MB9-12518

RAD File / Dossier de la SAR : MB9-12518 MB9-12519 / MB9-12520 / MB9-12521 MB9-12522 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision February 4, 2020 Date de la décision Panel Desiree Pachkowski Tribunal Counsel for the persons who are the subject of the appeal Jacqueline Lewis Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant) and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (Associate Appellants) are citizens of Nigeria. [2] The Appellants argue that the Refugee Protection Division (RPD) erred when it did not find them credible and rejected their claims for refugee protection. The RPD found that the Appellant did not credibly establish his allegations that he and his family were persecuted because he refused to convert to Islam and join Boko Haram. [3] The RPD also found that the Appellants' allegations that XXXX XXXX XXXX-XXXX was at risk of being forced to undergo Female Genital Mutilation (FGM) were inconsistent with the documentary evidence and therefore not credible. [4] The Appellants submit no new evidence and have not requested an oral hearing. The Appellants request that I substitute a positive determination. In the alternative, they request that I return their cases to a different panel of the RPD for redetermination. [5] After an independent analysis of the record, I find that the Appellants have failed to credibly establish the core elements of their claims. [6] For the reasons that follow, the appeal is dismissed. BACKGROUND [7] The Appellant alleges that he was pressured to convert to Islam and join the extremist group Boko Haram by his former friend XXXX XXXX. When the Appellant refused and began distancing himself from Mr. XXXX, he claims that he was attacked and threatened. He claims that his family was also attacked at their home on two separate occasions. The second attack on the Appellant's family caused them to leave Nigeria. [8] Additionally, the Appellants allege that the Appellant's family wants to subject the Minor Appellant XXXX XXXX XXXX XXXX XXXX to FGM. The Appellants allege that they were all under threat due to their refusal to subject XXXX XXXX XXXX XXXX XXXX to FGM. ANALYSIS [9] I conducted an independent assessment and used a correctness standard to review the RPD's decision.1 [10] In assessing this appeal, I have considered all of the arguments on the record. I have also listened to the recording of the hearing before the RPD and analyzed all of the evidence. [11] While there is a presumption that the Appellants' sworn allegations are true, the RPD found that it had serious reasons to reject the Appellants' testimony because of a lack of credibility. For the reasons that follow, I find that the RPD did not err in its overall assessment of the Appellants' credibility. Discrepancy between testimony and Basis of Claim (BOC) narrative undermines the Appellants' credibility [12] The RPD found a discrepancy between the Appellant's testimony and his narrative regarding how he learned that XXXX XXXX was a member of Boko Haram. The Appellant's BOC narrative indicates that he learned about Mr. XXXX affiliation to Boko Haram in the news. The Appellant testified that he made this assumption on his own, and that it was not mentioned in the news. [13] The Appellant argues that the RPD was microscopic in this finding. The Appellant relies on jurisprudence to illustrate that it is an error to conduct microscopic examination of issues irrelevant or peripheral to a claim.2 [14] I agree that it would be an error for the RPD to make microscopic findings on peripheral matters to the claim. However, as described below, XXXX XXXX affiliations to Boko Haram are central to the Appellants' claims. This is not a peripheral matter. The RPD's finding was therefore not microscopic. The RPD's credibility finding is correct. [15] The Appellant claimed to fear Mr. XXXX because of his alleged ties to Boko Haram. The Appellant claims that Mr. XXXX pressured him to convert to Islam and join Boko Haram. The Appellant claims that this caused him to withdraw from his relationship with Mr. XXXX. Allegedly, this caused Mr. XXXX to threaten and commit acts of violence against the Appellant and his family. The Appellants claim that they left Nigeria because of these incidents. Mr. XXXX affiliation to Boko Haram is therefore central to the Appellant's claim. [16] The Appellants' Counsel also argues that the Appellant's BOC "does not clearly mention that the news stated that XXXX XXXX was a member of the Boko Haram".3 [17] The Appellant's narrative does not indicate that Mr. XXXX links to Boko Haram came from his own assumptions. The Appellant's BOC narrative states that he "got information from Nigeria News that XXXX XXXX is on the wanted list of Nigerian Security service because he is a suspected member of lslamist extremist known as Boko-Haram [emphasis added]".4 The Appellant's BOC narrative clearly states that the Appellant learned of Mr. XXXX links to Boko Haram through the Nigeria News. The Appellant's argument to the contrary does not have any merit. The Appellant testified that the news report did not say why XXXX XXXX was wanted. 5 He also testified that his knowledge of Mr.XXXX links to Boko Haram came from his "own thoughts".6 This is a clear inconsistency. [18] The Appellant's testimony that he made this conclusion from his own thoughts rather than an external news source is a significant change from his original narrative, specifically because this is a key part of the Appellants' claims. This inconsistency on a central aspect of the claim undermines the Appellant's credibility. The Appellant's omission of phone calls from Mr. XXXX from his BOC impugns his credibility [19] The Appellant testified that he received threatening phone calls from Mr. XXXX after he was attacked on November 3, 2016. He testified that Mr. XXXX confirmed that he was responsible for the attack.7 [20] The Appellants' Counsel submits that the Appellant testified that he received one phone call from Mr. XXXX, during which Mr. XXXX confessed that he was responsible for the attack on the Appellant. Counsel asserts that the Appellant testified that there were other calls from unknown numbers that he did not answer. Counsel argues that the RPD erred when it found a contradiction between the Appellant's narrative and his testimony. I disagree for the following reasons. [21] Contrary to Counsel's argument, the Appellant testified that he received multiple calls from Mr. XXXX. The Appellant testified that he stopped taking Mr. XXXX calls,8 but also stated that the calls "kept on coming" and Mr. XXXX confirmed that "he was the one that was involved".9 The Appellant testified that after Mr. XXXX confirmed he was involved with the attack, "he started calling again."10 [22] Although the Appellant's testimony refutes the argument that Mr. XXXX only called him once, the number of times Mr. XXXX called the Appellant was not the source of the RPD's credibility concern. Rather, the RPD correctly identified that the Appellant's BOC narrative does not mention that Mr. XXXX personally took responsibility for the attack in a phone call, or by any other means.11 [23] The Appellant's allegation that Mr. XXXX claimed responsibility for an attempt on his life goes to the heart of his claim. According to the Appellant's testimony, this is the only time that Mr. XXXX directly stated that he was responsible for any of the attacks. This allegation is critical to the claim because it links the agent of persecution to the attacks against the Appellants. The Appellant omitted this key detail from his narrative. This negatively impacts his credibility. The RPD's finding was correct. [24] I note that the Appellant testified that he omitted this detail from his narrative because he did not know how to tell every bit of his story.12 I also note that the remainder of the Appellant's narrative does not appear to lack detail. In this context, I find that it would be reasonable to expect that this key piece of information would have been included in the Appellant's narrative. On a balance of probabilities, I do not find the Appellant's explanation sufficient to overcome my credibility concerns. The RPD was correct to find the Appellant's explanation unreasonable. Police Reports [25] The Appellants' evidence includes two police reports. [26] The first police report is dated November 19, 2016. It states that the Appellants were victims of a home invasion and attempted murder on November 18, 2016.13 [27] The second police report is dated November 4, 2016. It states the Appellant was attacked in an attempted murder by hoodlums (suspected terrorists) on November 4, 2016.14 Implausibility finding incorrect. [28] The Appellant testified that he needed a police report for the incident on November 18 so that his employer would transfer him to a safer work location. [29] The RPD noted that the police report did not state that the Appellant was attacked by Boko Haram. The RPD found it implausible that the Nigerian Police would omit this detail given "the government's overall response to Boko Haram".15 [30] The Appellant explained that he gave every detail to the police. He explained that he did not know why the police did not mention that he was attacked by Boko Haram. The Appellants' Counsel argues that this was a reasonable explanation. Counsel asserts that although the police report did not accurately reflect what the Appellant told them, it was sufficient for his employer. Counsel points to the corruption and sloppiness of the Nigerian Police to explain this omission. [31] Though not fatal, this finding is not correct. The RPD did not explain why the government's position on Boko Haram makes it unlikely that the police would omit this detail from their report. Plausibility findings are permissible in the clearest of cases. As the RPD's basis for this finding is unclear, it is incorrect. This finding has therefore been set aside. [32] However, as described below, I do not find that this is sufficient to overcome the RPD's overall finding that this document is fraudulent. Correct to find police reports fraudulent [33] The RPD noted that the letterhead of both of the police reports on the record misspelled the word "force" as "fore".16 When questioned, the Appellant explained that he did not know how the document had been issued. The RPD found that the Appellant did not provide a sufficient explanation for this defect in the evidence. [34] A new version of the National Documentation Package (NDP) for Nigeria was released in November 2019. The new version contains an updated version of Document 10.3 concerning police reports in Nigeria. I disclosed this document to the Appellants and provided them the opportunity to make submissions. I rely on this document in my analysis of the RPD's findings. I have considered the submissions accordingly. During this process, the Appellants submitted a request to change their counsel and applied for an extension of time to provide submissions. I granted both of these requests. [35] In the Memorandum of Appeal, the Appellants' Counsel argues that the typo in the police report letterhead is not sufficient to conclude that the document is fraudulent. Counsel argues that Nigeria is a developing country where passports are still printed abroad. Counsel submits that the NDP does not state that the police reports are printed by an official printing office. Counsel speculates that the documents could have been printed on local printers with no regard for their accuracy or precision. [36] In supplementary submissions, the Appellants' Counsel also argues that the objective documentary evidence states that the police reports have two security features: a signature of the member of the police force and the stamp or seal of the issuing police authority. Counsel submits that the police reports on the record have both of these features. Counsel submits that the police reports appear on the letterhead of the Nigerian Police Force and bear its coat of arms, as outlined in the objective documentary evidence. Counsel argues that the police reports bear the hallmarks of authenticity. Counsel submits that the objective documentary evidence states that police reports are simplistic documents, with a summary of the offence reported. In light of these facts, Counsel argues that it was unreasonable for the RPD to conclude that the Appellants' police report of November 19, 2016 was not a credible document because it did not mention Boko Haram. [37] The Appellants' Counsel has not directly addressed the RPD's findings regarding the spelling error in the letterhead in supplementary submissions. However, I have considered the arguments as they might apply to this finding in my analysis. After a careful review of the submissions and the documentary evidence, I find that the RPD was correct to find the police reports fraudulent for the following reasons. [38] I have considered the Appellants' argument that the police reports contain signatures and stamps, as indicated by the objective documentary evidence. I also note that the objective documentary evidence does not state that police reports are printed by any official printing office. I have considered that the documentary evidence states that minor discrepancies may occur between the documents of different offices, including in the appearance of the letterhead.17 However, it does not state that these minor discrepancies may include spelling errors. Document 10.3 of the NDP contains samples of different police reports.18 In accordance with the description above, the letterhead of the sample reports varies slightly in the appearance of the police logo and the text. None of the variations in the letterhead of the sample police reports include spelling errors. [39] I recognize that that documents from other countries in different stages of development should not be held to Canadian standards. Bearing this in mind, I could accept some spelling errors in the body of the police reports as mere typos. In fact, I note several spelling errors in the body of the police reports ("attampted assasination/buggling",19 "police offeicer"20). I do not find the errors in the body of the police reports sufficient to impugn the credibility of the documents. However, on a balance of probabilities, after considering the objective documentary evidence, I do not accept that a spelling error would occur in the official letterhead of documents. [40] I do not find that the objective documentary evidence explains why the Appellants' police reports misspell the word "force" in the letterhead. The signatures and stamps on these documents are insufficient to overcome my credibility concerns. [41] Furthermore, the objective documentary evidence states that "police investigation reports will contain a description of the offence, the name of the complainant, the name of the suspect and will be addressed to the applicant".21 [42] As previously noted, the RPD drew a negative credibility inference because the police report from November 18, 2016 did not name Boko Haram as a suspect. As previously stated, I do not find that the RPD sufficiently explained why it did not find it plausible that the police would eliminate this detail from the report and set aside this finding. However, I note that both of the police reports do not name any suspects. It was incorrect for the RPD to find it implausible that the police would not name Boko Haram as a suspect because of the government's position on Boko Haram. However, it is noteworthy that both police reports do not name any suspects at all, though the Appellant testified that he told the police this information. This is inconsistent with the objective documentary evidence. This further impugns the credibility of the documents. [43] I note that the Appellants' Counsel argues that the police documents may contain errors and omissions because of police incompetence. Counsel submits that the police reports were sufficient for the Appellants' needs. On a balance of probabilities, this does not explain how two police reports issued for different incidents on different dates consistently omit this key information. In the context of the other abnormalities in the police reports, and in contrast with the objective documentary evidence, on a balance of probabilities, I do not find this explanation sufficient to overcome my credibility concerns with respect to the police reports. [44] After reviewing the police reports and the documentary evidence, I find that the police reports are fraudulent, on a balance of probabilities. The RPD did not err in finding that the Appellants had submitted fraudulent documents that impugned their credibility. [45] Finally, even if I were to accept the police reports as genuine documents, I find that they only establish that the Appellants were targeted by "suspected assassins"22, "hoodlums"23 and "suspected terrorist[s]".24 I do not find that the police reports establish the Appellants' claims that they were targeted by Mr. Murtala, or that Mr. Murtala was affiliated with Boko Haram. I also do not find the reports sufficient to overcome the other credibility concerns on the record. The RPD did not independently consider the Appellants' other evidence [46] The RPD found that the Appellants submitted fraudulent documents. It found that this damaged their credibility regarding their allegations that they were attacked by agents working with Boko Haram and Mr. XXXX. In the same paragraph, the RPD states that it "assigns no probative value to any other documents from Nigeria which the claimants have provided to support their allegations".25 [47] Counsel argues that the RPD erred in failing to give weight to the Appellants' supporting evidence because it considered the police reports to be fraudulent. These documents include a medical certificate detailing the Appellant's injuries following the alleged attack on November 4, 2016, receipts that show the Appellants' addresses, and an email and letter from the Eteye Traditional Council. [48] The RPD did not explicitly link its finding regarding the police reports to the weight it assigned to the Appellant's other documents. If the RPD had explicitly stated that it found the Appellants were generally lacking in credibility, this finding could have extended to all of their evidence. However, the RPD did not explain why it assigned these documents no probative value. This is an error. To rectify this error, I have considered the documents as follows. Medical report does not corroborate the Appellant's claim that he was targeted by Boko Haram [49] At best, the Appellant's medical report is evidence that the Appellant went to the hospital on November 4, 2016, with injuries to his head and his wrist. This is an unfortunate incident. However, I note that the document states that the Appellant was on his way home from work when "suspected terrorists" attacked him. This information appears to reflect what the Appellant told the hospital about his attack. Given that the Appellant testified that Mr. XXXX links to Boko Haram came from his own assumptions, and in light of the credibility concerns already identified, I find that the medical report does not have sufficient probative value to establish the Appellant's claim that he was targeted by Boko Haram. I assign this document little weight in my analysis. Receipts do not demonstrate that the Appellant relocated [50] The Appellants' evidence included two receipts. On appeal, the Appellants submit that they demonstrate that they relocated in Nigeria. There are no further submissions. One receipt is for rent at "XXXX XXXX XXXX" from August 2016 until August 2017.26 The second receipt is a sales receipt from the purchase of a phone in November 2016.27 It bears the same address. These receipts do not demonstrate that the Appellants moved because of their alleged encounters with Mr. XXXX in November 2016. At best, these documents corroborate the Appellant's testimony that he and his family lived at this address prior to moving to Canada. I give them no weight in my analysis. Email and letter do not establish allegations of Female Genital Mutilation [51] The Appellants claimed that the minor Appellant XXXX XXXX XXXX XXXX XXXX was at risk for FGM. The Appellants alleged that the Appellant's father was pressuring his family to perform the ritual on his daughter. The RPD found that the documentary evidence states that parents are able to refuse FGM. The RPD found insufficient evidence to indicate that the Appellant would be unable to prevent his daughter from undergoing FGM. The Appellants stated that the family risked being banished for refusing FGM. The RPD found that the Appellants did not demonstrate they would suffer persecution if they refused to allow their daughter to undergo FGM. The RPD concluded that XXXX XXXX XXXX XXXX XXXX would not face a serious possibility of persecution by means of FGM in Nigeria. [52] Aside from asserting that the RPD erred when it gave no weight to an email and a letter from the Eteye Elders Council, the Appellants' Counsel has not advanced any particular arguments to counter the RPD's conclusion regarding FGM. I have considered these documents in my analysis. Without determining whether any features of these documents should lead to an adverse credibility finding, I note that increased scrutiny of the documents would not necessarily have assisted the Appellants for the following reasons. [53] On a balance of probabilities, the email is insufficient to establish that the Appellants do not have a choice to refuse FGM. It alludes to the repercussions for refusing FGM, indicating that the family would no longer engage in any social or business activities with the Appellants, and make things "unbearable".28 Without further context, on a balance of probabilities, I do not find that these allegations rise to the level of persecution. I also note that the identity of the sender is unclear, as the email is signed "Eteye Elders Council".29 For these reasons, I assign the email little weight in my analysis. [54] The letter from the Eteye Elders Council states that it "has become mandatory" for "XXXX XXXX" to take on the "title of XXXX of the XXXX [sic] Family".30 The letter is addressed to "XXXX XXXX", who is allegedly the Appellant's father. At best, this document corroborates the fact that the Appellant's father has been called to take on the role of XXXX. This document does not have sufficient probative value to substantiate the Appellants' claims that XXXX XXXX XXXX XXXX XXXX is at risk of being subjected to FGM, on a balance of probabilities. I therefore ascribe it little weight in my analysis. No serious possibility of persecution or s. 97 risk from FGM [55] I have considered the Gender Guidelines. I note that there are serious consequences for the health and well-being of women and girls who are forced to endure FGM. I have considered the Appellants' personal circumstances in relation to the objective documentary evidence regarding FGM in Nigeria. [56] In my independent review of the record, I find that the RPD was correct to rely on the objective documentary evidence stating that parents have the right to refuse FGM. On a balance of probabilities, the evidence on the record does not demonstrate that the Appellants would be unable to refuse to subject XXXX XXXX XXXX XXXX XXXX to FGM. [57] Although the Appellants stated that their family may be banished for refusing to subject their daughter to FGM, in the absence of further information, on a balance of probabilities, I do not find that this potential consequence rises to the level of persecution. [58] I therefore do not find that XXXX XXXX XXXX XXXX XXXX would face a serious possibility of persecution or, on a balance of probabilities, a risk to life or risk of cruel or unusual treatment or punishment or a danger of torture by means of FGM in Nigeria. [59] Moreover, do not find that the Appellants would face a serious possibility of persecution or, on a balance of probabilities, a risk to life or risk of cruel or unusual treatment or punishment or a danger of torture on the basis of the parents' refusal to have the minor daughter undergo FGM. CONCLUSION [60] There is a presumption that sworn testimony is true, unless there is a reason to doubt its truthfulness. I find that the omissions, inconsistencies, and fraudulent documents on the record are sufficient reasons to doubt the Appellants' testimony. The RPD was therefore correct to find that the Appellant did not provide credible testimony. As the claims of the Associate Appellants XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX-XXXX are based on the Appellant's allegations, the credibility finding extends to their claims. [61] It was correct for the RPD to conclude, on a balance of probabilities, that the Appellants had not established their allegations that 1) the Appellant was targeted because he refused to convert to Islam and join Boko Haram, and 2) that they would be unable to refuse FGM for XXXX XXXX XXXX XXXX XXXX or that any harm as a result of their refusal of FGM would amount to persecution. [62] The RPD was correct to find that the Appellants would not face a serious possibility of persecution or, on a balance of probabilities, a risk to life or risk of cruel or unusual treatment or punishment or a danger of torture if they return to Nigeria. DETERMINATION [63] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Desiree Pachkowski" Desiree Pachkowski February 4, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116 (CanLII), at para. 11; Njeri v. Canada (Citizenship and Immigration), 2009 FC 291 (CanLII), at para. 13. 3 P-2, Appellants' Record, Appellants' Memorandum, at p. 5 at para. 9. 4 RPD-1, RPD Record, BOC Narrative, at p. 20. 5 Audio recording of the hearing before the RPD, December 18, 2018, at 00:17:50 and 00:20:08. 6 Ibid., at 00:28:59. 7 Ibid., at 00:57:09. 8 Ibid., at 00:58:09. 9 Ibid., at 00:57:15. 10 Ibid., at 00:57:50. 11 RPD-1, RPD Record, BOC narrative, at pp. 21 - 22. 12 Audio recording of the hearing before the RPD, December 18, 2018, at 00:59:30. 13 RPD-1, RPD Record, at p. 220. 14 Ibid, at p. 221. 15 RPD-1, RPD Record, RPD Reasons and Decision, at p. 8 at para. 24. 16 RPD-1, RPD Record, at pp. 220 - 221. 17 RAD-1, National Documentation Package (NDP) for Nigeria, 29 November, 2019, tab 10.3: Documents issued by police during criminal investigations or in response to a complaint; procedures for an individual to obtain a copy of a police report within the country as well as from abroad; appearance of police reports, including whether... Immigration and Refugee Board of Canada. 7 November 2019. NGA106379.E, at p. 7. 18 Ibid at pp. 10 - 14. 19 RPD-1, RPD Record, at p. 220. 20 Ibid, at pp. 220 -221. 21 Supra note 16, NDP for Nigeria, November 29, 2019, tab 10.3, at p. 6. 22 RPD-1, RPD Record, at p. 220. 23 RPD-1, RPD Record, at p. 221. 24 Ibid. 25 RPD-1, RPD Record, RPD Reasons, at p. 8 at para. 26. 26 RPD-1, RPD Record, at p. 213. 27 Ibid, at p. 214. 28 RPD-1, RPD Record, at p. 220. 29 Ibid. 30 RPD-1, RPD Record, at p. 223. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-12518 MB9-12519 / MB9-12520 / MB9-12521 MB9-12522 RAD.25.02 (April 04, 2019) Disponible en français 10 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 (April 04, 2019) Disponible en français