MB9-08345

RAD File / Dossier de la SAR : MB9-08345 MB9-08346 / MB9-08347 / MB9-08348 MB9-08349 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision January 6, 2020 Date de la décision Panel Desiree Pachkowski Tribunal Counsel for the persons who are the subject of the appeal Aboubacar Touré 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 XXXX (Appellant), and XXXX XXXX XXXX (Associate Appellant) XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX (Minor Appellants) are citizens of Nigeria. [2] The Appellants argue that the Refugee Protection Division (RPD) erred when it did not find them credible and rejected their claims for refugee protection. [3] The Appellants request that I substitute a positive determination. In the alternative, they request that I return their cases to a different panel of the RPD for redetermination. [4] After an independent analysis of the record, I find that the Appellants have failed to credibly establish the core elements of their claim. [5] For the reasons that follow, the appeal is dismissed. BACKGROUND [6] The Appellant alleges that she is being persecuted by a traditionalist occult group because of her refusal to accept a chieftaincy title. She claims that she refuses to do so because of her religious affiliation, which would provide her a nexus under s.96 of the IRPA. She also claims that she is a person in need of protection pursuant to s.97(1) of the IRPA. [7] The Associate and Minor Appellants' claims are made on the basis that they are the Appellant's family members and are therefore also in danger from the traditionalist occult group. There are no allegations that they fear persecution other than from the Appellant's agents of persecution. [8] The Appellant claims that her father was the head of a traditionalist occult group. She alleges that her father promised that she would take over his position when he died. The Appellant was not aware of this promise. [9] When her father passed away in 2017, the Appellant claims that members of the occult group came to her home to inform her of her obligation to become their leader. When the Appellant refused, she claims that they threatened her with death and gave her XXXX XXXX XXXX days to reconsider. [10] On the XXXX XXXX XXXX day, the Appellant alleges that the traditionalist people returned to her house and murdered her husband's cousin - the only person home at the time. The Appellants fled their home in Ogun State and settled temporarily in Ikorodu, Lagos. The Appellants left Lagos for the United States of America (USA) in XXXX 2017. They relocated to Canada in XXXX 2018 and submitted a claim for refugee protection. ANALYSIS [11] I conducted an independent assessment and used a correctness standard to review the decision of the RPD.1 [12] I considered all of the arguments on the record. I also listened to the recording of the hearing before the RPD and analyzed all of the evidence. [13] The Appellants submit no new evidence. They request an oral hearing if credibility issues remain. I can hold a hearing when there is new evidence that raises a serious credibility issue. As no new evidence has been tendered, I am unable to hold a hearing.2 [14] The RPD found contradictions, omissions, and discrepancies in the Appellants' Basis of Claim (BOC) forms, testimony, and written evidence. Based on its observations, the RPD found that the Appellants were not credible witnesses. The RPD concluded that the Appellants did not establish, on a balance of probabilities, the existence of threats to their lives in Nigeria. For the reasons that follow, I find that the RPD did not err in its assessment of the Appellants' claims. The Appellant did not have knowledge of the traditionalist occult group Implausible that the Appellant did not attempt to gain more information about her agents of persecution [15] The Appellant testified that she did not live with her father growing up, and did not have any knowledge of his involvement in the traditionalist occult group. She was not aware that he had promised that she would become the new leader following his death. The RPD did not find it plausible that the Appellant did nothing to get more information about the group, including its name or the names of the people who visited her to demand that she take over for her father as head of the occult group. [16] The Appellant testified that she did not ask further questions because she was not interested in joining the traditionalist occult group. The Appellant testified that ritualists were common where she lived in Nigeria, so when they came to her house she did not take them seriously. As a Christian, she did not want to become involved with them. [17] The Appellants' counsel argues that the RPD erred by criticizing the Appellant for being unable to state the identity of her agents of persecution, because her reaction was subjective and may be different from others experiencing the same situation. Counsel relies on Valtchev to illustrate that decision makers must be careful not to apply Canadian standards when making plausibility findings within the context of diverse cultures. Counsel argues that it was inappropriate to fault the Appellant for doing nothing to get more information about the traditionalist occult group. Counsel states that the Appellant did not ask for more information because she did not accept - and was not interested in - their offer. Counsel also argues that the RPD should have been satisfied that the Appellant was more concerned about her own safety than to ask questions about their identities and activities. [18] The RPD was correct to reject the Appellant's explanation. I am sensitive to the cultural differences between Nigeria and Canada. I can accept that the context of the visit from the occultist group may have led the Appellant dismiss them, as she testified. However, the Appellant claims that nearly a dozen individuals arrived at her home with detailed knowledge about her and her family, including the fact that her father died, that he was previously a chief, and that she was responsible for taking over his role. The traditionalists also had very specific demands for the Appellant and threatened serious consequences if she did not comply with them. I find that even if the Appellant was culturally primed to be dismissive towards traditionalists in general, I would expect a reasonable person in any culture to ask basic questions about the identity of individuals who arrived at their house with the specific knowledge and demands of the traditionalists. I do not find that RPD's plausibility finding is insensitive to the Appellant's cultural context. The RPD was correct to find it implausible that the Appellant did not make any effort to gain more information regarding her agents of persecution. [19] Furthermore, I find counsel's argument that the Appellant did not ask further questions because she was more concerned with her safety than asking questions to be a significant departure from the Appellant's original explanations for her behaviour. The Appellant repeatedly testified that she did not ask further questions because she did not take the traditionalists seriously.3 The Appellant was either so afraid that she did not ask the traditionalists any questions, or she was so indifferent to their demands that she did not find it important to ask for more information. I do not find that both of these explanations can be simultaneously applicable, and therefore do not find them satisfactory to explain the Appellant's behaviour. The Appellant's specific knowledge about the traditionalist occult group contradicts her claim that she did not know anything about them. [20] The RPD's findings are not based solely on the fact that the Appellant did not know anything about her agents of persecution. Rather, the RPD did not accept that the Appellant simultaneously claimed that she did not know basic details about the occultist group, but also had specific knowledge about them. The Appellant did not know the group's name, nor the names of the individuals who came to her door. At the same time, she knew that she would suffer consequences if she did not comply with their demands within XXXX XXXX XXXX days. She knew that her father vowed that she would take over for him. She knew that she would have to sacrifice her first-born son if she did not take her father's place. She also knew the meaning of the symbol they left at her house, which will be discussed in detail below. The Appellant's statement that she did not ask any questions and did not know any details about the group contradicts her specific knowledge of the traditionalist occult group. The RPD was correct to find that this raises an issue with respect to the Appellant's credibility. [21] The Associate Appellant's cousin, XXXX XXXX was stabbed to death on the XXXX XXXX XXXX day after the traditionalist occult group visited the Appellants' home. There was nobody home at the time of the incident. There was a knife with two sticks tied together at the front of the house. The Appellant deduced that XXXX XXXX death occurred because of the traditionalist occult group because of this message. The RPD did not find this credible because XXXX XXXX was the only person home at the time and there were no other witnesses of the incident. The RPD found that the Appellant contradicted herself because she testified that she had no knowledge of the occult group, but was able to identify that their message meant "the war has begun" if she refused to surrender herself.4 [22] When the RPD asked the Appellant how she knew what the traditional message meant, she stated that her neighbours "start[ed] giving different like... oh ah oh this oh this oh that so when they saw it they are like oh they are still coming back".5 Even if I consider that the Appellant meant to imply that she received this information from her neighbours, I find that her vague testimony does not overcome the contradiction on the record. [23] Like the RPD, I find that the Appellant contradicted herself by claiming that she did not have any knowledge of the traditionalist occult group when she also understood the meaning of their abstract message. This impugns the Appellant's credibility. Insufficient objective, credible evidence to link XXXX XXXX death to the traditionalist occult group [24] The Appellants' counsel argues that the details of XXXX XXXX death were in the police report, and since the RPD did not contest the police report's authenticity, its conclusion was made in error. Counsel also argues that the RPD was silent about XXXX XXXX death certificate and affidavit from XXXX XXXX XXXX, XXXX XXXX father. For the reasons that follow, I do not find the documents on the record to be sufficient to link XXXX XXXX death to the traditionalist occult group. No weight to the police report [25] The police report on the record is not objective, credible evidence that XXXX XXXX was murdered by the traditionalist occult group in the Appellant's house. The police report states that a group of traditional people came to the Appellant's house and stabbed XXXX XXXX. It also states that XXXX XXXX was the only one home at the time.6 The police report is based on the Appellant's own account of the incident. As noted above, there are credibility concerns with the Appellant's account of this incident. As the Appellant is the information in the police report, and I have concerns with the Appellant's credibility regarding this incident, I ascribe it no weight in my analysis. No weight to XXXX XXXX XXXX affidavit [26] The affidavit from Mr. XXXX XXXX XXXX states that XXXX XXXX "was killed when the occultist came to XXXX XXXX XXXX residence [...] and met her absence".7 It also states that she was the only one home at the time. The Appellant testified that Mr. XXXX XXXX XXXX completed the affidavit for her because he knew that she went to the police and reported the death.8 As the affidavit is based on the Appellant's account of the incident, and I have concerns with the Appellant's credibility regarding this incident, I ascribe it no weight in my analysis. XXXX XXXX death certificate is not credible, objective evidence that she was murdered by the traditionalist occult group [27] XXXX XXXX death certificate appears credible on its face.9 I accept that the death certificate indicates that the Associate Appellant's cousin died of a stab wound. However, on a balance of probabilities, I find that this is insufficient evidence to link her death to the occultist group. For this reason, I ascribe it little weight in my analysis. The majority of experts indicate that there are little to no consequences for refusing a chieftaincy title [28] The Appellants' counsel argues that the RPD erred when it found that the Appellant does not meet any of the requirements to become a chief priest. Counsel argues that it was an error to conclude that there were no consequences for refusing to become a chief priest. The Appellants' counsel argues that the RPD should have considered the opinion of another expert in a separate document in the National Documentation Package (NDP), who states that refusing to assume a chieftaincy title might lead to loss of life to send a message to others to avoid similar disrespect to traditions. This NDP document (herein after: RIR 103996) specifically refers to the consequences for a Yoruba individual who refuses a chieftaincy title.10 The Appellants' counsel argues that because the Appellants are Yoruba, the RPD ought to have considered this document. [29] The RPD considered RIR 103485 in its analysis, which details differing expert opinions of refusing to become a chief or fetish priest in south and central Nigeria.11 The RPD noted that the Appellant did not refute the fact that the NDP indicates that she did not meet the requirements to become the chief priest, nor that she could refuse to become the head of the occult group without any consequences. [30] I note the Appellant's argument that some of the documentary evidence refers to female chiefs. I acknowledge that the Appellant would not necessarily be ineligible to become a chief because of her sex. However, I consider this less significant than the documentary evidence regarding the consequences of refusing the chieftaincy. For the reasons that follow, I find the majority of the objective documentary evidence indicates that there are little to no consequences for refusing a chieftaincy in Nigeria. [31] Although the Appellants are Yoruba, the Appellant claims that she does not know anything about her agents of persecution. It is unclear whether or not the traditionalist occult group is of Yoruba descent, or if the chieftaincy is a Yoruba chieftaincy. I find it speculative to assume that the Appellants' agents of persecution are Yoruba. I also find it speculative to assume that RIR 103996 is more applicable to the Appellants' case than RIR 103485, which speaks about fetish and chief priests more generally. I also note that, RIR 103485 specifically applies to fetish and chief priests, while RIR 103996 refers to Yoruba chieftaincy in general. RIR 103996 does not reference fetish priests. It does not refer to occult traditionalist groups. The Appellant alleges that her father was the head of a traditionalist occult group, which appears more analogous to RIR 103485. [32] Even if I consider RIR 103996, I find that the expert opinions in this document are mixed. One of the three experts is an Advocate and Development Planner in Nigeria, a senior lecturer in Ogun State. The Advocate and Development Planner indicates that a person who refuses a chieftaincy title "could face challenges, threats, discrimination and danger from family, government authorities, community, or other societal actors", and that refusal can lead to "loss of life".12 [33] Two other experts were interviewed for the RIR, including a Yoruba Chief who was formerly a Commissioner of Local Government and Chieftaincy Affairs, as well as Emeritus Professor of Anthropology and Sociology at the School of Oriental and African Studies at the University of London. In contrast, these experts indicate that there are no consequences for refusing a chieftaincy title. The majority of the experts in this document, one of whom is a chief, state that there are no consequences for refusing a chieftaincy title. [34] I note that this opinion is echoed in RIR 103485, where two professors from the University of Leiden and the University of London state that there are no consequences for refusing to assume the role of chief priest.13 While two other professors indicate that refusal may lead to the perception that the individual is bringing divine wrath on themselves and their community, they do not state that this will lead to death or other serious harm.14 [35] In a third NDP document, another expert indicates that although the belief exists that those who refuse a chieftaincy title will suffer from magical or spiritual attacks, it is not supported by evidence.15 The expert also states that the refusal of a chieftaincy title may result in the community punishing the family lineage by denying them the title in the future. Another expert indicates that refusal could lead to a family dispute, but the individual would not be forced to take the title. The expert also indicates that those who refuse titles can relocate to another town to avoid "being bothered".16 [36] After a thorough review of the documentary evidence, I find that the majority of experts indicate that there are little or no consequences for refusing a chieftaincy title - fetish or otherwise. I acknowledge that one expert states that the refusal of a Yoruba chieftaincy may lead to loss of life for that person. Although I note that the Appellants are of Yoruba descent, I find it speculative to conclude that their agents of persecution are of Yoruba descent. Even if this is the case, eight other experts state that there are little to no consequences for refusing a chieftaincy title. [37] Within the context of the other credibility issues on the record, I find that there is insufficient objective, credible evidence to support the Appellant's allegations that the traditionalist occult group threatened her or murdered her husband's cousin, on a balance of probabilities. CONCLUSION [38] While there is a presumption that the Applicant's sworn allegations are true, I find serious reasons to reject the Appellants' testimony because of lack of credibility, as discussed above. I find that the RPD was correct to find that XXXX XXXX XXXX failed to establish her allegations that she is being persecuted by a traditionalist occult group in Nigeria because of her refusal to accept a chieftaincy title. [39] As the claims of XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX are based on the Appellant's allegations, the credibility finding extends to their claims. [40] The RPD was correct to find that the Appellants would not face a serious possibility of persecution or, on a balance of probabilities, a risk to life or risk of cruel or unusual treatment or punishment or a danger of torture if they return to Nigeria. DETERMINATION [41] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Desiree Pachkowski" Desiree Pachkowski January 6, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93 (CanLII). at para 103. 2 IRPA s.110(6). 3 RPD-1, RPD Record, recording of hearing, at 00:58:21, 00:59:34 - 01:00:06: 01:42:23 - 01:42:47. 4 RPD-1, RPD Record, BOC Narrative, at p. 23. 5 RPD-1, RPD Record, recording of hearing, at 01:04:25. 6 RPD-1, RPD Record, Police report, at p. 212. 7 RPD-1, RPD Record, Afffidavit of Mr. XXXX XXXX XXXX, at p. 216 at para. 3. 8 RPD-1, RPD Record, recording of hearing, at 01:22:19. 9 RPD-1, RPD Record, Medical certificate of cause of death, at p. 214. 10 RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP), Nigeria, 21 December 2018, tab 13.7: Consequences for a Yoruba individual who refuses a chieftaincy title; protection available to those who refuse. Immigration and Refugee Board of Canada. 13 November 2012. NGA103996.E. 11 RPD-1, RPD Record, Exhibit 3, NDP, 21 December 2018, tab 12.11: Consequences for a person to refuse a chief priest or fetish priest position for which they have been selected in south and central Nigeria. Immigration and Refugee Board of Canada. 6 July 2010. NGA103485.E. 12 RPD-1, RPD Record, National Documentation Package (NDP), Nigeria, 21 December 2018, tab 13.7: Consequences for a Yoruba individual who refuses a chieftaincy title; protection available to those who refuse. Immigration and Refugee Board of Canada. 13 November 2012. NGA103996.E, at pp. 4 - 5. 13 RPD-1, RPD Record, Exhibit 3, NDP, tab 12.11, supra, at p.4. 14 Ibid, pp. 4-5. 15 RPD-1, RPD Record, Exhibit 3, NDP, Nigeria, 21 December 2018, tab 12.10: Prevalence of ritual practices, such as human sacrifice and the drinking of blood, upon initiation to chieftaincy or during chieftaincy in Yorubaland; state reaction to ritual practices in chieftaincy, especially the respective state ministries... Immigration and Refugee Board of Canada. 5 November 2013. NGA104602.E, at p. 10. 16 Ibid, at pp. 9 - 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-08345 MB9-08346 / MB9-08347 / MB9-08348 MB9-08349 RAD.25.02 (April 04, 2019) Disponible en français 13 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 (April 04, 2019) Disponible en français