TB4-11707

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 : TB4-11707 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 11, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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 N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee or a person in need of protection or, in the alternative, refer her claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that she faces persecution in Nigeria based on her imputed political opinion. The Appellant alleged before the RPD that, after living in the USA without status for approximately XXXX years, she decided to return to Nigeria. [4] Upon her return to Nigeria, she experienced difficultly obtaining a stable job. She eventually moved to XXXXand found work as a XXXXin a small XXXX XXXX. While working with the XXXX XXXX, she met a man with political connections. This man liked her XXXXand offered to assist her to start her own business. She was introduced to a member of the governing political party in Nigeria who hired the Appellant to XXXXsome of their meetings and events. [5] On XXXX XXXX, 2013, she XXXX XXXX XXXXan event when she was approached by a well-known politician, XXXX XXXX XXXX, and was asked to put an unknown powder into the food of another politician at the event. XXXX XXXXtold her that the other politician was a traitor to the party. [6] The Appellant refused to put the powder into the food believing it was poison. She fled the event when a fight erupted between those attending the events. The Appellant was eventually tracked down by XXXX XXXX and his men. She was taken to a warehouse where she was held and beaten for several days. She was eventually taken to a rural village where she was again held against her will. She learned that she was going to be soon killed and that her body parts were going to be harvested for money rituals. The Appellant was able to bribe a woman from the village to help her escape. She was able to flee to the home of a friend in Lagos and moved frequently to avoid detection. She was able to eventually leave Nigeria and traveled to Canada. [7] The Appellant's application for refugee protection was originally heard over two sittings on May 14, 2013 and May 28, 2013. In a decision of June 19, 2013, the RPD rejected the claim finding the Appellant was not credible. The matter was appealed to the RAD. In a decision of the RAD on November 4, 2013, the RAD allowed the appeal and referred the matter to the RPD for redetermination by a differently-constituted panel. [8] A De Novo hearing of the Appellant's claim was heard on October 27, 2014. In a decision of November 7, 2014, the RPD rejected the Appellant's claim, finding that the Appellant was not credible. [9] The Appellant submits that the RPD erred in its credibility findings by mischaracterizing, misstating and ignoring relevant evidence. The Appellant further submits that the RPD's findings were largely peripheral in nature. In addition, the Appellant submits that the RPD failed to take the Chairpersons' Gender Guidelines1 into consideration when assessing the claim and failed to conduct a section 97 analysis. ROLE OF THE RAD [10] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,2 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". [11] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,3 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [12] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [13] The RPD found that the determinative issue in this claim was credibility. The RPD further found that she was not a credible witness and had not established the central elements of her claim. CREDIBILITY The RPD Misstated, Misunderstood and Mischaracterized the Evidence [14] Although the Appellant alleges that the RPD misstated, misunderstood, and mischaracterized the evidence, she failed to support her argument by identifying where in the reasons the RPD made these errors. Furthermore, the Appellant did not provide a persuasive argument to establish that the RPD had made errors in this regard. The RAD's review of the evidence in the record does not reveal any such error. Accordingly, in this regard, the Appellant's argument fails. The RPD Relied on Peripheral matters to Arrive at a Negative Credibility Finding [15] The Appellant submits that the RPD drew adverse credibility findings based on the implausibility of the Appellant decision not to pursue XXXX XXXX XXXX XXXX in Nigeria rather than to work in a field in which she had no experience. The Appellant further submits that the RPD erred in its finding that it was "suspect" that she would start her own XXXX business after only one month of employment in that business. The Appellant submits that the RPD. The Appellant argues that RPD has not provided ample reasons why the Appellant's actions in this regard are suspicious or unbelievable. In any event, the Appellant argues these findings are peripheral in nature. [16] The RAD is not persuaded by the Appellant's argument in this regard. While the RAD finds that the RPD's reasons in this regard are not its strongest finding, it is important to recognize that these findings are relevant to the RPD's overall finding with regard to the lack of persuasive evidence to support the Appellant's allegations that she returned to Nigeria and became known to the agent of persecution through her XXXX business. The RAD notes that the RPD found that the Appellant had not provided sufficient persuasive corroborative evidence that she worked as a XXXX in Nigeria. Although the Appellant did tender affidavits from her aunt and friend in XXXX attesting to the Appellant having worked at an XXXX and having attended XXXXjobs with political persons, the RPD found that the information contained in the affidavits-as it relates to the XXXX events and poisoning attempt-was relayed to the affiants by the Appellant herself. Accordingly, the affidavits do not provide independent evidence of her involvement in the XXXX business or with the agent of persecution. [17] The RPD also noted that the Appellant could have provided evidence of her employment as a XXXX, but the RPD found that the Appellant did not make a reasonable effort to obtain documentation that was reasonably available to her in order to help establish her claim. Although the Appellant provided an explanation for not tendering such documents, the RPD rejected the explanation and provided sound reasons for doing so. [18] Given the credibility concerns and the lack of independent corroborative evidence to corroborate that the Appellant had worked as a XXXX or had established her own XXXX business, the RAD finds that it was open to the RPD to draw a negative inference as it relates to the Appellant's allegations. The RPD Impugns the Appellant's Credibility Utilizing Rejected Documentary Evidence [19] The Appellant submits that the RPD drew an adverse credibility finding with regard to the Appellant's allegation that she returned to Nigeria from the US. The Appellant argues that, in doing so, the RPD essentially nullified her entire claim and all of the supporting documentary evidence. The Appellant argues that some of the rejected documentary evidence was used to arrive at adverse credibility findings, and, as such, the RPD "essentially reprobated and approbated documentary evidence simultaneously". [20] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant has not identified which credibility findings of the RPD were affected by this alleged error or which documents were involved. Furthermore, the RAD review of the evidence does not support the Appellant's argument. The RAD finds that the RPD's adverse credibility findings were relative to the weight it afforded the documents. As such, the Appellant has not made out her argument. The RAD finds that, based on the findings of the RPD, it was open to the RPD to make an adverse credibility finding regarding the Appellant's allegation that she returned to Nigeria from the United States (US). Accordingly, the Appellant's argument must fail. The RPD Ignored Vital Evidence [21] Ability to Access and Use Fraudulent Documents - The Appellant submits that the RPD ignored relevant evidence in the record. The Appellant submits that the RPD made an adverse credibility finding from the Appellant's contravention of US immigration laws. The RPD noted the Appellant lived in the US illegally under different aliases for nearly XXXX years and that she obtained fraudulent documents to enable her to attend school, work and marry. The Appellant seems to specifically take issue with the following finding of the RPD: The claimant's credibility is further impugned given her ability to access and use fraudulent documents to support this alias such as attending school and working.4 [22] The Appellant argues that the RPD erred when it arrived at this finding at the commencement of its analysis of the claim and in the absence of considering supporting documentary evidence. [23] The RAD is not persuaded by the Appellant's argument in this regard. The RPD did not ignore relevant evidence, but rather the RPD made its findings based on the evidence of the Appellant. The RAD finds that, given the Appellant's long-term and concerted efforts to break the law in order to facilitate her illegal stay in the US, it was open to the RAD to find that her general credibility was undermined. Furthermore, the RAD also finds that the Appellant's ability to access and willingness to use fraudulent documents also undermines her credibility. The RAD finds that the RPD's findings in this regard did not require the RPD to consider the corroborating documents. Regardless, the RAD finds that the RPD's findings were made based on facts admitted by the Appellant. The Appellant has not demonstrated in its argument how any of the Appellant's corroborating documents undermine the RPD's credibility findings in this regard. [24] The RAD finds that the RPD's adverse credibility findings in this regard are without error and that deference is warranted. [25] Affidavits from Family Members - The Appellant argues that the RPD's decision to give no weight to the supporting documents received from the family of the Appellant is without merit. The Appellants argue that the RPD rejected these documents without independently assessing them. The Appellant further submits that the affidavit of XXXX XXXX, the Appellant's sister, was particularly important and ought to have been given weight because she provided a first-hand account of the allegations. [26] The RAD finds that, with regard to the above-noted finding of the RPD, the Appellant's argument does have some merit. The RPD seems to imply that affidavits that they provided to corroborate the Appellant's claim are somehow tainted by the knowledge that the Appellant had been living illegally in the US. [27] The RAD finds that the RPD's reasons do not adequately justify its decision to afford no weight to these documents. Nonetheless, the RAD finds that there are sufficient reasons why these affidavits should not be afforded weight by the RAD. First, the RAD notes that the RPD has found the general credibility of the Appellant has been undermined by her deliberate, long-term and sophisticated breach of immigration law in the US; secondly, the Appellant has demonstrated an ability to acquire and a willingness to use fraudulent documents to circumvent immigration law in the US and to travel to Canada illegally; thirdly, the documentary evidence reveals that access to fraudulent documents from Nigeria is widely available; fourthly, the affidavits were not accompanied by any identification documents or copies of documents that could establish the existence of the affiant, or relationship to the Appellant; and finally, given the totality of the sustained credibility findings of the RPD, in particular that the Appellant did not return to Nigeria and is not being pursued by anyone in Nigeria, the credibility of the Appellant's corroborating documents is undermined. [28] The RAD finds that, based upon these findings and in light of the evidence in the record and the totality of the adverse credibility findings of the RPD, the RAD can give little weight to these documents. [29] The Appellant further submits that the RPD's decision to given little weight to the police report was in error. The Appellant argues that the RPD relied on evidence found in the National Documentation Package (NDP) for Nigeria which details the exact format and appearance of a police report. However, the Appellant argues that the RPD ignored the same NDP which states that, while police reports among larger police stations are consistent, reports from smaller police stations may differ in appearance. [30] Furthermore, the Appellant submits that the RPD impugned her credibility based on her inability to explain why the two letterheads from the police station were different. The Appellant argues that the RPD ought to have accepted her explanation that she did not know why the letterheads were different. [31] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the Appellant's argument does not undermine the RPD's finding that reports allegedly from the same source ought to have the same letterhead. Furthermore, the RAD notes that the RPD's decision to place little weight on the police report is based on far more than the different letterheads. The RPD wrote in its reasons: At the hearing, the claimant was questioned on the police reports that she had provided to corroborate her allegations, as well as the other interactions she had had with the Nigerian Police. According to the claimant's narrative, she and her sister had gone to the police at XXXXin XXXXon XXXX XXXX, 2012, to denounce the XXXXand report that her life was in danger. The claimant stated that the police officer had written her report down on a piece of loose leaf paper. When asked if she had reported everything, the claimant replied yes. When asked if she had reported the attempted poisoning of XXXX XXXX, the claimant replied no. When asked why she would not include such a key detail, the claimant replied that her life was in danger and that she did not trust anyone as the XXXXwas looking to kill her. The panel was not presented with a copy of this police report and does not find it plausible or reasonable that the claimant would go to a police station out of fear for her life from a well-known political figure in Nigeria such as XXXX XXXX XXXX, yet make no mention of the cause of her being in danger or the fact that he had tried to kill another political figure. The panel does not believe that the claimant approached the police in Nigeria to report the XXXX. The claimant was questioned on the two police reports that she had provided as part of her documentary evidence.5 The first being an original report dated XXXX XXXX, 2013, as it relates to the claimant's aunt attending the station to report the claimant's passport being stolen by thugs that attended the home on XXXX XXXX, 2013. As was noted from the first hearing there was some concern on the timing of the report and confusion between the date of the entry and the fact that the police had stamped it XXXX XXXX, 2013. "19-03-15' [sic]". The second report provided at the hearing was a photocopied or scanned copy dated XXXX XXXX XXXX/2013 which the claimant testified was from the same police station where her aunt had gone to obtain it and where the first report was filed. According to the second report, the issuing officer wrote that the confusion regarding the dates was a result of an error on the stamp by the issuing officer. The claimant could not recall or explain how this report had gotten to Canada, whether it was emailed or faxed as there was no original presented. The claimant was also asked why the same police station in Nigeria would not have the same letterhead on its own reports as the format between the two is clearly different. Specifically that the coat of arms is in different spots, the dates, station name and columns are also different between the two. The claimant when asked could offer no explanation on the difference as she had not been the one who obtained them. According to the documentary evidence found in the National Documentation Package for Nigeria as it relates to police reports;6 the report provides that a typical police report would include the police logo (which the reports have), the telegraphic address on the left side (neither have), the issuing unit's address (neither have) or a reference or file number (neither have). The documentary evidence cites widespread document fraud in Nigeria. According to the report "half of all detections of false-document users [attempting to enter the EU] were of nationals from just five countries - Ukraine, Albania, Morocco, Iran and Nigeria."7 Furthermore, the documentary evidence8 as it relates to Nigeria notes that "corruption is endemic in Nigeria and the use of forged documents is widespread. Any printed official document can be forged. Genuine official documents such as birth, marriage, divorce, and death certificates, ID cards, driving licences and passports can be obtained... Furthermore, information contained in genuine official documents is often false, inaccurate or cannot be relied upon." Given the information above and inconsistencies noted on the two police reports which were allegedly provided by the same police station, the panel gives these reports little weight. Given the above and the claimant's own propensity for accessing and using fraudulent documents, the panel draws a negative inference as it relates to the allegations.9 [32] The RAD finds that the RPD's reasons for not placing any weight on the police report are compelling and convincing. Accordingly, the Appellant's argument in this regard fails. [33] After its own assessment of the evidence, the RAD agrees with the RPD's finding that, based on the evidence in the record, the Appellant did not return to Nigeria as she has alleged and that she was not asked to poison someone by a member of the ruling party in Nigeria and, further, that she is not being pursued by anyone in Nigeria for any reason. The RPD Failed to Properly Consider the Gender Guidelines [34] The Appellant submits that the RPD did not properly consider the Gender Guidelines10 in assessing her claim. She argues that the RPD ought to have given greater weight to the psychological report of Dr. XXXX and the letter of support from the XXXX XXXX XXXX. The Appellant argues that the RPD was not sensitive to the risk and abuse endured by her when analyzing the credulity of her claim and the risk she faces in Nigeria after defying a political figure. [35] The RPD is not persuaded by the Appellant's argument in this regard. The RAD finds that the Appellant has not established that her claim is a gender-based claim. She alleges that she is at risk due to impugned political opinion and has not alleged that her risk is greater because of her gender. [36] The RAD finds that the RPD gave appropriate consideration to both the psychological report of Dr. XXXX and the letter of support from the XXXX XXXX XXXX. Accordingly, the Appellant's argument must fail. Failure to Conduct a Section 97 Analysis [37] The Appellant submits that the RPD did not carry out a proper analysis of s. 97 of IRPA. The Appellant submits that the RPD erred when it failed to consider her particular risk in Nigeria. [38] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant argues that, regardless of the RPD's credibility concerns, there were still grounds to determine that she was deserving of protection under section 97 of IRPA. However, the Appellant fails to identify what those grounds are. [39] The Appellant seems to argue that, regardless of the credibility findings of the RPD, the Appellant's personal documentary evidence establishes that the Appellant is at risk. The RAD has found that the RPD fairly and appropriately assessed the probative value of the personal supporting documents. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. The RPD found that the Appellant did not return to Nigeria, and she is not being pursued by the agent of persecution as she has alleged. As such, there was no need for the RPD to assess the risk to the Appellant in Nigeria. CONCLUSION [40] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the transcript of the hearing, the RAD agrees with the RPD's finding that the Appellant has not established, on a balance of probabilities, that she is at risk in Nigeria for any reason. The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [41] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the decision of the RPD. [42] The appeal is rejected. (signed) "L. Favreau" L. Favreau March 11, 2015 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 4 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 8, para 16. 5 RPD's Record: Exhibit 1, at sub-exhibit 7, item C13; Ibid., at sub-exhibit 15, item C26. 6 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (March 14, 2014), item 10.3. 7 RPD's Record, Exhibit 3, NDP for Nigeria (March 14, 2014), item 3.19. 8 RPD's Record, Exhibit 3, NDP for Nigeria (March 14, 2014), item 2.2, at paras 31.02 to 31.04. 9 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, pp. 11-13. 10 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-11707