TB7-22671

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 / Dossier de la SAR : TB7-22671 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 14, 2018 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are) the subject of the appeal Pius Okoronkwo Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX, a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD), rejecting his claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and substitute a positive determination. He has not submitted new evidence or asked for a hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"), 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 is a XXXX of a XXXX XXXX XXXX company in Nigeria. [4] In XXXX, 2015, the appellant was granted a visitor's visa to Canada. [5] Between XXXX XXXX, 2016 and XXXX XXXX, 2016, inclusive, the appellant travelled to Canada to enrol and "transition" his son XXXX to university studies at XXXX University. [6] In January, 2017, the appellant travelled back to Canada. [7] In February, 2017, the appellant was granted admission to XXXX College. [8] In May, 2017, the appellant's application for a study permit in Canada was denied. [9] In June, 2017, the appellant initiated an inland claim for protection alleging a fear of persecution by the Directorate of State Security (DSS) and other security agents in Nigeria due to his perceived political opinion as a supporter and financier of the Indigenous People of Biafra (IPOB). The appellant alleged he was arrested, beaten and detained by the DSS in October, 2016. He was released after one week "in dehumanizing and excruciating conditions in the DSS dungeon" after his lawyer proved he had no connection with the IPOB. The DSS agents continue to search for the appellant and ask his wife in Lagos about his whereabouts. [10] The appellant's claim before the RPD was heard on August 30, 2017. In a decision of October 24, 2017, the RPD rejected the claim. The determinative issue was credibility. [11] The appellant argues the RPD's decision is wrong and unreasonable. The RAD is not persuaded that the RPD erred. The RPD correctly concluded that the appellant failed to credibly establish his claim. ANALYSIS The Role of the RAD [12] Pursuant to the Federal Court of Appeal's (FCA's) decision in Huruglica,1 the RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of the credibility of oral evidence, applying the correctness standard. [13] In assessing the credibility of oral evidence, the RPD may have a meaningful advantage over the RAD, as the RPD directly sees, observes, and selects questions to ask of the witnesses, etc. The RAD is accordingly to review those RPD findings on a standard of reasonableness, modified to apply to the RAD context. The RAD is to show deference, while also considering both the process and the outcome of the RPD's findings. The RAD thus must be satisfied that the RPD's findings are a result of a comprehensible reasoning process and based upon the evidence.2 [14] Moreover, the role of the RAD is not to undertake a microscopic search for errors in the RPD's reasons, as the appellant's arguments would seemingly have the RAD do. The RPD Findings [15] The onus is on the appellant to establish his claim for protection. The RPD determined the appellant was not a credible witness and failed to establish with sufficient trustworthy and credible evidence his allegations. The RPD had cumulative credibility concerns and determined his allegations were not credible or plausible. [16] The onus is also on the appellant to provide full and complete submissions on how the RPD erred. The appellant has failed to do so. Instead, the appellant has provided submissions on alternative interpretations of his evidence and is asking the RAD to reweigh the evidence in his favour. This is not the role of the RAD. The appellant has already enjoyed a full hearing before the RPD. The RPD had the opportunity to test the credibility of the allegations at the hearing and clearly did so. In this regard, the RPD asked the appellant many questions asking him to elaborate upon his allegations, and to explain the apparent inconsistencies and omissions in his evidence. Indeed, it is the role of the RPD to do so. Having reviewed the RPD's questions and the appellant's answers, as well as the RPD's reasons for decision, it is clear the RPD assessed the evidence and weighed the evidence accordingly. The appellant has failed to demonstrate how the RPD erred in doing so. Credibility Concerns [17] The RPD had several concerns as to the credibility of the appellant's allegations, including his alleged arrest and detention by DSS agents due to his perceived role with the IPOB. The RPD accordingly asked the appellant several related questions at the hearing. For example, the RPD asked the appellant to explain the circumstances of his release from detention. He responded that his lawyer proved to the authorities that he had no involvement with the IPOB. The RPD then asked the appellant to therefore explain why he believed he was still wanted by authorities. The appellant simply responded that the authorities are still coming to his house. [18] The RPD also asked the appellant to explain why he did not leave Nigeria earlier, considering his allegation that he was tortured by authorities and still remained wanted by them, and particularly since he already had a Canadian visa. The appellant responded that he was hoping to see if things were going to be sorted out. The RPD also asked the appellant to explain his delay in seeking protection once in Canada. The appellant responded that he wanted to go to school to upgrade his skills in XXXX. He testified that his friends later advised him to seek refugee protection after his study permit was denied. [19] The RPD further asked the appellant to explain omissions in the evidence, particularly why he failed to include in his Basis of Claim (BOC) that he was interviewed by a journalist while in detention. The appellant responded that there was no reason. The RPD did not find the appellant's responses to be reasonable under the circumstances and drew negative credibility inferences. [20] The appellant argues that the RPD erred in drawing any negative inferences, and the BOC omissions were not central aspects of his claim. [21] Having independently reviewed the evidence, the RAD does not agree with the appellant's arguments. Firstly, the RAD does not find the appellant's vague response that there was no reason for his BOC omissions to be reasonable under the circumstances, as these were material omissions that go to the heart of the appellant's claim for protection based upon the false accusations made against him. In this regard, the RAD notes that the appellant was represented by experienced counsel both in the preparation of his BOC and his proceedings before the RPD. The appellant further did not amend his BOC narrative to incorporate these details. The RAD thus finds no error on the part of the RPD to impugn the appellant's credibility for the BOC omissions. [22] The RAD notes the central basis of the appellant's claim for refugee protection is that he is wanted by the DSS and other security agents as a perceived supporter and financier of the IPOB. However, the appellant denies any involvement whatsoever with the IPOB. He is not a supporter of the IPOB, and he has no relationship with any IPOB members. He further does not support nor advocate for separatism. In this regard, the RAD found the appellant's responses to the RPD's questions (and follow up questions) to elaborate upon his allegations to be very vague. The RAD further agrees with the RPD's findings that the appellant's allegations based upon his perceived involvement with the IPOB to be inconsistent with his behavior and the other alleged incidents, including his alleged release from detention; his easy departure from Nigeria despite being accused for terrorist activities and being wanted by security agents; and his delay in leaving Nigeria. The RAD accordingly finds no error in the RPD's negative credibility findings in this regard. [23] The appellant is a well-educated, high-level professional, fluent in English, and well-travelled, having previously successfully applied for and acquired visas to travel to the United Kingdom and trips to Canada. Further, his family continues to reside in Nigeria, and his wife remains employed as a high-level public servant.3 Accordingly, the RAD finds the appellant's behaviour, particularly his delay in leaving Nigeria and in seeking protection once in Canada, and his corresponding reason for not doing so, evidences a lack of subjective fear and adds to the RAD's own concerns with the appellant's credibility and that of his allegations of persecution. The RAD accordingly finds no error in the RPD's adverse credibility findings in this area. [24] The RPD also had credibility concerns with the appellant's documents, including affidavits from family members and close acquaintances4 and a news article5 that stemmed from the appellant's interview with a journalist. For example, the RPD noted that the appellant's affidavits from Nigeria were not accompanied by receipts. The appellant testified that he did not think that receipts are given. The RPD noted the objective documentary evidence indicated that when an affidavit is done in a court, a receipt is given to the deponent, and the court registry also retains a copy of the receipt.6 The RPD thus concluded the appellant's affidavits were fraudulent. [25] The appellant argues that the RPD erred in giving his documents no weight. [26] Having independently reviewed the evidence, the RAD agrees in part. While the lack of accompanying receipts with the affidavits was a valid factor to consider, the RAD finds the RPD erred in its finding that the documents were fraudulent based upon this concern alone. This was an unreasonable expectation on the part of the RPD. However, the RAD finds there were other credibility concerns with the appellant and his documents that correctly warranted giving his documents minimal weight. [27] Firstly, only a partial copy of part of the page containing the purported newspaper article about the appellant's alleged arrest is provided and not the entire page - much less the entire newspaper. The source or author of the article is not named. There is also no apparent website link to indicate if there is an online version to the article or newspaper. The RAD also notes the fonts of the various headlines on the provided page do not match. The BOC omission about the article and the media interview added to the RAD's credibility concerns. As noted by the RPD, the objective documentary evidence also indicates that fraudulent documents are prevalent and are easily accessible in Nigeria.7 In this regard, the RAD also notes the appellant's testimony was very vague about the media interview and subsequent article. For example, the appellant was unable to provide any specifics about the media interview, including to identify the person who interviewed him; to specify when the interview took place; and to explain why the DSS officers allowed him to be interviewed by the media while he was in detention. This contributed to the RAD's concerns with the credibility of the article, as well as the credibility of the appellant and his allegations of persecution. [28] There were other credibility concerns with the appellant's other untested documents from Nigeria, including letters purportedly from the appellant's lawyer8 and pastor.9 These letters were not witnessed nor sworn to. In his letter, the appellant's lawyer's does not indicate he visited the appellant while he was in detention, as was claimed by the appellant. Further, the appellant's lawyer does not credibly explain why he advised the appellant to flee the country, especially considering he had already successfully proven to the authorities that the appellant had no ties with the IPOB thereby securing the appellant's release from detention. In this regard, the lawyer also failed to provide any corroborating documents from the authorities or court office evidencing the appellant's arrest, detention and release on bail. This added to the RAD's concerns with the credibility of the documents and allegations. [29] The RAD also carefully examined a note purportedly from a medical centre10 in Nigeria. It is dated 21/07/2017 describing an alleged incident in 2016 wherein there was "an assault by the directorate of state security (DSS)".11 The RAD notes irregularities clear on the face of the document, including inconsistent fonts, grammatical errors and incorrect capitalizations. English is the official language in Nigeria. The RAD thus finds it is reasonable to expect the letterhead - at the very least - of a professional medical centre to be formatted consistently and capitalized correctly. [30] The above-mentioned negative findings raised concerns about the appellant's overall truthfulness and with respect to the reliability of his documents. For all of these reasons, including the credibility concerns clear on the face of the documents, the lack of accompanying receipts with the affidavits, the objective evidence on the widespread availability of fraudulent documents in Nigeria, and the cumulative credibility concerns with the appellant's vague testimony and evidence, the RAD finds it was open for the RPD to give low probative value to the appellant's documents. In this regard, it is settled law that when a general negative credibility finding is made by the RPD, it is open for it to give low probative value to other documents, including if they reflect the refugee claimant's own statements. The RAD also relies on the decision in Gebetas indicating: as stated by this Court numerous times, general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence and ultimately cause the rejection of a claim.12 As also has been stated by the courts: [c]onsequently, in my opinion, the applicant's assertion that the Board is bound to analyze the documentary evidence "independently from the applicant's testimony" must be examined in the context of the informal proceedings which prevail before the Board. Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.13 [31] The appellant also argues that the RPD erred in failing to provide analysis and reasons under section 97. The RAD does not agree. The RPD determined that the appellant failed to establish his allegations based upon his perceived political opinion as a supporter or financier of the IPOB. As such, there was no further analysis required. [32] Upon its own review of the evidence in its entirety, the RAD finds, on a balance of probabilities, the appellant failed to establish with sufficient trustworthy and credible evidence that he is at risk of persecution by authorities due to his perceived political profile as an IPOB supporter or, for any other reason. Accordingly, the RAD finds that the RPD was correct to find the appellant failed to establish with sufficient trustworthy and credible evidence his allegations, particularly that the DSS or Nigerian security agents have any interest to pursue him. CONCLUSION [33] On the basis of the findings noted above and after its own assessment of all the evidence, the RAD finds that the RPD's refugee determination is correct. [34] The RAD accordingly 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 paragraph 111(1)(a) of the Act. (signed) "D. Goff" D. Goff May 14, 2018 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 X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 87. 4 Ibid., Exhibit 5, at pp. 98-108. 5 Ibid., at p. 148, Nigeria Newpoint. 6 Ibid., Exhibit 3, National Documentation Package (NDP) for Nigeria (31 March 2017), Item 9.2, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) NGA104978.E, 4 November 2014, at 6. 7 Ibid., NDP for Nigeria (31 March 2017), Item 3.10, IRB, RIR NGA104617.E, 13 November 2013. 8 Ibid., Exhibit 5, at pp. 136-137. 9 Ibid., Exhibit 6, at p. 177. 10 Ibid., Exhibit 5, at p. 139. 11 Ibid. 12 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013, 2013 FC 1241, at para. 29. 13 Hamid, Iqbal v. M.E.I. (F.C.T.D., no. IMM-2829-94), Nadon, September 20, 1995; (1995), 58 A.C.W.S. (3d) 469, Nadon J. (as he then was), at para 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-22671 2 RAD.25.02 (April 24, 2018) Disponible en français