TB8-14631

RAD File / Dossier de la SAR : TB8-14631 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 27, 2019 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are) the subject of the appeal Richard Odeleye Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX, a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant her claim for protection or refer the matter back to the RPD for redetermination. She has not provided new evidence in support of her appeal. She has not requested an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act")1, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [3] In or about XXXX, 2015, the appellant applied for a visa to travel to the United States (USA).2 Her application was not successful. [4] In or about XXXX, 2016, the appellant applied for a student visa to travel to Canada to complete a XXXX XXXX XXXX XXXX (XXXX).3 She identified herself as a XXXX with a XXXX XXXX XXXX. Her supporting documents included a letter of financial support from her mother, bank statements, and a letter of acceptance to the XXXX XXXX at the XXXX XXXX XXXX.4 [5] In XXXX, 2017, the appellant acquired a new Nigerian passport.5 [6] In XXXX, 2017, the appellant was issued a visa to Canada.6 [7] In XXXX, 2017, the appellant travelled to Canada. [8] In XXXX XXXX 2017, the appellant initiated an inland claim for refugee protection alleging a fear of persecution in Nigeria due to her perceived bisexual orientation and also due to domestic abuse by her ex-fiancée "XXXX XXXX", who was "bent on killing" her.7 The appellant specifically alleged: - In XXXX, 2015, the appellant made a "silly mistake" when her friend "XXXX" kissed her. The appellant did not reciprocate as she was not attracted to women. - In XXXX, 2015, XXXX and his family were formally introduced to the appellant's family. XXXX was very happy and everything went well with the introductions. - In XXXX 2015, the appellant overheard XXXX arguing with his father about a practice whereby the father-in-law has sex with the bride. The appellant interrupted them and refused. XXXX supported the appellant in her refusal. - In XXXX, 2015, XXXX kidnapped the appellant and XXXX XXXX XXXX. The appellant escaped with the help of people on the street. The appellant's father died in a car accident on his way to meet her. - Some weeks later XXXX revealed that he had taken a picture of the appellant kissing XXXX. He showed the picture to Muslim and Christian clerics. - In XXXX, 2016, the appellant was told that Muslim and Christian clerics wanted to see her. The appellant ran to her friend's house and later to her aunt's house. - While in hiding, the appellant's mom found an agent to organize travelling documents. The appellant also learned that XXXX was captured and beaten by religious people and she later died from her injuries. - In XXXX, 2017, the appellant was issued a visa to Canada. - In XXXX, 2017, the appellant met an agent at the airport and collected her passport and airline ticket to travel out of the country. - In XXXX 2017, XXXX showed the picture of the appellant kissing XXXX to police. The police told the appellant's mother that they would be waiting for the appellant's return to Nigeria to face her punishment. - XXXX told the appellant's mother that he is planning on coming to Canada because he knows where the appellant is.8 [9] The appellant's claim was heard by the RPD on May 8, 2018. In a decision of May 31, 2018, the RPD rejected the claim. The RPD determined the appellant failed to provide sufficient credible and trustworthy evidence to establish her claim, including her perceived or actual sexual orientation as bisexual and her alleged relationship with her ex-fiancée. [10] The appellant argues the RPD erred by relying on peripheral matters and "allowing suspicion and conjecture to guide the Panel's decision making process... [and] based its credibility findings largely on misconceptions, products of biased mind, misunderstanding and misapprehension of the evidence".9 [11] Having independently reviewed the record, the RAD is not persuaded the RPD erred. The RPD correctly concluded the appellant failed to credibly establish her claim. ANALYSIS The Role of the RAD [12] The responsibility rests with the appellant to raise any potential grounds of appeal.10 [13] The RAD is to review raised issues with the RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard.11 In assessing the credibility of oral evidence, the RPD may have a meaningful advantage over the RAD, as the RPD directly sees, observes, and selects questions to ask of the witnesses and has the opportunity to view any original documents etc. [14] The role of the RAD is not to undertake a microscopic search for errors. The RPD's Findings [15] The onus is on the appellant to establish her claim for protection. The RPD determined the appellant failed to meet her onus to do so. [16] The onus is also on the appellant to provide full and complete submissions on how the RPD erred. The appellant has failed to do so. Instead, the appellant has provided submissions on alternative interpretations of the evidence. She is thus essentially asking the RAD to reweigh the evidence in her favour. This is not the role of the RAD. The Court has been very clear that the RAD is not meant to be a "second chance" at presenting a claim. The RAD has nevertheless addressed the appellant's main arguments below. Credibility Concerns [17] The appellant argues the RPD "fundamentally deviated from the crux of the Appellant's claim, namely, her fear of persecution, torture, cruel and unusual punishment at the hands of her ex-fiancé" and instead fixated on "non-existent or at best peripheral, irrelevant or tangential issues to impugn the applicant's [sic] credibility".12 [18] Having carefully reviewed the entirety of the record, including the RPD's detailed questions and the appellant's vague answers at the hearing, as well as the RPD's reasons for decision, the RAD does not agree with the appellant's argument. It is clear to the RAD that the RPD assessed the evidence and weighed it accordingly. Indeed, the RPD demonstrated that it considered a number of intersecting factors in assessing the credibility of the appellant and her allegations, including the appellant's vague and inconsistent evidence about her perceived and actual sexual orientation (the crux of her claim for protection), omissions from her Basis of Claim (BOC) form (original and amended versions, particularly with respect to her sexual orientation), irregularities in the appellant's documents, as well as the lack of trustworthy and credible documents to corroborate her alleged long-term relationship with her ex (the crux of her allegation of domestic abuse). For example, the RPD noted the appellant presented two photographs of a man (not pictured together with the appellant) to corroborate her alleged 8-year long relationship with her ex. The RPD noted there was nothing in these pictures to indicate that the man was in any way connected to the appellant - much less that they were in a long-term relationship and engaged to be married. The RAD finds this and the other issues raised by the RPD to be relevant and valid factors in assessing the appellant's overall credibility and that of her allegations of persecution. [19] The RAD furthermore does not find persuasive the appellant's argument that the issues with her evidence (including irregularities with the purported death certificate - not "birth certificate" as described in her memorandum) were "minor variances", "marginal" and/or "clearly tangential to her claim". Rather, the RPD's credibility concerns went to the heart of the appellant's claim for protection based upon her perceived and/or actual sexual orientation and her allegation of domestic abuse by her ex. [20] The RAD also does not find persuasive the appellant's argument that the RPD "discarded the sacred rule of law [presumption of truthfulness] put in place by our higher Courts, she strayed in the wrong direction and her decision must be set aside".13 The RPD provided clear, transparent, and intelligible reasons why the presumption of truthfulness was rebutted in the circumstances of this claim, including the clear inconsistencies in the appellant's own testimony and documents, as well as irregularities on a purported death certificate from Nigeria. [21] Having independently reviewed the evidence, the RAD accordingly sees no reason to interfere with the RPD's findings related to the credibility of the appellant and her allegations. Documents [22] The appellant also argues the RPD erred in failing to assess her documents. [23] The RAD does not agree with the appellant's argument. Firstly, the RPD is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons. The contrary has not been shown. Moreover, contrary to the appellant's argument, the RPD's reasons for decision includes a detailed consideration of her documents, including her photographs, a death certificate, a medical report, letters from local LGBTQ support groups, as well as unsworn and untested letters from family and a friend in Nigeria. The RPD noted various inconsistencies in the appellant's evidence. For example, the RPD noted the appellant's letters from local LGBQT support groups identified the appellant as 'bisexual' despite the appellant indicating she was not so at that time. The RPD also assessed photographs, as well as a medical note concluding: however, [the medical note] is simply evidence that the claimant sustained injuries in her past. The cause of those injuries was self-reported to the examiner and as the panel has found the claimant lacking in credibility the panel can place little weight on the medical report as evidence that the claimant was injured as a result of her fiancé's actions. There are also photos of injuries; however, as no faces are shown in the photos, there is no way to confirm who the subject of the photos is.14 [24] The RPD also noted clear irregularities with a purported death certificate from Nigeria. In this regard, the RPD provided clear and intelligible reasons why it determined the appellant's vague response when questioned about the irregularities was not reasonable. The RAD similarly does not find the appellant's vague response that her mother got the document to be reasonable to explain the problems in the document, including obvious spelling errors and typos in the pre-printed text of a purported genuine death certificate. The jurisprudence has indicated where there is sufficient evidence to cast doubt on its authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little or no weight, without expert verification or where such verification is inconclusive.15 The RAD also notes English is the official language of Nigeria. The panel further notes there is no duty for the RPD (or RAD) to send a document for analysis or authentication where there is sufficient evidence to cast doubt on the document's authenticity,16 as is the case with the death certificate. Furthermore, for operational reasons, the Board's Research Directorate is not performing any type of document verification, including but not limited to: identity documents, legal documents, membership in organizations, and newspaper articles. [25] The RPD concluded the appellant's documents were insufficient to overcome the panel's cumulative credibility concerns. Having independently reviewed the evidence, the RAD agrees and sees no reason to interfere with the RPD's conclusion. The RPD demonstrated that it correctly tested the appellant's credibility and that of her documents at the hearing. The RPD found the appellant's responses not to be credible and accorded little weight to her untested documents. In coming to this conclusion, the RPD also correctly considered that the appellant's letters from her family and friend were not sworn to. The author of the letters were similarly not provided as witnesses to provide sworn testimony or to be cross-examined. Furthermore, the RPD's analysis and findings are in accordance with settled law, particularly that when a general negative credibility finding is made by the RPD, it is open for it to give low probative value to other documents, including if they reflect the claimant's/appellant's own statements.17 [26] The RAD also relies on the decision in Gebetas indicating: "as stated by this Court numerous times, general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence and ultimately cause the rejection of a claim.18" As also stated by the Court, [c]onsequently, in my opinion, the applicant's assertion that the Board is bound to analyze the documentary evidence "independently from the applicant's testimony" must be examined in the context of the informal proceedings which prevail before the Board. Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.19 Section 97 [27] The appellant also argues that "notwithstanding the credibility concerns", the RPD erred by not finding her to be an individual that "deserved protection" under s. 97, "especially since the Appellant's sexual orientation was discovered and there are [sic] evidence to proof [sic] that her life [is] in danger in Nigeria".20 [28] The RAD does not agree with the appellant's argument. The RPD determined the appellant failed to establish her allegations, including based upon her perceived or actual sexual orientation. As such, there was no further analysis required. [29] The RAD finally notes the appellant's memorandum contains pages of rambling hyperbole attacking the RPD decision as "totally ridiculous", "perverse", "fixated on nonexistent" issues, "the member just felt like refusing for refusing sake and not for any valid reason" etc. In this regard, the RAD emphasizes the comments made by the Chief Justice of the Federal Court: [b]efore concluding, I consider it necessary to comment upon the use of hyperbole. I and other members of the Court have discouraged its use in several presentations to the bar in recent years. However, such language continues to be used. For example, the written submissions of one of the parties to this proceeding are replete with terms such as "deeply flawed," "gross inadequacy of the Officer's assessment," "profoundly unreasonable," "glaring example," "dire situation," and references to a family being "plunged into poverty". Such language does not assist to advance a party's case. [Emphasis added.]21 CONCLUSION [30] The RPD found the appellant to be generally lacking in credibility. Having independently reviewed the evidence, the RAD has reached the same conclusion. As such, the RAD does not find the appellant and her allegations of a serious possibility of persecution to be credible. [31] Accordingly, based upon its own review of the evidence in its entirety and after accounting for the United Nations High Commissioner for Refugees (UNHCR) Guidelines on International Protection No. 9 (including the credibility analysis of establishing sexual orientation)22 and the Chairperson's Guidelines on Proceedings Before the IRB [Immigration and Refugee Board] Involving Sexual Orientation and Gender Identity and Expression,23 the RAD does not find on a balance of probabilities, that the appellant provided sufficient credible and trustworthy evidence to establish her allegations, including that of her perceived or actual sexual orientation as a bisexual woman and domestic abuse by her ex. [32] The RAD, therefore, finds there is not a serious possibility the appellant would be persecuted if she was returned to Nigeria, pursuant to section 96 of Act. The panel similarly finds that, on a balance of probabilities, the appellant would not be personally subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment in Nigeria pursuant to section 97 of the Act. DISPOSITION [33] On the basis of the findings noted above, and after its own assessment of all the evidence in the record, the RAD finds that the RPD's refugee determination is correct. [34] Pursuant to paragraph 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) "D. Goff" D. Goff March 27, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, Exhibit 10, Biometrics Results, at p. 226. 3 Exhibit RPD-1, RPD's Record, Exhibit 5, Application for Study Permit, at pp. 177-182. 4 Exhibit RPD-1, RPD's Record, Exhibit 1, GCMS notes, at pp. 105-147. 5 Exhibit RPD-1, RPD's Record, Exhibit 1, at p. 100. 6 Exhibit RPD-1, RPD's Record, Exhibit 1, at p. 101. 7 Exhibit RPD-1, RPD's Record, Exhibit 2, Basis of Claim (BOC) form, at pp. 10-24. 8 Exhibit RPD-1, RPD's Record, Exhibits 2, 8 and 12, original and amended BOC forms, at pp. 10-24, 201, 242. 9 Exhibit P-2, Appellant's Record, Memorandum, at p. 34. 10 Ilias, Mohammed Kamal Deen v. M.C.I. (F.C., no. IMM-5152-17), Bell, June 27, 2018, 2018 FC 661, at para 39. 11 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 12 Exhibit P-2, Appellant's Record, Memorandum, at p. 36. 13 Exhibit P-2, Appellant's Record, Memorandum, at p. 39, para 17. 14 Exhibit RPD-1, RPD's Record, Reasons, at p. 8, para. 19. 15 Grozdev v. Canada (Minister of Citizenship and Immigration), [1996] FCJ 983. 16 Culinescu v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 241; Ibnmogdad v. Canada (Minister of Citizenship and Immigration) (2004), IMM-332-03, Trembly-Lamer, 2004 FC 321, para .14. 17 See e.g.) Lawal v. Canada (MCI), 2010 FC 558, at para. 22. Huang v. Canada (MCI), 2011 FC 288, at para. 21. 18 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013, 2013 FC 1241, at para 29. 19 Hamid, Iqbal v. M.E.I. (F.C.T.D., no. IMM-2829-94), Nadon, September 20, 1995; (1995), 58 A.C.W.S. (3d) 469, Nadon J. (as he then was), at para 21. 20 Exhibit P-2, Appellant's Record, Memorandum, at p. 46, para. 30. 21 Forde v. Canada (Public Safety and Emergency Preparedness), (F.C. no. IMM-4005-17), Crampton, October 15, 2018, 2018 FC 1029, at para. 69. 22 Guidelines On International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967, Protocol relating to the Status of Refugees. UN High Commissioner for Refugees (UNHCR), October 23, 2012. 23 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation and Gender Identity and Expression, May 1, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14631 RAD.25.02 (September 18, 2018) Disponible en français 9 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 (September 18, 2018) Disponible en français