MC0-02965

RAD File / Dossier de la SAR : MC0-02965 ; MC0-02966 ; MC0-02967 ; MC0-02968 Private Proceeding / Huis clos Amendment - Amendement Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, Qc Appel instruit / entendu à Date of decision February 26, 2021 Date de la décision Panel Me Martine Durocher Tribunal Counsel for the persons who are the subject of the appeal Angelica Pantiru Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre AMENDED REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), along with his wife XXXX XXXX XXXX (Co-Appellant) and his minor children, XXXX XXXX XXXX and XXXX XXXX XXXX (minor Appellants) are of Nigerian nationality and filed an appeal against the decision of the Refuge Protection Division (RPD) dated January 24th, 2020, rejecting their requests for protection. [2] The Appellant alleges having been targeted since XXXX XXXX, 2017 by members of the Ogboni cult since he refused joining them following his nomination by his father. As a result, he fears returning to his country of origin, alleging that he, and members of his family, would face serious harm or death at the hands of those agents of harm. [3] The RPD found that the allegations put forward by the Appellant were not credible. In reaching this conclusion, it took into account: (i) the discrepancy between the Appellant's testimony and the objective evidence regarding the Ogboni cult; (ii) omission in his Basis of Claim (BOC) regarding the purported visit of Ogboni members to his mother; (iii) failure to claim asylum in the USA. [4] On appeal, the Appellants submit that the RPD erred by omitting to consider other information contained in the National Documentation Package (NDP) that were in contradiction with its conclusions. They also argue that the visit at the Appellant's mother was secondary to the main allegations supporting the claim and thus, the RPD erred when it concluded that the minor omission was undermining the Appellant's credibility. They also explain that they did not claim asylum in the USA because they benefited from a legal status. [5] The determinative issue before the Refugee Appeal Division (RAD) remains the one of credibility. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. NEW EVIDENCE The evidence presented by the Appellants is rejected [7] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 [9] Also, for the RAD to admit the Post Appeal Additional Evidence that was submitted after the filing of the Appellants' record, the Appellants must satisfy the requirements of Rule 29(4) of the RAD Rules. In particular, the RAD must consider the document's relevance and probative value, any new evidence the document brings to the appeal, and 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.3 Those criteria are cumulative. [10] On XXXX XXXX, 2021, the RAD sent a letter to the Appellants and their counsel to request submissions regarding a possibility of Internal Flight Alternative (IFA) in the cities of Abuja and Port Harcourt. The Appellants responded on XXXX XXXX, 2021 by sending one affidavit and one letter from: (i) Mr. XXXX XXXX, a childhood friend of the Appellant, who XXXX XXXX in Port Harcourt, alleging having received a phone call on XXXX XXXX, 2019 from an unknown person asking about the whereabouts of the Appellant; (ii) Mr. XXXX XXXX, the former XXXX of the Co-Appellant in Abuja, alleging having received a phone call from the current XXXX of the same XXXX in XXXX 2019, who was asked by unknown men about the whereabouts of the Appellant. The new XXXX reported having received "the beating of his life" because he was unable to provide a positive answer. [11] I note that the RPD decision was issued on January 24, 2020 and the appeal was perfected on March 2, 2020. In violation of Rule 3(3)(g)(iii) of the RAD Rules, the Appellants failed to include any submissions as to why the information contained in those documents was not submitted at the perfection of the appeal or at the time the decision was issued. [12] In the affidavit, Mr. XXXX states that the incident took place on XXXX XXXX XXXX 2019. He alleges that he told the Appellants about this incident when he called them in XXXX 2020 to wish them XXXX XXXX, after having finally obtained their contact information from the Appellant's cousin. It is only after they received the RAD letter, on XXXX XXXX, 2021, that the Appellants asked their friend to draft an affidavit to explain the events. [13] I accept that, at face value, the information contained in this document explains why the Appellants were reasonably unable to provide this information at the time of the perfection of the appeal, as they were unaware of it until XXXX 2020. I also agree that this affidavit provides new evidence regarding the purported ongoing efforts of the agents of harm to try to locate the Appellant, using violent tactics. This evidence is relevant and probative to support the Appellant's allegations that he would face persecution upon his return to Nigeria, as the agents of harm are still interested in locating him to force him to be part of the cult. I therefore find that the criteria of Rule 29(4) of the RAD Rules are met. [14] For the same reasons, I find that the third criterion of Article 110(4) IRPA is met, as it was not reasonably expected under the circumstances for the Appellants to have brought this evidence before the RPD decision. However, I find that the Raza factor of credibility is not respected. [15] I find highly suspicious that the Appellants, after receiving the RAD letter, contacted the deponent on XXXX XXXX, 2021, who then wrote the affidavit, had it sworn in by a magistrate and sent to the Appellants from Port Harcourt to Canada by XXXX XXXX, 2021 that was then submitted to the Board on XXXX XXXX, 2021. I also find that the signature of the deponent does not match the one featured on his alleged ID card. This identity card of Mr. XXXX seems to be from the XXXX XXXX XXXX XXXX which does not include any security feature and does not correspond to one of the identification documents usually used in the procedure to obtain an affidavit.4 [16] As to the content of the affidavit, I note that Mr. XXXX alleges having been scared by the call to such a point that he changed the location of his XXXX. Being a childhood friend of the Appellant, it would have been expected that such a situation would have prompted him to contact one of the Appellant's family members within a reasonable period of time. Also, the kind of violence that is reported is not supported by the objective evidence on the subject. As explained below, and as it was put to the Appellant at the hearing, the objective evidence does not support the contention that the Ogboni cult members would still yield influence today outside the Yoruba-speaking regions, namely in Port Harcourt, or use violence against friends of the purported victim to pressure him to enter the cult. I will therefore not accept this additional evidence as part of the record. [17] Regarding Mr. XXXX letter, I note that the reported incident took place in XXXX 2019 in Abuja. This occurred prior to the RPD hearing, the RPD decision and the perfection of the appeal. Again, the Appellants did not provide submissions as to why they had not been able to submit this evidence at the perfection of the appeal. In his letter, Mr. XXXX explains that he had not been in touch with the Co-Appellant since then, but that he was able to tell her the story when she called him on XXXX XXXX, 2021. [18] Again, I accept that the evidence shows, prima facie, that the Appellants were not aware of the incident prior to the phone call, which makes it reasonable in the circumstances for them not have it included with their appeal memorandum. Also, I believe that the content of the affidavit is, prima facie, relevant and probative as it demonstrates that the agents of harm were still looking for the Appellant long after his departure from Nigeria and ready to use violence to gain information about his whereabouts. Consequently, I believe it meets the requirements set forth in Rule 29(4) of the RAD Rules. [19] For the same reasons, it meets the third criterion of section 110 (4) of IRPA, as since the Appellants could not have been aware of this incident before the phone call, it was reasonable for them not to have brought it forward before the RPD decision. However, as for the affidavit, I believe that this evidence does not meet the credibility requirement of the Raza case. [20] As explained for the first affidavit, I am highly suspicious that within two days, with a six hour time difference between Montreal and Abuja, the Appellants contacted Mr. XXXX on XXXX XXXX XXXX 2021 who wrote the letter and sent it back the next day for the Appellants to submit it to the board on XXXX XXXX, 2021. It also seems quite a coincidence that the Appellants were suddenly in contact with those two individuals during the 2020 XXXX XXXX for the first time since their departure from Nigeria, and that each person reports an incident of violence coming from the two IFA cities, Abuja and Port Harcourt, after the Appellants received the RAD request for further submissions on this issue. I also find the written style of this letter to be very similar to the one of the first affidavit, which prompts me to suspect that they were drafted by the same person. As stated above, the objective evidence does not support the allegation that members of the cult would use violence against an acquaintance of the Appellant in order to pressure him to join the Ogboni society, especially in Abuja, a city outside the Yoruba-speaking region where it is said that the cult does not exert influence anymore. I therefore refuse to enter this additional evidence onto the record for lack of credibility. [21] As no addition evidence was admitted into evidence, I do not have the discretion to hold a hearing as per section 110(6) of IRPA. ROLE OF THE RAD [22] 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 that the RAD may apply a deferential standard in some circumstances.6 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS [23] The RPD found that the Appellant's core allegations were refuted by the objective documentary evidence regarding the timing and the reasons he was recruited into the cult and the information according to which the Ogboni cult is practically non-existent in Nigeria.7 [24] Having reviewed the objective documentation on this issue, I find that the RPD erred by not considering contradictory information to its findings contained in the NDP, as articulated by the Appellants in their memorandum. I consider that it was an error to rely on one source without referring to other objective evidence that support the Appellants' allegations. [25] First, I note that the same Response to Information Request (RIR), in its introduction, quotes an official at the Canadian High Commission in Abuja stating that "very little concrete information or evidence" is available about the Ogboni society, and that it is accessible only to its members or people close to them.8 [26] Also, the same objective document discusses other reliable sources, such as a representative of the International Crisis Group, stating that the Ogboni cult's influence has declined, but that it has not completely disappeared. It has been reported by another professor that the Ogboni is regionally located in Yorubaland, and especially in rural areas.9 The "Office français de la protection des réfugiés et apatrides" acknowledges the divergence of evidence as to how significant the influence of the society remains today, citing the objective documentation emanating from the IRB.10 I note, in particular, an interview conducted by the European Asylum Support Office with David Pratten, an Associate Professor in the Social Anthropology of Africa at Oxford University, reveals that the Ogboni cult is very regionally specific, as it concerns Yoruba-speaking states, but that it is a "real thing".11 [27] Also relevant is the objective evidence stating that "locally-held" beliefs about the cult were strong and local sources were fearful of speaking openly about the Ogboni society, leading to extrapolation and inference based on available information."12 This evidence corroborates the Appellant's testimony to the effect that his knowledge of the cult stems from what "the people on the street say".13 However, it also indicates that his testimony is not rooted on objective evidence, rather on unverified popular beliefs. [28] Consequently, despite the error, I consider that the RPD correctly found that there was an incompatibility between the Appellant's testimony and the objective evidence regarding the reasons why he would be sought to join the cult if he was not the first born of the family and the limited influence of the cult today. [29] First, I note that the Appellant did testify that he first directed the Ogboni members towards his older brother XXXX regarding the planning of his father's burial. He was told by the members that his father had "pencilled" him down to be his successor into the cult. [30] However, the objective evidence, as noted by the RPD, states that "the eldest child has to remain in the house, and he will be initiated - this is normal." I note that a professor of Yoruba studies states that "she had not heard of cases in which a person was forced to take up an inherited position in the Ogboni society after the parent died, though parents who are members may try to convince their children to join."14 This, in my view, corroborates the Appellant's testimony to the effect that his older brother should have been the one targeted by the cult. Questioned on this matter, the Appellant was unable to provide a reasonable explanation to justify the discrepancy between his testimony and the objective evidence on the matter. I note that the Appellant also testified that he is unsure whether his older brother is already a member or not. It is unclear as to why the agents of harm would still be looking for the Appellant to fill his father's vacancy when XXXX, his older brother, could have already done so. I therefore conclude that the RPD correctly found that the Appellant's credibility was undermined in this regard. [31] Regarding the practical non-existence of the Ogboni cult in Nigeria today, the Appellants point at the objective evidence under tab 13.5 of the August 2019 NDP that was dated 2012.15 I note that this information is not part of the current NDP, but the RIR NGA106269 does refer to it. The Appellants did not submit any observation regarding the objective evidence contained in this new NDP, despite the letter dated XXXX XXXX, 2021, requesting them to do so if they had any. [32] Having reviewed the overall objective evidence on the matter, I conclude that the Ogboni society still exists today, but with much less influence and power as before. However, the same RIR reports that according to a Canadian official, "it is assumed" by the sources that the child of a member who refuses to join might encounter harassment from society, even to the point of death.16 I note the cases Nigerian media reported on this issue put forward by the Appellants in their memorandum. However, the Canadian officials from the High Commission in Abuja had no knowledge of credible report of recent cases of people being targeted by the Ogboni in major centres of Western Nigeria and the capital. A sociologist indicated that he did not come across direct mention of violent attacks against individuals who refused to join the group.17 I am more inclined to give weight to objective sources on the matter, such as Canadian officials or academics, then the Nigerian media reports whose original sources are not revealed. Consequently, I conclude that the objective evidence supports the existence of the cult, but to a much-reduced scale than before and with possible influence limited to the Yoruba-speaking regions. I also find that the overall evidence does not support, by balance of probability, the use of violence, outside the Yoruba-speaking regions, by the members of the cult to force a person who inherited a position to join the secret society. Omission to include the Ogboni member's visit and calls to his mother [33] The RPD found that the Appellants failed to establish that Ogboni members had visited his mother on XXXX XXXX, 2017 and XXXX XXXX XXXX 2019 due to the absence of this allegation in the Basis of Claim (BOC). [34] On appeal, the Appellants allege that this information was secondary to the central allegations put forward in the BOC, and therefore the RPD erred in its reasoning. [35] I note that the Appellant's narrative is very succinct and lacks in details, not just concerning the mother, but also with regard to having asked the cult's members to meet with his older brother XXXX, as he was the eldest, or that he moved to Lagos with his family afterwards. Although those information with regard to his mother being harassed by the cult members feature in the Appellant's cousin affidavit, I agree with the RPD that it ought to have been included in his BOC or added in his narrative at the beginning of the hearing, as this allegation is not secondary, but central to his claim that the agents of harm were still looking for him.18 Consequently, I believe that the Appellant's credibility is negatively affected by this omission. [36] Regarding the documentary evidence submitted on this issue, I note that the Appellants submitted a police report from the Nigerian police force in Uromi, Edo State, dated XXXX XXXX, 2019. The RPD refused to give weight to this document.19 The Appellants submit that the authenticity of the police report cannot be doubted because it does not contain any manifest irregularities or that it was not obtained in dubious circumstances. The information of the report was corroborated by other pieces of evidence, as well as the Appellant's testimony, and so that the RPD erred by not giving it weight. [37] I find the reasoning of the RPD for refusing to attach any weight to the police report to be unclear. I understand that the Appellant was not questioned during the hearing regarding possible issues that could indicate that this document is not genuine. However, I note that this document is entitled "To Whom it May Concern", as opposed to "Police Investigation Report" as featured in the sample contained under tab 10.3 of the NDP, which I consider to be a manifest irregularity, contrary to the Appellants' submissions. I note that the content of this report was copied from the Appellant's cousin affidavit almost verbatim. Without making any findings as to the authenticity of this document, I find that the affidavit is the only source of the information of this report, which does not result from a police investigation and therefore does not bear more weight than the affidavit itself. [38] The RPD gave no weight to the cousin's affidavit as it was insufficient to compensate for the Appellant's lack of credibility regarding the allegation that he was visited by members of Ogboni at his family home in XXXX in XXXX 2017, since she was not present during the meeting. [39] The Appellants submit that the RPD erred as the affidavit contains other information than the meeting between the Appellant and members of the Ogboni cult in XXXX 2017, for instance the death of the Appellant's father and that the Appellant is Christian, that are not put into question. It was not reasonable to attribute no weight to the whole document. [40] I note that the affidavit of Mrs. XXXX XXXX XXXX, the cousin of the Appellant, bears the stamp of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the signature of the deponent. However, her identity card does not show a signature as a mean of authentication, and there is no picture attached to the affidavit either.20 As those questions were not put to the witness during the hearing, I will not make a finding as to the authenticity of the document, but I will consider that without those security features, the weight attributed to its content can only be limited. [41] I understand that some of the information of this affidavit is not at issue, for example, the fact that the Appellant is Christian or that his father died, information that are corroborated by other sources. However, for the allegations for which the Appellant was found to be not credible, such as the visit of the Ogboni members to his mother in XXXX 2017 and XXXX 2019, without any further corroboration, I am unable to give credence to the document in that regard. Consequently, the same allegations contained in the police report are not sufficient either to outweigh the credibility issues identified in the Appellant's testimony regarding the purported visits of the cult members to the Appellant's mother. [42] Considering the evidence as a whole, the RPD was correct when it found that the allegations to the effect that his mother was visited by cult members in XXXX 2017 and XXXX 2019 are not established. Failure to claim asylum in the USA [43] The Appellants remained in the USA for almost 6 months before crossing the border to come to Canada and ask for refugee status. The RPD rejected the explanation provided by the Appellant to the effect that he feared to be deported if his claim was rejected and that he failed to inform himself of the possibility of getting the status in the USA. [44] The Appellants argue that they remained in the USA with a valid visa and before the six months of their legal stay expired, they did not fear to be deported then. They also submit that the anti-immigration policies of the Trump administration scared the immigrants off by banning refugees. [45] I do not agree with the finding of the RPD that the Appellants' failure to request asylum in the USA was incompatible with people fearing for their lives in their country of origin. I note that the Appellants were staying legally in the USA at that time and that information was rampant about the changes in the American immigration policies that would impact migrants negatively. I conclude that RPD incorrectly found that the Appellants adopted a behavior incompatible with the one of people fearing returning to their country of origin. However, this finding does not have any bearing on the conclusion as set out below. Corroborative documentary evidence [46] At paragraphs 48-53 of the decision, the RPD decided to attribute no weight or no probative value to the death certificates of the Appellant's parents and the documents supporting his allegation that he and his family are Christians. The RPD reasoned that none of those documents was supporting the allegations that the Appellant was targeted by members of the Ogboni cult or that his mother was visited by them in XXXX 2019. [47] The Appellants submit that the RPD erred when not attributing probative value to the death certificate of the Appellant's mother, since there was no issue raised with regard to its authenticity, and it was corroborated by the police report and affidavit. As for the death certificate of the Appellant's father, they submit that the RPD failed to provide any reasons as to why it was not given weight. Regarding the documents in support of their Christian faith, the Appellants question the reasons why it was given only low probative value as it supports his allegations, in part. [48] I believe that the RPD erred in its using of the different legal terminology, such as weight, probative value, and credibility. In the Magonza case, Judge Grammond draws the distinction between those terms in the context of immigration law that can be useful in the present case: In the immigration context, however, it is preferable to distinguish probative value and weight. Doing so reveals what are credibility concerns. Thus, weight is a function of credibility and probative value or, if one likes to see this in the form of an equation, weight = (credibility) x (probative value). It follows that weight can only be assessed as a function of credibility and probative value. In other words, a decision-maker cannot reach a conclusion regarding weight without having previously assessed credibility or probative value or both. 21 [49] Considering this jurisprudence, I believe that those death certificates are credible, as I do not see any authenticity issues. However, I can only attribute low probative value as their propensity to prove the allegations central to the claim, namely that he will be persecuted by Ogboni cult members if he were to return to Nigeria today, since he was threatened and harassed in the past, is limited to the fact that his parents passed away. The same is true of the documents showing the Appellants' Christian faith: I believe that they are credible and establish the allegation regarding their faith by balance of probabilities, but their probative value is limited as they do not demonstrate how the central allegations of their claim are true. Consequently, the RPD was correct when it attached a low probative value to those documents supporting their Christian faith. Regarding the death certificates, I believe that the RPD misused the term "weight", as it should have read " limited probative value" instead. [50] Consequently, I conclude that the Appellants failed to establish the allegations put forward in support of their claim, namely that the Appellants harassed by members of the Ogboni cult to join them in replacement of his late father, and that, they have the interest and the means to search for him anywhere in Nigeria. I therefore find that the Appellants have failed to establish that there exists a serious possibility of persecutions on a Convention ground or that, on a balance of probabilities, they would be personally subjected to a danger of torture or face a risk to life or cruel and unusual treatment or punishment if they were to return to Nigeria. CONCLUSION [51] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Me Martine Durocher Me Martine Durocher February 26, 2021 Date of amended decision February 4, 2021 Date of original decision MD/dd 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Subrule 29(4) of the RAD Rules. 4 National Documentation Package, Nigeria, 30 November 2020, tab 9.2: Requirements and procedures for the issuance of affidavits; availability of fraudulent affidavits. Immigration and Refugee Board of Canada. 4 November 2014. NGA104978.E. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 6 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 7 The RPD used the following NDP document: National Documentation Package, Nigeria, 30 November 2020, tab 13.13: ?Ogboni society, including structure, rituals, ceremonies, and current status; membership and the consequences of refusing to join or trying to leave; relationship with police and judicial authorities (2017-April 2019). Immigration and Refugee Board of Canada. 20 June 2019. NGA106269.E. 8 National Documentation Package, Nigeria, 30 November 2020, tab 13.13: ?Ogboni society, including structure, rituals, ceremonies, and current status; membership and the consequences of refusing to join or trying to leave; relationship with police and judicial authorities (2017-April 2019). Immigration and Refugee Board of Canada. 20 June 2019. NGA106269.E. 9 Ibid, p. 6. 10 National Documentation Package, Nigeria, 30 November 2020, tab 13.3: ?Sociétés secrètes traditionnelles et confraternités étudiantes au Nigeria. France. Office français de protection des réfugiés et apatrides. 27 February 2015. 11 National Documentation Package, Nigeria, 30 November 2020, tab 1.3: ?EASO COI Meeting Report: Nigeria. European Union. European Asylum Support Office. August 2017, p. 85. 12 National Documentation Package, Nigeria, 30 November 2020, tab 13.13: ?Ogboni society, including structure, rituals, ceremonies, and current status; membership and the consequences of refusing to join or trying to leave; relationship with police and judicial authorities (2017-April 2019). Immigration and Refugee Board of Canada. 20 June 2019. NGA106269.E, p. 1. 13 Transcriptions, p. 34. 14 See note 7. 15 Archive - National Documentation Package, Nigeria, 20 August 2019, tab 13.5: ?Ogboni society, including its history, structure, rituals and ceremonies; information on membership and the consequences of refusing to join. Immigration and Refugee Board of Canada. 14 November 2012. NGA104213.E. 16 See note 7. 17 See note 7. 18 RPD Decision, paras. 41-43. 19 RPD Decision para. 44. 20 National Documentation Package, Nigeria, 30 November 2020, tab 9.2: Requirements and procedures for the issuance of affidavits; availability of fraudulent affidavits. Immigration and Refugee Board of Canada. 4 November 2014. NGA104978.E. 21 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 (CanLII), par. 29. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-02965 ; MC0-02966 ; MC0-02967 ; MC0-02968 RAD.25.02 (January 14, 2020) Disponible en français 2 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 (January 14, 2020) Disponible en français