TC0-06760

RAD File / Dossier de la SAR : TC0-06760 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 8, 2021 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Kingsley I. Jesuorobo 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 OVERVIEW [1] XXXX XXXX (the Appellant) is a citizen of Nigeria. He appeals a decision of the Refugee Protection Division (RPD) dated February 7, 2020 rejecting his refugee claim. The Appellant alleges that he faces a serious possibility of persecution and a risk to life at the hands of criminals who attacked him. The RPD found that the Appellant had not credibly established his allegations and rejected his claim. [2] For the reasons that follow, I agree with the RPD and dismiss the appeal. BACKGROUND [3] The Appellant alleges that he worked as a XXXX at a XXXX in Benin City. He alleges that in XXXX 2017, he was attacked, wounded with a machete and pursued by armed criminals in Nigeria for XXXX XXXX XXXX XXXX XXXX XXXX without a police report. The Appellant alleges that after the attack, he began receiving threatening messages. The Appellant alleges that he relocated in Nigeria but was found by these men each time. The Appellant went to the United States (US) in XXXX 2018 and underwent treatment for his injuries and returned to Nigeria in XXXX 2018 after he says he ran out of funds. The Appellant alleges that after he returned, the threats resumed, and this caused him to flee back to the US in XXXX 2019. The Appellant alleges he did not advance a refugee claim in the US due to what he believed was a harsher asylum system and arrived in Canada on XXXX XXXX, 2019 to seek refugee protection. ROLE OF THE REFUGEE APPEAL DIVISION [4] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which in particular cases, attracts deference. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Appellant's arguments [5] The Appellant argues that the RPD erred in its credibility assessment and made unreasonable plausibility findings. The Appellant argues that the RPD unreasonably dismissed his supporting evidence and erred by requiring further corroborating evidence. He argues that he has credibly established his allegations and argues that his appeal should be granted. New evidence [6] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)2 sets out that an appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of subsection 110(4), the RAD will then go on to consider the factors affirmed by the Federal Court of Appeal in Singh.3 [7] The Appellant's affidavit that was submitted with his appeal referenced that he had requested that the original copy of the police report he provided to the RPD be sent to him. The Appellant indicated that he attempted to obtain this document before his RPD hearing but because of the timeframe he was unable to get the original before his hearing and instead presented a printout of a copy he obtained electronically. [8] On March 11, 2021 the RAD wrote to the Appellant to confirm whether this document was being provided for his appeal.4 The Appellant's counsel confirmed that he was seeking that the RAD consider this document and provided it, along with the DHL envelope used to send the document to the Appellant from Nigeria.5 [9] As these items were provided after the appeal was perfected, I have considered the factors set out in rule 29(4) of the Refugee Appeal Division Rules.6 In considering the relevance and probative value of this evidence, I find that the items are relevant to the allegation made by the Appellant that he was attacked by criminals. In considering what new evidence it brings to the appeal, I find that this is somewhat limited as the copy of the police report was already before the RPD but given that the RPD's assessment of the document was impacted by not having the original, the document does provide the original version of the report. In considering whether the Appellant could have provided these items with his appeal, I accept that he encountered difficulty in obtaining the original police report due to the restrictions related to the COVID-19 pandemic. I note that the DHL envelope indicates that the original police report was sent to the Appellant in XXXX 2020, which would have prevented him from providing the document with his appeal record. Therefore, I find that the factors in rule 29 of the Refugee Appeal Division Rules weigh in favour of admitting the items. [10] Considering the requirements of subsection 110(4) of the IRPA, for the reasons I have outlined, I find that these items were not available to the Appellant before his claim was rejected. In considering the factors in Singh, I find that the evidence is new, and relevant as it generally relates to the core of the Appellant's allegation regarding the attack in XXXX 2017. I do not have sufficient credibility concerns on the face of the items and therefore I will accept the original police report and accompanying DHL envelope as new evidence for the appeal. Oral hearing [11] The Appellant has not requested an oral hearing be held pursuant to subsection 110(6) of the IRPA. I find that despite allowing the new evidence to be entered with the appeal the conditions of subsection 110(6) have not been met. As such an oral hearing will not be held. The police report regarding the alleged attack in XXXX 2017 is not genuine and impugns the credibility of the Appellant's allegation that he was attacked [12] The RPD found that it was implausible that the Appellant's brother was able to get from his home in Ibadan to Benin City to report the Appellant's attack to police within a 3-hour window. The RPD noted that these two cities are 300 kilometres apart and therefore found that it was implausible that the Appellant's brother could have made that unplanned journey within the timeframe. The RPD also noted other discrepancies within the police report including the address of the Appellant's brother. Furthermore, the RPD drew a negative inference from the Appellant's inability to provide an original police report. [13] The Appellant argues that the RPD was incorrect in its evaluation of his police report. The Appellant argues that it is unclear how the RPD could conclude that someone would be unable to drive 300 kilometers within 3 hours and 15 minutes. The Appellant further argues that the RPD unreasonably dismissed his explanation for not having the original report and has subsequently provided the original for consideration with his appeal. [14] Having independently reviewed the record I agree with the RPD. First of all, I agree with the RPD that it is not plausible that the Appellant's brother was able to make the journey from Ibadan to Benin City in approximately 3 hours. As noted by the RPD, the Appellant testified that he was attacked at approximately XXXX p.m. on XXXX XXXX, 2017. The Appellant testified that his brother learned of his attack because somebody called him to let him know.7 The police report provided by the Appellant's brother indicates that he attended the police station in Benin City at XXXX XXXX XXXX p.m. While the Appellant argues that it is unclear how the RPD concluded that his brother would not be able to travel over 300 kilometres in approximately 3 hours, the Appellant himself does not produce any objective evidence of the time it would take to travel between these cities. [15] I agree with the RPD that it is highly unlikely that the Appellant's brother could have made such a journey in such a short period of time without warning and preplanning. I also note that the RPD asked the Appellant how his brother was able to travel and the Appellant testified that he did not know if he drove or took a flight. In the circumstances I find that this impugns the credibility of the Appellant's allegation that his brother attended the police station following his attack. [16] Furthermore, I agree with the RPD that the content of the police report calls its authenticity into question. As noted by the RPD, the police report indicates that the Appellant's brother lives with the Appellant in Benin City8 which contradicts the Appellant's testimony that his brother was living in Ibadan.9 Aside from this discrepancy, I also note that other details in the police report contradict the Appellant's evidence. Specifically, the police report indicates that the Appellant was attacked by hoodlums and they injured him by cutting his right hand with a machete.10 However, I note that the Appellant's other evidence, including photographs11 and medical evidence,12 indicates that he was injured on his upper right arm. While not determinative, I note that a closer reading of the evidence is not favourable to the Appellant. I find these inconsistencies further detract from the Appellant's credibility. [17] I also note that the original police report tendered by the Appellant contains some visual irregularities which detract from its authenticity. Specifically, I note that the seal or logo for the police in the header of this report appears pixelated and is cut-off at both the top and the bottom of the symbol. Furthermore, I note that the signature over the stamp on the original report and the signature over the stamp on the copy of the report in the RPD Record, which the Appellant purports are the same, do not match. A careful review of the signature and stamp indicates that while they are similar, this signature over the stamp is not the same and its placement is also not the same. Again, I note that this document purports to be the original version of the document submitted electronically before the RPD and therefore I would expect that the signature would be the same on both copies of the same document. Given the concerns with the document, both in terms of form and content, as well as the implausibility that the Appellant's brother could have made such a report, I find that the document is fraudulent and give it no weight. The newspaper article regarding the alleged incident is not credible [18] The RPD found that the newspaper article provided by the Appellant was not credible. The RPD noted that the newspaper article contained details which directly contradicted the Appellant's testimony. The RPD also noted that the article mentioned that the Appellant's whereabouts were unknown, however according to his testimony he was in XXXX recovering at the time the article was written. Given these inconsistencies, the RPD found that the article was fabricated. [19] The Appellant argues that the RPD's "reasoning and analysis of the newspaper is devoid of validity and rationality" and argues that there is no inconsistency in the contents of the newspaper report.13 The Appellant argues that the RPD seems to be saying that the newspaper is reporting events that postdate the date of its publication however he argues that this is unfounded and that the article simply reflected that he was being trailed following the attack. [20] I agree with the RPD and find that the newspaper article is fabricated. As noted by the RPD, the newspaper article contains information that is in direct contradiction with the Appellant's other evidence. The newspaper article indicates that the whereabouts of the Appellant were a mystery: "[t]he XXXX whereabout is unknown as he has not been seen again at the XXXX, a situation that seem to have dislocated the XXXX family and job."14 However, this newspaper article was published XXXX days after his attack while the Appellant was allegedly being treated at that XXXX XXXX XXXX XXXX XXXX and was attacked. Furthermore, the newspaper article indicates that the Appellant was transferred to the XXXX XXXX XXXX XXXX XXXX for further treatment after his surgery. Again, I note that this article was published XXXX days after the attack and the Appellant's evidence was that he remained at the XXXX XXXX XXXX where he worked for about a month following his attack.15 [21] I also agree with the RPD that this article, dated XXXX XXXX, 2017, speaks about the Appellant being threatened and trailed by gang members who were sending him anonymous text messages. However, while the Appellant was unsure of when he began receiving threats, the Appellant's evidence was that he was recovering at the XXXX for approximately XXXX XXXX after the attack, not that he was being trailed after going into hiding. Given the significant inconsistencies in this newspaper article and the prevalence of brown envelope journalism in Nigeria,16 I agree with the RPD and conclude that this newspaper article is fabricated, and I give it no weight in establishing the Appellant's allegations. The lack of corroborating evidence regarding the attack impugns the credibility of this allegation [22] The RPD noted that the Appellant's evidence was that he was attacked in a public XXXX with several individuals standing by. The RPD also noted that the Appellant was employed by the XXXX for three years before the incident and was working there at the time of his attack. Despite this, the Appellant testified that he was unable to obtain any documentation from the XXXX about what happened or provide affidavits or statements from witnesses to the attack. The RPD acknowledged that the Appellant's explanation was that he was moving around Nigeria and did not want to risk going back to the XXXX to get documents but found that this was not a satisfactory explanation as the Appellant could have contacted the XXXX in a variety of ways to obtain this evidence. The RPD also noted that the Appellant testified that his brother went to the XXXX to try to find the XXXX who witnessed the attack but was unsuccessful. The RPD found that given that almost three years had elapsed since the attack, this was not a credible explanation and concluded that the Appellant's lack of corroborating evidence impugned the credibility of his allegations. [23] The Appellant argues that he attempted to get this corroborating evidence, but his brother was unable to locate the XXXX. Furthermore, the Appellant argues that it was erroneous to require this type of documentation. [24] I agree with the RPD and find that the Appellant's lack of corroborating evidence further impugns the credibility of his allegation that he was attacked in XXXX 2017. As noted by the RPD, the Appellant's evidence was that he was attacked at his place of work in front of many witnesses. Despite this, the Appellant indicates that he was unable to obtain any source of corroboration. I find that in the circumstances it could have been reasonably expected that the Appellant would have made efforts to obtain such corroboration and such documents should have been readily available. I agree with the RPD that the Appellant could have made efforts to communicate with any of his former coworkers without personally attending the XXXX in the nearly three years between the attack and the date of his RPD hearing to try to get corroboration that the attack took place. As noted by the RPD, the Appellant did provide a letter allegedly from the XXXX where he worked and was attacked but that letter indicates that he was seen in the clinic on XXXX XXXX, 2017 with a history of a machete attack on his XXXX XXXX and then was discharged and seen on an outpatient basis.17 I note that the Appellant was able to obtain this letter from his XXXX, which was written in XXXX 2019, which suggests that he had a way of contacting at least one individual at the XXXX where he was allegedly attacked. I also note that this letter does not indicate that the Appellant was actually attacked at the XXXX or confirm that he worked there. I agree with the RPD that the Appellant's explanation that his brother attempted to contact one XXXX and was unsuccessful is not reasonable in the circumstances. In view of the Appellant's circumstances, I find that the lack of corroborating evidence further impugns the credibility of his allegation that he was attacked in XXXX 2017. The circumstances surrounding the issuance of the Appellant's passport further impugn the credibility of his allegations [25] The RPD found that the Appellant's credibility was impugned by the fact that his passport was issued in Abuja on XXXX XXXX XXXX 2017 when he was allegedly still recovering in the XXXX in Benin City. The RPD noted that the Appellant testified that he lost his passport and he only had to apply online to obtain a replacement. However, when the RPD noted that the objective evidence suggested that the Appellant would have to attend in person, the Appellant then confirmed he did have to attend the office in Abuja in person.18 The RPD noted that the Appellant testified that he could not remember when that occurred, but he believed it happened before the attack. [26] In its decision, the RPD referenced the objective evidence which indicates that the processing timeline for replacement passports is approximately 72 hours after the enrollment of biometric data and that the overall processing time after the receipt of an application would be 5 to 10 working days. Based on this information the RPD concluded that the Appellant's passport would have been issued long before XXXX XXXX XXXX 2017 if he had in fact appeared in person to have his biometric information captured before his attack. Therefore, the RPD found that this version of events that was presented by the Appellant contradicted the objective evidence and found that the Appellant likely was in Abuja during the period that he alleges he was in the XXXX recovering from his attack. After considering this, and other previously outlined credibility concerns, the RPD concluded that the machete attack did not take place on XXXX XXXX, 2017 as alleged by the Appellant. [27] The Appellant argues that the RPD's conclusion that it was not plausible that his passport was issued based on his timeline was microscopic. The Appellant argues that this conclusion was based on an expectation that officials in Nigeria comply with these stringent timelines and smacks of an unreasonable imposition of Western standards. The Appellant argues that the objective evidence on Nigeria shows that the bureaucracy is inefficient and unreliable and therefore argues that this implausibility finding is not supported by the record. [28] I agree with the RPD's conclusion and find that the Appellant's testimony regarding when he applied for his passport and when it was issued contradicts his evidence that he was in XXXX for approximately XXXX XXXX following the attack on XXXX XXXX XXXX 2017. I am not persuaded by the Appellant's arguments that the RPD improperly imported a Western standard in its analysis. The RPD relied on the objective evidence which sets out the timelines for obtaining a passport in Nigeria. While I acknowledge that the objective evidence also points out inefficiencies within the Nigerian bureaucracy, the Appellant has not pointed to anything which would suggest that the country specific objective evidence regarding the timeline and procedures for obtaining passports is incorrect or not followed by authorities. [29] The Appellant himself was unable to provide any compelling testimony about when he applied for his passport, indicating he could not remember precisely when he attended the office in Abuja. Furthermore, his testimony was evolving, first indicating that he only had to apply online and then confirming that he attended Abuja in person after being confronted with the information in the National Documentation Package (NDP) by the RPD. In the absence of anything suggesting that Nigerian authorities are not following the processing timelines and procedures set out in the NDP, I agree with the RPD and conclude that it is not plausible that the Appellant was issued this passport in mid XXXX 2017 after providing his application and biometric information before his alleged attack. I agree that if the Appellant attended the office in Abuja before he was attacked, the passport would have been issued significantly earlier. [30] I agree with the RPD and find that given the outlined inconsistencies, implausibilities and contradictions in the evidence the Appellant was not attacked on XXXX XXXX, 2017 as alleged. The Appellant's other supporting documents do not credibly establish his allegations [31] The RPD noted that the Appellant's medical evidence and documents generally supported that he had suffered a serious injury that had a profound impact on him. However, for the reasons I have outlined, the RPD found that the Appellant had failed to establish the cause of that injury or that he was attacked as he alleged. [32] The Appellant makes no arguments about this finding and does not point to any other corroborating evidence in the record in arguing that he has credibly established his allegations. [33] Despite the Appellant's lack of arguments regarding his other documents I have independently reviewed the record. I agree with the RPD and find that the medical evidence and photographs establish that the Appellant suffered a significant injury to his XXXX XXXX which impacted the use of his right hand but do not establish the cause or circumstances of the injury. [34] In considering the other evidence, I find that while the Appellant has provided a number of affidavits, none of the authors of these statements witnessed the attack. The Appellant has failed to provide any evidence from individuals who witnessed this alleged attack. After reviewing the contents of the affidavits, I find that they are insufficient to overcome the credibility concerns in the Appellant's evidence. The affidavit from the Appellant's brother relays his belief that his brother was attacked and sustained an injury on his XXXX XXXX. I note that the Appellant's brother does not attest to having any independent first-hand knowledge of the cause of the injury and that he describes the injury as being on the Appellant's XXXX as opposed to his XXXX as reflected in the medical evidence. [35] The affidavits from the Appellant's friends are similarly vague. While the affidavits set out disturbances, the affiants are unable to confirm who was behind them. Again, the affiants do not provide any independent verification regarding the alleged attack in XXXX 2017 or the identity of the agents of harm. Given the other significant concerns with the evidence, I find that these documents do not credibly establish the Appellant's allegations. CONCLUSION [36] I dismiss the appeal and pursuant to paragraph 111(1)(a) of the IRPA, confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) J. Lourenço J. Lourenço April 8, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 4 Exhibit RAD-1, Member's direction, March 11, 2021. 5 Exhibit P-3, Copies of response to Member's direction, including Appellant's original documents (police report and DHL envelope), originals received XXXX XXXX, 2021. 6 Refugee Appeal Division Rules, SOR 2012/257. 7 Transcript of January 31, 2020 RPD Hearing, at p. 16. 8 Exhibit RPD-1, RPD Record, Exhibit 8, at p. 277; a copy is also found at Exhibit P-3, Copies of response to Member's direction, received March 17, 2021. 9 Transcript of January 31, 2020 RPD Hearing, at p. 13. 10 Exhibit RPD-1, RPD Record, Exhibit 8, at p. 277; a copy is also found at Exhibit P-3, Copies of response to Member's direction, received March 17, 2021. 11 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 181-187. 12 Ibid., at pp. 145, 171. 13 Exhibit P-2, Appellant's Record, at p. 97. 14 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 127; a clearer copy is found at Exhibit P-4, Response to Member's direction, received March 30, 2021. 15 Transcript of January 31, 2020 RPD Hearing, at p. 12. 16 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (29 November 2019), item 11.5. This document is also found in the current NDP for Nigeria (30 November 2020) at item 11.5. 17 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 121. 18 Transcript of January 31, 2020 RPD Hearing, at p. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-06760 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français