MB9-26271

RAD File / Dossier de la SAR : MB9-26271 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, QC Appel instruit à Date of decision February 19, 2021 Date de la décision Panel Michel Colin Tribunal Counsel for the person who is the subject of the appeal Émilie Le-Huy Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. [2] The Appellant fears her husband, his uncle, and members of the Ogboni society who threatened to kill her when she insisted on going to the police to press charges against her spouse's uncle who raped her. [3] The Refugee Protection Division (RPD) rejected her asylum claim as it found her not to be credible because the Appellant failed to mention the name of the society she fears and the fact that they threatened her mother's lawyer in her Basis of Claim (BOC) form, contradictions as to when and the number of times she sought police protection, the number of days she was sequestered in her room before being released as well as whether or not she moved to her mother's house thereafter. She submitted no documents to corroborate the destruction of her mother's house, the arrests that ensued, court documents which confirm charges against her husband and uncle or a letter of her lawyer describing efforts made to obtain such documents. It found that her failure to change her telephone number, her delay in applying for an American visa and her delay in leaving her country to be actions incompatible with her alleged fear. Her medical evidence did not adequately corroborate her allegations either. [4] Before the Refugee Appeal Division (RAD), the Appellant submits that the RPD focused excessively on minor omissions and contradictions which should not be fatal to the claim. The absence of any mention of the Obgoni society per se in her BOC form cannot be qualified as an omission considering that she did mention that her husband's uncle was backed by an "occult group". The name of the society is merely an addition of more detail at the hearing. The RPD erred when basing its decision on errors on dates when police protection was sought considering that police corruption is notorious in Nigeria and that the trauma suffered by the Appellant could well explain contradictory declarations as to the dates and the number of times she went to the police. The reason that the RPD did not believe that the Appellant's mother's house was destroyed was the absence of corroborating documents, which constitutes an error according to case law. Drawing a negative inference on her credibility because she kept her phone number is not reasonable, considering how easy it is for her persecutors to find the new phone number of their victims. Finally, she argues that the delay in leaving is not a determinative issue. [5] The determinative issue for the RAD is credibility. [6] I find that the absence of any mention of the Obgoni society or its threats against the Appellant's lawyer are serious omissions in the BOC, as well as the contradictory evidence as to when and the number of times she sought police protection impugns the Appellant's credibility, as correctly found by the RPD. Considering the contradictory evidence, the RPD correctly found that the absence of any effort to obtain corroboration of the destruction of the Appellant's mother's house impugns her credibility. It correctly concluded that the Appellant had not established that the house was destroyed. The RPD did not err when drawing a negative inference on the Appellant's credibility because she kept using the cellular telephone number on which she received three or four threats daily and because of her delay in applying for a visa and leaving her country. The findings of the RPD pertaining to the probative value of the medical documents which were not contested by the Appellant are correct. I find that the Appellant is generally not credible, as the RPD correctly did and that asylum can therefore not be granted. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [9] In doing so, I considered and applied the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution2 (Gender Guidelines). The absence of any mention of the Obgoni society or its threats against the Appellant's lawyer are serious omissions in the BOC form which impugn the Appellant's credibility, as correctly found by the RPD. [10] The Appellant submits that the RPD focused excessively on minor omissions and contradictions which should not be fatal to the claim. The absence of any mention of the Obgoni society per se in her BOC form cannot be qualified as an omission considering that she did mention that her husband's uncle was backed by an "occult group". The name of the society is merely an addition of more detail at the hearing. Her failure to mention that her lawyer was threatened by the Obgoni society is not significant enough to be fatal to her claim. [11] With respect, I do not find these arguments to be convincing. The failure to specify which occult group that she fears in the BOC narrative in the Nigerian context where there are hundreds of such groups all with differing levels of power. The National Documentation Package (NDP) lists over 100 such groups which are illegal according to the Secret Cult and Similar Activities Prohibition Act.3 The Obgoni society by way of contrast appears to be a group of perfectly legal societies, but "has declined in past decades", or is "waning", and that its "present-day membership, presence, and activities are insignificant", "has no power or influence" and is actually stigmatized today.4 In such a context, the failure to mention which "occult group" one fears in the BOC is a serious omission which impugns the credibility of the Appellant, as correctly found by the RPD. [12] As for the failure to mention that her lawyer was threatened by this society, it too is significant. It serves to evaluate and understand why state protection would not have been available or effective, a serious consideration in all asylum claims. The RPD correctly found that its omission from the BOC impugns the Appellant's credibility. [13] Nowhere did the RPD conclude or imply that any one of these conclusions would be fatal to the claim. The RPD did not err in this regard either. The RPD did not err when concluding that contradictory evidence as to when and the number of times she sought police protection impugns the Appellant's credibility. [14] The Appellant submits that the RPD erred when basing its decision on errors on dates when police protection was sought considering that police corruption is notorious in Nigeria and that the trauma suffered by the Appellant could well explain contradictory declarations as to the dates and the number of times she went to the police. [15] I should start by mentioning that I find it completely immaterial whether police corruption is notorious in Nigeria. This in no way justifies or explains why the Appellant would contradict herself as to whether she went once or twice to the police station, and whether she did so when she was still allegedly being sequestered or not, and whether such a trip to the police station alters the sequence of events. [16] As for the argument that the trauma suffered by the Appellant could well explain contradictory declarations as to the dates and the number of times she went to the police, it merits closer consideration. Unfortunately, there is no professional psychological or psychiatric evidence on the record which may enlighten us on the ability of the Appellant to consistently recall such matters. Nevertheless, the Gender Guidelines suggest much caution in the evaluation of credibility in such matters. I draw no negative inference on the credibility of the Appellant with regard to her ability to recall an exact date. [17] However, the question of the number of times she went to the police station and the sequence of events is a far different matter. According to the BOC narrative, the Appellant was in crutches after being discharged from the hospital. She was then sequestered for one or five days (depending on the version of the story retained) and repeatedly beaten before going to the police station. At the hearing, she testified that she went to the police station after being discharged from the hospital, and then, after being sequestered and beaten went a second time to the police station. Considering the difficulty of making her way to and within the police station given her physical condition and the fact that she needed crutches to circulate, I find it rather unlikely that she would not remember whether she went there once or twice and would fail to recall when writing her BOC narrative that she had first gone to the police prior to being sequestered. I find no error in the RPD's conclusion that these two versions of events impugn her credibility. Considering the contradictory evidence, the RPD correctly found that the absence of any effort to obtain corroboration of the destruction of the Appellant's mother's house impugns her credibility. It correctly concluded that the Appellant had not established that the house was destroyed. [18] The reason that the RPD did not believe that the Appellant's mother's house was destroyed was the absence of corroborating documents, which constitutes an error according to case law. [19] While I agree that corroborating evidence is not always necessary, I believe that in this case it was. Indeed, the evidence was contradictory as to whether she went to her mother's house. According to her testimony, she went to live there in May whereas her BOC form indicates that she stayed at her matrimonial home until October. This contradiction raises credibility concerns as to whether her mother's house was destroyed because of her stay there. In such circumstances, the RPD correctly found that the absence of corroboration and any effort to obtain some, impugns the Appellant's credibility. The RPD notes that no attempts were made to secure photographs, court documents concerning the procedures that allegedly followed, or even a letter from her lawyer explaining any challenges that there may be in obtaining these. The RPD correctly concluded that the Appellant had not established that the house was destroyed. The RPD did not err when drawing a negative inference on the Appellant's credibility because she kept using the cellular telephone number on which she received three or four threats daily. [20] The Appellant submits that the RPD erred when drawing a negative inference on her credibility because she kept her phone number, considering how easy it is for her persecutors to find the new phone number of their victims. [21] I would start by mentioning that this is not the reason given by the Appellant at the hearing. Instead, she explained that it was expensive to change her phone number. Whether the decision to keep one's phone number is incompatible with one's fear is much a question of context. Certainly, if one believes that the persecutor may trace their place of hiding by keeping the phone, holding on to the phone is clearly incompatible with the alleged fear. In the case at hand, the situation is more subtle since there was no reason to believe that the phone location may be traced. However, as correctly noted by the RPD, when faced with three or four daily phone threats for weeks on end, keeping this phone because of the expense involved in changing number is indeed incompatible with the alleged fear. I would add that it is particularly incompatible with the alleged fear in a context where the Appellant had been raped, her life was now in danger, and presumably these incessant calls would instill much fear and additional psychological pain. The RPD did not err in this regard. The RPD did not err when concluding that the delay of the Appellant in applying for a visa and leaving her country impugns her credibility. [22] Finally, the Appellant argues that the delay in leaving one's country is not a determinative issue. [23] While I agree that this delay, in itself, is insufficient to be determinative according to case law, it is nevertheless one of several relevant issues to be considered in a refugee determination. The RPD did not err when concluding that the delay of the Appellant in applying for a visa and leaving her country is incompatible with the alleged fear and impugns her credibility. The findings of the RPD pertaining to the probative value of the medical documents which were not contested by the Appellant are correct. The Appellant is generally not credible. [24] The Appellant has not contested the RPD's conclusion that the medical evidence did not adequately corroborate her allegations, which I find to be correct. [25] For all of these reasons, after conducting my independent analysis, I find that the Appellant is generally not credible, and that asylum can therefore not be granted. CONCLUSION [26] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Michel Colin Michel Colin February 19, 2021 Date MC/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Chairperson's Guideline 4. Women Refugee Claimants Fearing Gender-Related Persecution. 3 RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (20 August 2019), tab 13.3 Sociétés secrètes traditionnelles et confraternités étudiantes au Nigeria, France. Office français de protection des réfugiés et apatrides, 27 February 2015. 4 RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (20 August 2019), tab 13.5 Nigeria: Ogboni society, including structure, rituals, ceremonies, and current status; membership and the consequences of refusing to join or trying to leave; relationship with police and judicial authorities (2017-April 2019), Immigration and Refugee Board of Canada, 20 June 2019, NGA106269.E --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-26271 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français