MA6-04392

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA6-04392 Private Proceeding Huis clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience January 8, 2009 February 3, 2009 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision May 27, 2009 Panel Tribunal Me Pierre Duquette Claimant's Counsel Conseil du demandeur d'asile N/A Tribunal Officer Agent du tribunal (filing of documents) Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre Mélanie Leduc [1] The claimant, XXXXX XXXXX XXXXX, is a 26-year-old citizen of Nigeria. He arrived in Canada on XXXXX, 2006, and claimed refugee protection the same day. [2] He filed the claim because he alleges that he has a well-founded fear of persecution for reasons of race, religion, political opinion and membership in a particular social group. He also claims to be a "person in need of protection" on the grounds that he would be subjected to a risk to his life. [3] The Minister intervened under paragraph 170(e) of the Immigration and Refugee Protection Act (the Act); he argued that the claimant should be excluded from protection under Article 1F(b) of the Convention. EXCLUSION The Act [4] The pertinent sections of the Act are as follows: 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. Sections E and F of Article 1 of the United Nations Convention relating to the Status of Refugees ... F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: ... (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; Minister's allegations [5] The Minister alleges that the claimant was convicted in the United States of possession of stolen mail and sentenced to 367 days of imprisonment. According to Exhibit M-7,1 pages 21 to 33 of the Minister's book, the offence was committed on XXXXX, 2002; the claimant was arrested on XXXXX, 2002, and released on bail a few days later; and the claimant was convicted on XXXXX, 2003, and sentenced on XXXXX, 2003. [6] The sentence included three years of probation, meaning that he was to be under community supervision following his release from custody. The conditions of probation were the conditions normally set in cases of that nature. Determination on exclusion [7] The panel determines that the claimant should not be excluded from the protection afforded by the Act. Analysis [8] The claimant admitted these facts and admitted also that he did not comply with all the conditions of his parole, since he was no longer in the United States after XXXXX, 2006. [9] It was established at the hearing that the claimant was released for good behaviour after 10 months in custody. He was transferred to Immigration services, however, and held there for two years. He was finally deported to Nigeria on XXXXX, 2006. [10] There are obviously serious reasons for considering that the claimant committed a non-political crime within the meaning of Article 1F(b) of the Convention. The question that still needs to be answered is this: was it a serious crime? [11] In Jayasekara v. M.C.I.,2 the Federal Court of Appeal underscored the important factors to be considered in this case: [44] I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: ... In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. [12] The claimant's father had 10 wives and did not live with the claimant's mother. When the claimant was young, his mother left his village, XXXXX, in the state of Benue, and moved to the XXXXX, XXXXX. The claimant stayed with his maternal grandmother until he went to live with his mother in XXXXX in order to continue his education. His mother was able to immigrate to the United States in the late 1990s, and the claimant joined her in 2000. His permanent resident card3 indicates that he obtained resident status on XXXXX, 2000. He had just turned 17. At the time he committed the above-mentioned crime, he was about to turn 20. [13] The claimant stated that he was very confused during that period and that he regrets his actions. He admitted that he was charged at the same time with possession of marijuana, and the file indicates that he was sentenced to five days in custody to be served concurrently with the other sentence. He stated that he has not committed any offences since then, and the only crime mentioned in the file is the one for which he was tried in the United States. These are mitigating circumstances that must be taken into consideration. [14] The crime of possession of mail in the United States is punishable by five years of imprisonment.4 In Canada, the punishment is 10 years. The maximum sentence of five years imposed in the United States shows that the crime is not considered to be very serious in that country. [15] This was not a violent crime, and the claimant did not subsequently engage in any criminal activity. [16] The three years of probation he was given would normally have served to rehabilitate him. However, he was immediately taken into custody by U.S. Immigration and deported two years later after his claim of asylum was rejected. Given that he served 10 months in prison for the crime he committed and lost his residence in the United States, the panel is of the opinion that the claimant has paid for his mistakes. In Jayasekara,5 the Federal Court of Appeal found that the Board, in determining that the claimant was excluded from protection, committed no error when it took into account the fact that the claimant had violated his probation order. From the opposite perspective, not violating an order can be a positive factor to take into account. In this instance, it is true that because he was being held by Immigration, the claimant was unable to comply with some of the conditions in the probation order. However, he had been released for good behaviour and no inappropriate conduct was reported in the two years he was in the custody of U.S. Immigration. It was because of his subsequent detention and his removal from the United States that he did not comply fully with the probation order. He is not responsible. Determination on exclusion [17] For all these reasons, the panel determines that the claimant did not commit a serious non-political crime and must not be excluded from the protection afforded by the Act. INCLUSION Allegations [18] On his Personal Information Form (PIF), the claimant alleged the following facts. [19] His father and his half-brother died because his father was a XXXXX and XXXXX of the AANP in XXXXX. [20] His father and other members of the party were kidnapped by the militia of the ruling party, the PDP, in early 2002. His father was XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [21] In XXXXX 2004, members of the PDP militia went to the claimant's grandmother's house and demanded that she hand the claimant over to them. When she refused, she was beaten and her house was burned down. [22] In XXXXX 2004, a half-brother whom the claimant did not know was kidnapped and killed. The police investigation revealed that the PDP was responsible. [23] After he was deported from Nigeria in XXXXX 2006, the claimant went first to Lagos. He went to the state of Benue to visit his father's and his half-brother's grave. Former local government officials met him to perform certain rituals that are traditionally performed with the eldest or another son of a very important man who has died. These rituals normally involve human sacrifice, but the claimant declined to take part. [24] The militia tried to accost him during the night, so he went back to Lagos. Members of the militia went to the home of one of the claimant's aunts and raped and tortured her in order to get the claimant's cellular telephone number in Lagos. They then called him to say that they knew where he lived and would be coming to get him. [25] He wanted to head north, but was told that the Christians there were being massacred by the Muslims. He also thought about taking refuge in the Niger delta, but there was a war being fought in the area. [26] That is why he returned to the United States through Canada, where he finally claimed refugee protection. Determination on inclusion [27] The panel determines that the claimant is not a "Convention refugee", nor is he a "person in need of protection". Analysis Identity [28] The claimant has a valid identity document-a passport issued by Nigerian authorities certifying that he is a citizen of Nigeria. He also has other identity documents from the United States. His identity is therefore established. Credibility [29] The claimant stated at the hearing that before he returned to Nigeria in 2006, he learned from his mother some of the facts that he was relating. In Nigeria, he lived in Lagos initially and then went to his village, where he had problems with his father's family and the militia. He moved back to Lagos, but the militia found him. [30] Many questions were put to the claimant at the hearing in an effort to clarify his story. His answers, which contradicted his previous statements and contradicted one another, showed that he had absolutely no credibility. The panel will use some of the points addressed at the hearing to illustrate this conclusion as to credibility. Death of the claimant's father [31] The claimant left his village when he was 10 or 11 years old to live in the XXXXX XXXXX. In 2006, he returned to the village he had left around 1991 or 1992. His father, who lived in XXXXX, an hour's walk away, was for the most part a stranger to him. [32] His father had 10 wives, all of whom had children. However, the claimant did not know any of his half-brothers or half-sisters and could not give any of their names. He knew that his father had a pickup truck and sold farm products he bought from farmers. [33] The claimant stated at the hearing that he thought his father died in 2002 or 2003. He was waiting for the death certificate his mother was supposed to send him. He received it shortly after the hearing and sent it to the panel. The certificate is actually two separately documents, which the panel entered together as Exhibit P-11. The certificate shows that the claimant's father died on XXXXX, 2001, that is, one or two years earlier than the claimant had stated. [34] In the third paragraph of the answer to question 31 on his PIF, the claimant stated that his father was XXXXX of the ANPP party's campaign in XXXXX. At the hearing, the claimant admitted that his father was actually only one of many XXXXX workers in XXXXX, a neighbourhood in XXXXX. [35] In the fourth paragraph of the answer to question 31, the claimant wrote that his father had been kidnapped, tortured and killed by PDP militia in early 2002. The claimant admitted that he had no personal knowledge of that fact and could only reiterate what his mother had told him. He did not know who told his mother about these events and knew nothing of the family members who protested the murder. In short, he was unable to provide any details about these events, which the PIF depicts as tragic. For that reason, the panel determines that the claimant did not establish that his father died in the circumstances described in the PIF. Assault of the claimant's grandmother [36] The claimant stated on his PIF that in XXXXX 2004, the same militia went to his grandmother's house looking for him. This was the result of the death sentence allegedly issued against the claimant's father's family; the claimant was unable, however, to give a source for that information. [37] He wrote on his PIF that when his grandmother was unable to hand him over, she was beaten and her house was burned down. Again, the claimant was unable to say where he got that information. He stated that his mother told him that some family members had reported the incident to her, yet when he asked her, she did not give him the names of the family members. [38] Asked about the photographs he produced as Exhibit P-9 showing a house in ruins, the applicant admitted that his grandmother's house was destroyed in an attack on the Tiv ethnic group-his grandmother was Tiv-and that the entire village had been burned to the ground, not just his grandmother's house. This completely contradicted the assertion that people came to his grandmother's house looking for him and that her house was destroyed because she refused to hand the claimant over to them. Death of the claimant's half-brother [39] The claimant alleged on his PIF that his half-brother was killed by the PDP as the police investigation showed. As stated above, he was unable to provide the name of that half-brother. Moreover, he knew absolutely nothing about the police investigation. The panel therefore determines that this incident was not established. Claimant's visit to his village [40] The claimant stated that he feared the militia that had killed his father and his half-brother in his village. He was asked at the hearing why he returned to the village if his life was in danger. He replied that he wanted to be closer to his family. He wanted to see his grandmother again, but he had no idea where to find her, as she no longer lived in the village in which her house had been destroyed. He also wanted to meet his mother's three sisters, but his mother did not want him to contact them and gave him no indication of where he could find them. The panel is of the opinion that these are unreasonable explanations. [41] The claimant stated that he met some members of his father's family but was unable to provide a single name. [42] The panel is of the opinion that the claimant did not establish that he returned to his village. His story about the ritual that he was supposed to perform as his father's son, a son who left at the age of 10, when none of his father's other sons was asked to perform it, is equally implausible. Threats in Lagos [43] The claimant stated that the militia ultimately found him in Lagos through the cellular telephone number that his grandmother had given them, yet he did not see his grandmother at any time during his stay in Nigeria. It was obvious at the hearing that the claimant did not remember stating on his PIF that the militia had kidnapped, tortured and raped one of his father's sisters in order to get his telephone number. He had no explanation for that gap in his memory. CONCLUSION [44] None of the allegations in the claimant's PIF was established at the hearing. The claimant had no credibility. [45] Having considered all of the evidence, the panel determines that the refugee protection claimant failed to satisfactorily discharge his burden of establishing that there is a serious possibility of persecution on one of the Convention grounds or that, on a balance of probabilities, he would be personally subjected to a risk of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to be returned to his country. [46] For all these reasons, the panel determines that the refugee protection claimant is not a "Convention refugee" within the meaning of section 96 of the Immigration and Refugee Protection Act and is not a "person in need of protection" within the meaning of paragraph 97(1)(a) or (b) of the Act. [47] The panel therefore rejects his claim for refugee protection. Pierre Duquette Me Pierre Duquette May 27, 2009 Date REFUGEE PROTECTION DIVISION / RELIGION / POLITICAL OPINION / PERSECUTION OF FAMILY MEMBERS / MINISTER'S INTERVENTION / ART. 1 F B) / SERIOUS NON POLITICAL CRIME / FOREIGN OFFENCE / SANCTIONS / OMISSIONS / CONTRADICTIONS / PERSONAL INFORMATION FORM / MALE / NEGATIVE / NIGERIA 1 Exhibit M-7: Copy of Court Documents from the United States District Court, Southern District of Texas, Houston Division, concerning the claimant. 2 2008 FCA 404. 3 Exhibit M-2: Copy of Nigerian passport # XXXXX and an American Permanent Resident Card (green card) # 047-120-10, concerning the claimant. 4 Exhibit M-8: Copy of Title 18, United States Code, Section 1708. 5 Supra, footnote 2, at paragraphs 55 and 56. --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA6-04392 10