MB9-13787

RAD File / Dossier de la SAR : MB9-13787 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 XXXX) Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision October 22, 2019 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the person who is the subject of the appeal Chunxiang Bao Conseil de la|des 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] XXXX XXXX XXXX, a.k.a. XXXX XXXX XXXX XXXX (Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD), dated June 6, 2019, rejecting her claim for refugee protection. [2] The Appellant alleges that her home in Nigeria was attacked by Fulani herdsmen in XXXX 2017. She alleges that the herdsmen kidnapped her husband and injured her infant who subsequently died. She alleges that the herdsmen are looking for her to do her harm in order to prevent her from identifying the attackers. [3] The RPD found that the Appellant was not credible in her claim. The Appellant argues on appeal that the RPD erred in its credibility assessment and risk analysis by misinterpreting fact, the law, or mixed fact and law. On page 14 of the Appellant's Record, the Appellant asks the RAD to find that the Appellant and her daughter would be personally subjected to a risk to their life, or to a risk of cruel and unusual punishment in Nigeria. Given that this is not a joined claim, that there is no mention of a daughter in her Basis of Claim (BOC) form, and that the RPD did not consider testimony regarding a living daughter, I will not consider the possibility that the Appellant has a daughter who is part of this claim. [4] I have conducted an independent assessment of the evidence and I find that RPD did not err. I find that the Appellant has not adduced sufficient credible evidence to establish her claim for refugee protection. I find that she is not a Convention1 refugee nor a person in need of protection NEW EVIDENCE [5] In order to be considered, new evidence must meet the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)2 and the Singh/Raza3 factors being credibility, relevance and newness. [6] Subsection 110(4) states that new evidence may only be presented at the RAD if the proposed new evidence arose after the rejection of the claim or; it was not reasonably available at the time of the rejection or; that the person could not reasonably have been expected in the circumstances to have presented the evidence at the time of the rejection. In terms of evidence that arose after the rejection of the claim, it is the content of the evidence and not the date of the document that is determinative. With respect to the admissibility of new evidence, the burden lies with the Appellant. The RAD applies a narrow interpretation of subsection 110(4). This is not an opportunity to complete a deficient record submitted before the RPD.4 It is expected that full and detailed submissions on the admissibility and the relevance of the proposed new evidence will be included.5 [7] The Appellant submits that a report from social worker XXXX XXXX meets the legal tests for admission as new evidence because the report is dated after the rejection of her claim by the RPD, the Appellant could not get a report earlier because she had not had not yet had sufficient consultations with the social worker for the report to be meaningful, and "the Appellant has shared the information with Praida concerning the death of her son which is central to her claim".6 [8] The Appellant has explained that she did not tell her original Counsel that she was seeing a social worker and that it was only in discussion with her new Counsel that she found out that she needed to submit the report. I accept this explanation as sufficient to meet the subsection 110(4) criteria. [9] The new evidence must also meet the Singh/Raza7 factors being credibility, relevance and newness in order to be admitted. I find that the report is credible given that it is authored by XXXX XXXX, a professional social worker. I find however, that the report does not meet the test of relevance. Mr. XXXX submits that the Appellant suffers from anxiety and depression related to the death of her infant son. While I accept Mr. XXXX assessment as his professional opinion, the report from the social worker does not provide independent collaboration of the Appellant's testimony regarding the circumstances of her son's death which is the reason for which she seeks to admit the report as new evidence. [10] I find this evidence does not meet the criteria for admission set out in subsection 110(4) and Singh/Raza. The Affidavit and letter are not admitted into evidence. Given that I have not admitted any new evidence, I have no jurisdiction to hold an oral hearing. ROLE OF THE RAD [11] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances.8 Reasons will be provided in my analysis if I find that the RPD had a meaningful advantage. ANALYSIS [12] The Appellant argues on appeal that the RPD erred in its assessment of the Appellant's credibility and prospective risk. I have conducted an independent assessment of the evidence and arguments.9 Attack and kidnapping of husband [13] The Appellant argues on appeal that the RPD erred by taking a negative inference from her inability to provide a clear explanation of the events surrounding her husband's disappearance. The Appellant argues that her narrative is not inconsistent. [14] Following my independent evaluation of the evidence, I find that the RPD did not err. The RPD thoroughly canvassed the details surrounding the attack on the Appellant's home on XXXX XXXX, 2017; her subsequent flight and hospitalization; the death of her infant son; and the disappearance of her husband. Taken as a whole, the Appellant's account is not consistent. [15] The Appellant's narrative contains little or no detail on key elements of her story. The Appellant provided little detail regarding the cause of death of her infant son beyond the fact that during the attack he hit his head "on a hard surface". [16] The Appellant testified at the RPD that she grabbed her baby and ran out of the house while the attackers were beating her husband. In response to questions from the RPD, she testified that she ran away from the house, running for 40 minutes, before hiding in the bush for 10 minutes and then proceeding to the main road and the hospital. In her BOC, she states that she hid in the bush for a while then ran to the main road. A police report issued on XXXX XXXX, 2018 states that she hid in bushes near the house. [17] The Appellant provided a hospital report to the RPD to corroborate her testimony regarding her treatment subsequent to the attack on XXXX XXXX, 2017. The Appellant declined to comment when asked by the RPD why the hospital report did not include any dates of treatment. [18] The Appellant argues on appeal that the RPD erred when it drew a negative inference from the Appellant's inability to provide a clear explanation of the events surrounding her husband's disappearance. The Appellant argues on appeal that the explanation the Appellant provided to the RPD is consistent with the circumstances. [19] I have independently reviewed the testimony and the evidence. The RPD fully canvassed how and when the Appellant knew that her husband had been kidnapped by Fulani herdsman. The Appellant stated to the RPD that she initially found out that her husband was kidnapped from a neighbour. When questioned further, she stated that the strangers who had helped her may have gone back to her house and determined that her husband had been kidnapped. She stated in her Basis of Claim (BOC) form that her father-in-law visited her at the hospital and that he then went to police to report her husband missing and presumed kidnapped. In testimony at the RPD, she testified that her father-in-law went directly to the police station. She testified that her father-in-law did not go to their home to determine the whereabouts of her husband, however he may have talked to the neighbours to determine that her husband had been kidnapped. [20] The circumstances surrounding the disappearance and kidnapping of her husband are central to her narrative. I find that the Appellant has not provided a clear and consistent explanation of her husband's kidnapping. I find that the RPD did not err in taking a negative inference from the Appellant's lack of clarity. [21] I agree with the RPD and I find that Appellant's narrative is not credible. Threatening calls [22] The Appellant argues on appeal that the RPD erred in its assessment of the Appellant's testimony regarding threatening calls she received. The Appellant argues that the RPD was microscopic and selective in considering the evidence regarding the threatening phone calls and contact with her husband. The Appellant further argues that she rejected all calls from strangers in order to avoid risking her life after she received a threatening call on XXXX XXXX, 2017. [23] I have independently considered the evidence. The threats from the Fulani herdsmen are central to the Appellant's claim, I do not agree with the Appellant that the RPD was microscopic and selective in analyzing the threats. I find that the Appellant's testimony is contradictory with respect to key points. [24] When the RPD asked the Appellant if anyone else in her entourage had also received threats, the Appellant stated that only she had received threats. When the RPD asked how she reconciled this statement with her BOC narrative that her husband told her the herdsmen used her husband's phone to utter threats against other family members, the Appellant stated that no members of own her family had received threats but that her husband's father and brothers did. When pressed for an explanation as to why she had not mentioned the other threats, she stated that she forgot. Throughout her narrative her father-in-law played a key role, including attending her at the hospital and notifying police of the XXXX XXXX, 2017, attack. [25] The Appellant initially testified at the RPD that she did not know how the herdsmen got her phone number, however, in later testimony she stated that she believed that the herdsmen received her phone number through data bases or through a mole in the police department. I find that the Appellant's testimony that the herdsman found her phone number through data bases or a mole to be speculative. [26] I find that the RPD did not err in its assessment of the Appellant's testimony regarding threatening calls she received. I agree with the RPD and I find that the Appellant has not established, on a balance of probabilities, that she or any other member of her family received threatening messages and phone calls from Fulani herdsman. Communications with husband [27] The Appellant argues on appeal that the RPD erred in finding that the Appellant's testimony regarding phone calls from her husband was contradictory and that the RPD erred in finding that the Appellant's behavior was not consistent with someone attempting to re-establish contact with a missing spouse. The Appellant argues on appeal that she was fearful for her life due to the threatening messages she had received and that preservation of her own life had priority over re-establishing contact with her husband. [28] Following my independent evaluation of the evidence, I find that the RPD did not err. The RPD fully canvassed the communications between the Appellant and her husband following his abduction and subsequent release. The Appellant explained apparent contradictions in her testimony regarding her husband's attempts to contact her as complications due to differences in the mobile telephone network to which she was subscribed or the availability of internet connections. [29] In three modifications to her BOC, the Appellant described her distress at the treatment her husband received while he was captive and his impoverished condition in Benin. According to testimony, she relied on intermittent and random communications with her husband with gaps in communications as long as three months after his escape. [30] I agree with the RPD that her behavior is not consistent with someone attempting to re-establish contact with a missing spouse. I find that the RPD did not err. I find that the Appellant's testimony regarding her communications with her husband undermines her overall credibility. Affidavits [31] The Appellant argues on appeal that the RPD erred by giving no evidentiary weight to an Affidavit from XXXX XXXX XXXX and an Affidavit from the Appellant's father-in-law, XXXX XXXX XXXX, as corroboration for an attack on XXXX XXXX, 2017 and subsequent events, because the Affidavits were from friends and family. [32] I have independently examined the Affidavits to assess their individual probative value setting aside questions regarding the relationship of the authors of the Affidavits to the Appellant. [33] Following an independent evaluation of the evidence, I find that the RPD did not err in giving no weight to the one-page Affidavit from XXXX XXXX XXXX dated April 25, 2019. In the Affidavit, the Affiant states that he is aware of attacks on XXXX XXXX, 2017 and XXXX XXXX, 2017 and that he is aware of an incident on XXXX XXXX, 2019 that caused the death of the Appellant's child and the kidnapping of her husband. The Affidavit provides no detail whatsoever as to how and when the Affiant became aware of the matters to which he swears, neither does the Affidavit provide any detail as to the how the incidents unfolded or who was involved. I find that the Affidavit has no probative value and therefore I give it no evidentiary weight. I find the Affidavit does not corroborate the testimony of the Appellant. [34] Following an independent evaluation of the evidence, I find that the RPD did not err in giving no weight to the one-page Affidavit from XXXX XXXX XXXX dated April 29, 2019. In the Affidavit, the Affiant states that he is aware of attacks on XXXX XXXX, 2017 and XXXX XXXX, 2017; that he is aware of an incident on XXXX XXXX, 2019 that caused the death of the Appellant's child and the kidnapping of her husband; and that he is aware of an attack on XXXX XXXX, 2018 during which his wife was killed. The Affidavit provides no detail whatsoever as to how and when the Affiant became aware of the matters to which he swears, neither does the Affidavit provide any detail as to the how the incidents unfolded or who was involved. I find that the Affidavit has no probative value and therefore I give it no evidentiary weight. I find that the Affidavit does not corroborate the testimony of the Appellant. Prospective Risk [35] The Appellant argues on appeal that the RPD erred in its evaluation of the prospective risk that the Appellant faces in Nigeria at the hands of Fulani herdsmen. [36] The RPD found that, given that the Appellant had not provided specific information to police regarding the attackers' identity and the general impunity of the Fulani herdsmen in Nigeria, the Appellant had not established, on a balance of probabilities, that the herdsmen would be concerned about her ability to identify them and would pursue her two years after the incident.10 [37] The Appellant argues that the RPD relies on speculation regarding the probability that the herdsmen will be not punished in order to reach its conclusion. I do not agree. The RPD weighed the evidence and found that the Appellant had not established, on a balance of probabilities, that she would be at risk from the herdsman. The burden of proof is with the Appellant. [38] I have conducted an independent assessment of the evidence. The Appellant testified at the RPD that she recognized two of the men who were present at the assault on XXXX XXXX as herdsmen who had previously brought cattle to graze at her farm. While the Appellant says she recognized the men but she does not know their names, she stated that she provided information to the police that would enable police to identify the men she recognized. The police report she provided in evidence states that she recognized the individuals but the police report does not say that she provided positive identification of the two men. [39] The Appellant relies entirely upon her own narrative to establish prospective risk where I have found her narrative not to be credible. I find that the Appellant has not established through sufficient credible evidence that she faces a forward-looking risk from Fulani herdsman. I find that the RPD did not err in its assessment of prospective risk. CONCLUSION [40] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act. (signed) "Michael J. Gardiner" Michael J. Gardiner October 22, 2019 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; and, Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 54. 5 Refugee Appeal Division Rules, SOR/2012-257. 3(3) Content of appellant's record - The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (g) a memorandum that includes full and detailed submissions regarding (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 23. 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; and, Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70 and 103. 9 Tekle v. Canada (Minister of Citizenship and Immigration), 2017 FC 1040. 10 Exhibit RPD-1, RPD Record, RPD Decision at para. 18. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-13787 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