MC0-08939

RAD File / Dossier de la SAR : MC0-08939 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 April 21, 2021 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the person who is the subject of the appeal Felipe Morales 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 (Appellant) is a citizen of Nigeria. a. The Appellant fears that if he returns to Nigeria he is at risk of torture or death at the hands of the President Muhammadu Buhari and his supporters. b. The Refugee Protection Division (RPD) found that the Appellant is not a credible witness with respect to material aspects of his claim. c. The Appellant argues on appeal that the RPD breached natural justice and procedural fairness d. The determinative issues for the Refugee Appeal Division (RAD) are whether the RPD breached the principles of natural justice procedural fairness, and whether the RPD erred in finding that the Appellant is not credible in his claim. e. I find that the RPD did not breach natural justice and procedural fairness. I further find that the RPD did not err in finding that the Appellant is not credible in his claim. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleges that his father suffered persecution in Nigeria because of his political opinion at the hands of the military regime headed by General Muhammadu Buhari during the 1980s. The Appellant says his father was imprisoned because of his political beliefs and tortured while in prison. [4] The Appellant's father was released from prison in 1987. The Appellant says his father was poisoned by the military regime in the XXXX of 1988 but survived. [5] In XXXX 1988, the Appellant fled Nigeria to the United States (US) together with his father and brothers. The Appellant says that he travelled on his father's passport because he was a minor. The Appellant says that his father and brothers received refugee protection in the US, but he did not receive refugee protection because he was a minor. [6] The Appellant lived in the USA for nearly 30 years. He married a US citizen and had three children. For several years the Appellant worked as a XXXX XXXX in the US. The Appellant says that he was unable to regularize his immigration status in the US because the record of his legal entry into the US is recorded in his father's passport which he is unable to locate. [7] The Appellant remained in the US until XXXX XXXX XXXX 2018 when he crossed the border into Canada and applied for refugee protection. The Appellant fears that if he returns to Nigeria, he is at risk of torture or death at the hands of the President Buhari and his supporters. Buhari returned to power in 2015 as the democratically elected president of Nigeria and has subsequently won re-election. NO BREACH OF NATURAL JUSTICE AND PROCEDURAL FAIRNESS [8] The Appellant argues on appeal that the RPD Panel breached natural justice and procedural fairness in the conduct of the RPD hearing. The Appellant alleges that: a. There is a reasonable apprehension of bias on the part of the RPD Panel; b. The RPD erred in not adjourning the hearing after the consideration of exclusion in order to give the Appellant an opportunity to recover and rest. No reasonable apprehension of bias [9] The Appellant argues on appeal that: We respectfully submit that after hearing the irrelevant evidence in the exclusion phase of the hearing, as well as the exchanges with Appellant's Counsel in response to the various objections to the evidence and arguments, the RPD Member entered the inclusion phase with a biased and negative view both of the Claimant and his counsel.2 [10] The Appellant cites jurisprudence that the relevant test is whether a reasonable person would conclude that the RPD Panel was biased against the Appellant. The Appellant argues specifically that: We submit that a [sic] any reasonable person who would have been confronted to the facts as presented to the RPD member in the exclusion phase and would contemplate the Claimant, a tall, muscular African retired XXXX with a slurred and slow speech, would conclude that it was more likely that the Board Member was biased against him.3 [11] I have examined the transcript and the audio recording of the RPD hearing. I find no evidence that the RPD Panel exhibited bias against the Appellant. The RPD Panel and Appellant's Counsel had an exchange at the opening of the RPD hearing when the RPD Panel attempted to determine which documents the Appellant's Counsel had seen and when. I find that the exchange between the parties was respectful and appropriate. [12] Appellant's Counsel asked the RPD Panel to exclude some of the Minister's evidence as hearsay. The RPD Panel explained that hearsay evidence is not inadmissible at the RPD. The RPD Panel further explained that the Minister can present such evidence to the RPD as the Minister considered appropriate, however the RPD Panel was obligated to consider the Minister's evidence and decide what weight, if any, to give the Minister's evidence. The audio recording indicates that Appellant's Counsel was dissatisfied with the RPD Panel's position. I find that the RPD Panel was respectful and appropriate throughout the exchange. [13] Minister's Counsel withdrew the application for exclusion after hearing the Appellant's testimony regarding the issues that the Minister had raised. [14] I find that there is nothing in the record to support a finding that a reasonable person, who was familiar with role of the RPD and the rules that apply to RPD hearings, would conclude that the RPD Panel was biased against the Appellant. RPD hearing format [15] The Appellant argues on appeal that: "The Board Member decided to consolidate both the inevitable favorable decision on exclusion with what was then to be a new hearing on inclusion. We submit this was flawed."4 [16] RPD hearings are intended to consider the entirety of a claimant's case for refugee protection when it is reasonable to do so. It is usual for the RPD Panel to consider matters such as the possibility of exclusion and then to consider the substance of a claimant's fear of persecution or a risk of section 97 harm. [17] The Appellant argues on appeal that the RPD hearing took seven hours. I have examined the transcript and the audio recording of the RPD hearing. I find that the hearing took a total of four hours and 11 minutes over the course of a full day. The Appellant has not submitted any evidence that such a hearing is unusual in the context of Canadian jurisprudence or that it is unreasonable in the circumstances particular to the Appellant. [18] The transcript shows that the RPD Panel offered the Appellant breaks as required and asked the Appellant to confirm that he was okay. The Appellant was represented at the RPD hearing by experienced Counsel. The transcript does not indicate that the RPD Panel refused breaks when requested. Counsel did not advise the RPD Panel that the Appellant required accommodation at the hearing. [19] I find that the RPD Panel did not err in the conduct of the RPD hearing. I find that the RPD Panel did not breach procedural fairness and natural justice. ANALYSIS [20] My role is to look at all the evidence and decide if the RPD made the correct decision.5 As part of my analysis, I have conducted an independent assessment of the evidence and the arguments.6 [21] When a person swears to the truth of certain allegations before the Immigration and Refugee Board (IRB), there is a presumption that those allegations are true unless there is a reason to doubt their truthfulness. This presumption of truthfulness does not apply to inferences or conclusions a witness may draw from facts, or to speculation for which there is no evidentiary basis.7 [22] The presumption that a person's sworn testimony is true may be rebutted where problems are identified with the testimony. These problems can include contradictions, inconsistencies, and omissions; incoherent or vague testimony; limited knowledge of key elements of the case; or a reliance on false documents. [23] In order to succeed in a claim for refugee protection, claimants must adduce sufficient credible evidence to establish that they face a serious possibility of persecution on a Convention ground. In the alternative, claimants can succeed by adducing sufficient credible evidence to establish that, on a balance of probabilities, they would be subjected personally to a risk of a section 97 harm. [24] The RPD Panel found that the Appellant was not a credible witness with respect to material aspects of his refugee claim. The RPD found that there were important omissions in his Basis of Claim (BOC) form relative to his testimony that were not reasonably explained.8 [25] The Appellant argues on appeal that the RPD Panel erred by making credibility findings on issues that the Appellant argues are secondary and peripheral to the Appellant's claim.9 I do not agree that the RPD Panel erred for the reasons that follow. Omissions from his Basis of Claim are not explained by the Appellant's profession as a XXXX [26] The RPD made credibility findings based on the omission of material facts from the Appellant's BOC and contradictions between the Appellant's BOC and his testimony. [27] The Appellant argues on appeal that the Appellant's background as a professional XXXX explains omissions from his BOC: We respectfully submit that the Claimant, as a XXXX, exhibited at the hearing clear signs of memory loss and confusion. Any reasonable person would comprehend that a professional with that background could have certain gaps in remembering and recalling. Thus it is understandable that the Claimant, at the time of preparing his statement and his BOC may have omitted details and circumstances of his flight to Nigeria [sic], which took place years before he reached Canada.10 [28] I do not accept the Appellant's argument on appeal that omissions in his BOC are explained by the Appellant's profession as a boxer. I have examined the transcript and listened to the audio recording of the hearing. I do not agree that the Appellant showed clear signs of cognitive impairment at the RPD hearing. The Appellant was represented by Counsel when he completed his BOC and at the RPD hearing. [29] Appellant's Counsel did not request that the Appellant be considered a vulnerable person nor did Counsel request accommodation at the RPD hearing. I find that there is nothing in the record to support a finding that the RPD Panel ought to have treated the Appellant as a vulnerable person. [30] The Appellant did not provide any medical reports to the RPD or to the RAD that he suffers from memory loss and confusion as he argues on appeal. [31] I do not accept the Appellant's explanation that and omissions in his BOC and inconsistencies between his BOC and his testimony are explained by his past profession. I find that the omissions and inconsistencies undermine his credibility. Father's death by poison in 2017 [32] The Appellant testified at the RPD hearing that he had been told by his mother that his father had been killed in Nigeria. The Appellant testified that he had been told that his father had been poisoned and the family believed that President Buhari was responsible for his father's death. The Appellant testified that his father had continued to criticize President Buhari when the father was in the US. [33] The RPD asked the Appellant why these details of his father's death by poison in 2017 were not included in his BOC. The RPD did not accept the Appellant's explanation that he thought he had included these details in his BOC and he had mentioned them to his then Counsel. The RPD found that these material allegations undermine the Appellant's credibility. [34] I find that the RPD did not err. I find that the details of his father's death, allegedly at the hands of pollical adversaries, are central to the Appellant's claim that his own life would be at risk because of his father's political opinion. I do not accept the Appellant's explanation as to why he did not include the details in his BOC. I find that the omission of the details regarding his father's alleged death by poison in 2017 undermines the Appellant's credibility. Appellant's father and brother granted refugee protection in the United States [35] The RPD Panel found that the Appellant's credibility is eroded by the Appellant's failure to mention in his BOC that his father and brothers were granted refugee status in the US. The RPD found that the Appellant's failure to obtain any documents to corroborate their refugee status erodes his credibility. The RPD cites jurisprudence11 that failure to provide documents that the panel would expect to see is an important element in establishing credibility. [36] I agree with the RPD. The refugee claim of his father and his brothers are highly relevant to the Appellant's claim. The Appellant is in the US because his father was persecuted in Nigeria based on his political opinion. Danger to the Appellant in Nigeria [37] The RPD Panel found that Appellant has not established through sufficient credible evidence that he would be in danger in Nigeria. The Appellant argues on appeal that "the RPD decision is based almost entirely on the fact that the Claimant did not formally seek asylum. Once again, the RPD Member seems to presume that if there were a true danger, the Claimant would have taken every single measure to ensure protection by the United States so as to prevent returning to Nigeria."12 [38] The Appellant argues on appeal that he relied upon his boxing promoters to regularize his immigration status in the US and that they did not do so. The Appellant argues on appeal that he attempted to obtain legal status in the US though his wife, a US citizen, but he was unsuccessful. [39] I find that the RPD did not err, I note that the RPD did not make a finding with respect to the Appellant's subjective fear of persecution in Nigeria based on his failure to claim in the US as the Appellant argues on appeal. [40] The Appellant argues on appeal that: The Claimant left Nigeria as a young man because he feared persecution for his father and for himself as bis father male heir. He said he also clearly testified that, as circumstances had it, the agent of persecution of 1987 was retuned [sic] to power in 2019. We submit that this fact alone, in the context of the NDP for Nigeria showing the poor record to protect human rights and the concerns for dissidents and opponents, established a considerable and even substantial fear of persecution or at least fear of torture.13 [41] I do not agree with the Appellant that the objective facts establish a fear of persecution or of torture. The Appellant has not referenced any objective evidence that someone who has been out of Nigeria for 30 years would face persecution and torture in Nigeria because his father was imprisoned during the military regime in the 1980s. I have canvassed the documents in the latest National Documentation Package (NDP) and I find no evidence to support a finding that the Appellant would be at risk because his father opposed the military government in the 1980s. The XXXX XXXX newspaper article, dated XXXX XXXX XXXX XXXX 20I7 [42] The Appellant submitted into evidence an article from the XXXX XXXX newspaper, dated XXXX XXXX, 20I7 that says that the Appellant's father's burial has been delayed because the Appellant is considered "at large" in Nigeria.14 The articles states that the Appellant may be arrested and required to answer the charges against his father in court in his father's place. [43] The Appellant testified at the RPD that his mother had sent him the article and that he had been aware of its contents for about two years. The RPD Panel asked the Appellant why the allegations in the newspaper article do not form part of his BOC narrative. The Appellant testified that he did not know why he did not tell his former Counsel about the article when they prepared his BOC form but that he did give a copy of the newspaper article to his former Counsel. The RPD did not accept the Appellant's explanation. The RPD found that the allegations in the article, if they are true, are highly material to the Appellant's claim. The RPD found that failure to mention the allegations undermines the Appellant's credibility. The RPD gave no weight to the document given the Appellant's failure to mention the allegation or the article in his BOC. [44] I agree with the RPD. I find that the Appellant cannot rely on XXXX XXXX XXXX newspaper article to support key elements of his claim. XXXX XXXX XXXX article, dated XXXX XXXX XXXX 1987 [45] The Appellant submitted into evidence an article from the XXXX XXXX XXXX, dated XXXX XXXX XXXX 1987. The article states that the Appellant's father, along with other Nigerian politicians, was detained without trial for three years. The article contains a direct quote from the Appellant in which the Appellant unequivocally states that he suspected that his father had been poisoned while in prison and that the authorities were trying to kill his father. [46] When the RPD Panel asked the Appellant about being interviewed for the article, the Appellant testified that he had not been interviewed for the article. When the RPD Panel put to the Appellant that there is a direct quote attributed to him in the article, the Appellant explained the quote attributed to him was what others were saying, including his brothers. The RPD did not accept this explanation and found that the article should not be given any weight given the contradiction. [47] The Appellant argues on appeal that a person could be quoted in a newspaper article without necessarily being "interviewed".15 The Appellant argues that the word interview can have a broader meaning in journalism. [48] I note that the newspaper article in question was submitted by the Appellant. The quote attributed to the Appellant in the article states that his father was poisoned while in prison. The Appellants' BOC narrative states that his father was poisoned after he was released from prison but makes no mention that his father was poisoned in prison. [49] I find that the evidentiary value of the newspaper article is seriously eroded by the fact that the article refers to an interview with the Appellant that the Appellant says he did not give, and the narrative of the father's poisoning in the newspaper article differs materially from the Appellant's BOC and testimony. [50] I find that the Appellant cannot rely on the XXXX XXXX XXXX article to support key elements of his claim. CONCLUSION [51] I agree with he RPD and I find that the Appellant is not credible in his claim. [52] Having considered all of the evidence before me, I find that there is not a serious possibility that the Appellant would be persecuted in his country of nationality. I further find that, on a balance of probabilities, that the Appellant would not be subjected personally to a danger of torture, nor would he face a risk to his life, or a risk of cruel and unusual treatment or punishment, in his country of nationality. [53] 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 April 21, 2021 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 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 21. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 24. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 24. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 6 Tekle v. Canada (Minister of Citizenship and Immigration), 2017 FC 1040. 7 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305. 8 Exhibit RPD-1, RPD Record, RPD Decision, at para. 31. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 29. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 28. 11 Assadi v. Canada (Minister of Citizenship and Immigration), [1997] 2 FC 0, IMM-2683-96 (FCTD). 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 25. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 26. 14 Exhibit RPD-1, RPD Record, The Nigerian Observer news article, at p. 111. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 28. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-08939 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