TB6-19438

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 : TB6-19438 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 May 1, 2017 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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), is a citizen of Nigeria. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The RPD found that the Appellant is not a Convention refugee, and is not a person in need of protection. [2] The Appellant submits that the appeal be allowed, and that either the Appellant be found to be a Convention refugee or a person in need of protection, or in the alternative, that the matter be referred back to a different member of the RPD for redetermination. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. Memorandum of Appeal a. Did the Panel err when it relied on a microscopic reading of the evidence to impugn the Appellant's credibility? b. Did the Panel err in its overall assessment of the Appellant's credibility? c. Did the Panel err in its analysis of the documentary evidence? Background [4] The Appellant describes her fear of returning to Nigeria because of her husband's threats to beat her up, and force her and her son into the practice of full Islam. She also fears Islamic fanatics, especially XXXX XXXX. She states that her three children who remained in Nigeria are in the hands of the government. [5] The Appellant describes how her brothers and sisters lost their parents when they were young, and suffered periods of physical, verbal, and psychological abuses. When she married her husband on XXXX XXXX, 1996, he assured her that she would not have to abandon her religion, Christianity. Both were gainfully employed, and had homes in Kanos and Lagos. [6] The Appellant's husband began a more intense study of Islam. They had a dispute in the naming of their fourth child. As a result of this dispute, the Appellant's husband began abusing the Appellant physically, verbally, and psychologically. The police refused to act when she reported him in XXXX 2013. [7] The Appellant's husband had a family meeting on XXXX XXXX, 2014, and demanded that they all become Muslims. When the Appellant refused, he started strangling her with both hands, and the children ran out. After an intervention by neighbours, the Appellant escaped to a nearby church; finding that her children were already there. The Pastor of the church took her to her brother's house, and accompanied her and her sister to meet with the Appellant's husband. When the discussion deteriorated, the Appellant's husband stated he was going to get members of XXXX XXXX to deal with them. The police refused to make a report, stating it was a family matter. [8] After two months in hiding, the Appellant's husband pleaded for forgiveness, stating that he would never hurt them again. When visiting Canada at the invitation of two of her siblings, she discovered that her husband had taken the children to register in a Quaranic school. Her sister in Nigeria collected the children, and went to the police to make a report about the Appellant's husband. Because of the constant harassment, her children were taken into custody by the Children Welfare Office. [9] The Appellant's husband refused to allow the children to attend a regular school. He stated that she would be dealt with by some fanatical members of his mosque and XXXX XXXX members. He stated that he would find her anywhere in Nigeria, and that he would kill her the next time he sees her. When these threats were reported to the police by her friend, the police said it is not a police matter. [10] She was informed by her sister that her husband had bribed senior government staff, and they were allowing him to make decisions with respect to the children. [11] The RPD hearings were held on May 3, 2016, and June 13, 2016. In a decision on December 16, 2016, the RPD found the Appellant not to be Convention refugee nor a person in need of protection. Admissibility of Evidence Submitted on Appeal [12] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [13] It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.2 Application of Section 110(4) [14] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claim. If they could not have been expected to do so, the evidence meets the requirements of the section. [15] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.4 [16] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [17] Section 110(4) does not provide an opportunity for Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.5 [18] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [19] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [20] In Singh,7 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza8 to the assessment of new evidence. While Raza predates the introduction of the IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). In that case, the Federal Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.9 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).10 [21] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply to it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [22] Relevance is a basic condition for the admissibility of any piece of evidence.11 RAD Rule 3(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "...deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [23] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.12 [24] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence that passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [25] The Appellant submitted a letter13 from XXXX XXXX XXXX XXXX, a registered psychologist. This letter stated that he made an incorrect statement in his original psychological assessment.14 He stated that Ms. XXXX reported that she was visiting her sister in Canada at the time that she was visiting in Canada. In the original assessment, he stated that she had fled to Canada. [26] This letter meets the requirements of section 111(4) of IRPA. However, in reviewing the psychological assessment by Dr. XXXX, and the testimony and documentation of the RPD file, the RAD finds that this change in the wording of the assessment is not relevant with respect to the final decision of the RAD. [27] The RAD will not admit this letter as new evidence, and as a result will not honor the Appellant's request for a new hearing, as outlined in subsection 110(6) of the IRPA. Role of the RAD [28] The Appellant supports the provisions outlined in the Federal Court of Appeal (FCA) decision in the case of Huruglica. The decision of the Federal Court of Appeal in Huruglica15 provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. [29] The Court stated that with respect to findings of fact (and mixed fact and law) which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to subsection 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [30] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above. Merits of the Appeal The Panel Erred in its Assessment of the Appellant's Credibility [31] The Appellant submits, quoting federal jurisprudence16 that the RPD erred when it relied upon a microscopic reading and analysis of the evidence to impugn the Appellant's credibility. Upbringing [32] In the Basis of Claim (BoC) narrative, the RPD noted that the Appellant stated, "We went through periods of physical, verbal, and psychological abuses,"17 when they were young. The RPD noted that the time of her father's death in 1995, she was XXXX years old, and her brother would have been XXXX years old. When asked to explain this, the Appellant stated that it was more financial abuse. She testified that they had to rely upon her relatives for food and university fees. In further testimony, the Appellant stated that her relatives had paid for her to attend university. When asked how to explain how she was abused, she testified they used to sell XXXX XXXX to acquire extra money they needed. The Appellant further tried to explain the abuse she suffered, testified they were children without adults to supervise, and that four of them were girls. The Appellant later stated nothing happened to her, but they had to fend for themselves. [33] The RPD found that the Appellant's testimony undermined her credibility. The RPD noted she did not answer questions in a straightforward and direct manner, and drew a negative inference from the clearly unresolved inconsistencies between her statements in the BoC narrative, and her testimony at the hearing. As referenced above, the Appellant referred to periods of physical, verbal and psychological abuse while being raised by extended family members. In her testimony, the following facts were ascertained: the Appellant remained in her father's home after his death in 1995, when she was XXXX years old; the extended family assisted them financially but they did not raise her, nor did she did live with them; the Appellant and her siblings had to raise some money for their food; and the abuse described was economic hardship. [34] In addition, after her marriage in 1996, she indicated that her husband had helped a little bit, along with her brother and herself in paying for her university education. As a result, the RPD did not accept the alleged financial difficulties alleged by the Appellant. The RPD stated that the Appellant did not provide credible and trustworthy evidence to support her allegations of abuse. [35] Referencing a transcript of the RPD hearing,18 the Appellant submits, referring to federal jurisprudence,19 that the RPD, " failed to take into consideration the Appellant's cultural and social background, and upbringing, and how this can form the words she used to describe these interactions with her extended family members." The Appellant submits the abuse was financial, and as a result, she was vulnerable as they were often out on the street selling items to collect money. [36] The Appellant submits that the RPD significantly erred when it stated that she was not raised by extended family members. The Appellant states that culturally, in a Nigerian context, irrespective of age, when an individual is still under the care of parents and/or guardians, they are still considered to be raised by these individuals. She further submits there is no advantage to be gained by obfuscating the fact that her family members were abusive towards her. [37] In reviewing the BoC narrative, referenced above, and testimony, the RAD finds that the Appellant was inconsistent and not credible. The abuse alleged in the BoC narrative, was not consistent with testimony. The alleged physical, verbal, and psychological abuses outlined in her BoC narrative were not consistent with her testimony. The RAD finds, on a balance probabilities, that the abuses, if there were any, were economic. She testified that she was provided support by her brother, and her husband, and that she had helped herself a little bit as well. The RAD draws a negative credibility inference from the Appellant's failure to adequately explain the inconsistencies between her testimony and her BoC narrative. The RAD also finds that, in and of itself, this negative inference is insufficient to reject the claim, but given the lack of credibility regarding other issues, this finding is relevant to the lack of overall credibility in the claim. The RAD gives deference to the RPD with respect to the Appellant not responding to questions in a straightforward, or direct manner. [38] With respect to the Appellant's submissions regarding being raised by extended family members, no National Documentation Package (NDP) or other documentation was presented to support this alleged cultural approach in Nigeria. As a result, the RAD does not give the submission, any weight. Marriage ceremony [39] The Appellant testified that she was unsure of what Nigerian law had been used for her marriage. She testified that she thought it was under Muslim rights. Referencing documentation submitted,20 the RPD found her responses, unaccountable. In further questioning, the Appellant admitted that she had read the document entitled, "Declaration in Lieu of Marriage Certificate" dated 1999, three years after her marriage. This document indicates that she was married under Islamic law. She then testified that, "yeah, maybe," she was married under Islamic law. The Appellant described the ceremony, where her husband's family blessed the marriage their way, and her family blessed the marriage the Christian way. In further testimony, she testified that she was unaware that she was married under Islamic law. The RPD found the Appellant's testimony not credible or trustworthy with respect to her marriage, and whether or not she knew she had been married under Islamic law. [40] The Appellant submits that the RPD erred when it relied on peripheral information to impugn the Appellant's credibility. [41] The RAD in reviewing the testimony of the RPD hearing, finds that the Appellant was inconsistent with respect to information about her marriage, in that the Appellant presented documentation with respect to the marriage, the RAD finds it not credible that she would be unaware of whether she was married under Islamic law, or Christian law. The Appellant, according to her documentation, is well-educated, and has held responsible positions when employed. The RAD finds that the Appellant has not been credible with respect to this issue. As above, this finding in and of itself is not the determinative issue for this claim. However, it is another issue where the Appellant has found not to be credible about her personal circumstance. Change in Behavior. [42] The RPD found the Appellant did not provide consistent and credible testimony with respect to her husband's change in behaviour. In her BoC narrative, he stated that in mid-2012 he began spending a lot of time in Kano, and in the mosque as well. In testimony, she testified that these changes began in 2013, in Lagos, when she was pregnant. When this inconsistency was noted to the Appellant, she changed her testimony and stated that it was mid-2012, when she began noting changes in his behavior. The RPD found that such incremental changes undermined the credibility of the Appellant and her evidence. [43] The Appellant states that the RPD is engaged in extremely microscopic reading of the evidence before it, and engaging in errors cautioned against by the Federal Court.21 She submits that she was slightly confused when being questioned. She also submits that the date for bringing the Inman home was not as stated by the RPD. [44] The RPD noted the inconsistency between her testimony and the Appellant's BoC narrative. It would be reasonable that such changes in behavior that began between her and her husband would be remembered. It is not credible that the Appellant would remember the date when this began, only after she had been challenged by the RPD. Again, not a determinative issue that in and of itself that would cause the refugee claim to be denied. However, the RAD finds that the Appellant's testimony regarding her alleged personal difficulties is inconsistent, and finds that she continues to be not credible about important issues in her personal life. Alleged Abuse from September 2013 [45] The RPD noted that in the Appellant's BoC narrative, she stated that her husband, starting in XXXX 2013, would snap at her and started abusing her physically, verbally, and psychologically. She further stated that he would beat her if food was not ready on time and then forced her to have sex against her will. In her testimony, the Appellant stated she came to Canada for the second time in XXXX 2013, and remained for several months, and that her husband had been agreeable to this circumstance. She also testified that during this time he was in the process of preparing them to come back home. She stated that he had to complete forms, in order for them to return to Nigeria. At the second sitting, the Appellant testified that she resigned from work in XXXX 2013 because she could not cope; because the pressure from her husband was too much at that time. [46] The RPD noted that according to her passport22 and Schedule A,23 the Appellant was in Canada during the time when she alleged that her husband began to abuse her. When asked to explain, the Appellant stated that he would snap at her on the phone, and the physical abuse began after she arrived in Nigeria in December 2013. She also testified that she was trying to "wrap up" the story. The RPD drew a negative inference concerning the credibility because of this inconsistency. [47] The Appellant submits that she made a genuine error when she stated that the abuse began in XXXX 2013. She submits that her husband was in fact, emotionally and verbally abusive towards her in XXXX 2013. The Appellant stated that the physical abuse commenced in XXXX 2013, the same month that she reported him to the police. The Appellant submits that the RPD was not alert and sensitive to problems that may arise when assessing an abused woman's credibility. She quoted federal jurisprudence to support this submission.24 She further states that there was no evidence that the RPD appreciated the Gender Guidelines, although it stated that it had been considered. She stated as an example, the RPD's questioning with respect to not making a claim in XXXX 2013, when her husband was verbally abusive. [48] The RAD draws a negative credibility inference with respect to the Appellant because of the inconsistencies between her BoC narrative, referenced above, and testimony at the hearing. It is not credible that the Appellant would state in the BoC document, sworn to be truthful and accurate, that she was physically abused in XXXX 2013, when in fact she was in Canada. The RAD also finds that she was not credible when she willingly changed her testimony in order to respond to the RPD's noting of this inconsistency. [49] In addition, she testified that she resigned in XXXX. 2013, her position at work because she could not cope with the alleged abuse from her husband; a time when she was still in Canada. The RAD finds the Appellant has not been a credible witness about any of the issues related to her personal history, and questions her overall credibility as it relates to the basis of her claim. [50] In reviewing the transcript of the RPD hearings, the RAD does not find any circumstance that would cause it to question the RPD's commitment to following the Gender Guidelines. The RAD finds the RPD's questioning the Appellant as to why she would not claim refugee protection in XXXX 2013, given the alleged worsening of her relationship with her husband, reasonable. Events of XXXX 2014 [51] The RPD drew a negative credibility inference from the inconsistencies and omissions of important information from her BoC narrative. [52] In her testimony, she stated that on XXXX XXXX, 2014, her husband took the children into their room with prayer and tried to force them to pray. When the Appellant intervened, she testified that he pushed her to the ground started squeezing her neck and the children ran out. In her BoC narrative, she stated that when she refused his request for them to become Muslim, he pushed her down and began strangling her. [53] In her testimony, the Appellant testified that her husband had said, "you know that I am XXXX XXXX," and that he would kill her. She also testified that he repeated those threats to her sister, XXXX, the following day. The RPD noted to the Appellant that her BoC narrative did not include this information, and in fact, stated that her husband was going to get members of the XXXX XXXX to deal with them. The RPD did not accept the Appellant's explanation that she did not want to write it or explain it, finding this a serious omission from her BoC narrative. The RPD also noted that her sister's letter,25 it makes no reference to the Appellant's husband stating that he was XXXX XXXX, or that he would kill the Appellant and the children. [54] The RPD gave the Appellant's sister's letter no weight because it did not include many of the important details testified to by the Appellant. The letter omits all information of the Appellant's pastor, going to the police to try make a report, and the fact that she went to stay with her brother for some time. The RPD also noted that her sister was not called as a witness in order to respond to questions that could be asked regarding the affidavit. [55] The Appellant submits that at the RPD hearing, she was merely adding detail to what was already in her BoC narrative. Quoting federal jurisprudence,26 the Appellant submits that it is a trite law that RPD members would draw adverse inferences from the purpose of an RPD hearing is to allow them to flesh out their story. [56] The RAD has reviewed the Appellant's testimony, information in her BoC narrative, and information given in her sister's letter, referenced above. The RAD finds the BoC narrative, stating that her husband would get the XXXX XXXX to deal with her is dramatically different than her testimony where she testified that he said on two occasions that he is XXXX XXXX and will kill her and the children. The RAD finds this a serious omission, and inconsistent, and draws a negative inference about the credibility of the Appellant. The RAD does not give any weight to the Appellant's sister's letter, referenced above, because it does not state or give working information that is consistent with the Appellant's testimony at the RPD hearing. Report to Police [57] The RPD noted that the Appellant's BoC narrative stated that she attempted to report her husband to the police on more than one occasion, but they declined to assist her. No documentation was presented to support this statement in her BoC, nor did the sister's letter, referenced above, mention such a circumstance. [58] The Appellant testified at the hearing that she told the police the story indicating that she could not remember if she told the police that her husband stated he was XXXX XXXX, but stated that her sister certainly did. The RPD found it not credible that the police would not assist her, and only stated that her husband was the head of the home. [59] The RPD referenced NDP documentation27 that states the following "...the Lagos State authorities and Nigerian police have 'strengthened the security situation' to ensure that people can practice their religion in Lagos." The documentation states that there have been relatively few incidents, and that in two of the aforementioned, between XXXX 2012 and in XXXX 2015, suspected members of the group were arrested. The RPD outlined the NDP documentation that indicates XXXX XXXX control large portions of Borno State, that this is not the situation in Lagos. The RPD found it not credible that the police would dismiss such an allegation as a family matter. [60] Referencing NDP documentation,28 the Appellant submits that the RPD did not come to that deduction based on all of the evidence before it, and its conjecture fails to carry the validity of legal proof. [61] The RAD finds that the Appellant has not been credible regarding her interaction with the police regarding the XXXX 2014 incident. The RAD referenced the NDP documentation referenced by both the Appellant and RPD. It is not credible that the police, allegedly having been informed that the Appellant's husband was a member of XXXX XXXX, would dismiss this incident as a family matter. The RAD prefers the documentation presented by the RPD, because it specifically indicates information as it relates to Lagos, the location where the family lived. Credibility after XXXX XXXX, 2014 [62] The RPD drew a negative inference from the very inconsistent evidence given by the Appellant as to her residence from June 2014 until September 2014. The RPD noted that in her Schedule A29 it stated that she lived at XXXX XXXX XXXX from June 2014 until September 2014. The document stated, "XXXX XXXX XXXX I hiding." An amended version of this document indicated that she was at that location only until July 2014, and that she resided at XXXX XXXX XXXX (XXXX XXXX XXXX XXXX XXXX), from July 2014 until September 2014. [63] In her testimony, the Appellant stated that her brother lived at XXXX XXXX XXXX, and that the church was at XXXX XXXX XXXX. The RPD noted that the brother's address had not been listed on the Schedule A information. The RPD noted that the testimony at the hearing regarding her addresses were given without hesitation, and conflicted with the information in her Schedule A. [64] The RPD drew attention to other conflicting testimony regard the timing and location of her residences during that time, noting inconsistencies with her BoC narrative. The RPD also noted several omissions of important information, given at the hearing in her BoC narrative. [65] Referencing a letter from the Appellant's sister,30 the RPD found that the information given completely contradicted the Appellant's testimony. The letter indicates that the Appellant's husband was adamant about not changing his mind and that at no time did he see the Appellant for the children before they left to come to Canada. The Appellant was unable to explain this discrepancy. The RPD found that the absence of an explanation for such a contradiction served to fundamentally undermine the credibility of the Appellant and the credibility of her story. [66] In addition, the letter referenced above indicated that the Appellant had moved out of her brother's house to a place across the road, information inconsistent with other testimony and documentation. The Appellant could provide no information or explanation as to why her sister's letter was starkly different from her own testimony and documentation. The RPD found that this unresolved conflict reinforced its finding that the Appellant had not provided credible and trustworthy evidence to establish the events that she alleges in her claim. [67] The RPD pointed out other inconsistencies regarding contact with her husband, schooling, and other alleged police reports. The RPD did not accept the Appellant's explanation that when she completed her BoC information, she was devastated and confused. [68] While agreeing that that she gave conflicting testimony with respect to residence between July and September 2014, she submits that she was testifying after four hours of questioning, with only one short break. She further states that she was tired and disoriented, and that the RPD did not take note of the Gender Guidelines with respect to special problems arising at refugee hearings. Without giving a reference, the Appellant referred to the UNHCR Executive Committee Guidelines on the Protection of Refugee Women, and outlined circumstances for women who have been subjected to domestic violence. [69] The Appellant submits that the RPD display of lack of sensitivity by entirely ignoring the psychology of abused women. The Appellant referenced federal jurisprudence to support this submission.31 [70] With respect, the Appellant was represented by competent counsel. In reviewing the testimony of the hearing, the RAD can find no instance where the Appellant's counsel attempted to alleviate this alleged circumstance. The RAD can also find no instance where the Appellant indicated that she was having difficulty because of the length of the hearing. The RAD gives this submission no merit as a reason for the inconsistencies in her living circumstances. [71] With respect to the alleged insensitivity displayed by the RPD, the Appellant is not specific about the details of what the RPD did to support the submission that she ignored the psychology of abused women. The RAD is unable to deal with the issue, given the lack of specific information. [72] In comparing the documentation submitted regarding her living residence in Schedule A, and in the amended Schedule A, the RAD finds that the information is inconsistent. The information given is also inconsistent with the Appellant's testimony at the RPD hearing. Given, as noted above, that no effort appeared to be made, by either the Appellant's counsel for the Appellant, to deal with the alleged confusion and tiredness of the Appellant, the RAD does not accept the submission as probative. [73] In reviewing the sister's letter referenced above, the information given contradicts the Appellant's testimony and documentation. The RAD reviewed the other inconsistencies noted by the RPD and finds, on a balance of probabilities, the Appellant is not credible about any of the circumstances she alleges. Documentation [74] The RPD referenced Rule 11 of the Refugee Protection Division Rules to support that the Appellant has a duty to provide acceptable documents to support their claim. Referring to federal jurisprudence, the RPD noted that where credibility is not an issue, corroborative documentation is not required. However, the RPD notes that this is not the case in this refugee claim. [75] With respect to her sister XXXX,32 the RPD found that the information given was contradictory, and in fact diminished the Appellant's version of events. With respect to her sister XXXX letter, referenced above, the RPD found that it failed to mention any of the critical information testified to by the Appellant. The RPD noted that this also relies on information given by the Appellant, information shown to be not credible by the RPD and RAD. [76] The RPD referenced a letter from a brother of the Appellant, who lives in Nigeria,33 and noted that his information relies on information given by his sister, the Appellant. The RPD notes that this is not unusual, given that he resides in Nigeria. Given that the information supplied to her brother was found not credible or trustworthy by the RPD, the RPD gave the letter no weight in supporting the claim [77] The RPD referenced the letter from the XXXX Immigrant Women's Center34 and noted there was contradictory information included. The letter states that the Appellant had to leave the country, information inconsistent with the Appellant's documentation that indicated she left Nigeria to visit her family. This contradiction, plus other information obviously given by the Appellant, causes the RPD to find this letter not probative with respect to her claim. [78] The Appellant submits that the RPD found her not credible, and then used this lens to analyze the documentary evidence, a process diametrically opposed to jurisprudence on the subject. Referencing federal jurisprudence,35 the Appellant submits that the document, an affidavit from XXXX, should have received a presumption of truth. She further submits that the letter from her Canadian-based sister XXXX XXXX, was given little weight because she was not called as a witness for the hearing. She submits that the RPD did not ask why her sister could not be produced as a witness, and her failure to testify should not be used against all the other evidence presented by the Appellant as proof of her claim. [79] The RAD rejects the submission by the Appellant and finds that it is not probative. The RPD dealt with specific inconsistencies, omissions, and contradictory information in each of the referenced letters. The RAD disagrees with the Appellant submission, that an abundance of evidence was produced to support her refugee claim. The RAD has found many issues, demonstrating a lack of credibility by the Appellant, and lack of credibility with much of the documentation provided. [80] The RAD has dealt with, above, letters from the Appellant's Nigerian based sister, XXXX, and Canadian based sister, XXXX. The RPD found these letters not probative given the contradictory and inconsistent information contained within. [81] The RAD finds that the letter from her Canadian-based sister, XXXX XXXX, referenced above, not probative. It contains information clearly relayed by the Appellant, information found not credible by the RAD. [82] The RAD finds that the letter from the XXXX Immigrant Women's Center, referenced above, is not probative given that it contains information found not credible by the RAD. As well, the letter contains information about the Appellant's reason for leaving Nigeria, information inconsistent with the Appellant's testimony and documentation., It indicates that she fled Nigeria to escape an abusive situation; information not consistent with the Appellant's story. The Psychologist's Report [83] The RPD gave the psychologist report little weight. It stated that the report was based on a single interview where only one test, the MMPI, was administered. Conclusions drawn by the psychologist were based on a self-reported story by the Appellant; testimony that was found not credible by the RPD. The RPD expressed concerns that the psychologist reported that the Appellant had fled to Canada, information consistent with the letter from the XXXX Immigrant Women's Center. The RPD noted that this information was inconsistent with the Appellant's testimony and documentation. [84] The RPD referenced several federal jurisprudence decisions with respect to Dr. XXXX, and his psychologist's report. The RPD acknowledged the Appellant may indeed suffered from a depressive disorder and posttraumatic stress disorder as set out in the psychologist report. However, the RPD found, on a balance of probabilities, that this problem is not the result of circumstances or events alleged by the Appellant in support of her claim. The RPD, quoting federal jurisprudence36 states that, "opinion evidence is only as valid as the truth of the facts on which it is based." The RPD submits that the Appellant failed to establish the truth of those facts and as a result assigns little weight to the opinion of the psychologist. [85] The Appellant submits that the RPD gave little weight to the psychologist report because it was the result of the single interview, and based on the Appellant's self-report. She further submits that the RPD does not have the expertise to reject the psychologist's findings. The Appellant referenced federal jurisprudence to support this submission.37 The Appellant further submitted that it was improper for the RPD to use her self-reported testimony to discount the document. [86] The RAD finds that the psychologist diagnosis of a depressive disorder and posttraumatic stress could be valid according to the testing. However, the psychologist statements regarding the cause of these issues is flawed. The psychologist based its findings on the self-reported story of the Appellant, a story found not credible by the RAD. As a result, the RAD gives no weight to the psychologist report with respect to the Appellant's allegations. [87] The RAD noted that the federal jurisprudence quoted by the Appellant relates to the applicant's request for relief on humanitarian and compassionate grounds, not a decision made by an immigration adjudicator during a refugee hearing. The RAD gives this jurisprudence no relevance as it does not relate to the current case. Internal Flight Alternative (IFA) [88] The RPD quoted federal jurisprudence38 to support that the burden of proof for not relocating to Nigeria resided with the Appellant. Specific locations were named: another part of Lagos, Benin City, Abuja, Ibadan, or Port Harcourt. [89] During the hearing, the RPD had confirmed that the Appellant had never been harmed by her husband, or anyone else, when she was living with her brother in another area of Lagos, an approximately drive of one half hours from where she had lived with her husband. When asked why she could not go back to live with her brother, the Appellant stated that her husband would know how to find her there. The RPD noted while this might be the case, her husband had taken no action or done anything to her while she resided there. Because of her husband's anger, the Appellant had moved to a church near where her brother lived. The RPD noted that neither her husband, nor others had made any effort to force her or the children home. The RPD noted that the Appellant's testimony about her living accommodations was inconsistent, and unreliable. The RPD concluded that the Appellant had not established, with credible and trustworthy evidence, the alleged risks with living at her brother's house. [90] The Appellant stated she could not live safely in another part of Lagos, Benin City, Ibadan or Port Harcourt, because her husband traveled a lot, and she had no means to take care of herself and her children. The RPD noted that she had testified that her siblings had helped her with money and food in the past. When asked why they could not help her, she stated that her husband could find her anywhere. Quoting the World Factbook,39 the RPD noted there are 180,000,000 people in Nigeria, and over 13,000,000 in Lagos. The RPD stated that finding the Appellant in Nigeria would be daunting, and noted that he did not accost her, or the children during her stay in Lagos. [91] The RPD noted that the Appellant failed to provide credible and trustworthy evidence that her husband was a member of XXXX XXXX, or that his family have connections to find her anywhere in Nigeria. Given her lack of credibility during the hearing, the RPD was not prepared to accept the Appellant's testimony regarding such a central issue merely on her assertion. The RPD quoted federal jurisprudence to support this point.40 The RPD found, on a balance of probabilities, that the Appellant had not established a serious possibility she would be persecuted in Lagos or other IFA locations suggested, or that she would be subject to one of the dangers outlined in subsection 97(1) of the IRPA. [92] Quoting Thirunavukkarasu referenced above, the RPD found that the Appellant failed to establish that in order to be safe, she would be in the position of having to live in hiding. The RPD disagreed with counsel's submissions with respect to her having no home or employment in other parts of Nigeria, noting that the Appellant is university educated, and has been employed with a bank in positions of increasing responsibility over a period of seven years. While acknowledging that the Appellant could encounter challenges, no evidence was presented to indicate that she could not relocate for reasons that amounted to one of the hardships, or life jeopardizing conditions outlined in the jurisprudence. In addition, the RPD noted that she did not hear any evidence to suggest that she would not receive support from her family in the future as she had in the past. [93] With respect, the issue regarding the children, the RPD noted that her sister is a lawyer who has been assisting her with the court matters related to custody of the children; including taking steps to seek the assistance of a lawyer, specializing in family law. The RPD found that the Appellant did not provide concrete evidence sufficient to establish that would be unreasonable to seek refuge in the proposed IFA locations. [94] The Appellant submits that the RPD failed to take into account the challenges associated with women relocating in Nigeria. She submits that because of the documentation, the suggested IFA locations are unreasonable for the Appellant in this case. [95] The Appellant, using NDP documentation,41 outlines the difficulty of finding employment if relocating to Port Harcourt, Nigeria. The Appellant further submits that the RPD failed to consult NDP documentation with respect to single women residing in Abuja. (No Reference Given). The Appellant further referenced NDP documentation42 to discuss the issue of indigeneship in Benin City, and Ibadan. [96] The Appellant submitted that her mental condition, given her fragility, was not considered by the RPD. She submitted that her need for ongoing psychological care and treatment, was not considered with respect to the IFA locations. The Appellant referenced the documentation above, including the psychologist's report [97] In assessing an IFA, the RAD must apply a two-pronged test cited in Rasaratnam43 suitably modified to take account of section 97 of the IRPA. [98] The RAD must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. [99] Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claim, for him/her to seek refuge there. [100] Both prongs must be satisfied to find that the claimant has an IFA. The burden of proof rests with the Appellant to show that he/she does not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose taking into account the Appellant's identity. An IFA must be a realistic and attainable option. An Appellant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.44 [101] The RAD finds, on a balance of probabilities, that there are several reasonable and viable internal flight alternative available to the Appellant: Lagos, Benin City, Abuja, Ibaden, or Port Harcourt. In reviewing the BoC documentation, and her testimony, the RAD finds that the Appellant is university educated, and has been employed in several responsible positions during her work career. The RAD finds, on a balance of probabilities, that she would likely to be able to resume her stated employment as a banker or find some other form of employment. [102] The Appellant testified that she fears that her husband would locate her because he travels a lot, and also that he is a member of XXXX XXXX. As stated above, no evidence was submitted to support either allegation. The RAD finds, on a balance of probabilities, that the Appellant's testimony on this issue is not credible. [103] The United Kingdom Home Office Operational Guidance Note for Nigeria45 states that the Nigerian constitution provides for the right to travel within Nigeria. The report also states that internal relocation to escape ill-treatment from non-state agents is almost always an option and, in the absence of exceptional circumstances, it would not be unduly harsh for any individual to internally relocate. The Appellant does not have a high profile in Nigeria, and the RAD finds that she could live in any of the suggested IFA locations. The RAD also finds that the problems faced by the Appellant, with her husband are local in nature. There were no corroborative evidence presented to support her argument that her husband has the means to search for the Appellant throughout this very populous country. [104] The Appellant has failed to provide a reasonable explanation as to why she believes she would be discovered and/or harmed at any of these locations, and therefore there is no reason to believe, on a balance of probabilities, that she would be harmed. [105] The RAD considered the test for reasonableness as whether it would be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking status abroad, as per Thirunavukkarasu.46 This requires an evaluation of the conditions in the IFA as well as the Appellant or similarly situated persons. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.47 However, it is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.48 [106] In considering the viability of the IFA, the RAD has given consideration to the Chairperson's Gender Guidelines,49 specifically as it relates to IFA. The Guidelines state in part: "In determining the reasonableness of a woman's recourse to an IFA, decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship." [107] The RAD also considered the Appellant's submissions to the RAD in which she submitted that she was unable to find a suitable IFA in Nigeria. The RAD takes note that the female Appellant has received and continues to receive strong support from her siblings. Her siblings, including her sister, who is a lawyer, have demonstrated a commitment to the Appellant throughout the hardships she has allegedly experienced in Nigeria, and no evidence was submitted to support that that they would not continue to provide her with ongoing support. [108] The RAD is satisfied that it would be reasonable for the Appellant to adapt to new surroundings in the proposed IFA locations and, as stated above, be able to obtain employment. [109] The RAD is aware that the fact that an individual, as alleged by the Appellant, has to remain in hiding to avoid problems is not evidence of an IFA,50 large urban areas cannot be assumed to be an IFA by virtue of their population size alone.51 The RAD's finding of an IFA in the suggested locations is not dependent on the size of these cities but is made in consideration of the totality of the evidence. The RAD finds that the Appellant did not adduce persuasive evidence to indicate that she would have to live in hiding in any of the IFA locations. [110] Once the issue of an internal flight alternative is raised, the onus is on the refugee claimant to show that the option does not exist, by establishing that either of the two pronged criteria cited in Rasaratnam52 is not met. The Federal Court of Appeal in Thirunavukkarasu stated that an applicant need only show that there is a serious possibility of being persecuted in the new location or that their removal to Nigeria would not subject them personally to a risk to life, or to cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The RAD finds that the Appellant has failed to show that the IFA option is not available to her. [111] Given the findings above that the Appellant has an internal flight alternative in Nigeria, the RAD finds that the Appellant does not face a serious possibility of persecution there, and it also finds that her removal to Nigeria would not subject her personally to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. Disposition [112] Pursuant to Section 111(1)(a) of IRPA, 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. (signed) "Robert S. Garner" Robert S. Garner May 1, 2017 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, at para 51. 2 Section 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 3 Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, at para. 19. 4 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, at para. 55; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 63. 5 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 54. 6 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, at para. 16. 7 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 64. 8 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 9 Ibid., at paras. 13-15. 10 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 64. 11 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 12 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 48. 13 Exhibit P-2, Appellant's Record, Appellants Memorandum, at p. 170. 14 Exhibit, RPD-1, RPD's Record, at pp. 248-251. 15 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 16 Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116. 17 Exhibit RPD-1, RPD's Record, at p. 43. 18 Exhibit P-2, Appellant's Record, Memorandum of Appeal, at pp. 179-180. 19 Ye, Zhi Bing v. Canada (Minister of Employment and Immigration), (FCA., no A-711-90), Stone, MacGuigan, Henry June 24, 1992). 20 Exhibit RPD-1, RPD's Record, at p. 261. 21 Sheikh v. Canada (Minister of Citizenship and Immigration), [2000], FCJ No 568 (QL); 190 FTR 225. 22 Exhibit RPD-1, RPD's Record, at p. 75. 23 Ibid., at p. 67. 24 Griffith (1991), 171F TR 240. 25 Exhibit RPD-1, RPD's Record, at p. 265. 26 Ahangaran v. Canada (Minister of Citizenship and Immigration), 1999, CanLII 8128 (FC). 27 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (30 November 2015), item 12.5, Responses to Information Requests (RIR), NGZ105320.E. 28 Exhibit RPD-1, RPD's Record, NDP for Nigeria (30 November 2015), item 1.16, Country Information and Guidance. Nigeria: Fear of XXXXX XXXXX. Version 1.0. United Kingdom. Home office. 29 Exhibit RPD-1, RPD's Record, Schedule A, at p. 67. 30 Ibid., at pp. 265-266. 31 Jaikaran v. Canada (Minister of Citizenship and Immigration), 2005 FC 624. 32 Exhibit RPD-1, RPD's record, pp. 263-264. 33 Exhibit RPD-1, RPD's Record, at pp. 244-245. 34 Ibid., at p. 247 35 Chen v. Canada (Citizenship and Immigration), 2015 FC 1133. 36 Danailov v. Canada (MCI), [1993] F.C.J. No. 1019. 37 Kanthasamy v.Canada (Citizenship and Immigration), [2015] 3 SCR 909. 38 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 39 Exhibit RPD-1, RPD's Record, NDP for Nigeria (30 November 2015), item 1.6, Nigeria; Law World Factbook. 40 Owoussou, Paul Kojo v. Canada (Minister of Citizenship and Immigration), 2004 FC 661. 41 Exhibit RPD-1, RPD's Record, NDP for Nigeria (30 November 2015), item 12.6, RIR, NGA104679.E. 42 Ibid., NDP for Nigeria (30 November 2015), item 13.1, RIR, NGA104216.E. 43 Rasaratnam v. Canada (Minster of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 44 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 45 National Documentation Package (NDP) for (29 April 2016), item 1.7, United Kingdom Home Office, UK. 46 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 47 Ranganathan Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 48 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 49 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 50 Sabaratnam, Thavakaran v. M.E.I. (F.C.A., no A-536-90), Mahoney, Stone, Robertson, October 2, 1992. 51 Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-210-94), Muldoon, January 29, 1996. 52 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-19438