TB6-05100

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 : TB6-05100 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 15, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Henry Igbinoba 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 XXXX (Appellant) a.k.a. XXXX XXXX XXXX, who claims to be a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee. In the alternative, the Appellant requests that the RAD refer the matter 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 alleges the following: [4] His parents were born Muslim, but converted to Christianity. In XXXX 2013, the Appellant's father was stopped on the way home by members of Boko Haram who informed him that he and his family had to stop attending church and return to Islam or be killed. The same threats were made several times, and each time his father reported the threats to police. At the end of XXXX 2013, the Appellant and his father were stopped and threatened by Boko Haram, who told them that this was their last warning. [5] On XXXX XXXX, 2013, while at work, the Appellant heard shots coming from the direction of the church and saw people running away from the area. He was informed by a woman who was fleeing, that the church had been attacked by Boko Haram. When he arrived at the church, he discovered that his wife and children as well as his parents and other siblings had been killed, but that his sister had survived. The attackers returned to kill the survivors and rescuers, but he escaped with his sister and they managed to make their way home. While at home, they were attacked by a group of individuals, forcing them to flee, eventually making their way to a XXXX farm where they hid. While in hiding, the Appellant eventually managed to get a message to his boss who made arrangements for him to leave the country. Upon arriving in Canada using false documents, he was detained until a friend in Nigeria sent identity documents. [6] The Appellant's application for refugee protection was heard on January 14, 2016. [7] In a decision of February 12, 2016, the RPD rejected the claim, finding that there was insufficient credible evidence to make a positive decision for protection under sections 96 or 97(1). [8] As grounds for appealing, the Appellant submits that the RPD made numerous errors in fact and in law. ROLE OF THE RAD [9] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica1 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found, that where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [10] In light of the Court's ruling, when conducting an appeal of a determination by the RPD, the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. The Merits of the Appeal Appellant's Identity and Credibility [11] The RPD found that the Appellant did not satisfactorily establish his identity and that his actions and explanations regarding his use of multiple identities undermine his credibility. The RPD noted that in 2008, the Appellant applied for a visa to the United Kingdom (UK) under the name of XXXX XXXX XXXX,2 The Appellant explained that his employer had assisted him in making an application under that name to allow him to work in the UK. [12] Upon entry to Canada, the Appellant presented a British passport to Canadian officials under the name of XXXX XXXX XXXX.3 He also provided a Nigerian passport in the same name. He told the Canadian officials that he was a resident of England, that he was married with children, and that he had just arrived from a visit to Nigeria. After failing to answer basic questions about England and unable to explain the absence of Nigerian entry and exit stamps on his British passport, the Appellant changed his story and stated that the British passport was false, but that the Nigerian one was genuine. [13] The Appellant then changed his statement again, giving his name as XXXX XXXX XXXX and stating that he had never been to the UK. He testified that the second Nigerian passport, that was also false, was created for him, free of charge by his employer to help him escape. He confirmed his name to a second officer as XXXX, although when asked to write it to two more times, he spelled it as XXXX. [14] The Appellant testified that he lied to Canadian authorities because he was following instructions and that he misspelled his name because he was under a lot of stress and tension at the airport, when he entered Canada. [15] After being detained in Canada because of concerns regarding his identity, the Appellant provided a number of documents in support of his identity; namely: a Nigerian driver's licence in the name of XXXX XXXX XXXX, and an Attestation of Birth and Affidavit of Birth Certificate in the name of XXXX XXXX XXXX. Additional documents arriving from Nigeria in support of allegations in his claim also refer to the name, XXXX XXXX XXXX. After documentation from Nigeria arrived, the Appellant revised his Basis of Claim (BoC) form, changing all references to him and his family that initially appeared as XXXX to XXXX. [16] After reviewing the Appellant's testimony, the RAD, too, has concerns with the Appellant's identity and credibility. It finds his explanation for his failure to spell his name correctly, unpersuasive and his willingness to use false documentation, even before the alleged incidents of persecution occurred, problematic. As well, after safely arriving in Canada, the Appellant revealed his "true" identity only after his original false story and identity were challenged by Canadian officials at the port of entry. While the RAD appreciates that refugee claimants may need to use false documents to flee the country where they face persecution, it finds that the Appellant's continued attempts to mislead authorities upon arrival in Canada as to his true identity, undermine his credibility. Omission [17] The RPD asked the Appellant if there was any reason to believe that Boko Haram is still interested him, three years after the alleged attack on the church. He replied that his neighbour told him in XXXX or XXXX 2015 that his house had been burned down by Boko Haram. When asked why he had not included this new information in amended BoC narrative of August 2015, he replied that he had not informed his lawyer. Asked why not, he replied that he did not know. The RPD found that the new allegation and lack of explanation raised concerns that the Appellant was adding new information to enhance his claim. [18] The RAD has considered the Appellant's testimony in regard to this omission and finds that he has not satisfactorily explained why he did not tell his lawyer that his house had been burned down by Boko Haram and why the information was not included in his amended BoC, when the alleged event occurred prior to the submission of his amendments to the Immigration and Refugee Board. The RAD finds that during his testimony at the hearing, the Appellant has embellished the elements of the claim originally provided in his BoC narrative in effort to bolster his claim by indicating that Boko Haram continues to demonstrate a negative interest in him. The RAD finds that his embellishment of events undermines his credibility. The Appellant's Family [19] The RPD had a number of concerns with the evidence regarding his family, given the absence of reliable supporting documents. [20] With respect to his wife, the RPD found that the Appellant provided few details about her, indicating an absence of personal knowledge of the wife. As well, when asked her birthday, he gave his own birthday. When questioned about why he had given his date of birth rather than hers, he replied that he had misunderstood, even though a series of preceding questions had been about the wife. There are also three iterations of her name in various documents: XXXX XXXX,4 in his Generic Application Form; XXXX XXXX,5 in his BoC; and XXXX XXXX6 in the pastor's letter, in the news clipping of the attack on the Church and on a death certificate. [21] The RPD also noted an anomaly in the birth certificates of the Appellant's two children. The name of the clinic in the header of the certificate is listed as "XXXX Clinic", but the stamp on the certificate spells the name of the clinic as "XXXX."7 [emphasis added] [22] The RPD had concerns, as well, with the death certificates of the members of the Appellant's family who allegedly died in the attack on the church. The most notable error being the duplication of the death certificate numbers XXXX and XXXX. In other words, there were two death certificates with certificate number XXXX and two with certificate number XXXX. The RPD notes that these are purported to be official records of death and found that having death certificates with the same certificate number with no apparent rationale is a serious error. [23] The Appellant provided a news clipping from an original copy of the XXXX XXXX.8 During the hearing, the RPD searched the online archives of the XXXX XXXX for XXXX XXXX, 2013 (the date on the news clipping) but was unable to find the specific news story of the attack on the church which was in the copy of the XXXX XXXX provided by the Appellant. [24] The RPD also searched the US State Department's 2014 Report on Terrorism which provides a list of notable terrorist attacks in Nigeria, especially by Boko Haram, but found no mention of the specific attack on the church. The RPD concluded that it makes no sense that an attack of this magnitude, reported in a national newspaper like the XXXX XXXX would not be listed. [25] The RPD also noted that only photograph provided was of the Appellant with his brother and his wife and cannot establish that the Appellant had a wife and children. [26] The RAD notes that the Appellant has provided no explanations as to the anomalies in the birth and death certificates. With respect to the news clipping, the RAD recognizes that while the online version of a newspaper may differ from the hard copy provided by the Appellant, it would reasonably expect that a significant story of an attack on a church by Boko Haram resulting in numerous casualties would be included even in the online version of the newspaper. The absence of the story in the online version of the XXXX XXXX and its absence from the list of notable terrorist attacks in the US State Department report is troubling and lead the RAD to question the authenticity of the evidence submitted by the Appellant. [27] The RAD also has concerns that the Appellant was unable to provide any direct evidence of his wife and children other than the birth and death certificates which contain several anomalies as highlighted by the RPD. Problems with documents submitted by the Appellant [28] In addition to the problems identified by the RPD in some of the Appellant's documents, the RAD also has some concerns with two of the Appellant's other documents. [29] The Appellant produced a police extract from a "COMPLAINT" made on "XXXX XXXX, 20139 at about XXXX XXXX" by XXXX XXXX XXXX, the pastor of the Appellant's church. The "complaint" states that the pastor: ...came to the station and reported that, there was a mayhem in XXXX, XXXX XXXX where several churches and Christians were killed. One of the churches involved was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX where is the Resident pastor, and the police inspected a number of churches and found the following victims were killed, which includes:...Mr. XXXX XXXX XXXX was the only survival [sic] of this unfortunate incident... Mr. XXXX XXXX have [sic] to escape for his there [sic] life because these dreaded BOKO HARAM SET had the feeling that some people escaped which they are in search of....10 [30] The RAD notes several problems with the police extract. First all, according to the police extract, the complaint which references the attack on the church by Boko Haram, was made at XXXX XXXX or nearly XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2013. The Appellant's BoC narrative, however, suggests that the attack would have taken place sometime around XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In his narrative, the Appellant has written that he was at church on XXXX XXXX, 2013 and left at "about XXXX XXXX XXXX XXXX." He goes on to state: "A few hours later, I suddenly heard rapid shooting come from the direction of the church.... I saw a woman in a car and I asked what was happening. She said that Boko Haram had attacked the church."11 [31] The complaint gives a list of names of the victims, which includes the names of his members of the Appellant's family. The RAD finds it improbable that, even if it disregards the time anomaly in the report, the pastor was able to provide a comprehensive list of the victims to police on the same day as the alleged attack. The report also states that: "Mr. XXXX XXXX XXXX was the only survival [sic] of this unfortunate incident." According to the Appellant's BoC, however, his sister Belinda also survived the attack and escaped with the Appellant. [32] The RAD finds that the problems with the police extract of the pastor's complaint bring into question the authenticity of the document and undermine the credibility of the Appellant. [33] The Appellant has also submitted an affidavit12 from Pastor XXXX XXXX. The affidavit includes two dates: XXXX XXXX, 2013 and XXXX XXXX, 2015. The RAD is unclear as to why there are two different dates on the affidavit. In the affidavit, the pastor states: "That I am one of the survival [sic] of the tragic incident of the BOKO HARAM SET." [34] The RAD notes that the complaint from Pastor XXXX XXXX in the police extract, contains the statement: "Mr. XXXX XXXX XXXX was the only survival [sic] of this unfortunate incident." The Pastor's affidavit states: "I am one of the survival [sic] of the tragic incident." Aside from the similar wording, including the misuse of the word "survival," the RAD notes that the police extract states that the Appellant was the only survivor, but that the affidavit indicates that there were several survivors, including the pastor. [35] The RAD further notes that the affidavit is dated XXXX XXXX and XXXX, 2013. Since the pastor is attesting to the deaths of members of the Appellant's family, the affidavit would appear to have been prepared for the Appellant to support his allegation that his family was killed by Boko Haram. According to the Appellant's BoC,13 it was XXXX 2013 when his boss, XXXX told him that he would be making arrangements for him to get to Canada and that it wasn't until XXXX 2013, when he actually left Nigeria for Canada. The RAD questions, therefore, why and for what purpose the pastor, had completed an affidavit in XXXX 2013 that appears to have been prepared to corroborate the Appellant's allegations. The RAD finds that the questions and concerns with the pastor's affidavit, further call into question the authenticity of the Appellant's documents and his personal credibility as a witness. The Appellant's Submissions [36] The Appellant submits that the RPD had made its mind based on minor inconsistencies in his testimony. He further submits that the RPD unreasonably failed to accept his explanation that he was afraid, confused, and anxious at the port of entry to Canada which led to his inability to spell his name correctly. Notwithstanding his explanation, he submits that he amended his BoC to rectify the error before his hearing. [37] The Appellant submits that the RPD ignored or gave little weight to a significant amount of objective documentary evidence, affidavits, police reports, a photograph and the psychologist report. Instead, the RPD focused on minor inconsistencies and relied on speculation without evidentiary support. He submits that the RPD did not consider the totality of the evidence and give appropriate weight to the objective documentary evidence which supports the Appellant claim of persecution. Internal Flight Alternative (IFA) [38] At the hearing, the RPD presented, Port Harcourt as a potential IFA for the Appellant. When asked if could live in Port Harcourt, the Appellant replied: "They [Boko Haram] are everywhere." The Appellant's counsel at his hearing submitted that there is evidence Boko Haram's presence in both Lagos and Port Harcourt,14 and that they have made attacks throughout the country. The possibility of an IFA, however, was not raised or discussed in the RPD's Reasons and Decision and was therefore not addressed in the Appellant's appeal. The RAD therefore requested submissions from the appellant on the viability of an IFA in Nigeria. [39] Post-hearing, the Appellant has submitted that he provided, prior to his hearing, overwhelming evidence15 of Boko Haram's activities and attacks in the southern part of the country. He has further submitted that this evidence shows that Boko Haram is active throughout the country, and not just in the north as suggested by the RPD. As such, he submits that Boko Haram has the capacity to locate him anywhere in Nigeria. [40] The Appellant testified at his hearing that he does not write or speak English. He submits therefore that it would be difficult and unreasonable to have him relocate to other parts of Nigeria where the socio-economic situation and language of the people are completely different. Given his lack of education and skills combined with the trauma he suffered at the loss of his family, the Appellant submits that it would be very difficult to acclimatize to the volatile nature of the Delta Region of Nigeria and specifically Port Harcourt. [41] In assessing the viability of the IFA, the RAD has applied the two-prong test established by the Federal Court of Appeal in Rasaratnam.16 [42] The RAD notes that even though Boko Haram has initiated attacks, typically bombings in cities in the south of Nigeria such as Lagos and Port Harcourt, the evidence17 indicates that their influence and presence is really in the north and that aside from isolated terrorist attacks, they have little presence in the south. [43] The RAD finds that even if one were to believe that the Appellant's family was killed during an attack on their church by Boko Haram, there is insufficient evident to indicate that it was his family that had been targeted. The evidence provided the Appellant18 clearly indicates that Boko Haram has a history of attacking churches. There was no evidence to indicate that his family had been targeted during the attack on his church. SECTION 97 [44] The RAD also considered the Appellant's claim under section 97 and finds that because it does not accept that the Appellant is targeted by Boko Haram, any problems with the group would be part of generalized risk faced by virtually all Nigerians. Country documents19 indicate that while Boko Haram is primarily situated and active in the north, it has been responsible for isolated terrorist activity in certain areas of the south. [45] The RAD also considered the Appellant's claim under section 97 and finds that because it does accept that the Appellant is targeted by Boko Haram, any problems with the group would be part of generalized risk faced by virtually all Nigerians. CONCLUSION [46] For the reasons set out above, the RAD, having reviewed the evidence, finds that the Appellant has a viable IFA in Lagos, and pursuant to section 111(1)(a) of the IRPA, 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. (signed) "Anthony da Silva" Anthony da Silva June 15, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, Exhibit 4.1, at p. 143. 3 Exhibit RPD-1, RPD's Record, Exhibit 4.1, at p. 145. 4 Exhibit RPD-1, RPD's Record, Exhibit 1, at p. 88. 5 Exhibit RPD-1, RPD's Record, Exhibit 2, at p. 23. 6 Exhibit RPD-1, RPD's Record, Exhibit 7, at p. 246. 7 Exhibit RPD-1, RPD's Record, Exhibit 11, at pp. 340, 341. 8 Exhibit RPD-1, RPD's Record, Exhibit 7, at p. 248. 9 Exhibit RPD-1, RPD's Record, Exhibit 11, at p. 342. 10 Ibid. 11 Exhibit P-2, Appellant's Record, BoC narrative, at p. 27, para. 14-16. 12 Exhibit P-2, Appellant's Record, at p. 44. 13 Exhibit P-2, Appellant's Record, BoC narrative at p. 29, para. 30, 33. 14 Exhibit RPD-1, RPD's Record, recording of RPD hearing. 15 Exhibit P-2, Appellant's Record, at pp. 85-92. 16 Rasaratnam v.Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 17 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Nigeria (3 May 2013), items 7.7, 7.10 18 Exhibit RPD-1, RPD's Record, exhibit 6, 7, 10. 19 Supra, footnote 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05100