TB9-31381

RAD File / Dossier de la SAR : TB9-31381 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision February 26, 2020 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the person who is the subject of the appeal Ugochukwu Udogu Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX (Principal Appellant) is citizen of Nigeria. a. Mr. XXXX claims refugee protection because he fears persecution in Nigeria as a result of his political opinions. He supports the Biafran independence movement and has campaigned to improve governance in Nigeria and the situation of the Igbo people. Mr. XXXX claims that he has been targeted by members and supporters of the All Progressives Congress (APC) and Nigerian security forces. He left Nigeria for the USA in XXXX 2017; he entered Canada in XXXX 2018 and claimed refugee protection. b. The RPD found that Mr. XXXX was not credible and that he had not established key elements of his claim. The Appellant argues on appeal that the RPD erred in finding that his claim is not well-founded. The Appellant argues that the RPD's finding is unreasonable and against the weight of evidence. c. The determinative issue for the RAD is whether the RPD erred in finding that Mr. XXXX claim is not well-founded. d. I find that the RPD did not err in finding that Mr. XXXX claim is not well-founded. In order to ground a claim for refugee protection in Canada, Mr. XXXX must adduce sufficient credible evidence to satisfy the burden of establishing a serious possibility of persecution on a Convention1 ground, or in the alternative of establishing that, on a balance of possibilities, he would personally be subjected to a risk to life or a risk of cruel or unusual treatment or punishment or a danger of torture were he to return to Nigeria. I find that Mr. XXXX has not satisfied his burden of proof. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The RPD fully canvassed the Appellant's background and allegation in the RPD Reason and Decision. I have summarized key elements below. [4] The Appellant supports the creation of a Biafran state that is independent of Nigeria. He has also advocated for the Igbo people and for social and economic change in Nigeria. The Appellant claims his political activism has made him a target because he has spoken out against the ruling All Progressive Congress (APC) party. [5] According to his Basis of Claim Form (BOC) narrative dated May 28, 2018, the Appellant's activism began at a town hall meeting in XXXX 2015 where he spoke out against the state governor. The Appellant says that his brother's home, where the Appellant had been staying, was vandalized the next day. The Appellant claims that animal-like blood markings were left in the house as a warning that his life was in danger. The incident was reported to police but no suspects were found. [6] In XXXX 2016, the Appellant says he went to XXXX in XXXX State to attend a rally organized by the Indigenous People of Biafra (IPOB). The Appellant says that Nigerian security forces raided the homes of supporters of the IPOB the night before the rally. The Appellant says he was staying at an apartment with friends so he could attend the rally. He was able to escape the raid, but some of his belongings were stolen. The Appellant says he subsequently joined the "Enough Is Enough" group and was active in mobilizing people to participate in protests. [7] In an Amendment to his BOC dated July 16, 2018, the Appellant says that Nigerian security forces visited his father's home on XXXX XXXX, 2016, looking for the Appellant. He states that the soldiers knocked his father down causing him serious injury. [8] The Appellant says he received threatening anonymous phone calls, including a death threat, in XXXX 2017. He says that his wife received a call warning that the Appellant was being watched in XXXX 2017. The Appellant reported the call to the police but he alleges the police did not respond effectively. The Appellant says he realized he was being followed the same month, therefore he moved in with a friend and his wife and daughter went to stay with his sister-in-law. The Appellant says he learned from his landlord a week later that unknown men had been coming around looking for him at his residence. [9] In XXXX 2017, the Appellant travelled to the USA for a conference. He says that he learned upon arrival in the USA that some APC politicians would be at the conference and he says he felt threatened. He says he left Boston and travelled to Utah to start a new life but did not have the financial means to bring over his wife and children to the USA. Meanwhile his wife in Nigeria continued to receive calls inquiring about his whereabouts. In XXXX 2018, the Appellant entered Canada and claimed refugee protection. [10] The Appellant testified at the RPD that he was not politically active in the USA because he did not feel safe in the USA and he felt the APC could harm him there. He testified that he has been politically active on social media in Canada because he feels safe in Canada. NEW EVIDENCE - RAD RULE2 29 The RAD Rule 29 evidence presented by the Appellant is rejected [11] Pursuant to RAD Rule 29, the Appellant seeks to introduce as new evidence, an Affidavit dated February 6, 2020 with the following new evidence as attachments: 1. A letter from the Canada National Coordinator of the Indigenous People of Biafra, dated XXXX XXXX, 2020; 2. A copy of a Punch Newspaper article titled, "DSS arrests student over anti-Buhari articles," dated January 26, 2020; 3. A copy of a Sahara Reporters article titled, "DSS Brutalises Journalist, Arrests, Remands Him in Prison for Criticising Buhari," dated January 24, 2020; 4. A NewsWireNGR article captioned, "How Pro-Buhari supporters attacked groups demanding release of Omoyele Sowore," dated December 23, 2019; 5. A Sahara Reporters articled captioned, "DSS Arrested, Detained Me For Wearing 'We Are All Biafrans' T-shirt - Chido Onumah," dated September 30,2019; 6. A CNN News article captioned, "Nigerian newspaper says it will now call President Buhari a 'military dictator'," dated December 11,2019; and, 7. An AFP press news article captioned, "government? What we know about the hate speech bill," dated November 25, 2019. [12] In assessing this application, I am guided by the factors specified in RAD Rule 29(4) including: (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and, (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [13] The jurisprudence is clear that presenting new evidence to the RAD is not an opportunity to complete a deficient record submitted before the RPD.3 It is expected that full and detailed submissions on the admissibility and the relevance of the proposed new evidence will be included.4 [14] If after assessing the new evidence as specified under RAD Rule 29, I find that the evidence is not admissible under RAD Rule 29, I need not consider the evidence further. In the present case, I find that the proposed new evidence is not admissible for the reasons that follow. Letter from Indigenous People of Biafra, dated XXXX XXXX, 2020 [15] I will not accept the letter from the Indigenous People of Biafra dated XXXX XXXX, 2020, as new evidence pursuant to RAD Rule 29. The letter was written after the RPD hearing and after the Appellant's Record was submitted, however, the Appellant has not provided any information as to when the letter was requested from the author. I am unable to determine if the letter could have been available prior to the submission of the Appellant's Record with reasonable effort on the part of the Appellant. The letter does not contain new evidence rather it corrects a misspelling and explains the origin of the spelling error in a letter that the Appellant submitted in evidence to the RPD. I find that the document is of limited probative value and irrelevant to the determinative issue. I will provide my analysis of the original letter in the reasons that follow. Objective assessment of media sources in Nigeria [16] In a report that forms part of the relevant National Documentation Package (NDP) for Nigeria, the Australian Government Department of Foreign Affairs and Trade states: Nigeria has a vigorous media network. There are more than one hundred national and local newspapers, the most influential of which are privately owned. The reliability and honesty of the Nigerian media can be questionable. Radio reaches the largest number of Nigerians, while television is used in urban areas. The print sector is generally outspoken in its criticism of unpopular state policies; however, most media sources have a political agenda in support of one party or the other.5 (Emphasis added) [17] I was not able to find objective contrary evidence in the NDP in support of a contrary view that media sources in Nigeria are generally reliable, honest, and unbiased. Punch Newspaper article dated January 26, 2020 [18] I will not accept a Punch Newspaper article titled "DSS arrests student over anti-Buhari articles" dated January 26, 2020, into evidence pursuant to RAD Rule 29. The article is dated after the Appellant's Memorandum was submitted. Appellant's Counsel submits in the RAD Rule 29 submission that "the evidence documents the appalling lengths the Nigerian regime is willing to go on the issue of fundamental human rights. It also shows a regime that is grossly intolerant of criticisms". I do not agree. I find that the article, which narrates a lawyer's account of the arrest of his client by Nigerian security forces, does not provide credible new information that is relevant to the determinant issue in this case. rThe Appellant has not advanced arguments in his RAD Rule 29 application as to why this media source is credible or to the relevance and probative value of the information in the article. Sahara Reporters Article from internet dated January 24, 2020 [19] I will not accept an article from the internet by Sahara Reporters, dated January 24, 2020, titled, "DSS arrests student over anti-Buhari articles" into evidence pursuant to RAD Rule 29. [20] The Appellant has not provided any information in his RAD Rule 29 application regarding the provenance and credibility of this article. The article is a version of the story from Punch considered above. The Appellant has not advanced arguments that the article contains information that is relevant to his case and of probative value. [21] I find that the article does not provide credible new information that is relevant to the determinant issue in this case. NewswireNGR article dated December 23, 2019 [22] I will not accept a NewswireNGR article titled, "How Pro-Buhari supporters attacked groups demanding release of Omoyele Sowore" dated December 23, 2019, into evidence pursuant to RAD Rule 29. [23] The Appellant has not provided any information in his RAD Rule 29 application regarding the provenance and credibility of this article. The article recounts a story of a clash during a demonstration between civil rights demonstrators and government supporters. The Appellant has not advanced arguments that the article contains information that is relevant to his case and of probative value. [24] I find that the article does not provide credible new information that is relevant to the determinant issue in this case. Sahara Reporters article dated September 30, 2019 [25] I will not accept a Sahara Reporters article titled, "DSS arrested, detained me for wearing 'we are all Biafrans' T-shirt - Chido Onumah" dated September 30, 2019, into evidence pursuant to RAD Rule 29. The article is dated after the RPD hearing but before the Appellant Record was submitted, nonetheless, the Appellant has not provided any explanation as to why this article was not submitted with the Appellant's Memorandum. I am unable to determine if the letter could have been available prior to the submission of the Appellant Record with reasonable effort on the part of the Appellant. [26] The article states that a human rights activist was detained at the border for five hours before being released when he was returning from abroad. The activist said he was detained for wearing a pro-Biafra t-shirt. The Appellant has not advanced arguments that the article contains specific information relevant to his case and that it is of probative value. [27] I find that the article does not provide credible new information that is relevant to the determinant issue in this case. CNN News article, dated December 11, 2019 [28] I will not accept a CNN News article titled, "Nigerian newspaper says it will now call President Buhari a military dictator"' dated December 11, 2019, into evidence under RAD Rule 29. [29] The article is dated after the RPD hearing but before the Appellant Record was submitted, nonetheless the Appellant has not provided any explanation as to why this article was not submitted with the Appellant's Memorandum. I am unable to determine if the article could have been available prior to the submission of the Appellant Record with reasonable effort on the part of the Appellant. [30] The article describes an editorial published online by Punch in which Punch is highly critical of the Nigerian president and of the arrest of activists. The Appellant has not advanced arguments that the article contains specific information relevant to his case and that it is of probative value. [31] I find that the article does not provide credible new information that is relevant to the determinant issue in this case. AFP Fact Check article, dated November 25, 2019 [32] I will not accept an AFP Fact Check article titled, "government? What we know about the hate speech bill," dated November 25, 2019, into evidence under RAD Rule 29. [33] The article is dated after the RPD hearing but before the Appellant Record was submitted, nonetheless, the Appellant has not provided any explanation as to why this article was not submitted with the Appellant Record. I am unable to determine if the article could have been available prior to the submission of the Appellant Record with reasonable effort on the part of the Appellant. [34] The article discusses legislative proposals that would criminalize hate speech in Nigeria. The Appellant has not advanced arguments that the article contains specific information relevant to his case and that it is of probative value. I find that the article does not provide credible new information that is relevant to the determinant issue in this case. ANALYSIS [35] My role is to look at all the evidence and decide if the RPD made the correct decision.6 [36] In order to ground a claim for refugee protection in Canada under section 96 of the Immigration and Refugee Protection Act (IRPA),7 the Appellant must adduce sufficient credible evidence to establish that he faces a serious possibility of persecution in Nigeria on a Convention ground, in this case of political opinion. [37] In the alternative, in order to ground a claim for protection in Canada under section 97 of IRPA, the Appellant must adduce sufficient credible evidence to establish that, on balance of probabilities, he personally faces a risk to life or a risk of cruel or usual punishment or a risk of torture. [38] Sworn testimony is presumed to be true unless the presumption of truth is rebutted. The presumption of truthfulness does not apply to conclusions, beliefs or assumptions that a witness may make in testimony before the Immigration and Refugee Board (IRB). Current situation of the Igbo people in Nigeria [39] The current situation of the Igbo people in Nigeria provides context to the present claim for refugee protection. Objective documentary evidence in the current NDP establishes that: 3.2 The Igbo people constitute 18 per cent of Nigeria's total population and are one of the most politically influential groups in Nigeria. Some Igbo have campaigned for an independent state since 1999 (see Political Opinion - MASSOB). 3.3 The Igbo originate in south-eastern Nigeria and live in large numbers in the states of Abia, Anambra, Ebonyi, Enugu and Imo. Many Igbo have migrated to other areas of Nigeria including northern states. The Igbo speak a number of Igbo dialects. They are predominantly Christian. 3.4 There are no legal provisions directed towards the Igbo population in Nigeria. The Igbo are able to participate in political, social and cultural life in Nigeria without interference. The Igbo, like all Nigerians, are able to move freely within Nigeria. (Emphasis added) 3.5 The Igbo have faced attacks from Boko Haram in the middle belt and northern states of Nigeria. In January 2011, forty Igbo people were taken from a bus and killed after the bus had entered a predominantly Muslim area in the city of Jos in Plateau State. In November 2011, Igbo residents in the middle and northern states of Plateau, Kaduna, Nasarawa, Niger and Borno evacuated to the south in response to attacks by Boko Haram. However, there are no recent reports of Igbo specifically targeted due to their ethnicity. Past attacks have been opportunistic, isolated and infrequent. DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria.8 (Emphasis added) [40] The Appellant has submitted media articles that allege persecution and even genocide against the Igbo people. These allegations are not borne out in the objective evidence in the NDP. I prefer the analysis from the Australian government because it is recent, credible and objective. Political Opinion in Nigeria [41] The current NDP for Nigeria provides objective evidence regarding the current situation regarding persecution for political opinion in Nigeria. [42] Amnesty International and the IRB documented an incident on XXXX XXXX, 2016, when Nigerian security forces killed a number of people attending a rally in XXXX, XXXX State in support of Biafran independence. The Appellant testified that he was in XXXX to attend the rally but escaped the night before the rally when security forces raided where he was staying. [43] Current objective documentary evidence indicates that individuals do not face persecution based on political opinion, however, they may face risk associated with attendance at political rallies and events. The Appellant says that he is a member of the Indigenous People of Biafra. IPOB and the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) are the main political groups advocating independence for Biafra. [44] The Australian Government Department of Foreign Affairs and Trade (DFAT) finds that individuals associated with MASSOB live free from violence and discrimination on a day-to-day basis, however, individuals participating in protests face a low risk of being arrested or injured by security forces. Leaders may face a higher risk of arrest when engaged in MASSOB events.9 [45] DFAT finds that individuals associated with IPOB do not face official violence on a day-to-day basis; however, individuals participating in Biafran protests, particularly on Biafran Remembrance Day, face a high risk of violence by security forces during protest activity.10 No Objective Basis for Fear of Persecution or Risk to life [46] Based on my independent evaluation of the evidence before me, I find that the Appellant has not established an objective basis for fear based on political opinion or ethnicity. The objective documentary evidence is clear that members of the Igbo community, including those advocating for an independent Biafra, do not currently face persecution in Nigeria. [47] The Appellant has not adduced credible evidence that he is in a leadership role within the Biafran independence movement such that his personal risk profile would be higher than other supporters of Biafran independence. [48] The Appellant has testified that he has received anonymous threats that he believes are related to and derived from his political opinion and political activism. The Appellant is not able to identify specific agents of persecution. The beliefs and assumptions of the Appellant are not covered by the presumption of truthfulness. [49] I find that the Appellant has not met his burden of proof for refugee protection under either section 96 or section 97. Assessment of Evidence [50] The Appellant argues on appeal that the RPD erred because it was microscopic in its evaluation of the evidence and that the RPD erred because it evaluated evidence on what it did not say rather than what it did say. I do not agree for the reasons that follow. "Letter of Support" from IPOB [51] The Appellant's evidence to the RPD included a "letter of support", dated April 5, 2019, on the letterhead of the Canadian affiliate of the Indigenous People of Biafra. The body of the letter makes no mention of the Indigenous People of Biafra but rather attests that the Appellant is "an ardent supporter and member of the Independent People of Biafra (IBOP)". The letter goes on to state that "We the leaders of the Independent People of Biafra (IBOP) hereby, highly recommend him...." [52] The RPD gave little weigh to the letter. The RPD found that "one would expect the National Coordinator Canada to know that IBOP stands for Indigenous People of Biafra, not Independent People of Biafra." The RPD found that "Moreover, no specifics of the claimant's ardent support are provided and, most problematic of all, there is no indication that the author has any source for that assertion, or any other statement in the letter, other than the claimant." [53] I have conducted my own independent analysis of the letter of support. I find that letter establishes that the Appellant is a member of the IBOP and it establishes nothing else. As noted by the RPD, the author provides no detail as to what he knows regarding possible threats to the Appellant or how he knows of these threats. I agree with the RPD and I accord the letter of support little weight. The RPD did not err. Letter from Wife [54] The RPD took a negative inference because the letters of support do not include any reference to the XXXX 2016 events in XXXX. The RPD found the Appellant's reply evasive when he was asked at the RPD hearing why the letter from his wife does not mention the XXXX 2016 events. [55] I have conducted my own independent analysis of the testimony and the letter. I find that the letter corroborates the Appellant's testimony regarding the animal-like blood incident in 2015 and his testimony that they have received anonymous threatening calls. The letter from the Appellant's wife does not provide detail as to who the callers are or why they are threatening the Appellant. [56] The record shows the Appellant began to talk about an article in Naija News when he was asked about the content of the letter from his wife. Although the Appellant was non-responsive to the question from the RPD Member, the RPD Member did not pose the question again. I do not take negative inference from the Appellant's initial response. Presence in Onitsha in May 2016 [57] The tragic events of XXXX 2106 figure prominently in the history of the Igbo people and the proponents of Biafran Independence. The Appellant testified that he was in attendance in XXXX on XXXX XXXX XXXX XXXX, 2016, however, none of the letters the Appellant has submitted as evidence corroborates his attendance. The RPD concluded that the Appellant's assertion that he was in XXXX on XXXX XXXX XXXX XXXX, 2016, is not credible. I do not agree. I find that the Appellant has provided sworn testimony that he was there and that there is no evidence before me to contradict his sworn testimony. I find that the RPD erred in finding that the Appellant's assertion that he was in XXXX on XXXX XXXX XXXX XXXX is not credible. [58] I find that the Appellant's presence in XXXX is not central to the forward-looking assessment of risk that the Appellant might face were he to return to Nigeria. There is nothing before me to indicate that individuals who were in XXXX in XXXX 2016 face any ongoing persecution in Nigeria based on their 2016 presence in XXXX. Standard of Proof [59] The Appellant argues on appeal that the RPD erred in applying the wrong standard of proof. The Appellant provided references to jurisprudence regarding standard or proof, however, the Appellant does not provide specific references where the RPD allegedly applied the wrong standard of proof. I have independently evaluated the RPD decision. I find that the RPD correctly applied serious possibility of persecution as the standard of proof when assessing the claim under section 96 and the RPD applied balance of probabilities when assessing personal risk and need for protection under section 97. I find the RPD did not err. All evidence considered [60] The Appellant argues on appeal that the RPD erred by not assessing all the evidence relevant to the case. The Appellant provided references to jurisprudence regarding assessment of evidence, however, the Appellant does not provide specific references to evidence that the Appellant alleges the RPD failed to consider appropriately. I have independently evaluated the RPD decision. I find that the RPD considered all the evidence before it. I find the RPD did not err. CONCLUSION [61] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Michael J. Gardiner" Michael J. Gardiner February 26, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Refugee Appeal Division Rules, SOR/2012-257. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para. 54. 4 Refugee Appeal Division Rules, SOR/2012-257. 3(3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (g) a memorandum that includes full and detailed submissions regarding (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. 5 National Documentation Package (NDP) for Nigeria (29 November 2019), Item 1.8 at para. 3.39. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 7 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 8 NDP for Nigeria (29 November 2019), Item 1.8. 9 NDP for Nigeria (29 November 2019), Item 1.8 at para 3.25. 10 NDP for Nigeria (29 November 2019), Item 1.8 at para 3.28. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-31381 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français