MB8-21137

RAD File / Dossier de la SAR : MB8-21137 MB8-21138 / MB8-21139 / MB8-21140 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision August 21, 2019 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Mark J. Gruszczynski Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX and her children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX (Appellants) are citizens of Nigeria who have appealed a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. Ms. XXXX son, XXXX, was born in the United States and therefore also has American citizenship. [2] Ms. XXXX fears that her husband's family will seriously harm her and/or her children if they return to Nigeria because they informed her husband that she and her eldest son would have to bear a sacrifice to the gods of the land or be killed. In XXXX 2015, the Appellants allegedly escaped an attack on their house and left for the United States. They lived in the United States from XXXX 2015 until they crossed the border into Canada in XXXX 2017. They allege that the cousin of Ms. XXXX husband arrived with thugs at the place where they were staying and threatened to report them to the immigration authorities. They allege that this is what led them to flee to Canada after spending almost two years in the United States. [3] In an oral decision rendered on the day of the hearing, the RPD found Ms. XXXX testimony with respect to her allegations not credible due to material contradictions, inconsistencies, and omissions as well as a lack of detail in her evidence, all of which were not satisfactorily explained. The Appellants argue that the RPD erred with respect to its finding regarding a contradiction between Ms. XXXX testimony and Basis of Claim form (BoC) versus the affidavit she filed from her husband. In addition, they argue that the RPD erred in drawing a negative inference from the Appellants' failure to file certain corroborative evidence. Finally, they also make an argument under subsection 108(4) of the Immigration and Refugee Protection Act (IRPA). [4] For the reasons below, the appeal is denied. The RPD correctly found that Ms. XXXX account of events was not credible due to many contradictions, inconsistencies, omissions as well as a lack of detail on key points in her evidence, all of which were not satisfactorily explained, and most of which are not contested on appeal. The RPD did not err in drawing a negative inference from Ms. XXXX failure to file a copy of a threatening letter she claimed to receive while she was in the United States. Finally, the RPD made no error with respect to section 108(4) of the IRPA. ROLE OF THE RAD [5] 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.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. In deciding this appeal, I have taken into account the IRB Chairperson's Guidelines on women refugee claimants and vulnerable persons appearing before the IRB.3 PROPOSED NEW EVIDENCE [6] Evidence from the person who is the subject of the appeal is only admissible if it meets the conditions set out in subsection 110(4) of the IRPA. That is, proposed new evidence is only admissible if it arose after the claim was rejected, or it was not reasonably available, or the person could not reasonably have been expected to present it at the time the claim was rejected.4 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new.5 [7] The Appellants tendered as proposed new evidence a second affidavit from Ms. XXXX husband correcting a portion of the first affidavit he provided to the RPD which contradicted Ms. XXXX evidence in her BoC and her testimony at the hearing. The Appellants have made no submissions regarding why the second affidavit is admissible on appeal as is required under Rule 3(3)(g)(iii) of the RAD Rules. [8] I find the affidavit is inadmissible. Even if the affidavit meets the conditions set out in s. 110(4) of the IRPA, the content of the affidavit does not meet the conditions contained in the Singh decision as it is not credible. In his first affidavit, Ms. XXXX husband stated as follows: "My wife is from Ibo tribe in Nigeria while I am from Yoruba some people within the two family gang up together and started hunting with the aim of killing my wife without a reason known to me." [emphasis added] In its decision, the RPD found that this statement contradicted Ms. XXXX evidence in her BoC and her testimony that only her husband's family were after her. The RPD accorded less weight to the affidavit because Ms. XXXX failed to provide a satisfactory explanation for the contradiction. [9] In his new affidavit, Ms. XXXX husband indicates that the statements he made in his first affidavit were correct except that it was only members of his family that were after his wife, not both families. As noted above, the Appellants made no submissions regarding the credibility of the second affidavit or any of the other factors relating to the admission of new evidence. I find that the contents of the second affidavit are not credible for two reasons. First, Ms. XXXX husband provides absolutely no explanation for the error in the first affidavit-for example, how such an error came to be made, etc. Second, I find that the correction made in the new affidavit is not credible in light of the circumstances surrounding the submission of this second affidavit. That is, given the lack of any explanation for the error, it appears aimed at repairing the contradiction between the first affidavit and Ms. XXXX evidence before the RPD. [10] As I explain below, even if I were to admit the affidavit as new evidence, I find that the affidavit does not overcome all of the other contradictions, inconsistencies, omissions and the lack of detail in Ms. XXXX evidence, all of which were not satisfactorily explained and most of which were not contested on appeal. [11] For these reasons, the affidavit tendered by the Appellants as proposed new evidence is not admissible. REQUEST FOR A HEARING [12] Subsection 110(6) of the IRPA gives the RAD the power to hold a hearing in certain circumstances if it has admitted new evidence on appeal. Since I have admitted no new evidence in this case, the Appellants' request for a hearing is denied. ANALYSIS [13] The RPD noted the following inadequately explained contradictions, inconsistencies and omissions as well as lack of detail in Ms. XXXX evidence: a) Her failure to provide a satisfactory explanation for contradictions between her testimony and her BoC concerning the attack in November 2015 that forced her to flee Nigeria with her children;6 b) Ms. XXXX failure to satisfactorily explain the omission from her BoC of the second attack that she mentioned during the hearing to explain the contradiction noted in (a) above;7 c) The lack of detail in her testimony about when the attack(s) occurred and about the injury allegedly sustained by her son during the attack(s) on her home;8 d) Ms. XXXX failure to provide specific details about her alleged agents of persecution within her husband's family and the reasons for why they are targeting her and her children;9 e) Ms. XXXX failure to provide details about the rituals in her husband's community that allegedly put her and her children at risk;10 f) Ms. XXXX failure to satisfactorily explain significant omissions in her narrative concerning a threatening letter she allegedly received in the United States-which she failed to provide-as well as another threatening letter in 2014 that forced her to move to another city, and for which she was unable to give any specific details;11 and g) The fact that the documentary evidence in the NDP for Nigeria contradicts the Appellants' allegations that they are at further risk in Lagos.12 [14] In addition to making negative inferences regarding the credibility of the Appellants' account of events due to the problems listed in the previous paragraph, the RPD placed little weight on the documentary evidence filed by the Appellants. In particular, the RPD found that a contradiction between Ms. XXXX testimony and BoC versus the affidavit she filed from her husband affected the weight that it put on the affidavit in terms of supporting her account of events. Uncontested credibility issues found by the RPD [15] On appeal, Ms. XXXX does not contest any of the negative inferences made by the RPD because of the credibility issues listed in paragraph 12 above except for the issue raised in paragraph 12(d). Based on my review of all of the evidence in this case, including the audio-recording of the hearing, I agree with the RPD that all of the uncontested contradictions, inconsistencies and omissions as well as the lack of detail summarized in paragraph 12 above undermine the credibility of Ms. XXXX account of events and of the risk the Appellants face in Nigeria. No error re. Ms. XXXX husband's affidavit and agents of persecution [16] The Appellants argue that the corrected affidavit from Ms. XXXX husband that they submitted on appeal confirms the veracity and consistency of Ms. XXXX testimony about her persecution at the hands of her husband's family. Basing themselves on the corrected affidavit, the Appellants argue that the RPD erred in drawing a negative inference due to Ms. XXXX failure to provide a detailed account of who her agents of persecution were within her husband's family and the reasons why they would be targeting her and her children. [17] I disagree with these arguments. I found above that the corrected affidavit from Ms. XXXX husband was inadmissible and therefore any arguments based on it must be dismissed. Moreover, I would have dismissed these arguments even if I had admitted the corrected affidavit from Ms. XXXX husband. If I had admitted the affidavit and found it to be credible, it would only mean that some greater weight should have been attached to his initial affidavit in support of Ms. XXXX account of the persecution she would face if she returned to Nigeria. However, given the many significant other credibility problems correctly identified by the RPD and uncontested on this appeal, I find that even granting some greater weight to Ms. XXXX affidavit would not have overcome these other serious uncontested credibility problems correctly noted by the RPD. [18] In addition, even if I had admitted the corrected affidavit, it would not have resolved Ms. XXXX inability, without satisfactory explanation, to provide more than a minimal amount of detail as to who from within her husband's family was after her and why. [19] For these reasons, the RPD did not err in relation to its findings regarding the affidavit by Ms. XXXX husband. Even if I were to admit the corrected affidavit, it would not alter the lack of credibility of Ms. XXXX account of events and of the risk the Appellants face in Nigeria. No error re. failure to file a copy of threatening letter [20] The Appellants argue that the RPD erred in drawing a negative inference from the fact that they did not file a copy of the threatening letter she allegedly received in the United States as corroborating evidence. [21] I agree with the case law cited by the Appellants that a claimant's sworn testimony is presumed to be true unless there are reasons to doubt its truthfulness. I also agree that the Federal Court has found that claimants generally are not required to provide corroborating evidence and that credibility findings should not be made based only on the absence of corroborating evidence. As noted above, in this case, there were significant reasons to doubt the truthfulness of Ms. XXXX account of events and of the risk the Appellants would face if they were to return to Nigeria. Also, the Federal Court has found that a decision-maker is entitled to draw a negative inference as to credibility from a claimant's lack of effort to obtain corroborating evidence to establish essential elements of their claim where such corroborating evidence should be available.13 [22] In this case, Ms. XXXX alleged that she received a threatening letter from her husband's cousin while she was in the United States. This letter was relevant because it would mean that an agent of persecution tracked her in the United States and that this is what led the Appellants to cross the border to claim asylum in Canada after being in the United States for almost two years. Ms. XXXX alleged that she left the threatening letter with a family she had stayed with in the United States. She did not provide a satisfactory explanation for why she failed to provide a copy of the letter to the RPD, especially since she testified that the family had sent her some other documents for her refugee claim. In these circumstances, the RPD did not err in drawing a negative credibility inference based on Ms. XXXX lack of effort to obtain the letter as corroborative evidence to support an essential element of her claim. No error re. Section 108(4) of the IRPA [23] The Appellants argue that the RPD erred in finding that they were not at further risk in Lagos if they were to return there. They argue that this is a violation of section 108(4) of the IRPA because the RPD accepted that Ms. XXXX had been forced to undergo female genital mutilation (FGM) in the past. [24] I do not agree with this argument. I note that the Appellants did not raise Section 108 of the IRPA before the RPD. In any event, that section deals with situations in which there is a cessation of refugee protection. Under subsection 108(1)(e) a claim for refugee protection must be rejected if the reasons for which the person sought refugee protection have ceased to exist. Subsection 108(4) sets out an exception to subsection 108(1)(e) for situations where there are compelling reasons arising out of the previous persecution, torture, treatment or punishment for a claimant to refuse to avail themselves of the protection of the country which they left. [25] As noted by the Federal Court, subsection 108(4) only comes into play where there has been a finding that a person was a Convention refugee but is no longer so because the conditions that caused that status no longer exist.14 In this case, Ms. XXXX experienced FGM in the past but the RPD correctly found that there was no evidence of any further future risk of persecution or harm to her in relation to her FGM if she were to return to Nigeria. As such, she was not a Convention refugee due to the FGM and there was no change in any conditions relating to her FGM. Therefore, subsections 108(1)(e) and 108(4) are not engaged. [26] For these reasons, the RPD did not err in failing to apply subsection 108(4) in this case. No error in overall credibility assessment [27] Based on all of the uncontested credibility issues in this case in addition to the conclusions set out above regarding the RPD findings that were contested, I find that the RPD was correct in finding that the Appellants failed to credibly establish that they would face a serious possibility of persecution if they would to return to Nigeria. They also failed to credibly establish that they likely would be subjected to a risk of any of the types of harm that would make them persons in need of protection in Nigeria. CONCLUSION [28] For the above reasons, the RAD dismisses the appeal. In accordance with s. 111(1)(a) of the IRPA, I confirm the decision of the RPD that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX AYANDELE are neither Convention refugees nor persons in need of protection. Jo-Anne Pickel Jo-Anne Pickel August 21, 2019 Date JP/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution; Guideline 8: Procedures with respect to Vulnerable Persons Appearing Before the IRB. 4 Immigration and Refugee Protection Act (IRPA), s. 110 (4). 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 6 Audio recording of hearing 55:48. 7 Audio recording of hearing 55:48-59:15. 8 Audio recording of hearing 55:48-59:15. 9 Audio recording of hearing 37:42-39:50. 10 Audio recording of hearing 39:50-43:20. 11 Audio recording of hearing 1:00:40-1:02:50. 12 Tab 5.28 of the National Documention Package (NDP) for Nigeria (November 30, 2017) at p. 10 which continues to be found in the current NDP for Nigeria (August 20, 2019). 13 See, for example, Guven v. Canada (Citizenship and Immigration), 2018 FC 38 at para. 38. 14 Bah v. Canada (Citizenship and Immigration), 2013 FC 1099 at para. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-21137 MB8- 21138/MB8- 21139/MB8- 21140 RAD.25.02 (April 04, 2019) Disponible en français 9 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français