MC0-02177

RAD File / Dossier de la SAR : MC0-02177 ; MC0-02178 ; MC0-02179 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 Personnes en cause Appeal considered / heard at Montreal, Quebec Appel instruit / entendu à Date of decision January 19, 2021 Date de la décision Panel Me Martine Durocher Tribunal Counsel for the persons who are the subject of the appeal Temitope Ayodele Conseil des personnes 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 (the appellant) and her minor children, XXXX XXXX XXXXandXXXX XXXX XXXX XXXX (co-appellants) are of Nigerian nationality and filed an appeal against the decision of the Refugee Protection Division (RPD) dated December 13th, 2019, rejecting their request for protection. [2] The principal appellant alleges that she will be killed by XXXX XXXX cult members and her paternal uncle, XXXX XXXX XXXX, because she refused to become the next Guardian of Divinity, due to her Christian beliefs and because her daughter would have to participate in the ritual and be circumcised. Her daughter alleges that the same people would cause her harm because she refused to be the XXXX XXXX, and her son claimed that he would get hurt as well as a result of his mother's refusal to take the role as Guardian of Divinity. The appellants fled to the USA in XXXX 2017 and then came to Canada for protection in XXXX 2017. [3] The RPD found that the appellants were not credible regarding their central allegations. Credibility was the determinative issue before the RPD and remains so before the Refugee Appeal Division (RAD). DECISION [4] I dismiss the appeal. The RPD was correct in finding that the appellants are neither Convention refugees nor persons in need of protection. ROLE OF THE RAD [5] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS Contradictions between the police report and the appellant's testimony [6] The RPD concluded that the allegation to the effect that her uncle and members of the cult visited her in XXXX 2013 to tell her about her new role in the cult had not been established by balance of probabilities. In reaching this conclusion, the RPD considered a discrepancy between her testimony stating that the agents of harm left her home at 10:00 p.m. that night, but that the police report indicated that she reported the visit to the authorities at 5:42 p.m. that same night. The RPD also considered that the police report contained irregularities that rendered it not genuine. [7] The appellant submits that the RPD erred by not considering that the discrepancy could plausibly result from the different standards in the disorganised Nigerian police. The RPD erred by inferring from this discrepancy and spelling mistakes in the police report that the visit from her uncle never happened. [8] I agree with the analysis contained in paragraphs 10 to 18 of the decision. After a careful review of the police report submitted by the appellant against the sample featured in the National Documentation Package for Nigeria (NDP), I consider that the RPD was correct when it ruled that the document in evidence was not genuine.3 Not only does the report contain spelling mistakes in the letterhead and stamp as to the word "Redemption", but the format does not correspond to the sample provided by the Nigerian police in the NDP. This was put to the appellant during the hearing. The appellant was unable to provide any answer apart that this document was sent to her by her husband and that the Nigerian police is not organised. I note that the jurisprudence has established that providing false documents can undermine the overall credibility of the appellant, as it is deemed to be a deliberate attempt to mislead the Board.4 [9] I note that there is no other independent evidence that was adduced to support this event of XXXX XXXX XXXX 2013, explained in her testimony. I note that neither her narrative nor her BOC forms described the event as such. I conclude that the RPD was correct when it found that this undermines the appellant's credibility regarding the alleged visit of her uncle and the members of the cult at her residence on XXXX XXXX XXXX 2013. Contradictions regarding the assault by members of the cult [10] The RPD found that the contradiction between her narrative in her BOC and her testimony regarding physical violence further undermined her credibility about the alleged conflict between her and the cult members. Contrary to her BOC, the appellant testified that she was never victim of physical violence, and she rather meant in her narrative that she had been mentally abused. [11] The appellant submits that the RPD erred in not considering the XXXX evidence and the disorganizing effect of trauma on her credibility, citing portion of the report that her thoughts processes are likely to be confused. The appellant therefore contests the RPD decision to discount the report since it provides reasonable explanation for the lack of coherency. [12] I believe that the RPD erred when it decided to attribute no probative value to the XXXX assessment report because it was based on one session.5 I believe that the decision-maker needs to discern in the context of the evidence as a whole, which portions of the report is consistent with the appellant's profile and testimony. [13] However, after a careful reading of the document, I am also questioning the far-reached conclusion of the report with regard to the appellant's XXXX XXXX XXXX XXXX XXXX, XXXX XXXXand XXXX XXXX, without having used other more specific XXXX tools to pose such XXXX. [14] Also, I note that the report mentions that the appellant is prone to an unusual degree of XXXX that might have her "overconcern regarding issues and events over which she has no control." As a result, "she is likely to display a variety of maladaptive behavior patterns aimed at controlling XXXX". Though the test administered detected that the appellant has "likely experienced a disturbing traumatic event", it could not address specific causes of traumatic stress. The appellant also described a level of suspiciousness and mistrust in her relations with others, "such pattern is often associated with prominent XXXXandXXXX XXXXofXXXX XXXX XXXX XXXX".6 [15] In this context, this report suggests that the appellant's testimony and evidence could bear limited reliability, which can undermine her credibility. This is illustrated in the discrepancy between her narrative, in which she claimed to have been physically assaulted, and her testimony in which she denies having been a victim of such assault. By her own admission, her narrative is an exaggeration of the reality. [16] Contrary to the RPD, I do not believe that this sole discrepancy undermines all of her allegations of dispute between herself and members of the cult, especially when directly asked, she is downplaying the event against her own interest. This finding will be considered later in the analysis. Contradiction regarding the identity of the head of the family [17] The RPD noted a discrepancy between her testimony, stating that her uncle was the head of the family, and a letter from a pastor indicated that the head of the family was XXXX XXXX XXXX. The panel rejected the appellant's explanation to the effect that she had not noticed the discrepancy. The RPD also refused to attribute any probative value to an article about her uncle, as the submitted copy and the original differed on several points. [18] The appellant concedes that there were errors contained in the documents that could undermine the allegation that her uncle, XXXX XXXX XXXX, was the head of the family. However, she submits that this should not detract from her founded allegation to the effect that she fears the elders in her family, not just her uncle. The appellant points out at the XXXXandXXXX XXXX Church letter that refers to the occult members and elders as the agents of harm, not just the uncle. [19] I note that during her testimony, the appellant repeated in a clear-cut way that her uncle, XXXX XXXX XXXX, was the head of her family and this is one of the reasons she was fearing him, as this would confer significant power over her.7 Her admission that this part of her testimony was mistaken undermines her reliability, and thus her credibility with regards to her overall allegations. Even if she now focuses on fearing all members of the cult, it is difficult to believe to what extent those members sought her after her refusal to fill the role for which she was allegedly chosen. Also, as correctly analysed by the RPD at paragraph 26 of the decision, the article the appellant submitted about her uncle does not appear genuine and is thus given no weight. [20] As the RPD, I also find that her uncle, XXXX XXXX XXXX, is not the head of the family as alleged and that he was part of the cult in question. Inconsistent behavior by returning to Nigeria after international travels [21] The RPD concluded that the appellant adopted a behavior that was inconsistent with that of a person who fears for her life by returning to Nigeria after having failed to request asylum in different countries she had visited since 2013, including the United States, Cyprus (Turkish side) and Turkey. [22] The appellant submits that she provided a reasonable explanation for not requesting in the USA during her trip in 2013. Referring to jurisprudence, she argues that returning to their country of origin is not determinative of the absence of subjective fear. As for Turkey, the appellant points out the National Documentation Packages (NDP) for Turkey (item 2.2) detailing the dire situation of refugees to support her position that this country was not refugee friendly. Her reluctance to seek asylum in the USA upon arrival in 2017 due to the Trump administration policies is also grounded in the objective evidence (NDP, USA, 14.10). [23] With regard to the appellant's trip to the USA in 2013, and the trips to Turkey and Cyprus in 2013, 2014 and 2015, I agree with her that she provided reasonable explanation as to why she did not claim refugee status in those countries at those times. Indeed, in 2013, the appellant testified that she thought the issue would eventually be resolved. She also claimed that in 2015, the agents of harm no longer manifested themselves, and so she did not feel in danger. According to her testimony, the issue resurfaced in 2016.8 I also agree with the appellant that, considering the ongoing conflict between Greek and Turkish Cyprus, and the overcrowded refugee camps in Turkey due to the Syrian civil war, they might not have been safe choices to resettle as a refugee. [24] However, the appellant was issued a valid American visa since 2015. She testified that she took the decision to leave Nigeria in XXXX 2016, after the agents of harm allegedly vandalised her friend's workplace and after she received threatening calls to join the cult. However, she left for the United States only 5 months later, in XXXX 2017. The appellant explained that, during that period, she was raising funds and to "get into a concrete agreement with her husband" regarding the children.9 I agree with the RPD that this does not constitute a reasonable explanation to justify the delay. [25] Also, as pointed out by the RPD at paragraphs 36-37 of the decision, the appellant stayed for 11 months in the United States in 2017, five of which were without status. She testified not having enquired about her option to obtain asylum in the United States. Considering the foregoing, I agree with the RDP that this constitutes a behavior that is inconsistent with a person who fears for her life, which undermines the appellant's credibility regarding her allegations. Contradiction regarding the death of the appellant's father [26] The RPD determined that the discrepancies between the appellant's oral testimony, Schedule A form and the documentary evidence adduced regarding the date of birth and death of her father did not receive a reasonable explanation. The appellant had therefore failed to establish that her father is deceased, which was deemed important to the allegation pertaining to the role of her uncle as the new head of the family after his death. [27] The appellant submits that the panel had been "over-vigilant in its microscopic examination of the evidence", while considerable evidence supports the claimant's allegation. [28] I believe that the RPD was correct in finding that the documentary evidence adduced to support her allegation that her father died in 2005 was insufficient to establish this allegation by balance of probabilities. [29] As described in paragraphs 39 and 40 of the decision, the evidence contains significant inconsistencies regarding the date of birth and death of her father. The appellant explained that she was not feeling well when she completed those forms, but I note that it was open to her to amend them at any point in time before the hearing. The appellant also failed to provide a satisfactory explanation to the contradiction regarding her father's age indicated on the leaflet distributed at her father's service. As correctly concluded by the RPD, this contradicts her allegation as to her father's death. [30] Contradictions pertaining to the addresses or residence and visa applications for Canada [31] The RPD found that the appellant's overall credibility was undermined by her failure to indicate in the schedule A form the address where she alleges having stayed in Lagos and that she had been refused a visa application in the past. The appellant submits that the RPD engaged in a microscopic analysis of the appellant's evidence to the point that it ignored the rest of the consistent evidence to the effect that she stayed in Lagos prior to her departure. The appellant insists that her stay in Lagos was only transitory and that she did not consider it a permanent address. As for the visa refusal, she points out that she had disclosed this information in her BOC, and that this is a peripheral issue to the claim. [32] I agree with the appellant that the omission to include where she was staying in Lagos in the schedule A does not in and of itself affect her credibility.10 I understand that these were places of transition that she did not consider a residence per se. I reach the same conclusion when it comes to the omission of having indicated in schedule A that she was refused Canadian visa applications.11 I note that it was simply a checkbox and that the appellant never denied having been refused entry when questioned about it.12 Also, this form was completed upon her arrival in Canada, and the jurisprudence teaches us that discrepancies between the overall claim and the information provided at the port-of-entry forms should be considered with caution.13 However, those conclusions are not sufficient to overturn the overall negative credibility finding. Documents adduced [33] The RPD attributed no probative value to the series of documents adduced by the appellant in support of her claim.14 [34] I agree with the appellant that, regarding the pastor's letter, in which it is stated that the appellant sought refuge at his home until occultic men showed up, the RPD should have analysed what the letter says, as opposed to what it does not say, in deciding to ascribe or not weight to the document. However, in reaching its conclusion , the RPD also noted irregularities consisting of the misspelling of the word "faithfulness" in the church's credo, spelled with two "l". The same mistake is noted in the identity card of his alleged author. Considering the credibility issues already noted, I believe that the RPD was correct when it gave those documents no probative value. [35] The RPD went on to attribute no probative value to the affidavits of the appellant's friend, as well as her husband's, due to the prevalence of fraudulent documents in Nigeria and that the documents are insufficient to offset the appellant's credibility. [36] I agree with the appellant that the RPD erred when it failed to assess the evidence with an open mind and that the evidence must be assessed in its totality, not in isolation. I note that the previous adverse credibility findings concern the appellant's allegation regarding the XXXX XXXX XXXX 2013 event, not her overall claim that she refused to take over a role in a cult. I also found that the RPD erred in concluding that her credibility regarding an actual argument with members of the cult following an inconsistency between her narrative and her testimony regarding an alleged physical assault was undermined. [37] The letter from her friend, XXXX XXXX XXXX XXXX, supports the allegation that the appellant was chosen to become the goddess of their deity against her wish, as she was told by the appellant. She recounts the XXXX 2016 event, when she was asked about her whereabouts by alleged members of the cult, who also assaulted her and vandalised her shop. Even if I take this document at face value, all it establishes is that her friend was at her place and some people asked for her at her place of work. We ignore why she thought it was members of the cult, and even more unclear, is whether the attackers were also the alleged members of that cult. This lack of detail, added to the overall credibility issues of the appellant, fails to establish that the appellant was under attack by members of the cult. [38] As for her husband's affidavit, it mentions that the appellant refused to take the role of XXXX XXXX, for which she received threats and attacks from the deity. First, I note that the appellant admitted never having been victim of physical attacks. Secondly, it seems that the threats and attacks were from the "deity", basically coming from the god, or the divine. The evidence adduced does not support this allegation. This affidavit only gave credence to the allegation that she refused a role that was attributed to her by a traditional cult. [39] I agree with the appellant also that the letter from her daughter cannot be discarded solely on the basis that the information hails from a family member, and therefore can be seen as self-serving. It must be assessed within the context of the evidence as a whole. [40] The letter in question sounds more like a prayer than a witness testimony to support allegations central to the appellant's claim. The only information contained therein that could support the claim is that her mother was chosen to fill a role within a traditional cult that she does not want to occupy, and this seems to have disrupted her family life. The probative value of this letter is thus limited. [41] I note that the RPD placed no weight on the articles submitted into evidence due to incoherence between the format of the copies and the original documents, as well as spelling mistakes spotted by the tribunal in both. The appellant did not object to the conclusion of the RPD. After having read those documents, I also find that there is a lack of information as to the author and the origin of those documents, and the publisher. I therefore agree with the RPD that those documents should be given no weight. [42] Consequently, I believe that though there is some evidence to corroborate the appellant's allegation that she encountered difficulties after refusing to fill out a role for which she had been chosen in a traditional cult, I believe that, by balance of probabilities, she had been unable to establish the central allegations to her claims, basically that she had been victim of persecutory acts as a result of this refusal. The numerous credibility problems identified and confirmed on appeal make it difficult to attribute weight to the appellant's testimony regarding the alleged death threats or the verbal assaults. Therefore, the appellant was unable to prove that she would face a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she had to return to Nigeria. As the minor appellants' claim is based on their mother's, this conclusion also applies to them. CONCLUSION [43] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Me Martine Durocher Me Martine Durocher January 19, 2021 Date MD/dd 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 National Documentation Package, Nigeria, 30 November 2020, 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. 4 Neethinesan v. Canada (Minister of Citizenship and Immigration), 2004 FC 138 (CanLII), par. 10. 5 RPD Decision, para. 58. 6 P-24, XXXX asssessment report. 7 Transcription of hearing October 31, 2019, pp. 11, 44-45; Transcription, hearing of December 2, 2019, p. 9. 8 Transcription of hearing October 31, 2019, p. 41; Transcription, hearing of December 2, 2019, p. 7. 9 Transcription of hearing October 31, 2019, p. 41. 10 RPD Decision, paras. 45-48. 11 RPD Decision, paras. 49-53. 12 Transcription of hearing October 31, 2019, pp. 37-38. 13 Mushtaq v. Canada (Minister of Citizenship and Immigration), 2003 FC 1066 (CanLII), par. 6. 14 RPD Decision, paras. 54-62. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-02177 ; MC0-02178 ; MC0-02179 RAD.25.02 (January 14, 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 14, 2020) Disponible en français