TB9-09742

RAD File / Dossier de la SAR : TB9-09742 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 Toronto, ON Appel instruit / entendu à Date of decision August 31, 2020 Date de la décision Panel Joseph Wyger Tribunal Counsel for the person who is the subject of the appeal Laurence Cohen 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 this appeal. The Appellant XXXX XXXX XXXX (Mr. O.), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He fears harm from the families of XXXX students whom he gave failing marks to on final examinations. a. Mr. O. alleges he was persecuted by the families of two XXXX students who failed the final examinations that Mr. O. marked and officially submitted; b. The RPD found that Mr. O. was not credible and was not targeted by the families. The Appellant submits that his story is true and that the RPD was perverse, capricious and speculative in its' reasoning; c. The determinative issues for the Refugee Appeal Division (RAD) is whether there is a nexus between Mr. O.'s persecution and a Convention ground; and d. The RAD concludes that Mr. O. is not a Convention refugee because there is no nexus between the harm he alleges and a Convention ground. DECISION [2] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant's allegations can be summarized as follows: [4] Mr. O. was a XXXX XXXX and XXXX XXXX at the XXXX XXXX XXXX XXXX who assisted the XXXX XXXX XXXX XXXX XXXX in a course for XXXX XXXX students. Two of these students showed nonchalance in attending or participating in classes and who received failing grades on the final examination marked by Mr. O. while his XXXX XXXX was on XXXX. Mr. O. received a warning from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX that the two students must not fail because they belong to families who are influential in Nigerian politics. Mr. O. refused to adjust the marks because it was against the school's code of conduct and submitted the marks for the official record. [5] On XXXX XXXX XXXX 2017, about a week after he uploaded the marks, Mr. O. received a call from XXXX XXXX, the father of one of the students, who claimed Mr. O. cost his son a job in Abuja. He threatened to make Mr. O.'s life miserable and would ensure that he did not complete his XXXX XXXX A few days later Mr. O.'s car window was broken by two men on a bicycle. His house was broken into and ransacked when he was not at home. About two months after re-locating to Port Harcourt, the friend he was staying with was warned to stop sheltering Mr. O. and his wife. After re-locating to Asaba, Mr. O. was told by an unknown caller that they were aware he was there and would surely be coming for him. Mr. O. made plans to leave Nigeria and crossed the border into Canada to claim asylum after a brief transit in the United States. [6] The RPD made the following findings: a) The incidents described by Mr. O. were mere random acts with no evidence of links to the families of the two students; b) It was not plausible that the XXXX could not have adjusted the student's marks to a passing grade; c) The Appellant's testimony and supporting evidence regarding the events and identity of the alleged persecutors, are central to his claim but are not credible, trustworthy, or reasonable. APPELLANT'S POSITION [7] The Appellant advanced the following grounds of appeal: a) The RPD engaged in a perverse and capricious assessment of the totality of the evidence; b) The RPD's findings were speculative, microscopic and overly argumentative and pointed to no inconsistency, implausibility or evasive response by the Appellant; and c) The RPD made no specific reference to justify its negative credibility evaluation given that primary factual issues were accepted. ROLE OF THE RAD [8] My role is to conduct an independent assessment of all the evidence and decide if the RPD made the correct decision.1 ANALYSIS [9] I determine that Mr. O. failed to demonstrate that he is being persecuted for imputed political opinion, his ethnicity or for being a member of a particular social group (PSG). I find that there is no nexus between the prospective harm he may face and a Convention ground. I further find that the prospective harm that Mr. O. may encounter does not rise to the level of a S. 97 risk to his life. Credibility RPD credibility assessment is flawed as implausibility finding is inconsistent with the evidence [10] The RPD's negative credibility assessment is based largely on an implausibility finding with respect to whether the XXXX or the XXXX XXXX could have adjusted the student's marks. The RPD simply did not believe that, given their positions and influence at the XXXX, the XXXX or the XXXX XXXX could not have adjusted the exam results without the knowledge or assistance of Mr. O. "...who was after all only a XXXX XXXX XXXX" [11] The Appellant argues that this finding is completely speculative and inconsistent with both the testimony and documentation. The panel did not doubt that Mr. O. had failed both students but could not believe that his superiors were not able to intervene and post adjusted grades. The evidence shows that the XXXX did in fact try to intervene by instructing Mr. O. to adjust the scores and threatened academic consequences for refusal. Mr. O. testified that the XXXX XXXX does have the authority to override failing grades, but he was still away when Mr. O. went ahead and posted the failing grades because he did not take the XXXX threats seriously. After XXXXfromXXXX XXXX, the XXXX XXXX told Mr. O. he would have adjusted the results, but it was too late now. So contrary to the RPD finding, Mr. O. did not imply that the XXXX XXXX could not adjust the marks, rather he testified that he could have but was not given the opportunity. [12] I find this scenario is quite plausible and believe this is how it happened. The RPD's speculation that one of the XXXX or XXXX XXXX could have adjusted the result is correct but is not relevant because that is not what happened. The RPD wrongly impugned Mr. O.'s credibility for supposedly implying that the XXXX XXXX could not have adjusted the results, when Mr. O. testified that he could have if he had been there. I find no inconsistency or implausibility in Mr. O.'s written or oral version that he simply took the initiative in accordance with the code of conduct rules. RPD makes no reference to any contradiction, inconsistency, discrepancy, or omission to justify general negative credibility finding [13] The RPD made a finding that incidents related by Mr. O. were mere random acts of violence because there was no other evidence provided other than the Appellant's speculation that they were initiated by the students' families. [14] The Appellant contends that the panel conceded that Mr. O. was assaulted but then speculated that there was no basis to suggest that the assaults were linked to his persecutors. I agree with the Appellant that his testimony was credible and believable with respect to being a victim in these incidents. I do not agree with his belief that all of the incidents are linked to the students, because there is insufficient evidence to draw that inference. The only certain link to the students; families is the original threat from XXXX XXXX that Mr. O.'s own XXXX XXXX would be affected. [15] Mr. O. testified he did not know who was responsible for the broken car window or the house break-in and I find there is insufficient evidence to link them to the families. Mr. O.'s stated belief that they are linked does not establish that it is true. The presumption of truthfulness does not apply to beliefs or assumptions. On a balance of probabilities, I consider it just as possible that these are random acts of criminality that appear to be all too common in Nigeria. I find, however, that it is wrong to impugn Mr. O.'s credibility for believing that they are all linked. I determine that the finding by the RPD is thinly supported and not by any real contradictions or inconsistencies in the evidence presented. Section 97 Risk No evidence of death threats or attempts on his life [16] Following an independent assessment of the evidence, including listening to the audio recording of the hearing, I determine on a balance of probabilities that there is no risk to Mr. O.'s life or any of the other risks set out in Section 97. [17] The RPD determined that the Appellant failed to meet the test for a person in need of protection from a S. 97 risk. The panel determined he is not being targeted for any reason, doubting the veracity of all of his evidence with respect to the alleged incidents. [18] The Appellant maintained that the RPD did a perverse and capricious assessment of the totality of the evidence. I would not characterize the RPD's decision in those terms but consider the RPD's reasons for disbelieving the incidents to be less than fulsome. I accept that these incidents happened to Mr. O., and some may well be linked to the families that were upset with him but find that they do not rise to the level of a risk to his life. [19] My independent assessment of the evidence leads me to agree with the RPD that Mr. O. does not face a prospective risk to his life in Nigeria. The reason for this is that in his own written narrative and testimony, Mr. O. does not say that anyone actually threatened his life or made an attempt on his life or threatened any other S. 97 risk. The threat made by XXXX XXXX was that he would make Mr. O.'s life miserable and that he would prevent Mr. O. from completing his XXXX. The only other warning was directed to Mr. O.'s Port Harcourt friend and not to himself and did not include a death threat. I determine that these warnings, along with the bicycle attack on his car window and the break-in at his house, do not display murderous intent or any s. 97 risk, on a balance of probabilities. [20] The supporting documents provided by the Appellant warrant little weight. They corroborate Mr. O.'s version of the incidents but lose credibility in the exaggeration and speculation on the meaning of the incidents. Despite the fact that Mr. O.'s own story is lacking in death threats or attempts on his life, these documents are liberally sprinkled with references to assassins, assassination attempts, death threats, and vivid descriptions of how the perpetrators would maim or kill or hack him down. One writer who is Mr. O.'s wife's cousin, extends to speculation that the XXXX colluded with the families to eliminate Mr. O. and his family. I find that these documents have no probative value on the extent of the risk to Mr. O.'s life were he to return to Nigeria. [21] The news articles in evidence describe the head of the XXXX family as an XXXX and distinguished leader who helped bring civilian rule back to Nigeria. XXXX XXXX was a democracy icon whose children were busy with rehabilitating the family's dwindling fortunes and abandoned investment projects. These do not sound to me like mob families who would exact murderous revenge for the academic failings of their children. On a balance of probabilities, I determine that it is not likely that Mr. O. would be killed for failing those students. Section 96 - Persecution No nexus between harm alleged and a Convention ground [22] The RPD wrote that the Appellant alleged a well-founded fear of persecution due to his membership in a particular social group (PSG). The panel noted that the PSG were victims of crime perpetrated by families of students who are failed at school. The RPD did not explore this issue at the hearing and made no finding on it. The only reference by the Appellant was counsel's oral submission that the nexus was that Mr. O. was denied his fundamental human right, without further elaboration. [23] I have determined that Mr. O. has faced the harm of harassment in Nigeria at the hands of two families. I had some doubts about whether the reason for this harm falls within the enumerated criteria of the Refugee Convention. I requested submissions from Mr. O.'s counsel on the issue of whether Mr. O. was persecuted and faces further persecution by reason of any of the Convention grounds, and if so how. [24] Counsel's submission2 provided three possible nexus grounds for Mr. O.: 1. Political opinion: refusal to act in compliance with the corrupt nature of Nigerian society; 2. Ethnicity: being an Igbo who is not allowed to challenge the Yoruba power structure; 3. Particular Social Group: people who refuse to comply with endemic corruption in Nigerian society. Parents engaged in personal vendetta not based on imputed political opinion of corruption [25] The Appellant cited the Federal Court decision in Ward3 for the proposition that it is political opinion that can be attributed to an individual by a non-state actor on any matter in which the machinery of state, government and policy engaged. He quotes from Hathaway4 that protection on the ground of political opinion is extended beyond political affiliations, party memberships or prominent political roles to others at risk from political forces in their home community. [26] Mr. O. argues that his opposition to the undisputed fact of corruption in Nigeria is perceived as political by high profile members of a country that rewards corruption. He asserts that his ethical stance to refuse to be part of the corrupt nature of society was an implied political stance to those who rule and live by that creed. [27] I have reviewed the submissions of Appellant's counsel, and the precedents cited, and do not agree that Mr. O.'s actions equate to an imputed political opinion. In Jacobo5, a government employee complained about the corrupt activities of his supervisor, reporting him to the Public Ministry and Public Security. The Court found that the Board misstated a legal test by focusing on whether corruption was part of the very fabric of the whole Mexican system and erred in failing to assess the evidence of corruption specific to the employee's government department. The Court did not decide on whether opposition to that particular corruption amounted to political opinion but sent the matter back for a re-hearing. [28] I have read the Jacobo decision and find that it does not assist the Appellant for a number of reasons. The Appellant submits Jacobo is parallel to his case and that he has stronger grounds because the endemic corruption in Nigeria is widely acknowledged. [29] I disagree with the Appellant's contention that the facts of Jacobo parallel his situation. The claimant in Jacobo reported the corruption of his government supervisor to a police Commandant, who was fired and then murdered for his efforts to help stop the corruption. That claimant was shot at, threatened, and harassed because he had kept documents evidencing the corruption. In contrast, in the case before me, Mr. O. refused to upgrade the marks of some slacker students and upset their parents who then threatened to harm his career. In my view there is a qualitative difference between a person who makes deliberate efforts to stop corruption within the machinery of the state, and someone who is simply faced with some unpleasant consequences for not going along with a corrupt educational practice. [30] I also disagree that Mr. O. has stronger grounds than the claimant in Jacobo owing to widely known endemic corruption in Nigeria. I find that Jacobo stands for the principle that the Board is required to assess evidence of the corruption alleged within the particular milieu the claimant encounters it, and not just widespread corruption at the macro level. I find that the widespread corruption alleged in Nigeria, as with the widespread corruption alleged in Mexico is secondary to the specific corruption alleged. So, Mr. O.'s case is not stronger owing to any relatively greater amount of corruption in Nigeria than in Mexico. I find that the particular corruption in the machinery of state actively opposed by the claimant in Jacobo is far stronger grounds than Mr. O. not following corrupt expectations in the educational system. [31] The claimant in Jacobo was actually engaged in the machinery of government and attempting to stop corruption within it. In contrast, neither Mr. O.'s XXXX nor the parents whose children attend it, are within the machinery of the state. I determine that, on a balance of probabilities, those parents perceive Mr. O. as an officious do-gooder who derailed their children's education, rather than some political crusader. They are angry with him and are engaged in a personal vendetta that is not related to any political stance that he advances against corruption in general. I find there is insufficient evidence to establish that the families who are mad at Mr. O. are so politically connected that they rise to the level of the "political forces" cited by Professor Hathaway. I conclude that Mr. O.'s actions with respect to the students does not constitute perceived political opinion by the agents of persecution. Appellant not part of a Particular Social Group [32] I do not accept the alternative argument that Mr. O. is part of a PSG that refuse to comply with endemic corruption that is part of Nigerian society. I determine that XXXX XXXX who upset their student's parents are not a PSG. The Appellant did not advance any arguments on this ground, but the case-law does not assist him. There must be something about the group which is related to discrimination or human rights, and that something must relate to what the members are in an immutable way, as opposed to what they do.6 The group has to exist independently of the persecution and members must share some cohesive quality. I determine that XXXX who give legitimate grades, do not fall within those descriptions. Appellant not persecuted because of his ethnicity [33] Counsel contends that Mr. O. was under an implied threat that because he is from the Igbo tribe, he is not allowed to challenge the Yoruba power structure. This assertion is based on his XXXX telling him that the XXXX XXXX XXXX is a Yoruba XXXX and not an Igbo XXXX. This statement was among several comments and threats made by the XXXX on learning that Mr. O. was not obeying his instructions to improve the student's grades. In his Basis Of Claim (BOC), Mr. O. states he did not take the threats seriously because they were made in the heat of the moment. I find that Mr. O. gauged the conversation accurately, as the comment about his ethnicity was an offhand remark made as part of the anger displayed by the XXXX. There was no evidence of any sustained harassment of Mr. O. because he was Igbo. It is my view that the parents of the aggrieved students would have reacted the same way no matter what his background was. I conclude that the Appellant was not harassed because of his ethnicity. CONCLUSION [34] I commend Mr. O. for standing up for his principles, especially where those principles may cause some conflict with people of lesser principles. However, for that conflict to rise to the level of persecution requiring protection, the criteria of the Convention must be met. I conclude that any harm that Mr. O. may face on return to Nigeria is not on account of any of the enumerated grounds under the Convention refugee definition. I determine that the Appellant does not face a serious possibility of persecution in Nigeria. I further conclude that he has not established on a balance of probabilities that he would face any harm described in S. 97. [35] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) J. Wyger Joseph Wyger August 31, 2020 Date 1 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, at para. 103. 2 Exhibit P-3, Submissions July 31, 2020. 3 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689, cited in P-3 Submissions. 4 Hathaway, J., & Foster, M. (2014). The Law of Refugee Status (2nd ed.). Cambridge, cited in P-3 Submissions. 5 Flores Jacobo v. M.C.I, 2012 FC 345, cited in P-3 Submissions. 6 M.C.I. v. B380, 2012 FC 1334 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-09742 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