TB7-08968

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 / Dossier de la SAR : TB7-08968 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 Date(s) of hearing November 29, 2017 Date(s) de l'audience Appeal heard at Toronto, ON Appel entendu à Date of decision January 12, 2018 Date de la décision Panel Laura Brittain Tribunal Counsel for the person(s) who is(are) the subject of the appeal Ngozi Akunna Oti Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (hereinafter "the Appellant") is a citizen of Nigeria who made a refugee claim because she fears her community's wrath for refusing a traditional religious role as chief priestess of the river goddess. She appeals the Refugee Protection Division's (RPD) rejection of her refugee claim. The Appellant requests the Refugee Appeal Division (RAD) admit new evidence, and that the RAD substitute a positive decision in the claim. DETERMINATION [2] The RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. BACKGROUND [3] The following allegations are contained in the Appellant's Basis of Claim form (BOC) as well as in her oral testimony.1 The Appellant is a forty-five year old woman from Nigeria, who worked as a Procurement and Quality Assurance Director in Lagos, Nigeria before she came to Canada in June 2016. From a young age, the Appellant was chosen to become the next Ezenwanyi, the chief priestess of the river goddess in her home community in eastern Nigeria. She converted to Christianity, however, while in university and no longer wished to follow her traditional religion. She was afraid when the former priestess got sick, because she did not wish to take over the role upon her death. The Appellant came to Canada for a wedding, but in November 2016 she was informed that the former priestess had died, and the community was threatening that she must return and fill the void. The Appellant fears that she will be forced to return or will be hurt should she refuse. [4] The RPD rejected the Appellant's claim, finding that she was not a credible witness nor was her claim objectively well-founded. ADMISSIBILITY OF NEW EVIDENCE [5] The Appellant tendered new evidence in support of her appeal. Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of IRPA, namely that it arose after, was not reasonably available, or could not reasonably have been expected to have presented at the time the claim was rejected. If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new as per Singh.2 [6] The Appellant presented two pieces of new evidence: a newspaper article, and an affidavit from her cousin accompanied by his identification, itinerary of his trip to Nigeria, and photographs of his wedding.3 All of these documents relate to events that occurred after the RPD rendered its decision, and the RAD therefore finds them to meet the criteria of subsection 110(4). [7] While the RAD had credibility concerns with regard to the new evidence that were explored at an oral hearing, the evidence was sufficiently credible, relevant, and new for the threshold of admissibility. These documents were admitted. AN ORAL HEARING WAS CONVENED [8] The RAD may hold an oral hearing where new evidence has been admitted that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central, and is potentially determinative. [9] The RAD found, in this case, that the newspaper article and affidavit from the Appellant's cousin raised questions concerning the source and provenance of the documents and their relation to the objective well-foundedness of the claim The RAD found that these concerns could not be fairly resolved without giving the Appellant an opportunity to comment. Given that these were central issues on appeal, the RAD did find the issues were possibly determinative. [10] Therefore, the RAD convened a hearing for November 29, 2017, on the following issues: a. The contents, provenance, and source of the newspaper article. The Appellant was requested to provide an original copy of the article and the complete newspaper in which it was published. b. The events described in the affidavit of XXXX XXXX, and their relation to credibility, objective well-foundedness of the claim, and on the availability of an internal flight alternative in Port Harcourt, Lagos, or Abuja.4 [11] At the hearing, the RAD indicated that it would not be considering the issue of internal flight alternative. The Appellant's testimony and counsel's submissions at the RAD hearing are assessed below. ISSUES ON APPEAL [12] The Appellant argues that the RPD misapprehended evidence and made an unreasonable assessment of credibility. The RAD finds that credibility is the determinative issue. ROLE OF THE RAD [13] Counsel has argued that the standard of review applicable on judicial review applies at RAD. The RAD notes that the standard is significantly different. The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.5 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, attracts a standard of review of reasonableness.6 Unless specifically stated below, the RAD has applied a correctness standard. ANALYSIS [14] The Appellant has made various arguments about the RPD's credibility findings, some of which the RAD finds meritorious. [15] For example, the RPD erred in placing no weight on supporting documents in large part because they were filed one day before the hearing. Under the circumstances, this timing was insufficient basis to undermine the documents' probative value.7 The RAD also agrees that the RPD erred in finding that the Appellant's BOC was vague and did not mention specific names - the BOC narrative, while certain names or dates were omitted, was four pages of single-spaced text.8 The omissions were more properly characterized, in the particular circumstances of this case, as elaborative detail. The RAD agrees with the Appellant that the RPD erred in faulting her for a lack of knowledge of certain rituals, in light of the fact that the rituals were secret and the Appellant was a child when they took place.9 Finally, the RAD agrees that the RPD erred in failing to consider the Appellant's testimony that cultural norms accounted for why she might call her father's cousin her "aunt."10 [16] However, the RPD's errors are not fatal to its conclusion. Credibility is the determinative issue on appeal. For the reasons that follow, the RAD finds that in light of the Appellant's evidence and testimony on appeal, the RPD did not err in its ultimate conclusion: the Appellant is not a credible witness. The Appellant presented a fraudulent newspaper on appeal [17] The Appellant presented a newspaper article, purportedly about her and the fact that the community is looking for her to become the next Ezenwanyi, on appeal. In the appeal record, she presented the first page of "The Big Truth" newspaper, which had a headline about her, "MAYHEM AS THE NEXT EZE NWANYI DISAPPEARS," and page two of the newspaper, where the article appears.11 The RAD requested that she bring an original to the hearing. [18] At the hearing, the Appellant presented what she alleged to be an original of the newspaper in which the article appeared.12 A comparison of the front pages, however, revealed that the two pages were more dissimilar than alike. In fact, the only things that were the same between page one of the newspaper in the appeal record, and page one of the original presented on appeal, are the masthead of the newspaper, the date it was purportedly published, the "ISSN" number, and the headline about the Appellant. [19] By contrast, all other articles advertised on the front page are different between the two, as are the pictures that accompany them. The copy in the record indicates it is "Vol. 1 No. 82," while the original presented on appeal reads "Vol. 1 No. 98." The copy in the record says "See pg2" in italics in reference to the article about the Appellant, while the original only says "pg 2," non-italicized. Some of the other articles on the front page of the copy which state that they are found on page two along with the article about the Appellant actually appear on page two along with it. By contrast none of the articles on the front page of the original that say they are on page two appear there, except the article about the Appellant. In fact, though a purportedly complete newspaper was presented, the vast majority of articles noted on the front page, with page references directing readers inside the newspaper, do not appear on the stated pages - nor in the newspaper anywhere at all. [20] While the copy of page 2 of the newspaper, with the article about the Appellant, in the record is the same as that in the original, the quality and clarity of the printing is much clearer in what is purportedly a copy than in the original. Indeed, the quality of the original overall is suspect - it looks patchy or photocopied, pages 5-8 are printed on paper that is different to the touch than the rest of the paper, and the ink is visibly a different colour (almost sepia toned) than the rest of the paper. [21] The Appellant was asked about these differences. She offered various explanations. To some questions she indicated that she did not know, because she did not work at the newspaper. Asked specifically how the copy in the record could be a copy of the original presented, given the sheer amount of differences between the two, she stated that she did not know because she had not published it. The RAD does not find this a reasonable explanation. The Appellant presented what she alleged to be an original, and could not explain why it differed significantly from its copy. [22] The RAD asked why the "copy" was clearer than the "original", particularly when both second pages are compared. The Appellant stated that she could read both, which the RAD took to indicate she asserted there was no difference, and that perhaps it had to do with the fact that the newspaper, a small company, had to use "plate" printing. The RAD finds this explanation unresponsive to the question - this answer does not explain how a copy would be in sharper, clearer quality than the original it purports to copy. [23] In response to counsel's questions about the errors in referencing articles on the first page of the original to the rest of the paper, the Appellant testified that she had seen this lack of quality in other newspapers in Nigeria. Given the major discrepancies between the original and the copy, the RAD does not find this explanation accounts for the discrepancy. The newspaper boasts a significant staff,13 and the RAD does not find it plausible that a newspaper would publish a front page advertising stories not included at all in the publication. [24] Moreover, the RAD asked why the website advertised in the newspaper's masthead did not exist, nor did a google search for the name of the newspaper provide any results or indication that The Big Truth is indeed a newspaper in Nigeria, referencing print outs of these facts provided at the hearing.14 The Appellant testified that this was a small and young newspaper, and did not have the resources to maintain a website. The RAD noted the fairly large staff listed in the original newspaper, and asked why a newspaper with a staff of this size would advertise a website that did not exist. The Appellant stated that she did not know, and later speculated that the staff was perhaps smaller than listed. The RAD does not find this to be a reasonable explanation. In light of the stark differences between the copy and the original, and the Appellant's speculative testimony, the RAD draws a further negative inference from its inability to independently verify the existence of such a newspaper. [25] Asked why some parts of the paper appeared to be printed in different coloured ink, on different paper, the Appellant stated that a friend had asked the newspaper the same thing and the newspaper company had said it was the same quality and could be a problem with the printing. The RAD does not find this reasonable. Given the amount of other problems with the newspaper, the RAD does not find it to be more likely than not that the newspaper experienced some kind of printing problem part way through printing one issue that resulted in completely different paper and ink for only a portion of the pages. [26] Asked why the Appellant's own name was misspelled twice, two different ways, out of a total three mentions in the article about her, the Appellant testified that it could be a typing mistake because the newspaper uses a manual typewriter. The RAD asked how this was so, since there were different fonts and font sizes in the publication, which are not available on a manual typewriter. The Appellant testified that she had only been guessing because she does not work there. The RAD did not find this testimony credible. The Appellant made assertions in an attempt to explain, and then when confronted with further concerns recanted her testimony. [27] In terms of the provenance of the newspaper, the Appellant testified that her brother had sent her a scanned copy of the article via email in May 2017. Later, her brother had asked his friend who lives in the region in which this newspaper is circulated to obtain an original and send it to the Appellant. She testified that she could not provide a copy of the email from her brother to establish these facts because she had lost her phone, which caused her to lose her email password. She had not made attempts to recover the password beyond guessing at what it might be. The RAD found this explanation convoluted, and draws an adverse inference from the Appellant's failure to make reasonable efforts to corroborate her allegations. [28] For the above reasons, the RAD finds that the copy and the original are fraudulent, on a balance of probabilities. The RAD did not find the Appellant's testimony in response to concerns about the discrepancies to be credible, and draws a significant adverse inference against her credibility. The Appellant testified that she did not look at the original, and therefore was not aware of the discrepancies until the day of the hearing. The RAD does not find this to reduce the impact upon her credibility - the Appellant is responsible for the evidence she has tendered. Moreover, the RAD finds that the Appellant's brother, who is alleged to have facilitated receipt of these documents, is also implicated in the provision of false documents and draws an adverse inference against his credibility as well. [29] The newspaper article purported to establish the allegations central to the Appellant's claim. Having found that the newspaper was fraudulent, the RAD similarly draws a significant negative inference relating to the central allegations before it. The RAD has other credibility concerns [30] Having drawn a significant adverse inference, as above, the RAD considered the rest of the evidence and noted further credibility problems. [31] The RAD finds that some of the RPD's credibility findings are correct, despite the errors noted above. For example, the RPD found that the Appellant's inconsistent testimony about her date of baptism was incongruous with her testimony that it was a very important event in her life15 - indeed, it was the reason for her rejection of her traditional role. The Appellant has not challenged this finding. The Appellant first said that she was baptized on XXXX XXXX, 1996, which she remembered because it was a turning point in her life. When asked why her baptismal certificate was dated XXXX XXXX XXXX 1996, she stated that she sincerely did not know, perhaps this was to do with the issuance process, because she remembered the exact date of a milestone in her life.16 Later, in response to her counsel's question about the discrepancy, the Appellant offered a completely different explanation: "like I mentioned, that will be a slip of the tongue, XXXX XXXX should be the right date" and that she has been juggling a lot of things.17 The Appellant's attempt to recast her earlier testimony, which had been completely different and also adamant about knowing the date, further undermines her credibility in light of the other evidence in this case. [32] The Appellant tendered an affidavit from her brother and from her pastor at the Victorious Army Church. The Appellant argues that the RPD erred in impugning these documents both for their late submission before the hearing, and also because of the prevalence of fraudulent affidavits in Nigeria.18 The timing of this evidence was not a factor in the RAD's analysis. [33] The RAD agrees that the existence of fraudulent documents in a country, alone, is insufficient to discount a document. However, the RAD has found that in this particular case the Appellant has demonstrated a willingness to provide fraudulent documents. The affidavits are both purportedly sworn at the Ikeja High Court in Lagos which, as the RPD noted, is specifically reported to be a particular source of fraudulent affidavits in Nigeria.19 [34] Moreover, the Appellant testified that it was her brother XXXX who sent her the copy of the newspaper article in the record, and her brother who called a friend who facilitated sending what was presented as the original. As above, the RAD found this document to be fraudulent, and thus XXXX credibility too is seriously undermined for his participation in the provision of false documents. Additionally, the Appellant testified at the RPD that XXXX had not converted to Christianity, testimony which became evasive when confronted with his declaration that he was Christian in his affidavit.20 The Appellant has not challenged the RPD's negative inference from this contradiction, and the RAD does not find it to be in error given the importance of religion in this case. For these reasons, XXXX affidavit is given very little weight and does not outweigh the negative credibility findings in this case. [35] With respect to the affidavit of Pastor XXXX, he attests to his knowledge of the Appellant's situation and problems she has had as a result.21 The chief priestess XXXX is said, in the Appellant's BOC, to worship the river goddess "Anya nwa gadi,"22 also spelled various ways throughout the record. The RAD asked why Pastor XXXX indicated this goddess was called "Anya agadi Nwanyi." The RAD accepts the Appellant's testimony at the hearing that some of the differences in spellings in her evidence may be accounted for by phonetic or dialect differences. The RAD does not, however, find that dialect accounts for the degree of difference between the titles of the goddess in question, since the Appellant indicated that culture varies throughout Nigeria and her facts related to her specific community. For all of these reasons, Pastor XXXX affidavit is insufficient to outweigh the serious credibility concerns in this case. The remaining evidence is insufficient to outweigh credibility concerns [36] The RAD has considered the remaining evidence, but, weighing the totality of the evidence, finds it insufficient to outweigh its negative credibility findings on a balance of probabilities. Though the RAD found some errors in the RPD's assessment of the documentary evidence, the RAD weighed it in light of the new evidence on appeal. [37] Counsel placed significant emphasis, in her oral submissions at the hearing, on the affidavit of XXXX XXXX, the Appellant's cousin who is also a Canadian citizen.23 Mr. XXXX attests that he travelled to Nigeria in April 2017 and witnessed some of the threats being made against the Appellant and against her family because she is absent. The panel accepts, on the basis of the pictures and travel arrangements provided, that Mr. XXXX travelled to Nigeria for his wedding as stated. However, as counsel emphasized at the hearing, he attests that the community has promised to declare the Appellant wanted in a newspaper - an article which the RAD has found to be fraudulent. Given this connection to the tainted evidence, the Appellant and her family's willingness to provide false documents, and the totality of credibility concerns in this case, Mr. XXXX affidavit is given little weight and is insufficient to outweigh the RAD's negative credibility findings. [38] The RAD notes the Appellant's staff identity card,24 travel arrangements to Canada,25 degree in Business Administration from the University in Lagos,26 medical note for hypertension,27 and envelope showing that the Appellant received documents from Nigeria. None of these documents is probative in terms of whether or not the Appellant's allegations of risk are true. [39] While the Appellant did provide pictures of the former chief priestess, her burial, and the shrine to the river goddess, these do not establish any risk to the Appellant in relation to the existence of this traditional religion in Nigeria.28 Moreover, as noted by the RPD and unchallenged by the Appellant, these photographs are undated, further reducing their probative value.29 The death certificate for XXXX XXXX, while no original was presented, only establishes the death of a person by this name.30 It does not establish any risk to the Appellant nor does it, when viewed with all of the evidence before me, outweigh the credibility problems as above. [40] Finally, the RAD notes that the Appellant's allegations that she will face violence for refusing the chief priestess role are not supported by the preponderance of the documentary evidence, which mentions spiritual consequences, social pressure or ostracism at worst.31 For all of these reasons, the RAD finds that the Appellant has failed to establish her allegations on a balance of probabilities. CONCLUSION [41] For the above reasons, the RAD finds that the RPD did not err in rejecting the Appellant's claim. The RAD finds that the Appellant was not a credible witness, and her allegations run contrary to the objective documentary evidence. The RAD prefers the objective documentary evidence, and therefore finds that the Appellant has not established her allegations on a balance of probabilities. Therefore, the RAD finds that she has not established that she faces a serious risk of persecution as per section 96, or that she faces harm, on a balance of probabilities, as envisioned by section 97 of the IRPA. Therefore, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) "Laura Brittain" Laura Brittain January 12, 2018 Date 1 Exhibit RPD-1, RPD's Record, Basis of Claim Form (BOC), at pp. 12-22. 2 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 3 Exhibit P-2, Appellant's Record, new evidence tendered, at pp. 21-28. 4 Exhibit RAD-2, List of issues for oral hearing. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 6 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 7 Exhibit P-2, Appellant's Record, RPD reasons, p. 9, at para 18. 8 Exhibit P-2, Appellant's Record, RPD reasons, at p. 7 and Exhibit RPD-1, RPD's Record, BOC, at pp. 13-16. 9 Exhibit P-2, Appellant's Record, RPD reasons, at p. 8. 10 Ibid. 11 Exhibit P-2, Appellant's Record, at pp. 27-28. 12 Exhibit RAD-3, photocopy of original newspaper tendered at hearing. 13 Exhibit P-3, Original newspaper, page 4. 14 Exhibit RAD-1, Google search + website for The Big Truth Newspaper. 15 Exhibit P-2, Appellant's Record, RPD reasons, at p. 9. 16 Exhibit RPD-1, RPD's Record, Baptismal Certificate, at p. 156 and Recording of Hearing, at 1:25-1:30. 17 Exhibit RPD-1, RPD's Record, Recording of Hearing, at 2:48-2:50. 18 Exhibit P-2, Appellant's Record, RPD reasons, at p. 9 and Memorandum of Argument, at p. 17. 19 Exhibit P-2, Appellant's Record, RPD Reasons, at p. 9 and Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (30 November 2016), at item 9.2, Immigration and Refugee Board of Canada (IRB), RIR NGA104978.E, 4 November 2014, at p. 14. 20 Exhibit RPD-1, RPD's Record, Recording of the Hearing, at 1:15-1:20 and Exhibit P-2, Appellant's Record, RPD Reasons, at p. 9. 21 Exhibit RPD-1, RPD's Record, at p. 159. 22 Exhibit RPD-1, RPD's Record, BOC narrative, at p. 13. 23 Exhibit P-2, Appellant's Record, at pp. 21-26. 24 Exhibit RPD-1, RPD's Record, at p. 142. 25 Ibid., at p. 143. 26 Ibid., at p. 155. 27 Ibid., at p. 157. 28 Ibid., at pp. 144-150. 29 Exhibit P-2, Appellant's Record, RPD reasons, at p. 7. 30 Exhibit RPD-1, RPD's Record, at p. 158. 31 Exhibit RPD-1, RPD's Record at p. 153 and NDP for Nigeria (30 November 2016), at items 12.10, IRB, RIR NGA104602.E, 5 November 2013 and 12.11, IRB, RIR NGA1034I5.E, 6 July 2010. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (September 11, 2014) Disponible en français RAD File / Dossier de la SAR : TB7-08968