TB5-02344

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 File No. / N° de dossier de la SAR : TB5-02344 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 5, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ochiemuan Okojie Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Dana Rudiak Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX XXXX (a.k.a. XXXX XXXX), a female from Nigeria. The Minister has submitted new evidence in support of the appeal that was not presented at the RPD hearing. APPLICATION FOR AN ORAL HEARING [2] The Appellant and the Respondent do not ask for an oral hearing pursuant to section 110 (6) of Immigration and Refugee Protection Act (IRPA). DETERMINATION OF THE APPEAL [3] Pursuant to ss. 111 (1) (b) of IRPA, the Refugee Appeal Division (RAD) sets aside the determination of the Refugee Protection Division and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX is neither a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act nor a person in need of protection pursuant to s. 97 of IRPA. Pursuant to ss. 107(2) of IRPA, the RAD finds that there is no credible basis for the claim and that it is manifestly unfounded. This Appeal is allowed. BACKGROUND [4] The Respondent, XXXX XXXX XXXX, alleged before the RPD that she is a victim of domestic violence and abuse by her boyfriend. The Respondent alleges she met her boyfriend in XXXX 2012 and approximately XXXX months into their relationship around XXXX 2012, they moved in together and the relationship went well. However, the boyfriend (known as XXXX XXXX XXXX) wanted her to get pregnant to bear him a child, but for an unknown reason she was unable to get pregnant. [5] The Respondent states that on XXXX XXXX, 2013, XXXX XXXX XXXX. came home from work and an argument ensued, the Respondent was beaten and as she tried to get away, she injured herself, and was transported to a hospital for treatment. The Respondent was released from the hospital two days later and upon returning home, packed her bags and left for a friend's house who resided in the city of XXXX. The Respondent was contacted by XXXX XXXX XXXX. who pleaded for her to return home and she did. On XXXX XXXX, 2013 while on her way back from the market, the Respondent ran into a former boyfriend and was conversing with him on the street, at that moment XXXX XXXX XXXX. was returning home and observed the Respondent speaking with a male. When the Respondent entered their home, an argument ensued; XXXX XXXX XXXX. threatened the Respondent with violence including pouring acid on her. [6] The Respondent on XXXX XXXX, 2013 contacted her aunt who resided in the city of XXXX, and left for her aunt's after XXXX XXXX XXXX. left for work. Shortly thereafter, the Respondent alleges that XXXX XXXX XXXX. began calling and threating her aunt, the Respondent hid in the church she attended and with the help of the pastor, found an agent who assisted the Respondent in fleeing Nigeria on XXXX XXXX, 2014 to the United States of America. The Respondent then entered Canada on XXXX XXXX, 2014 and shortly thereafter, filed for refugee protection at an inland office. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [7] The following evidence was submitted by the Minister: 1) Additional Evidence - submission - dated March 17, 2015; and 2) Minister's exhibit M-2; information received from the High Commission of Canada (visa office) in Lagos, Nigeria concerning previous employment of respondent; and 3) Minister's exhibit M-3; Internet printout - social media;1 and 4) Confirmation of Documents provided - to respondent's counsel dated February 12, 2015;2 [8] Section 110(3) of IRPA allows the RAD to accept documentary evidence from the Appellant. Section 110(4) provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] While IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,3 such restrictions do not apply to the Minister (the Appellant here),4 nor do they apply to any evidence submitted by the subject in response to the Minister.5 [10] Section 171(a.3) of IRPA provides that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [11] The Minister submits that, pursuant to paragraph 110(3) of the IRPA, he wishes to rely on new evidence not contained in the record of proceedings of the RPD. The Minister asks that the positive determination of the RPD be set aside and that the RAD substitute a determination that the Respondent is not a Convention refugee or a person in need of protection, and further that her claim is manifestly unfounded pursuant to section 107.1 of IRPA as it is a clearly fraudulent claim. [12] The Minister requests that the RAD find that the Respondent did not provide credible testimony and documents in establishing her claim, and therefore is not a credible witness. [13] The Minister submits that the Respondent's material contradictory evidence/omissions induced errors of fact in the RPD's decision. The Respondent's omissions and misrepresentations caused the RPD to err in accepting the Respondent's claim, and finding her to be a credible witness. [14] The Minister submits that the new evidence shows that the Respondent omitted material facts affecting to the legitimacy of her testimony regarding her allegations of domestic violence, and further the Minister submits that the respondent's contradictions/omissions raise serious questions about her credibility. [15] The RAD has no reason to doubt that the documents provided with the Minister's intervention are credible or trustworthy. [16] The Respondent has provided a response to this Appeal and other information provided by the Minister. The RAD therefore admits into evidence the documents provided with the intervention. SUBMISSIONS [17] The Minister further submits that this new evidence was not available at the time of the hearing and directly contradicts the evidence presented by the Respondent. The Minister argues that this evidence is sufficiently serious and relevant to the central elements of this claim, and illustrates a pattern of repeated deceitful and fraudulent behavior on the part of the Respondent. The Respondent has intentionally, willingly and actively attempted to misrepresent herself to the Canadian authorities and the RPD. [18] The Minister asks that the positive determination of the RPD be set aside and that the RAD substitute a determination that the Respondent is not a Convention refugee or a person in need of protection, and further that her claim is manifestly unfounded pursuant to section 107.1 of IRPA as it is a clearly fraudulent claim. [19] The Minister requests that the RAD find that there was no credible or trustworthy evidence on which a favourable decision could be made and, further that her claim is manifestly unfounded pursuant to section 107.1 of IRPA as it is a clearly fraudulent claim. ANALYSIS OF THE MERITS OF THE APPEAL [20] The determinative issue in this appeal is: 1. Whether the Respondents' contradictions/omissions and misrepresentations caused the RPD to err in accepting the Respondent to be a credible witness. Appellant's Arguments 1. The Respondent's oral testimony and evidence she presented at the hearing, along with the personal documents, which is what the RPD relied upon to make a finding on the respondent's identity and her to be a credible witness; 2. The RPD found that the Respondent had established that she was a citizen of Nigerian and a victim of domestic violence; [21] The Minister submits that the new evidence is sufficiently serious and relevant to the central elements of the Respondent's claim, and that when considered in the conjunction with the Respondent's oral testimony before the Panel, the new evidence established that the Respondent misrepresented herself before the Refugee Protection Division. [22] As an example, in her Basis of Claim (BoC), she declared that her parents were poor and could not afford to send her to university after she finished secondary school, so she began XXXX XXXX XXXX XXXX.6 The Respondent also declared that, from XXXX 2002 to XXXX 2013 she was self-employed in XXXX XXXX XXXX while residing in Benin City, Nigeria.7 [23] The new evidence, submitted by the Minister, are communications between the Canadian High Commission in Lagos and Immigration authorities, which contains the response to the Minister's inquiries. The information provided by the Canadian High Commission in Lagos, show that the Respondent was employed as a XXXX XXXX XXXX at XXXX XXXX XXXX XXXX XXXX.8 The Minister also submitted further evidence which was obtained from the Internet which further undermines the credibility of the Respondent who claimed she never used Facebook or Twitter;9 [24] The Minister submits that the new evidence demonstrates that the Respondent was deceitful and misrepresented herself to Canadian immigration authorities. The Minister submits that the Respondent successfully provided misleading testimony in her application for refugee protection. The absence of this information from the context of the Respondent's RPD hearing effectively foreclosed the avenue of inquiry which resulted in the Refugee Protection Division assessing the credibility of the Respondent, making a finding with regards to her claim and ultimately finding her in need of protection, without all the facts before it. The Respondent's presentation of her testimony and documents, both overseas and in Canada, raises serious concerns about her credibility. The Minister further submits that, by not having this information before it, the RPD made an error of fact since it did not have all the information upon which to make a complete and measured decision. Respondent's Argument [25] The Respondent provided a Respondent's memorandum of argument to this appeal on April 08, 2015, in response to the evidence presented by the Minister. [26] The Respondent argued that the Minister had ample time to present the new evidence and it should not be admitted to the RAD. The Respondent further makes submission on the standard of review which is to be taken by the RAD. The Respondent's counsel does not make any arguments relating to the Minister's evidence contradicting the Respondent's credibility. The RAD has dealt with this argument earlier in its decision, and finds this argument not to be supportable as per section 110 (3) and (4). ANALYSIS Role of the RAD [27] The Appellant has made no submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,10 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [28] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. The RPD findings [29] The RPD found, in its decision, that the Respondent was credible and accepted her identity; "at the beginning of hearing, the Panel asked the claimant with her BoC in front of her, whether her BOC is true and correct. She responded under oath that it was. [30] The Respondent argues that contrary to the Appellant's submissions, that the Panel at pages 13 to 15 of the Appellant's record, where the Respondent was questioned in detail regarding the Minister's evidence and submissions, it reasonably concluded based on the Respondent's oral testimony and the documentary evidence, that there was no sufficient evidence to impeach the Respondent's credibility and her claim. [31] In regards to the Facebook printouts showing the marriage pictures that purport to be from the Respondent's sister's wedding which took place on XXXX XXXX, 2014 and also the e-mail communication from the VISA office of CIC in Lagos, the Respondent makes no argument relating to the result of its analysis. Respondent's counsel only argues that they should not be accepted as per section 110 (4) of IRPA. The RAD, however, has reviewed the documents contained in M-2 and M-3; and finds them to be relevant and credible and contradictory to the viva voce testimony of the Respondent. The RAD finds this argument without merit, as the Act clearly gives the Minister the right to bring any evidence to the RAD, regardless if it was available at the time of the hearing. [32] The RAD finds that the evidence indicates that the Respondent was not forthcoming about the details of her claim as it related to her allegations of domestic abuse. The Respondent used personal documentation to advance her claim. The evidence calls into question the credibility of the Respondent and those documents she submitted. [33] The RAD finds that the Respondent has not established her claim as required by the IRPA and, as a result of the discrepancies shown by the new evidence; I find that, on a balance of probabilities, the claim of the Respondent has not been established. SUMMARY AND DETERMINATION [34] In assessing the evidence in its entirety in this area, the RAD did not arrive at the same conclusion that the RPD's favorable findings regarding credibility are supportable. The RAD finds the new evidence which was presented strongly contradicts the findings of the RPD as it relates to the Respondent's credibility. The RAD finds the new evidence persuasive as it deals with the central elements of the Respondent's claim. [35] For all these reasons, due to the new evidence not being available to the RPD, the RAD sets aside the determination of the RPD and finds that XXXX XXXX XXXX, is neither a Convention refugee nor a person in need of protection. The Respondent presented material that misrepresented information to Canadian immigration authorities and the Refugee Protection Division. The RAD finds there was no credible or trustworthy evidence before the RPD at the hearing on which a favourable decision could have been made. CONCLUSION [36] Therefore, the RAD substitutes the determination that should have been made, if the evidence had been available to the RPD, and finds that the Respondent is neither a Convention refugee nor a person in need of protection. Therefore, this Appeal is allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho June 5, 2015 Date 1 Appellant's record, p.16. 2 Appellant's record, p. 04. 3 Immigration and Refugee Protection Act, Section 110(4). 4 IRPA, Section 171(a.5). 5 IRPA, Section 110(5). 6 RPD's record, p. 12,at para. 4. 7 RPD's record, p. 33, Schedule A, question 8 8 Appellant's Record, M-2, p. 17 9 Appellant's Record, M-3 pp. 20 to 44. 10 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-02344