TB6-16943

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 : TB6-16943 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 XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 7, 2017 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I. Jesuorobo Barrister and Solicitor 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") is a citizen of Nigeria and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. The Appellant has not requested to submit new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] 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 section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 Background [3] The Appellant alleges that he is a bisexual and his sexual orientation was exposed on July 4, 2016. He alleges that if he returns to Nigeria he will be persecuted by the police, his father's family, and youth vigilantes from his community due to his sexual orientation. [4] The Appellant obtained a fraudulent passport with the assistance of an agent and left Nigeria for Canada on XXXX XXXX XXXX 2016. He arrived in Canada on XXXX XXXX XXXX 2016 and made an inland refugee claim on August 12, 2016. [5] The Appellant had a refugee determination hearing on October 13, 2016. In a written decision issued on November 4, 2016, the RPD rejected the claim. The RPD panel found the Appellant lacking in credibility. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that he would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Nigeria. [6] The Appellant argues that the RPD erred in its credibility assessment and imposed an undue burden on the Appellant to establish his claim. ROLE OF THE RAD [7] The recent Federal Court of Appeal decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that the RAD must apply in reviewing decisions of a first-level administrative tribunal. The Federal Court of Appeal states: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.3 [8] There are, however, cases where the RPD may enjoy a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.4 Although the RAD should sometimes exercise a degree of restraint before substituting its own determination in such cases, the issue of whether the circumstances warrant restraint, should be addressed on a case-by-case basis. The amount of deference given to the RPD's findings on credibility of oral evidence will depend on the advantage the RAD finds that the RPD has in a particular case.5 Having done this, the RAD will provide a final determination, by either confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. ISSUES IN APPEAL [9] The Appellant argues the following issues in his appeal, which the RAD has rephrased for ease of reference: 1) The RPD erred in its credibility assessment;6 and, 2) The RPD erred by imposing an undue burden on the Appellant.7 ANALYSIS Credibility The RPD's Findings [10] The RPD found the Appellant lacking in credibility with respect to his core allegations that he is a bisexual man. This was based on the findings that the Appellant failed to establish on a balance of probabilities that he was involved in a same sex relationship with men named XXXX and XXXX, while he was in high school and in university.8 The RPD also found that the Appellant failed to establish on a balance of probabilities his allegation that his sexual orientation was exposed in Nigeria.9 Based on the above, and the Appellant's lack of credibility about how he entered Canada with an agent, the RPD found him lacking in overall credibility.10 The RPD further noted that because of its credibility concerns, the Appellant's supporting documentation were given no probative value in establishing his allegations that he is a bisexual man.11 The Appellant's Argument Relationship with XXXX [11] The Appellant argues that the RPD erred in its assessment of his relationship with XXXX in high school. In particular, the Appellant contends that the RPD imposed Western standards on him by finding XXXX behaviours towards the Appellant were not reasonable given the stigma towards homosexuality in Nigeria. For example, the Appellant states the RPD discounted the notion of seniority, its overbearing and commanding impact on the Appellant, and that just because XXXX openly touched the Appellant and played with his hair does not imply a homosexual connotation. Rather, it is submitted that it was important for the RPD to consider the testimony that XXXX was a senior and could do what he wanted without caring about the views or feelings of his victim.12 [12] Furthermore, the Appellant argues that the RPD disregarded his testimony that he and XXXX used to touch a lot and that XXXX played with his hair, when it found it was unlikely that XXXX and the Appellant would engage in homosexual acts, such as kissing, without any previous suspicions that they were romantically interested in each other. The Appellant submits that prior touching and playing with hair could be seen as romantic. In addition, the Appellant faults the RPD by submitting that the RPD should have made further inquiries regarding the layout of the washroom where they would kiss, instead of finding that it was not believable that the Appellant would put himself at risk by engaging in such acts in a public location. By making such a finding the Appellant argues that the RPD essentially says there are no homosexuals in Nigeria, because no one would defy societal taboo and take risks in order to express their feelings or get their satisfaction. Also, the RPD ignores that he was a young and reckless teenager at the time.13 Finally, the Appellant argues that the RPD unreasonably expected him to still be in contact with XXXX and specifically know his location, especially when he has moved on with his life. It was also unreasonable for the RPD to expect the Appellant to have corroborative evidence of a secret relationship.14 Relationship with XXXX - The RAD's Assessment [13] The RAD rejects the Appellant's argument and finds parts of his argument contradictory. The Appellant effectively argues that XXXX behaviour of touching him and playing with his hair has both romantic and non-romantic connotations, which the RPD ignored and disregarded. In addition, the Appellant's submission with respect to XXXX position as a senior and as a person who did what he wanted to "vulnerable victims", leads the RAD to further doubt whether the Appellant and XXXX were in a same-sex relationship. This argument makes it appear that the Appellant was an unwilling victim of XXXX advances because of XXXX authority, rather than in a consensual relationship. This submission and interpretation of the evidence in the case further undermines the Appellant's allegation that he was in a two-year same-sex relationship with XXXX. [14] After reviewing the whole record, including the audio recording, the RAD finds the RPD did not err. The RAD finds the Appellant has not established on a balance of probabilities that he was in a relationship with XXXX between 2006 and 2008 for the following reasons. [15] The RPD asked the Appellant how the relationship evolved and the Appellant stated that one day he was carrying XXXX soccer equipment into the washroom at the high school and XXXX asked if the Appellant wanted to kiss him. The Appellant said he agreed and kissed him, but he also stated he treated it like an order because XXXX was a senior and he was his "school father". The Appellant also stated XXXX was outspoken and authoritative, and so he could do what he wanted. The RPD asked whether there were other occasions they were "intimate" and the Appellant stated "a couple of times", and then stated "4 to 5 times". These encounters occurred during "siestas" when everyone was going to be in their bed, so they would go to the washroom together. The RPD asked, given his knowledge about the taboo nature of same-sex relationships in Nigeria, why he would take the risk to kiss another man in a public location, such as the washroom, where anyone could enter at any time and expose them. The Appellant responded that XXXX was outspoken and did not care, and he was the authority, and there were many sections in the washroom. He added, if anyone came into the washroom he could simply say he was forcing me to clean the washroom. The RPD asked how it was possible that XXXX would request a kiss from him without any indication before about how the Appellant felt about him. The Appellant stated he was always holding him and playing with his hair, like a father playing with a child, so maybe he was trying to size him up.15 [16] When the RPD asked what activities they did together that made it a relationship, the Appellant stated they would eat together, share drinks and chocolate and share provisions. The RPD also asked about whether they had any intimate conversations where they would talk about their feelings or their relationship, but the Appellant said they did not. When XXXX graduated from high school, he allegedly moved to Lagos, but he visited the Appellant a few times while he was still in high school. Despite these visits, the Appellant stated they did not keep in contact. The Appellant also stated their relationship ended in 2008 when he himself graduated. They did not keep in contact after that point either, but the Appellant stated he tried to contact him, but he heard that XXXX had moved to the Northern part of Nigeria. The RPD asked whether he had email in 2008, and the Appellant said he did not. Later in his testimony he indicated he tried to contact XXXX by asking a friend for his phone number and searching for him on Facebook. [17] The RAD finds it unlikely that the Appellant would engage in such risky behaviour in a public washroom knowing that being seen as a bisexual or homosexual was unaccepted in Nigeria, and that anyone could walk-in on them at any moment. The Appellant's argument that the RPD did not consider the size of the washroom and its numerous sections, is not accepted. The Appellant did not testify that they hid in a washroom stall when they first kissed. Rather this was indicated later when asked about going into the washroom during the "siestas". The Appellant's argument that he was a reckless teenager is also not accepted, since this evidence was not before the RPD. Therefore, the RAD cannot consider it. Also, the Appellant's response to the question about why XXXX would ask for a kiss when there was no indication about how the Appellant felt about him is found to be implausible. While the Appellant stated at the RPD that it was because XXXX was touching him and playing with his hair, the Appellant's submissions argue that this would not necessarily be construed as same-sex attraction. Based on the above, the RAD concurs with the RPD finding that it was unlikely they engaged in this behaviour given the risk of kissing in such a public location in Nigeria and given there was no indication from the Appellant about how he felt about him. [18] The RAD also finds the Appellant's description of the nature of their relationship to be indicative of them not being in a genuine relationship. Rather, it appears their relationship consisted of several encounters of kissing, which occurred over the span of a couple of years. Based on the Appellant's description of the events, it is more likely than not that XXXX used his seniority and authority to impose this intimacy on the Appellant. Another indicator that this was not a genuine relationship is that they never discussed being in a relationship or their feelings for each other over the span of two years. Even taking into account that they were teenagers at the time, the RAD would reasonably expect them to have discussed at some point the nature of their same-sex relationship and their feelings for each other. Based on these factors, the RAD finds the Appellant labelling his encounters with XXXX as a same-sex "relationship" to be an embellishment, which undermines the credibility of his allegation that he is a bisexual man. Rather, it appears to have been a series of encounters where two teenagers kissed a few times because one of the individuals was in a position of authority. [19] The Appellant testified that after XXXX graduated, XXXX visited the high school a few times. However, they did not remain in contact by phone or email after XXXX graduated. The Appellant further stated that their relationship ended in 2008 when the Appellant graduated and not when XXXX graduated. The RPD asked the Appellant if they remained in contact, and the Appellant said they did, but after a while XXXX moved to the Northern part of Nigeria. When the RPD asked how he knew he moved there, he said because "news flies" and he was popular in school. The RPD asked if he tried to contact him and he said he did, but there was no success after asking a friend of XXXX for his phone number and searching on Facebook. The RPD asked when the Appellant got Facebook, and he said he signed up for it in high school. The RAD finds the Appellant's lack of contact with XXXX after XXXX graduated further undermines his allegation that he was in a relationship with him. Furthermore, the Appellant's statement that he could not contact him because he did not have email in 2008 lacks credibility because he also stated he possessed a Facebook account in high school, as well as after 2008. The RAD notes that an individual requires an email account in order to sign-up for a Facebook account. The Appellant's evidence about his inability to stay in contact with XXXX, yet be in a relationship with him until 2008, lacks credibility. [20] For the above reasons, the RAD finds the Appellant has failed to establish on a balance of probabilities that he was in a same-sex relationship with XXXX. Therefore, the RPD did not err. Relationship with XXXX [21] The Appellant argues that the RPD erred in finding he did not establish he was in a relationship with XXXX. In particular, the Appellant suggests the RPD was also unreasonable in impugning his credibility because his Basis of Claim (BOC) narrative said he was in a relationship for eight years, but he testified at his hearing he was in a relationship with XXXX for four years. The Appellant submits his explanation was reasonable, that they were in a serious relationship for four years and then separated by distance for the other four years. The Appellant argues that the RPD also unreasonably expected the Appellant to remember with vivid accuracy his first physical intimate encounter with XXXX, an event that occurred eight years ago, and that he was not hesitant and evasive in responding. The Appellant further argues that the RPD imposed Western standards on him because it found his account of what they did together to be general and vague.16 Relationship with XXXX - The RAD's Assessment [22] The RAD rejects the Appellant's argument. First, the Appellant stated in his BOC he was in a relationship with XXXX beginning in 2008, when they met at his matriculation party at XXXX XXXX. In his BOC, the Appellant stated that their relationship continued after their graduation in 2014 and during their National Youth Service Corp (NYSC) program. At the hearing, the RPD asked how long the relationship lasted, and the Appellant stated four years. However, when the RPD asked the Appellant when the relationship ended, he stated in early 2016. The RPD informed him that these dates indicate it was an eight year relationship, not a four year relationship. The Appellant explained that what he meant was that it was a serious relationship for four years when they were seeing each other all the time, but after school they went their separate ways and the relationship was not as intimate. After school they would talk over the phone and send pictures to each other. He then stated that for four years it was a serious relationship because he saw him every day in all his years in university.17 The RAD does not accept his explanation as it is also inconsistent with his BOC and his testimony. The Appellant's BOC and his testimony is that they started their relationship in 2008 and both graduated in 2014. This is six years they would have been in school and seeing each other all of the time, not four years as was his testimony. The Appellant provides no evidence that at any point during university they ceased to be in a relationship, which could support his explanation that they were serious for only four years. Furthermore, the Appellant's explanation that they were apart after university does not explain his statement in his BOC that after graduation in 2014 they "continued their relationship during NYSC."18 The length of their relationship is a significant matter and the difference between four and eight years is not minor. The RAD finds his explanation for now stating he was in a four year relationship rather than an eight year relationship inadequate and further inconsistent. Therefore, the RAD finds the Appellant's inconsistency about the length of his same-sex relationship with XXXX to seriously undermine his credibility that he was in a relationship with XXXX. [23] Second, the RAD reasonably expects the Appellant to be able to remember when and where they were first intimate without having to repeat the question several times, given the significance of such an event. Having listened to the audio recording, the RAD found the inability of the Appellant to answer a direct question on this matter demonstrated evasiveness. That said, the RAD did not find the Appellant hesitant in his answers, insofar as there was no delay in responding. While the Appellant contends that the RPD unreasonably required him to recall events from eight years ago with vivid accuracy, the RAD rejects this argument. The RPD did not impose such a standard, but simply wanted the Appellant to answer the question asked, without it having to be asked several times. This was acceptable and the RPD did not err in its request. The RAD also rejects the argument about Western standards. The RAD does not see how this argument excuses the Appellant from providing detailed information about his relationship and their activities together. The RPD was not seeking explicit information or being voyeuristic by asking the question. In the RAD's view, the Appellant's response to the question about what they did together was general and vague, and it gave the impression that the Appellant and XXXX were not more than just friends. The RAD would expect that given the length of their relationship, he could provide greater detail of the committed partnership of eight years he alleges. Therefore, the RAD finds the Appellant's testimony to be vague and evasive about key events in their relationship and their activities together. This undermines the Appellant's credibility about whether the Appellant was in a same-sex relationship with XXXX. [24] Based on the above credibility findings, the RAD finds the RPD did not err. The Appellant has failed to establish on a balance of probabilities that he was in a same-sex relationship with Ambrose. Exposure of Sexual Orientation in Nigeria [25] The Appellant argues that the RPD erred by impugning his testimony because he did not provide evidence of his mother providing money in his bank account when he was in hiding, to pay the hotel. He also argues it was an error to impugn his testimony because he did not provide evidence or make efforts to obtain a receipt from the hotel he stayed at for 2-3 weeks prior to his departure. The Appellant submits that the record does not contain any information about the methods of operation of hotels in Nigeria. The Appellant testified that it was not a reputable hotel and they did not give receipts in order to avoid leaving a paper trail. In addition, he states that he did not indicate at the hearing that his mother put money into his account for the hotel at that time, but he used money put into his account on a prior occasion because he was unemployed. The Appellant further submits that the RPD erred by finding he took no steps to find out about who exactly is pursuing him and what his father has done about the situation, which would indicate lack of credibility with respect to his subjective fear. This was because he had not established that his sexual orientation was exposed, or that he is being pursued by police or youth vigilantes. The Appellant argues that it was reasonable to infer that the vigilantes heard about his sexual orientation from his family.19 [26] The RAD agrees with only part of the Appellant's argument. The RAD accepts that the RPD erred when it stated his mother put money in his bank account at the time he was at the hotel. Upon review of the audio recording, the Appellant's evidence indicates that the money in his account could have been put there prior to his time at the hotel. However, given the Appellant indicated at the RPD hearing that he was able to pay the hotel because he had ATM cards, the RAD would reasonably expect that he could have provided evidence of his transactions for the hotel. The Appellant even indicated at the RPD hearing that he specifically turned his mind to how he could establish he was at the hotel. Whether he had to withdraw such funds or pay direct, the Appellant could have reasonably provided such evidence. His explanation that the hotel does not issue receipts is not relevant if he had ATM cards and could account for the transactions or cash withdrawals that way. [27] Furthermore, the RAD rejects the Appellant's argument with respect to his lack of interest in determining who was after him and his risk. The Appellant states that it could be inferred that youth vigilantes learned his sexual orientation from his family. However, this is speculative and this is not supported by the record. [28] Notwithstanding the above error, the Appellant does not identify any further errors with the RPD's other findings with respect to its conclusion that the Appellant failed to establish that his sexual orientation was exposed in Nigeria. The one error identified above is not sufficient to undermine this credibility finding. Based on the RAD's own assessment of the record, including the audio recording, the RAD sees no reason to disturb the RPD's finding as the RPD provides sufficient reasons to support its conclusion. In particular, the RAD highlights the Appellant's testimony that he was in hiding at the hotel for 2-3 weeks. This is problematic considering he alleges he was exposed on July 4, 2016, went into hiding immediately, and left for Canada on XXXX XXXX XXXX 2016. This leaves between one and two weeks where the Appellant was not in hiding, but alleges to be afraid for his life. Therefore, the RAD finds the Appellant has not established, on a balance of probabilities, that his sexual orientation was exposed in Nigeria. Psychological Report [29] Based on the above credibility findings, the presumption of truthfulness is rebutted. However, the Appellant argues that the RPD ignored corroborating evidence which shows that the psychological trauma the Appellant experienced could impact his evidence. He also claims it was incorrect for the RPD to conclude that the psychotherapist's conclusions were based only on a 1-hour self-reporting interview, when the report states that a number of tools were used. The Appellant also argues that it is also an error for the RPD to make negative credibility findings before properly assessing the psychological issues.20 For the reasons below, the RAD rejects this argument and finds the psychological report does not adequately address or overcome credibility concerns with his evidence. [30] The RAD notes that throughout the RPD hearing, the Appellant was quick to answer questions and provide lengthy responses to the questions the RPD asked. When the Appellant was quick to respond, there did not appear in the RAD's view any apparent issue or delay in the Appellant's ability to recall information. He appeared fluid in his responses. As a result, the nature of the Appellant's testimony, based on the RAD's account of the hearing, does not entirely coincide with the psychological report's assessment. Moreover, the Appellant testified to having slept well in the week prior to the hearing, which based on the contents of the psychological report, the RAD infers his symptoms and potential cognitive challenges could have been alleviated.21 [31] In addition, the RAD understands that RPD hearings can be stressful events. This is unavoidable. However, what is important is that the RPD is mindful of the Appellant's needs and accords them the appropriate level of fairness. The RAD finds the RPD did so in this case. Breaks were provided during the hearing and the Appellant was allowed to take a break at any time he wished. The fact that the psychological report states that he may become stressed during the hearing is not a cure all for his deficient testimony. In addition, the RAD notes that it is the trier of fact and assesses the Appellant's credibility independently, based on the record. The RAD does not need to defer to the author of this psychological report in that respect. In this case, the RAD does not believe the underlying facts of the Appellant's claim, the same underlying facts that the Appellant reported to his psychologist and upon which their diagnosis is based. Therefore, if the underlying facts are disbelieved, a report of post-traumatic stress disorder warrants little evidentiary weight and does not overcome the RAD's credibility concerns about the Appellant, absent any independent clinical studies performed to support the psychological assessment and any other medical basis for the diagnosis.22 [32] Based on the above, the RAD finds that the Appellant has failed to establish on a balance of probabilities that he was in a relationship with XXXX and XXXX. In addition, he has not established on a balance of probabilities, his sexual orientation has been exposed in Nigeria. As a result of these credibility concerns, the presumption of truthfulness has been rebutted and the RAD now considers whether the Appellant's supporting documentation overcomes the RAD's credibility concerns with his evidence. Overall Credibility, Supporting Documents & Undue Burden [33] The Appellant argues that the RPD erred by making an overall credibility finding with respect to his lack of knowledge about travelling to Canada on an assumed identity, or the assumed identity of the agent. The Appellant stated that if the RPD considered it irrelevant, then it should not have cast doubt on his overall credibility. Furthermore, by impugning each of his documents, the RPD imposed an unreasonable burden on him with respect to his affidavits from his mother and neighbour and it was unreasonable to expect him to show that those who join LGBTQ organizations in Canada are bisexual or homosexual.23 [34] The RAD rejects the Appellant's argument and finds the RPD did not err in its finding with respect to his overall credibility related to how he entered Canada and his lack of knowledge about the agent, their plan, and about what to say if immigration officials asked him questions. The RPD found his responses on this matter to be not credible, which impacted his overall credibility. The RPD did not find that this was irrelevant, as claimed by the Appellant. Rather, the RPD correctly stated that this issue did not directly address the core of the Appellant's allegations that he is a bisexual man. That does not mean the finding was irrelevant, as the RPD correctly observed that his lack of credibility on this matter impacted his overall credibility. The cumulative impact of the RPD and RAD's credibility concerns mentioned above can lead to the conclusion that the Appellant's credibility is fatally undermined and he is lacking in overall credibility.24 As was found by the RPD, the RAD finds accordingly in this case. Such a negative overall credibility finding can extend to all of the Appellant's evidence, including his documentary evidence.25 Since it can extend to his documentary evidence, including the affidavits from his mother and neighbour, the RPD did not err in its treatment of those documents. [35] In regard to the supporting letters from the 519, the MCC, and the Black CAP, the RPD did not err. The RAD finds that there is nothing in these letters to establish on a balance of probabilities the Appellant is bisexual. There is nothing to indicate that the 519, the MCC, Black CAP, either grant membership based on an individual's sexual orientation or that these organizations attempt to make any determination of an applicant's sexual orientation. The letters do nothing more than establish that the Appellant attended activities and services at these organizations. The RAD also observes that, given the short period that the Appellant joined these organizations and the few times that the Appellant has attended activities at these organizations, there would be insufficient time for these organizations to know the Appellant well enough to give an accurate account of his commitment and his sexual orientation. Therefore, the RAD concludes that nothing in the letters establish that the Appellant is bisexual. [36] Based on a review of the totality of the evidence, including the audio recording, the Appellant is found lacking in credibility in regards to his allegations that he is a bisexual man. This finding is grounded in the RAD's credibility concerns with his evidence. In particular, the Appellant failed to establish on a balance of probabilities that he was in a same-sex relationship with XXXX and XXXX, and he failed to establish on a balance of probabilities that his sexual orientation was exposed in Nigeria. He was found lacking in overall credibility and his supporting documents did not overcome these credibility concerns. Although, the RAD had concerns with one of the RPD's findings, it is not fatal to its final determination. Therefore, the RAD finds that the Appellant does not have a well-founded fear of persecution on a Convention ground, nor would he be personally subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Nigeria. CONCLUSION [37] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its credibility findings or place an undue burden on the Appellant. While the RAD has concerns over one of the RPD's findings, it is not fatal to its final determination that the Appellant is not a Convention refugee or a person in need of protection. [38] 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) "G. Erauw" G. Erauw April 7, 2017 Date 1 S.C. 2001, c.27 at s. 111(1)(a). [IRPA]. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Ibid., para. 103. 4 Ibid., para. 70. 5 Ibid., paras. 70 and 74. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 54-72, at paras. 13-60. 7 Ibid., pp. 72-74, at paras 61-69. 8 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, paras. 8-18. 9 Ibid., paras. 19-23. 10 Ibid., paras. 24-27. 11 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, paras. 28-36. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 54-55, paras. 14-16. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 55-57, paras. 17-21. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 57-59, paras. 22-26. 15 Exhibit RPD-1, RPD Record, Audio Recording, starting at 29:00. 16 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 59-62, paras. 28-33. 17 Exhibit RPD-1, RPD Record, Audio Recording, at 1:00:45-1:20:40. 18 Exhibit RPD-1, RPD Record, BOC Narrative, pp. 28-29. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 67-69, paras. 46-51. 20 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 62-67, paras. 34-45. 21 Exhibit PRD-1, RPD Record, Psychological Report, pp. 226-227. 22 Saha, Gobinda Chandra v. M.C.I., (F.C., no. IMM-5193-07), Phelan, 23 March 2009, 2009 FC 304 at para. 16. 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 69-74, paras. 52-65. 24 Lawal, Samson v. M.C.I. (F.C., no. IMM-5102-09), de Montigny, May 21, 2010, 2010 FC 558, paras. 18-19. 25 Ibid., para. 22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-16943