TB8-30243

RAD File / Dossier de la SAR : TB8-30243 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 29, 2019 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal Krishanthan Cathiresan 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] The Appellant, XXXX XXXX XXXX, a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant his claim for protection or refer the matter back to the RPD for redetermination. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. BACKGROUND [3] In XXXX2016, the Appellant obtained a visitor visa to travel to Canada. [4] In XXXX2016, the Appellant travelled to Canada on vacation. [5] In February, 2017, the Appellant initiated an inland claim for refugee protection alleging a fear of persecution in Nigeria by "political thugs" due to their false allegation that he XXXX "some nasty handbills" against the People's Democratic Party (PDP) in 2016. He also alleged a fear of persecution due to the PDP thugs' false allegation that he was gay. [6] The Appellant's claim for protection was heard by the RPD on October 10, 2018. In an oral decision on that date, the RPD rejected the claim. The determinative issue was credibility. [7] The Appellant submits that the RPD "erred in natural justice and fact", as he provided reasonable explanations for any credibility concerns. He argues the RPD "erred in law" and was "unfair and biased which in turn breached natural justice."2 [8] The RAD is not persuaded the RPD erred. The RPD correctly determined the Appellant failed to provide sufficient trustworthy and credible evidence to establish his claim. ANALYSIS The Role of the RAD [9] The responsibility rests with the Appellant to raise any potential grounds of appeal.3 [10] The RAD is to review raised issues with the RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.4 [11] In assessing the credibility of oral evidence, the RPD may have a meaningful advantage, as the RPD directly sees, observes, and selects questions to ask of the witnesses etc. In this regard, the Court has reiterated that "significant deference is due to the findings of a tribunal"5 recognizing that "the role of this Court is a very limited one because the tribunal had the advantage of hearing the witnesses testify, observed their demeanor and is alive to all the factual nuances and contradictions in the evidence".6 [12] The role of the RAD is not to undertake a microscopic search for errors. Admissibility of new evidence presented on appeal [13] The Appellant indicates he is not relying on new evidence; yet, he has provided new documents with his appeal. He has submitted copies of photographs and an unsigned form document titled, "Corporate Affairs Commission".7 He describes that he is "submitting rebuttal evidence which he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection".8 [14] Subsection 110(4) of the Act 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 of the claim. The RAD Rules further require that the Appellant "must" explain how any new documentary evidence meet the requirements of the Act and how that evidence relates to him.9 [15] As the Federal Court of Appeal also clearly stated in Singh, at para 54: The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.10 [16] It is trite to note the onus is on refugee claimants to establish their claim for protection, including to provide supporting documents. The Appellant was represented by experienced counsel in the preparation of his claim and at his hearing. The RAD accordingly does not find credible nor persuasive the Appellant's argument that he could not have been expected to have presented these documents to the RPD prior to the rejection of his claim. Given also that there is no explanation from the Appellant as to why these documents were not reasonably available prior to the rejection of his claim and should be accepted as new evidence, the RAD finds they do not meet the statutory requirements and are therefore not admitted as evidence. The RAD does not have discretion to admit evidence that does not meet the statutory requirements. The RAD has accordingly not assessed the new documents in terms of considering the merits of this appeal. [17] The Appellant has not requested a hearing before the RAD. The RPD Findings [18] The onus is on the Appellant to establish his claim for protection. The RPD determined the Appellant was not a credible witness and failed to establish with sufficient trustworthy and credible evidence his allegations. [19] The onus is also on the Appellant to provide full and complete submissions on how the RPD erred. The Appellant has failed to do so. Instead, he has provided submissions on alternative interpretations of the evidence i.e., that he provided reasonable explanations for the RPD's concerns. He is thus essentially asking the RAD to reweigh the evidence in his favour. This is not the role of the RAD. The Appellant has already enjoyed a full hearing before the RPD. The RPD had the opportunity to test the credibility of the allegations at the hearing and clearly did so. Having reviewed the RPD's questions and the Appellant's answers, as well as the RPD's reasons for decision, it is clear that the RPD assessed the evidence and weighed the evidence accordingly. The Appellant has failed to demonstrate how the RPD erred in doing so. [20] Having nevertheless independently reviewed the evidence, the RAD has addressed the Appellant's main arguments below. Perceived Sexual Orientation [21] The Appellant alleges that - while he was on vacation in Canada - PDP members spread the false rumour that he is gay. [22] The RPD determined the Appellant's testimony was "convoluted and at times contrived and there were also contradictions, omissions, and embellishments" in his story. The RPD concluded, "I do not believe on a balance of probabilities that the claimant would be perceived as gay if he returns to Nigeria".11 [23] The Appellant has not challenged this finding. Having reviewed the evidence, the RAD sees no reason to interfere with this uncontested finding. The RAD accordingly finds the Appellant failed to provide sufficient trustworthy and credible evidence to show he was perceived to be gay in Nigeria. Perceived Political Activity [24] The Appellant also alleged that - while he was on vacation in Canada - PDP members falsely accused him of XXXX negative political flyers about them and vandalized his shop. [25] The RPD concluded the Appellant's story of political persecution by the PDP was not credible. In coming to this conclusion, the RPD found a number of inconsistencies, contradictions, and implausibilities in the Appellant's story. The RPD also noted the lack of trustworthy and credible evidence to corroborate the existence of the Appellant's purported XXXX shop and that it was "ransacked". For example, the RPD noted, "the only evidence he presented is a picture of a laptop and an art studio with the art neatly folded and art on the walls, nothing to show that his shop was ransacked and to show that his address was really in Lagos".12 [26] The Appellant argues the RPD erred because his evidence was "reasonable". For example, he submits it was reasonable that his evidence about his shop was inconsistent. He also argues it was reasonable the All Progressives Congress (APC) hired him to XXXX political flyers despite the fact he lived several hours away from them (and not involved in politics). [27] The RAD notes the Appellant has (again) failed to demonstrate how the RPD erred. Nevertheless, having independently reviewed the evidence, the RAD does not agree with the Appellant's argument that his evidence, including inconsistent evidence, was reasonable. The Appellant's testimony was clearly vague and inconsistent, including about his purported business and the alleged incidents. Further, his own documentary evidence was also inconsistent, including as to his business location(s), dates of existence, and business type. The Appellant failed to provide a reasonable explanation for his vague and inconsistent evidence. [28] The RAD also carefully reviewed the purported flyers13 XXXX in 2016 that were falsely attributed to the Appellant. One "flyer" includes a picture of an individual with the words "UNACCOUNTABILITY AND IMPLAUSIBILITY" beside it.14 The other flyer contains a picture of an individual with the words "TRAITOR, EMBEZZLER, CORRUPT LEADER".15 There is no identifying source on either vague "flyer," which would be (falsely) traced to the Appellant - much less anything to arise to the level of the Appellant being targeted for political persecution. In this regard, the Appellant confirmed having no political profile and described, "I have never been involved in politics and I don't like Nigerian politicians".16 [29] Having independently reviewed the evidence, including the Appellant's testimony and the purported "flyers", the RAD thus finds the Appellant failed to provide sufficient trustworthy and credible evidence to establish his allegations based upon his perceived political activity. Documents [30] The RPD gave no weight to the Appellant's supporting documents finding most of them to be "fabricated in order to bolster his claim".17 [31] The Appellant argues the RPD erred because his explanations for any discrepancies with his documents were reasonable. The Appellant has (again) failed to demonstrate how the RPD erred in its analysis or findings. The panel notes that an appeal before the RAD is not a second chance to present his claim. [32] Nevertheless, having independently reviewed the evidence, the RAD does not agree with the Appellant's argument that the discrepancies in his own evidence were "reasonable". In this regard, the RPD tested the Appellant's credibility and that of his documents at his hearing. The RPD found his responses not to be credible and accorded little weight to his untested documents. The RPD's analysis and findings are in accordance with settled law, particularly that when a general negative credibility finding is made by the RPD, it is open for it to give low probative value to other documents, including if they reflect the claimant's own statements. [33] The RAD also relies on the decision in Gebetas indicating: "as stated by this Court numerous times, general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence and ultimately cause the rejection of a claim.18" As also stated by the Court, [c]onsequently, in my opinion, the applicant's assertion that the Board is bound to analyze the documentary evidence "independently from the applicant's testimony" must be examined in the context of the informal proceedings which prevail before the Board. Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.19 [34] Accordingly, the RAD sees no reason to interfere with the RPD's analysis and findings. In coming to this conclusion, the RAD also independently reviewed the report prepared by XXXX XXXX, psychotherapist.20 Ms. XXXX describes that she met for one interview with the Appellant "typically extending for at least 60 minutes". Her report nevertheless concludes the Appellant is "exhibiting symptoms consistent with XXXX XXXX XXXX XXXX XXXX XXXX XXXX". The RAD notes the author is not a medical doctor, psychiatrist, or psychologist. The author does not provide a medical diagnosis. Indeed, they are not qualified to provide one. [35] Further, Ms. XXXX does not recommend the Appellant be designated a "vulnerable person." The Appellant was represented by experienced counsel at the RPD and no special accommodations were requested whether due to the report or otherwise. Having reviewed the testimony, there appeared to be no issues with the Appellant's mental faculties during the hearing. Moreover, the bulk of the information contained in Ms. XXXX report is a summary of allegations and symptoms self-reported by the Appellant. However, this does not necessarily corroborate the situation as the Appellant alleges. As the court stated in Danailov, "opinion evidence is only as valid as the truth of the facts on which it is based."21 [36] The RAD accordingly finds the RPD was correct to give little weight to the very general conclusions made by Ms. XXXX, particularly in addressing the shortcomings in the Appellant's evidence, which went beyond credibility concerns with the testimony only. Finally, reports such as this one cannot possibly serve "as a cure-all for deficiencies in the Applicant's evidence" in an RPD (or RAD) decision.22 CONCLUSION [37] The RPD found the Appellant and his allegations to be generally lacking in credibility; having independently reviewed the evidence, the RAD has reached the same conclusion. [38] Accordingly, based upon its own review of the evidence in its entirety, the RAD finds that the Appellant failed to provide sufficient credible and trustworthy evidence to establish his allegations, including his perceived sexual orientation and perceived political activity. The Appellant did not credibly establish that he is known and/or wanted by the PDP for political reasons or otherwise. His vague and inconsistent testimony was simply not credible. [39] The RAD therefore finds that there is not a serious possibility the Appellant would be persecuted if he was returned to Nigeria pursuant to section 96 of the Act. The panel similarly finds that, on a balance of probabilities, the Appellant would not be personally subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment in Nigeria pursuant to section 97 of the Act. DISPOSITION [40] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD finds that the RPD's refugee determination is correct. [41] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. [42] The appeal is dismissed. (signed) "D. Goff" D. Goff April 29, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, Memorandum, at p. 10. 3 Ilias, Mohammed Kamal Deen v. M.C.I. (F.C., no. IMM-5152-17), Bell, June 27, 2018, 2018 FC 661, at para 39. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Rahal v. Canada (Minister of Citizenship and Immigration), 2012 FC 319, at para 22. 6 Ibid, at para 42, as highly cited, including in Hadi v. Canada (Minister of Citizenship and Immigration), 2018 FC 590 at para 12. 7 Exhibit P-2, Appellant's Record, at pp. 15-19. 8 Exhibit P-2, Appellant's Record, Memorandum, at p. 7. 9 Rule 3(3)(g)(iii), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 10Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230. 11 Exhibit RPD-1, RPD's Record, Reasons, at p. 5. 12 Exhibit RPD-1, RPD's Record, Reasons, at p. 6. 13 Exhibit RPD-1, RPD's Record, Exhibit 5, at pp. 159-160. 14 Ibid., at p. 159. 15 Ibid., at p. 160. 16 Exhibit RPD-1, RPD's Record, Exhibit 2, Basis of Claim form, at p. 14. 17 Exhibit RPD-1, RPD's Record, Reasons, at p. 6. 18 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013, 2013 FC 1241, at para 29. 19 Hamid, Iqbal v. M.E.I. (F.C.T.D., no. IMM-2829-94), Nadon, September 20, 1995; (1995), 58 A.C.W.S. (3d) 469, Nadon J. (as he then was), at para 21. 20 Exhibit RPD-1, RPD's Record, Exhibit 10, at pp. 185-189. 21 Danailov, Vasco Valdimorov v. M.C.I. (F.C.T.D., no. T-273-93), Reed, October 6, 1993, at p. 2. 22 Khatun, Sayeda Hasina v. M.C.I. (F.C., no. IMM-2124-11), Russell, February 6, 2012, 2012 FC 159, at para 94; Mahari, Aden v. M.C.I. (F.C., no. IMM-404-12), Mandamin, August 16, 2012, 2012 FC 999, at para 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-30243 RAD.25.02 (April 04, 2018) 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