MB9-03464

RAD File / Dossier de la SAR : MB9-03464 MB9-03465 / MB9-03466 / MB9-03467 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 31, 2020 Date de la décision Panel T. Andrews Tribunal Counsel for the persons who are the subject of the appeal Temitope T Ayodele Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX (the principal Appellant) and her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are citizens of Nigeria. Her minor son XXXX XXXX XXXX is a citizen of the United States of America (US). They appeal a decision of the Refugee Protection Division (RPD) dated February 20, 2019, rejecting their refugee claims. [2] The Appellants argue that the RPD was wrong to find that their account lacked credibility and after conducting an independent analysis, I find that the RPD was correct in finding that the Appellants were not credible. The appeal is dismissed. [3] Further, as there were no allegations advanced regarding any risk of harm under section 96 or 97(1) of the Immigration and Refugee Protection Act (IRPA) to Israel Oluwadarasimi in the US, the Refugee Appeal Division (RAD) finds that his claim must fail and the appeal in his case is also dismissed.

BACKGROUND [4] The Appellants argue that there are several reasons why they fear returning to Nigeria. They travelled to the US on vacation in 2015. While there, the principal Appellant was informed that the school that she had established in 2012 was burned down by the Boko Haram who are looking for her because she is Christian and they felt that her school was spreading western values. [5] Secondly, they fear returning because there is significant family crisis that began over properties and farm lands left behind by the principal Appellant's father after his death in 1984. Since that time his younger brothers, the principal Appellant's uncles have claimed that the property and lands belong to them and there has been a division between her father's immediate family and his brothers. [6] On May 29, 2016, the principal Appellant's brother and cousin were kidnapped whilst returning from a family wedding. Her brother was eventually released but her cousin (one of her uncle's son's) was not. Her uncle's side of the family wants revenge for the disappearance of their son, are displeased because of her brother's release and have threatened her side of the family. [7] Finally, they fear XXXX, a person whom the Appellant entered a romantic relationship with while residing in the US. After learning that her husband in Nigeria had married another woman, she started a new relationship. However, after finding out she was pregnant, XXXX was opposed to having the child and threatened to kill her and the baby whom she chose to keep. They therefore fled to Canada and sought refugee protection.

ROLE OF THE REFUGEE APPEAL DIVISION [8] The standard of review is correctness as established in Huruglica1, where the Federal Court of Appeal gives guidance in regard to the role of the RAD. The RAD may defer to findings of the RPD where the RPD has a meaningful advantage in assessing the credibility of oral testimony.

ANALYSIS Memorandum of Appeal [9] The determinative issue on appeal is credibility. The Appellants argue that the RPD erred by finding that certain omissions were material and, in the way that it assessed their supporting documents. Admissibility of Evidence submitted on Appeal [10] Section 110(4) of the IRPA provides that the Appellants 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 rejection. [11] Should the evidence meet any of the above factors in the test, then the documents must be assessed in terms of the Raza/Singh factors; whether they are new, relevant and credible. Both areas - 110(4) and the Raza/Singh factors must be satisfied in order to admit any new evidence. [12] The Appellants provided two documents for consideration as new evidence. Each will be examined below. Witness Affidavit [13] The first document is a document titled "Witness affidavit" from XXXX XXXX XXXX signed on February 25, 2019. The Appellants indicate that this document demonstrates that the risk to their lives continues to exist, and the recent events discussed in the affidavit arose around November (2018). They submit that this information was not in the principal Appellant's knowledge at the time of the hearing of her refugee

matter. [14] I note that the refugee hearing occurred on December 11, 2018 and the decision was not rendered until January 25, 2019. [15] While the affidavit was signed after the RPD decision was rendered, I find that most of the information contained in the affidavit is not new. It duplicates information that was already before the RPD regarding the fact that the Appellant had established a school, which was subsequently destroyed by the Boko Haram. The second last paragraph is the sole paragraph containing information that was not before the RPD. In that paragraph, the affiant indicates that after he attended Jumat prayers in November 2018, the Islamic sect were asking for and making threats about the principal Appellant. [16] Section 3(3)(g)(iii) of the Refugee Appeal Division Rules specifies that a memorandum must include full and detailed submissions regarding how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the Appellant(s). [17] The new event described above took place in November 2018, prior to both their refugee hearing and the rejection of their claim. They indicate in paragraph 56 of their memorandum that this information was not in the knowledge of the principal Appellant at the time of her refugee hearing, however I find that the Appellants failed to explain anything

about this document and the new information as required by the Rules. They failed to indicate how and when the evidence came to their attention and why it was not reasonably available to them beforehand. As such, I find that there is insufficient evidence to establish that it meets the test under section 110(4) and the document is not admissible. Affidavit in Support [18] The second document that was provided is also an affidavit. It is written by the Appellant's brother XXXX XXXX XXXX XXXX and was signed on February 21st, 2019. Similar to the previous affidavit, this affidavit contains information that was already before the RPD with the exception of paragraphs 11 and 12. Those paragraphs discuss a family meeting that occurred on December 25, 2018, which ended in a confrontation where the principal Appellant and the affiant's older brother was stabbed. [19] They argue at paragraph 58 of the memorandum that this evidence should be considered new as it details an event that occurred after the hearing of the Appellants' refugee claim, but was not available to the principal appellant before the determination of the refugee matter. Once again, I find that there is insufficient information before me. This family confrontation occurred prior to the rejection of their claim on January 25, 2019 and the Appellants fail to indicate how and when this information came to light and why it

was not reasonably available before. According to the principal Appellant's evidence, the family dispute is between her immediate family and her uncle's family and there was no indication that she and her brothers were at odds. I find that there is insufficient evidence provided to establish that this document meets the test under s. 110(4) given the Appellant has not established that it was unavailable prior to the rejection of the claim and the document is not admissible. [20] The Appellants requested a hearing under s. 110(6) of the IRPA. However, the RAD does not have jurisdiction to hold a hearing in this case given the lack of admissible new evidence. Findings related to Credibility Omissions and Inconsistency [21] The RPD found the principal Appellant did not reasonably explain why her testimony and her BOC differed regarding the family dispute. The BOC outlined that the property dispute began after her father's death, whereas her testimony was that her father was poisoned and killed by her paternal uncles because of a dispute over his property. It also found that the Appellants omitted the fact that the principal Appellant's father was killed by the very same uncles whom they fear and that this was not reasonably explained. Thus, it drew a negative credibility inference. [22] In addition, the RPD found that the principal Appellant omitted the worst incident that she

suffered at the hands of the paternal uncles and did not reasonably explain why the incident was not in their BOC. [23] The Appellants argue that the fact that they omitted details regarding the fact that their father was killed by their uncles as well as the 2005 incident where they were kicked out of their home should not count against their credibility. They argue that these were technical omissions that do not undermine the Appellants' evidence rather than substantive omission which undermine the substance of the claim. They submit that these are simply additional further details that did not significantly alter their story. They also suggest that the Appellants became sur place refugees while in the US and did not leave because of the incidents related to her family and the panel's interpretation of that sur place test was wrong. [24] I have reviewed the testimony provided at the hearing. The principal Appellant testified that the Appellants came to Canada as they were running for their lives because the father of her last baby who resides in the US was threatening to kill them. And, when asked who she fears in Nigeria, she testified that she is fearful of the Boko Haram also known as the Almongiri boys who destroyed her school and of her three paternal uncles and their families. She testified that after her father died, those uncles claimed that they were the rightful

owners of her father's land/properties and most recently tensions have flared because on May 29, 2016 her brother and cousin were kidnapped when returning from a wedding. After a ransom was paid only her brother was released and the whereabouts of her cousin is still unknown, which has caused a wider rift in the family as the one who is still missing was her uncle XXXX son. She testified that his family is blaming her immediate family; her siblings of having coordinated the kidnapping in some way and they have threatened to take revenge on her to compensate for their own loss as she is the more successful of her siblings. [25] When asked what types of threats the uncles have made against her, she testified that the entire family used to live under one roof; a property belonging to her father, but her uncles were contesting the ownership of that property and the XXXX family (her uncle and his family) eventually threw them out of their own home. She testified that her brothers were getting into physical fights with the rest of the family and ultimately, they were thrown out in 2005/they had to leave for their own safety. She testified that prior to that incident where they were thrown out she was scared of XXXX and his family because they never knew what would happen, but they had nowhere else to go and when they tried to go to the police they were told it was a family matter to

be settled at home. She testified that this was the worst incident she had with her family; the night there was physical combat which culminated in her and her immediate family being made homeless. [26] When asked why this event was not in her narrative, she testified that she was mentally traumatized and emotionally down which had an impact on her and sometimes kept her from doing things she was supposed to do. [27] Later in testimony when discussing a possible internal flight alternative, the principal Appellant testified that if she was to return the family would find out she was around and they would kill her. She testified that this was something they were capable of because they had killed her father; they poisoned him because of the family land/property. She testified he was killed by the same uncles whom she fears today. When asked why she did not include in her narrative that her uncles were responsible for killing her father, she indicated that when they ran to Canada for their lives, they were in real distress. She indicated that she wrote what she could remember at the time, but she was not herself and she was not okay. When asked about why she wrote in her narrative that since the death of her father there has been a crisis between the family and failed to write that there was a crisis before his death, she testified that her English might have been wrong. She was

just three years old when her father died and most of these are stories from when he was alive. She was told that when he was alive he was protecting them, but once he was not there to protect them it was worse for their immediate family. When asked again about why she wrote that since his death there was a crisis, when she was now she was saying that he was actually killed because of the property she testified in reply that it might be the way she expressed it in English because it is not her language, but since her father was no longer alive they were left to deal with the uncles themselves. [28] After my own independent review of the evidence, I agree with the reasoning of the RPD regarding both the omissions and the contradiction. While the Appellant suggest that these are technical omissions, I do not find that to be the case. One of the primary reasons why the principal Appellant alleges that they cannot return is because they will be killed by her paternal uncles. The reason for the most recent threats is because her brother was released after a kidnapping incident, but her cousin was not. However, according to her evidence this exacerbated an already tense family situation, which had started over the longstanding property dispute. I find it is not reasonable that the principal Appellant would name her uncles as agents of persecution, but not outline in her narrative all

of the key reasons why she fears them, which include that they killed her father and threw her and her brothers out of their family home. [29] Further, I find that she did not reasonably explain the major discrepancy; that she wrote that the dispute over property began after her father's death, when she testified that said dispute started before he died and he was in fact killed over the property. She suggests that her English is not good, she was in distress when she arrived/she was traumatized. However, I find that while her claim was initiated at the Port of Entry on October 28, 2017, her BOC was submitted approximately two months later (December 13, 2017) and was completed with the assistance of Counsel. Her BOC was her opportunity to clearly articulate what she fears and why and she provided no medical evidence to establish that she has any mental or cognitive difficulties. Her narrative is fairly detailed and included six and a half pages, hand-written in English about her experiences. Also, as pointed out by the RPD, the principal Appellant had a full year to submit any amendments or corrections as the hearing did not occur until December 11, 2018 and no corrections were provided. [30] I find that these are not just additional details as put forward in the memorandum, these are central elements to her story that are missing or contradictory and they have not been

reasonably explained. Counsel also suggests that she became a sur place refugee while in the US and did not allege that she left Nigeria due to the incidents related to the death of her father, but it was a change in circumstances after they were already in the US or a new event; the kidnapping, that gave rise to the claim. I find that while this is true, the principal Appellant's testimony was that she decided she could not return to Nigeria after her school was destroyed by the Boko Haram on December 4, 2015. The latest incident with her family; the kidnapping and the threats that followed, which added to her reasons for not wanting to go back occurred on May 29, 2016. However, this was not an isolated incident with her family. This was the most recent in a longstanding and serious family feud that had been going on for years. They had been kicked out of their family home and left homeless by the same uncles who also allegedly killed their father over the same property. I find it would have been reasonable to explain how this family issue started as this explains why the animosity exists in the first place and thus why she and her immediate family would be blamed now for the kidnapping of her cousin. The school in Nigeria [31] I find that the RPD was not wrong in its finding regarding the principal appellant's testimony about her school. The RPD found that the principal

Appellant's responses on the topic of establishment and operation of her school were vague and evasive and she lacked detailed knowledge of the process. As such, the RPD disbelieved that she was threatened by the Boko Haram as alleged. [32] The Appellants argue that the RPD was wrong to find that the principal Appellant's responses to questions regarding setting up her school in Nigeria were vague and evasive. They argue she responded to all questions directly, that the member made a plausibility finding unsupported by the evidence before it and that the RPD looked at the matter with a western lens, failing to consider that there are different standards in rural Nigeria versus Canada for establishing schools. [33] At the hearing when asked about how she became the owner of the school, the principal Appellant testified that she is the one who established it. When asked how, she simply responded that she was the one who runs the school. When asked again how she established the school, she responded that it is not like in Canada where the government establishes a school and private persons can start operating schools. She was again asked how she started the school, she testified that she began with teaching kindergarten aged children and from there it grew. Given her reply, the member asked again how she was able to establish or start the school. She testified that she went to the

local government board of education and told them she wanted to start a school and they gave her the go ahead. When prompted as to whether that was it, she testified that it was. The member repeated her response that she just had to tell them that she wanted to start a school and they said okay. She confirmed this was correct and added that they came to see the environment; the facility she would be using and that she was not asked any other questions because there is not a lot of education in rural areas, so they were happy to have her. [34] When questioned about how the school was funded she testified she did business and borrowed money from people. She expanded when asked to be more specific that she studied XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand used the proceeds toward the school. When asked how much she borrowed, she could not recall. When asked about how else the school was funded she indicated that the money she got from pupils funded the school. She was then asked about how much she charged students and her reply was it depends on the classes, but for the kindergarten she would charge 5000 Naira per student per month. She testified she started with ten students who she found by personal advertisement and the school grew to 50 students before she left who were in grades 1 through 6. She then testified in response to various questions about

how many teachers she employed, how much money she generated per year what the expenses were and that she did not have any documents related to the school because they were destroyed when the Boko Haram destroyed the school. When confronted about how the math did not add up regarding how much she generated yearly based on the amount she indicated she charged multiplied by the number of students she had, she explained after a number of clarifying questions that the older students paid "part time", which meant per semester and they were not paying the same amount as the kindergarteners. When asked what they paid, she testified it could be 6000, it could be 5 but it wasn't a stable price and it would depend. [35] While the Appellants indicate that the principal Appellant responded to all questions, I find that her testimony in this area was not forthcoming or natural. She had to be prompted with multiple questions in order to obtain responses to basic questions and she did not testify with the ease with which one would anticipate had she actually gone through the steps of starting this business from scratch. I find that the member started with broad questions, to which he got very non-specific answers. The principal Appellant did not volunteer many details herself and it is only via the member questioning on specific aspects that information came through. Even that information was

at times very unclear and vague. I find that she did not have details, which one would reasonably expect her to know such as even an estimate of how much she borrowed to start the school or an explanation of the variation in school fees that were charged to older students, which is problematic given she is the one who established the school and was in charge of such things. [36] While they suggest that the member imposed a western view, I do not agree and find it is not unreasonable to expect that she would be able to testify in a more spontaneous manner about the school which she founded. In my view, it is not so much that there is disbelief that a school could be set up in a rural area in a more informal manner, but more so that the quality of the testimony did not align with what would be expected of the founder of a business. The principal Appellant is university educated, with a degree in XXXX XXXX2 and alleges that she set up this business. I find that had she done so, the information about how this was achieved and about the school itself would be more forthcoming. As a result of her vague testimony I find that this detracts from her credibility further and that on a balance of probabilities that the school did not exist. No claim in US [37] I find that the RPD was correct in its findings regarding the Appellants' demonstrating a lack of subjective fear, which undermined

the credibility of their account. [38] The RPD found that the Appellants' actions were not compatible with those of persons fearing for their lives in Nigeria and that their failure to make a claim for asylum in the US demonstrated a lack of subjective fear and impugned their credibility further. [39] The Appellants argue that the RPD erred by finding that they lacked subjective fear due to their failure to claim in the US. They argue that the principal Appellant's explanations were reasonable. [40] The principal Appellant testified at the hearing that that she initially went to the US on vacation and stayed with some extended relations/distant family members. She said it was a dream of hers to travel and her intention in going there was to learn more about how they do things so she could get more knowledge about how to do things better at home with her school. She indicated she was going to go to an education or training resource centre after arrival to learn about things. Her testimony was that she decided that she could not go back to Nigeria after her school was destroyed on December 4, 2015. She was fearful because the Boko Haram were asking for the owner of the school who they knew was Christian. She testified that she did not apply for refugee status at that time as she was not aware that they had a program like that in the US. When asked what her plan was she testified

that she established a relationship with XXXX, the father of her last child while in the US and he promised to marry her and help her establish herself in the US. Their relationship began on August 1, 2016. When asked whether she thought about or consulted with anyone about her situation she indicated she did not as she had nobody to talk to. The member pointed out that she was staying with friends, but in reply she indicated that she later had moved on to her own place as there was a limit to how long she could stay with her friends. She reiterated that she had nobody to talk to, she did not know where to go and she was fearful because she had overstayed. The member pointed out that she had six months prior to overstaying and in December 2015 she had not overstayed. She responded that she could not think straight, she did not ask someone which was a mistake and that sometimes when you are affected by things it can make you destabilized. [41] I find that her failure to claim in the US was not reasonably explained. She was aware as of December 4, 2015 that she did not wish to return to Nigeria based on the risk to her life because of the Boko Haram. It does not make sense that she failed to investigate her options. I find as indicated above that the principal Appellant is educated and fairly sophisticated as she has a post-secondary education and she travelled to the US on her

own with her children for the purpose of exploration. She had the support of distant relatives who reside there and with whom she stayed and according to her testimony she managed to find work in the US in order to support her family. She did not enter a relationship/have any other prospect of remaining legally prior to the start of her relationship with XXXX in August, 2016, which was a full 8 months later. And, she had further reason to look into what she could do to remain as of May 29, 2016 when the XXXX family threatened her after the kidnapping incident. Her failure to do anything to regularize her status/failure to seek asylum in the US while there for approximately another two years after making the decision that she could not go back to Nigeria, although not determinative does undermine the credibility of their account. [42] Based on all of the above; the omissions and inconsistency relating to her family, the vague and non-specific testimony regarding her school and their failure to claim in the US, I find that the principal Appellant is not a credible witness and events did not occur as alleged. Supporting documents [43] The RPD gave the police report3 in evidence no weight given various irregularities that it found were not reasonably explained. First, that the police report was written two years after the incident occurred, second that it contained an error

regarding the principal Appellant's residence and finally that the report was not consistent with the appearance of the samples in the Board's National Documentation Package. [44] The Appellants argue that the RPD erred by ascribing low evidentiary weight to the police report as it failed assess the content of the report and to consider the variance in reports in Nigeria. [45] I note that the RPD found that no weight could be put on the police report due to several factors, not solely based on the fact that it appeared differently to the samples available. I find that the concerns of the RPD are valid. I acknowledge that the NDP indicates that variations may exist. However, I find that the report is not particularly helpful given that it indicates that XXXX XXXX is the Headmaster of the school which no longer exists, it states that the Appellant lives in Abuja when she has not been there for two years and it was filed some two years after the incident actually occurred. I find that based on these issues alone as well as the lack of credibility of the principal Appellant's testimony that this document can be given no weight as it does not overcome the credibility concerns that exist. [46] The RPD also gave no weight to the affidavit from XXXX XXXX4, which was dated over two years after the destruction of the school and in which he identifies himself as the current headmaster of

the school, despite the fact that the principal Appellant testified that the school was permanently closed after the incident in 2015. The member also finds it irregular that the affidavit states the school has been burnt, but does not mention that the Boko Haram was asking for the principal claimant. [47] The Appellants also argue that the RPD erred by giving no weight to XXXX XXXX affidavit. They argue that it could have been a typographical error when he referred to himself as the Headmaster and the member judged the affidavit from a western lens when it was written in a different context. They also argue that it was improper to expect the principal Appellant to be able to explain language used by a third party and that the document should be judged because of what it does say rather than what it does not say. [48] I find that this document contains contradictory information to the testimony given by the principal Appellant herself. Namely, that he is the Headmaster of the school at present, rather than stating that he was the Headmaster of the school and that she resides in Nigeria. She cannot be expected to explain the language of a third party, but it is evidence that she supplied in support of her claim and it does have a fundamental error contained in it. I agree that it should be judged by what it does say, but what it says is incorrect. Hence, I find that given the

credibility concerns that already exist in the case that this document can be given no weight. Minor children [49] The minor Appellants rely on their mother's claim, which was found to not be credible. As such, their claims are not credible as well. US born minor Appellant [50] The RPD found that the minor Appellant US born XXXX XXXX XXXX was not a Convention refugee nor person in need of protection under s. 96 or ss. 97(1) of the IRPA. This finding was not challenged by the Appellants and the RAD will not be dealing with it. [51] In addition, the RPD found that the minor Appellant failed to rebut the presumption of state protection in the United States. No arguments related to state protection were advanced on appeal and this issue is determinative.

CONCLUSION [52] Based on all of the above, and on my own assessment of the evidence including the audio recording, the supporting documents, and the objective evidence, I find that the Appellants have not established that there is a serious possibility of persecution under s. 96 of IRPA, or that there is a risk to their lives, or of cruel and unusual treatment or punishment, or a danger of torture under s. 97 of IRPA. [53] I find that the Appellants are neither Convention refugees nor persons in need of protection and pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD and dismiss the appeals. (signed) "T. Andrews" T. Andrews January 31, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Exhibit RPD-1. RPD Record, at p.108. 3 Exhibit RPD-1, RPD Record, Exhibit 8, at p.191. 4 Ibid, at pp.189-190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-03464 MB9-03465 / MB9-03466 / MB9-03467 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français