MB9-26882

RAD File / Dossier de la SAR : MB9-26882 MB9-26883 / MB9-26884 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision February 25, 2020 Date de la décision Panel Me Michel Colin Tribunal Counsel for the persons who are the subject of the appeal Me Melissa Singer Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX XXXX XXXX XXXX (Associate Appellants), citizens of Nigeria, appealed the decision of the Refugee Protection Division (RPD), dated October 21, 2019, rejecting their claims for refugee protection. [2] The Appellants fear the Ogboni Fraternity and their state accomplices that killed the father of the Principal Appellant in the year 2000 and threatened to kill them 16 years later, as well as the state because of political positions that the Principal Appellant took on Twitter. [3] The RPD rejected their asylum claims, finding them not to be credible regarding certain aspects of their claim, particularly in regard to the degree of influence of the Ogboni Fraternity, and because they provided insufficient credible evidence regarding the political aspect of their claim. [4] Before the Refugee Appeals Division (RAD), the Appellants submit that the RPD erred in failing to conduct a full, fair and impartial hearing and properly examine the merits of the claim. [5] After examining all of the evidence, considering the Chairperson's Guidelines and applying a correctness standard, I find that the Appellants had a full, fair and impartial hearing and that the RPD decision is correct. I reject the appeal and confirm the RPD decision. The reasons are as follows. ANALYSIS [6] The determinative issues are procedural fairness, whether a faulty standard of proof was applied, whether a faulty legal test was applied, and credibility. A. No evidence of a breach of procedural fairness or bias on the part of the RPD a. The RPD did not err when giving more weight to the National Documentation Package (NDP) than to the Appellant's testimony and this does not constitute bias or any other breach of procedural fairness or error. i. The Appellants' submissions [7] The Appellants submit that the RPD demonstrated bias by giving more weight to the National Documentation Package (NDP) over the Appellants' evidence which was not impugned by credibility despite the fact that the NDP states that there is very little concrete information or evidence available about the Ogboni Fraternity or information that is not speculative. They "cited" the RPD for bias at the hearing when it questioned the Appellants about this documentary evidence. They argue that the evaluation must be made from a Nigerian perspective and that the entire hearing was conducted in an ill-founded manner without regard to the evidence before it. ii. The NDP evidence in question [8] The evidence referred to by the Appellants consists of the Response to Information Request NGA106269.E (the RIR) and the EASO COI Meeting Report found respectively at Tabs 13.3 and 1.3 of the NDP. The various sources consulted by the research directorate in the RIR essentially state that the Ogboni Fraternity functions in a few "remote kingdoms" of Nigeria, but no longer has any significant influence anywhere else in the country. [9] As the RIR cites numerous sources, it should be noted that they differ as to when the decline of the Ogboni Fraternity's influence started, and they use different language to describe the current situation including: "Yoruba kings only have ceremonial positions"; the Fraternity is "waning"; is "defunct"; that its "membership, presence, and activities are insignificant"; that it has "no power or influence"; or that it is "stigmatized as a 'pagan remnant' of the past". [10] While these various sources referred to in the RIR use different language, they are generally consistent as to the absence of significant influence of the Fraternity today save for some remote locations. This is also consistent with the EASO COI Meeting Report. iii. Contrary to the Appellants' submissions, the Principal Appellant's credibility was impugned [11] The Appellants submit that the credibility of the Appellant was not impugned. With respect, I find, as the RPD correctly did, quite the contrary. Indeed, the RIR clearly quotes numerous independent and objective sources which all indicate the absence of significant influence of the Ogboni Fraternity today save for some remote locations. This clearly contradicts the allegations of the Appellants that the Fraternity has significant authority with government and police everywhere in Nigeria. iv. No error or bias demonstrated by preferring the RIR evidence even though it states that little concrete evidence was available to one of the sources consulted [12] I would first mention that the RIR indicates that there is little evidence available regarding a number of unrelated matters such as the rituals of the Ogboni Fraternity. Nevertheless, there is one source that appears to state that little concrete evidence was available to it regarding the influence of the Ogboni Fraternity today, specifically the official at the Canadian High Commission. I find no error or bias demonstrated by the RPD by preferring the RIR evidence even though it states that little concrete evidence was available to one of the many sources it cited, as several other credible and objective sources provide consistent information in the same RIR pertaining directly to the contradiction regarding the influence of the Ogboni Fraternity. v. No failure to consider the evidence from a Nigerian perspective and therefore no error or bias resulting from any such failure. [13] While the sources cited include the Canadian High Commission, British and American university scholars and the French research directorate, the information that they provide is consistent with the statements of a sociologist employed by a Nigerian university also cited in the RIR. Furthermore, a Nigerian newspaper is cited in the RIR with regard to the activity of the Ogboni Fraternity being limited to "remote kingdoms". Therefore, I do not find that the RPD erred or showed bias by failing to evaluate the evidence from a Nigerian perspective when quoting this RIR. vi. No "cherry picking" or failure on the part of the RPD to consider all of the evidence [14] The Appellants submit that the RPD demonstrated bias and erred as it "cherry picked" or failed to consider all of the evidence, including a passage of the EASO COI Meeting Report that the Ogboni is a "real society" and only focused on evidence that states that it is now defunct. [15] I would first note that while the RPD did quote numerous passages of the RIR, including one where a source indicates that the Ogboni is defunct, it never concluded that the Ogboni Fraternity does not exist. It concluded that the Appellants did not establish that the Fraternity has influence everywhere throughout Nigeria within the Government and police force. [16] Furthermore, I find it necessary to quote the full sentence of the EASO COI Meeting Report referred to by the Appellants to address this submission. It states, "I'm an expert on the South East of Nigeria and we don't have the kind of Ogboni issue really, so it is very regionally specific, but it is a real thing." This passage actually supports the evidence preferred by the RPD that the Ogboni Fraternity is not present throughout Nigeria, contrary to the Principal Appellant's testimony. Therefore, I do not find that the RPD erred or showed bias by failing to consider this evidence which actually confirms its findings. [17] The Appellants also submit that the RPD demonstrated bias and erred as it "cherry picked" or failed to consider all of the evidence, including a passage of the RIR that states, "The child of a member who refuses to join the Ogboni Fraternity could encounter harassment even to the point of death." [18] With respect, I find that they have quoted or "cherry picked" only part of this passage, thus taking it out of context and distorting its meaning. The sentence actually reads, "According to the Canadian official, 'it is assumed' by the sources that the mission consulted that the child of a member who refuses to join the Ogboni could encounter harassment by the society, 'even to the point of death', and that those who want to leave the group may face 'tough consequences' or may be killed for revealing the group's secrets to non-members, noting, however, that '[n]o recent information is available to support or refute such claims." [19] I find that it would actually have been an error on the part of the RPD to base its decision on the High Commission's assumptions rather than making its own analysis of the evidence before it. The failure to rely on those assumptions does not constitute evidence of bias or an error, especially when the source indicates that these assumptions are made despite the absence of recent information to support them. The RPD correctly weighed all of the evidence and correctly gave more weight to multiple credible sources that provide the most up-to-date available information rather than relying on assumptions. vii. No error in stating and considering the fact that the Appellants failed to provide any objective evidence that supports their allegations which are contrary to the documents on record. [20] The Appellants also submit that, "the fact that the Appellants' explanations were discounted for the failure to submit objective documentation confirming that the Ogboni Society is still important today and that its members are part of the police and government in Nigeria is perverse". [21] The RPD correctly stated in its decision that the Appellants did not refer to or provide any objective evidence to support the allegations that contradict the objective documentary evidence on record. I find no error in the RPD decision in this regard. viii. No error or breach of procedural fairness apparent in paragraph 21 of the decision. [22] The Appellants also submit that, "Paragraph 21 of the decision confirms the fact that the Appellants were simply canvassed with several questions about their actual claim followed by extensive references to a faulty evaluation of the NDP." [23] The paragraph of the decision in question states, "The Tribunal has elected to give more weight to the NDP evidence than to the claimant's testimony, which is speculative in nature, to establish the degree of influence of the Ogboni Fraternity in Nigeria." [24] In light of the fact that the RIR cites recent and multiple independent credible sources that all agree that the Ogboni Fraternity no longer has influence today (save for some exceptions in remote areas); that the Appellants do not refer to any documents that contradict this information; that they do not actually explain which errors were made in the evaluation of the NDP; and that I have not found in any contrary evidence regarding the influence of the Ogboni Fraternity today, I find that the RPD correctly concluded that the testimony which contradicts the RIR, is speculative. I do not find any error in paragraph 21. The RPD correctly explained in the preceding paragraphs why the RIR should be preferred. Given the independence and credibility of the multiple sources that provided the most recent information available, there is ample reason not to believe the testimony even though it was given under oath. I do not find that this paragraph "is indicative of any canvasing of questions followed by extensive references to a faulty evaluation of the NDP". ix. Conclusion-Giving more weight to the NDP rather than to the Appellant's testimony does not constitute bias or any other breach of procedural fairness or error [25] The RIR does indicate that the contention of the Principal Appellant that the Ogboni Fraternity has strong influence within the police, military, government and the courts was once true. However, it also indicates that this era is far gone by now in most of the country save for some minor exceptions in remote rural areas. I find no evidence of bias or any other breach of procedural fairness or error in the decision of the RPD to give more weight to recent objective documentary evidence, as it clearly considered all of the evidence, including the testimony, before reaching this conclusion and provided both correct and valid reasons to prefer up-to-date contrary evidence from several independent credible sources. b. The statement allegedly made by the RPD at the hearing for which it was "cited" for bias during the hearing is not indicative of bias or any other breach of procedural fairness. [26] The Appellants submit that, "The Board was cited for bias at the first available opportunity during the hearing." Upon close examination of the recording, one can hear Counsel intervening and telling the RPD that it had just uttered a remark saying that it is "skeptical" about the Principal Appellant's testimony. Counsel then questions whether the RPD is biased. [27] I should first mention that, I did not actually find the statement made by the RPD where it allegedly stated that it was "skeptical" about the Principal Appellant's testimony. However, there are a few brief moments where the recording is inaudible because Counsel was talking to her client in the background at the same time as the RPD was formulating questions. If such a statement was made, it is not audible. [28] Nevertheless, the RPD answered this concern at the hearing by clarifying its position. It stated that the objective evidence that it had seen thus far contradicts the testimony that the Ogboni Fraternity has influence in all of Nigeria. It noted that the hearing is not over, that it had not yet heard Counsel's submissions, and that she would have the opportunity to refer to other evidence in her submissions. Counsel then mentioned the possibility of sending additional evidence and written submissions after the hearing. However, she soon thereafter chose to make submissions at the hearing without petitioning the RPD to send additional evidence, stating that the evidence contrary to the NDP is simply the testimony of the Principal Appellant given under oath. I find no evidence of bias or any other breach of procedural fairness at the hearing as the RPD correctly stated where the evidence was lacking and encouraged the Appellants to address this before taking its decision. B. The RPD erred in some of the statements found in the decision which are too vague and could be construed as the application of wrong standard of proof or a faulty legal test. However, the errors are not fatal as I am able to render the correct decision with the evidence on record. a. No evidence of the application of a faulty standard of proof at paragraph 18 of the decision [29] The Appellants submit that, "At paragraph 18 of the decision, the Board states that it does not accept the explanations of the Appellants which is a faulty standard in the assessment of evidence, namely the balance of probabilities." [30] With respect, I disagree. The RPD does not explain which standard was applied at paragraph 18. It merely recapitulates all of the reasons why it prefers the documentary evidence over the contradictory testimonial evidence which I have found to be correct for the reasons explained above. It then goes on to state that the standard that it applied was the balance of probabilities in paragraph 19. This is the correct standard of proof as facts, such as whether the Ogboni Fraternity today has influence in the police and the government must indeed be established on a balance of probabilities. b. The RPD did err at paragraph 28 as the terms used are vague. However, this error is not fatal as I am able to render the correct decision with the evidence on record. [31] The Appellants also submit, "Again, at paragraph 28 of the decision, the finding elucidates a faulty standard of evaluation adopted by the Tribunal. The Board held that the claimant has not proven that his use of Twitter could result in a serious possibility of political persecution." [32] I find that the RPD did err in this paragraph as the terms used are vague. Indeed, the words, "has not proven" could be construed as meaning that a "balance of probabilities" was expected even though the end of the sentence correctly refers to the proper legal test when it reads "could result in a serious possibility of political persecution". However, this error is not fatal as I am able to render the correct decision with the evidence on record. [33] The standard of proof with regard to the facts is the balance of probabilities. The legal test of "serious possibility" should be applied with regard to whether there exists a well-founded prospective fear of persecution. [34] I will explain further in section C of this decision that the Appellants have failed to establish, on a balance of probabilities, that the Principal Appellant made political statements on Twitter and that government aids threatened him: because of their failure to mention this in their BOC forms; that adjustment in testimony by the Principal Appellant as to whether these threats are verifiable on his Twitter account diminishes his credibility further; that the very limited number of views indicated on the Tweets provided diminishes the probability that government aids actually saw these; that none of the Tweets submitted include any threats; and finally that I draw a negative inference regarding the credibility of the Appellants, because of their failure to provide corroboration which I believe would have been necessary in the circumstances of this case. [35] I will explain that I find the Appellants to be generally not credible at the very end of the decision and that for that reason, the evidence does not satisfy the legal test of a "serious possibility" of persecution. C. No error in the evaluation of the credibility of the Principal Appellant regarding his fear of persecution because of his political opinions (the allegations which only arose at the hearing...) a. No error in the statements made by the RPD in the decision pertaining to the omission of political persecution grounds in the BOC form and amendments [36] The Appellants submit that, "The additional ground of section 96 of the IRPA was also invoked and categorically discounted by the Tribunal. The Tribunal accepted the late disclosure of Document 5, yet discounted the new ground of political persecution given its absence in the BOC forms and in the narrative, which highlights the fact that the Appellants were again deprived of the benefit of the doubt. The failure to raise the Convention ground in their BOC forms and narrative does not discount their need for protection." [37] With respect, I note that the RPD did not actually make a negative inference regarding credibility because of the omission in the BOC forms of any mention that they fear persecution for political reasons. It simply mentions that, given this omission, it would have expected the Appellants to provide copies of the Tweets containing the threats. The submission of the Appellants is thus factually incorrect. [38] As part of my independent analysis, I draw a negative inference regarding the credibility of the Appellants because of their failure to mention in their BOC forms that the Principal Appellant made political statements on Twitter and that government aids threatened him because of these. The explanation given by Counsel on behalf of the Principal Appellant that, "he never realized that his Twitter messages could be added as an additional ground to his claim for refugee protection until shortly before the hearing" is not satisfactory considering that the Principal Appellant alleged that he received threats from the government prior to making an asylum claim, that the BOC specifically requires that the asylum seeker indicate, "What happened to you and your family... When the harm or mistreatment or threats occurred... Who do you think caused the harm or mistreatment or threats... What do you think was the reason for the harm or mistreatment or threats that occurred..." at question 2a); that he is a university educated man who speaks English; that he provided a revised narrative merely 10 days before the hearing without mentioning this ground for his fear; that he swore under oath that his amended narrative was complete; and that he was represented by counsel since the very beginning of the asylum process and the 20 months that followed. I find that these omissions diminish the credibility of the Appellants as the RPD correctly did. [39] I find no error resulting from the failure of the RPD to give the benefit of the doubt. The benefit of the doubt should only be given when the appellants are found to be generally credible and a small number of secondary credibility issues have not been explained to the satisfaction of the RPD. This is not the case in this asylum claim as the RPD did not find the Appellants to be generally credible and the total failure to allege or provide any facts pertaining to an additional agent of persecution and a new convention ground in a BOC form and as well as in a subsequent amendment 10 days prior to the hearing is a most significant matter. b. The RPD neither speculated, erred nor applied a wrong evidentiary standard in paragraph 27 of its decision [40] The Appellants state that, "The Board failed to accept the ground of persecution based on political opinion, and speculated by stating that the Appellants failed to prove that i) they have received threats from paid government aids on Twitter; and ii) to prove that the Appellants followers on Twitter are large enough to deserve the government of Nigeria interest itself to the claimant's political views posted on social media. Clearly, the evidentiary standard utilized by the Tribunal is faulty. (para 27 of the decision)." [41] I find nothing speculative in any of the passages pointed out by the Appellants as they are all factually correct and based on the evidence adduced at the hearing. [42] The Principal Appellant initially told the RPD at the hearing that he does not have copies of the threats. However, he then said that the RPD could view the threatening Tweets by examining his Twitter account. He gave the RPD the necessary access passwords. The RPD took him up on this offer immediately. As the RPD was failing to find any threats on the Twitter account, the Principal Appellant guided the RPD by suggesting that it focus on Tweets from XXXX XXXX and XXXX XXXX XXXX The RPD was still unable to find the alleged threats and the Principal Appellant then adjusted and contradicted his prior testimony once agin, saying now that the threats could not be seen on the Twitter account because XXXX XXXX and XXXX XXXX blocked him from viewing their Tweets a while back. [43] I find that this adjustment in testimony diminishes the credibility of the Appellants as the RPD correctly did. [44] I would add that that I have examined those Tweets which were reproduced and entered into the RPD record. Most of these have neither comments, nor likes, nor any retweets. The political comment with the most reactions has a total of eight views. This very limited attention to his Tweets diminishes the probability that state authorities were noticed by government aids who then threatened him. [45] Regarding the evidentiary standard used by the RPD in paragraph 27 of the decision, it is not actually mentioned in this paragraph. I therefore find no evidence that the RPD used the wrong evidentiary standard. c. The RPD did err when stating that no trace could be found of XXXX XXXX on the Twitter account of the Principal Appellant. However, this error is without consequence. [46] The Appellants also submit that, "The Tribunal went on to state that it could not find any trace of XXXX XXXXand XXXX XXXX on the account, and even if it could have done so, it is far from sure that there would be a clear link between them and the government of Nigeria. This is a perverse finding which places unwarranted expectations on the Appellants." [47] I find that the RPD erred in stating that there is no trace of XXXX XXXX on the account. In fact, on page 126 of the RPD record, one reads, "You are blocked from following XXXX XXXX and viewing XXXX XXXX Tweets." I find that this error is of little consequence since even if XXXX XXXX exists, there is still no evidence that this person ever threatened the Principal Appellant as alleged. I will explain why corroboration of the threats would have been necessary as I address the next submission. d. Expectation of corroboration of threats is founded in this particular case [48] The final submission of the Appellants reads, "The Board further erred by stating that the Tribunal would have expected the Appellants to provide evidence of having received actual threats for this additional ground for claiming refugee protection to succeed, thus imposing unrealistic expectations on the Appellants." [49] While corroboration is often not necessary to establish facts before the RPD, I find that in this case, it would have been for the following reasons: The existence of these threats was never mentioned in the BOC form or its amended narrative. Furthermore, the Principal Appellant initially testified that they would be found on his account but then adjusted his testimony to say that they would not be found as his account was blocked from viewing the Tweets containing the threats only once the RPD started searching for them.XXXXThe RPD correctly found that the Principal Appellant would be expected to have provided corroboration of the alleged threats. There are a multitude of ways imaginable by which the Principal Appellant could have attempted to obtain corroboration including, by way of example, by conserving written copies of the threats before his access was blocked or by way of affidavits of friends that follow him on Twitter that may have seen these threats. The Appellants neither tried to obtain these prior to the hearing nor did they petition the RPD to allow them some delay to attempt to find some after the hearing. I draw a negative inference regarding the credibility of the Appellants, as the RPD correctly did, because of their failure to provide corroboration which I believe would have been necessary in the circumstances of this case. [50] After conducting an independent analysis of the record, I find that for all these reasons stated above, the Appellants are generally not credible and thus, their asylum claims cannot be granted. The Appellants failed to establish that they face a serious possibility of persecution or, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment. CONCLUSION [51] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (s) Michel Colin Michel Colin February 25, 2020 Date MC/lp RAD File / Dossier de la SAR : MB9- 26882 MB9- 26883 / MB9- 26884 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