "it will be impossible for Ms. XXXX to feel safe anywhere in Nigeria".7 In this area I note that the RPD focused much of the hearing on the question of an IFA and would be in a position to judge the Appellant's aggregate response to return. I reach this conclusion based on an overall impression that return for the Appellant would not be as argued above, 'impossible' for the Appellant given that she was capable of such extensive discussions of return which includes her asserting that "getting a job in Nigeria is hard". Again it should be noted that the jurisprudence holds that the reasonability test for an IFA is very high and in this case the RPD used words such as "objectively reasonable" and "suitable"8 with respect to Abuja and the second prong of the IFA test. [28] Overall in terms of the logic of the RPD decision coupled with the evidence surveyed I must conclude that this RPD decision with respect to a viable IFA in Abuja "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". REMEDIES [29] For all these reasons, I confirm the determination of the RPD, namely, that Ms. XXXXX is neither a "Convention refugee" nor a "person in need of protection". Therefore the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher October 8th, 2013 Date /ajh/kp 1 RPD Decision, Paragraph 11. 2 Appellant's Appeal Record, Vol II, p. 240. 3 IRB, RPD, In the Matter of an Appeal Concerning XXXXX XXXXX XXXXX, National Documentation Package, Tab 1.7, paragraph 2.4.1. 4 IRB, RPD, In the Matter of an Appeal Concerning XXXXX XXXXX XXXXX, p. 218 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) 6 Ranganathan v. M.C.I. [1992] 2 F.C. 164. 7 IRB, RPD, In the Matter of an Appeal Concerning XXXXX XXXXX, p. 220 8 RPD Decision, paragraph 24. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français N° de dossier de la SAR/RAD File No.: MB3-02612 4