TB6-11713

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 No. / N° de dossier de la SAR : TB6-11713 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, Ontario Appel instruit à Date of decision December 7, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ngozi A. Oti Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and "be reversed". The RAD assumes that the Appellant wishes the RAD to set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits new evidence in support of his appeal. He does not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that he is bisexual. [4] His first same-sex relationship with a classmate, XXXX XXXX, began when he was 17 years of age attending secondary school. The relationship continued until they left school and lost contact. [5] While as a student at the University of XXXX, the Appellant entered a homosexual relationship with a student named XXXX. Around 2011, XXXX came to live with the Appellant. Everyone thought they were good friends and did not suspect they were sexual partners. [6] In 2012, the Appellant married XXXX. She accepted XXXX as the Appellant's good friend and XXXX continued to live with the Appellant and his wife. [7] On XXXX XXXX, 2015, while the Appellant's wife was at church with their young child, a neighbour discovered the Appellant and Tope having sexual intercourse. The neighbour started screaming. Other neighbours appeared. The Appellant's wife returned from church just at this moment. The neighbours began to beat the Appellant, his wife, and XXXX. The Appellant dragged his wife away and they escaped to the home of their pastor. The pastor took them to hide in a border town. The pastor assisted the Appellant in travelling to Canada. [8] The Appellant arrived in Canada on XXXX XXXX, 2015 and made a claim for refugee protection on December 30, 2015. [9] The Appellant had a refugee determination hearing on July 14, 2016. In a written decision issued on July 28, 2016, the RPD rejected the claim. The RPD member found that the Appellant had not established his personal and national identity and that he was not a credible witness as relates to his identity. [10] Appeal pleadings were received on September 21, 2016. In his appeal, the Appellant argues that the RPD misapprehended evidence and/or unreasonably assessed evidence. The Appellant also submits that the RPD made an unreasonable assessment in determining credibility issues. [11] After the Appellant's appeal was perfected, his counsel, who had also represented him for his claim for protection, was suspended. The Appellant was provided notice of this suspension and notice that should he wish to retain new counsel he should do so immediately. As of the date of the RAD's decision, the RAD has not received any notice from the Appellant that he has obtained new counsel or that he intends to do so. ROLE OF THE RAD [12] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [13] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [14] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] The Appellant submitted the following new evidence with his original Appellant's Record: a) The Appellant's Affidavit, dated September 21, 2015;2 b) An affidavit from Chief XXXX XXXX, dated September 14, 2016;3 c) An affidavit from Mrs. XXXX XXXX XXXX, dated September 14, 2016;4 d) A Police Extract issued by the Nigeria Police Force, dated September 15, 2016.5 [16] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh, 6 in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [17] If the proposed new evidence meets the tests set out in the statutory requirements, the RAD will then go on to assess the FCA's considerations in Raza7 with the exception of materiality which is to be considered only in relation to s. 110(6) of the IRPA. [18] In the case at hand, the RAD accepts document a), the Appellant's Affidavit, insofar as it explains the reasons for the new evidence. [19] Regarding documents b) and c), d), the two affidavits and the police report, the RAD appreciates that the documents are dated shortly before the RPD issued its decision. Nevertheless, the RAD does not accept the documents for the following reasons. The documents provide information regarding a land dispute in the Appellant's family that led to the issuance of a passport for the Appellant with a name and birth date other than that provided when the Appellant made his claim for protection in Canada. Apparently, that passport was issued in the name of the son of Chief XXXX. However, on February 18, 2016, five months before the Appellant's hearing before the RPD, the Minister filed a Notice of Intent to Intervene on the issue of credibility.8 In the Notice, the Minister indicates that a biometric match was obtained from the United Kingdom (UK) indicating that the Appellant has an alternate identity in the UK and is known as XXXX XXXX XXXX, born on XXXX XXXX, 1966. The Minister indicates that the Appellant used a passport issued in this alternate identity to apply for a UK visa on XXXX XXXX, 2007. The Minister notes that the Appellant alleges that his name is XXXX XXXX XXXX born on XXXX XXXX, 1971 and that the Appellant declared that he has used the alias XXXX XXXX XXXX. The Minister states that he "is of the opinion that the results of the biometric match call into question the identity of the claimant to the extent that the claim for protection cannot succeed absent a reasonable explanation for the discrepancy."9 [20] The Appellant states that the evidence could not reasonably have been expected in the circumstances to have been presented. The Appellant provides no explanation as to why these documents could not reasonably have been expected. [21] The RAD finds that this evidence does not meet the statutory requirements of 110(4) of the IRPA. Given that the Appellant's identity was identified as an issue well before his hearing before the RPD, the RAD finds that the information contained in the two affidavits and the police report could have been produced to the RPD with reasonable diligence. The RAD notes that according to the recording of the hearing, the Appellant testified that he was aware of the contents of the Minister's Notice of Intent to Intevene before the hearing. [22] As the Honourable Mr. Justice Fothergill stated in a recent Federal Court decision: Subsection 110(4) of the IRPA must be interpreted narrowly. Evidence that simply corroborates facts or contradicts the RPD's findings does not fall within the meaning of "new evidence" for the purposes of s 110(4) of the IRPA (Singh at paras 35, 50, 51). In the words of the Federal Court of Appeal, "[t]he role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected" (Singh at para 54).10 ANALYSIS OF THE EVIDENCE [23] The RAD will focus on whether the RPD erred in its identity findings and its credibility findings as they relate to the Appellant's identity. Undisclosed UK visa application and Nigerian passport in an alternate identity [24] The RPD found that the Appellant was not a credible witness regarding the Minister's identity concerns outlined in the Notice of Intent to Intervene,11 referred to above. In its reasons, the RPD noted that the Appellant provided no credible explanations for (i) the non-disclosure of his use of the alternate identity, (ii) the non-disclosure of his failed UK visa application in 2007, and (iii) his sworn testimony at the hearing that he had not used any other name besides XXXX XXXX XXXX and no alternate dates of birth. [25] The Appellant submits that at no time did he deny using the name XXXX XXXX XXXX in applying for a visa to the UK. The Appellant submits further that he is not known in the UK as XXXX XXXX XXXX but that a distant relative used his own son's names to apply for a UK visa for the Appellant when the Appellant's life was in danger. The Appellant submits further that it is an acceptable fact that a person whose life is in danger and in need of protection use fraudulent passports to travel out of their home country. [26] For the following reasons the RAD is not persuaded by the Appellant's submissions. Not providing information to Canadian authorities regarding an alternate identity [27] Having considered the Appellant's documents and having listened to the recording of the hearing, the RAD finds that the Appellant did deny applying for a UK visa and using another name, in particular the name XXXX XXXX XXXX, disclosed by the Minister. On his visa application to Canada, the Appellant indicated that he had not been denied a visa to any country.12 At the port of entry (POE), the Appellant was asked if he had ever used any other names; he did not provide the name XXXX XXXX XXXX.13 At the POE, when the Appellant was asked if he had ever been refused a visitor's visa, he did not indicate that he had been refused a visa to the UK; he indicated that he had been refused a visa to the United States (US).14 According to the recording of the hearing, the RPD asked the Appellant to state his full name. The Appellant responded with the name he provided for his claim for protection. The RPD then asked the Appellant if he had ever used or was known by any other name. The Appellant responded in the negative. The RPD repeated the question twice more and the Appellant responded each time in the negative. The Appellant's counsel then asked the interpreter to ask the Appellant if he had ever used any other name. When the interpreter rephrased the question, the Appellant testified that he had used the name XXXX XXXX. Upon being asked, the Appellant provided an explanation for having used this name. Following this testimony, the RPD asked the Appellant if there were other names he had used or was known by, the Appellant responded in the negative. The RPD then referred the Appellant to the information contained in the Minister's Notice of Intent to Intervene. The RPD noted to the Appellant that when his fingerprints were submitted by Canadian authorities to the UK, a match was found in an alternate name, XXXX XXXX XXXX with a birth date, XXXX XXXX, 1966, different than that provided by the Appellant to Canadian authorities. Once confronted with the information from the Minister, the Appellant acknowledged the use of this alternate identity. The Appellant provided lengthy testimony as to why he did not acknowledge this information earlier. The RAD does not find the Appellant's explanation reasonable and will discuss this issue below. [28] The Appellant is known in the UK to the authorities there as XXXX XXXX XXXX with date of birth XXXX XXXX, 1966. The Minister's Notice of Intention to Intervene states the following: 3a) The claimant has an alternate identity in the UK and is known as XXXX XXXX XXXX, born on XXXX XXXX, 1966.15 [29] For the following reasons the RAD does not accept the Appellant's explanation that a distant relative applied for a visa to the UK for the Appellant in the name of the distant relative's son. [30] According to the recording of the hearing, the Appellant was asked if he was aware at the time he was finger printed at the UK embassy in Nigeria that his visa was being processed in the name of the son of his relative, Mr. XXXX, as he alleges. The Appellant's testimony became evasive. The RPD repeated and rephrased this question many times. When the RPD advised the Appellant that the question required a yes or no answer, the Appellant continued to avoid answering the question. For example, when first questioned the Appellant indicated that he did not understand the question. When the question was rephrased, the Appellant testified that he did not discuss the situation with his relative and when they got to the embassy he knew. When the RPD asked for a direct yes or no response, the Appellant testified that it was because of fear and despair he wanted to escape Nigeria and he didn't have any knowledge of what he was doing. The RAD does not find the Appellant's explanations satisfactory. As the RPD noted in its decision, the Appellant is not unsophisticated or uneducated. He is a well-educated man; he obtained a university degree in Business Administration from the University of XXXX in 1997.16 He had work experience as a market manager prior to applying for a visa to the UK in 2007.17 The RAD finds the Appellant's testimony in this regard was an attempt to distance himself from the UK visa application process. The RAD, thus, draws a negative inference. [31] The RAD agrees that it can be acceptable for a person who fears for his life to use fraudulent documents to escape the country. However, this does not explain the Appellant's failure to disclose in his visa application to Canada or at the port of entry (POE) when he first made his claim for protection or when first asked by the RPD during the hearing, the fact that he applied for a visa to the UK in 2007 and used a different identity when doing so. [32] The RAD finds the Appellant's credibility with regards to his identity is seriously undermined by this testimony. Credibility regarding the issuance of a passport and visa in an alternate identity [33] The RPD found Appellant's explanations for not disclosing his use of an alternate identity as not credible. In its reasons, the RPD noted that while the Appellant testified that because of a land dispute within the family his brother wished to kill him, the Appellant did not list a brother on his visa application or Basis of Claim (BOC) form. The RPD did not find the Appellant's explanation, that he could not remember the alternate identity name used, as credible. The RPD noted that a threat to the Appellant's life, which allegedly caused him to seek to leave Nigeria under a false identity, would be a significant event in one's life such that one would not forget the use of an alternate identity to flee the country. The RPD found that the Appellant made a material omission by not disclosing his use of an alternate identity in a number of documents he provided to Canadian authorities. The RPD did not accept the Appellant's explanation that he did not like to think about the matter of the land dispute which subsequently led to the issuance of a passport in an alternate identity and the application for a UK visa using the alternate identity. The RPD noted that the Appellant turned his mind in his BOC to consider what other identities he had used and, similarly, turned his mind to other visa applications when completing his visa application to Canada and when claiming for protection at the POE. The RPD found that the Appellant deliberately omitted to mention the identity used to apply for the UK visa. [34] The Appellant submits that the event which led to the use of an alternate identity caused the death of his mother. The Appellant submits that the experience caused him to block the event out of his mind. The Appellant submits that the RPD failed to understand that when he testified that his brother, Chief XXXX, who wished to kill him, he was not referring to his blood brother. The Appellant submits further that in Nigerian parlance the term brother is used when referring to a cousin. [35] The RAD agrees in part with the Appellant. According to the recording of the hearing, the Appellant referred to his brother a number of times when describing the person who wished to kill him over a land dispute. The RPD did not question the Appellant about the exact relationship between the Appellant and Chief XXXX or confront him with the omission of a brother in his BOC or visa application. In any case, the RAD accepts that in Nigerian parlance a cousin might be referred to as a brother. [36] However, the RAD is not persuaded by the Appellant's other submissions. [37] According to the recording of the hearing, the Appellant testified that he realized shortly after his mother's death in 2002 that she died by the use of voodoo at the hands of those who wished to acquire his mother's inherited land. As upsetting as a parent's death, under any circumstances, might be the RAD finds the Appellant's explanations unsatisfactory. While the Appellant might not like to recall his mother's death more than ten years ago, the RAD finds it highly unlikely that the Appellant would forget that he applied for a visa using an alternate identity given that it was allegedly necessitated by a threat to his life. As the RPD noted in its decision, the Appellant turned his mind to the question of the use of other names when he provided the alternate name of XXXX XXXX XXXX at the POE. The Appellant also turned his mind to any refusals of visa applications when he indicated at the POE18 that he was denied a US visa and when he provided information to a similar question when completing his visa for Canada19. [38] The RAD, thus, finds the Appellant's credibility with regards to his identity is further undermined. The Appellant's Nigerian Driver's Licence20 [39] The RPD assigned no weight to Nigerian driver's licence that the Appellant submitted as evidence of his present identity. The RPD noted that the licence was originally issued to the Appellant on XXXX XXXX, 2009, during a time when the Appellant was apparently in possession of at least two sets of identity documents (passports in two different names with different birth dates). The RPD stated that it recognized that the Appellant had provided a letter of authentication of the licence from the Nigerian Embassy in Canada. The RPD put no weight on this letter because there was no information in the letter to indicate what measures, if any, were taken to confirm the authenticity of the licence and because of the lack of credibility of the Appellant. In its reasons, the RPD also noted the Appellant's willingness to submit fraudulent documents to immigration authorities in the past. [40] The Appellant submits that the RPD erred in its failure to accept the Nigerian Embassy's authentication letter. The Appellant submits further that the RPD had an outright disregard for the good offices of the Nigerian Embassy in Ottawa in its failure to recognize and accept the embassy's position with regards to his driver's licence. [41] For the following reasons, the RAD does not accept the Appellant's submissions. [42] The RAD has considered the letter from the Nigerian Embassy in Ottawa.21 For the following reasons, the RAD gives little weight to the document. The RAD finds that the letter simply states that it acknowledges receipt of the Appellant's application for authentication of his driver's licence and confirms that the licence contains the Appellant's present name, the date of issue and expiry of the licence and the date of first issue of the licence. The letter does not refer to the Appellant's date of birth. The letter refers to the passport the Appellant provided to Canadian authorities as evidence of his identity. The letter provides no information as to what procedures were followed to authenticate the driver's licence. The RAD reasonably assumes that the Nigerian Embassy used information contained in the Appellant's present passport. The RAD reasonably assumes that officials at the Nigerian Embassy in Ottawa were not aware of the wide-ranging credibility concerns regarding the Appellant's identity when they issued this letter. [43] As a result of the Appellant providing a passport to Canadian authorities with one identity and providing the UK authorities with a passport with an alternate identity and his inability to provide any reasonable explanation, the RAD finds that the driver's licence and the letter from the Nigerian Embassy in Ottawa cannot overcome the wide-spread credibility concerns regarding the Appellant's identity. The Appellant's present passport22 [44] The RPD found that it could not give greater weight to the Appellant's present passport which he provided to Canadian authorities than the passport23 he submitted to the UK authorities with an alternate identity. The RPD found that the Appellant demonstrated a willingness to submit fraudulent Nigerian identity documents as genuine and it was now not possible to determine which Nigerian passport, if either, is genuine. The RPD noted in its reasons that the passports bear the Appellant's photograph but conflicting personal data. The RPD also noted the independent documentary evidence regarding the widespread availability of fraudulent documents in Nigeria. [45] Other than the Appellant's submission that he provided an explanation regarding a distant relative obtaining the UK visa application, he provided no further submissions with regards to the RPD findings outlined in the previous paragraph. [46] The RAD concurs with the RPD and finds that the Appellant has failed to establish his personal and national identity. [47] The Appellant's explanations for failing to disclose his use of an alternate identity document on his visa application to Canada, at the POE and during his testimony before the RPD, have been found to be unsatisfactory. It is apparent that the Appellant was able to obtain and was willing to use fraudulent documents with regards to his identity. The independent documentary evidence indicates that practically any falsified document can be procured in Nigeria.24 Summary [48] Based on a review of the totality of the evidence, the RAD finds that the Appellant has not provided sufficient credible or trustworthy evidence to establish his personal or national identity. DISPOSITION [49] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, as per section 111(1)(a) of the IRPA. [50] The appeal is dismissed. (signed) "Lesley Mason" Lesley Mason December 7, 2016 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 Exhibit P-2, Appellant's Record, pp. 14-18. 3 Ibid., pp. 26-27. 4 Ibid., pp. 28-29. 5 Ibid., p. 30. 6 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 8 Exhibit RPD-1, RPD's Record, pp. 159-168. 9 Ibid., p. 60. 10 Vijayakumar, Vinushan v. M.C.I. (F.C., no. IMM-929-16), Fothergill, October 19, 2016, 2016 FC 1160, para. 15. 11 Exhibit RPD-1, RPD's Record, pp. 159-168. 12 Exhibit RPD-1, RPD's Record, p. 129. 13 Ibid., p. 39. 14 Ibid., p. 53 15 Exhibit RPD-1, RPD's Record, p. 160. 16 Exhibit RPD-1, RPD's Record, p. 129. 17 Ibid. 18 Exhibit RPD-1, RPD's Record, p. 53. 19 Ibid., p. 129. 20 Exhibit RPD-1, RPD's Record, p. 183. 21 Ibid., p.178. 22 Exhibit RPD-1, RPD's Record, pp. 66-72. 23 Ibid., p. 156. 24 Exhibit RPD-1, RPD's Record, National Documentation Package for Nigeria (April 29, 2016), item 3.10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-11713