TB7-23227

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 : TB7-23227 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 August 9, 2018 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject of the appeal Solomon Orjiwuru Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative Sara Kushner Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated October 30, 2017, rejecting her claim for refugee protection. She is asking the Refugee Appeal Division (RAD) to substitute the RPD decision with a positive determination or, in the alternative, to send the matter back to the RPD for re-determination. DETERMINATION [2] 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 paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant alleges that her father will force her into a marriage with an older man. She alleges that her parents are poor and that her uncle supported her financially, as well as her family, for many years. She came to Canada under a student visa in XXXX 2016 and claims that her uncle is the one that paid for all of the expenses associated with studying and the trip. After her uncle passed away a few months later, her mother said that her father plans to marry her off to a wealthy older man by the name of XXXX XXXX to make up for the financial loss due to her uncle's passing. [4] The RPD rejected the claim on October 30, 2017 mainly due to inconsistencies between her study permit application and her refugee claim and issues with certain documents she submitted. [5] The Appellant is also seeking to admit new evidence and has requested an oral hearing. [6] In assessing the credibility of the Appellant, I have taken into account Chairperson's Guideline 3: Child Refugee Claimants and Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. I do note that the Appellant is 18 years old as of the date of this decision and was 17 years old at the time of her hearing. While she is not a young child, I have still considered the impact of age in assessing her credibility. ROLE OF THE RAD [7] The recent Federal Court of Appeal decision in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions made by the first-level administrative tribunal. The RAD will conduct its own analysis of the record to determine whether the RPD erred. With respect to findings of fact and mixed fact and law, the RAD is to review the RPD's decisions applying the correctness standard. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the credibility and weighing of oral testimony heard, which, in particular cases, may require a standard of review of reasonableness modified for the RAD.2 [8] I will apply a standard of correctness throughout this decision unless I specify that a standard of reasonableness is appropriate. NEW EVIDENCE [9] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of the claim, or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. This section establishes a disjunctive test. It is for the Appellant to make full and detailed submissions in the Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appeal. If the factors in subsection 110(4) are not met, the RAD does not have discretion to admit such evidence. [10] If the submitted new evidence meets the requirements of subsection 110(4), the RAD will consider the criteria as set out by the Federal Court of Appeal in Singh.3 The Federal Court of Appeal held that, in addition to the clear language of the statute, the implicit conditions for the admissibility of new evidence include: credibility, relevance and newness. Summary of proposed new evidence [11] The Appellant seeks to admit the following as pieces of new evidence under subsection 110(4) of the IRPA as well as RAD Rule 29 as they were received after this appeal was perfected: a. A letter from the National Population Commission dated March 26, 2018 ("NPC letter"); b. A notarized letter from the Appellant's mother dated March 27, 2018 ("mother's letter"); c. An affidavit from the Appellant's mother dated March 7, 2018 ("mother's affidavit"); and d. A letter from XXXX XXXX College dated April 4, 2018 ("College letter"). [12] For the reasons that follow, I accept and admit and the College letter as new evidence under subsection 110(4). I also find that this letter passes the requirements of Rule 29. [13] I reject and do not admit the mother's affidavit, the NPC letter and the mother's letter as new evidence under subsection 110(4). While they pass the requirements of Rule 29, they are not admissible under subsection 110(4). The College letter is admitted as new evidence [14] The College letter addresses the RPD's finding that the School Testimonial is fraudulent because it indicates six years of study while the Appellant testified and indicated in her immigration forms that she studied there for only four years. As will be discussed below, I find that the Appellant's explanation for this discrepancy was reasonable and that the RPD erred in making this finding. [15] This letter post-dates the RPD hearing. She explained at her hearing that she transferred schools part way through her studies and that the school made the mistake of indicating six years as this is typically the length of studies. This is reflected on her IMM 5669 immigration form and I find that this testimony can reasonably explain the discrepancy. Her explanation was reasonable at the hearing so it is not reasonable to expect her to have presented this evidence at the time of the rejection. This letter is also new as it contradicts a finding of fact made by the RPD. I find that it passes the criteria of subsection 110(4) and the Singh/Raza factors. [16] This letter also post-dates the perfection of this appeal. I find that the Appellant could not have reasonably presented this letter with the Appellant's record as the latter was due less than two months after the claim was rejected. Considering the effort required to get this sort of letter from Nigeria, it is not reasonable to expect the Appellant to have procured it before perfection. I find that this letter passes Rule 29 and is admitted despite being submitted after this appeal was perfected. The NPC letter and the mother's letter are not admitted as new evidence [17] Both the NPC letter and the mother's letter post-date the RPD hearing and the date this appeal was perfected. I find that they are accepted under Rule 29 as they were not available at perfection but they do not meet the criteria of subsection 110(4) of the IRPA for the reasons that follow. [18] They address the RPD finding that the XXXX XXXX, 2017 birth certificate is fraudulent but I find that these are letters that the Appellant should reasonably have been expected to present at the time of rejection. The birth certificate dated XXXX XXXX, 2017 had an error on the face of the document and the Appellant should have known that this would be an issue at the RPD hearing. If she could have gotten evidence to show that this birth certificate was not fraudulent, she should have done it before her claim at the RPD was rejected. These pieces of evidence do not meet the criteria of subsection 110(4) of the IRPA and they are not admitted as new evidence. The mother's affidavit is not admitted as new evidence [19] The mother's affidavit, while it post-dates the rejection of the claim and the perfection of the appeal, repeats the same allegations and events as described in the Appellant's file and the previous affidavit dated July 12, 2017 submitted by the Appellant's mother. While it meets the requirements of Rule 29 as it could not have been provided before perfection, it does not meet the requirements of subsection 110(4) of the IRPA as the events and allegations described pre-date the rejection of the claim. It is therefore not admitted as new evidence. REQUEST FOR AN ORAL HEARING [20] The Appellant requests an oral hearing. According to the case law, the onus is on the RAD to determine whether the requirements for an oral hearing set out in subsection 110(6) of the IRPA have been met.4 One of the determining factors is that evidence presented on appeal must have been found to be admissible. [21] The new evidence I have admitted responds to credibility findings by the RPD surrounding the school testimonial. As will be discussed below, this finding was in error and I have relied in part on this new piece of evidence in coming to this conclusion. As I have accepted this evidence and what it seeks to establish, there is no need for an oral hearing. [22] Additionally, this new evidence is not determinative or central to the claim as it only relates to the Appellant's schooling in Nigeria and does not speak to the persecution she is alleging. As the requirements of subsection 110(6) have not been met, I reject the Appellant's request for an oral hearing. ANALYSIS Summary [23] I agree with the RPD that there were significant discrepancies between her study permit application and her refugee claim which were not reasonably explained. These discrepancies relate to the motivation of the Appellant's father to marry her off, a central allegation of this claim, and they are sufficient to rebut the presumption of truthfulness that generally applies to a claimant's testimony. Together with the lack of detail and corroborative evidence beyond affidavits from family and friends surrounding the Appellant's central allegation that her father wants to force her into a marriage, I find that the Appellant has failed to establish that she would face a serious possibility of persecution if she were to return to Nigeria. This appeal is therefore rejected. Discrepancies surrounding who financially supports the Appellant [24] The Appellant declared in her refugee claim that her uncle was supporting her financially until he got sick and passed away while in her study permit application, all of the documents point to her father supporting her financially. [25] In support of her study permit application, her father submitted a sworn affidavit attesting to the fact that he would be personally responsible for the Appellant's "feeding, accommodation and tuition fees throughout her entire stay in Canada".5 There is another letter in which the Appellant's father states that he will pay all expenses of her stay with an 11-page stamped printout of his account transactions from December 2015 to April 2016 with a closing balance of 27,219,084 naira.6 I also note that despite stating in her refugee claim that she lives with her uncle, the address indicated in her study permit is the same address as her parents and siblings.7 There is in fact absolutely no mention of the Appellant's uncle in her study permit application despite her allegation that she had lived with him and that he had supported her financially for years. [26] When confronted with this discrepancy at the hearing, the Appellant said that she has no knowledge of her study permit application as it was her uncle and an agent who prepared everything. The RPD found it implausible that her uncle and the agent would take the risks of falsifying a large number of documents to obtain a student visa when they could have just provided authentic documents showing that the Appellant's uncle supports her financially. The RPD found that her father supports her financially on a balance of probabilities, removing the main motivation for her father to marry her off, and made a negative inference as to the Appellant's credibility. The Appellant continues to argue, now at the RAD, that she cannot be held responsible for the contents of an application that she played no part in preparing. [27] This is a major discrepancy that impacts the very reason why the Appellant is being targeted for a forced marriage. I agree with the RPD that even if the Appellant's argument is accepted, it is implausible that her uncle and the agent would go through all the trouble to falsify so many documents when they had no need to. If her uncle really was the one supporting her, he could have just provided this proof in support of her study permit application. I also make a negative inference as to the credibility of the Appellant due to this discrepancy. [28] I find this discrepancy to be significant and material enough to rebut the presumption of truth that generally applies to a claimant's oral testimony. [29] While the RPD found other discrepancies between the Appellant's refugee claim and study permit, I find this discrepancy to be the most material and serious one. I do not see the need to examine the other ones to reach a determination. Birth Certificate [30] The RPD found that the Appellant's birth certificate dated XXXX XXXX, 2017 is fraudulent and that this significantly undermines her credibility. I have not had the opportunity to examine the original of this birth certificate and for this reason, I find that the RPD had a meaningful advantage over me in assessing its authenticity. While I am able to ascertain the error identified by the RPD, I am unable to weigh the other factors that might have influenced the RPD's treatment of this birth certificate such as the paper size and the quality of the paper. I will therefore assess this finding with the standard of RAD reasonableness. [31] The RPD examined multiple documents originating from the National Population Commission, compared them and found an error in the pre-printed section of this birth certificate that was not present in the other documents submitted. This conclusion is reasonable and well explained by the RPD and I will not disturb it. The Appellant's credibility is further impacted by the submission of this fraudulent document. School testimonial [32] The RPD found that the School Testimonial was fraudulent because it stated that the Appellant studied at XXXX XXXX's for six years while she stated in her BOC and her testimony that she was there for four years. I have accepted the letter from XXXX XXXX's into evidence and find the explanation, which lines up with the Appellant's explanation at the hearing, to be reasonable. The Appellant transferred to the school and it is entirely possible that the school used a prepopulated form with the standard six years when printing out the School Testimonial. I find that the RPD erred in finding this School Testimonial to be fraudulent. I accept that the Appellant went to this school for the period she described in her testimony but point out that it does not assist in establishing her risk upon return to Nigeria. Affidavits [33] The Appellant has provided affidavits from her mother and a friend in Canada which speak of her uncle's financial support and the father's intention to force the Appellant into a marriage. The RPD found that her mother's affidavit was not genuinely issued because it contained a stamp from a Notary Public and another one from a Commissioner for Oaths but there was only one signature on the document apart from the affiant's signature. The Appellant argues that there is no explicit statement that affidavits with two stamps are invalid and that this should not lead to the document being considered non-genuine. I also note, however, that there is no clear indication that affidavits with two stamps exist or are valid in Nigeria. [34] I have not seen the original affidavit as the RPD has. I have not had a chance to review the size of the paper, the appearance of the original stamps or the appearance of the original signatures, all of which might have influenced the RPD's finding. As the RPD had a meaningful advantage, I will apply a standard of RAD reasonableness. The RPD did a complete analysis of the document and compared it to other affidavits on file, all of which only had one stamp. It was reasonable for the RPD to draw the conclusion it did. I find that the RPD did not err in finding this affidavit to not be genuine. [35] The affidavit from XXXX XXXX was given little weight by the RPD because he states that he heard that the Appellant was going to be forced to marry from his uncle while the Appellant stated in her testimony that she told him directly. This is not necessarily a contradiction. XXXX could have heard this information both from his uncle and from the Appellant directly. I find that the RPD erred by giving little weight to this affidavit for this reason. I do note, however, that this affidavit is insufficient to overcome the other credibility issues in this file. Psychological report [36] The psychological report on file confirms that the Appellant is exhibiting symptoms consistent with XXXX XXXX and XXXX XXXX. It also notes that XXXX XXXX can lead to difficulties in providing clear and consistent testimony. I acknowledge these issues but find that it fails to explain such a coordinated and specific inconsistency surrounding who supports the Appellant financially and why the Appellant submitted fraudulent documents. This report is outweighed by the credibility concerns discussed above. No other evidence establishing allegations [37] There are no other pieces of evidence that can establish the Appellant's allegations of potentially being forced into a marriage. The other pieces of evidence, such as the certificate of death of her uncle, do not assist in establishing that the Appellant risks being a victim of forced marriage. I have already found that due to the discrepancies surrounding the Appellant's study permit application, the Appellant lacks credibility in general. I therefore find that I cannot rely on the Appellant's oral testimony. There is insufficient credible evidence to establish the allegation that she risks being a victim of forced marriage and I find that she has not established her allegations on a balance of probabilities. [38] As her allegations have not been established, I find that she would not face a serious possibility of persecution if she were to return to Nigeria. The Appellant has also failed to establish that she meets the higher threshold of being recognized as a person in need of protection pursuant to section 97 of the IRPA on a balance of probabilities. CONCLUSION [39] 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 paragraph 111(1)(a) of the IRPA. (signed) "Sasha Kiran Cragg-Gore" Sasha Kiran Cragg-Gore August 9, 2018 Date 1 M.C.I. v. Huruglica. Bujar (F.C.A., no.A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Ibid., at paras. 69-74 and X (Re), 2017 CanLII 33034 (CA IRB). 3 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018, 2018 FC 147, at para. 18. 5 Exhibit RPD-1, RPD's Record, at p. 177. 6 Exhibit RPD-1, RPD's Record, at pp. 178-189. 7 Exhibit RPD-1, RPD's Record, at pp. 170-171. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23227 RAD.25.02 (July 05, 2018) Disponible en français 12 RAD.25.02 (July 05, 2018) Disponible en français