TB8-11688

RAD File / Dossier de la SAR : TB8-11688 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, ON Appel instruit / entendu à Date of decision April 18, 2019 Date de la décision Panel Patricia Broad Tribunal Counsel for the person(s) who is(are) the subject of the appeal Ochiemuan Okojie 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 (Principal Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated April 10, 2018, rejecting her claim for refugee protection. DETERMINATION [2] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant is from Nigeria. She was born on XXXX XXXX 1989. She bases her claim on the following. [4] The Appellant is from XXXX, XXXX, Nigeria. In 2014, her father began to put pressure on the Appellant to marry XXXX XXXX, an influential man in her village. The Appellant refused. Her father beat her. Her father, XXXX XXXX, and some thugs also found her boyfriend and beat him. He kept her in her room. She escaped and saw her boyfriend. She went to XXXX and stayed with her aunt. Her boyfriend also fled because he was accused of kidnapping. However, the Aunt's home in XXXX is was not safe for Appellant, as thugs found the house there. The Appellant stayed in a church while she arranged to leave. She met an agent who helped her go to XXXX, US, where she stayed for about six weeks. Then she came to Canada in XXXX 2014 and claimed protection. [5] The RPD held a hearing in November, 2014. It found that the Appellant lacked credibility and had not established her identity. The Appellant appealed to the RAD. In a decision dated March 11, 2015, the RAD found that the RPD's decision was not correct; it referred the matter back to the RPD. The RPD held another hearing in April, 2018. It accepted that the Appellant had established her identity; but it found that there was insufficient credible evidence regarding her claim and denied it. The Appellant has now appealed to the RAD. ISSUES [6] Is there sufficient credible evidence that the Appellant is a Convention refugee? ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL AND DETERMINATION ON WHETHER TO HOLD AN ORAL HEARING [7] The Appellant has not submitted any new evidence upon appeal and has not requested a hearing. Subsection 110(6) of the Act delineates when the RAD is permitted to hold a hearing. It states that the RAD can hold a hearing when there is new evidence that raises a serious credibility issue. Further, the evidence must be central to the decision. In addition, there is a requirement that the evidence would justify a final decision allowing or rejecting the claim. As there is no new evidence the RAD does not have jurisdiction to hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL [8] I have conducted an independent assessment of the evidence and arguments1. This review includes reviewing transcripts of the hearings. The recording is in evidence. I note that the Appellant has been represented by the same lawyer throughout both hearings and upon appeal to the RAD and is aware of the testimony at both hearings. Deference To Credibility Assessment [9] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the Appellant's testimony where the RPD would have been in a better position than the RAD to judge it. The RPD states that the Appellant is not credible as there are inconsistencies in the evidence. For the most part, these comments relate to the substance of the testimony and not to any behavioural or any other item that the RPD could observe and the RAD could not. For these reasons, I do not find that the credibility findings are owed deference on the credibility findings relate to the inconsistencies on the evidence. [10] However, there are some RPD comments that could be owed deference in so far that they relate to observations that the RPD was in a better position to assess. In its decision, the RPD notes that it asked the Appellant why she did not apply for protection in the US; the Appellant responded that Canada protects women and the RPD found that her demeanour was that her testimony appeared recited and prepared2. On the same page, the RPD notes that the Appellant did not engage in questioning about staying with the man in XXXX whom she had never met and was referred to by the Agent3 . I have addressed these observations in the decision. Identity Findings [11] The RPD found that the Appellant had established her identity and the findings not in dispute. Having reviewed the record, I see no reason to interfere with this finding. Agent of Persecution and Documentary Evidence [12] The RPD noted that there was a UPS envelope on record from the Appellant's father, XXXX XXXX, dated XXXX XXXX, 2014, that was addressed to the Appellant's lawyer. The Appellant confirmed that the name on the envelope, XXXX XXXX, was her father's name4. She testified that the envelope contained the affidavits from her pastor, aunt, and her school document5. According to the Generic Application form, the Appellant came to Canada on XXXX XXXX, 20146 and the Appellant testified that she came on XXXX XXXX, 20147. [13] When asked about this, the Appellant testified that it was her mother who sent it, and put her husband's name on it. I do not find that this is a reasonable answer as there is no reason why the mother would do so; rather, if the daughter is being persecuted by the husband, the mother would more likely leave his name out of it. Further, when asked about the date on the envelope, the Appellant stated that it was a mistake8. The Appellant argues that the RPD erred by relying on this "error" in the face of evidence that was generally credible and consistent9. The Appellant does not explain what is meant by the term "error". According to the evidence, including the testimony, the "error" referred to by Appellant could be the mother's error in putting the father's name on it. The other error could be the date on the envelope. However, categorizing the flaw in the evidence as an error is not accurate. Is the Appellant stating that UPS made an error in the date? The argument is not clear and a vague statement that it is an error is not enough. What the error was and who made it would be information required to make a finding that it is more likely than not that the name and/or the date on the envelope was an error. Further, that the mother sent an envelope when the father's name is on it is speculative at best. There is no evidence to support this speculation. Rather, given that there is an envelope with the father's name on it10, it is not likely that the mother would have put her husband's name on it. It is not a sufficient explanation to conclude that it is more likely than not that the mother sent the envelope; rather, it is more likely than not that the father, whose name is on the envelope, sent the aunt's and the pastor's affidavit to the Appellant's lawyer in Canada before the Appellant came to Canada. [14] I find that it is more likely than not that the father sent the documents. As the father is one of the agents of persecution, this undermines the entire claim. That an agent of persecution would assist the Appellant in her claim is a central consideration. It raises serious issues. How would the agent of persecution know the address of the lawyer who is helping the Appellant claim refugee status because of his actions? Why would an agent of persecution help and send information that incriminate him, such as his violence and the use of thugs?11 It is evidence that contradicts the likelihood of central elements of the claim. Further, this information, including the affidavit, was sent before the Appellant even came to Canada and while she was in XXXX. Elements of Violence [15] The Appellant alleges that her father beat her when she refused the arranged marriage. Evidence about this event is not consistent. The Appellant testified that she was only slapped by father; Dr. XXXX XXXX in her psychological report of XXXX XXXX, 201812, states that the Appellant told her that her father hit her with wires that left scars. When asked about it, the Appellant testified that he had only slapped her and that there was a mistake with the psychological report. [16] I find that this is a significant error. It is the level of violence that led the Appellant to leave her home town and the threat of future violence that led to her departure from Nigeria. The RPD questioned the Appellant about the incident; some of the questioning regarding the slap was leading. However, the Appellant maintained that her father only slapped her, kept her indoors, and shouted at her13. There was no objection from counsel regarding the questioning. The Appellant testified freely that her father never used the wire when beat her. The RPD found that it was a reason to not give the psychological report weight and a reason to find that the Appellant lacked credibility. However, this reasoning is not clear; the RPD did not make a clear finding. It appears to find that the Appellant is not credible about being beaten as she has changed her account to the psychologist and upon testimony. Consequently, the RPD gave both little weight on the basis that the Appellant is inconsistent and not credible. I too find that, for these reasons, the account of being beaten is inconsistent on an important point and is not credible. Whether she was beaten with a wire that left scars is important as it indicates that the level of violence the Appellant faced in Nigeria. Her father's violence is a central reason that she left Nigeria; the elements of the violence should be consistent. When asked about this, the Appellant stated that maybe the psychologist had made an error14. I do not find that speculation about an error in a report that the Appellant submitted and relied up on is a reasonable answer. In the Appeal Memorandum, the Appellant states that it is a minor error; but she does not say why it is minor. I find that it is significant and central. Further, I do not find that the Chairperson's Guidelines on Women Refugee Claimants fearing Gender-Related Persecution15 address this inconsistency in a manner that would assist the Appellant. [17] These inconsistencies, in and of themselves, in this case are sufficient to find that the entire claim lacks credibility. They are central to the violence that, according to the Appellant, awaits her in Nigeria. However, there are additional concerns. Violence against Boyfriend [18] There is also an inconsistency in the account of the boyfriend's beating. At the hearing the Appellant testified that he was beaten by four men. In her Basis of Claim (BOC), she states that her father, XXXX XXXX, and thugs beat her boyfriend. Again, as the Appellant's father sent the information to assist the Appellant's claim, it is not consistent that he would also participate in beating her boyfriend. Given the flaw in evidence, some corroborating evidence would be of assistance; for this allegation there is none. It is the Appellant's responsibility to show it is more likely than not that this event has occurred; I find that she has not discharged the burden of proof. Time in the USA [19] The RPD made a finding that if the Appellant did not trust her father she would not live with the agent in Maryland; I find that this inference is not correct. When asked about this, the Appellant stated that she did so as the agent had not made any utterances against her16. The RPD's finding about this is unclear; it seems to find that if the Appellant had issues with a patriarchal figure, her father, she would be unlikely to live with a stranger for six weeks. However, this is speculative. I have considered the RPD's comment that the Appellant did not engage in the questioning at the hearing17. It is unclear what this means; but it could be a finding that the Appellant was evasive. Regardless, the RPD should not have made an adverse inference on her credibility on the basis that the Appellant would have issues with males because of her father. It is speculative and it is unclear if the RPD is using specialized knowledge; there is no evidentiary background for this conclusion. I do not place weight on the observation that the Appellant did not engage in questioning as I do not find that it is a reason to find against her account of living with the Agent. [20] However, the Appellant's evidence about where she stayed in XXXX is vague and there is no corroborating evidence to support her. The Appellant stated that she did not know the address in XXXX18. There is not corroborating evidence to assist her evidence; rather the documentary evidence contradicts her account. [21] There is a significant reason to question the Appellant's account of living with an agent in XXXX. At the hearing, the Appellant stated she lived with someone her agent referred her to19; however, in her US Visa application, the Appellant stated that she was staying with her brother who was called XXXX XXXX20. The Appellant has submitted this US Visa application to the RPD as well as to the RAD. I have considered this as part of my credibility analysis and in making independent credibility findings based upon the record before me. As stated by the Federal Court, in so doing I do not find that in this case I have to put them to the Appellant to provide an opportunity to provide submissions as the evidence is already on record21. I note that the Appellant is fully aware of the contents of this document as she submitted it twice; once in the RPD and once at the RAD. This is not extrinsic evidence. Further, as the RPD does not have a duty to confront applicants with concerns regarding their own documents22, the same reasoning should apply to the RAD. Given that it is not extrinsic evidence, there is no obligation to confront the Appellant with discrepancies in the evidence. The address of where she is staying in the Visa application is the same as the address she gives for her brother in XXXX, Maryland. She has represented that she has a brother in Maryland that she stayed with. This contradicts her account of staying with a stranger for six weeks in Maryland. The evidence about the Appellant's stay in XXXX is vague and contradictory; it weighs against her credibility. There are other considerations with this Visa Application which I will address later in the decision. Documentary Evidence Supporting the Appellant [22] The Appellant provided a number of affidavits in support of her claim. Her mother, her aunt, a pastor, and a school administrator, all provided affidavits. I have considered them. Affidavit from the Appellant's Mother [23] The Appellant has provided an affidavit from her mother dated XXXX XXXX, 2018. In it, she states that her husband beat her badly and on another occasion thugs beat her. I note that the Appellant originally applied for Convention refugee status in 2014 and only submitted an affidavit from her mother in 2018; almost four years later. This affidavit is not consistent with evidence on record. In the US visa Application, the Appellant states that her father is called XXXX XXXX, born XXXX XXXX, 1938 and her mother is called XXXX XXXX and was born on XXXX XXXX, 1940. Further, the Appellant indicated that her other name was XXXX XXXX, and that she was married to XXXX XXXX who was born on XXXX XXXX, 1979; the Appellant stated that she lived with him in XXXX, Nigeria, where she works as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX23. I note that the mother states that she lives in XXXX, XXXX State; if the Appellant lived in XXXX with her husband in XXXX 2014, it is difficult to understand how her father was able to try to force her to marry the XXXX, to beat her, and to imprison her. The relationship with the boyfriend also seems less likely. More importantly, the Appellant has indicated that she is married in the US Visa application; the date of the visa is XXXX XXXX, 2014 and the Appellant alleges that the persecution occurred in 2014. The Appellant testified in November, 2014 that an agent arranged for the visa24. The inconsistencies with the Affidavit and the Visa alone would not be sufficient to find that the content of the affidavit is not credible. But this is an inconsistency in the context of other inconsistencies. [24] The differences in name as well as the differences in the content with the US Visa Application and the Appellant's account of being married weigh against a finding that the affidavit is a credible piece of evidence. Further, as will be discussed, a fraudulent affidavit is easily obtained. It is unclear why the Appellant did not submit this affidavit earlier. In addition, the other affidavits were sent by an agent of persecution. I do not find that this affidavit can be given significant weight. It does not address the flaws in the evidence that weigh against the Appellant. Appellant's Aunt [25] The Appellant's Aunt has provided two affidavits; one from 2014 and one from 2016. Both of these affidavits contain essentially the same information; although the more recent one indicates that the Aunt moved because XXXX XXXX was threatening her in XXXX. I note that the first affidavit was sent by the agent of persecution, the Appellant's father. Given it is highly unlikely that someone who is trying force his daughter to marry a XXXX and is violent with her and other people about it would send information that would support the daughter's refugee claim, I give the content of this affidavit, and the same content in the second affidavit, minimal weight. I also note that there is a different font on the second page for the declaration on the more recent affidavit25. Further, although it was sworn in the XXXX XXXX XXXX XXXX, there is no seal on the affidavit which is contrary to documentary evidence on record about the form of an affidavit26. The affidavit is not sufficient to address the flaws with the evidence that weigh against the Appellant's testimony. Pastor in XXXX [26] Again, the Pastor in XXXX provided two affidavits; one from 2014 and one from 2018. Again, given the first one was sent by the agent of persecution and they both state essentially the same facts I do not give them weight. The second affidavit states that XXXX XXXX and some thugs visited again several times after the Appellant left to look for her. But while the thugs said the police would not help the pastor, it is unclear why the Pastor would not at least try to contact police if he has been threatened for almost four years by the same people. In addition, why the XXXX would still be looking for the Appellant is not clear as it has been almost four years. I give this evidence little weight. School Administrative Head [27] The affidavit about an error in a birthdate in a school document does not have any probative value about the question of persecution in Nigeria. Cumulative effect of Affidavits [28] I do not find that these affidavits address the concerns with the Appellant's credibility. I have commented on some of the concerns. This is in the context of documentary evidence that fraudulent affidavits are easily available27. Even court officials procure them openly28. They are "rampantly forged" and are done by proxy in Lagos29. When I consider the concerns with the affidavits in the context of this evidence, I am unable to give them weight. They do not provide sufficient evidence to address the flaws in the Appellant's evidence. Psychological Report [29] I have considered Dr. XXXX psychological report of XXXX XXXX, 201830. It shows that the psychologist reviewed the BOC and met with the Appellant who confirmed its contents. Further there is a diagnosis of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX. It appears that she had abused prescription medicine in the past. While the psychologist has an opinion of harm if returned to Nigeria, I do not find that it is persuasive as the psychologist is not aware of some of the issues that are discussed in this decision. I give the report little weight. Summary [30] There are some elements of the RPD decision that I may not agree with. I do not agree that the fact that flight tickets were destroyed is as important as it was presented in the decision, especially as the flight was from 2014. The RPD considered the Appellant's failure to apply in the US. In its decision, the RPD notes that when asking why the Appellant did not apply for protection in the US the Appellant repeated that Canada protects women and her demeanour appeared recited and prepared.31 This may be the case, and it may be an observation that the RPD was in a better position to observe and is owed deference. However, I do not find that the Appellant's time in the US without applying for protection is a concern in this appeal; it does not influence my decision. [31] However, the RAD has an obligation to assess the evidence and do an independent evaluation of the record. There are transcripts from two hearings before me; the Appellant has had years of opportunity to provide evidence to support her claim. Even so, the cumulative effect of the flaws in the evidence are such that there is insufficient evidence that the Appellant is a Convention refugee in accordance with section 96 of the Act and/or a person in need of protection in accordance with section 97 of the Act. That her father sent documents to her lawyer before she even came to Canada weighs against the credibility of her claim. The inconsistencies such as the level and type of violence, the US Visa application, also weigh against a finding for the Appellant. Even with assessing the cumulative effect of the evidence that supports the Appellant, the cumulative effect of the significant flaws in the evidence leads the conclusion that there is not a mere possibility of persecution in Nigeria and/or that the Appellant is a person in need of protection. DISPOSITION [32] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Patricia Broad" Patricia Broad April 18, 2019 Date 1 Tekle v. Canada (Minister of Citizenship and Immigration) 2017 FC 1040. 2 Exhibit RPD-1, RPD Record, RPD Decision and Reasons, p. 9. 3 Transcript, RPD hearing of April 10, 2018 at p. 19. 4 Transcript, RPD hearing of April 10, 2018 at p. 15. 5 Transcript, RPD hearing of April 10, 2018 at p. 14. 6 Exhibit RPD-1, RPD Record, Exhibit 1, p. 187. 7 Transcript, RPD hearing of April 10, 2018, p. 15. 8 Transcript, RPD hearing of April 10, 2018, p. 15. 9 Exhibit P-2, Appellant's Memorandum, paragraph 8 10 Transcript, RPD hearing of April 10, 2018, p. 15. 11 Exhibit RPD-1, RPD Record, Disclosure, p. 60. 12 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 310-313. 13 Transcript, RPD hearing of April 10, 2018 pp. 12-13. 14 Transcript, RPD hearing of April 10, 2018 p. 13. 15 Immigration and Refugee Board of Canada, Chairperson Guidelines 4:Women Refugee Claimants Fearing Gender Related Persecution, Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 16 Transcript, RPD hearing of April 10, 2018 pp. 19-20. 17 Exhibit RPD-1, RPD Record, RPD Decision and Reasons, p. 9. 18 Transcript, RPD hearing of April 10, 2018 p. 18. 19 Transcript, RPD hearing of April 10, 2018 p. 19. 20 Exhibit P-2, Appellant Record, p. 42; Exhibit RPD-1, RPD Record, p. 297. 21 Akram v. Canada (Citizenship and Immigration), 2018 FC 785. 22 Akanniolu v. Canada (Citizenship and Immigration), 2019 FC 311. 23 Exhibit P-2, Appellant's record pp 40-42; Exhibit RPD-1, RPD Record, Exhibit 5, pp. 295-297. 24 Transcript of RPD hearing for November, 2014 at p. 16. 25 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 306-309. 26 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria (30 November 2017), item 9.2. Immigration and Refugee Board of Canada, (IRB), Response to Information Request (RIR). NGA104978.E, at p. 11. 27 Ibid. 28 Ibid., at p. 13. 29 Ibid., at p. 14. 30 Exhibit RPD-1, RPD Record, Exhibit 5, p. 310-313. 31 Exhibit RPD-1, RPD Record, RPD Decision and Reasons, p. 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11688 RAD.25.02 (September 18, 2018) Disponible en français 14 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 (September 18, 2018) Disponible en français