Immigration and Refugee Board of Canada Refugee Appeal Division Commiss ion de l'immigration et du statut de refugie du Canada Section d'appel des refugies NOTICE OF DECISION [Immigration and Refitgee Protection Act, section 111] [Refugee Appeal Division Rules, rule 50] Jennifer Pollock Member In the matter of the appeal concerning: An appeal was filed with the Refugee Appeal Division on July 31, 2019 and considered on December 19, 2019. The appeal is allowed. The decision of the Refugee Protection Division is set aside. The Refugee Appeal Division determines that the person who is the subject of the appeal is a Convention refugee. Reasons for this decision are attached. December 19, 2019 Sa[fy Zeng For the Registrar Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Colll1 for judicial review, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for making the application. Certified True C(· y Copie Conforme RAD.25.04 (August I 0, 2017) Disponible en.fi'anr;ais Canada immigration and Refugee Board of Canada Commission de I' immigration et du statut de refugie du Canada Refugee Appeal Division Section d'appel des refugies Private Proceeding I Huis clos Reasons and decision - Motifs et decision Persons who are the subject of the appeal Appeal considered / heard at Date of decision Panel Counsel for the persons who are the subject of the appeal Personnes en cause Toronto, ON December 19, 2019 J. Pollock Talia Joundi Designated representative Counsel for the Minister Appel instruit / entendu a Date de la decision Tribunal Conseil des personnes en cause Representant(e) designe(e) NIA Conseil du ministre Certified True Copy Copie Conforme RAD.25.02 (April 04, 2019) Disponible enfranr;ais Case Offi r Agent prl:posau cas Canada REASONS FOR DECISION OVERVIEW the Principal Appellant) and her minor daughter,_ [I] (the Minor Appellant), are both citizens of Nigeria. They appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Principal Appellant alleges a fear of persecution upon return to Nigeria as a survivor of intimate partner violence. The RPD Member found the Principal Appellant not credible. The Appellants argue that the RPD Member erred in assessing credibility and breached procedural fairness by violating the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guidelines). 1 After independently assessing the evidence, including the RPD hearing audio-recording, I find that the RPD Member erred. The RPD Member's questioning during the hearing contravenes the Gender Guidelines. The Principal Appellant should never have been asked by the RPD Member why her ex-husband did not "just kill" her. 2 I also find that the RPD Member erred in his overall credibility assessment. Having reviewed the Record, I further find that the Appellants are Convention refugees. DETERMINATION [2] The appeal is allowed. The Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. BACKGROUND [3] The Principal Appellant fears her ex-husband, He abused her in part because he wanted sons but she only gave biiih to daughters. The Principal Appellant alleges surviving nearly two decades of psychological, sexual, and physical abuse. She alleges miscanying one pregnancy because of the violence and losing another child shortly after bi1ih. The thirteen-year-old Minor Appellant witnessed her father physically abuse her mother. 3 The intimate pruiner abuse continued after separation and after the Principal Appellant's ex-husband RAD.25.02 (April 04, 2019) Disponible enfranr;ais 2 Canada served her with a divorce application. Even after she left Nigeria in February 2018, the Principal Appellant alleges that her ex-husband continued his abuse by threatening her mother. ROLE OF THE RAD [4] I have conducted an independent assessment of the evidence. I am reviewing the RPD's decision on a correctness standard as I do not find the RPD enjoyed a meaningful advantage. 4 NEW EVIDENCE AND ORAL HEARING [5] The Appellants' claims were rejected on July 17, 2019. On appeal, the Appellants submit the following as new evidence: a. The Principal Appellant's affidavit, dated August 20, 2019; b. Canadian Centre for Victims of Torture (CCVT) letter, dated August 21, 2019; and c. Dr. Agarwal's updated psychiatric assessment, dated August 26, 2019. 5 [6] Under subsection 110(4) of the IRPA, persons who are the subject of the appeal may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the persons could not reasonably have been expected in the circumstances to have presented at the time of the rejection. 6 If the proposed new evidence meets 110(4) I must assess the newness, credibility, and relevance of the evidence in order to determine whether it is admissible under Singh. 7 Only when new evidence is admitted do I consider subsection 110( 6) to determine whether to hold a hearing. In order to trigger a hearing, the new evidence needs to raise a serious issue with respect to the credibility of the person who is the subject of the appeal, be central to the decision of the claim, and, if accepted, justify allowing or rejecting the claim. 8 [7] I find that the evidence described in items (a), (b), and (c) is admissible. However, I find that the test under subsection 110(6) of the IRPA is not met and I am not holding an oral hearing. The affidavit evidence in item (a) is admitted but does not require a hearing [8] The Principal Appellant's affidavit on appeal provides clarification of her oral testimony and statements regarding the impact of the RPD Member's questions. Ordinarily, this kind of RAD.25.02 (April 04, 2019) Disponible enfranr;ais 3 Canada evidence would be inadmissible because the appeal is not meant to be an opportunity to provide conections to testimony that could have been provided before the RPD rejection. However, I have found in paragraph 19 of these Reasons that the RPD Member breached the Principal Appellant's right to procedural fairness, compromising her ability to fully participate in the hearing. As such, I find that the affidavit satisfies 110( 4) in that it provides evidence which could not reasonably have been expected in the circumstances to have been presented at rejection. [9] I further find the affidavit is prima facie credible as it is a sworn statement. It is relevant as it provides evidence as to the impact of the breach of procedural fairness. It is new in that it pro_vides infonnation that was not before the RPD. However, I find that it does not meet the requirements for a hearing as it does not justify allowing or rejecting the claim. The medical evidence in items (b) and (c) is admitted but does not require a hearing [10] The letter from the CCVT in item (b) and the updated psychiatric assessment from Dr. Parul Agarwal in item (c) both post-date the rejection of the claim and are admissible under 110( 4 ). I further find that both reports are credible as they are issued by reliable sources. Both reports are relevant as they provide evidence about the impact of the procedural fairness breach. Both reports are new as they provide inf01mation that was not before the RPD. However, the evidence does not require a hearing as it does not justify allowing or rejecting the claim. ANALYSIS Issues on appeal [11] The Appellants argue that the RPD Member ened, as follows: • In breaching procedural fairness by violating the Gender Guidelines; • In making enoneous credibility findings; • In improperly requiring further corroborative evidence; • In speculating about the genuineness of medical evidence from Nigeria; and • In improperly rejecting medical evidence from Canada. RAD.25.02 (April 04, 2019) Disponible enfran9ais 4 Canada (12] After listening to the entire RPD hearing audio-recording and independently assessing all of the evidence, I find that the RPD Member erred by breaching procedural fairness and violating the Gender Guidelines. I further find that he erred in his overall credibility finding. These errors are fatal to the RPD decision. It is not necessary for me to address all of the Appellants' arguments. Instead, I will explain why the RPD Member's findings are in error before providing my reasons for allowing the appeal and accepting the Appellants' claims. The RPD Member breached procedural fairness and violated the Gender Guidelines (13] The Appellants argue that the RPD Member breached procedural fairness by asking questions contrary to the Gender Guidelines. Having listened to the RPD hearing audio­ recording, I agree. It is open to the RPD to engage in probing questioning within the bounds of fairness and the guidelines. Having failed to do so, the RPD Member erred. As explained below, the RPD Member: did not comply with the Gender Guidelines; demonstrated a misunderstanding of intimate partner abuse; breached procedural fairness; and erred by requiring the Principal Appellant to engage in speculation. The RP D Member did not comply with the Gender Guidelines (14] The RPD Member refers to the Gender Guidelines in his Reasons, even acknowledging that women may face problems demonstrating that their claims are trustwoiihy. 9 However, the RPD Member's questioning during the hearing demonstrates his failure to meaningfully apply the Gender Guidelines. On two occasions the RPD Member asks the Principal Appellant why her agent of persecution did not 'just kill" her in Nigeria. Specifically: RPD MEMBER: Why wouldn't he just kill you then? Why spend all these years, just like, harassing you? [ ... ] RPD MEMBER: Okay, but like, look 2013 to 2017 to 2018, you don't live together really. Right. So why does he keep on harassing you? Ifhe really wants you to be gone, why doesn't he just kill you? 10 (15] These questions demonstrate a lack of attention to the Principal Appellant's gender and "to the factors which may influence the testimony of women who have been the victims of RAD.25.02 (April 04, 2019) Disponible enfi·am;:ais 5 Canada persecution." 11 The Gender Guidelines are clear that survivors of violence may require extremely sensitive handling. 12 Asking a woman why her partner did not ''just kill" her engages in the very retraumatization that the Gender Guidelines are designed to prevent. In failing to engage in trauma-inf01med and sensitive questioning, the RPD Member erred. The RPD Member demonstrated a misunderstanding of intimate partner abuse [ 16] The RPD Member's questions are not just troubling because they are insensitive and retraumatizing. In my view, his questions also demonstrate a misunderstanding of the cyclical nature of abuse. This is evident in the following question: RPD MEMBER: Why does he keep on harassing you, like year to year, right, like I mean, if he really wants you gone, what is he doing, just sort of doing this dance, of calling you, and then having some violence, going back to Bayelsa, coming back? Like, I don't understand. 13 [17] The RPD Member's scepticism that an abuser would engage in violence over many years which stops short of murder is without an evidentiary foundation. Not all abusers murder their partners. There is also nothing unlikely about abuse continuing after separation or relocation. In asking these questions, the RPD Member fails to appreciate that an abuser may assert their power and control in a variety of ways. 14 This is concerning given the RPD Member's role adjudicating the claims of survivors of intimate partner violence. [18] Myths about domestic violence come from a misunderstanding of the abusive cycle of power and control. This cycle is not static. Abuse does not necessarily progress in a linear fashion. As the Supreme Court noted in Lavallee, there are three common phases in an abusive cycle: (1) tension building, (2) acute violence, and (3) contrition. 15 It is not surprising that the Principal Appellant's own narrative of abuse fits this cycle. The RPD Member breached procedural fairness [ 19] The language used by a Member of the RPD during a hearing is one way of "measuring whether justice is both done and seen to be done." 16 In my view, the RPD Member's questions fall short on both measures. His questions create an air of disbelief which calls into question the fairness of the proceedings. The RPD Member retraumatized the Principal Appellant and RAD.25.02 (April 04, 2019) Disponible enpanr;ais 6 Canada impacted her ability to fully pmiicipate in the hearing of her claim. As the Principal Appellant explains in her affidavit, she felt that the RPD Member was asking her to justify why she was still alive. 17 Dr. Agarwal explains that the Principal Appellant's experience at the RPD was "extremely invalidating and emotionally devastating." 18 The RPD Member erred by requiring the Principal Appellant to engage in speculation [20] The RPD Member also en-ed by requiring the Principal Appellant to speculate as to the actions of her agent of persecution despite his appropriate caution at the beginning of the hearing to the Principal Appellant: "don't try to guess." 19 However, the RPD Member does just that- he prompts the Principal Appellant on two occasions to speculate about matters to which she has no knowledge. This approach asks the impossible of the Principal Appellant - to get inside the mind of her agent of persecution to explain why he didn't "just kill" her. In so doing, the RPD Member erred. [21] The Principal Appellant should never have been asked why her ex-husband did not "just kill" her. The fact that she was asked such a question is unacceptable. The RPD Member's insensitive, retraumatizing, and procedurally unfair line of questioning constitutes a serious en-or. The RPD Member's overall adverse credibility finding is in error [22] The RPD Member drew a variety of adverse credibility inferences. Counsel argues that these findings were made in en-or. Having considered all of the evidence, I find that the RPD Member's overall credibility finding is incorrect. I share the RPD Member's concerns with the Nigerian medical evidence. However, I find that he en-ed in his remaining credibility findings, as discussed below. Having weighed all the evidence, I find the Principal Appellant credible with respect to her allegation that she is a survivor of psychological, sexual, and physical abuse. The Principal Appellant is credible about her ex-husband's profile [23] The RPD Member found that the Principal Appellant was inconsistent about her ex- husband's profile in Nigeria. Specifically, she refers to her ex-husband as a Church Minister in her Basis of Claim (BOC) but testified at her hearing that he works as a construction engineer. RAD.25.02 (April 04, 2019) Disponible en ji·anr;ais 7 Canada She does not mention that her ex-husband is an engineer in her BOC. Counsel argues that the RPD Member erred in finding an inconsistency where there was none and in drawing an adverse inference based on an immaterial omission. I agree with Counsel. I find the RPD Member erred. The Principal Appellant is consistent in testimony about her ex-husband's livelihood [24] The RPD Member asked: "what did your husband do for a living?" 20 The Appellant responded that her ex-husband works as a construction engineer. She did not mention that her ex­ husband also occupies a part-time church role in the community. Given the nature of the question, the Principal Appellant's answer does not give rise to an inconsistency. One person can occupy a paii-time church role while simultaneously earning a living in construction. The Principal Appellant's testimony is not inconsistent. The RPD Member erred. Omission of her ex-husband's profession as an engineer from the BOC is not material [25] The Principal Appellant does not mention in her BOC that her ex-husband earns a living as a construction engineer. The RPD Member found this omission to be material because the Principal Appellant alleges that she would be unsafe throughout Nigeria because of her ex­ husband's engineering contacts. 21 However, the RPD Member fails to consider the Principal Appellant's BOC where she specifically states: "He can find me anywhere I am in Nigeria because of his connections."22 While the Principal Appellant does not explain that her ex­ husband earns a living as an engineer in Nigeria in her BOC, or that his contacts are engineering contacts, she does not omit his alleged connections in Nigeria. Moreover, the marriage certificate -provided ahead of the RPD hearing- corroborates the Principal Appellant's allegation that her ex-husband is an engineer. 23 It is an error for the RPD to find a material omission where evidence is tendered by other means in advance of the hearing. 24 The RPD Member erred. Lack of corroborative evidence is reasonably explained [26] The RPD Member also draws an adverse inference based on the Principal Appellant's failure to provide corroborative evidence of her ex-husband's church position. 25 Such an adverse inference may only be drawn in the face of an unreasonable explanation for failing to make effmis to provide reasonably available evidence. 26 The Principal Appellant explained why she RAD.25.02 (April 04, 2019) Disponible en ji-anr;ais 8 Canada was unable to tender evidence about her agent of persecution's role in the church, namely that her mobile telephone was stolen. She includes the theft of her mobile telephone in her BOC. 27 I find the RPO Member erred by discounting this explanation. [27] The RPD Member finds that the Principal Appellant's assertion that her telephone was stolen is "vague" but he does not explain how this allegation is vague. 28 The RPD Member also impugns her credibility based on her failure to report the theft of her mobile telephone to the Nigerian police. 29 However, the RPD Member himselfremarks during the hearing that "everybody knows that the Nigerian police are ajoke."30 It is unclear how the RPD Member can, on the one hand, accept the ineffectiveness of the Nigerian police, while on the other hand, expect the Principal Appellant would report the theft of her telephone to the Nigerian police. I find that the RPD Member erred. The Principal Appellant reasonably explained the lack of evidence c01Toborating her ex-husband's part-time position in the church. The Principal Appellant is credible about her marital status [28] The Principal Appellant writes in her BOC that her ex-husband served her with divorce papers. 31 In advance of the hearing, the Principal Appellant provided a divorce application initiated by her ex-husband's lawyer in Nigeria. 32 This application is stamped, signed, and dated by the Nigerian High Court registry. The RPD Member found that the Principal Appellant failed to credibly establish that she was divorced because of errors in the divorce application and because her United States (US) visitor visa application states that she is married. Counsel argues that the RPO Member's findings are in error and I agree. Divorce application errors have been reasonably explained [29] The RPD Member found that the divorce application is "littered with inconsistencies, such dates of birth for the children" and that "the inconsistencies were put to the principal claimant for comment." 33 Having listened to the RPD hearing audio-recording, this characterization is inaccurate. Contrary to the RPD Member's description, the Principal Appellant advises the RPD Member that not everything in the divorce application is correct before she was ever confronted with any inconsistencies. 34 She explains that the date of birth of the children and the date of RAD.25.02 (April 04, 2019) Disponible enfranr;ais 9 Canada separation are both inc01Tect. It is not true that the inconsistencies "were put to the claimant for comment." Rather, she volunteered the problems with the documents. [30] The RPD Member also found that there would be "no logical reason for her husband misrepresenting the dates of bi11h of the children" as such errors would delay the divorce, her ex­ husband's desired outcome. 35 Given the procedural fairness breach identified at paragraph 19 of these Reasons, I have considered the Principal Appellant's further explanation in her affidavit. She indicates that her ex-husband does not care to remember the birthdates of his children. 36 I do not find this to be an unreasonable explanation given that pru1 of the reason for the abuse is her ex-husband's anger at having daughters and not sons. [31] Finally, the mere fact that the Principal Appellant did not tender a formal court order indicating that the divorce application was granted is insufficient grounds upon which to find the application itself is "incomplete." 37 The divorce application is tendered as evidence that her ex­ husband applied for a divorce. The Principal Appellant is forthright in testilnony that she never received a formal court order. It may well be that the Principal Appellant is not legally divorced as the divorce application was not granted. However, this does not undermine her allegation that she is separated from her ex-husband and that she is a survivor of intimate partner violence. US visitor visa statement has been reasonably explained [32] The Principal Appellant disclosed a copy of her US visitor visa application to the RPO in advance of her hearing. 38 The RPD Member drew an adverse credibility inference based on her statement in her US visitor application that she is married. 39 The Principal Appellant explained that she wrote that she is married because she was never provided with a divorce certificate. 40 The RPO Member rejects this explanation on the basis that the Principal Appellant could have asked the Nigerian court for the certificate to avoid misrepresenting her marital status to US immigration authorities. Counsel argues that the RPD Member erred in rejecting the Principal Appellant's explanation by failing to consider her cultural context. In consideration of the evidence in the Nigerian National Documentation Package (NDP), I agree with Counsel. [33] The NDP indicates that "there is a large stigma attached to women who are divorced or separated regru·dless of the circumstances that caused the dissolution of the mruTiage" and the RAD.25.02 (April 04, 2019) Disponible enfran9ais 10 Canada "judiciary is prejudiced against women. " 41 It is within this context that the RPD Member expects the Principal Appellant to obtain a divorce ce1iificate while also fleeing her abusive ex-husband. I find such an expectation to be in error. Moreover, a refugee Claimant may need to lie in order to obtain a visa and escape in search of safety. 42 I find that the RPD Member erred. The Nigerian medical evidence is insufficient to rebut the presumption of truthfulness [34] The Appellants provided two letters from the Hebron Medical Centre in Nigeria. 43 At her hearing, the Principal Appellant testifies that these letters are original documents. 44 Counsel argues on appeal that a "cmsory look at the documents demonstrates that they are colour copies of medical reports." 45 The RPD Member found that these letters are fraudulent and he drew an adverse inference as to the Principal Appellant's general credibility based on her submission of these non-genuine documents. 46 Among the imperfections noted by the RPD Member are the faded and computer-generated letterhead scan, the computer-generated scan of a stamp, and a scanned image of a signature, as well as the content of one of the reports which diagnoses the Principal Appellant with "impending Schizophrenia. " 47 [35] I have independently reviewed a digital colour copy of the two letters on appeal. 48 I share the RPD Member's concerns about the letters' appearance and content. However, I find that the RPD Member erred by impugning the Principal Appellant's general credibility based on her submission of the letters. While these documents undermine the Principal Appellant's credibility with respect to her Nigerian medical treatment, I find that they do not undermine her otherwise credible allegation that she is a survivor of psychological, sexual, and physical violence over nearly two decades. The Canadian psychiatric report is a credible and reliable expert report [36] In her psychiatric assessment, Dr. Agarwal diagnoses the Principal Appellant with Post- Traw11atic Stress Disorder (PSTD) and Major Depressive Disorder (MDD). 49 The RPD Member finds that this Canadian medical evidence "is entitled to no evidentiary weight" because the Principal Appellant misrepresented her mental health condition by submitting non-genuine medical letters from Nigeria. 50 The RPD Member explains that he has "no confidence that any narrative, symptoms, demeanor, or complaint about the physical or mental health provided by the RAD.25.02 (April 04, 2019) Disponible enfi'anr;ais 11 Canada principal claimant to Dr. Agarwal is even remotely the truth." 51 Counsel argues that the RPD Member erred in according no weight to the psychiatric report and I agree. [37] It is open to the RPD to find that medical evidence does not establish facts which were otherwise found to lack credibility. 52 However, the RPD Member goes beyond this finding. He casts doubt on the diagnosis of a Canadian physician who specializes in psychiatric work with marginalized survivors of trauma, including domestic violence. I find the RPD Member erred. [38] The RPD Member attacks the credibility and reliability of conclusions that are directly within Dr. Agarwal's expertise. This despite the fact that the physician's professional qualifications were never in dispute. The RPD Member is not a qualified psychiatrist and brings no specialized expe11ise to the question of the Principal Appellant's medical diagnosis. 53 Moreover, the psychiatric assessment is not based solely on the Principal Appellant's self­ reporting. Dr. Agarwal also makes expert findings based on her observations. 54 [39] The RPD Member also impugns the medical report based on the fact that there is "no mention of any objective testing (assuming any testing was done), let alone the score." 55 It would have been preferable for Dr. Agarwal to explain whether she relied on any diagnostic testing in reaching her conclusions. However, I find that this concern is insufficient to undermine the reliability of the expert opinion. I find that the RPD Member erred. I accept as credible and reliable Dr. Agarwal's medical diagnosis of PTSD and MDD. [40] I also note that the RPD Member makes a dismissive comment about a mental health condition which is audible on the hearing audio-recording. The RPD Member remarks that Schizophrenia is "like thinking that a cucumber is gonna' take over the world, that kinda' thing." 56 This comment trivializes a mental health condition. The RPD Member's acknowledgement in his Reasons that "experiencing auditory and visual hallucinations is a serious mental health breakdown" does not repair his flippant comment during the hearing. 57 The Appellants' supporting evidence is credible and corroborates their allegations [41] The RPD Member gives no weight to the Principal Appellant's supporting documentation, including letters from her mother and eldest daughter in Nigeria. The RPD Member impugns the letters for being unswom, unaccompanied by identity documentation, RAD.25.02 (April 04, 2019) Disponible enfi"anr;:ais 12 Canada because the authors were not cross-examined, and because the authors are "directly interested in the outcome of the proceedings." 58 Counsel argues that the RPD Member erred and I agree. [42] It is open to the RPD to place less weight on letters of support that have not been accompanied by an identity document and to place more weight on statements that have been sworn. In the same vein, the RPD is not bound by technical rules of evidence and may rely on any evidence that is credible and trustworthy. 59 While the case law at the Federal Court is mixed, the Federal Court of Appeal has found that a requirement that support letters be subject to cross­ examination is an error. 60 Specifically, "it is not for the Refugee Division to impose on itself or claimants evidentiary fetters from which Parliament has freed them." 61 I further find that the RPD Member erred by relying on the self-interested nature of the letters to impugn their credibility. The Federal Court has found this to be "an unprincipled approach to potentially probative and relevant evidence. " 62 I find that the RPD Member erred. [ 4 3] I find that the letters of �;upport, each of which are signed and accompanied by a passport photo, provide detailed corroboration of the Principal Appellant's years of abuse at the hands of her ex-husband. 63 Having set aside the RPD Member's erroneous credibility findings, I do not find that these letters repeat already discredited testimony. While the reliability of these letters would have been enhanced had they been sworn or accompanied by identity documents, I do not find that these factors warrant discounting the evidence they provide. Credibility summary [44] Having set aside the RPD Member's erroneous credibility findings, I am left with some reason to doubt the Principal Appellant's credibility. A standard of a balance of probabilities leaves room for a significant amount of doubt in the mind of a trier of fact. 64 This is to be weighed against the Principal Appellant's overall consistent testimony about the specific circumstances of the harm she fears. Upon my review of the RPD hearing audio-recording, I find that the Principal Appellant's testimony is credible regarding her history of abuse. I find particularly credible the following testimony: It's a gradual process. Maybe he thinks that by the time he torn1ents me, maybe I'll just collapse and die. Maybe my health will deteriorate and maybe I will die. Maybe when he's tried all his best and I'm still alive so the best option is, maybe, is to just get rid of RAD.25.02 (April 04, 2019) Disponib/e enfram;ais 13 Canada me, by any means ... I don't even know. But you know psychologically, when you are tonnented, you break down. Your health will deteriorate. At the end of the day your mind, some people die. But when he's tried all his best, and I'm still very much alive, then I think he resorted to making it physical, that you have to go by all means. 65 [ 45] The Appellants have credibly established their allegations, on a balance of probabilities. The Appellants have established their claims against Nigeria [46] I find that the Appellants face a serious possibility of persecution upon return to Nigeria, that their fears are well-founded, and that they do not have access to adequate state protection or a viable Internal Flight Alternative (IF A) anywhere in Nigeria. The Appellants' claim against Nigeria is well-founded [ 4 7] The objective evidence indicates that one in four women in Nigeria experience physical, sexual, or emotional abuse by their husband or partner. 66 I am satisfied, on a balance of probabilities, that the Principal Appellant's ex-husband maintains an interest in continuing to abuse her upon return to Nigeria. I find that the Principal Appellant faces a serious possibility of persecution based on her particular social group, as a woman survivor of intimate partner violence. I also find that the Minor Appellant faces a serious possibility of persecution based on her particular social group, as the Principal Appellant's daughter. She has personally witnessed her father physically abuse her mother. Intimate partner abuse, as well as a minor child's repeated exposure to the abuse of a parent, constitute clear human rights violations amounting to persecution. 67 Their claims are objectively well-founded. [48] I further find that the Appellants' two-month stay in the US without claiming asylum is not determinative. They made their refugee claim in Canada immediately upon their irregular entry. They have credibly established a subjective basis for their fear. Adequate state protection is not available to the Appellants in Nigeria [49] The objective evidence is clear that there are serious deficiencies in state protection for victims of intimate partner violence in Nigeria. The Violence Against Persons Prohibition Act is not effectively enforced and is "a mere paper document outside the Federal Capital Territory." 68 RAD.25.02 (April 04, 2019) Disponible enfram;:ais 14 Canada The police "exhibit bias and discriminatory attitudes in their treatment of female victims of violence", are "reluctant to intervene", and often "blam[ e] the victim for provoking the abuse. " 69 I find that the Appellants do not have access to operationally adequate state protection in Nigeria. A viable IFA is not available to the Appellants in Nigeria [50] The RPD Member canvasses the viability of an IF A during the hearing but does not make an IF A finding in his Reasons. Having conducted my own assessment of the Record, I find that a viable IF A is not available to the Appellants in Nigeria. The Principal Appellant has children with her ex-husband, her agent of persecution. Despite his disdain for his daughters, he remains interested in having unconditional access to his children, as per the divorce application. 70 Given the rights to parental access in Nigerian family law, I find that the Appellants face a serious possibility of persecution throughout Nigeria. [51] I find that the family law system in Nigeria can be used by abusers to access children and, thereby, locate the Appellants. The documentary evidence suggests that in family court proceedings, "in principle and [in] almost all practice, [children] are held to 'belong' to the father." 71 While on paper the best interests of any child in a custody proceeding are said to be paran1ount, the judiciary "is dominantly male" and "prejudiced against women. " 72 There is nothing in evidence to suggest that survivors of violence in Nigeria can withhold their names and addresses in family law proceedings or that child access occurs through third parties who are able to ensure that the parties to a proceeding do not come in contact with one another, either in family court or during access visits and exchanges. I find, on a balance of probabilities, that the agent of persecution could use the Nigerian family court system to locate the Appellants. [52] The Appellants need not establish that their agent of persecution would be able to find them, but merely that they face a serious possibility of persecution. 73 This is a low threshold. Based on the agent of persecution's parental access rights, I find that the Appellants face a serious possibility of persecution in Nigeria and that they do not have a viable IF A. RAD.25.02 (April 04, 2019) Disponible en ji·anr;ais 15 Canada CONCLUSION [53] The appeal is allowed. Pursuant to subsection 11 l(l)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellants are Convention refugees. (signed) "Jennifer Pollock" Jennifer Pollock December 19, 2019 Date 1 The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(l)(h) of the lRPA (the Gender Guidelines). 2 RPO Hearing audio-recording, April 30, 2019, tirnestamp 00:51 :22, 00:52:40. 3 Exhibit RPO-1, RPO Record, Exhibit 2.1, at para. 32. 4 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 5 Exhibit P-2, Appellants' Record, at pp. 38-49, 96(a)-96(e). 6 Immigration and Refugee Protection Act (!RPA), SC 2001, c 27, as amended, at ss. 110(4). 7 Canada (MCI) v. Singh, 2016 FCA 96; Nteta-Tshamala v. Canada (MCI), 2019 FC 1191, at para. 25. 8 IRPA, at ss. 110(6). 9 Exhibit RPO- I, RPO Reasons, at p. 5-6, at paras. 9-10. 10 RPO Hearing audio-recording, April 30, 2019, timestamp 00:51:22, 00:52:40 [emphasis added]. 11 Odia v. Canada (MCI) , 2014 FC 663, at para. 9; Bennis v. Canada (MCI), 2001 FCT 968 (CanLil), at para. 14; Diallo v. Canada (MCI), 2004 FC 1450, at para. 33;X (Re), 2018 CanLII 147831 (CA IRB), at para. 18. 12 The Chairperson's Guideline 4, at para. 0(3). 13 RPO Hearing audio-recording, April 30, 20 I 9, timestamp 00:52:40-00:53 :00. 14 Evans v. Canada (MCI), 2011 FC 444, at para. 18. 15 R v. Lavallee, 1990 Can Lil 95 (SCC), [ 1990] 1 SCR 852, at pp. 878-879. 16 Dena Hernandez v. Canada (CIC), 2010 FC 179, at para. 54. 17 Exhibit P-2, Appellants' Record, Principal Appellant's Affidavit, at p. 45, at para. 31. 18 Exhibit P-2, Appellants' Record, at p. 96(c). 19 RPO Hearing audio-recording, April 30, 2019, timestamp 00: 16:42. 20 RPO Hearing audio-recording, April 30, 2019, timestamp 00:35:28. 21 Exhibit RPD-1, RPO Record, RPO Reasons, at p. 7, at paras. 15-16. 22 Exhibit RPO- I, RPO Record, Exhibit 2.1, at p. 34, at para. 44. 23 Exhibit RPO- I, RPO Record, Exhibit 5, at p. 116. 24 Osikoya v. Canada (MCI), 2018 FC 720, at para. 43. 25 Exhibit RPO- I, RPO Record, RPO Reasons, at p. 8, at paras. 19-21. 26 Murugesu v. Canada (MCI), 2016 FC 819, at para. 30; Radics v. Canada (MCI), 2014 FC 110, at paras. 30-33. 27 Exhibit RPO-I, RPD Record, Exhibit 2.1, at p. 33, at para. 38. 28 Exhibit RPO- I, RPD Record, RPD Reasons, at p. 8, at para. 21. 29 Exhibit RPO- I, RPO Record, RPO Reasons, at p. 8, at para. 21. 30 RPO Hearing audio-recording, April 30, 2019, timestamp O l :45 :07. 31 Exhibit RPO-I, RPO Record, Exhibit 2.1, at p. 32, at para. 34. RAD.25.02 (April 04, 2019) Disponible enfi·anr;:ais 16 Canada Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 106-111. Exhibit RPD-1, RPD Record, RPD Reasons, at p. 13, at para. 38. 34 RPD Hearing audio-recording, April 30, 2019, timestamp 00:28:50-00:31 :38. 35 Exhibit RPO- I, RPO Record, RPD Reasons, at p. 13, at para. 38. 36 Exhibit P-2, Appellants' Record, Principal Appellant's Affidavit, at p. 47, at para. 41. 37 Exhibit RPO-1, RPO Record, RPO Reasons, at p. 13, at para. 38. 38 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 145. 39 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 12-13, at para. 37. 40 RPD Hearing audio-recording, April 30, 2019, timestamp O1 :06:45. 41 Exhibit RPD-1, RPO Record, Exhibit 12, National Documentation Package (NOP) for Nigeria (30 April 2019), Item 5.1, at paras. 4(d), 5(c); Item 5.5; Item 16.10, atp. 19 42 Ndagire v. Canada (MCI), 2005 FC 1606, at para. 13. 43 Exhibit RPO- I, RPO Record, Exhibit 5, at p. 120-122. 44 RPO Hearing audio-recording, April 30, 2019, timestamp 01: 13:55. 45 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 127, at para. 151. 46 Exhibit RPO- I, RPO Record, RPO Reasons, at pp. 9-12, at para. 23-36. 47 Exhibit RPO-1, RPO Record, Exhibit 5, at p. 120-122. 48 Exhibit RPO-2, Supplemental RPO Record, colour copies of Hebron Medical Centre letters, at pp. 1-3. 49 Exhibit RPO-1, RPO Record, Exhibit 6, at pp. 138-143. 50 Exhibit RPD-1, RPO Record, RPO Reasons, at p. 16, at para. 53. 51 Exhibit RPO- I, RPO Record, RPO Reasons, at p. 16, at para. 53. 52 Ariza) v. Canada (MCI), 2008 FC 774, at para. 26. 53 Lozano Pulido v. Canada (MCI), 2007 FC 209, at para. 28; Trembliuk v. Canada (MCI), 2003 FC 1264, at para. 12. 54 Exhibit RPO-1, RPO Record, Exhibit 6, at pp. 140, 142. 55 Exhibit RPO- l, RPO Record, RPO Reasons, at p. 16, at para. 52. 56 RPO Hearing audio-recording, April 30, 2019, timestamp O I: 19:41. 57 Exhibit RPO- I, RPO Record, RPO Reasons, at p. 11, at para. 32. 58 Exhibit RPO-1, RPO Record, RPO Reasons, at p. 15, at paras. 47-48. 59 l RPA, at ss. I 70(g),(h). 60 El Bouni v. Canada (MCI), 2015 FC 700, at para. 25; Fajardo v. Canada (MEI) (1993), 157 NR 392 (FCA); Shahaj v. Canada (MCI), 2005 FC 1044, at para. 9; Amaya v. Canada (MCI), 1999 CanLII 7365, at para. 19. 61 Shahaj v. Canada (MCI), 2005 FC 1044, at para. 9. 62 Tabatadze v. Canada (MCI), 2016 FC 24, at para. 6; Magonza v. Canada (MCI), 2019 FC 14, at paras. 44-45; Abusaninah v. Canada (MCI), 2015 FC 234, at para. 39; Mata Diaz v. Canada (MCI), 2010 FC 319, at para. 37. 63 Exhibit RPO-I, RPO Record, Exhibit 5, at pp. 131-135. 64 X (Re), 2018 CanLII 109695 (CA JRB), at para. 18. 65 RPO Hearing audio-recording, April 30, 2019, timestamp 00:52:40-00:53:40. 66 Exhibit RPO-1, RPO Record, Exhibit 12, NOP for Nigeria (30 April 2019), Item 5.1; Item 5.3. 67 Modeste v. Canada (MCI), 2013 FC 1262, at para. 30. 68 Exhibit RPO-I, RPO Record, Exhibit 12, NOP for Nigeria (30 April 2019), Item 5.21. 69 Exhibit RPO-I, RPO Record, Exhibit 12, NOP for Nigeria (30 April 20 I9), Item 1.1 I, at para. 6.4.2; Item 5.1, at para. 2(b); Item 5.3. 70 Exhibit RPO-1, RPD Record, Exhibit 6, at p. 110. 71 Exhibit RPO-1, RPO Record, Exhibit 12, NOP for Nigeria (30 April 2019), Item 5.5. 72 Exhibit RPD-1, RPO Record, Exhibit 12, NOP for Nigeria (30 April 2019), Item 5.5; Item 5.9; Item 5.7. 73 Henguvav. Canada (MCI), 2013 FC 483, at para. 16. 32 33 RAO.25.02 (April 04, 2019) Disponible en franr;ais 17 Canada