TB8-33503

RAD File / Dossier de la SAR : TB8-33503 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 19, 2019 Date de la décision Panel Dilani Mohan Tribunal Counsel for the person who is the subject of the appeal Krishanthan Cathiresan Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons for dismissing the appeal by Mrs. XXXX XXXX XXXX (Mrs. A). She appeals a decision by the Refugee Protection Division (RPD), dated December 7, 2018, rejecting her claim for refugee protection. DETERMINATION [2] I am dismissing this appeal and, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the RPD's decision that Mrs. A is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] Mrs. A is a Nigerian woman who fears that she will be forced to undergo female genital mutilation (FGM) in order for her husband to ascend to the XXXX XXXX XXXX XXXX XXXX XXXX. Mrs. A is her husband's second wife and mother to three children. She claims that, when her husband was chosen by the XXXX in XXXX 2015 as next in the XXXX XXXX XXXX, he was given a number of rites to fulfill. Her circumcision was one among many of other rites, but she was not willing to do it. Over the course of a few months, Mrs. A alleges, the XXXX XXXX made arrangements for her circumcision. In XXXX 2016, her husband was told that she must be circumcised before he could be XXXX XXXX. The next month, some members of the XXXX XXXX came to Mrs. A's home and stressed that a date needed to be set for the circumcision. Then, in XXXX, they again visited her home and told her that the date had been set for XXXX 2016. Mrs. A claims that her husband loves her deeply and did not want to force her to undergo the procedure to selfishly ensure his XXXX XXXX XXXX XXXX. She alleges that he helped her flee Nigeria because he knew the XXXX XXXX XXXX XXXX XXXX could find her anywhere in Nigeria. [4] Mrs. A's claim was first heard in 2017, at which point it was rejected for credibility reasons based on her lack of corroborating evidence and implausibility findings. The decision was appealed to the RAD and sent back for redetermination. This appeal only considers the decision by the RPD on redetermination of Mrs. A's claim, which the RPD rejected for the second time in December 2018, again for reasons of credibility. Arguments on appeal [5] Mrs. A has argued in this appeal that the RPD misapprehended several facts which it then relied on to make negative credibility determinations. She contends that the RPD was overzealous in finding inconsistencies, consequently overemphasized peripheral inconsistencies and then unreasonably extended those findings to dismiss entire events in her narrative.1 [6] Mrs. A did not submit any new evidence and did not request an oral hearing. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] The RAD conducts its own analysis of the record to decide whether or not the RPD's decision was wrong. The RAD generally does not owe any deference except in rare cases where the RPD held a meaningful advantage in assessing credibility and weighing oral evidence. The standard applied on this appeal is therefore one of correctness. ANALYSIS [8] I have conducted an independent assessment of the evidence and find, for the following reasons, that although the RPD made some errors in its assessment of Mrs. A's credibility, its ultimate conclusion was correct. Accordingly, I find that Mrs. A is not a Convention refugee nor a person in need of protection. [9] Mrs. A argues that the RPD's credibility findings about the XXXX and XXXX incidents are incorrect because they focus on peripheral issues and were based on misapprehensions of fact. She argues that by extending the credibility findings from finite issues to find that the entire events of XXXX and XXXX 2016 did not occur is a violation of natural justice. She further argues that the RPD ignored affidavit and other supporting evidence. XXXX 2016 visit by the XXXX XXXX [10] The RPD found that there was a material contradiction between Mrs. A's narrative about the XXXX XXXX visit to her home in XXXX 2016 and her oral testimony about that visit at her hearing. Specifically, it found that she had described herself as very angry and vocal at the meeting in her narrative but as quiet and communicating only through body language at the hearing. As a result of that discrepancy, the RPD concluded that the entire event had never taken place. [11] Mrs. A argues that the RPD erred in fact because she never stated that she personally had a conversation with the XXXX XXXX members during their XXXX 2016 visit. [12] I am not persuaded by the arguments that Mrs. A has raised and do not find them supported by the evidence on the record. Although her narrative does not state that she "personally" spoke to the men, the language of the narrative is quite clear about who was speaking to whom. It states "I...told them" which indicates Mrs. A's own interactions and "he told the men" when referring to her husband's interactions. I therefore cannot accept Mrs. A's explanation that she never stated that she had a personal conversation with the men from the XXXX XXXX. [13] Moreover, Mrs. A had given a detailed description in her Basis of Claim (BOC) narrative of what happened during the XXXX XXXX members' visit to her home in XXXX 2016. She stated not only that she directly told the XXXX XXXX members that she would not participate and that circumcisions were so dangerous that she could lose her life, but she also stated that those members responded by telling her that she had no say in the matter. Mrs. A's narrative further expresses her shock and surprise that her husband did not defend her in that moment. Having listened to the audio recording of the RPD hearing, it is clear that, during her testimony, Mrs. A claims that she never directly spoke to any of the XXXX XXXX members. She testified that, as a woman, she was not permitted to participate in those meetings. She further testified in detail that she expressed her unwillingness to be circumcised by shaking her head and that her husband is the one who signaled to her through his eyes and body language that she should not speak. [14] I appreciate that these events took place over two years ago and that the passage of time can dilute memories. However, given the level of detail in the narrative and the fact that this was a significant event for Mrs. A, I find it reasonable to assume that her memory, even if somewhat inconsistent, would still have significant parallels to the main thrust of the event. [15] I find that this is not a peripheral issue. It is significant that Mrs. A attempted to voice her opposition and was silenced, and it is significant how that all occurred. The version of those events in the narratives indicates that she was a vocal advocate for herself and her right to bodily integrity. That version of events suggests that she was expressly told that she has no place in these matters. The version of events to which she testified orally is that she was essentially mute, expressing her views on circumcision and her unwillingness to participate by merely shaking her head, and that her husband is the one who indicated to her to stay quiet. This is a vastly different interaction. Moreover, I note that Mrs. A wrote in her narrative that, just the month prior, she had told the committee members to leave her home and not bother her again. This suggests again that she had a personal and direct conversation with members of the XXXX XXXX. I therefore see no error in the RPD's conclusion that, given this significantly different characterization of events, Mrs. A has not credibly established that the visit took place in the manner that she claims. [16] Furthermore, the RPD asked Mrs. A to explain why her written narrative describes the XXXX 2016 visit so differently. I agree with the RPD that Mrs. A's response was more of a reiteration of the version she had verbally described rather than an explanation for the difference between the verbal and written accounts. As a result, I do not find this to be an example of overzealousness. Mrs. A has claimed to have had only three interactions with men from the XXXX XXXX. It is reasonable to expect her to remember how those meetings occurred. If Mrs. A's account of what happened at the XXXX visit cannot be considered reliable, then the only reliable evidence about that visit that remains is simply that members of the XXXX XXXX came to her home. And while some of these men may have attended at her home, Mrs. A's inconsistency in describing how her circumcision arrangements were discussed, and her lack of explanation for that inconsistency raises doubts as to whether her circumcision was discussed at all. [17] I am aware that the RPD did not challenge Mrs. A's testimony that the men from the XXXX XXXX visited her home. Nor was there any internal inconsistency around the timing of the visit. The affidavit evidence and Mrs. A's testimony was consistent in stating that a meeting took place at her home in XXXX 2016. I am also cognizant of the letter from the XXXX XXXX XXXX2 confirming Mrs. A's husband's XXXX XXXX XXXX XXXX XXXX. All of this suggests to me that it is probable that XXXX XXXX members attended at Mrs. A's home in XXXX 2016. Consequently, I find that the RPD should not have gone so far as to say that the XXXX XXXX members did not attend Mrs. A's home in XXXX 2016 at all. [18] However, I have reached a similar conclusion to the RPD in finding that the discussion about Mrs. A's circumcision did not occur and that, consequently, her allegations about the XXXX 2016 meeting have not been credibly established. I accept that, on a balance of probabilities, men from the XXXX XXXX did visit Mrs. A and her husband at their home in XXXX2016 based on the evidence that Mrs. A's husband was XXXX XXXX XXXX XXXX XXXX XXXX However, I also find, on a balance of probabilities, that they did not discuss Mrs. A's circumcision at that meeting based on the credibility concerns outlined above. I therefore find, on a balance of probabilities, that while a meeting likely took place in XXXX 2016, it did not include a discussion of Mrs. A's circumcision arrangements. XXXX 2016 visit by the XXXX XXXX BOC omission and extension of credibility finding to entire XXXX 2016 visit [19] In her BOC, Mrs. A alleges that, in XXXX 2016, members of the XXXX XXXX returned to her home and informed her and her husband that the date for her circumcision had been set for XXXX. She claimed that following that visit she packed her bags and told her husband that she wanted to hide out at her friend's home. She further alleges that her husband dissuaded her from this plan, advising that she could be found anywhere, and that the following day he came home and told her he would help her leave the country. She did not mention traveling anywhere before leaving Nigeria, and she indicated as much on her BOC form. [20] The RPD found that narrative contradicted by Mrs. A's testimony at the hearing and by the affidavit evidence presented by her husband and her sister. On the basis of this omission from her BOC narrative, the RPD found that Mrs. A had not gone into hiding at her sister's home and, further, that the entire events of XXXX 2016 had not occurred. [21] Mrs. A argues that the RPD was wrong to extend its finding to the entirety of the XXXX 2016 visit. She claims that this violates natural justice without going into specifics as to how that is so. Natural justice comprises the right to know the case to be met in order to properly plead it and the right to an unbiased hearing. As my reasons demonstrate, I have found no evidence of procedural unfairness or biased decision-making on the record. And while I find, for reasons elaborated later in these reasons, that the RPD was wrong in its approach to finding that the XXXX 2016 event did not occur, I agree with the RPD that the essential elements of that allegation did not occur. I therefore dismiss Mrs. A's argument that principles of natural justice were breached. [22] Mrs. A also argues that the RPD mischaracterized the contents of her husband's affidavit and that it does not contradict her testimony and narrative. And lastly, she argues that the RPD erred by not considering the rest of the uncontradicted affidavit evidence. [23] I agree with Mrs. A that the RPD wrongly stretched the credibility finding to conclude that the XXXX XXXX members did not come to her home in XXXX 2016, solely on the basis of the BOC omission. Mrs. A is correct in noting that the visit and her claim of going into hiding are two discrete events. A finding that she did not go into hiding before leaving Nigeria does not automatically mean that she was not visited by the XXXX XXXX members. [24] That being said, I find that the RPD correctly concluded that Mrs. A's explanation for omitting the information about staying with her sister is unreasonable. I agree that this undermines her credibility, and for reasons that will follow, I do not find the affidavit evidence helpful in supporting her claim. [25] Mrs. A testified that she was not sure at the time of filling out the form whether it was necessary for her to provide information about relocating for only two weeks and that, only after realizing that she should, she got supporting evidence. But Mrs. A was represented by counsel at that time,3 and the forms are very clear about the information that needed to be included. The RPD correctly noted that the form asked whether she had moved elsewhere in the country for safety. Mrs. A indicated quite clearly that she had not.4 She supported that declaration by stating that, although she had wanted to hide elsewhere, her husband talked her out of it.5 And her narrative is equally clear in expanding on that point by stating that her husband talked her out of hiding with a friend before buying tickets for her to leave Nigeria secretly.6 Neither the expanded narrative nor the narrative update7 speak to the two weeks spent hiding at her sister's place. [26] Mrs. A has argued that, despite her explanation and omission, the affidavit evidence reliably demonstrates the truth of her claim, both generally and specifically in relation to her assertion that she hid at her sister's home before coming to Canada. I agree only in part with Mrs. A's argument about the treatment of the supporting affidavits but find that the affidavit evidence is not reliable in supporting the central elements of her claim. Reliability of the affidavit evidence about going into hiding [27] The RPD found that Mrs. A's husband's affidavit contradicted her testimony because it stated that she discussed the prospect of hiding in XXXX rather than XXXX.8 It then said that all of the affidavits contradict Mrs. A's statements in her BOC narrative and subsequently assigned them little weight because it did not find Mrs. A's explanation for the omission compelling.9 Mrs. A argues that the RPD misapprehended the contents of her husband's affidavit and that the RPD should not have dismissed all of the affidavits on the basis of this BOC omission. [28] I agree that the RPD misapprehended the contents of the husband's affidavit. The content of Mrs. A's husband's first affidavit refers to the XXXX and XXXX 2016 incidents, but it is not clear that the information is set out in chronological order. Although I find that the RPD was wrong in reading that information as chronological and that it does not contradict Mrs. A's testimony or raise internal inconsistencies, I nevertheless find the affidavit unreliable because of the other contradictions and serious inconsistencies with Mrs. A's testimony which I will address below. [29] Similarly, I agree with Mrs. A's arguments that the RPD was wrong to entirely dismiss the corroborating affidavits from her son, XXXX, and her sister, XXXX. The RPD contested the value and reliability of these affidavits solely on the basis of an inconsistency it saw arising from Mrs. A's omission of hiding at her sister's home, from her narrative, and her unreasonable explanation for the omission. [30] I find that the RPD erred by dismissing the entirety of the affidavit evidence from Mrs. A's sister and her son for this reason alone, but, again, for reasons different from the RPD, I find that all of these affidavits are not reliable or trustworthy. I therefore find that, despite the RPD's errors, no injustice has resulted. I therefore uphold the RPD's determination that, on a balance of probabilities, Mrs. A did not hide out at her sister's home for two weeks before coming to Canada. Overall trustworthiness and reliability of the affidavit evidence [31] Mrs. A argues that the veracity of her allegations about the XXXX 2016 event and her overall claim of being at risk of FGM is supported by the affidavit evidence from her husband, her sister and her son. However, I find the trustworthiness and reliability of that evidence is drawn into question by the contradictions between Mrs. A's testimony about her husband's safety and her husband's affidavit on this point. Doubts also arise from contradictions between all of the affidavits and testimony about the death of the XXXX XXXX. Mrs. A's husband's affidavit [32] The RPD found the reliability of Mrs. A's husband's affidavits undermined by statements he made about his safety in Nigeria. Throughout his three affidavits he expressly stated that he had been threatened with death and that his life was in danger.10 However, at the hearing when her counsel asked if her husband was in any danger, Mrs. A unequivocally explained that he was not because he is wealthy, and she is not physically near him.11 The fact of Mrs. A's husband's safety was also stressed by counsel in his closing submissions.12 [33] Mrs. A has not challenged this finding on appeal. I find that this contradiction is significant because it raises concerns about the veracity of the claims by Mrs. A and her husband about the nature of the threats being made and whether any threats are being made at all. In light of the significance of the contradiction and the absence of any counter-argument, I agree with the RPD that the credibility and reliability of Mrs. A's husband's evidence regarding the threats from the XXXX XXXX and his family members is undermined. [34] Another significant contradiction and inconsistency arose between Mrs. A's testimony, her BOC narrative, and her husband's affidavit relating to the death of the XXXX XXXX. In her BOC narrative,13 Mrs. A claims that her husband was XXXX XXXX XXXX XXXX XXXX XXXX in XXXX 2015, that he was required to perform rites and rituals to prepare for the role, and that he needed to be installed as a XXXX XXXX XXXX XXXX before he could XXXX XXXX XXXX. The first affidavit from Mrs. A's husband14 as well as the affidavits from her son15 and her sister16 corroborated these statements. They provided the additional information that the XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX, had passed away in XXXX 2014.17 And in her oral testimony, Mrs. A initially stated that the late XXXX XXXX had passed away in 2014 before her husband was XXXX XXXX XXXX XXXX. She further testified that another man, XXXX (phonetic assumption), was the XXXX XXXX until the true XXXX XXXX XXXX.18 [35] The RPD later pointed out to Mrs. A that her husband's second19 and third20 affidavits, and her own BOC update,21 raised doubts as to whether the XXXX XXXX had actually died. Those affidavits reflected information contained in Mrs. A's update to the effect that, if the rituals were not completed before the XXXX XXXX XXXX, her husband would not be able to XXXX XXXX XXXX XXXX. Mrs. A was asked whether XXXX XXXX XXXX XXXX when her husband was chosen and whether there is a living XXXX XXXX XXXX at this time.22 She replied that XXXX XXXX XXXX alive; that there remains a XXXX XXXX; and that the XXXX XXXX XXXX XXXX that she had referred to was a XXXX XXXX. Mrs. A further explained that she referred to the XXXX XXXX because succession is normally prearranged. [36] I understand Mrs. A's explanation to be that there is currently a XXXX XXXX and that her husband was chosen as the next in line when the XXXX XXXX passed away. While that might reconcile her statements that XXXX XXXX both died before her husband was XXXX XXXX XXXX XXXX XXXX and still XXXX XXXX XXXX XXXX, it does not explain her statement that there is an "XXXX XXXX" who is waiting for the XXXX XXXX to be chosen. My understanding of the meaning of an "XXXX XXXX" is that of a placeholder, and I find that understanding supported by Mrs. A's testimony that XXXX would XXXX XXXX until the XXXX XXXX is identified. I therefore do not find it likely that there would be an "XXXX XXXX" who must pass away before the XXXX XXXX can take the XXXX. Mrs. A's explanation at the hearing did not reconcile her varied evidence. Consequently, I find Mrs. A's explanations to be contradictory and that it undermines the credibility and reliability of her husband's affidavits. I therefore assign little weight to all of Mrs. A's husband's affidavits. The affidavits by Mrs. A's son and her sister [37] The affidavits by Mrs. A's son and her sister refer to the death of the XXXX XXXX and Mrs. A's period of hiding at her sister's home. I have already found that Mrs. A did not likely hide at her sister's home and therefore find the reliability of the affidavit evidence undermined by that finding. I have also found that the evidence regarding the death of the XXXX XXXX to be unreliable because of contradictions with Mrs. A's testimony. Consequently, the reliability and credibility of these affidavits are further undermined. Finally, I find that the remaining information contained in these affidavits is of little value in resuscitating the credibility of Mrs. A's allegations. Although they refer to the pressure Mrs. A was under to be circumcised, I have already found that discussions about her circumcision never occurred in XXXX 2016, and I therefore find statements related to that less credible. As a result, I do not give these affidavits any weight. [38] For all of my reasons stated above in relation to the supporting affidavit evidence, I find that the affidavits are not trustworthy or reliable in establishing that Mrs. A was threatened with or required to undergo FGM as part of her husband's XXXX XXXX XXXX XXXX. Nor do I find the affidavits trustworthy or reliable in establishing that she fled to her sister's home in XXXX 2016. Reliability of other documentary evidence [39] Mrs. A argued that the RPD ignored her other supporting evidence which included letters from XXXX and XXXX XXXX, as well as psychological reports. [40] I accept, as did the RPD, that Mrs. A's husband was XXXX to become the XXXX XXXX and that he was successfully installed as the XXXX XXXX XXXX. However, I find that the evidence23 which establishes those facts, on a balance of probabilities, does not also establish that Mrs. A was required to undergo circumcision or that her husband's XXXX to the XXXX was put on hold until she is circumcised. I note that the letter from the XXXX XXXX XXXX XXXX XXXX XXXX listed the rites that had to be performed and only specified rites to be performed by the XXXX XXXX. And although I find the RPD's comment that the letters did not mention circumcision24 to be illogical given the illegality of female circumcision in Nigeria, I find the express mention of rites required by the XXXX XXXX to indicate that nothing was required of Mrs. A. [41] I have considered the psychological reports prepared by XXXX XXXX and the Riverdale Immigrant Women's Centre reports in assessing any difficulty that Mrs. A may have had in recalling incidents of threats or violence. I accept Ms. XXXX clinical opinion that Mrs. A's symptoms are consistent with Post-Traumatic Stress Disorder25 and that Mrs. A has required and was receiving counselling.26 However, I do not find the psychological assessments are helpful in addressing the inconsistencies in her testimony since Ms. XXXX does not express any concerns that Mrs. A's symptoms could affect her ability to testify. Nor do I find that the reports alleviate my concerns with the contradictions arising from the affidavit evidence. [42] Consequently, and in light of the concerns that I have already outlined with Mrs. A's testimony and supporting evidence, I find, on a balance of probabilities, that a date for circumcision was not set for her in XXXX 2016, that the setting of such a date was not communicated to her in XXXX 2016 even if members of the XXXX XXXX and XXXX XXXX visited her home, and that she is therefore not at risk of being forcefully circumcised. Consequently, I find that Mrs. A does not face a serious possibility of persecution on the basis of FGM in Nigeria, or that she faces a risk, on a balance of probabilities, of torture or cruel and inhumane treatment or punishment if she were to return to Nigeria today. CONCLUSION [43] On the basis of the totality of the evidence and the findings above, I find that Mrs. A has not demonstrated that the RPD's decision was incorrect and that she faces a serious possibility of persecution on the basis of her membership in a particular social group-women at risk of circumcision. [44] I therefore dismiss the appeal and confirm the RPD's decision that Mrs. A is neither a Convention refugees nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Dilani Mohan" Dilani Mohan September 19, 2019 Date 1 Exhibit P-2, Appellant's Record, at pp. 13-17, Summary of issues identified in the Appellant's Memorandum. 2 Exhibit RPD-1, RPD Record, at p. 354. 3 Exhibit RPD-1, RPD Record, at p. 23. 4 Exhibit RPD-1, RPD Record, BOC Form, at p. 15, question 2(d). 5 Ibid. 6 Exhibit RPD-1, RPD Record, at p. 18. 7 Exhibit RPD-1, RPD Record, at p. 359. 8 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at p. 9, at para 19. 9 Ibid., at pp. 7-9, at paras 15-19. 10 Exhibit RPD-1, RPD Record, at p. 197, at para 16; at p. 353, at para 9; at p. 368, at para 7. 11 Audio Recording of the RPD Hearing, from 02:20:00 to 02:26:00. 12 Ibid., at 02:21:10. 13 Exhibit RPD-1, RPD Record, at p. 17. 14 Exhibit RPD-1, RPD Record, at pp. 195-197. 15 Exhibit RPD-1, RPD Record, at pp. 193-194. 16 Exhibit RPD-1, RPD Record, at pp. 198-199. 17 Exhibit RPD-1, RPD Record, at p. 193, at para 4; at p. 195, at para 5; at p. 198, at para 3. 18 Audio Recording of the RPD Hearing, from 01:00:00 to 01:08:00. 19 Exhibit RPD-1, RPD Record, at pp. 352-353. 20 Exhibit RPD-1, RPD Record, at pp. 368-369. 21 Exhibit RPD-1, RPD Record, at p. 359. 22 Audio Recording of the RPD Hearing, from 01:48:47 to 01:59:45. 23 Exhibit RPD-1, RPD Record, Letter from the XXXX XXXX XXXX XXXX, at pp. 354-355; Letter from the XXXX XXXX XXXX, at pp. 356-357; Letter from XXXX XXXX XXXX XXXX, at pp. 366-367. 24 Exhibit RPD-1, RPD Record, at pp. 8-9, RPD's Reasons and Decision, at para 20. 25 Exhibit RPD-1, RPD Record, at p. 346, XXXX report. 26 Exhibit RPD-1, RPD Record, at p. 209, Riverdale letter. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-33503 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