2024 RLLR 111

Citation: 2024 RLLR 111
Tribunal: Refugee Protection Division
Date of Decision: March 26, 2024
Panel: Avril Cardoso
Counsel for the Claimant(s): Irene Awuah on behalf of Roger Rowe
Country: Nigeria, Italy
RPD Number: TB8-27589
Associated RPD Number(s): TB8-27675, TB8-27676
ATIP Number: A-2025-00611
ATIP Pages: 16–29

REASONS FOR DECISION

[1] XXXX (the “principal claimant”), XXXX (“minor female claimant”) and XXXX (the “minor male claimant”) claim to be citizens of Nigeria and Italy and seek Canada’s protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA“).[1]

PROCEDURAL HISTORY

[2] These claims were heard by the Refugee Protection Division (RPD) on July 20, 2021. In its decision dated September 8, 2021, the claims were denied. The claimants appealed to the Refugee Appeal Division (RAD). In its decision of December 21, 2022, the RAD allowed the appeal and returned the claims for redetermination at the RPD.[2] The RAD found that the RPD failed to provide notice to the Minister about exclusion under Article 1F(b) regarding the possible issue of child abduction. The RAD directed the RPD to notify the Minister about the possibility of 1F(b) exclusion based on child abduction and to appoint an independent designated representative for the minor claimants.

POST HEARING SUBMISSIONS

[3] I have received and considered post hearing submissions from counsel.[3]

ALLEGATIONS

[4] The minor claimants are the principal claimant’s children. The principal claimant alleges fear of domestic abuse at the hands of her estranged husband, EDS (the “agent of persecution”). The minor female claimant fears female genital mutilation and tribal facial markings in Nigeria and the minor male claimant fears tribal markings in Nigeria. The claimants allege there is no state protection or other safe haven for them in Italy.[4]

DETERMINATION

[5] In coming to my decision, I have considered and applied the Chairperson’s Gender Guidelines (the “Gender Guidelines”)[5] and the Chairperson’s Guidelines involving Minors[6].

[6] I find that the principal claimant is a Convention Refugee based on the ground of particular social group of women fearing domestic violence and gender-based violence, the minor female claimant is a Convention Refugee based on the ground of girls fearing female genital mutilation (FGM) and the minor male claimant is a Convention Refugee based on the ground of particular social group of boys fearing tribal facial markings.

ANALYSIS

Identity

[7] The claimants have established their personal and national identities as citizens of both Italy and Nigeria based on their Italian and Nigerian passports and minor claimants’ Italian birth certificates.[7]

Exclusion under 1F(b)

[8] Section 98 of the IRPA requires the Board to reject a refugee protection claim by any person referred to in Article 1F of the Refugee Convention. Article 1F(b) of the Refugee Convention provides that a person with respect to whom there are serious reasons for considering that he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee is excluded from the protection of the Refugee Convention.

[9] The Minister bears the onus of proving that a claimant is excluded from refugee protection under Article 1F(b). That is, the Minister bears the onus of establishing that there are serious reasons for considering that a claimant has committed a serious non-political crime.[8] The standard of proof to be applied to the threshold test of serious reasons for considering is higher than a mere suspicion but lower than proof on the civil balance of probabilities standard[9].

[10] The Minister was notified in writing about the possibility of child abduction on November 22, 2023. In its response dated November 27, 2023 the Minister informed the Board that it did not intend to intervene in these claims.[10]

Principal claimant has committed child abduction and established defence

[11] Section 283 of the Criminal Code[11] deals with child abduction as alleged in this case. According to this section:

283 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

[12] Section 285 provides for a defence to subsection 283(1). It is the defence of imminent harm and states that a person will not be found guilty of an offence under subsection 283(1) if the child has been taken away because it was necessary to protect the young person from danger of imminent harm or if the person who took the child was escaping from danger of imminent harm.

[13] I find that the principal claimant has committed the crime of child abduction as set out in s. 283. I find that the principal claimant is not excluded under Article 1F(b) as she has established a defence of imminent harm under s. 285. The abduction was necessary to protect the minor claimants from danger of imminent harm.

[14] The principal claimant is one of the parents of the minor claimants, she removed them from Italy with the intent to deprive the agent of persecution of possession of the children. An Italian marriage certificate confirms the marriage of the principal claimant to the agent of persecution.[12] A letter from the pastor who performed their marriage is also provided.[13] The birth certificates for both minor claimants notes the agent of persecution as their father.[14] The principal claimant testified that she is currently separated from the agent of persecution. She said that neither her nor the minor claimants have had any contact with the agent of persecution since they left Italy on XXXX 2018. She does not believe the agent of persecution knows where she and the minor claimants are located. She testified that she could not obtain consent because the agent of persecution wants to take the minor claimants to Nigeria so that the minor female claimant can undergo FGM and tribal facial markings and the minor male claimant can undergo tribal markings so that the agent of persecution can comply with the customs and traditions in his village.

[15] I find that the principal claimant has credibly established that the minor female claimant is required to undergo FGM and that both minor claimants would be subjected to tribal facial markings as required by the agent of persecution’s village customs in Nigeria. The agent of persecution’s sister submitted an affidavit confirming that all female children in their community must undergo circumcision.[15] An affidavit from the principal claimant’s brother-in-law also confirms that he drove the principal claimant and the minor female claimant to their village in Ondo state when she visited Nigeria in XXXX 2016. He writes that it is normal practice for the minor female claimant to undergo FGM in their village.[16]

[16] I asked the principal claimant if she tried to seek police protection in Italy to prevent her children from travelling with their father to be subjected to the tribal rituals. She said she approached the police for help but was told that because they are African and this is a religious belief, they cannot assist her. I asked her if she considered obtaining a lawyer or going to court and she said it would take too long and the situation was urgent. I asked the principal claimant why the situation was urgent and she responded that after her mother-in-law passed away in XXXX 2018, the agent of persecution became angry and blamed her death on his failure to bring his children to Nigeria to comply with the traditions and rituals. The claimants submitted a death certificate confirming the death of the principal claimant’s mother-in-law on XXXX 2018.[17] The principal claimant said that the agent of persecution purchased airline tickets in XXXX 2018 so that the family could travel to Nigeria and the children could undergo the rituals. When I asked her about the harm that would be caused to the minor claimants if they submitted to the rituals, she testified that a friend could not have children as a result of FGM and also developed seizures. She said the tribal facial markings would have an emotional and psychological impact on the minor claimants as they would be disfigured. She said there was no other alternative and the agent of persecution had to comply to make the children indigenes of his village. She said the male is the head of the family and has ownership of the children.

Defence of imminent harm

[17] There is a three-part test to establish imminent harm:[18]

i. The situation must be urgent and the peril imminent;

ii. Compliance with the law must be demonstrable impossible such that there is no reasonable legal alternative to disobeying the law; and

iii. The harm inflicted must be proportional to and not greater than the harm sought to be avoided.

[18] The first two factors are assessed on a modified objective standard which takes into account the situation and characteristics of the person raising the defence.[19]

[19] Canada is a signatory to the Convention on the Rights of the Child and Article 19(1) obligates state parties to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or emotional violence while in the care of parents or others who have the care of the child.[20]

Imminent peril is established

[20] There was a situation of clear and imminent peril. When asked when she made the decision to come to Canada, the principal claimant said that when the agent of persecution purchased airline tickets in XXXX 2018, she knew she had to flee Italy.

No reasonable legal alternative in Italy

[21] The principal claimant testified about seeking protection from the police but none was forthcoming as it was seen as a religious, private matter to be resolved within the family. A Human Rights Watch report writes that the European Court of Human Rights condemned Italy for failing to sufficiently protect a woman and her children from domestic violence despite repeated complaints. It states that this demonstrates ongoing problems experienced by women who fail to obtain protection from the authorities.[21] Freedom House reports that judicial procedures are often characterized by lengthy delays.[22] I find that there was no reasonable legal alternative available to the principal claimant based on her gender, race and the legal system ineffectiveness. The principal claimant’s belief that she had no reasonable legal alternative is supported by the objective evidence.

Proportional analysis

[22] Based on the evidence in the record, I find that the minor claimants would face greater harm by undergoing FGM and tribal facial markings which would have a physical, emotional and psychological impact to them. The female minor claimant may be unable to bear children and face long standing health issues from FGM.

[23] A UN report states that there are immediate and long-term complications arising in girls and women who are subjected to FGM including excessive bleeding, severe pain, infection, urinary problems, menstrual problems, psychological problems and even death. Many women and girls feel violated, develop shame and lack of trust in people.[23] FGM has no health benefits and harms girls and women in many ways.[24] Therefore there is greater harm caused by allowing the children to undergo FGM and the tribal facial markings than the harm caused to their father resulting from their removal from Italy.

Defence under s. 285 established by principal claimant

[24] As the principal claimant has established that she has a complete defence under section 285 of the Criminal Code to the crime of child abduction, I find that there are no serious reasons to consider that she has committed a serious non-political crime before coming to Canada and, therefore, she is not excluded from refugee protection under Article 1(F)(b).

Credibility

[25] It is well established that a claimant is entitled to a presumption of truth which may be rebutted by contradictions, omissions and discrepancies.

The principal claimant is a survivor of domestic abuse

[26] I find that the principal claimant is a survivor of domestic abuse based on her credible testimony which was materially consistent with her narrative and supporting documents.

[27] She testified that she married the agent of persecution in XXXX 2013 in Italy. She said that his sister and her spouse attended the wedding but her family did not. She said the marriage was good at the beginning. Things changed after she returned from her visit to Nigeria in XXXX 2016 and refused to subject her children to the tribal rituals. She said the agent of persecution began to verbally abuse her and she believes he did not accompany them to Nigeria because he knew that the children would have to undergo the rituals and that she would oppose them as she is a Christian. She testified that she went to Nigeria because she wanted his family to get to know her. She testified that she sought help from a pastor in Italy who encouraged her not to divorce the agent of persecution but to persevere and he would help through prayer. The principal claimant submitted a statement from the pastor who married her and counselled her.[25] She also submitted a letter from a friend in Italy who provided her with shelter for a few days and who helped her to purchase a ticket to come to Canada.[26]

Well-Founded Fear of Persecution

[28] The claimants’ fear of being deported to Nigeria or Italy in the present circumstances is a fear that is well-founded in the objective documents.

Italy

[29] In a UN report, deep concerns are expressed by racist discourse in politics targeting public figures and politicians of African descent and the immunity that has shielded parliamentarians who have made such remarks. Racism-fueled propaganda and anti-immigrant sentiments disseminated online are normalizing racism. It has been reported that the Government has failed to identify racist and xenophobic violence as a serious issue in Italy and to take action to address it. Afrophobia and racial discrimination are manifest in the lack of protection afforded to people of African descent, a vulnerable group and in the difficulty that people of African descent have in gaining access to justice and in the failure to prosecute and provide reparation and remedy. Concerns about racial discrimination, victimization, violence and harassment inflicted on children of African descent in schools by pupils and their teachers are described. While the national health system should provide all individuals with essential health care, racial discrimination continues to prevent access to health care. Doctors allegedly do not believe the statements of people of African descent and make wrong assumptions based on racial prejudice. Multiple grounds of discrimination intersected with one another were reported to the Working Group, which heard accounts of discrimination based on pigmentation of skin, ethnicity, nationality, sex and religion, among others.[27]

[30] According to a UN report, the United Nations High Commissioner for Human Rights (OHCHR) received concerning information about the situation of racism, racial discrimination and related intolerance in Italy. OHCHR has serious concerns that Italy is experiencing an increase of intolerance, racial and religious hatred, and xenophobia, which in some cases is allowed or even encouraged by political leaders and members of Government. Throughout the mission, civil society organizations, social workers and community members reported incidents indicating that children are experiencing discriminatory rhetoric at school with a sense of normalcy, rather than a discourse of appreciation of diversity. On the other hand, there have been notable actions against racial hatred, discrimination and violence. OHCHR was impressed by the independence of the judiciary and actions it has been taking to address racial discrimination, including guidelines and publications, opinions on draft laws, and training courses. Despite some cases resulting in punishments against perpetrators, OHCHR observed an overall lack of urgency in taking decisive action against hateful speech. [28]

[31] While the number of homicides have generally declined since the 1990s, the number of women killed by a family member or partner has remained high and proportionally grown in recent years. In a country like Italy where there is a macho culture and sexism is strong, violence is justified in a different way. According to this report, violence against women stems from a profound inequality that is deeply rooted in Italian culture.[29]

Nigeria

[32] The Australian Department of Foreign Affairs and Trade (DFAT) report states that despite constitutional protections for women, sex-based discrimination and violence remains a significant risk for women and girls. Nigeria remains a patriarchal society in many respects. FGM is illegal and in decline however it continues to be practiced. Cultural and societal norms support the continuation of FGM/C in Nigeria.[30] A UK report writes that FGM is on the decline.[31]

[33] UNICEF reports that FGM is on the rise among Nigerian girls aged 0-14 displaying a worrying trend. State prevalence ranges from 62 percent in Imo to less than 3 percent in Adamawa and Gombe. Despite being outlawed, the practice persists.[32] There is a high prevalence of FGM in Ondo state.[33]

[34] The practice of tribal markings was used to indicate heritage. It is generally carried out on children. Both male and female children may have tribal marks and the marks and traditions vary depending on the bearer’s ethnic group or family. It is especially prevalent with Yoruba.[34]

State Protection

[35] A state, unless in a condition of complete breakdown, is presumed to be capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing confirmation of the state’s inability to protect its citizens.

Nigeria

[36] According to the U.S. Department of State report, significant human rights issues included serious government corruption, FGM and inadequate protection against gender based violence. Enforcement of federal law criminalizing FGM was rare. Police response to reports of FGM was inadequate as they see it as a family matter.[35]

[37] A response to information request states that the implementation of legislation prohibiting FGM/C remains low across the states in Nigeria. There remains a high record of FGM practice. [36]

Italy

[38] I have assessed state protection in Italy through the intersecting lens of both race and gender.

[39] The principal claimant testified that she has approached the police on multiple occasions. She said she contacted the police in XXXX 2017 when her sister-in-law and another individual assaulted her at her home. She testified that the officers arrived after the perpetrators left and as it was considered a family matter, no follow up occurred. She also testified about contacting the police later in XXXX 2017 after the agent of persecution assaulted her and she was told she had previously called and it was the same issue which did not warrant any action. The principal claimant testified about a further assault in XXXX 2018 and she was not offered any help despite trying to approach a different police station. She testified she was told that there was a record of her complaints in the system but as these were issues between Africans, they were not serious and must be resolved between the spouses.

[40] The U.S. Department of State report writes that human rights issues include threats of violence targeting members of racial and ethnic minorities. Gender-based violence, particularly femicide, remained a significant problem.[37]

[41] Another source reports that foreign women are victims of sexual or physical violence on a similar scale to Italian women. However, physical violence is experienced more frequently by foreign women. Current and former partners of victims are those who commit the most serious crimes. Obstacles to full implementation of the Istanbul Convention include lack of education and professional training, low financing of support services, lack of accountability in relation to services against violence, problems with the high percentage of violence against disabled and immigrant women to whom little attention is given in the legislation and services provided and low effectiveness of the criminal and civil redress system. Some measures were introduced aimed at supporting victims of gender violence.[38]

[42] A Human Rights Watch report writes that women who experience domestic violence have problems obtaining protection from the authorities in practice.[39]

[43] The claimants have rebutted the presumption of state protection with clear and convincing evidence in Nigeria and Italy.

Internal Flight Alternative

[44] To determine whether a viable IFA exists, I must consider a two-pronged test. Under the first prong, I must be satisfied that on a balance of probabilities, the claimant would not face a serious possibility of persecution or risk to life or of cruel and unusual treatment or punishment in the part of the country where there is an IFA. And, secondly, the IFA must be such that it would not be objectively unreasonable or unduly harsh in all the circumstances for the claimant to relocate[40]. Once the issue is raised, the burden of proof rests on the claimant[41].

Nigeria

[45] At the hearing, the cities of Lagos and Port Harcourt were identified as possible locations within Nigeria where the claimants could relocate.

[46] I find that the test fails on the first prong. As it is conjunctive, it is not necessary to consider the second prong.

[47] The principal claimant testified that despite being absent from Nigeria since 2016, the agent of persecution’s village remains determined that the minor claimants comply with the rituals. She said that the death of her mother-in-law and an uncle are being attributed to the failure of the minor claimants to become indigenes of the village.

[48] An affidavit from the principal claimant’s brother-in-law states that he has uncles and brothers who are Nigerian XXXX in Abuja, Lagos and Port Harcourt. One of his relatives was a former XXXX in Lagos.[42]

[49] I find that given the relatives who are police officers in multiple cities, their connections and the ongoing interest in subjecting the minor claimants and the principal claimant to tribal rituals the agent of persecution has the means and motivation to locate the claimants in Nigeria.

Italy

[50] With regard to Italy, I find that the test fails on the second prong. The principal claimant testified that all black people live in particular areas of cities in Italy and she would be located by the agent of persecution if she moved to a different city than Rome where she previously lived. She would likely rely on people from her own community as she would need support as a single mother which makes it likely that her location would become known to the agent of persecution. There is also a lack of adequate state protection available to her which increases the likelihood of her being located and harmed.

[51] I find that there is a serious possibility of persecution throughout Italy and Nigeria and there is no viable IFA available to the claimants.

CONCLUSION

[52] I find that the principal claimant faces a serious possibility of persecution in Nigeria and Italy and is a Convention Refugee based on the ground of particular social group of women fearing domestic violence.

[53] I find that the minor female claimant and minor male claimant face a serious possibility of persecution in Italy and Nigeria. I find that the minor female claimant is a Convention refugee based on the particular social group of girls fearing FGM and the minor male claimant is a Convention refugee based on the particular social group of boys fearing tribal facial markings.

[54] I accept their claims.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.

[2] Exhibit 8.

[3] Exhibit 13.

[4] Exhibits 2.1 – 2.3, 6, 9 and 12.

[5] Chairperson’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board, Guidelines Issued by the Chairperson pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act, effective July 18, 2022.

[6] Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board. Issued by the Chairperson pursuant to section 159(l)(h) of the Immigration and Refugee Protection Act, effective October 31, 2023. [Guideline 3].

[7] Exhibits 1 and 5.

[8] Quintana Murillo v. Canada (Citizenship and Immigration) 2008 FC 966 at para. 24.

[9] Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1204 at para. 12.

[10] Exhibit 11.

[11] R.S.C. 1985, c. C-46.

[12] Exhibit 6, p. 134.

[13] Exhibit 6, p. 15.

[14] Exhibit 4, pp. 104-105.

[15] Exhibit 4, p. 124.

[16] Exhibit 4, p. 126.

[17] Exhibit 4, p. 103.

[18] R. v. C.A.V., 2003 Can LII 3548 (ON CA) at paras. 13 and 14; Exhibit 47, p. 22.

[19] R. v. Latimer 2001 SCC 1 at para. 32.

[20] November 20, 1989, [1992] Can. T.S. No. 3.

[21] Exhibit 10, p. 46.

[22] Exhibit 3.1, National Documentation Package (NDP) on Italy (August 31, 2023), Item 2.3 at p. 11.

[23] Exhibit 10, p. 100, 101.

[24] Exhibit 4, p. 2.

[25] Exhibit 6, p. 142.

[26] Exhibit 6, p. 139.

[27] Exhibit 3.1, National Documentation Package (NDP) on Italy (August 31, 2023), Item 13.2 at paras. 39, 47, 49,

50, 55, 60 and 70.

[28] Exhibit 3.I, National Documentation Package (NDP) on Italy (August 31, 2023), Item 13.3 at paras. l, 34, 39, 41.

[29] Exhibit 10, p. 49.

[30] Exhibit 3.2, National Documentation Package (NDP) on Nigeria (November 30, 2023), Item 1.8 at paras. 3.75,

3.78, 3.90, 3.92, 3.115.

[31] Exhibit 3,.2 National Documentation Package (NDP) on Nigeria (November 30, 2023), Item 5.16 at p. 24.

[32] Exhibit 10, p. 106.

[33] Exhibit 4, p. 54.

[34] Exhibit 3.2, National Documentation Package (NDP) on Nigeria (November 30, 2023), Item 13.4 at p. 1.

[35] Exhibit 3.2, National Documentation Package (NDP) on Nigeria (November 30, 2023), Item 2.1 at pp. 2, 27, 43,

46.

[36] Exhibit 3,.2 National Documentation Package (NDP) on Nigeria (November 30, 2023), Item 5.39 at p. 16.

[37] Exhibit 3.1, National Documentation Package (NDP) on Italy (August 31, 2023), Item 2.1 at p. 1, 15.

[38] Exhibit 3.1, National Documentation Package (NDP) on Italy (August 31, 2023), Item 5.4 at pp. 88, 89

[39] Exhibit 10, p. 46

[40] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710.

[41] Chauhdry, Mukhtar Ahmed v. MC.I. F.C.T.D. no. lMM3951-97, August 17, 1998.

[42] Exhibit 12, p. 157.