MC0-04850

RAD File No. / No de dossier de la SAR : MC0-04850 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision May 10, 2021 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the person who is the subject of the appeal Brigitte Objois 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] I dismiss the appeal. [2] The appellant, XXXX XXXX XXXX, is a citizen of Nigeria. The appellant learned in XXXX 2017 that members of a criminal gang had attacked his family's farm in Nigeria, and raped and killed his sister on XXXX XXXX, 2017. He claims that this criminal gang has links to politicians throughout Nigeria and that because he is the heir to the land, its members would kill him if he returned to Nigeria. Contrary to what he states in his memorandum, the appellant did not have to leave his country after this attack, as he had been living in the United States since 2012. [3] The Refugee Protection Division (RPD) rejected the appellant's claim for refugee protection because it found him not to be credible due to, among other things, numerous omissions and contradictions in his testimony that were not validly justified. [4] In his memorandum, the appellant states that: - The RPD cannot fault him for testifying vaguely since its questions were not specific. - The RPD should have allowed him to produce after the hearing the article he stated he found on the Onomile, but was unable to print. - The RPD should have considered his testimony more carefully since it was indirect. - The omissions in his testimony were validly explained. [5] The appellant states that one of the issues is whether the decision is sufficiently reasoned to be consistent with the principles of natural justice, but makes no argument in this regard. I have reviewed the RPD's decision and in my opinion, the RPD correctly and amply justified the numerous findings it made regarding the appellant's credibility. The RPD's reasons are clear, precise and intelligible, and after reading them it is clear why the RPD concluded that the appellant's claim for refugee protection was unfounded. [6] The determinative issue for the Refugee Appeal Division (RAD) is the appellant's credibility. NEW EVIDENCE The new evidence presented by the appellant is rejected [7] In accordance with the Immigration and Refugee Protection Act1 (IRPA), I can only admit evidence: i. that arose after the RPD rendered its decision; ii. was not reasonably available at the time of the decision; or iii. the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [8] If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.2 [9] The appellant included in his memorandum of appeal an article entitled "Omonile: Caging the monster in Lagos land use system" dated September 11, 2016, and published online by Business Day. However, the appellant does not offer any argument as to how this new evidence satisfies one or more of the requirements of the IRPA. [10] This document was available at the time of the decision, does not deal with facts that occurred after the decision, and would normally have been presented to the RPD before it made its decision. In short, this new evidence does not meet any of the criteria set out in the IRPA that would allow me to accept it. [11] The evidence presented by the appellant is rejected. ANALYSIS [12] My role is to examine all the evidence and determine whether the RPD decision is correct.3 [13] I have considered all of the evidence in my analysis of this appeal, and in particular the appellant's testimony, and like the RPD, I am of the view that he has not discharged his burden of establishing that he would face a serious possibility of persecution if he were to return to Nigeria or that he would be personally subjected to a threat to his life or to a risk of cruel and unusual treatment or punishment. The Refugee Protection Division correctly concluded that the appellant's testimony was vague [14] The appellant argues in his memorandum that his testimony was not vague, and that it was up to the RPD to ask him questions that were more specific. The appellant claims that the RPD's questions were not specific enough and that the RPD could not conclude that his answers were [translation] "vague and unsatisfactory." He cites the following excerpt from the RPD decision to illustrate his point: (9) ...When asked how he knew about this gang, he said he grew up knowing about this gang, and everybody knows" about them. (10) The Tribunal asked him how he knew the gang was connected to politicians. [15] The appellant's argument in this regard has no merit. First, in the excerpt from the RPD's decision presented in his memorandum, there is only one question, namely how the appellant knew that the gang was connected to politicians. In my opinion, this question from the RPD was specific and direct, and one would have expected the appellant to respond in a comprehensive manner, especially since he testifies that he grew up knowing about this gang, so this is not information he received through a third party. The appellant's responses were vague, and he was unable to provide any historical or other context about the gang. Similarly, he was unable to explain the connection between the gang and politicians in anything other than generalities. [16] I have reviewed the transcript and recording of the hearing, and the RPD's questions were specific and addressed the essential elements of the appellant's refugee protection claim. The appellant's answers were often vague and imprecise. The appellant was the source of the negative inferences drawn by the RPD regarding his vague testimony at the hearings. [17] The RPD correctly found that the appellant's testimony was vague with respect to the core allegations of his refugee protection claim, in particular with respect to the agent of harm. The appellant has not established that he is a refugee or a person in need of protection [18] The appellant argues that the RPD should have considered his testimony more carefully since it was indirect. According to the appellant, the omissions in his testimony were because he was not present in Nigeria when the events took place. [19] The fact that testimony is indirect does not absolve the appellant from proving that he faces persecution or harm in his home country. This is especially true for the appellant, who testified that he talked to his parents every day when he lived in the United States and every week since he has been in Canada. [20] For example, the appellant does not know how many times his parents were threatened by phone, by how many people, and when they left the family farm. In addition, the RPD identified several contradictions and omissions in his testimony that were not validly explained. The appellant disputes some of these conclusions, and I will discuss them later in my decision, but he does not dispute the following: - Failure to state in his Basis of Claim Form (BOC Form) that gang members showed up at his parents' farm in XXXX 2017 and uprooted the entire crop. - Failure to state in his BOC Form that gang members showed up at his parents' farm in XXXX 2017 and painted red lines, which the appellant claims meant his parents were in danger. [21] In my view, these conclusions are correct, as the appellant's explanation that he did not remember these elements at the time of filling out his BOC Form, but allegedly remembered them two years later at the hearing, is not reasonable as memory of an event becomes less detailed over time, not the other way around. This is especially true in the case of the appellant, who had only indirect knowledge of these events. Failure to state in his Basis of Claim Form the gang members' threats and that community elders advised his parents not to file a police report [22] At the hearing, the appellant testified that gang members allegedly told his father that if he went to the police they would be there before he was-threats that are not included in his BOC Form. He also testified that the community elders allegedly advised his parents not to file a complaint with the police-another element he did not include in his BOC Form. When asked by the RPD why he did not include this information in his BOC Form, the appellant testified that he had to submit his BOC Form quickly and could not remember all the events, and thought he could add details at the hearing. [23] The appellant's explanations are not acceptable. First, because while it is entirely possible for refugee protection claimants to provide more details at the hearing, they must at least allude to the main events and elements that put them at risk in their country. Similarly, the appellant, who was represented at the time he completed his BOC Form, could have amended his form to add the elements on which his refugee protection claim is based. It is up to refugee protection claimants to establish why and how they are persons in need of protection. The fact that gang members advised his parents that if they went to the police they would be there before they were, or that they were advised not to file a police report, are central allegations of the appellant's refugee protection claim, and not including them in his initial written account undermines his credibility. In my opinion, it was the responsibility of the appellant to state, in the most complete, true and correct manner, the information in the documents serving as the basis of his refugee protection claim and the related forms. Furthermore, the RPD's finding regarding the appellant's credibility is based on contradictions and omissions regarding a nexus to his fear in Nigeria. [24] In his memorandum, the appellant states that the failure to state in his BOC Form that community elders allegedly advised his parents not to file a police report is not core to his refugee protection claim. While not "central," seeking protection from the state of origin is an essential element of any refugee protection claim. [25] The RPD correctly drew a negative inference about the appellant's credibility based on these omissions. Contradictions and omissions regarding the XXXX XXXX, 2017, incident [26] In his BOC Form, the appellant states that gang members beat and raped his sister in the presence of his parents before killing her-an event that, if it happened, was extremely traumatic. At the hearing, when asked about this event, the appellant did not state that his sister was raped in front of his parents, or that his mother was screaming and asking for help. When asked by the RPD if anything else happened during this event, the appellant initially responded that his sister was molested and touched inappropriately. When asked by the RPD why he states in his BOC Form that his sister was raped in front of his parents, but did not include this when describing the incident, the appellant repeated that his sister was molested, and then added that her clothes were torn, her bra was taken off, and that she was moved, touched, and dragged. The RPD finds these responses problematic because it considers that there is a difference between rape and sexual touching. Even more importantly in my opinion, many details only came to light after the RPD confronted the appellant with these disparities that are not included in his BOC Form. [27] In his memorandum, the appellant states that he was not present when the event took place, and therefore provides an indirect account of the events. He adds that the details he provided were not strange and that there was nothing in his testimony that would allow the RPD to conclude that he was adding these details because he was confronted. [28] With respect, I do not share this opinion. The fact that the appellant did not spontaneously mention that his sister was raped in front of his parents is an omission in his testimony that undermines his credibility. The fact that the appellant uses [translation] "molest" afterwards instead of using his BOC Form's exact words is not what is problematic; to me, it is the failure to include such a traumatic event as a family member being raped in front of his parents-and thus a central allegation of his refugee protection claim-that undermines the appellant's credibility. [29] The RPD properly drew a negative inference about the appellant's credibility because of the numerous omissions in his testimony on matters essential to his refugee protection claim that he did not validly explain. The appellant's sister's death certificate [30] To corroborate his claims, the appellant submits a single document, namely his sister's death certificate. This death certificate does not specify the circumstances of the appellant's sister's death, only that she died at home. The RPD finds that it has no probative value with respect to the alleged murder and rape of the appellant's sister. [31] In his memorandum, the appellant argues that there is no contradiction in the death certificate, which states that the appellant's sister died at home, and the fact that she died at the family farm. So be it, but even if I accept this explanation, the document does not prove that the female appellant was killed, beaten or raped as the appellant claims. It only proves that his sister is dead. [32] Given the numerous omissions and contradictions regarding the XXXX XXXX, 2017, incident, and the lack of documentation establishing elements of his refugee protection claim, the RPD correctly concluded that appellant failed to establish, on a balance of probabilities, that his sister was killed and his parents forced to leave the family farm after being attacked by an armed gang. The Refugee Protection Division did not breach procedural fairness [33] In his memorandum, the appellant states that the RPD could not fault him for not filing the documents in support of his refugee protection claim because he represented himself on the day of the hearing. The appellant also asserts [translation] "that it would have been more consistent with the principles of natural justice to allow the claimant to produce, after the hearing, the article that the claimant stated he found on the Onomille, but was unable to print." [34] First, it was open to the appellant to submit the article in question after the hearing. However, like his sister's death certificate, this article has no probative value since the determinative issue in the appellant's case is his credibility, not the existence or non-existence of the gang. [35] In addition, the appellant was represented until the morning of the hearing, so to say that he cannot be faulted for not having filed documents in support of his refugee protection claim because he represented himself that day is not a valid argument. [36] Moreover, even before representing himself at the hearing, the appellant knew that he could file exhibits, as he did so by sending his sister's death certificate directly to the RPD, without the assistance or even knowledge of his counsel, as she stated at the hearing. At the hearing, the appellant's counsel in fact recused herself, in part because the appellant had sent documents of which she had no knowledge. [37] With respect to the article that the appellant wanted to file, the RPD told the appellant that he could explain it at the hearing. Later in the hearing, the appellant was given the opportunity to explain what the gang is and why it is dangerous, so he was not denied procedural fairness in this regard. Moreover, like the death certificate, this article has no probative value as to the events alleged in the appellant's BOC Form. [38] The RPD informed the appellant that he could represent himself or that the hearing could be rescheduled, and it was the appellant who decided to proceed alone that day. I listened to the hearing and reviewed the transcripts, and I found no breach of natural justice. On the contrary, it is apparent from the transcripts and the recording that the member was aware of the need to be attentive and open to the appellant's situation throughout the hearing. The RPD took into account the fact that the appellant was unrepresented, for example, by instructing him to let the RPD know if it had not questioned him about aspects of his refugee protection claim that he considered important, or allowing him to make submissions. [39] After a full reading of the transcripts and listening to the recording of the hearing, it does not appear from this evidence that the RPD breached the appellant's right to procedural fairness: the appellant had a chance to be heard and understood. [40] The RPD did not breach procedural fairness. CONCLUSION [41] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Tammy Tremblay Me Tammy Tremblay May 10, 2021 Date IRB translation Original language: French 1 Subsection 110(4) of the Immigration and Refugee Protection Act. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FC 385. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-04850 RAD.25.02 (January 2020) Disponible en français 10 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