TB4-08673

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 : TB4-08673 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 14, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister & 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 FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to admit the new evidence, allow an oral hearing of the appeal, and find the Appellant to be a Convention refugee or a person in need of protection, or in the alternative, refer the matter back to a differently constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that as a bisexual man, his life was in danger in Nigeria. The Appellant was caught in bed with a male lover by another couple who alerted passers-by. The passers-by, a crowd of ten people, viciously assaulted the Appellant and his lover resulting in the death of the lover. The Appellant managed to escape and later fled to Canada where he initiated his claim for refugee protection. Details of the claim may be found in the Basis of Claim (BOC) form.1 [4] The Appellant's application for refugee protection was heard on August 14, August 27, September 2 and September 10 of 2014. A negative decision was made and reasons issued on September 11, 2014, whereby the panel found that the Appellant had failed to properly establish his nationality as a Nigerian citizen and, in the alternative, that the Appellant's allegations were not credible. The Issues [5] The Appellant submits that: 1. The RPD erred in law in its analysis and conclusions in respect to the Appellant's identity documents; 2. The RPD's findings may have been made in a perverse and capricious manner therefore rendering them as reversible error; 3. The RPD erred when it failed to properly consider the doctor's report and; 4. The RPD erred in not conducting a thorough section 97 analysis of the claim. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. New evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.2 [8] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 [9] In Raza,4 the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. [10] The Appellant has submitted one document for consideration as "new evidence." This document is a written opinion by a XXXX XXXX XXXX of the Bars of Nigeria and of the Law Society of Upper Canada with respect to the alleged error of the panel in impugning the credibility of the Appellant based on the panel's speculative conclusion that it was not plausible for the Nigerian Court to allow the Affiants of the Appellant's corroborative Affidavits without informing the Courts or police. [11] The RAD has perused this document. It is a well written document voicing an opinion of one member of the Bar on one of the credibility issues in the hearings. It is dated October 6, 2014. It is reasonable that such a document being required would not have been foreseen by the Appellant so in that way, it can be seen as new. The RAD must consider not only whether the document is new, and the RAD finds that it is new evidence, but must also look at the document's relevance to the claim. As the document does speak to the form of swearing an affidavit in Nigeria, it clearly is relevant. The next factor that RAD needs to consider is whether or not this document is material to the appeal. The RPD found a major credibility issue in regards to the testimony of how the affidavits in question were sworn before a court and whether the oath taker would or would not have to inform the police that the Affiants were supporting a wanted criminal. This document could be material as it may have helped to sway the RPD's credibility findings however; the last fact the RAD must look at is the credibility of the document. The author of the document is a respected member of the Bar in two countries. Foreign law is considered a fact that must be proven. XXXX XXXX XXXXhas provided her credentials which do in fact provide the RAD a basis for considering her status as an expert or at the very least distinguishes her from just any member of the Bar. The reasoning and the basis of her opinion is clearly set out and appear to disclose an error by the RPD, or at least, if not an error, would disclose what amounts to speculation on the part of the panel. The RAD finds that this document is credible and will therefore allow the document into evidence. Application for an Oral Hearing [12] The Appellant has requested an oral hearing in this appeal. Section 110(6) of the IRPA allows that the RAD may hold an oral hearing if the appeal meets three certain requirements however, the RAD notes that this is a discretionary provision and not a matter of a "right." [13] The first requirement is that the new evidence must raise a serious issue of credibility of the Appellant. This evidence does do that as it clearly shows that the RPD misconstrued some of the Appellant's testimony to be incredible. [14] The second requirement is that the evidence must be central to the decision with respect to the refugee protection claim. This evidence speaks to the identity of the claimant/Appellant which is vital however, does not speak to the basis of the original claim, a fact pointed out by the Appellant when he speaks to the issue of the RPD never addressing the basis of the claim rather than simply focusing on identity. [15] Finally, the evidence must be such that by accepting it, it would justify either allowing or rejecting the claim. This new evidence does neither. For these reasons, the RAD will not allow an oral hearing but will assess the appeal on its own merits. Role of the RAD [16] Counsel has made some 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,5 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 Appellant 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." [17] 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. However, the RAD will not be bound by those RPD conclusions. The RPD's Findings [18] The Appellant argues that the RPD erred in law in its analysis and conclusions in respect to the Appellant's identity documents. The Appellant submits that the panel's credibility findings were largely based on peripheral matters however, in the RAD's own assessment of the evidence, the RAD is forced to agree with the Appellant. [19] The only documentation presented at the hearing in support of identity was a National Identity Number (NIN) card together with an affidavit from the Appellant's sister which states the Appellant's name and that he was born in Nigeria. It is worthy to note that the Minister's counsel, in the transcript of the detention review hearing, in the RPD record, did refer to the Appellant as a citizen of Nigeria. Further, when the Minister's counsel was asked by the Immigration Division member: "Is the Minister satisfied of his [referring to the Appellant at the detention interview] identity?", Minister's counsel replied that, "as it stands there is no cause to seek detention on identity grounds." However, it is noted that this conversation took place about one month before the information regarding the Appellant's United States (US) visa applications became available. [20] In 2007, the government of Nigeria adopted the National Identity Management Commission (NIMC) Act establishing the NIMC, the National Identity Database, and the NIN. The NIN is a non-intelligent set of numbers assigned to an individual upon successful enrolment. Enrolment consists of the recording of an individual's demographic data and captures the ten (10) fingerprints, head-to-shoulder facial picture and digital signature, which are all used to cross-check existing data in the National Identity Database to confirm that there is no previous entry of the same data. Once the NIN is issued, the number cannot be used again and an "Identity Card will be processed and delivered ... within one (1) month." 6 The NIMC allows every citizen from the age of 16 years and above and legal residents to enrol for a NIN.7 [21] As stated above, any legal resident can obtain a NIN; therefore rendering moot the point raised by the RPD, and followed up upon by the Appellant in his Memorandum, of whether or not this NIN is genuine. The issue is not whether the Appellant's NIN card is genuine but whether it proves that the Appellant is a citizen of Nigeria and of no other country. In that regard, the NIN card does strongly suggest Nigerian citizenship as it shows the Appellant's origin as being in Edo state, in Nigeria, which is an indication of Nigerian citizenship if the NIN card is genuine. No evidence has been presented to suggest that the Appellant has ever used a different name or that the Appellant has ever declared a different nationality. [22] Having bestowed "expert" status on XXXX XXXX XXXX, the RAD must now accept the affidavits on their own merit as being correct. Given that the Appellant's NIN card clearly shows him to be from Nigeria (origin - Edo state) and that document is supported by the affidavits in question, the RAD finds that the Appellant is a citizen of Nigeria and will therefore consider the appeal. [23] The RPD, in its need to assess the credibility of the witness, looked at the other tools before it to help the RPD to come to a correct decision. One of those tools and in the opinion of the RAD, a very important and material tool was the biometric reports indicating two previous applications for US visas, by the Appellant. [24] This is precisely where Maldonado8 comes into play. Maldonado tells us that unless we have reason to disbelieve sworn testimony, we should accept that testimony as truthful. The key here is that to disbelieve the testimony, there must be cause. The RPD found there was cause to disbelieve the sworn testimony. The Appellant had clearly answered "no" to the question on his screening form at Pearson airport which asked whether he had ever been denied a visa to any other country. It was not until a biometric report showed that the Appellant's answer was wrong that credibility became an issue. This issue was put to the Appellant by the RPD. The Appellant testified that he could not recall being asked the question; however, he also testified that he may have misunderstood the question at the time. The Appellant testified that no interpreter was used at the interview in question but also that he had not requested an interpreter. The examining officer at the interview (SMO, badge # 15265) noted on the file that he had asked the Appellant whether he wished an interpreter or not to which the Appellant responded "no." The RAD finds that this is an egregious omission on the part of the Appellant, one which, without the biometric report, would not likely have ever come to light. [25] Further issues on credibility arose from this information on the visa applications. As the RPD notes, there were major discrepancies in the information supplied in the two failed US visa applications and the information provided by the Appellant in his BOC and other documents. These discrepancies included differences in marital status, birthdates and parental information. These are major however; the Appellant explained that they were the doing of the "agent" who was paid to get the visas for the Appellant. The RAD finds that this explanation (that it was the agent's fault) is weak and not believable. The Appellant is a very well educated man with a Master's degree. The RAD finds it implausible that such a well-educated man would hire some "agent" to submit false documents on behalf of the Appellant when the Appellant could have properly submitted accurate ones on his own. In the Appellant's Memorandum, counsel states that the RPD impugned the Appellant's credibility based on the discrepancies in the account of the Appellant's life in his failed US visa applications. The Appellant submits that the RPD did not state how these discrepancies affect the core of the Appellant's claim which is that he is at risk due to his bisexuality, in Nigeria. Before the RPD, or at this time, the RAD can consider the merits of a claim; the claimant's identity must first be established. Such is not peripheral but required and vital. Once and if identity is established, these same issues may lend considerable weight to the credibility of the Appellant's story in his BOC. [26] The Appellant wrote in his BOC and/or testified that he holds a Master's Degree from University and that he speaks and writes English and in fact his Master's was earned in courses taught in English. A person who can attain a Master's degree from University, while being taught in English must have a sufficient grasp of the English language. The question had been put to the Appellant as to why he had given misinformation to the interviewer at the airport upon arrival in Canada. The Appellant testified that he could not recall the question but perhaps he had misunderstood the question. The RAD finds this explanation to be implausible. The question was definitely asked and is on record in the interviewers' notes, along with the Appellant's answers. As far as misunderstanding the question, this is not likely as the question was simple and straightforward to the Appellant who has an obviously good grasp of the English language, good enough to earn his Master's degree in an "English language" setting. The Appellant had been asked whether he wanted or needed an interpreter. He clearly understood the question and declined the interpreter telling the interviewer that the Appellant was comfortable with English. The RAD finds that the Appellant is conversant in the English language and therefore disbelieves the Appellant when he testified that he may not have understood the visa question asked of him at the airport. The RAD finds that the Appellant's response to this line of questions to be unbelievable and therefore infers a negative credibility finding on this issue. [27] The Appellant was asked how he made his trip to Canada. The panel asked the Appellant what documents he used to board his international flight from Nigeria to Amsterdam. The Appellant testified that he did not need any documents in Nigeria to board his international flight. The RAD finds this to be implausible. Nigeria has, according to the Nigerian Immigration Services (NIS)9 gone to great lengths to increase the security and integrity of their travel documents. [28] An 18 April 2010 (before the Appellant came to Canada) article published in the Lagos newspaper Daily Champion reports that to counter the increasing number of cases of forgery, duplication, identity theft and other crimes related to passports, the NIS introduced a machine readable e-passport in 2007. At an International Civil Aviation Organization (ICAO) conference on Machine Readable Travel Documents, Biometrics and Security Standards, held in April 2009 in Abuja, the Comptroller General of the NIS stated that the arrival of the new e-passport "restored the dignity of the Nigerian and the integrity of ... Nigeria's travel documents." According to the Comptroller General, the passport's security features and the whole issuing process ensure the genuineness of the travel document. The website of the Consulate General of Nigeria in Hong Kong provides the following information on the security features of the Nigerian passport: "Inside the passport, there are many new security features, including intricate designs, complex watermarks, specialized fibres (which sometimes appear over the photo) and an electronic chip secured by advanced digital encryption techniques." [29] The RAD finds that, with Nigeria working so hard to regain the integrity of its travel documents and system, it is implausible that the Appellant could board an international flight with no travel documents to present. From this response, the RAD infers negative credibility on this issue. [30] When asked by the panel about what documents the Appellant used to board his second international flight, from Amsterdam to Toronto, the Appellant testified that the "agent" with whom he was traveling, at the point where the Appellant was asked for his documents (by Immigration?), handed the Appellant a lot of documents. When questioned further, the Appellant testified that he did not know what the documents that he was given and then handed over to the Dutch Immigration officials before boarding an international flight to Canada, were. The RAD finds this to be implausible. Again, the Appellant is a highly educated man with a firm command of English who is traveling internationally and claims not to require identity documents to leave Nigeria and not to know what documents he disclosed to officials in Amsterdam. This is simply not believable and the RAD infers a negative credibility on this issue. [31] The RAD notes that the two separate US visa applications contained wrong information about the Appellant's life and that the Appellant was not only aware of these errors but allowed the applications to be submitted knowing that they contained false information. The only logical reason a person would submit fraudulent applications for visas are that the person was trying to conceal something about his identity. Then, the Appellant told the interviewer at Pearson Airport that he had never been denied a visa to any country while knowing he had been denied twice from the US. The Appellant testified that he could not recall these questions but if he was asked them, perhaps he misunderstood the question. As previously stated, the RAD does not find such excuses to be plausible, coming from such a well-educated person as is this Appellant. The RAD infers negative credibility in regards to this issue. [32] The RAD listened to the audio recording of the multiple hearings and found that the panel's questions were to the point. The panel asked the Appellant where his own passport was, to which the Appellant testified that it was lost back in 2012. However, in further questioning, the Appellant also testified that he never reported the passport being lost nor did he ever try to replace it. Once again, the RAD finds that this is not likely the way an educated man would respond to the loss of such an important document. To do nothing at all is not what one would expect from a man in these circumstances. The RAD infers negative credibility on this issue as well. [33] The basis of this claim is that the Appellant was caught in a bi-sexual relationship with another man, in Nigeria where he lived. This resulted in the Appellant being attacked by a mob, his lover being killed by the same mob, and the Appellant's flight to Amsterdam and then to Canada to escape the anger of those in Nigeria who are aware of his sexual activity. [34] The RPD found the Appellant's serious credibility issues regarding his identity to impact negatively on the rest of his story. The RPD had discounted the affidavits as being fraudulent so gave them no weight as evidence. The RAD has not concluded that these affidavits were fraudulent and in fact the RAD gives weight to the evidence of XXXX XXXX XXXX on the means and methods of obtaining affidavits in Nigeria. So although not finding these documents to be fraudulent, the RAD has considered them carefully and find that the weight that they carry, specifically in regards to the basis of the claim, is insufficient to overcome the multiple and serious credibility issues identified above. As pointed out by the RPD, the Appellant was quick enough to knowingly submit, through his agent, falsified documents to the US, and was not believable in his description of his trip to Amsterdam, or to Canada. Further, the Appellant's explanation for his failure to disclose the denied visa applications was not believable. The RAD will presume that the affidavits themselves are genuine however, the RAD has no means of verifying the content as genuine or truthful. The one affidavit which supports the Appellant's citizenship is supported by a second document (NIN card) however the affidavits attesting to the bi-sexual and related issue of the Appellant is otherwise unsupported except by way of the Appellant's testimony, which, in light of the above mentioned credibility concerns, is not credible. Disposition [35] The RAD has found that the RPD decision can stand but for different reasons as outlined above. CONCLUSION [36] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe January 14, 2015 Date 1 Appellant's Record, Exhibit A. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 Raza, para. 16. 5 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 6 RPD Record, NDP item 3.10. 7 RPD Record, NDP item 3.10. 8 Maldonado v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 220 (F.C.T.D.). 9 RPD Record, NDP item 14.1 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08673