TB9-11332

RAD File / Dossier de la SAR : TB9-11332 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 August 23, 2019 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Rasaq Ayanlola 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] XXXX XXXX XXXX (Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated March 27, 2019, rejecting her claim for refugee protection on the basis that she has an Internal Flight Alternative (IFA) in Port Harcourt. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that she is a Convention1 refugee or a person in need of protection. In the alternative, the Appellant requests the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. The Appellant has submitted new evidence and has not requested an oral hearing. Based on the RAD's independent review, the RAD is referring back to RPD for redetermination for assessment of her sur place claim. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA),2 the RAD accepts the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel. IDENTITY [3] The Appellant's identity as a citizen of is established by a copy of her Nigerian passport in evidence. BACKGROUND [4] The Appellant, a former Nigerian XXXX XXXX, fears a return to Nigeria because she believes her life to be in danger. Her problems in Nigeria began in XXXX 2017 when she was XXXX XXXX XXXX XXXX XXXX XXXX in which the business owner XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The XXXX did not appear for his interrogation and he was later apprehended. Shortly after, the Appellant started receiving anonymous threat messages warning her to drop this case, but she continued her XXXX XXXX. XXXX XXXX XXXX she discovered that the XXXX was the only son of an XXXX XXXX XXXX XXXX XXXX. She believed the XXXX was using his connections to pressure her to bury the case. On XXXX XXXX, 2017 the Appellant was attacked by several men and warned that failure to drop the case would result in her death. She was hospitalized for XXXX days. She reported the attack to her XXXX who contacted the XXXX XXXX and he denied any involvement in the attack. The Appellant's Nigerian home was ransacked on XXXX XXXX, 2017 and a death threat message left for her. She reported to the police but did not trust they would protect her from a XXXX XXXX. The Appellant then fled to the Republic of Benin but received a threatening call there too informing that her location was known. She returned to a friend's home in Nigeria and was informed that her own home had been broken into and her mother and the children were going away to stay at the mother's home. The Appellant then fled for the United States (US) on visitor visa on XXXX XXXX, 2017. She was staying with her cousin in New York when she encountered a XXXX XXXX XXXX from Nigeria. Worried that he would relay her location to others upon his return to Nigeria, and having learned through a church elder that the current US administration does not welcome refugees, the Appellant became afraid. A church member advised her to seek asylum in Canada which she did in October 2017. [5] Since the rejection of her claim, the Appellant has become aware that she is being sought by the Nigerian police, her XXXX XXXX, due to her XXXX XXXX, and is now fearful of a return to Nigeria due to the fact that she was have to face the XXXX XXXX XXXX. RPD DECISION [6] The RPD found that the Appellant's fears were not well founded given she had experienced no personal contact with the XXXX XXXX she feared, that there was insufficient evidence that the worker or people working for him held power or influence, and given that the Appellant was no longer XXXX XXXX XXXX XXXX and had ceased XXXX XXXX XXXX XXXX the assailants no longer possessed an interest to pursue her in Nigeria. In addition to finding that the Appellant's fears were not well founded, the RPD also found that a viable IFA existed for the Appellant in Port Harcourt. The RPD found that there was insufficient evidence to establish that she would be discovered by any agents of persecution or harm should she locate to the IFA of Port Harcourt. In assessing the reasonableness of the IFA the RPD observed that the Appellant was resourceful, had been promoted several times within police force, completed a care worker course in Canada, had travelled abroad, speaks two languages and there was no evidence that she could not access mental health treatment in the IFA. GROUNDS OF APPEAL [7] It is submitted that there are new charges being laid against the Appellant by her former employer, the XXXX XXXX, which qualify her for a sur place claim. It is noted that the Appellant did not raise this issue at the hearing as she was unaware that she was being sought by police due to her failure to XXXX XXXX from the XXXX XXXX XXXX. She now fears that she will be subjected to the XXXX XXXX process upon her return to Nigeria. New evidence is submitted to support her sur place claim. [8] The Appellant submits that it is an error to import credibility findings made at the RPD to sur place allegations. [9] The Appellant does not rebut the findings of the RPD that the Appellant's claim was not well founded or that an IFA existed in her case. ROLE OF THE RAD [10] When reviewing the RPD decision, the RAD is required to independently assess all the evidence and determine whether the RPD erred in relation to each alleged error of law, fact or mixed fact and law. For this assessment, the standard of correctness as per the Federal Court of Appeal decision in Huruglica3 is applied. The RAD may defer to the RPD in the exceptional situation that the RPD had a meaningful advantage in the circumstances, and reasons will be provided in that situation. The RAD finds that the RPD was not in an advantageous position regarding the assessment of the Appellants' evidence, and the RAD was able to review and understand the Appellants' testimony through listening to the entire oral hearing as well as a review of the documentary evidence. ADMISSIBILITY OF NEW EVIDENCE ON APPEAL [11] The Appellant presents the following new evidence in support of her sur place claim: 1) Letter to Mr. XXXX XXXX from legal practitioner XXXX XXXX of XXXX XXXX XXXX dated April 5, 2019 ; 2) Letter from XXXX XXXX XXXX which is not dated; and 3) Several pages of what presents as text message communications between unidentified parties with marked dates from February 25 to May 9, 2019, with what appears to be a telephone number at the top of each page - "2348033595994". [12] Subsection 110(4) of the IRPA provides that an 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. In Singh4 the Federal Court of Appeal dictates a narrow interpretation of subsection 110(4): the conditions set out therein must be met and there is no room for discretion on the part of the RAD. If the subsection 110(4) threshold is met, then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.5 [13] It is incumbent on the Appellant to provide a statement outlining clearly how the documents meet the requirements of subsection 110(4) of the IRPA. The Appellant's memorandum outlines that the Appellant was not aware at the time of her RPD hearing on February 19, 2019 that she was being sought by the Nigerian police, XXXX XXXX XXXX, due to her XXXX XXXX.6 [14] However, the Appellant states that she became aware on XXXX XXXX, 2019 that her father had been arrested at a police check point on the road and informed that the Appellant was wanted for XXXX XXXX for XXXX XXXX XXXX and failure to XXXX XXXX properties in her possession.7 [15] The rejection of the Appellant's claim by the RPD is dated March 27, 2019. The Appellant is submitting new evidence which she indicates was not available at the time of her rejection as she was not aware of events which had and were occurring in Nigeria related to her previous employment. [16] Given that the new evidence is either dated or refers to events which occurred after the rejection of her claim and on its face, presents as relevant to the sur place issue, the RAD will accept this new evidence. Although there are some concerns with the credibility of this new evidence, the requirements of subsection 110(6) of IRPA for an oral hearing are not met, because the new evidence in itself may does not warrant accepting or rejecting the claim. Therefore, it will require a more thorough assessment by the RPD in the context of a review of the entire evidentiary record that was before the RPD. [17] In this case, the RAD finds that this new evidence is insufficient on its own to make a determination regarding the merits of the Appellant's sur place claim for reasons which are detailed to follow. [18] Further, the RAD has found that the Appeal is successful and will be referred back to the RPD for purposes of assessing her sur place claim. ANALYSIS [19] The RAD has listened to the oral hearing before the RPD and has considered all of the documentation in the RPD record and the Appellant's Record in order to conduct an independent assessment of the Appellant's claim in light of her arguments on appeal. [20] The Appellant submits that if she returns back to Nigeria, she would be subjected to the XXXX XXXX XXXX which could punish her due to her XXXX XXXX XXXX XXXX XXXX XXXX and her failure to XXXX XXXX XXXX XXXX which appears to be missing from where the Appellant believed she had put them. [21] At the RPD hearing, few questions were asked of the Appellant regarding her XXXX XXXX, the XXXX XXXX XXXX XXXX, what actions she took in relation to her leaving her XXXX XXXX, and what consequences, if any, might flow to her due to her leaving Nigeria without XXXX XXXX XXXX XXXX XXXX. [22] Given that the Appellant did not raise a sur place claim at her hearing, it is not surprising that the RPD asked few questions of the Appellant which would be relevant to a sur place claim. However, the RPD did ask the Appellant about her position held in the XXXX XXXX to which the Appellant testified to moving up the ranks from XXXX XXXX XXXX, which was established and accepted by the RPD. She was also questioned by the RPD regarding information she outlined in her US Visa application about her description of her employment duties to which she testified to have been in the XXXX XXXX for two years. [23] The Appellant's counsel also asked few questions of the Appellant in areas which would be relevant to her sur place claim. She was asked by her counsel if she sent a XXXX XXXX letter to her employer to which the Appellant replied: "I didn't want them to know where I am". [24] Her counsel then asked a follow up question: "So you left, without resigning?", to which the Appellant replied: "I left". [25] However, no further evidence was adduced on the issue of her resignation with the XXXX XXXX XXXX at her hearing or the consequences that may flow from it. [26] Further, the RAD finds that the Appellant's new evidence related to her sur place claim needs to be assessed in the context of a further examination of the evidence presented before the RPD. For example, the RAD observes that the Appellant submitted an Affidavit from XXXX XXXX XXXX, dated January 4, 2018, whom she testified at her hearing to being one of her "family lawyers" who attested to as follows: That I personally visited the Police Division on four different occasions in order to procure the said document8 but all effort to no avail. That during my last visit to the said Police Division in XXXX XXXX XXXX on the XXXX XXXX XXXX, 2017 I was privileged to meet with one of their superior officers in person of XXXX XXXX, who informed me that the documents so requested is a confidential document meant for Nigeria Police Command only and same can never be released to any individual and corporate body.9 [27] The Appellant has submitted in new evidence a letter dated April 5, 2019 addressed to the Appellant's father from legal practitioner XXXX XXXX of XXXX XXXX. The RAD observes that legal practitioner XXXX XXXX is the same legal practitioner who submitted the Affidavit to the RRD quoted above. The April 5, 2019 letter from XXXX XXXX outlines as follows: We act as solicitors to your daughter Ms. XXXX XXXX, in respect of her matter with the XXXX XXXX XXXX, wherein our service was retained by your humble self. You will recall that on the XXXX XXXX XXXX XXXX 2019, you retained my service in respect of an alleged desertion matter by the XXXX XXXX XXXX concerning your daughter Ms. XXXX XXXX a 26 years XXXX XXXX. I regret to inform you that my intervention in this matter has been unproductive as the XXXX XXXX XXXX XXXX XXXX XXXX and which has nothing to do with civilians. You daughter's presence is required before anything can be achieved forthwith. [28] In the RAD's view, this new evidence from legal practitioner XXXX XXXX needs to be assessed in the context of other evidence presented before the RPD. The concern here is that if the Appellant's lawyer had been in contact with the XXXX XXXX XXXX in the manner and on as many occasions as described in her January 4, 2018 Affidavit, that the matter of the Appellant's XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the consequences which might would flow from it, would have been shared with the lawyer and forwarded to the Appellant. The Appellant testified at her hearing to regular if not daily contact with her lawyer. The Appellant left Nigeria for the United States on XXXX XXXX, 2017 and the RAD finds, on a balance of probabilities, that her employer would have become aware of her XXXX shortly thereafter. This is an issue, however, which requires further clarification and questioning by the RPD. [29] A review of the Appellant's testimony at her hearing also reveals a number of credibility related concerns, some of which were clearly raised by the RPD throughout the hearing, although the RPD does not make specific credibility findings in its decision. For example, the Appellant is challenged by the RPD to explain why her allegations that the Chief called her directly were not outlined in her Basis of Claim (BOC)10 Form. The Appellant was also asked to explain why there were no names of her perpetrators in the documentary evidence she had filed with the RPD. The Appellant also testified that the case she had been involved in and which directly led to her being harmed in Nigeria is not closed but it is considered to be "kept in view" which means that it is not closed. However, as noted by the RPD, her lawyer did not state this fact in her Affidavit submitted for purposes of supporting the Appellant's claim. When the Appellant's counsel asked the Appellant if her lawyer would be willing to provide another Affidavit to confirm that information, the Appellant replied "yes". The RPD member, however, stated that she was not prepared to accept post-hearing submissions. [30] Further, the RAD observes that the RPD also raised an issue with the Appellant's submitted documentation from the Nigerian police, noting that instead of "crime diary extract", the two police reports contained the same prominent spelling mistake, namely "crime dairy extract".11 The RPD, however, did not make a specific finding regarding the authenticity of this documentation in light of the same spelling mistake on two police reports which were completed on different dates 12 [31] In view of the above, there is evidence which calls into question that overall credibility of the Appellant and this evidence needs to be re-assessed by the RPD. [32] Overall, for the reasons outlined above, the RAD is unable to effectively to make a determination on the Appellant's sur place claims based on the record and the evidence available without hearing all the evidence that was presented to the RPD, as such, must refer the matter back to a differently constituted panel of the RPD. [33] It is clear that the RPD was not in a position to question the Appellant about the credibility of her assertions relating to police persecution and harm due to desertion from the Nigerian police force as the issue had not been raised before the RPD. [34] Given the RAD's finding that there were sufficient grounds to raise concerns about the Appellant's credibility at her hearing, the RAD is not in a position to accept as true the evidence she has submitted in support of her sur place claim. Although RAD may hold a hearing under subsection 110(6) of IRPA to assess credibility issues, these are usually narrow in scope and may only assess credibility issues raised by the new evidence, and not all the evidence that was before the RPD. [35] The RAD believes that a rehearing is required to do a credibility assessment of the evidence that was before the RPD in association with the new evidence in order that the genuineness of her sur place claim may be assessed. As such, the RAD is not in a position to substitute the RPD's decision and find that the Appellant is a refugee or person in need of protection. CONCLUSION [36] The RAD is not in a position to find that the Appellant has established her sur place claim based on the record before it. And having reviewed the whole record, including the audio recording, the RAD finds that it has remaining questions related to the core aspects of the sur place claim and there are still credibility concerns. [37] The RAD finds it has insufficient evidence to make a finding as to the merits of her sur place claim and insufficient evidence before it to substitute a positive finding. [38] The RAD finds that it is unable to confirm, or set aside and substitute its own decision. [39] Accordingly, pursuant to paragraph 111(1)(c) of the IRPA, the RAD allows the appeal and refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "Kim Polowek" Kim Polowek August 23, 2019 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 Immigration and Refugee Protection Act, S.C. 2001, c.27, paragraph 111(1)(c). 3 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 4 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96 (CanLII). 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 (CanLII). 6 Exhibit P-2, Appellant's Record, Appellant's Written Statement, page 11, at para 8. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum at page 16. 8 Exhibit RPD-1, RPD Record, Affidavit of XXXX XXXX XXXX, said document referring to XXXX XXXX XXXX relating to the criminal case which gave rise to her refugee claim, page 233, at para. 17. 9 Exhibit RPD-1, RPD Record, Affidavit of XXXX XXXX XXXX, page 233, at para. 18. 10 CD audio hearing at approx. 29 minutes. 11 Exhibit RPD-1, RPD record at page 157 and page 161. 12 Exhibit RPD-1, RPD record at page 157 and page 161. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-11332 RAD.25.02 (April 04, 2019) Disponible en français 12 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français