TB4-01289

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 : TB4-01289 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 7, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant), a citizen of Nigeria, has appealed a negative determination of the Refugee Protection Division (RPD) dated January 7, 2014. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD ) confirms the RPD's determination that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] Ms. XXXX (the Appellant) alleges that she fears political enemies of her husband who want her husband to step down from his position as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant alleges that, while traveling home by car on XXXX XXXX, 2013, she and her infant daughter were shot at by her husband's political enemies. The Appellant's daughter was killed. Fearing for her safety, the Appellant fled Nigeria and came to Canada through the United States on XXXX XXXX, 2013. The Appellant made her claim for refugee protection at an inland office on April 23, 2013. [4] The Appellant was pregnant when she arrived in Canada and discovered that she was HIV-positive. The Appellant gave birth to a daughter in Canada on XXXX XXXX, 2013. [5] The Appellant had refugee determination hearings which spanned two sittings (June 21, 2013 and September 5, 2013). The RPD rendered a written decision on January 7, 2014 in which it found the Appellant was not a reliable witness and that her allegation that her daughter was killed was not credible. The negative credibility findings were based on the fact that the Appellant submitted fraudulent documents in support of the material aspect of her claim, namely, the murder of her daughter. The RPD also found that the Appellant's credibility as a witness was impugned by inconsistencies in her oral testimony as well as her changing testimony. [6] The Appellant's counsel submitted pleadings on February 24, 2014 which indicated that the RPD made several errors of fact and law. Counsel argued that the Appellant was denied the opportunity to call an expert witness in regards to the death certificate provided by the Appellant which amounted to an error of law. The RPD also erred in fact in its finding that the death and birth certificates were not genuine based on its own subjective opinion. Counsel also argued that the RPD ignored the explanations provided by the Appellant regarding the Death Certificate and that it misapprehended the documentary evidence with respect to the issuance of death certificates in Nigeria. In summary, the RPD erred in finding that the death certificate was fraudulent, and therefore its conclusions regarding the entire base of the claim were not reasonable. Counsel also argued that the Board erred in failing to address the Appellant's HIV status and evidence of conflict between the Appellant and her husband as a result of the Appellant's positive HIV status. [7] The pleadings request that the RAD set aside the negative determination of the RPD and substitute this with a positive determination. In the alternative, the Appellant requests that the matter be referred back to the RPD for redetermination with direction to the RPD to accept the claim. The RAD noted that the request to refer the matter back to the RPD for redetermination with a specific direction to accept the claim does not conform to the directions in section 111(1) of IRPA, as this direction would constitute a substitution of the RPD's determination, which the RAD has the authority to do under section (b) of 111(1). In addition, providing a direction to the RPD to accept the claimant would be in conflict with the deference provided to the RPD for matters of fact and mixed fact and law outlined in the Standard of Review section below. [8] In addition, the Appellant asks that the RAD accept as new evidence a letter from Sick Kids Hospital dated XXXX XXXX, 2014.1 The RAD notes that the pleadings do not include an application for new evidence to be accepted, as per section 110(4) of IRPA. The pleadings do not provide an explanation as to why the letter was not reasonably available before the two sittings, or that the Appellant could not have been expected in the circumstances to have presented the letter at the time of the rejection. The panel noted that the Appellant was aware of her HIV status before the birth of her baby on XXXX XXXX, 2013. The letter from Sick Kids Hospital indicates that the Appellant's child has been followed by the Infectious Diseases Clinic since one week of age. The RAD finds that evidence of the Appellant's daughter's health status and treatment was available to the Appellant before her hearings on June 21, 2013 and September 5, 2013. Given that the pleadings did not include a formal request for new evidence to be considered by the RAD, including an explanation as to why the evidence presented was not reasonably available to the Appellant or could not reasonably have been expected in the circumstances to have been presented at the time of the rejection, and given that it would have been reasonable for the Appellant to have arranged evidence from Sick Kids Hospital before the rejection of the claim on January 7, 2014, the RAD finds that the evidence does not conform to section 110(4) of IRPA and therefore is not admissible as evidence, and it will not be considered in assessing this appeal. [9] In addition, the RAD notes that the Appellant's child was born in Canada and is not a party in the refugee proceedings, and therefore the RAD does not have jurisdiction in determining the best interests of the child as argued in the pleadings. As such, the RAD finds that the new evidence was not material or relevant to the appeal before it. STANDARD OF REVIEW [10] The RAD focused on two issues in assessing the appeal: a) Did the RPD err in law and in mixed law and fact in its finding that the birth and death certificates and other evidence provided in support of the allegations were fraudulent? and b) Did the RPD err in fact by failing to address the Appellant's HIV status as it relates to a well-founded fear of persecution or harm by her husband or by the public at large, should she return to Nigeria? [11] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [12] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD . [13] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,4 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD ; and * the nature of the question in issue. [14] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." While the Divisions have many of the same powers, their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [15] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;5 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [16] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.6 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing7 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [17] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD 's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.8 The RAD 's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.9 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.10 [18] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD 's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".11 [19] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".12 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.13 [20] The Appellant also argued that the RPD erred in law by failing to call an expert witness to rebut the panel's presumption regarding the death certificate. This is an issue of natural justice which requires a correctness standard of review. ANALYSIS OF THE MERITS OF THE [21] As outlined above, the RAD focused on two issues in assessing the appeal: a) Did the RPD err in law and in mixed law and fact in its finding that the birth and death certificates and other evidence provided in support of the allegations were fraudulent? and b) Did the RPD err in fact by failing to address the Appellant's HIV status as it relates to a well-founded fear of persecution or harm by her husband or by the public at large, should she return to Nigeria? ANALYSIS Treatment of Birth and Death Certificates [22] Counsel argued that the RPD erred in law when it wrongfully adduced the competence of an expert witness to itself beyond its own expertise with respect to the birth and death certificates provided by the Appellant. Counsel argued that fairness demands that the Appellant be given an opportunity to provide a comparison document by calling an expert witness to rebut the panel's presumption. Counsel argued that this opportunity was not provided to the Appellant. In paragraph 7 of the RPD's Reasons and Decision, the RPD noted that it was not a handwriting expert; however, the RPD did not believe that the handwriting expert is required to identify that the two documents were written by the same hand, especially without a reasonable explanation as to why the two documents appear to be written by the same person. [23] The RAD considered counsel's argument that the Appellant was denied fairness in the proceedings by not being given an opportunity to call an expert witness. The RAD reviewed the recordings of the hearing and noted that at no time did counsel suggest that the services of an expert handwriting analyst would be required. Counsel also did not raise any objection or concerns to the RPD's questioning and observations regarding the handwriting on the birth and death certificates during the hearing, between the two sittings, or after the hearing before the decision was rendered. The RAD finds that counsel did not take the appropriate opportunities to raise the issue of procedural fairness regarding the handwriting on the birth and death certificates during the hearing. In addition the RAD noted that there is no general requirement for the RPD to submit an identity or other document for forensic testing to support its finding in respect of handwriting.14 As such, the RAD finds that the RPD did not err in failing to arrange for expert witness testimony regarding the certificates, as this did not result in a breach of procedural fairness. [24] The RAD considered counsel's argument that the RPD erred in law when it wrongfully adduced the competence of an expert witness beyond its own expertise with respect to the writing on the birth and death certificates. The RPD indicated, in paragraph 7 of its Reasons and Decision, that it was not a handwriting expert; however, the RPD believed that one does not need to be a handwriting expert in order to see that the birth and death certificates were written by the same hand, especially in the absence of a reasonable explanation for the similarities. The RPD did not claim any specialized knowledge. The RPD noted the similarities in the documents from an observation of the handwriting on their face. In the pleadings, counsel indicated that the writing of the word "island" in the birth certificate was different than the writing of the word island in the death certificate. Counsel also argued that the "XXXX" in the name XXXX was different in the two certificates, as well as the writing of the letter "XXXX XXXX XXXX XXXX XXXX XXXX. [25] The RAD notes that, in addition to the fact that the RPD does not require expert evidence to support its finding in respect of handwriting as cited above, a document may be assigned little or no weight without expert verification where there is sufficient evidence to cast doubt on its authenticity because of an irregularity on its face or the questionable circumstances in which it was obtained.15 At the hearings, the RPD identified concerns with the birth and death certificates on their faces and asked the Appellant for an explanation for these concerns. The RAD considered counsel's argument in the pleadings regarding the differences in the handwriting on the two documents. Upon review of both the birth and death certificates, the RAD concurs with the RPD that the documents appear on their face to be written by the same person. The minor differences highlighted by counsel are outweighed by the similarities in the handwriting. For example, there is a looping between the "A" and the "G" in the word "LAGOS"; similarly, there is looping between the "H" and the "A" and the "A" and "L" in the word "HALL". [26] When the Appellant was first questioned by the RPD, the Appellant was unable to provide an explanation for these similarities other than indicating that it was a coincidence. After a break in the proceedings and upon questioning by her counsel, the Appellant provided a different explanation as to why the handwriting appeared to be the same. The RAD finds that it was reasonable for the RPD to reject the second explanation and to assign a negative inference to the Appellant's credibility as a witness given that her explanation that she felt more comfortable answering questions posed by her counsel is found not to be reasonable. For these reasons, the RAD finds that the RPD did not err in finding that the birth and death certificates appeared to be written in the same handwriting, as it was reasonable for the RPD to conclude so given the evidence before it and the jurisprudence cited above. [27] In addition to concerns on the face of documents, the RPD addressed concerns with the content and issuance of the death certificate. The RPD noted that the death certificate did not include the cause of death and, in fact, it did not include a space to record the cause of death. The RPD noted that while death certificates may vary in their content depending on the issuer, an official with the National Population Commission stated that death certificates would all generally include the name of the deceased and the date and cause of death if known.16 The Appellant was unable to explain why the cause of death was not included on the death certificate. Given the inconsistency between the documentary evidence and the death certificate provided related to the cause of death, the RAD finds that the RPD did not err in drawing a negative inference from the absence of a cause of death or a space to record the cause of death on the certificate. [28] In the pleadings, counsel indicated that the RPD erred in its reading of the evidence regarding the issuance of death certificates by the National Population Commission. Counsel argued that since the family was Muslim, burial of the Appellant's daughter must take place immediately, and therefore the baby's body was not taken to the mortuary. The RAD noted that the Appellant's daughter was allegedly killed on XXXX XXXX, 2013. The Appellant's BoC narrative indicated that her daughter was buried the day after she was killed. As such, the RAD finds that counsel's argument that the child was buried the same day as she was allegedly killed did not conform to the Appellant's own narrative. Therefore, the RAD finds that the RPD did not err in its reading or treatment of the evidence. Furthermore, the RAD notes that nowhere on the record was there mention of adherence to Muslim burial practices as an explanation for why the death certificate for the Appellant's child was not issued by a hospital or physician. [29] The RAD carefully considered the content of the two Responses to Information Requests (RIRs) on the record regarding death certificates. The documentary evidence indicates that if a death was determined at a hospital or other medical facility, a doctor would issue a death certificate on behalf of the hospital.17 The Appellant indicated in her BoC narrative that her daughter was taken to the hospital and declared dead by a doctor. Given that the RPD based its finding regarding the death certificate on the documentary evidence before it, as well as on the Appellant's oral testimony regarding the fact that her daughter was taken to a hospital and pronounced dead by a physician, the RAD finds that it was reasonable for the RPD to question the authenticity of a death certificate issued by the National Population Commission, as it did not conform to the documentary evidence regarding the issuance of a death certificate for people who are pronounced dead by a doctor or who are pronounced dead at the hospital, and the Appellant's oral testimony. Furthermore, the RAD finds that the RPD's reading of the evidence was not misconstrued, as counsel argued in the pleadings. [30] The RAD also finds that the RPD considered the content of another RIR which indicated that: "sometimes when someone dies in a suspicious circumstance, it is the subject of a police investigation if the deceased family refuses an autopsy examination, the hospital authority, on the instruction of police, may not issue a death certificate".18 The Appellant alleges that her daughter was murdered and that police were investigating the death. Given the contents of the RIR, the RAD finds that the RPD did not err in assigning a negative inference to the issuance of a death certificate while a police investigation was underway, as this influence was reasonably open to it based on the documentary evidence and considering the totality of the evidence. [31] The RAD considered the Appellant's testimony and explanation as to how the death certificate was obtained. The Appellant testified that the death certificate was obtained by her husband, and she did not know the details of how he obtained the document. During her testimony regarding the issuance of her driver's license, the Appellant testified that she was not required to provide identity documents in support of her identity given that she was accompanied to the issuing office by her husband who was an XXXX XXXX in Lagos. It is clear from this testimony that the Appellant's husband had the political influence and personal profile to obtain documents from government sources without providing the required supporting documentation. [32] The RAD also noted that the documentary evidence is clear that forged and fraudulently obtained official documents are widely available in Nigeria as a result of widespread corruption. The United Kingdom Home Office report indicates that it is relatively easy to get genuine documents with partially or completely wrong information as long as one is willing to pay. In addition, there is a well-developed industry specializing in altering data in documents already issued. Weakness in Nigeria's public administration also results in weak quality control of documents being issued even when there is no corruption involved. Genuine official documents such as birth, marriage, divorce, and death certificates, ID cards, driver's licenses and passports can be obtained from officials by bribery.19 [33] In summary, the RAD noted that the RPD did not solely reject the birth and death certificates based on the concerns with the handwriting. The RPD considered the documentary evidence as well as the Appellant's testimony regarding how the death certificate was issued and obtained. The RPD found that the death certificate did not conform to the specifications regarding the format and issuance procedure of death certificates in the documentary evidence. Fraudulent documents are widely available in Nigeria and are used for emigration purposes. The Appellant testified to obtaining a document (driver's license) from an official source without appropriate identification through the influence and political profile of her husband. [34] Given that the Appellant testified that the death certificate was obtained by her husband and she did not know how it was obtained, given the history of the Appellant obtaining a document without proper identification based on the influence of her husband, given her husband's influence, given the concerns with the death certificate (issuance by the National Population Commission and omission of the cause of death) and given the striking similarity in the handwriting of both the birth and death certificates, the RAD finds that the RPD did not err in finding that the birth and death certificates were not genuine documents. [35] The RPD carefully considered all of the evidence before it and provided clear and justifiable reasons for its finding. This finding is also supported by the documentary evidence on forged documentation in Nigeria as well as by the Appellant's own testimony regarding the issuance of her driver's license. For these reasons, the RAD finds that the RPD did not err in its treatment of the birth and death certificates provided in support of the allegations. [36] Finally, given that the birth and death certificates were the only government-issued documents which attested to the existence and death of the Appellant's daughter, given that these documents were found to be fraudulent, the RAD finds that the RPD did not err in its finding that the allegations relating to the Appellant's daughter lacked credibility. Credibility as a Witness [37] The RPD went on to assess the credibility of the Appellant as a witness. The RPD considered the Appellant's oral testimony regarding the issuance of her identity documents; the allegation of how the Appellant met the smuggler who assisted her to come to Canada; the details of how and with whom she crossed into Canada; and the location of her passport at the time of the first sitting. The RPD asked the Appellant to provide explanations for concerns that the RPD identified with these aspects of the Appellant's testimony. The RPD based its negative credibility finding regarding the Appellant's overall credibility as a witness based on unreasonable explanations. In addition, the RPD found that the Appellant's credibility as a witness was further undermined by the change in the Appellant's responses to questions after the morning recess. When asked to explain why her responses changed significantly, the Appellant testified that she felt more comfortable answering the questions of her counsel than answering the RPD's questions. The refugee hearing process is naturally stress inducing and uncomfortable for claimants; however, a claimant's comfort level cannot be used as an explanation for inconsistent testimony, without psychological or medical evidence to support a problem with testifying. In the matter before it, the RPD was not provided with evidence that the Appellant was suffering from a psychological or medical condition that would impair her ability to testify at the hearing. The RPD noted that the Appellant was confident in answering the RPD's questions and did not appear to be nervous or uncomfortable at the hearing. Furthermore, the RPD found it unreasonable that the Appellant's level of comfort could cause the Appellant to change her responses to simple questions. The RAD found that it was reasonable for the RPD to find that the Appellant was not a reliable witness based on her inability to provide consistent and clear responses to questions posed of her. The RPD's findings were clear and were based on the Appellant's inability to provide reasonable explanations for concerns with her testimony. Weight to Remaining Documents, Including the Affidavits [38] The RPD reasonably found that the birth and death certificates were fraudulent documents. The RAD finds that the RPD reasonably found that the Appellant has presented herself as an individual who was willing to submit inauthentic documents to support the key issue and basis of her claim. The RPD also reasonably found that the Appellant was not credible as a witness. The RAD finds that the RPD provided clear and justifiable reasons for finding that the Appellant had a history of providing non-genuine documents in support of her claim, and she was not a credible witness overall based on the record and the discussion above. In addition, as outlined above, the documentary evidence indicates that fraudulent documents are widely available throughout Nigeria, and the record demonstrates that the Appellant had a history of obtaining a driver's license based on her husband's influence rather than based on the regular issuance procedures. Given the totality of the evidence before the RPD, the RAD finds that it was reasonably open to the RPD not to provide weight to the remaining supporting documents in support of the material elements of the claim. [39] The RAD considered the two affidavits20 provided by the Appellant in support of her allegations. The record does not indicate how the affidavits from Mr. XXXX and Mr. XXXX were obtained, and why they were obtained the same day, through the same Commissioner of Oaths. The RAD noted that Mr. XXXX does not provide details of how he became aware of the facts that he attests to in the affidavit. For example, Mr. XXXX indicates that he knew that the Appellant was depressed and was pregnant before she left Nigeria; however, he does not indicate how he knows these facts. In addition, Mr. XXXX cannot provide a specific date for when in XXXX2013 the Appellant was attacked, despite his statement that he went to the hospital with the Appellant's husband and that he continues to visit the police to find out about the investigation. [40] The RAD notes that there are details in the affidavit of Mr. XXXX that do not reflect the allegations in the Appellant's BoC narrative. The affidavit provides great detail regarding the alleged shooting incident; however, the accident does not indicate that the Appellant drove into a ditch and was dragged out of the vehicle as was included in the BoC narrative. The RAD also notes that the Appellant did not identify Mr. XXXX in her BoC, despite his apparent involvement in the alleged incident and its aftermath. [41] Given the concerns with the affidavits, given that the RPD had reasonably found that the Appellant had submitted fraudulent birth and death certificates, given the country conditions regarding the availability of fraudulent documents in Nigeria, given that the Appellant was reasonably found not to be credible, and given that the Appellant had obtained a government-issued driver's license through the influence of her husband without identification, the RAD finds that it was reasonably open to the RPD to find that it could not place weight on the documents provided by the Appellant. Treatment of HIV Status [42] Counsel argued that the RPD erred in not assessing the Appellant's fear of discrimination or persecution in Nigeria because of her HIV status. The RPD's decision did not address the Appellant's HIV status. [43] At the first sitting, the Appellant disclosed a letter from Dr. XXXX XXXX dated XXXX XXXX, 2013. The letter confirmed that the Appellant was HIV-positive. At that time, the Appellant's counsel indicated that the Appellant had just discovered her HIV status and that there was a situation between the Appellant and her husband which could cause a problem. The RPD noted on the record that the Appellant's BoC narrative did not include any reference to the Appellant's HIV status, and the RPD then indicated that it would add the issue of the Appellant's HIV status to the list of issues and that council would be asked for submissions regarding this issue. [44] It is the Appellant's responsibility to adduce evidence in support of all aspects of her claim. The RAD reviewed the recordings of both sittings and finds that the Appellant referred to her HIV status in a cursory manner. In fact, the RAD noted that, during the two sittings, the Appellant mentioned that she and her husband were having problems because of her HIV status on one occasion. The Appellant did not provide any further details regarding this allegation beyond a brief mention. During questioning by the RPD on what she feared upon return to Nigeria, the Appellant indicated that she feared for her safety because of the death threats. She only briefly indicated that she was in fear because of her HIV status. She indicated that she had stopped talking to her husband because of a problem related to her HIV status; however, she did not provide any additional testimony or evidence to support this allegation, or any other fear of discrimination in Nigeria based on her HIV status. For example the Appellant did not make any BoC amendments or additions commenting on any fears based on her HIV status between her first and second sittings. [45] When questioned by the RPD as to her fears upon returning to Nigeria, including her fears in the internal flight alternative of Abuja, the Appellant did not highlight her HIV status giving rise to a discrimination or persecution by society at large as a basis of her fear to return to Nigeria. The Appellant did not argue that she would be denied a core human right such as health care, housing, employment as a woman with HIV in Nigeria. [46] Counsel and the claimant did not adduce any additional testimony at the hearing regarding the Appellant's fear of persecution or harm at the hands of her husband because of her HIV status, or a fear of society at large. In fact, counsel did not ask any follow-up questions regarding the Appellant's HIV status or her fear of persecution or harm in Nigeria because of her HIV status when given the opportunity to redirect. [47] In her submissions, counsel made a brief reference to the fact that the Appellant was having a conflict with her husband in respect to her HIV status and that the Appellant would be treated as her husband's property upon her return to Nigeria and would be forced to continue the relationship against her will, which would hinder her health and put her life in danger. The RAD noted that the submissions by counsel were based solely on the one brief statement by the Appellant that she was having marital problems. In addition, the RAD noted that counsel did not cite any documentary evidence from the Nigerian National Documentation Package which could support the Appellant's well-founded fear of persecution or harm based on her HIV status, especially as it related to the risk that the Appellant would face based on her particular situation and profile in Nigeria. [48] The RAD also noted that the letter by Dr. XXXX does not make reference to the Appellant's marital problems or fear of her partner in Nigeria. The letter identifies that Dr. XXXX has a concern that the Appellant: "unknowingly contracted the virus from a partner whom, if cognizant of his HIV status, knowingly assaulted her". The RAD noted that no evidence was presented by the Appellant at the hearings to support the doctor's claim that the Appellant unknowingly contracted HIV from her partner. The doctor's letter does not include any reference to evidence which supports the statement that the Appellant unknowingly contracted the virus from her partner. Given the lack of evidence to support this assertion, the RAD finds that it cannot place significant weight on this statement by Dr. XXXX, as it is based on his own speculation. [49] Secondly, Dr. XXXX indicated that the availability of antiretroviral therapy in Nigeria is extremely unreliable as well as diagnostic screening and monitoring tests. Dr. XXXX does not provide any evidentiary basis for this statement. In addition, in his assessment statement that therapy would not be reliable, Dr. XXXX does not take into consideration the personal profile and resources available to the Appellant, as the wife of an XXXX XXXX in the largest city in Nigeria. As such, the letter cannot be provided significant weight in support of Dr. XXXX argument. [50] Based on a review of all of the evidence before it, the RAD finds that the Appellant and counsel have failed to demonstrate that the RPD erred in failing to address the Appellant's HIV status in the Reasons and Decision. The Appellant and her counsel had the opportunity to provide evidence to support a well-founded fear of persecution in Nigeria, based on the Appellant's HIV status. A review of the record reveals that they paid lip service to this as the basis of the claim and only raised the Appellant's HIV status as a ground for appeal. The RAD finds that the RPD was not provided with sufficient credible or trustworthy evidence to support a well-founded fear of persecution for the Appellant based on her HIV status. [51] Given that the Appellant did not make more than a passing reference to her HIV status and problems in her relationship and focused almost exclusively on her fear of those who oppose her husband, given that the Appellant did not explicitly indicate that she feared her husband upon return to Nigeria, given the lack of evidence produced to support a well-founded fear of persecution or harm by society in general in Nigeria, and given that the onus is on a claimant to establish that he or she has a well-founded fear of persecution or a fear of harm upon return, the RAD finds that the RPD did not err in not assessing the Appellant's fears related to her HIV status in deciding the claim. It was reasonable for the RPD not to identify and comment on the Appellant's HIV status in its Reasons and Decision, as this issue was not identified by counsel or the Appellant as determinative and the RPD was not provided with sufficient evidence by the Appellant and her counsel to support this basis of the claim. SUMMARY AND DETERMINATION [52] Based on the totality of the evidence before it, the RAD finds that the RPD's findings that the Appellant and her allegations were not credible were reasonable. The RAD also finds that the RPD did not err in its treatment of the birth and death certificates, and in failing to address the issue of the Appellant's HIV status. As such, based on section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee, nor is she a person in need of protection. [53] The RAD dismisses the appeal. (signed) "Daniel McSweeney" Daniel McSweeney May 7, 2014 Date 1 Appellant's Record, Letter and visit schedule from XXXX XXXX, Sick Kids Hospital dated XXXX XXXX, 2014, pp. 42 a - c. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 IRPA, s. 110 (1). 6 IRPA, s. 107. 7 IRPA, s. 170. 8 IRPA, s. 110(3). 9 IRPA, s. 110(4). 10 RAD Rule 57. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 14 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. 15 Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no. IMM-3623-96), Cullen, May 26, 1997; Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002; 2002 FCT 451. 16 RPD's Record, Exhibit 2, National Documentation Package (NDP) for Nigeria (3 May 2013), Item 3.6, RIR NGA103172.E, 2 September 2009. 17 RPD's Record, Exhibit 2, NDP for Nigeria (3 May 2013), Item 3.6, RIR NGA103172.E, 2 September 2009. 18 RPD's Record, Exhibit 2, NDP for Nigeria (3 May 2013), Item 3.8, RIR NGA103704.E, 7 March 2011. 19 RPD's Record, UK Home Office Report, Section 32. 20 RPD's Record, Affidavit of Ofmonsuru Ogboye, pp. 91-92, and Affidavit of Muritala Alade, pp. 78-79. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01289