TB5-09180

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 : TB5-09180 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (A.K.A. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 5, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Francisco Rico Martinez 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 her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to refer her claim back to the RPD for redetermination. 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 she fears she will be killed by her boyfriend's father who objected to her relationship with his son because of the differences in their religions. [4] The Appellant's application for refugee protection was heard on July 9, 2015. The RPD rejected her claim, finding that the Appellant lacked credibility. [5] The Appellant submits that the RPD erred in its assessment of her credibility. [6] The Appellant further submits that the RPD erred by not considering the Appellant's supporting documents in its final decision. THE ROLE OF THE RAD [7] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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". [8] 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. The RAD will recognize and respect the credibility findings of the RPD. ANALYSIS Credibility [9] The Appellant submits that the RPD erred in its assessment of her credibility. [10] The Appellant arrived in Toronto, Canada on XXXX XXXX, 2013, without a passport or other identity documents, and made a claim for refugee protection at the Port of Entry (POE). At the POE, she indicated that she had left Nigeria on XXXX XXXX, 2013 and after a brief stop in Rome, Italy, travelled directly to Toronto. She gave her name as XXXX XXXX and her date of birth (DOB) as XXXX XXXX, 1981. She was asked if she had ever used an alias or changed her name and replied "No". The Immigration Officer then asked the Appellant, "What about the name you used to board the flight?" to which she replied, "It was XXXX something. I don't remember it."2 [11] On December 10, 2013, the Appellant signed and forwarded to the Board a Basis of Claim Form (BOC) indicating that her name is XXXX XXXX, that she is Nigerian, and that her DOB is XXXX XXXX, 1981. In the narrative attached to the BOC, she stated: I went to the airport [in Nigeria] and I boarded the plane to Italy. I didn't have passport [sic]. My friend's father arranged everything. In Italy nobody asked me for passport or any ID. They called the name that was in the passport which I had to remember as my friend father [sic] asked me to do so. So they called XXXX XXXX and boarded the plane [sic] and arrived in Canada.3 [12] On August 29, 2014, the Appellant submitted significant amendments to her BOC (including the narrative) and to her initial claim for refugee status in Canada. Her amended documents now indicated that she had travelled to Spain in XXXX 2009 and made a refugee claim there. The amended documents further indicated that she had lived in Spain from XXXX 2009 to XXXX 2011, in Nigeria from XXXX 2011 to XXXX 2011, and then in Spain from XXXX 2011 to XXXX 2013, but that she was unsure of her status in Spain. She further indicated that she had left Madrid, Spain on XXXX XXXX XXXX 2013, travelled to Rome, Italy and from there, left for Toronto, Canada the same day. She stated in her amended BOC narrative that she had not disclosed her stay in Spain because she was following the instructions of her friend's father. The RAD notes, however, that the Appellant disclosed her time in Spain only after she received the Minister's disclosure4 which confirmed that she had been living in Spain. [13] At her refugee determination hearing, when the Appellant was asked why she hadn't disclosed her time in Spain, she testified, "I made a mistake. I didn't think." The RAD agrees with the RPD when it found it implausible that the claimant would not think (both at the POE and later in her BOC) to mention that she had lived in Spain for most of the previous five years - including her date of departure. The RAD also notes that the Appellant initially tried to mislead the RPD when she indicated in her initial narrative that she left for Canada from Nigeria rather than Spain, and had travelled to Italy, but was never asked to show a passport or identity documents in either Nigeria or Italy. [14] The RAD further notes that initially the Appellant did not disclose that she had used an alias during her time in Spain. In her interview at the POE, when asked if she had ever used an alias or changed her name, she replied "No". Only when asked about the name she used to board the flight, did she reply, "It was XXXX something. I don't remember it." In her amended BOC, however, she explained that she had changed her name in Spain because she preferred to be called by her nickname "XXXX" and that she used the name XXXX which was her grandfather's name. She reiterated this explanation at the RPD's hearing. The RAD finds her explanations unconvincing. [15] Clearly, the Appellant has tried to conceal her alias, XXXX XXXX, and the fact that she was known by her alias during her time in Spain. It was only after the Minister disclosed that the Appellant's biometric information was sent to Interpol Spain and revealed that she was known in Spain as XXXX XXXX, that she acknowledged that she was known by that alias. It is not clear why the Appellant did not disclose that she lived in Spain for some five years under the name XXXX XXXX. The Minister's disclosure5 indicates that the Appellant was known as XXXX XXXX, DOB XXXX XXXX, 1979, daughter of XXXX and XXXX, and that "the records on file for this individual pertain to illegal immigration." The Minister submitted that as a person known to Spanish authorities as an illegal immigrant, it is more probable than not that she was asked to leave Spain by the Spanish authorities. The RAD notes that the Appellant has indicated in her amended documents that she initially was a refugee claimant in Spain but that later she was unsure of her status there. The RAD finds that given the Appellant's statements concerning her status in Spain and the comments from Interpol Spain on her immigration status, it is likely that she was a failed asylum seeker in Spain who remained in the country illegally. Regardless of the Appellant's status in Spain, her initial attempts to conceal her time and situation in Spain, leads the RAD to draw a negative inference with regards to her credibility. [16] In her POE interview on November 24, 2013, the Appellant stated: I miscarried my first child because his [(her boyfriend's)] father beat me in 2010. He took me from the place we lived, in a car to a far away place. He beat me up. He locked me up for two days then I miscarried. He let me go after I miscarried. He left me. I found my way out of the bush. I called XXXX and then she picked me up.6 [17] In her BOC narrative of December 10, 2013, the Appellant stated: In June, when I was two months pregnant, my boyfriend's father with a few guys came to my boyfriend's house, drags me outside of the house, beat me up and threw me in the near forest. His father was watching while the guys were beating me. They left me there and I had to find my way out of the forest.7 [18] In her amended BOC narrative of August 29, 2014,8 the Appellant stated that while visiting her boyfriend's mother in Lagos in XXXX 2011, the father arrived there with a "few guys", forcefully put her in a car, took her to a forest and started beating her, and then locked her up in a house. After two days they took her out of the house and threw her in the forest. She managed to walk out and call her friend XXXX from a passerby's phone, who picked her up and took her to the hospital. [19] The RAD notes that when the Appellant first described the alleged attack by her boyfriend's father during her POE interview, she stated that the incident took place in 2010, while in her two BOC narratives, the incident took place in XXXX 2011. In her POE interview, the Appellant said she was beaten by her boyfriend's father, while in her two BOC narratives, she was beaten by a "few guys" while the father watched. In her POE interview, the boyfriend's father "took [her] from the place we [(she and her boyfriend)] lived."9 In her BOC narrative of December 10, 2013, the boyfriend's father came to get the Appellant at her boyfriend's house (which according to her amended BOC would have been in Spain). In the XXXX XXXX, 2014 BOC narrative, the boyfriend's father went to the house of the boyfriend's mother in Lagos to get the Appellant. [20] The attack on the Appellant by her boyfriend's father is central to her claim for refugee protection. The RAD finds that the discrepancies and inconsistencies among the three versions of the incident further erode the credibility of the Appellant. The RAD finds that the RPD did not err in its finding that the Appellant was not credible. Supporting Documents [21] The Appellant submitted that the RPD has not considered her supporting documents in arriving at its final decision. [22] The RAD notes that the RPD specifically referenced the Appellant's Voter's Card and her Birth Certificate in finding that these documents are sufficient in establishing her identity. The RAD will also comment on the supporting documents referenced by the Appellant in her Memorandum. [23] The RAD reviewed the hospital letter, dated XXXX XXXX, 2013.10 The letter indicates the Appellant was admitted to the hospital XXXX XXXX XXXX, 2011, where it was determined that she had had a miscarriage "...owing to physical torture and depression...." The RAD notes that the hospital letter is from the XXXX XXXX Hospital. [24] The RAD questions how the Appellant ended up in a hospital in a different state from where she was allegedly picked up by her boyfriend's father and his thugs. According to the latest version of her narrative, she had gone to visit her boyfriend's mother in Lagos and after "a little while" the boyfriend's father showed up with a "few guys", forced the Appellant into a car and took her to a "far-away" forest where she was beaten, locked up for two days in a house, and then thrown back into the forest.11 She managed to walk out of the forest and called her friend who then took her to the hospital. According to the map of Nigeria,12 she would have had to have travelled north through the state of Lagos, then through the state of Ogun, and then to the northern tip of Osun state to the city of XXXX where the hospital was located. The RAD finds it highly improbable that the boyfriend's father would have travelled these distances in order to beat the Appellant, and therefore questions whether she in fact was ever in XXXX XXXX hospital and whether the hospital letter is authentic. The RAD finds, on a balance of probabilities, that the hospital letter is not genuine. [25] The Appellant also submitted a number of letters to corroborate her allegations. The RAD reviewed each letter and will comment on the letters. [26] In evidence is a letter13 from XXXX XXXX dated December 23, 2013. The author of the letter claims to be a good friend and confidant of the father of the Appellant's boyfriend, who is aware of the mistreatment suffered by the Appellant, although he does not specify the nature of the mistreatment. Curiously, he is supportive of the Appellant. The letter concludes with an appeal to "...the concerned authorities to help her in processing her needed documents." The RAD is uncertain as to whom the "concerned authorities" are, and what documents are needed by the Appellant. The RAD finds, on a balance of probabilities, that the letter is not genuine. Another letter,14 dated December 24, 2013, is from XXXX XXXX, who is the father of the Appellant's friend XXXX, and who assisted the Appellant in coming to Canada. He indicates that he assisted the Appellant after hearing of her problems from his daughter, although he does not specify what those problems were. Interestingly, he too asks for assistance for the Appellant "...to secure her documents...", but does not specify what the documents are or who is being addressed. The RAD also questions how he was able to assist the Appellant in leaving the country, now that the Appellant has admitted to having left for Canada from Spain and not Nigeria. The RAD finds, on a balance of probabilities, that the letter is not genuine [27] Her friend, XXXX XXXX, has provided a letter,15 dated December 24, 2013. In the letter she references the difficulties the Appellant has experienced at the hands of her boyfriend's father. She also indicates that she took the Appellant to her father "...to help her out of the country." The RAD gives little weight to this letter. [28] There is a letter16 from the Appellant's brother, XXXX XXXX, dated June 2, 2015. The brother's letter indicates that the boyfriend's father came looking for the Appellant in XXXX 2014 and then again in XXXX 2015, demanding that the brother produce the Appellant and her child, and threatening to kill them. The brother also indicated that he fled to his church to hide to for several days. [29] There is also a letter17 from a Pastor, XXXX XXXX, dated June 30, 2015. The Pastor's letter confirms the visit from the Appellant's brother. The Pastor also states that he is aware that the boyfriend's father "...has many informant [sic] and thugs everywhere...." It is not clear how the Pastor is aware of the influence and profile of the boyfriend's father or if he is only passing information that he has heard, perhaps from the Appellant's brother. The RAD gives the Pastor's letter little weight. [30] The brother's letter indicates that the boyfriend's father continues to be interested in the Appellant and her child, and suggests that he would want to kill them because of the shame that they have brought to the family. The boyfriend's father has been referred to as a "XXXX" in the Appellant's friend XXXX letter, and as a "XXXX XXXX XXXX" in the brother's letter. If, as the Appellant has claimed, he has informants everywhere, the RAD questions why he did not know that the Appellant had left the country. The RAD gives no weight to the brother's letter. Psychological Assessment [31] The Appellant has submitted throughout her Memorandum that the RPD has not considered her psychological assessment-specifically her Post-Traumatic Stress Disorder (PTSD). She further submits that her difficulty with memory, as reflected in her responses to the RPD's questions, is a result of her psychological condition. [32] The RAD has reviewed the Appellant's psychological assessment18 conducted by Dr. XXXX XXXX, which was based on a psychological test and a one hour interview in March 2014, then updated in September 2014 to include the information disclosed by the Minister that she had been in Spain, which the Appellant had also not shared with Dr. XXXX at the interview in March 2014. The RAD notes that the assessment provides the following diagnosis, "Ms. XXXX satisfies diagnostic criteria for stressor-related disorder with prolonged duration."19 It does not actually indicate that the Appellant is suffering from PTSD. [33] The RAD does not find Dr. XXXX assessment to be persuasive evidence and determines that he is in no position to state categorically that the Appellant's mental and emotional state are the result of her alleged problems in Nigeria. As stated in Rokni, a psychological report submitted as evidence "...cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony."20 The Court reiterated its position in Danailov, with respect to the assessment of a physician's evidence and the question of the assessment of credibility. It was stated that, "opinion evidence is only as valid as the truth of the facts on which it is based."21 The Appellant has argued that her psychological problems were ignored by the RPD and that therefore the RPD's findings on credibility were unreasonable. The RAD finds, however, that the Appellant's psychological assessment did not address all the shortcomings in her evidence, which included contradictions and inconsistencies. [34] The RAD notes that the Appellant appeared to have no difficulty answering certain questions from the RPD. She was not vague or hesitant in his responses to certain types of questions. She was, however, vague and hesitant in response to questions about her failure to explain why she had not revealed her nearly five years in Spain. The RAD finds that the Appellant had a selective inability to form coherent answers. [35] The RAD finds that although the Appellant may be suffering from a "stressor-related disorder", this may or may not be related to the causes described by her in her evidence. In light of the significant problems with the Appellant's credibility, the panel gives the psychological assessment no weight. [36] For the reasons set out above, the RAD, having reviewed the evidence, finds that the RPD did not err, and agrees with the RPD that the Appellant was not credible. The RAD does not believe her allegations and finds that she has not established that there is a serious possibility that she would be persecuted for a Convention ground or, that on a balance of probabilities, she would personally be subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual treatment or punishment upon return to Nigeria. CONCLUSION [37] Pursuant to section 111(1)(a) of the 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) "Anthony da Silva" Anthony da Silva January 5, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, p. 153. 3 Exhibit RPD-1, RPD's Record, p. 25, para. 14. 4 Exhibit RPD-1, RPD's Record, pp. 162-164. 5 Exhibit RPD-1, RPD's Record, p. 170. 6 Exhibit RPD-1, RPD's Record, p. 154. 7 Exhibit RPD-1, RPD's Record, p. 24. 8 Exhibit RPD-1, RPD's Record, p. 28. 9 Exhibit RPD-1, RPD's Record, p. 67. 10 Exhibit RPD-1, RPD's Record, p. 215. 11 Exhibit RPD-1, RPD's Record, p. 28. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (28 November 2014), item 1.2. 13 Exhibit RPD-1, RPD's Record, p. 214. 14 Exhibit RPD-1, RPD's Record, p. 217. 15 Exhibit RPD-1, RPD's Record, p. 216. 16 Exhibit RPD-1, RPD's Record, p. 204. 17 Exhibit RPD-1, RPD's Record, p. 208. 18 Exhibit RPD-1, RPD's Record, pp. 193-197. 19 Ibid., p. 197. 20 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 21 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. T-273-93), Reed, October 6, 1993, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :