Prompt:
What administrative law principles are applied in this Federal Court of Canada decision?

Li v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-07-21 Neutral citation 2023 FC 1006 File numbers IMM-7896-22 Decision Content Date: 20230721 Docket: IMM-7896-22 Citation: 2023 FC 1006 Ottawa, Ontario, July 21, 2023 PRESENT: Madam Justice McDonald BETWEEN: JUN LI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents JUDGMENT AND REASONS I. Background [1] This is an Application for judicial review of an Exclusion Order issued by the Minister of Citizenship and Immigration’s delegate [Minister’s Delegate], dated July 26, 2022 [Exclusion Order]. [2] The Applicant is a 40-year-old citizen of China who entered Canada on a student visa in August 2001. His student visa expired in November 2002, but he remained in Canada continuously since then without status. [3] The Applicant married a Canadian permanent resident and the couple have two Canadian children. In July 2021, an in-Canada spousal sponsorship application was submitted for the Applicant. A. Decision Under Review [4] The Applicant was interviewed by an inland enforcement officer on May 30, 2022. At that interview, the Applicant indicated he had not worked since the expiry of his student visa in 2002 and that he had not applied for an extension of his status. [5] After this interview, a Subsection 44(1) Report was issued, recommending an Exclusion Order be issued against the Applicant, under subsections 41(a) and 29(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Subsection 44(1) Report noted that the Applicant had not obtained an extension of his status since it expired in 2002. [6] The Applicant was interviewed by the Minister’s Delegate on July 26, 2022. When asked by the Minister’s Delegate if he had applied for an extension to stay in Canada longer, the Applicant responded ‘no’. [7] The Minister’s Delegate found that pursuant to subsection 41(a) of the IRPA, on a balance of probabilities, there were grounds to believe that the Applicant was inadmissible for failing to comply with subsection 29(2) of the IRPA, which requires a temporary resident to leave Canada at the end of their authorized stay. II. Relevant Legislation [8] Section 41 of the IRPA states: A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act. S’agissant de l’étranger, emportent interdiction de territoire pour manquement à la présente loi tout fait — acte ou omission — commis directement ou indirectement en contravention avec la présente loi et, s’agissant du résident permanent, le manquement à l’obligation de résidence et aux conditions imposées. [9] Subsection 29(2) of the IRPA states: A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry. Le résident temporaire est assujetti aux conditions imposées par les règlements et doit se conformer à la présente loi et avoir quitté le pays à la fin de la période de séjour autorisée. Il ne peut y rentrer que si l’autorisation le prévoit. III. Issue and Standard of Review [10] The Applicant raises both reasonableness and procedural fairness issues in this Application. As the Applicant did not make any substantive submissions on procedural fairness, I will only address the reasonableness of the Decision. [11] The standard of review is reasonableness, per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. IV. Analysis [12] The Applicant submits that in issuing the Exclusion Order, the Minister’s Delegate failed to consider his personal circumstances. In particular, he argues the Minister’s Delegate was obligated to consider humanitarian and compassionate [H&C] factors including the best interests of his children [BIOC]. [13] There are two issues with this submission. [14] First, there is no evidence the Applicant raised H&C or BIOC considerations at either of the two interviews with Canada Border Services Agency. Nor is there evidence that he requested that these factors be considered in any way. These factors appear to have been raised for the first time on judicial review. In the circumstances, the Minister’s Delegate cannot be faulted for not considering an argument that was not raised. [15] Second, the case law is clear that the Minister’s Delegate is not required to consider H&C grounds in the context of an exclusion order. In Bermudez v Canada (Citizenship and Immigration), 2016 FCA 131, the Federal Court of Appeal held “non-citizens, whether they be foreign nationals or permanent residents, do not have the right to have H&C considerations imported and read into every provision of the IRPA, the application of which could jeopardize their status” (at para 38). [16] Specifically in the context of exclusion orders, the Federal Court has repeatedly held that a minister’s delegate is not required to consider H&C factors, including the BIOC, when issuing an exclusion order under section 44 (see Eberhardt v Canada (Public Safety and Emergency Preparedness), 2013 FC 1077 at paras 58-59; Rosenberry v Canada (Citizenship and Immigration), 2010 FC 882 at para 36 [Rosenberry]; and Lasin v Canada (Minister of Citizenship and Immigration), 2005 FC 1356). [17] In Rosenberry, the Court held: [36] The substance of the decision did not require the Minister’s delegate to consider the H&C application or H&C factors at all. Under section 44 immigration officials are simply involved in fact-finding. They are under an obligation to act on facts indicating inadmissibility. It is not the function of such officers to consider H&C factors or risk factors that would be considered in a pre-removal risk assessment. This was recently confirmed in Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409 at paragraphs 35 and 37. [18] Accordingly, the Applicant’s submissions that the Minister’s Delegate was required to consider H&C factors is without merit. [19] The Applicant also relies upon Ouedraogo v Canada (Public Safety and Emergency Preparedness), 2016 FC 810 [Ouedraogo] where Justice McVeigh held that the term ‘may’ in section 44(2) of the IRPA and subparagraph 228(1)(c)(iv) of the Immigration and Refugee Protection Regulations, SOR/2002-227 gave the minister’s delegate limited discretion on whether to issue an exclusion order. In Ouedraogo, the applicant was within the 90 day period to restore his status in Canada and Justice McVeigh held “[t]he exercise of discretion is limited to examine whether on an overstay the applicant has applied for restoration or could have been implied to have applied within the 90 day period before he came to the attention of Immigration officials” (at para 24). Justice McVeigh concluded that the minister’s delegate had not fettered their limited discretion in the circumstances, in considering a policy which reflected the competing objectives within the IRPA (at para 33). [20] The facts in Ouedraogo are different from this case. Here, the Applicant did not apply for restoration of his status within 90 days and, in fact, remained in Canada without status for over 20 years. In any event, with respect to the Minister’s Delegate discretion, this has been described as “limited, if not non‑existent” in the context of issuing an exclusion order (Diakité v Canada (Public Safety and Emergency Preparedness), 2018 FC 1268 at para 13). [21] Here, the Minister’s Delegate was not required to exercise their limited discretion to consider any H&C factors, especially where there is no evidence that those arguments were raised by the Applicant. [22] Overall, the Applicant failed to demonstrate that the Decision of the Minister’s Delegate falls outside a range of possible, acceptable outcomes which are defensible in respect of the facts and law as stated in Vavilov. The Minister’s Delegate’s Decision is therefore reasonable. V. Conclusion [23] This Application for judicial review is dismissed and there is no question for certification. JUDGMENT IN IMM-7896-22 THIS COURT’S JUDGMENT is that: The judicial review Application is dismissed; and There is no question to be certified pursuant to section 74 of the Immigration and Refugee Protection Act, SC 2001, c 27. blank "Ann Marie McDonald" blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7896-22 STYLE OF CAUSE: LI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: toronto, on DATE OF HEARING: june 8, 2023 JUDGMENT AND REASONS: MCDONALD J. DATED: July 21, 2023 APPEARANCES: Harsher Singh Sidhu For The Applicant Kevin Doyle For The Respondents SOLICITORS OF RECORD: My Visa Source Toronto, ON For The Applicant Attorney General of Canada Toronto, ON For The Respondents

Response:
## Analysis of Court Decision: Li v. Canada (Citizenship and Immigration)

### Key Issues
eness and procedural fairness issues in this Application. As the Applicant did not make any substantive submissions on procedural fairness, I will only address the reasonableness o

### Standard of Review
on le prévoit. III. Issue and Standard of Review [10] The Applicant raises both reasonableness and procedural fairness issues in this Application. As the Applicant did not make any

### Legal Analysis
The court's analysis focuses on: v, 2019 SCC 65 [Vavilov]. IV. Analysis [12] The Applicant submits that in issuing the Exclusion Order, the Minister’s Delegate failed to consider his personal circumstances. In particular, he argues the Minister’s Delegate was obligated to consider humanitarian and compassionate [H&C] factors including the best interests of his

### Precedential Value
This Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency.


Prompt:
Analyze this Refugee Protection Division decision from the Immigration and Refugee Board of Canada and explain how it applies refugee definition:

Immigration and Refugee Board Commission de l'immigration et du statut de réfugié Refugee Protection Division Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA6-08826 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience April 8, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision April 25, 2008 Panel Tribunal Me Michel Byczak Claimant's Counsel Conseil du demandeur d'asile Me Gisela Barraza Tribunal Officer Agent du tribunal Sylvain Paré Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A XXXXX XXXXX XXXXX XXXXX, a Mexican citizen, is claiming refugee protection under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). SUMMARY OF ALLEGED FACTS The claimant is a 25-year-old XXXXX XXXXX. He had a very good position with XXXXX XXXXX XXXXX, which supplies parts to XXXXX. He comes from a very comfortable family in Mexico. The claimant's problems started on XXXXX, 2006. At around 9:00 that night, 12 men drove up to his house in a white van that had no licence plates. They allegedly showed the claimant their weapons and asked him where he hid the drugs. One of the individuals then struck the claimant on the leg with a metal hammer. The claimant had no idea what they wanted and did not understand why they had targeted him since he had nothing to do with drug trafficking. The claimant does not know the identities of his assailants, who wanted to know where the drugs were. They finally let him go. They also warned him not to file a complaint. The next day, XXXXX, 2006, the claimant went to his parents who live two hours away by car. On XXXXX and XXXXX, the claimant travelled to the United States and back twice. A few days later, some of his assailants came looking for him at his parents' house. The claimant telephoned the public ministry for help. He was told that police officers would be dispatched, but they never showed up. On XXXXX, the claimant decided to leave the country permanently and seek refugee protection in Canada. The claimant did not consider the possibility of an internal flight alternative before leaving his country. He also filed a complaint with the Human Rights Commission on the same day that he filed a complaint with the public ministry. However, he was told that they could only get involved in cases of improper conduct by public servants. DETERMINATION The claimant is not a "person in need of protection" under paragraph 97(1)(b) of the IRPA. ANALYSIS Identity The claimant's identity has been established by means of a photocopy of his Mexican passport. Internal flight alternative (IFA) According to the panel, this case can be resolved based on the existence of an internal flight alternative (IFA). The IFA was mentioned during the hearing. The cities of Mexico DF, Guadalajara and Cancun were suggested as IFAs. The test for determining whether an IFA exists has two components. First, is there another part of the country where the claimant would not be subjected to a danger or a risk, as per subsection 97(1) of the IRPA? If so, would it be objectively unreasonable or too severe to expect the claimant to move to another part of his country before claiming refugee protection abroad?1 The second component is objective. Is it objectively reasonable to expect the claimant to move to another part of the country? The criteria are very strict. In this case, the claimant does not know why he was attacked. The assailants allegedly did not ask for any money. It is very difficult to determine the motive for their actions. The claimant speculated that he was targeted because of his financial situation, which is comfortable, and the fact that his parents are considered rich, or middle class. He went on to state [translation] "I do not know what to answer". He finally answered no when he was asked if he knew who had attacked him. The claimant said that he did not know whether these people wanted to extort money from him. He did not know what they wanted. The panel must ask itself whether this is a localized situation or whether the assailants would continue to search for the claimant to harass him or threaten his life. When asked if he could move to Mexico City DF, the claimant answered that it had crossed his mind, but that unfortunately there are delinquents and drug traffickers there, although they are elsewhere as well. Given that the claimant was not involved in drugs in any way, the panel is inclined to wonder whether this might be a case of mistaken identity. The only place that the claimant tried to go before deciding to claim refugee protection in Canada was to his parents' home, which is a two-hour drive away. He allegedly saw a few people in front of his parents' home and asked the police to send help. Although the police should have responded, they did not. However, when people are looking for someone, they usually search for them at their family members' homes first as that would be the first place that someone would go to. When the claimant was asked if he could find an IFA in Cancun or in Guadalajara, he answered: [translation] "I do not know why; they will look for me in other places." He was then asked why he had not tried to find an IFA. He stated that he would end up working for another international company or asking for a transfer from the company that he was currently working for, and that it would be easy to find him. The panel does not share the opinion that it would be easy to find the claimant. The claimant is an XXXXX with 16 and one half years of schooling. From the beginning of 2004 to the end of 2006, he worked as a quality-control supervisor with a company that supplies parts to XXXXX. He had a good position, above-average wages, and came from a family that could be considered wealthy. Without knowing the motive for the attack, the panel sees no reason to believe that the crime that was committed was anything but a localized incident. The panel does not see why these people would go to other parts of the country to find the claimant in the suggested larger cities, or in other cities in Mexico. Although the claimant might encounter some difficulties in relocating, these do not, in and of themselves, make the possibility of an IFA unreasonable.2 The panel considers the IFA to be a realistic and affordable option in this case. The panel is of the opinion that the claimant would not be exposed to great physical danger or be subjected to undue hardship if he were to travel or to relocate to one of the suggested regions of Mexico.3 The claimant has not discharged his burden of proof of demonstrating that there is no IFA available to him.4 The panel concludes that an IFA would not be unreasonable in his case. CONCLUSION The claimant is not a "person in need of protection". The claim for refugee protection is rejected. Michel Byczak Me Michel Byczak April 25, 2008 Date 1 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 2 M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 3 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). REFUGEE PROTECTION DIVISION / HARASSMENT / DRUG TRAFFICKING / HIDING / INTERNAL FLIGHT ALTERNATIVE / MALE / NEGATIVE / MEXICO --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA6-08826 4

Response:
## Analysis of Refugee Decision: MA6-08826

### Key Issues
Immigration and Refugee Board Commission de l'immigration et du statut de réfugié Refugee Protection Division Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA6-08826 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience April 8, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision April 25, 2008 Panel Tribunal Me Michel Byczak Claimant's Counsel Conseil du demandeur d'asile Me Gisela Barraza Tribunal Officer Agent du tribunal Sylvain Paré Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A XXXXX XXXXX XXXXX XXXXX, a Mexican citizen, is claiming refugee protection under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). SUMMARY OF ALLEGED FACTS The claimant is a 25-year-old XXXXX XXXXX. He had a very good position with XXXXX XXXXX XXXXX, which supplies parts to XXXXX. He comes from a very comfortable family in Mexico. The claimant's problems started on XXXXX, 2006. At around 9:00 that night, 12 men drove up to his house in a white van that had no licence plates. They allegedly showed the claimant their weapons and asked him where he hid the drugs. One of the individuals then struck the claimant on the leg with a metal hammer. The claimant had no idea what they wanted and did not understand why they had targeted him since he had nothing to do with drug trafficking. The claimant does not know the identities of his assailants, who wanted to know where the drugs were. They finally let him go. They also warned him not to file a complaint. The next day, XXXXX, 2006, the claimant went to his parents who live two hours away by car. On XXXXX and XXXXX, the claimant travelled to the United States and back twice. A few days later, some of his assailants came looking for him at his parents' house. The claimant telephoned the public ministry for help. He was told that police officers would be dispatched, but they never showed up. On XXXXX, the claimant decided to leave the country permanently and seek refugee protection in Canada. The claimant did not consider the possibility of an internal flight alternative before leaving his country. He also filed a complaint with the Human Rights Commission on the same day that he filed a complaint with the public ministry. However, he was told that they could only get involved in cases of improper conduct by public servants. DETERMINATION The claimant is not a "person in need of protection" under paragraph 97(1)(b) of the IRPA. ANALYSIS Identity The claimant's identity has been established by means of a photocopy of his Mexican passport. Internal flight alternative (IFA) According to the panel, this case can be resolved based on the existence of an internal flight alternative (IFA). The IFA was mentioned during the hearing. The cities of Mexico DF, Guadalajara and Cancun were suggested as IFAs. The test for determining whether an IFA exists has two components. First, is there another part of the country where the claimant would not be subjected to a danger or a risk, as per subsection 97(1) of the IRPA? If so, would it be objectively unreasonable or too severe to expect the claimant to move to another part of his country before claiming refugee protection abroad?1 The second component is objective. Is it objectively reasonable to expect the claimant to move to another part of the country? The criteria are very strict. In this case, the claimant does not know why he was attacked. The assailants allegedly did not ask for any money. It is very difficult to determine the motive for their actions. The claimant speculated that he was targeted because of his financial situation, which is comfortable, and the fact that his parents are considered rich, or middle class. He went on to state [translation] "I do not know what to answer". He finally answered no when he was asked if he knew who had attacked him. The claimant said that he did not know whether these people wanted to extort money from him. He did not know what they wanted. The panel must ask itself whether this is a localized situation or whether the assailants would continue to search for the claimant to harass him or threaten his life. When asked if he could move to Mexico City DF, the claimant answered that it had crossed his mind, but that unfortunately there are delinquents and drug traffickers there, although they are elsewhere as well. Given that the claimant was not involved in drugs in any way, the panel is inclined to wonder whether this might be a case of mistaken identity. The only place that the claimant tried to go before deciding to claim refugee protection in Canada was to his parents' home, which is a two-hour drive away. He allegedly saw a few people in front of his parents' home and asked the police to send help. Although the police should have responded, they did not. However, when people are looking for someone, they usually search for them at their family members' homes first as that would be the first place that someone would go to. When the claimant was asked if he could find an IFA in Cancun or in Guadalajara, he answered: [translation] "I do not know why; they will look for me in other places." He was then asked why he had not tried to find an IFA. He stated that he would end up working for another international company or asking for a transfer from the company that he was currently working for, and that it would be easy to find him. The panel does not share the opinion that it would be easy to find the claimant. The claimant is an XXXXX with 16 and one half years of schooling. From the beginning of 2004 to the end of 2006, he worked as a quality-control supervisor with a company that supplies parts to XXXXX. He had a good position, above-average wages, and came from a family that could be considered wealthy. Without knowing the motive for the attack, the panel sees no reason to believe that the crime that was committed was anything but a localized incident. The panel does not see why these people would go to other parts of the country to find the claimant in the suggested larger cities, or in other cities in Mexico. Although the claimant might encounter some difficulties in relocating, these do not, in and of themselves, make the possibility of an IFA unreasonable.2 The panel considers the IFA to be a realistic and affordable option in this case. The panel is of the opinion that the claimant would not be exposed to great physical danger or be subjected to undue hardship if he were to travel or to relocate to one of the suggested regions of Mexico.3 The claimant has not discharged his burden of proof of demonstrating that there is no IFA available to him.4 The panel concludes that an IFA would not be unreasonable in his case. CONCLUSION The claimant is not a "person in need of protection". The claim for refugee protection is rejected. Michel Byczak Me Michel Byczak April 25, 2008 Date 1 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 2 M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 3 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). REFUGEE PROTECTION DIVISION / HARASSMENT / DRUG TRAFFICKING / HIDING / INTERNAL FLIGHT ALTERNATIVE / MALE / NEGATIVE / MEXICO --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA6-08826 4

### Legal Analysis
The decision analyzes refugee protection criteria by examining: ragraph 97(1)(b) of the IRPA. ANALYSIS Identity The claimant's identity has been established by means of a photocopy of his Mexican passport. Internal flight alternative (IFA) According to the panel, this case can be resolved based on the existence of an internal flight alternative (IFA). The IFA was mentioned during the hearing

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.


Prompt:
What legal principles are established in this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada?

RAD File / Dossier de la SAR : MC1-02685 MC1-02686 / MC1-02687 / MC1-02688 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED] [REDACTED] [REDACTED] [REDACTED][REDACTED] Personnes en cause Date of decision April 13, 2022 Date de la décision Panel Benjamin R. Dolin Tribunal Counsel for the persons who are the subject of the appeal Jacqueline M Lewis Conseil des personnes en cause Designated representative [REDACTED] Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] [REDACTED] (the Principal Appellant) and his wife, [REDACTED], are citizens of Nigeria. They have three daughters, the youngest of which was born in Canada. The other two, [REDACTED] and [REDACTED](the Minor Appellants), are Nigerian citizens joined to their parents' claim. [2] The family claims to fear persecution in their home country at the hands of the Principal Appellant's uncle, who they allege wishes to kill the adult Appellants and perform female genital mutilation (FGM) on the Minor Appellants. They also allege that they are at risk of harm because the Principal Appellant refused to join a group called the [REDACTED] (XXXX). [3] Their claim was rejected by the Refugee Protection Division (RPD) in April 2001 on the basis that the Appellants were not credible. They appealed that decision to the Refugee Appeal Division (RAD). The RAD member noted that the RPD had questioned the Appellants on the availability of an Internal Flight Alternative (IFA) but determined it was unnecessary to rule on the issue due to its finding that the Appellants were not credible. The RAD felt that the IFA issue could be determinative of the appeal and asked for submissions from the Appellants and their counsel. When no submissions were received, the RAD issued it reasons for decision in October 2021, dismissing the appeal on the basis that an IFA was available to the Appellants in Abuja. [4] When they received the RAD decision, the Appellants applied to re-open their appeal based on counsel incompetence. Their former counsel had told the Appellants that there was no need to reply to the RAD's request for submissions. The Appellants provided text messages from their former counsel confirming their allegation that he had improperly advised them that making submissions on the IFA issue was unnecessary. As a result, the RAD granted their request to re-open the appeal due to inadequate representation. [5] The Appellants now have new counsel, who has provided submissions on the IFA issue. Counsel has also submitted new evidence that she requests be admitted for the purposes of this appeal. DECISION [6] I dismiss the appeal and confirm the decision of the RPD that the Appellants are not refugees or persons in need of protection as they have a viable IFA in Abuja. NEW EVIDENCE [7] The Appellant seeks to introduce the following documents as new evidence: i. A letter dated XXXX XXXX, 2022 from XXXX XXXX, who indicates that he is the brother of [REDACTED]. ii. A letter dated XXXX 2022 from XXXX XXXX, another brother of [REDACTED]. iii. An undated letter from XXXX XXXX, who indicates that he is the elder brother of [REDACTED]. iv. A medical report dated XXXX 2022 regarding XXXX XXXX, the adult Appellants' third daughter who was born in Canada in XXXX 2019. v. Two articles about the Nigerian healthcare system from 2020 and 2019. vi. An article dated July 19, 2021 about security crises in Nigeria. vii. An article dated February 9, 2022 entitled Reps declare national emergency on ritual killings in Nigeria. viii. A 2018 article entitled "Nobody is safe in Nigeria", Ekweremadu speaks on how assassins invaded his Abuja home. ix. A blog post dated December 5, 2018 entitled Nigeria's National Kidnapping Crisis is Expanding. x. An article dated December 6, 2018 entitled Many feared dead as Boko Haram attacks Borno village. xi. A government of Canada travel advisory for Nigeria, dated February 2022. xii. An article dated April 19, 2021 entitled ANALYSIS: Intelligence failure compounding insecurity in Nigeria. [8] Section 110(4) of the Immigration and Refugee Protection Act (IRPA) sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.1 [9] As the RPD clearly identified that a potential IFA in Abuja was in issue, I am not prepared to admit into evidence any articles that were published before the RPD decision in April 2021. There is no evidence that the articles were not available to the Appellants before their RPD hearing and it is reasonable to expect that they would have presented such evidence prior to the RPD rejection of their claim. As the Federal Court has noted, a RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD: Abdullahi v Canada (Citizenship and Immigration), 2016 FC 260 at para 15. As such, items (v), (viii), (ix) and (x) are not admitted as new evidence in this appeal. [10] As for items (i), (ii) and (iii) - the letters from family members - I find that they should have been requested and submitted by the Appellants before their RPD hearing. While the documents are new in the sense that they were created after the RPD decision was issued, the Appellants understood that the security situation for them in Nigeria would be canvassed by the RPD in the context of a potential IFA. As such, it is reasonable to expect that they would have contacted family members to provide such information for their RPD hearing. There is no suggestion that these family members were unavailable to the Appellants prior to April 2021. As such, I decline to enter those missives as new evidence. [11] The remaining items - (iv), (vi), (vii), (xi) and (xii) - are new in that they did not exist at the time of the RPD hearing on April 9, 2021. I have no concerns about the credibility of these documents and they are somewhat relevant to the IFA issue in this proceeding. I admit them as exhibits in this appeal. However, as they are not central to the claim and their acceptance as new evidence does not in itself justify allowing the appeal, there is no need for me to convene a hearing in accordance with section 110(6) of the IRPA. ROLE OF THE RAD [12] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of fact and law. In some circumstances, the RAD may defer to the RPD's credibility assessment of oral testimony if the RPD had a meaningful advantage in that regard. Such was not the case in this appeal. Therefore, I have reviewed the RPD's findings using the standard of correctness.2 ANALYSIS IFA: The Appellants' Submissions [13] The Appellants submit that Abuja is not a viable IFA for the family. Indeed, they argue that they would not be safe from the Principal Appellant's relatives anywhere in Nigeria, given their persecutors' interest and motivation in harming the Appellants. The Principal Appellant testified that his family members are well-connected and that the police could track them down in Abuja, if requested by the agents of harm. Moreover, it is submitted that significant weight should be given to the the violence and threats the Appellants have already faced in assessing whether they will face such harm from their family in the future. [14] It is further submitted that the Appellants' evidence about the means and motivations of the Principal Appellant's uncle and aunt should be accepted as credible. Their evidence in this regard was uncontradicted and should benefit from the presumption of truthfulness that attaches to sworn testimony.3 [15] The Appellants also argue that they would face unreasonable hardship if they had to relocate to Abuja. They point to the children's medical needs and the inadequacy of healthcare in Nigeria, the parents' employment prospects, and the general security situation. [16] In the Appellants' memorandum, no reference is made to the threat posed by the XXXX group or its ability to find the Appellants. The Appellants have a viable IFA in Abuja [17] In my view, the existence of an IFA is determinative of this appeal. [18] In Khan v Canada (MCI), 2020 FC 1101, Mr. Justice McHaffie succinctly articulated the two-prong test that is applied when considering whether a viable IFA exists: [10] In assessing whether there is a viable IFA, the decision maker must be satisfied, on a balance of probabilities, that (1) the claimant will not be subject to persecution/harm (on a "serious possibility" standard), or a danger or risk described in section 97 (on a "more likely than not" standard) in the proposed IFA; and (2) in all the circumstances, including circumstances particular to the claimant, conditions in the IFA are such that it would not be unreasonable for the claimant to seek refuge there: Thirunavukkarasu at pp 595-597, paras 12-15; Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 10-12. Once the potential for an IFA is raised, the claimant bears the onus of establishing that an IFA is not viable: Thirunavukkarasu at pp 594-595, para 9. [19] Once the prospect of an IFA has been raised, the onus is on the Appellants to establish that it is not viable. [20] With respect to the first prong, the main evidence of the means and motivation of the Appellants' family members was speculation on the part of the adult Appellants that their family is highly connected and could somehow get the police to find them if they were to return to Nigeria. This conjecture was based in part on the ability of the Principal Appellant's uncle to find Mrs. XXXX' mother's address and because the extended family was able to discover that they had left Nigeria. This evidence falls short of meeting the evidentiary onus on the Appellants to establish a serious possibility that the agents of harm could find them if they were to now return to Nigeria, more than four years after they left the country. [21] Nigeria is very large and the Appellants' family in Lagos lives over 700 kilometres from Abuja. We are also dealing with a densely populated country with a population of over 200 million people. This would make locating the Appellants in the IFA very difficult. [22] Even accepting that the agents of persecution knew that the Appellants left Nigeria in 2017, this is not cogent evidence that they would know if they returned there in 2022 and settled in Abuja. That the Principal Appellant's uncle was able to find Mrs. XXXXmother is not particularly compelling. Indeed, checking with immediate family members is where anyone would likely start if they were searching for the Appellants. It does not mean that the agents of harm would be able to find that the Appellants in a large city some distance away where they do not have any immediate family. [23] I also do not agree with the Appellants' characterization of their evidence regarding the means and abilities of the agents of harm. The Principal Appellant testified that he believes that his uncle and other family members can find and harm them. While his testimony in this regard was not undermined by any inconsistencies or implausibilities, that does not mean that his belief must be accepted as credible. In this regard, I note the Federal Court decision in Kassim in which the Honourable Mr. Justice Southcott upheld an RPD decision that Port Harcourt was a reasonable IFA because there was a lack of evidence to establish that the agent of harm had the influence and connections to find the claimant there.4 The Court confirmed that the RPD's finding that there was a lack of evidence was not an adverse credibility finding against the witness; she was not testifying to any facts in support of her persecutor's ability to find her, but rather to the belief that he was able to find her. This is also the case in this appeal. While the Appellants may believe that the Principal Appellant's uncle could track them down, the evidence does not support such a finding. [24] As noted, no submissions were provided regarding the possibility that they might be found by other agents of harm involved with the XXXX group. As such, I find that the Appellants have not established that the XXXX has the means or desire to find them in the proposed IFA. [25] Turning then to the second prong of the test, the Federal Court of Appeal has held that there is: a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.5 [26] Relocation will always involve some degree of hardship. However, the threshold to find an IFA unreasonable is quite high and the onus in on the Appellants to provide actual and concrete evidence of adverse conditions which would jeopardize their life and safety.6 In my view, the Appellants have not met this threshold. [27] In the memorandum, it is submitted that the adult Appellants' profiles of post-secondary and professional work experience in [REDACTED] XXXX does not make them necessarily a good fit to find employment in the economic environment in Abuja.7 I agree that they would not have a support network in Abuja as they did in Lagos, but they are both well-educated professionals who have significant experience working in Nigeria. While economic conditions will always be a concern, there is nothing in the country condition documents or the materials cited by counsel8 that would suggest that things are so dire that the adult Appellants would be unable to find gainful employment to support their family. [28] The Appellants also argue that healthcare in Nigeria is poor and that their daughters' well-being would be jeopardized. The youngest, a Canadian citizen, has been diagnosed with XXXX XXXX and is receiving [REDACTED] XXXX. It is suggested that such services might not be available to her in Nigeria. Similarly, the middle daughter (the youngest Appellant) suffers from XXXX XXXX and may require XXXX XXXX. Documentation has been provided by the Appellants that suggests that, inter alia, Nigeria has a shortage of doctors, its healthcare system is underfunded and its workers underpaid, and most healthcare expenses are not covered by the government and have to be paid out-of-pocket. The National Documentation Package (NDP) for Nigeria does not have much information on the healthcare system, but confirms that there are speech therapy specialists in the country.9 [29] In my view, while it is clear that the Nigerian healthcare system is not on par with Canada's, the evidence before me does not establish that the Appellants' children are unlikely to be able to access XXXX XXXX or other general assistance, although there is a good chance that they will have to pay for it out-of-pocket. I recognize that Mr. and Mrs. XXXXhave lost a son to leukemia and that they blame inadequacies in the Nigerian medical system, but there is no evidence that the daughters face any similarly life-threatening issues or that the therapies they may require are unavailable to them in Abuja. Indeed, as a national capital with a metropolitan population of over 3.6 million, that city seems likely to be an area where such services are more likely to be available. [30] Reference is also made to the general security situation in Nigeria. The Canadian government clearly has concerns about our citizens travelling there, as is evidenced by the 2022 travel advisory. However, the evidence regarding the state of insecurity in Abuja does not suggest that the Appellants' lives would be at risk. They would face the same general issues that they did in Lagos and the same general risks faced by Abuja's other 3.6 million residents. Indeed, residing in the national capital is likely much safer than other areas of the country. CONCLUSION [31] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection as they have a viable IFA in Abuja. (signed) "Benjamin R. Dolin" Benjamin R. Dolin April 13, 2022 Date 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70 and 103. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 4 Kassim v. Canada (Citizenship and Immigration), 2018 FC 621, paras 22 to 24. 5 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164, at para. 15. 6 Singh v. M.C.I. IMM-826-13, Noël, September 26, 2013, 2013 FC 988 (CanLII), at para. 40. 7 Appellants' memorandum, at paragraph 55. 8 Ibid. 9 RAD-1, National Documentation Package NDP Nigeria, 30 November 2021, 1.9 Country Policy and Information Note. Nigeria: Medical and healthcare issues, Version 3.0. United Kingdom. Home Office. January 2020 at section 7.1.1. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-02685 MC1-02686 / MC1-02687 / MC1-02688 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français

Response:
## Analysis of Refugee Decision: MC1-02685

### Key Issues
ny similarly life-threatening issues or that the therapies they may require are unavailable to them in Abuja. Indeed, as a national capital with a metropolitan population of over 3

### Legal Analysis
The decision analyzes refugee protection criteria by examining: dated April 19, 2021 entitled ANALYSIS: Intelligence failure compounding insecurity in Nigeria. [8] Section 110(4) of the Immigration and Refugee Protection Act (IRPA) sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not r

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.