MB9-07634

RAD File / Dossier de la SAR : MB9-07634 MB9-07635 / MB9-07636 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 10, 2019 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Me Gisela G Barraza Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, his wife, XXXX XXXX XXXX, and their son, XXXX XXXX, (Appellants) are citizens of Nigeria who have appealed a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. For the reasons that follow, their appeal is dismissed. [2] The Appellants fear that, if they return to Nigeria, XXXX XXXX XXXX family and elders from his deceased father's village will subject their son to cruel and inhumane traditional rituals because he is the first-born male child of his father's XXXX family. The Appellants also allege that XXXX XXXX XXXX and his wife will be killed by XXXX XXXX XXXX family if they return to Nigeria and do not turn their son over to them. The Appellants allege being threatened by XXXX XXXX XXXX family starting when their son XXXX was XXXX in 2015. They allege that elders from XXXX XXXX XXXX father's community showed up at their home in Lagos in XXXX 2016 to once again insist on the performance of the initiation rituals. They also allege that members of the community attacked XXXX XXXX XXXX in Lagos in XXXX 2016. The Appellants moved out of their house to their church in XXXX 2016. With the assistance of their church, the Appellants left Nigeria for the United States, more than a year later, in XXXX 2017 and crossed the border to claim refugee status in Canada in XXXX 2017. [3] The RPD found that the Appellants were not credible due to conduct that was incompatible with the fear and risk they alleged. In particular, the RPD found that the Appellants failed to provide a reasonable explanation for their delay in leaving Nigeria. It also found that they failed to explain their failure to take action following an incident in XXXX 2015 when XXXX XXXX XXXX elders arrived at the Appellants' home to demand XXXX XXXX XXXX XXXX XXXX XXXX son. The RPD also noted omissions from the Appellants' Basis of Claim forms and inconsistencies in the Appellants' evidence relating to an alleged attack on XXXX XXXX XXXX mother in XXXX 2017. The Appellants challenge these findings. [4] I find that the RPD was correct to find that the Appellants' account of the events that led them to leave Nigeria was not credible and their account of the risk they would face if they returned was also not credible. I agree with the credibility concerns detailed below and I agree with the RPD that these credibility issues were sufficient to rebut the presumption of truthfulness in this case. Therefore, I agree with the RPD that the Appellants have not credibly established that they are either Convention refugees or persons in need of protection. 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. PROPOSED NEW EVIDENCE [6] Evidence from the person who is the subject of the appeal is only admissible if it meets the statutory conditions for the admission of new evidence as well as the conditions set out in the applicable case law. 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.3 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new.4 [7] While the Appellants state that they are not filing any new evidence on appeal, they have included in their Appeal Record an affidavit sworn by XXXX XXXX XXXX on XXXX XXXX, 2019, and seek to rely upon this affidavit in their memorandum. The affidavit purports to report and clarify why XXXX XXXX XXXX mother made a report to the police the day after she was released from hospital after being attacked by elders from the village of XXXX XXXX XXXX father in XXXX 2017. I find that XXXX XXXX XXXX affidavit is not admissible as new evidence as it does not meet the conditions set out in the legislation. Although the affidavit is dated after the RPD, the information contained in the affidavit predates the RPD's decision. It was information that would have been reasonably available to XXXX XXXX XXXX if he had sought it and, therefore, it is information that he reasonably could have been expected to submit to the RPD before it rendered its decision. For these reasons, the affidavit is inadmissible as new evidence. ANALYSIS OF MERITS Conduct incompatible with fear and risk alleged Delay in leaving Nigeria and continued employment activities [8] I do not agree with the Appellants that the RPD erred in finding that they failed to provide satisfactory explanations for their delay in leaving Nigeria and that this diminished their credibility significantly. [9] As noted by the RPD, XXXX XXXX XXXX testified that he decided that he and his family needed to flee Nigeria after he suffered a brutal attack on XXXX XXXX XXXX 2016, in which people from his father's village allegedly attacked him with guns, knives and machetes in his city of Lagos. He testified that the persecutors likely thought they had left him for dead and that the doctor who eventually treated him told him that he was lucky to be alive. This followed two prior visits by the village elders who allegedly insisted that XXXX XXXX XXXX hand over his son to them to perform certain initiation rituals which involved taking the boy into the forest for an extended period of time, tattooing him with a hot iron and performing other acts that XXXX XXXX XXXX himself described as barbaric. Following, the XXXX 2016 attack, the villagers somehow found out that XXXX XXXX XXXX was not in fact dead and resumed their threats. [10] Despite all of the above very serious circumstances, the Appellants did not leave Nigeria until XXXX 2017, more than a year after the XXXX 2016 attack, and this despite the fact that their church assisted them to obtain a United States visa as of XXXX 2016. XXXX XXXX XXXX had testified that his family left their home in XXXX 2016 to stay in their church, which was also in Lagos state. When asked by the RPD why the Appellants delayed leaving their country until XXXX 2017, XXXX XXXX XXXX said they did not have the funds to leave Nigeria. He also said that he was negotiating with the persecutors to buy time. On appeal, the Appellants also note that the Appellants had moved out of their home to their church and they had filed a complaint with the police. [11] I agree with the RPD that these reasons for the Appellants' delay in leaving their country were not satisfactory. I do not agree with the Appellants that the RPD failed to acknowledge the steps they did take after the XXXX 2016 attack to instead speculate that they could have left Nigeria sooner. As noted by the RPD, the Appellants described very serious attacks and threats made against them in XXXX 2016. Although they said they moved to their church, XXXX XXXX XXXX XXXX XXXX XXXX continued with the same employment. XXXX XXXX XXXX continued with his XXXX XXXXemployment up to the time the Appellants left Nigeria. Likewise, XXXX XXXX XXXX continued with her work for the XXXX where she worked until she and her family left the country. [12] Although XXXX XXXX XXXX alleged that he did not have the funds necessary to leave the country, the Appellants' evidence was that both XXXX XXXX XXXX XXXX XXXX XXXX were employed, they also had access to a support system through their church which has branches around the world, including the United States, where they stayed upon their arrival in 2017. I agree with the RPD that, in the context of the resources available to them, the Appellants failed to satisfactorily explain their delay of over a year before leaving their country. This delay as well as XXXX XXXX XXXX XXXX XXXX XXXX continuation of their usual employment activities were incompatible with the very serious threats they alleged. [13] In addition, when pressed by the RPD about these incompatible actions, XXXX XXXX XXXX began to give more vague testimony. XXXX XXXX XXXX alleged that he was in negotiations with his persecutors to buy time and, when the RPD pressed him for details, he said that the elders had granted him an extension until the end of 2017. As noted by the RPD, there was no mention of the Appellants being provided with an extension of time until the end of 2017 in their Basis of Claim forms or the amended narratives they filed. When asked to explain this omission, XXXX XXXX XXXX simply said "nothing". I agree with the RPD that this was not a satisfactory explanation for the omission. [14] Other than moving to their church and filing a complaint with the police, XXXX XXXX XXXX XXXX XXXX XXXX went about their regular work without any further precautions despite their assertion that their lives and their son's life were in danger. Further, although the Appellants claimed to start sourcing funds after obtaining their United States visa, their assertions that they did not have the funds necessary to leave until a year later is not credible in light of the sources of support they had at their disposal especially through the church which eventually assisted them to leave Nigeria for the United States. [15] In light of all of the above, I find that the RPD did not err in finding that the Appellants' delay in leaving Nigeria and their continuation of their usual work activities significantly affected the credibility of the fear and risk they alleged in that country. While a claimant's delay in leaving their country is not determinative, it may have significant negative effects on the credibility of the risk that the Appellants claim to face in their country. Inaction in response to danger in 2015 [16] I do not agree with the Appellants that the RPD found that the Appellants' conduct between the threats they received in XXXX 2015 and the attack on XXXX XXXX XXXX in XXXX 2016 was "implausible". Instead, the RPD found that the Appellants' conduct of staying in their home and going about their usual work could not be reconciled with their alleged fears for their lives. In other words, their conduct was not compatible with the fears and risks to their lives that they themselves described in their evidence. [17] While it is true that XXXX XXXX XXXX testified that he filed a complaint with the police, the police had not shown any signs of pursuing the village elders which XXXX XXXX XXXX described as all-powerful with connections to the government. The Appellants took no other steps to protect themselves between the 2015 visit from the elders and the threats they received in XXXX 2015 or the attack on XXXX XXXX XXXX in XXXX 2016. The Appellants continued to live in the same house that the persecutors had visited and continued with their usual work without taking any precautions other than filing a complaint with the police. [18] When asked to explain his conduct, XXXX XXXX XXXX said that he believed that the threats made by the village elders in XXXX 2015 were "empty threats" and that the persecutors would not follow through on them. I agree with the RPD that this explanation is not satisfactory given the previous experiences of XXXX XXXX XXXX family with the village elders and the warnings XXXX XXXX XXXX had gotten from his mother and father about them. As noted by the RPD, before his death in 2000, XXXX XXXX XXXX father sat him down and told him about his family's violent rituals. In XXXX 2015, the nightmare described by his father became a reality as the elders travelled to XXXX XXXX XXXX home in Lagos to warn him that his son would have to be subjected to the rituals. After the visit, XXXX XXXX XXXX mother elaborated on the information that XXXX XXXX XXXX father had given him. She also told XXXX XXXX XXXX that he had lost an older brother to the rituals when the same elders kidnapped his older brother and brought him into the forest for the ritual. The older brother died due to the ritual. Further, XXXX XXXX XXXX mother told him that the elders were influential people with connections to the Nigerian government. Then, the same people returned a year later around the time of the birthday of XXXX XXXX XXXX son to say that everything was set for the ritual and threatened to take XXXX XXXX XXXX son if he would not let them take his son. [19] Given all of the above, I agree with the RPD that the Appellants, behaviour of staying in their same home and going about their usual work activities was incompatible with the risks to their lives that they alleged. Inconsistencies in mother's affidavit [20] I disagree with the Appellants that the RPD erred in giving no weight to the evidence they produced to support their allegation that the elders attacked XXXX XXXX XXXX mother within a week of the Appellants' departure from Nigeria. [21] The RPD found it inconsistent that XXXX XXXX XXXX mother would concern herself with filing a complaint with the police after she allegedly had been violently attacked by the village elders. Contrary to the Appellants' contentions, the RPD did not find it "implausible" that XXXX XXXX XXXX mother would have filed a complaint with the police the very next day after she was released from the hospital and advised to rest. The RPD also did not find that "she should not have done so", as claimed by the Appellants. Instead, the RPD found it inconsistent with the rest of the evidence set out above that was provided by XXXX XXXX XXXX. I agree with this assessment. XXXX XXXX XXXX had testified that his mother had told him that the elders are so well connected to state authorities that they do not have to worry about the police. She was also XXXX years old and in a frail physical condition after the alleged attack. Further, the hospital had advised her to rest and exert minimal efforts. In light of all of the above, the RPD was correct to have concerns about the credibility of her assertion that she went to file a complaint with the police upon her release from the hospital after the attack as well as with the copy of the police complaint filed by the Appellants. [22] Over and above these concerns, I agree with the RPD that XXXX XXXX XXXX mother claimed, in her affidavit, that she witnessed the attack on XXXX XXXX XXXX by the elders and this contradicts XXXX XXXX XXXX own evidence. I do not agree with the Appellants that XXXX XXXX XXXX mother simply said that she witnessed the "consequences" of the attack on XXXX XXXX XXXX. In her affidavit she clearly states that she witnessed the attack: "I was a witness to the physical attach (sic) on his life from the Elders and hoodlums of his late father's community after his refusal [to subject his son to the ritual]." This claim contradicted XXXX XXXX XXXX evidence that he was on his way home alone on the night of his assault in XXXX 2016. This contradiction further undermines the credibility of affidavit. [23] Given this contradiction and the credibility concerns listed above, I find that the RPD did not err in granting no weight to the affidavit from XXXX XXXX XXXX mother as well as the medical report and police complaint associated with it. Alternatively, any weight that could be granted to these documents would be minimal due to the contradiction and credibility concerns associated with the affidavit. Any minimal weight attached to these documents would not outweigh the credibility concerns detailed above arising from the Appellants' actions and inactions in this case. Overall credibility assessment [24] I agree with the RPD that the credibility issues set out above were sufficient to rebut the presumption of truthfulness in this case. I agree with the RPD that the Appellants failed to credibly establish that they are Convention refugees or persons in need of protection. CONCLUSION [25] In light of the above, the RAD dismisses the appeal and confirms the decision of the RPD that XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX are neither Convention refugees nor persons in need of protection.5 Jo-Anne Pickel Jo-Anne Pickel December 10, 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 Immigration and Refugee Protection Act (IRPA), s. 110 (4). 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 Section 111(1)(a) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-07634 MB9-07635 / MB9-07636 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français