MB9-26877

RAD File No. / No de dossier de la SAR: MB9-26877 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 December 18, 2020 Date de la décision Panel Me Kristine Plouffe-Malette 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] The appellant, XXXX XXXX XXXX, a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) dated September 25, 2019. The RPD rejected his refugee protection claim on the ground that there is an internal flight alternative (IFA) for the appellant in Lagos or Abuja. [2] According to the appellant, the RPD erred in finding that his testimony was not credible when he stated that he had been found by members of his village and that he produced a false police report. It allegedly also erred in concluding that there is an IFA because he had been found by members of his community when he fled. [3] For the reasons that follow, the Refugee Appeal Division (RAD) dismisses the appeal, for reasons that are different from those expressed by the RPD. The RAD is of the opinion that the appellant failed to demonstrate, on a balance of probabilities, that there is a prospective risk if he were to return to Nigeria. BACKGROUND [4] The appellant fears for his life in Nigeria because he had been chosen to serve as the XXXX and leader of his community, a title he refused because it involves taking actions contrary to his Christian religious beliefs. [5] On XXXX XXXX XXXX 2016, his father informed him of the community's decision. Following his refusal, his father threatened him with death. On XXXX XXXX XXXX 2016, the appellant went to the police station in XXXX, his native village in Ondo State. The police officers refused to take the complaint because it pertained to traditional and family matters. He was told to respect the will of his family and his community. [6] The appellant then left his village to move to the coast, still in Ondo State. Armed men allegedly saw him and ordered the appellant to return to the village. [7] On XXXX XXXX XXXX 2017, the appellant again tried, unsuccessfully, to file a complaint at a police station in Ondo State. He received the same welcome and the same speech as during his previous complaint attempt. [8] The appellant submits that he then left Ondo State to seek refuge in Lagos with his brother-in-law, who helped him obtain a visa for the United States, which he received on XXXX XXXX. [9] He left Nigeria for the United States on XXXX XXXX XXXX 2017. He crossed the Canadian border on XXXX XXXX XXXX 2018, to claim refugee protection there. [10] Lastly, the appellant mentions that his wife told him that people were still showing interest in him and apparently uttered death threats against him when they were told that he no longer lived in the country. He concludes his written account by stating that a XXXX XXXX must die before his community can choose another. SCOPE OF THE APPEAL [11] In accordance with Huruglica,1 the RAD carried out an independent review of the evidence submitted in support of the appeal, which included listening to the hearing in this case and, since the RPD did not enjoy a meaningful advantage as to the issue of credibility, applied the correctness standard. ANALYSIS Appellant's credibility [12] During his hearing, the appellant told a substantially similar story to the one in his written account accompanying his Basis of Claim Form. Like the RPD, the RAD is of the opinion that he established, on a balance of probabilities, that he is part of a traditionalist community into which he was initiated; that he had been called to become the next XXXX, but refused this title because of his Christian beliefs; and that he had been threatened with death by his father (deceased at the time of the hearing before the RPD) and during a visit to his native village, where men from his community attacked him to convince him to take on the role of XXXX. He also attempted to file a complaint with the police in the village where he was born. [13] However, the RPD found that the appellant did not provide credible testimony about his allegation of assault in XXXX 2017 and concluded that the second police report, submitted in support of his allegation of assault, was fraudulent. The RPD then found that the appellant did not provide credible testimony about his move to Lagos. For the reasons that follow, the RAD considers the RPD's findings to be correct. Presumed assault in XXXX 2017 and police report [14] In his memorandum, the appellant contests the RPD's conclusion that the police certificate, dated XXXX 2017, was fraudulent because he submits that it should have made a finding regarding his credibility before deciding on the truthfulness of the document. The RAD does not share this view. [15] The appellant himself submitted into evidence the police report dated XXXX XXXX XXXX 2017, to support his allegation of assault by members of his community at his home in Ondo.2 The RPD asked him to explain the various problems raised in the report, that is, the lack of an official letterhead and the appearance of a stamp mentioning a police station located in Abuja. He offered multiple theories in response, each more bizarre than the next. To explain the lack of letterhead, he suggested that the police must have been out of paper, whereas to explain the appearance of the stamp from the police station in Abuja rather than Yaba, as he had mentioned during his testimony, he suggested that all of the country's police reports must go through the capital.3 These explanations shift the burden to third parties without offering a satisfactory explanation of objectively observable errors. Moreover, as the RPD pointed out, this document is inconsistent with the police report templates presented in the National Documentation Package on Nigeria4 as well as the first police report submitted by the appellant himself. [16] Consequently, the RAD agrees with the RPD that there is every indication that this document is a forgery and gives it no probative value. Based on his testimony and the document submitted, the RAD also reaches the same conclusion as the RPD, that is, that the appellant failed to demonstrate, on a balance of probabilities, that he had been attacked by armed men in XXXX 2017 and had filed a complaint with the police afterwards. His credibility is seriously undermined. Move to Lagos [17] On appeal, the appellant submits that the RPD erred in concluding that he failed to demonstrate, on a balance of probabilities, that he had sought refuge in Lagos due to an error in his home addresses on his IMM 5669 form, the mention on this same form that he worked as "XXXX" of the XXXX XXXX XXXX XXXX in Ondo until his departure from the country, and his vague and imprecise testimony regarding the timing of his move. [18] First, he states that nearly all the forms systematically contain errors and that the conditions in which they are filled out justify giving the benefit of the doubt to refugee protection claimants who make errors on them. The RAD cannot accept this argument for three reasons. [19] First, the onus is on the appellant to prove an error in the RPD's findings; nothing specific has been raised here in the appellant's case. [20] Second, according to the appellant's signatures on these various forms for entry into Canada, he submitted them three days after his arrival.5 He was therefore not under stress from his arrival at the airport when he filled them out. He had time to read and fill out the documents and return them to the authorities. [21] Third, since the appellant felt it important to mention his home address in the United States for a short three-month period, it was reasonable for the panel, the RPD and the RAD to expect him to indicate the place of residence where he had allegedly sought refuge after the event that apparently justified his departure from the country. Consequently, this reason is rejected. [22] The appellant was asked to explain why his home address in Lagos in 2017 is not mentioned in his IMM 5669 form. He stated that since his family still lived there, in his mind, his permanent residence was not in Lagos, but in Ondo. Asked about the timing of his move, the appellant provided evasive, imprecise testimony without ever giving a clear answer as to when it was that he had moved to Lagos. He first stated that he left quickly after the events because he was still in shock. However, asked to clarify his answer, he was unable to say whether he had left Ondo a few days or a few weeks after the presumed incident.6 Consequently, contrary to what he submits in his memorandum, the appellant did not offer honest and sincere testimony; instead, his testimony about his move was imprecise and shifting. Like the RPD, the RAD concludes that the appellant did not demonstrate, on a balance of probabilities, that he had indeed moved from Ondo to Lagos before his departure from Nigeria. His credibility is severely undermined. [23] Lastly, the appellant submits that there is no contradiction between living temporarily in Lagos and acting as "XXXX" of an association in Ondo. Although the appellant was not questioned specifically about this information and the possibility of his being employed in Ondo and living in Lagos, the RAD is of the opinion that this fact could have been included in the questions about the appellant's move. In addition, although the RAD concluded that it was impossible to object to this information, contained in his IMM 5669 form, due to the lack of a clear and specific question in that regard, there is no need to intervene because this mention alone did not justify it, given its very limited significance. Credibility finding [24] Ultimately, the RAD finds that the appellant did not provide credible testimony regarding the events that had allegedly taken place after XXXX 2016. As a result, the appellant failed to demonstrate, on a balance of probabilities, that he had been assaulted at his home in XXXX 2017 and that he had then moved to Lagos before leaving Nigeria permanently on XXXX XXXX XXXX 2017. Prospective risk [25] For the reasons that follow, the RAD considers that the appellant failed to demonstrate that, if he were to return to Nigeria, he would face a serious possibility of persecution or would be personally subjected, on a balance of probabilities, to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment. [26] The appellant delivered credible testimony regarding the fact that members of his community tried to convince him to accept the title of XXXX XXXX His father allegedly threatened him with death when he refused, whereas members of his community attacked him to convince him. [27] At the time of the hearing, his father was deceased, which eliminates one of the appellant's alleged agents of risk.7 [28] The appellant then confirmed, during his testimony, that according to the traditions of his community, when a person does not wish to take the title in question, the members will try to convince him, but will abandon their efforts only once they feel that they have done enough to find him. He even stated that there is a ritual to assure members of the community that the title will be passed on to someone else if a person does not want it. The appellant therefore testified as follows: "Normally, when they don't find the person, they will bring a branch of a plantain tree and put it in the coffin and bury the coffin, so that they can move on. But once that is done, they will definitely kill the person if ever they see them again." [29] Later in his testimony, he stated that, to his knowledge, members of his community had to proceed as follows: They send out their emissary to go look for the person, and when they have done their best to find the person, they will come back and they say, OK, we have done our best. I think they have done this already in my case, since they have been to my place a couple of times. I am positive that they have done this in my case. 8 [30] He stated that men came to his home, asking for him, but nothing more. His wife had apparently moved out of their home at various times, but always returned to live there with their children. She was allegedly not overly worried. This testimony allows the RAD to conclude that his wife's behaviour was inconsistent with that of a person fearing for her life, as she remained in their home, which had been targeted by members of the appellant's community looking for him in order to kill him. [31] In the end, when asked to explain, given these circumstances, why members of his community would still be after him on the day of the hearing if he could have performed the ritual, the appellant offered the theory that a ransom could have been demanded. He was unable to specify who had allegedly demanded this ransom, to whom the ransom demand had been made or what its amount was. Not only does this statement seem purely speculative, but it also contradicts his previous testimony that members of the community wanted to do away with him because of his refusal to act as the XXXX, despite the performance of the coffin ritual, and not to obtain money. [32] Ultimately, coupling these last lines of testimony with the negative inferences undermining the appellant's credibility regarding the continuation of threats after XXXX 2016 and his move to Lagos enables the RAD to conclude that he did not demonstrate, on a balance of probabilities, that there is a prospective risk if he were to return to the country. The appellant therefore failed to demonstrate that, if he were to return to Nigeria, he would face a serious possibility of persecution or would be personally subjected, on a balance of probabilities, to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment. CONCLUSION [33] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the appeal is dismissed and the RPD determination that the appellant is neither a Convention refugee nor a person in need of protection within the meaning of subsection 97(1) of the IRPA is confirmed, for the aforementioned reasons. (signed) Kristine Plouffe-Malette Me Kristine Plouffe-Malette December 18, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 SPR-1, Refugee Protection Division (RPD) record, Exhibit P5. 3 Recording of the hearing before the RPD on August 6, 2019, at 1:59. 4 See template of Nigerian police reports, SPR-1, RPD record, National Documentation Package on Nigeria (August 20, 2019), Tab 10.3. 5 SPR-1, RPD record, at pp. 43, 47, 50, 53 and 58. 6 Recording of the hearing before the RPD on August 6, 2019, at 1:30. 7 SPR-1, RPD record, Exhibit P3. 8 Recording of the hearing before the RPD on August 6, 2019, at 35:00 and 1:50. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-26877 RAD.25.02 (January 2020) Disponible en français 8 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