TC0-08548

RAD File / Dossier de la SAR : TC0-08548 TC0-08549 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 8, 2021 Date de la décision Panel Karen Wallace Tribunal Counsel for the persons who are the subject of the appeal Annie N. O'Dell Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant) and her son, XXXX XXXX XXXX (the Associate Appellant) are citizens of Nigeria. They fear persecution or harm from the Appellant's husband, who is also the father of the Associate Appellant, because he has allegedly been violent on multiple occasions and has threatened to kill them. [2] This is the Appellants' second appeal to the Refugee Appeal Division (RAD). They previously appealed the Refugee Protection Division's (RPD) initial rejection of the claims in 2018. The RAD granted their first appeal and returned the claims to the RPD for a re-determination. [3] Upon re-determination by a different panel, the RPD again rejected the Appellants' claims. They determined that the Appellant and her allegations were not credible based on omissions and inconsistencies in her evidence and her failure to claim refugee protection in the United States (US). [4] The Appellants are appealing the RPD decision. They argue that the RPD erred in its credibility analysis by making unreasonable conclusions about omissions in the Basis of Claim and the Appellants' failure to claim in the US; focusing on microscopic or peripheral matters; and improperly assessing the supporting documents. The Appellants also argue that there was a breach of procedural fairness. [5] No new evidence has been submitted in this appeal. An oral hearing is not requested. [6] The determinative issue in this appeal is whether the RPD erred in its credibility analysis. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees, nor persons in need of protection. ANALYSIS [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I have conducted my own independent analysis of the evidence. This included listening to the recording of the RPD hearing and reviewing all the documents submitted. There was no denial of procedural fairness [9] The Appellant argues that the RPD Member failed to ask her a single substantive question about the domestic violence she endured, which is the central aspect of claim; and specifically instructed her not to provide any details of the domestic violence. The Appellant also argues that the RPD failed to give the Appellant notice that they did not believe that the domestic violence had occurred. She had no opportunity to respond to the RPD's credibility concern. Therefore, there was a violation of procedural fairness. I disagree. [10] A review of the hearing recording establishes that the RPD Member asked the Appellant about the domestic violence. The Appellant described the reason she left her home in December 2013 as "an incident". The RPD Member then asked the Appellant to tell her about that incident. [11] The Appellant described the incident and then went on to give extensive testimony about spiritual messages she had been receiving around that time and her belief that her mother-in-law is a witch and placed a harmful curse on her. The Appellant was asked an open-ended question about the incident that led her to leave her home and had the opportunity to provide the description of her choice. [12] The RPD Member also asked the Appellant if there were any other occasions where she left her husband before the December 2013 incident and the Appellant described a time that they had a fight, and she went to stay at her aunt's house. [13] The RPD Member did tell the Appellant she did not have to go into the details of the abuse. However, in context, this appears to be in accordance with the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guideline)2 and in recognition of the fact that testifying about the details of the abuse suffered can be very difficult. [14] The Appellant was represented and questioned by counsel at the RPD hearing. If the Appellant or her counsel felt that the RPD was missing important details about the domestic violence, they had a full opportunity to provide those details when counsel questioned the Appellant. [15] The Appellant was made aware of the issues in the claim. The RPD identified credibility, the Appellant's subjective fear and the failure to claim protection in the US as issues at the beginning of the RPD hearing. Throughout the hearing the RPD Member made the Appellant aware of specific credibility concerns, such as omissions or inconsistencies in the evidence and she responded to them. The Appellant's counsel provided submissions to address these issues and concerns at the conclusion of the hearing. [16] The basis of the Appellants' claims is domestic violence. A finding that the domestic violence did not occur resolves the claims. Not informing the Appellant that the central allegation of her claim is not accepted is not the same thing as failing to provide the Appellant with an opportunity to address a specific credibility concern such as a contradiction or omission in the evidence. The RPD is not required to give the Appellants notice of their decision about the central allegation in the claim at the hearing. As often occurs at an RPD hearing, the RPD reserved their decision and provided the Appellants with a written decision. There was no denial of procedural fairness. Lack of credibility due to inconsistencies and omissions [17] The presumption that the Appellant's sworn testimony is true is rebutted based on the cumulative effect of inconsistencies and omissions in her evidence about central aspects of the claim. Omissions in the Basis of Claim [18] The Appellant's initial Basis of Claim narrative was prepared in February 2018. She provided an amended narrative about two years later in January 2020 just prior to the second RPD hearing. The amended narrative provides details about the Appellant's husband and explains why she believes he will be able to locate her anywhere in Nigeria. The narrative also sets out other reasons why an internal flight alternative in Nigeria would not be reasonable. [19] The Appellant argues that the RPD erred in making a negative credibility inference based on minor omissions in the initial narrative and based on the timing of the amended narrative. [20] With regards to the timing of the amended narrative, I recognize the RPD's concern that the amendment was provided over two years after the initial claim and after the first unsuccessful RPD hearing. However, the Appellants retained new counsel for the second RPD hearing. I am satisfied that the amended narrative coincides with the preparation for the second hearing with new counsel. The contents of the amended narrative suggest it was provided in anticipation of internal flight alternative being a potential issue at the second hearing. I make no negative credibility inference based on the timing of the amendment. [21] The Appellant states that it is an error to make a negative credibility inference based on omissions when a claimant is permitted to amend their Basis of Claim narrative and is also permitted, through their testimony at the hearing, to add further details to what is already in the narrative. I agree that the narrative should not be viewed as an exhaustive account of all the details of the Appellant's claim and that her testimony can add additional details. [22] However, the Appellant's testimony was not simply adding further details to what was already in her initial Basis of Claim narrative. There was no mention of her husband's membership in a violent cult that has influence and connections throughout Nigeria, or his attempts to locate her through her friend even though these events took place before the initial Basis of Claim was completed. The Appellant argues that the omissions relate to peripheral matters. I disagree. The omissions relate directly to the reasons the Appellant fears returning to Nigeria since they help to establish her husband's interest in and ability to locate her anywhere in Nigeria. [23] There is also no mention in the Basis of Claim narrative about the spiritual issues, the curse, and the spiritual cleansing the Appellant testified about extensively at the RPD hearing. This omission will be discussed in further detail below. [24] I agree with the Appellant that each omission, on its own, is insufficient to rebut the presumption of truthfulness. However, it is the cumulative effect of the omissions, together with the other issues noted in this decision, that lead me to conclude, on a balance of probabilities, that the allegations are not credible. The Appellant's testimony was, at times, problematic [25] On more than one occasion, the Appellant's testimony was hesitant, evasive, confusing, and evolving particularly when the RPD Member raised concerns about inconsistencies or omissions in the evidence. [26] For example, the Appellant's testimony was hesitant and evolving when the RPD Member asked the Appellant why the spiritual issues and spiritual cleansing she testified about extensively were not mentioned in her Basis of Claim. [27] The Appellant's Basis of Claim describes frequent and long-term physical, sexual, and emotional abuse from her husband. She states that the final straw for her was when her husband began to beat their son.3 [28] The Appellant testified that her husband tried to rape and strangle her one night in December 2013. She managed to run out of the house. She had nothing but the nightgown she was wearing. She left the house alone. A stranger paid for her taxi to another city where she went for a spiritual cleansing because she believed she was cursed. She stayed at a spiritual house, which is like a church, where she fasted for two weeks completely secluded.4 [29] The RPD Member then asked the Appellant if she left her son at home when she left. She hesitated with her answer and eventually said yes, but her sister later brought her son to her at the spiritual house she was staying at. When she was asked when her sister brought her son, she again hesitated then said "...almost the next day, I can't remember, yeah I think like two days after..."5 [30] The Appellant testified with significant detail about her two-week spiritual cleansing. She was in seclusion. She had no money, no clothing, no food. She fasted. There was no mention of her son being with her in these difficult conditions. When she was asked about her son, her answers about his whereabouts were hesitant and evolving. [31] The action of leaving her very young son (he was about 18 months at the time) at home with her husband, while she underwent a spiritual cleansing is very inconsistent with the Appellant's claim that her husband was beating her son and threatening his life. The way the Appellant answered the questions about her son appeared to be in recognition of this inconsistency and an attempt to repair it. [32] Since the Appellant did not mention her son when she was describing her two-week spiritual cleansing in detail and provided evolving answers about her son's whereabouts, I make a negative credibility inference about the alleged circumstances that caused the Appellant to leave her home and the allegation that the Appellant's husband was beating their son. Omissions and inconsistent evidence about the Appellant's time in hiding [33] The Appellant's Basis of Claim states that she fled her home in December 2013 and went to stay with a friend in Port Harcourt. She remained in hiding there until she obtained her student visa and went to the US. There is no mention of a two week stay for a spiritual cleansing in another city first. Nor is there any mention of her trip to Ghana during that time. [34] When the Appellant was asked why she did not mention the curse she believes was put on her by her mother-in-law and her two-week spiritual cleansing, she said that she did not think it was necessary to mention these issues since her main fear is her husband. Yet, at the RPD hearing the Appellant provided far more testimony and detail about these issues than she did about her husband's alleged abuse. If the issues were not important enough to include in the Basis of Claim, it is difficult to understand why she focused on them so much during her testimony. [35] The Appellant also did not disclose her trip to Ghana while she was allegedly in hiding at her friend's house in Port Harcourt. The RPD Member asked her specifically if she left Nigeria while she stayed with her friend. The Appellant said she did not.6 She clearly stated she never left her friend's place during the months she stayed there except to go to Lagos to get her US visa.7 The Member then pointed out that the Appellant's passport shows a trip to Ghana during that time. The Appellant said she forgot about that trip. She said she went there to write an English test she needed to get her student visa for the US. [36] The trip to Ghana is tied to an inconsistency regarding how the Appellant was able to get her passport to travel to the US. Since the Appellant said she left her home in the middle of the night with only her nightgown, the RPD asked about how she was able to retrieve her passport. She said she had a spiritual premonition that she should get all her documents in order and she gave all her documents to her sister for safekeeping before she left her home.8 When she applied for her US visa, her sister came to meet her in Lagos and gave her the passport.9 [37] Later during the RPD hearing, when evidence of a trip to Ghana was discovered in her passport, the Appellant changed her answer and gave hesitant, evolving testimony about how she now remembers that her sister met her at the airport when she was going to Ghana and gave her the passport at that time.10 [38] The Appellant was very clear in her testimony that she received her passport from her sister on the same day she was fingerprinted and granted her US visa at the embassy. Yet, the stamp in the Appellant's passport shows the trip to Ghana took place before that time. The Appellant's evidence about how she got her passport is not a mere discrepancy with dates. It is a completely different version of where and why her sister gave her the passport. [39] The inconsistent evidence about how the Appellant retrieved her passport leads to a negative credibility inference about the truthfulness of the Appellant's explanation about how she retrieved her passport and the allegation that it was ever left with her sister. This then leads to a negative credibility inference about the allegation that the Appellant left her home in the night with nothing but her nightgown. Failure to Claim in the United States [40] The Appellants left Nigeria and went to the US in XXXX 2014. They spent four years in the US before coming to Canada in XXXX 2018. They did not make a claim for refugee protection in the US. [41] I agree with the Appellants that a failure to claim protection in the US is not determinative of their claims. However, it is a relevant factor to consider when assessing subjective fear and the credibility of the allegations of harm. [42] The Appellant was granted a student visa to enter the US in XXXX 2014 and she attended a university in California for a few months. The Appellant attempted to transfer to a university in Texas within a few months of her arrival. However, she did not provide the documentation required to complete her transfer. She also did not re-new her enrollment in California and her status at the university was terminated due to non-compliance. Despite no longer being a student, the Appellant took no steps to claim refugee protection or investigate other options to maintain her status in the US. Although she was informed that she could not re-instate her student status without returning to Nigeria to re-apply, she did not look into other options to remain in the US. [43] The Appellant explained that she was not aware that she could claim refugee status since she thought that option was only available to people from war-torn countries. Also, she did not have the money to hire a lawyer. More than three years after her arrival in the US, in XXXX 2017,11 she attended an information session about immigration and refugees at her church and she found out she had to make a claim within one year of arriving in the US. By the time she found out she could make a claim, it was too late. [44] The Appellant is well educated. She obtained a university degree in Nigeria. She was pursuing a graduate degree in the US. She can read, write, and speak English. She managed to apply to a university in the US, obtain a student visa, and move overseas. In this context, I do not accept the Appellant's explanation as reasonable. Once she was no longer a student and her status was in jeopardy, it would be expected that she would do some research of her own or make enquires about staying in the US. Her actions are not consistent with those of a person who fears for her life. Her actions indicate a lack of subjective fear and a lack of credibility about her allegations of risk in Nigeria. [45] The failure to claim in the US, on its own, is not determinative of the claims. However, when considered together with the other credibility concerns, it leads me to conclude that the allegations of harm or risk are not credible. The supporting documents do not establish the claim [46] The Appellant provided affidavits from her sister, her foster father, and a friend to corroborate her allegation of domestic violence. [47] The Appellant's sister provided an affidavit12 that states that the Appellant's husband came to her home in December 2019 to ask where the Appellant and her son were. The sister attempted to record the conversation on her phone. The husband struggled with her over the phone and in the process, broke her phone and twisted her arms. She reported the incident to the police. A copy of the statement she gave to the police and photographs of bruises were provided with the affidavit. [48] The sister's affidavit and her report to the police does not establish or corroborate the Appellant's allegations of domestic abuse at the hands of her husband. It makes no mention of any abuse the Appellant or her son endured. It merely recounts the sister's own problem with the husband. [49] A brief affidavit from the Appellant's foster father13 was presented at the first RPD hearing. It states that the Appellant told him about her abusive marriage, but he encouraged her to try and make the marriage work. After the Appellant went to the US, he became aware that the husband harassed the family and threatened to kill the Appellant and her son. No further detail is provided about how he became aware, when this occurred, what family members were harassed, or how they were harassed. [50] A brief affidavit was provided at the first RPD hearing from the friend14 the Appellant stayed with in Port Harcourt while she was in hiding. The friend states that she knows the Appellant was in an abusive marriage with her husband because she and the Appellant are very close and talk about everything. The friend also states that the Appellant came to stay with her after she left her husband. [51] The affidavits from the foster father and the friend do not provide any firsthand knowledge of the alleged abuse. They base their statements on what the Appellant told them. [52] Affidavits from friends and family, who are not neutral third parties, are insufficient to establish the domestic violence allegations, on a balance of probabilities, or to overcome the credibility concerns with the Appellant's own evidence. CONCLUSION [53] The Associate Appellant is a minor child, his claim is based on his mother's claim. Since her allegation of domestic violence by her husband, to herself and her son, is found to be not credible and her appeal is dismissed, the appeal of the Associate Appellant is also dismissed. [54] The Appellants have not established a serious possibility of persecution if they return to Nigeria. Nor have they established, on a balance of probabilities, that there is a likelihood of a risk to life, of torture, or cruel and unusual treatment or punishment. [55] 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) Karen Wallace Karen Wallace March 8, 2021 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act. 3 Exhibit RPD-1, RPD Record, Exhibit 2, p. 37. 4 RPD Hearing Recording (February 5, 2020) at 0:39:00 to 0:42:00. 5 RPD Hearing Recording (February 5, 2020) at 0:42:00. 6 RPD Hearing Recording (February 5, 2020) at 0:48:30. 7 RPD Hearing Recording (February 5, 2020) at 1:21:20. 8 RPD Hearing Recording (February 5, 2020) at 0:45:20. 9 RPD Hearing Recording (February 5, 2020) at 0:52:50 and 0:53:45. 10 RPD Hearing Recording (February 5, 2020) at 0:55:40 and 0:57:15. 11 Exhibit RPD-1, RPD Record, Exhibit 7, p. 161. 12 Exhibit RPD-1, RPD Record, Exhibit 7, p. 162. 13 Exhibit RPD-1, RPD Record, Exhibit 1, p. 305. 14 Exhibit RPD-1, RPD Record, Exhibit 1, p. 281. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-08548 TC0-08549 RAD.25.02 (January, 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, 2020) Disponible en français