TB4-03429

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 File No. / N° de dossier de la SAR : TB4-03429 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 20, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stella I Anaele Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, a citizen of Nigeria, is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal, and requests that the Refugee Appeal Division (RAD) hold a hearing pursuant to subsection 110(6) of IRPA, substitute with a positive decision, or in the alternative, he requests that the matter be referred back for re-determination by a differently constituted panel with directions that the RAD considers appropriate. DETERMINATION: [2] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. RULES 29 AND 37 OF THE RFUGEE APPEAL DIVISION RULES: [3] The Appellant has submitted an application to allow documents which the Appellant received after the due date for filing his record, which would be used as evidence in support of the Applicant's Appeal. Along with the application, Counsel has filed an affidavit from the Appellant in accordance with Rule 37 of the RAD rules. [4] The RAD must consider Rule 29 before determining whether the evidence is "new" evidence pursuant to s. 110(4). [5] Rule 29 (4) states: In deciding whether to allow an application, the Division must consider any relevant factors, 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. [6] The following late documents were submitted: * The Certificate of Death of the Appellant's wife dated XXXX XXXX, 2014 - copy of an original which had already been sent in scanned form; * The Affidavit of Fact of XXXX XXXX - original, which had already been sent in scanned form. This affidavit indicates that Mr. XXXX is a church member of the Appellant's church who was able to locate a used poster in the storage of a church; * The Sworn Affidavit of XXXX XXXX, the Appellant's aunt, dated XXXX XXXX, 2014 providing evidence with respect to the death of the Appellant's wife on XXXX XXXX, 2014; * Poster of the 3-day prayer National Prayer Summit which took place from April 26 - 28, 2013. [7] Counsel submits that the RAD should accept the Certificate of Death of the Applicant's wife and the Affidavit of XXXX XXXX as these documents had already been submitted but in scanned form. [8] Counsel further submits that the documents contain relevant evidence that arose after the rejection of the claim. He further argues that this evidence would impact the outcome of the appeal before the RAD. [9] Counsel's final argument is that the subject matter of this application was not reasonably available prior to the due date for filing the Appellant's Records, except as already noted, and the Appellant could not reasonably have been expected, in the circumstances, to have presented them during his refugee hearing since they did not exist at the time and the Appellant had not received the original documents at the time of filing the Appellant's Record. DECISION: [10] The RAD determines that the previously scanned evidence is accepted, however the credibility of this evidence will be assessed pursuant to the Statutory requirements and the factors as set out in Raza.1 The Sworn Affidavit of XXXX XXXX, the aunt of the Appellant, is also accepted and will also be assessed accordingly. The Poster of the three-day prayer, National Prayer Summit, could reasonably have been submitted prior to the rejection of the claim and prior to the perfection of the appeal, and, therefore, will not be accepted. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL: EXPRESS STATUTORY CONDITIONS: [11] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] If the Statutory requirements have been met, the panel must then consider the factors in Raza, in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a) for the PRRA. (Pre-Removal Risk Assessment) The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS [13] Is the evidence new in the sense that it is capable of: * Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, * Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, * Contradicting a finding of fact by the RPD (including a credibility finding)? [14] If not, the evidence need not be considered. CREDIBILITY [15] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [16] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. MATERIALITY [17] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. [18] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * Copy of a death certificate, with respect to the Appellant's wife, dated XXXX XXXX, 2014, indicating date of death of XXXX XXXX, 2014. * Sworn Affidavit of XXXX XXXX dated XXXX XXXX, 2014, aunt of the Appellant providing evidence with respect to the death of her niece, who is the late wife of the Appellant. * Scanned copy of an Affidavit of Fact from XXXX XXXX, a fellow parishioner of the Appellant who went from church to church in search of the poster depicting the three-day conference the Appellant had attended? * Documentary evidence from the Internet entitled "Nigeria arrests 42 Boko Haram suspects in Lagos, Ogun which appears to be dated July 30, 2013 and January 17, 2014, prior to the rejection of the claim on March 24, 2014. [19] The RAD finds that the copy of the death certificate relating to the late wife of the Appellant is evidence, which would not have been available at the time of the hearing, as she died on XXXX XXXX, 2014. This would also include the sworn affidavit from the Appellant's aunt, which provides evidence with respect to the deceased. Accordingly, these two documents meet the Statutory requirements. [20] The Affidavit of Fact from XXXX and the documentary evidence could reasonably have been available at the time of the hearing or prior to the rejection of the claim on March 24, 2014. The Affidavit refers to the poster advertising the National Prayer Summit, a central issue in this claim. The documentary evidence is from the Internet and is dated January 17, 2014, prior to the rejection of the claim. Accordingly, these two documents do not meet the Statutory requirements. [21] The RAD must now examine the evidence with respect to the Appellant's wife's death pursuant to the factors as set out in Raza, which includes the death certificate and the Sworn Affidavit of her aunt. [22] The RAD relies on the following information contained in the IRB's National Documentation Package (NDP). [23] The National Population Commission, a federal entity, is responsible for death and birth registrations. According to the Official, the registration of a death is not automatic and would generally only happen in cases where a will was involved or in the case of legal disputes. According to the Official, "most" deaths are not registered. Only family members of the deceased could apply - any other cases would be fraudulent. If death occurred at a hospital, a doctor would issue a death certificate on behalf of the hospital. Although the content of death certificates would vary depending on the issuer, it would generally include the name of the deceased and the date and cause of death, if known.2 [24] If someone tries to get a death certificate from the NPC and its Vital Registration Division, he or she must present a death certificate issued by the hospital in which the person died, an application, and proof that the deceased is a blood relative. If the person is a Christian, (which applies to the Appellant's wife), he or she must have the deceased certified dead by a hospital doctor so that the body can be deposited in the mortuary. Hospitals issue death certificates and inform the NPC. A doctor's report indicating that the person is dead is needed to obtain a death certificate. The wife, husband, children or siblings of the deceased are able to obtain the death certificate; it must be a blood relative. On some occasions, a family member may appoint an individual to represent the family.3 [25] Sometimes when someone dies in a suspicious circumstance and is subject of a police investigation, if the deceased family refuses an autopsy examination, the hospital authority, on the instruction of the police, may not issue a death certificate.4 [26] In addition to the foregoing, the RAD has also considered the general information with respect to false documents in Nigeria.5 [27] Referencing a book on Nigeria published in 2011 by John Campbell, a former US ambassador to Nigeria, the UK Border Agency Country of Origin Information Service writes "Benin City (South of Nigeria) is a center of the engraving industry, and practically any falsified document can be procured there, from birth certificates to diplomas". CONCLUSION [28] The RAD finds that the credibility with respect to the documents surrounding the death of the Appellant's wife is called into question in light of the foregoing documentary evidence. The death certificate does not indicate the cause of death, and there is no information which would support the fact that this was a "suspicious" death. Even if we have erred in this regard, the documentation is clear that, since the Appellant's wife allegedly died in a hospital, a hospital record must be provided in order to obtain a death certificate. This has not been provided. Moreover, according to an Official at the NPC, registration of a death is not automatic and "most" deaths are not registered. [29] The RAD concludes that the "new" evidence is not admissible and, therefore, an oral hearing is denied. Background: [30] The Appellant participated in a three-day National Prayer Summit at the XXXX XXXX XXXX XXXX XXXX held in XXXX, XXXX XXXX XXXX, Nigeria from XXXX XXXX XXXX XXXX, 2013. Since he had been XXXX XXXX XXXX at his church, he was asked to come to XXXX XXXX XXXX XXXX XXXX XXXX. During the prayer summit, the Appellant, at the request of the Pastor, prayed for God to give the President of Nigeria, XXXX XXXX, wisdom and strength and to "quash" the Islamic militants, and the Boko Haram in Nigeria and to bring peace to the country. [31] On XXXX XXXX, 2013, the National Government declared a state of emergency in three states (Boro, Yobe and Adamawa) where the Boko Haram was active. In addition, a number of terrorists in the Boko Haram had recently been killed by government troops. [32] The Appellant alleges that fanatic Muslims and the Boko Haram blamed him for the government declaring a state of emergency as he had prayed during the three-day prayer summit for the President to quash and destroy them. As a result, fanatic Muslims broke into the Appellant's home and vandalized it. He also alleged that crowds of fanatic Muslims were pursuing him on the streets of XXXX, XXXX XXXX XXXX. His name, along with others perceived to be enemies, were called out. He also received threatening phone calls from fanatic Muslims and the Boko Haram. Fearing for his life, the Appellant went into hiding. Moreover, no one wanted to associate with him for fear they would be harmed. He lost his job because his employer was fearful. The Appellant alleges that, since he left Nigeria, his wife and children are also afraid and no longer want contact with him and are in hiding. STANDARD OF INTERVENTION [33] We have considered Counsel's submissions in this regard, however the Federal Court in Iyamuremye6 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of law is correctness. The correctness standard is applicable to questions of law and issues of general legal importance, e.g. principles of natural justice and procedural fairness which fall outside the specialized area of expertise of the RAD.7 However, in two recent decisions, Alvarez and Eng,8 (and) the Court agreed that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce.9 However, the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error. The idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA and the case law dealing with the virtually identical wording of subsection 67 (2). The Court found that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision was within a range of possible, acceptable outcomes. Accordingly, the RAD, when assessing errors in fact and mixed law and fact, must examine if the RPD made findings which would constitute palpable and overriding errors. APPELLANT'S SUBMISSIONS: [34] It is submitted that the RPD relied upon speculative and unproven assumptions when it rejected the psychiatric report. [35] It is submitted that the RPD erred by mis-stating the evidence regarding the poster (paragraph 29 and 30 of the Appellant's affidavit) in holding that the Appellant should have kept a copy of the poster to advertise the crusade and in not accepting the explanation that the poster is no different from the flyer. The Appellant submits that keeping a poster or flyer would have been problematic for the Appellant. [36] It is submitted that the RPD erred by concluding that the Boko Haram group members are not present in the southern part of Nigeria, and, therefore, the Appellant would be safe in Lagos. [37] It is submitted that the new evidence confirms that there is no Internal Flight Alternative (IFA) in the Lagos state of Nigeria. [38] It is submitted that Affidavit evidence cannot be minimized as there was no contrary evidence to suggest that the motives of the affiants were questionable. ANALYSIS Psychiatric Report: [39] The RPD accepted that Ms. XXXX had made observations about the Appellant's XXXX XXXX XXXX XXXX, however she had no evidence to support the proposition that these disorders were as a result of the allegations indicated in the Basis of Claim form (BOC). The RPD applied the reasoning in Danailov10 where the Federal Court held that the letter of assessment did not address issues of credibility. The RAD finds that the RPD did not discard this document, but rather found that it did not serve as a cure-all for some of the deficiencies in the Appellant's testimony. Accordingly, the RAD finds that this is not a palpable or overriding error. Poster Advertising the Crusade: [40] The RPD found that if, as testified by the Appellant, these posters were distributed throughout Nigeria, that the Appellant would have available a copy of this poster to submit to the Board. The Appellant argues that he did not know he would be required to have a copy of a flyer for his hearing before the RPD. The RAD finds that this issue is a material aspect of the claim. Moreover, claimants are instructed to provide this corroborative evidence both in the kit provided to them and on the BOC form. The RAD concludes that the RPD's finding in this regard does not constitute a palpable and overriding error. Muslims Attack the Appellant's Apartment: [41] The RPD found the claimant's omission in the BOC of the assailants attacking others while they made their way to the Appellant's apartment, and the claimant's reason for this omission to be lacking in credibility. The Appellant argues that the RPD misconstrued the evidence when stating that the Appellant testified that he forgot to mention this. The Appellant submits that his counsel told him only to include evidence which occurred with respect to him and not to others. The Appellant has not provided the portion of the transcript or a reference to the audio recording where this evidence is elicited. (Rule 3(3)(g)(3)). The RAD finds that, even if the RPD erred in this regard, not mentioning what happened to others is far different from including facts relating to an alleged significant incident that was directly related to the Appellant. Accordingly, the RAD finds that the RPD did not commit a palpable or overriding error. Risk in Lagos: [42] The RPD made findings that the Appellant would be safe in both Lagos and Port Harcourt. The RAD finds that the RPD did a thorough analysis applying both prongs of the Internal Flight Alternative test as set down by the Federal Court.11 The RPD, in addition to considering the National Documentation Package (NDP) package with respect to Nigeria in which some fifty percent of Nigerians are Muslims with Christians making up a sizeable minority of 48.2 percent, considered the size and the distances involved in the proposed IFA's. The Appellant argues that he would not be safe in Lagos, but makes no comments with respect to Port Harcourt which is in the south of Nigeria, but quite a bit east of Lagos. He further relies on "new" evidence with respect to Lagos, which could reasonably have been available at the RPD hearing, and which I have found not to be admissible. The RAD finds that, in the absence of any submission with respect to Port Harcourt as a viable IFA, there is no dispute. However, in the alternative, the RAD finds that the RPD properly considered all the evidence before it, before coming to its conclusion that the Appellant would be safe and it would be reasonable for him to live in Lagos as well as Port Harcourt. Accordingly, there is no palpable or reviewable error. Affidavits, Letter and Photos [43] The RPD found that these documents did not address the credibility concerns of the RPD or the issue of IFA. The Appellant submits that the RPD erred in according little probative value to these documents. With respect to the Affidavits, the RPD considered these documents in conjunction with the credibility concerns and therefore accorded little evidentiary weight. In the RAD's opinion, it was overzealous on the part of the RPD to make this finding on the basis that the deponents were not present to be cross examined on the contents. However, the RAD finds that, even if the RPD accorded little probative value with respect to credibility, they provided no probative value with respect to the IFA finding. With respect to the letter from the Appellant's former employer, in the absence of the date of termination, the RAD finds that the RPD did not err on its assessment of little evidentiary weight. The RAD further finds that the photographs of the Appellant's children did not address either credibility concerns or the issue of IFA. In light of this, there are no palpable or overriding errors. CONCLUSION [44] Firstly, the RAD finds that, for the most part, the credibility findings of the RPD were made on an evidentiary basis, and thus no palpable or overriding errors were found by the RAD. [45] In the alternative, the RPD applied the proper test and found that the Appellant had a viable Internal Flight Alternative to two locations. It properly considered the risk of harm in the proposed IFA's and the reasonableness and reached its conclusion after considering all the evidence relating to the Appellant, in conjunction with the country conditions in Nigeria. [46] Pursuant to ss. 111(1) (a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. (signed) 'Roslyn Ahara' Roslyn Ahara August 20, 2014 Date 1 Raza v. Canada (Citizenship and Immigration) 2007 FCA 385 2 U.S. Dept. of State Report, Nigeria, item 3.6, Response to Information Request NGA103172.E 3 U.S. Dept. of State Report, Nigeria, item 3.8, Response to Information Request NGA103704.E 4 U.S. Dept. of State Report, Nigeria, item 3.8, Response to Information Request NGA103704.E 5 U.S. Dept. Of State Report, Nigeria, item 3.19, Response to Information Request NGA104617.E 6 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 7 Ibid. 8 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 CF 702; Eng v. Canada (Citizenship and Immigration) - 2014 FC 711 - 2014-07-17 9 Housen v Nikoaisen, 2002 CSC 33, (2002) 2 RCS 235 10 Danailov (Danailoff), Vasco (Vassil)Valdimior v. M.E.I. (F.C.T.C. no.T-273-92), Reed, October 1993, at 2 11 Rasaratnam v. Canada (Minister of employment and Immigration (1994) 1 F.C. 706 (C.A.); Ranganathan, Rohini v. M.C.I. (F.C.A. no A-348-99)Letourneau, Sexton, Malone,December 21, 2000 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03429