TB8-07856

RAD File / Dossier de la SAR : TB8-07856 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 April 9, 2019 Date de la décision Panel Anna Wyse Tribunal Counsel for the person(s) who is(are) the subject of the appeal Joseph Granton 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 OVERVIEW [1] XXXX XXXX XXXX (Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated March 7, 2018. The RPD rejected her claim for refugee protection due to credibility issues. This decision was the result of a redetermination hearing pursuant to a decision of the Refugee Appeal Division dated May 7, 2014. [2] The Appellant alleges that she fears returning to Nigeria as her husband and his family wish to subject her to female genital mutilation (FGM), or circumcision, against her will. She further alleges that the RPD erred in the assessment of her credibility, and she has submitted new evidence to support her claim. [3] I did not find that the RPD erred in its assessment of the Appellant's credibility. I found that the Appellant was not credible and that she has not established her claim. DETERMINATION [4] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. ROLE OF THE RAD [5] While reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of the oral testimony if I find that the RPD had a meaningful advantage in the circumstances.1 Reasons will be provided in my analysis if I find that the RPD had a meaningful advantage. NEW EVIDENCE AND ORAL HEARING The submitted documents are not new, and therefore a hearing is not warranted [6] The Appellant has submitted further pictures of her wedding, in which her father-in-law appears. As the Appellant submitted other photos of her wedding to the RPD, which also pictured her father-in-law, these photos could have reasonably been expected to have been presented previously. These photos do not meet the requirements of s. 110(4), and I will not accept them into evidence. [7] As no new evidence was accepted, I will not hold a hearing under subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). ANALYSIS [8] The RPD found that the Appellant was not a credible witness and therefore had not established, on a balance of probabilities, that she is at risk should she be returned to Nigeria. Specifically, the RPD found that the Appellant failed to establish that she has a subjective fear of her in-laws, and failed to establish that her father-in-law exists as an agent of persecution. [9] The Appellant alleges that the issues raised by the RPD were borne out of its suspicions, conjectures and assumptions. The Appellant argues that the RPD has not given sufficient reasons for its decision to refuse to accept the use of the phrase father-in-law, when Mr. XXXX is indeed her father-in-law. The Appellant states that the RPD did not find inconsistencies in the Appellant's narrative, in her testimony or in the documents provided; instead, the RPD picked on the use of the word father-in-law to negate the claim. [10] I find that the Appellant has not established that she has a subjective fear of retuning to Nigeria, nor has she established that she has an agent of persecution. I find that the inconsistencies in the Appellant's testimony are sufficient to rebut the presumption that sworn testimony is true.2 Primary agent of persecution not established The Appellant was not credible regarding her father-in-law's occupation [11] The RPD drew an adverse inference from the Appellant's testimony regarding her father-in-law's occupation, her lack of credible demeanour and her failure to provide reasonable explanations for inconsistencies. The RPD found that the Appellant's testimony shifted and evolved in response to questions, and that her demeanour became surprised and haphazard. The RPD found that her demeanour was not credible given that the questions were regarding her own marriage certificate. [12] The Appellant argues that it is unreasonable for the Panel to negate the Appellant's credibility based on what the marriage certificate stated, as the Appellant described her father-in-law's occupation based on what she has seen of him, not based on his qualifications as an XXXX. The Appellant further argues that the RPD erred to have judged the Appellant based on her demeanour. The Appellant argues that she was not bewildered in any way and that it is unreasonable for the Panel to make the assertion that the Appellant was calm and collected in giving testimony and, at the same time, assert that she was surprised and haphazard. [13] In testimony, the Appellant stated that her father-in-law is a XXXX XXXX person, and that he is into XXXX and XXXX XXXX and XXXX, and that he is a XXXX3. When asked to explain why her marriage certificate listed his occupation as XXXX, she stated that XXXX, or XXXX XXXX, is a colloquial term for someone who XXXX XXXX. [14] I note here that demeanour is one of the rare instances in which the RPD holds a meaningful advantage over the RAD. The RPD asserts that the Appellant's demeanour shifted during testimony, not that she held several opposing demeanours simultaneously, as argued by the Appellant. For these reasons, I do not find that the RPD erred in its assessment of the Appellant's demeanour. However, I will not use this finding to assess the Appellant's credibility with respect to her father-in-law's occupation, as there are other issues unrelated to her demeanour which undermine her credibility as will be discussed below. [15] The Appellant's answer regarding her father-in-law's occupation evolved as needed to bridge the gap between her previous testimony and the information provided on her marriage certificate. There is no evidence before the board that the formal title "XXXX XXXX" is a colloquial term for something different in Nigeria. Further, the Appellant first answered that her father-in-law XXXX and XXXX XXXX and XXXX, and later stated that he XXXX XXXX. This inconsistency is not related to job titles, but is instead related to the activities that the Appellant says she observed. [16] The RPD was cognizant that the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution4 warns that in some cultures women may not have full knowledge of the political or business activities of their male family members; however, the RPD found that this does not resolve the problems with the Appellant's evidence, as the inconsistencies noted above are between her testimony and the documents in her possession. [17] I take note of the same guideline and find that the RPD did not err when concluding that the inconsistencies were based on information and observations that were within the Appellant's sphere of knowledge. There is a significant difference between a "XXXX XXXX XXXX" and a XXXX XXXX. I find that the Appellant's evolving and inconsistent testimony regarding her father-in-law's occupation negatively affects her credibility and undermines her claim that her father-in-law is someone "linked with people in high places."5 Omission of information regarding her father-in-law in her BOC undermines her claim [18] The RPD drew an adverse inference from the Appellant's omissions and inconsistencies regarding her father-in-law's name. The RPD did not accept the Appellant's explanation that she left her father-in-law out of her Basis of Claim (BOC) Form6 as she did not consider him to be family. [19] The Appellant states that she misunderstood the panel's question and that she was referring to question 5 of the BOC, which states "List your relatives, living or dead, in the order below: spouse or common law partner, your children, your parents and your brother and sisters including half-brothers and half-sisters." The Appellant charges that the RPD member must have known that she misunderstood the question and carried on without redirecting. [20] During testimony, the Appellant asked to confirm if the RPD was inquiring about her father-in-law's name appearing in her narrative, and the RPD member answered in the affirmative. However, at the end of this section of testimony, the Appellant appears to reference question 5 of the BOC as noted above: MEMBER: Why is the name of the father-in-law not in the Basis of Claim form? CLAIMANT: It is not? MEMBER: It is not. CLAIMANT: You mean to appear in my story? MEMBER: Yeah. CLAIMANT: I just put the family. Yes I said my husband and his very influential family force me to circumcise against my wish. MEMBER: Yeah, I know that is the story, but I am just wondering why is the name of his dad not in there in the story? Because there is names of other people, right, like this all kinds of names. Of your husband is fully named, [XXXX XXXX XXXX], which I notice it is a little bit different spelling compared to how you spelled in page 7 of 10. [XXXX] in page 7 of 10, which is how you gave the family name here. But in your narrative it is XXXX. CLAIMANT: That was the mistake, that was the spelling mistake. MEMBER: Right, and then is this [XXXX XXXX], who is your sister. So there is names in there, right, like it is not, it is all kinds of names it shows. The name of your father-in-law is not in there. CLAIMANT: Yes, only my family member names and my husband's name is here. MEMBER: Yeah, so question is, why is your father-in-law's name not there? CLAIMANT: I did not put it, I only put names from my family member there. MEMBER: Yes, last time I am going to ask you, do you have an explanation why it is not there? An explanation. CLAIMANT: I did not feel like I should put that, I do not know what. Maybe I do not regarding my family member, I do not know, because I was. When they said we should list my family, I only list my own family. I did not list any member of my husband's family.7 [21] Question 5 of the BOC does not ask for claimants to list their in-laws. However, as the Appellant specifically asked if the RPD was focusing on her narrative, which the RPD confirmed, it cannot be held that the Appellant was unaware that the RPD was focused on her narrative. [22] The Appellant argues that the RPD erred by applying Western standards of elders being addressed by name. The Appellant notes that her marriage certificate shows her father-in-law's name, so what difference does it make to give his name in her narrative. [23] The onus is on claimants to provide the information required to establish their claim. The Appellant's father-in-law's name does not appear anywhere in her BOC Form. As her father-in-law is the figurehead for the agent of persecution, it is expected that the Appellant would provide his name and basic information about him in order to establish her subjective fear. The omission of her father-in-law's name in her BOC would not be enough, on its own, to undermine her credibility. However, given the credibility concerns outlined above and below, I take a negative inference regarding this omission. Failure to provide father-in-law's name undermines her claim [24] The RPD further found that it was unreasonable that the Appellant was unable to provide her father-in-law's full name. The RPD noted that the father-in-law's name is listed on the marriage certificate as "XXXX XXXX XXXX XXXX XXXX XXXX"; however, the Appellant stated that her father-in-law's first name is XXXX, which does not match the first initial XXXX. [25] The Appellant argues that her father-in-law chose to write his name with a certain spelling on her marriage certificate, and the different way the father and son opted to write out their names should not negate the credibility of the Appellant, as she has nothing to do with this. The Appellant argues that she does not have to know all of the names of her father-in-law just because she is married to his son. The Appellant states that she only married her husband in 2015, and that it was her responsibility to focus on knowing her husband, not her father. The Appellant further argues that it is unreasonable for the Panel to expect her to study the marriage certificate and begin to investigate her father-in-law's other names. [26] As her father-in-law is the alleged agent of persecution in this case, the onus is on the Appellant to provide his name in a manner that is consistent with documentation, or to provide reasons as to why she would not have access to that information. For these reasons, I find that the Appellant's failure to provide basic information about her agent of persecution undermines her claim. The RPD did not err by taking a negative inference from the Appellant's failure to bring the original marriage certificate to her hearing [27] The RPD found that, as the marriage certificate is the only document that mentions the name of the father-in-law and his occupation, it was not reasonable or credible that the claimant would not bring the original or the documentation to her hearing. The RPD noted that when questioned as to why she did not bring the original to her hearing, the Appellant first stated that she thought it was sufficient to have brought the document to a previous proceeding. When questioned further as to why she did not bring the document for the current adjudicator to inspect, the Appellant stated that it escaped her mind to being this document. [28] The Appellant argues that the RPD was able to read the certificate, and if the original copy would have made a difference to the decision, then the RPD should have requested that the certificate be sent to the board as post-hearing disclosure. [29] I do not find that the RPD erred by taking a negative inference from the Appellant's failure to bring this critical document to her hearing for inspection. The marriage certificate is the only document before the board that links the Appellant to her agent of persecution. The onus is on the Appellant to establish her claim. There is no credible evidence that the father-in-law exists as alleged [30] The RPD found that no credible evidence was put before the RPD to establish that the Appellant's father-in-law exists as an agent of persecution as alleged. [31] The Appellant argues that there is no allegation that she lied about her marital status; therefore, it follows that she has a father-in-law. [32] The issue before the board is not whether the Appellant has a father-in-law, but whether her father-in-law is an agent of persecution. The Appellant has not established her father-in-law's name or occupation, or any other information about him, nor has she provided any credible reasons as to why she is unable to provide that information. Therefore, the Appellant has not established that her father-in-law exists as an agent of persecution. The RPD did not err in its assessment of the affidavits from the Appellant's husband, brother, and friend Ms XXXX [33] The RPD noted that a three of the submitted affidavits contained the same incorrect spelling of the word commissioner, and found that the Appellant's inability to give an explanation for the error was unreasonable. The RPD further found that it was not credible that the same glaring mistake would appear on formal court documents issued to three different people, on three separate dates, in two different countries. [34] The RPD noted that the affidavits sworn by the Appellant's husband, her brother, her friend Ms. XXXX, and her friend Mr. XXXX, all omit the name of her father-in-law. As the affidavits list other names, and as her father-in-law is the primary agent of persecution, the RPD found that the omission adversely affects the credibility of the documents. [35] The RPD concluded that these documents are fraudulent, and assigned them no evidentiary weight. The RPD drew a further adverse inference regarding the Appellant's general credibility from her submission of fraudulent documentation in support of her basis of claim. [36] The Appellant argues that this typographical error could have occurred if the same template had been used to create them. [37] The Appellant has not put forward any reason why two different courts would use the same template for affidavits. I find that this explanation is therefore mere speculation. As these affidavits do not give any identifying information for the agent of persecution, and as the credibility of these documents is called into question due to an identical typographical error, I assign these affidavits no weight. The RPD did not err in its assessment of the affidavit from Mr. XXXX [38] The RPD found that, as the Appellant has submitted other fraudulent affidavits, this adversely affects the reliability of this affidavit. The RPD found that this affidavit was sworn at the office of a notary public, and should therefore include a Nigerian Bar Association sticker or stamp. As the affidavit does not bear such a sticker or stamp, the RPD found that this adversely affected the relatability of the notarization. The RPD further found that the reliability of the document was adversely affected by the omission of the name of the primary agent of persecution as discussed above. [39] Further, the RPD found that some of the affidavit's content was based on second- or third-hand evidence, and not based on events that Mr. XXXX witnessed himself. The RPD also found that the remainder of the document is a repetition or elaboration of the same allegations and testimony of the Appellant. For these reasons, the RPD found that this document was not reliable and assigned it no weight. [40] The Appellant argues that the affidavit is flawless, but the RPD picked apart the affidavit by finding fault with the lawyer's failure to affix his stamp. [41] I find that the RPD listed several reasons beyond the absence of a sticker or stamp as to why this affidavit is not credible. As this affidavit only recounts conversations that the affiant had with his wife and with the Appellant's husband, and as it contains no first-hand information to establish the Appellant's claims, I assign it no weight. The Appellant misrepresented her employment profile [42] The RPD found that the Appellant misrepresented her work history and drew an adverse inference regarding her credibility, as underreporting her employment history affects her profile for the purposes of an internal flight alternative (IFA) analysis. The Appellant gave different employment information on her Schedule A form and her USA visa application. The Appellant's explanation was that the additional employment information on her USA form was just part-time, contract work and that it was just a mistake not to include it. [43] The Appellant charges that the RPD allowed suspicions, conjectures and assumptions to overtake its judgment in this case as it became overly microscopic in analyzing the evidence before it. The Appellant further argues that teaching and trading are not of a lesser status economically. [44] I do not find that the RPD was microscopic in examining the different information that the Appellant provided to Canadian and to USA immigration authorities. I find that the failure to provide consistent information to these two authorities further undermines the Appellant's credibility. The psychological report does not overcome the credibility issues [45] The RPD followed the recommendations of the psychological report and found that the report mitigated the impact of some of the adverse credibility findings; however, the RPD further found that this mitigation is not sufficient on its own to cure the Appellant's overall lack of credibility, which was adversely affected by a mix of documentary problems that have nothing to do with her state of mind. [46] The Appellant argues that the RPD trivialized the psychological reports of the psychologist and the counsellor. The Appellant alleges that there were no indications that the RPD took the recommendations of the report into consideration during the hearing. [47] I found no errors in the RPD's assessment of the psychological reports. I found no instances in which the RPD did not take the recommendations of the reports into consideration during the RPD hearing. Family photos carry no weight [48] The Appellant argues that she provided her wedding photos at the hearing and that the RPD made no decision about them. [49] The RPD noted that the Appellant submitted photos of various people, including an elderly man whom she alleges is her father-in-law. The RPD assigned the photos no evidentiary weight, as the Appellant is without general credibility, and as the only evidence as to who is in the pictures is the Appellant's own testimony. [50] I find that the RPD did make a finding regarding the photos and gave reasons for those findings. I find no errors in the RPD's assessment. CONCLUSION [51] For the reasons listed above, I find that the Appellant has not established, on a balance of probabilities, that she faces a serious possibility of persecution on a Convention ground should she return to Nigeria. [52] For the same reasons, I find that the Appellant has not established, on a balance of probabilities, that she faces a risk to her life, or a risk of cruel and unusual treatment, or punishment or danger of torture should she be returned to Nigeria. She is not a person in need of protection under section 97. DETERMINATION [53] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Anna Wyse" Anna Wyse April 9, 2019 Date 1 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 2 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 3 RPD Hearing Transcript for March 1, 2018, p. 19. 4 Immigration and Refugee Board (IRB), Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. 5 RPD Hearing Transcript for March 1, 2018, p. 21, line 40. 6 RPD-1, RPD record, Exhibit 2. 7 RPD Hearing Transcript for March 1, 2018, p. 17, line 34 and p. 18, line 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-07856 RAD.25.02 (September 18, 2018) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (September 18, 2018) Disponible en français