MC0-04698

RAD File / Dossier de la SAR : MC0-04698 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 30, 2021 Date de la décision Panel Darren Thorne Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX XXXX, is a citizen of Lagos, Nigeria who has appealed a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. For the reasons set out below, the appeal is dismissed. [2] Mr. XXXX alleges that he fears persecution in Nigeria, as he refused to allow his daughters to be circumcised. He states that on December 20, 2017, after his first daughter was born, two of his distant relatives and another person originally from the village his family hailed from came to his home hoping to perform the procedure on the baby. He and his wife refused, and these parties stated that they would return. He also notes that about a month before this, one of those relatives had also attempted to speak to him about the benefits of female genital mutilation (FGM), a conversation that he politely left. [3] On XXXX XXXX XXXX 2019, two days after the birth of his second daughter, the Appellant travelled to Canada on a visitor's visa and he subsequently made a claim for refugee protection on March 14, 2019. The Appellant's family did not accompany him, but he states that if he is granted refugee protection he will seek to bring them to Canada, as he claims that he fears for both himself and his family, and believes that they may be harmed by these parties for refusing to allow his daughters to undergo FGM. [4] The RPD rejected the claim, finding that the Appellant's allegations in relation to the prospective risk that he faced lacked credibility, and holding that he had not established that he personally faced a serious possibility of persecution, nor a risk to his life, of cruel and unusual treatment or punishment, or a danger of torture in Nigeria. It specifically found that: a. Despite vaguely referencing that he was under threat, the Appellant repeatedly failed to provide any specific details as to what this threat was, which damaged his credibility; b. That in the two years between the initial incident and the RPD hearing, there had been no physical contact, or communication of any sort, between the Appellant and the parties in question; c. Objective evidence indicated that in Nigeria the choice to have a child subjected to FGM lies with the child's parents, and that parents, such as the Appellant, are able to refuse the procedure without facing consequences that amount to persecution, risk to life, cruel or unusual treatment or punishment or torture; d. It drew a negative credibility inference from the Appellant's attempt to suddenly claim, midway through the hearing, that he also feared the Nigerian government, because he had posted critical comments about the government on social media. This claim had not previously been made in the Appellant's Basis of Claim (BOC) document or elsewhere in his application, and the Appellant's explanation in relation to why this claim was only raised during the hearing was found to be unreasonable; and e. A psychologist's letter submitted by the Appellant after the hearing, which the Appellant had failed to note he would be submitting, stated that it could not "...confirm the veracity of any of the stressors..."1 reported by the Appellant and also failed to provide any sort of diagnosis. Accordingly, the letter was given little weight. [5] The Appellant, who was and remains unrepresented before the Board, has appealed the RPD decision and is now asking the Refugee Appeal Division (RAD) to recognize him as a Convention refugee or a person in need of protection. He seeks to introduce two articles as new evidence and has also requested an oral hearing. In this appeal, he largely reiterates his earlier claims and also argues that the RPD erred in: a. Not referencing in its decision that in the RPD hearing he had alleged that one of the relatives had also spoken to him about FGM a month before they came to his home on December 20, 2017; and b. Not referencing in the decision that he had alleged in the hearing that in the course of the December 20, 2017 incident, his relatives had said they would return. DETERMINATION [6] 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). ROLE OF THE RAD [7] The Refugee Appeal Division reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is that the RAD may apply a deferential standard in certain circumstances. I have conducted my own independent assessment of all of the evidence in this case, including the oral recording and transcript of the hearing. I find the appropriate standard in this case is one of correctness. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [8] In support of this appeal, the Appellant proposes the admission of two articles,2 regarding incidents of FGM in Nigeria, as new evidence. [9] Section 110(4) of the IRPA3 sets out that an Appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of section 110(4), the RAD will then go on to consider the additional factors affirmed by the Federal Court of Appeal in Singh.4 [10] In considering the proposed new evidence, I find that these articles do not meet the statutory requirements set out in section 110(4) of the IRPA and, therefore, cannot be admitted. Though the Appellant asserts that the first proposed article is copyrighted in 2020, and also baldly states that the second article was not reasonably available before his RPD hearing, upon review of the record it is clear that both articles were published well before the RPD proceeding and, indeed, his departure from Nigeria: irrespective of the copyright, the first article is dated January 14, 2018, while the second notes that it was initially published on March 8, 2016, and later modified as of September 20, 2017. Both articles were seemingly reproduced from the publicly accessible website of the Guardian Nigeria newspaper, and there is also no indication that these documents were not reasonably available to the Appellant before his claim was rejected. Nor has the Appellant given any indication or explanation as to why he could not reasonably have been expected to have presented the articles at that time. Therefore, these documents do not meet the statutory requirements of new evidence and, as such, I need not go on to assess them with regard to the factors in Singh. ORAL HEARING [11] The Appellant has also requested an oral hearing in this appeal. The RAD may hold a hearing if, in its opinion, there is new documentary evidence that: 1) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; 2) is central to the decision with respect to the refugee protection claim; and 3) if accepted, would justify allowing or rejecting the refugee protection claim.5 [12] As no new evidence has been accepted by the RAD, these requirements have not been met, and an oral hearing cannot be held. ANALYSIS Summary [13] The RPD found that the Appellant was not credible, due to the extremely vague testimony that he continually provided and his inability, upon questioning, to provide any meaningful detail in relation to his allegations concerning the risk he personally faced in Nigeria. My review of the evidence indicates that the RPD did not err in its conclusions, and I agree with its key findings. This includes the RPD's finding that: he did not establish that he was unable to refuse the female genital mutilation of his daughters without facing dire consequences; that a negative credibility inference should be drawn from his attempt to introduce a new claim midway through the hearing; and that little weight should be accorded to a letter from a psychologist that the Appellant introduced after the hearing. Ultimately, as did the RPD, I find that the Appellant did not establish, on a balance of probabilities, that he faces a serious possibility of persecution or a risk to his life, or of cruel and unusual treatment or punishment or a danger of torture in Nigeria. The RPD did not err in its findings on risk of persecution or harm [14] As previously noted, the determinative issue in this Appeal is the credibility of the Appellant, as the RPD made a number of findings which established that the Appellant was not credible with regard to his allegations that he personally faced a risk of persecution or harm for refusing to allow his daughters to be subject to FGM. [15] One overarching finding was essentially that while the Appellant repeatedly testified that he was under threat as a result of this decision, despite extensive questioning by the RPD, he was thoroughly unable to flesh out these allegations with specific details as to what the nature of the alleged threat was. [16] Upon review of the record in this matter, I agree. The Appellant was asked repeatedly about this and responded only with generalities. When asked whom it was that he feared, he responded that the three people who had come to his home on December 20, 2017 hoping to perform the FGM procedure would report him to the 'elders of his community', to whom they were 'linked' and who lent them support.6 However, he could not specify or name who these elders were and seemed to deflect the questioning when asked about them, saying only that the elders believed in preserving the culture and enforced it. Similarly, he repeatedly failed to explain exactly what the threat he faced was and what he feared would actually happen to him, instead only responding generally that his relatives threatened that they would come back, and that he was "open to threats of curses and attacks".7 When asked to explain what sort of attacks he meant, he again responded vaguely, for example saying, "all kinds of attacks that they have, some curses, they have some attacks, some curses ... they can physically deal with me",8 and going on to say only that all they needed to do is make sure they get him out of the way, get him silenced, or seriously injured. He also could not indicate or describe what sort of curses he was referring to, or how those might harm him, or how exactly he would be injured. I note that in his memorandum in relation to this appeal, the Appellant continued to speak in generalities about the harm he was facing, noting that it could be mental, psychological or physical, and vaguely alluding to the fact that it might perhaps result in his death, but again failing to say anything more specific. [17] As the RPD did, I note that the Appellant is highly educated, fluent in English and has a history of high-level professional work experience. Based upon the evidence before me, I find that the Appellant understood the questions posed to him and reasonably should have been able to respond in a straightforward manner. Accordingly, I draw a negative credibility inference from the Appellant's vague responses and inability to describe with any detail or specificity the harm that he fears. I note that this finding is significant, as it goes to the very heart of his claim: his fear of that supposed harm constitutes the cornerstone of his refugee application. The alleged errors of the RPD, as identified by the Appellant [18] I note that in this appeal, while the Appellant primarily just reiterates his original narrative, he also argues that the RPD erred by failing to discuss in its decision two points that he had testified to: first, that a month before the three individuals came to his home on December 20, 2017, one of them had previously spoken to him about the importance of FGM; and second, that when the group left his house on December 20, 2017, they had mentioned that they would return. [19] With respect to the first point, the Appellant now states that the RPD should have recognized that he was subject to a "progressive mounting of pressure"9 to allow the FGM, and that they did not mention the initial meeting. Upon review of the record, I note that the Appellant alluded to this initial occurrence only once, and in passing, giving no detail or specificity as to where and when this happened or with respect to the circumstances or the content of the conversation. He said only that he had happened to meet one of the women, XXXX., "like a month earlier",10 she was talking about the importance of FGM at that time, and that he had politely left as he did not want to offend her. In his testimony, he had mentioned this occurrence in the context of discussing the fact that he had had no further interaction with the three parties after December 20, 2017: when the RPD asked if he'd had any other contact, interaction or communication with them, the Appellant had replied that no, his communication was rather with the local chief, who he went to about the matter. This is when he alluded to the earlier meeting with XXXX., telling the RPD that he had known there was no point in talking to XXXX. about the matter as he was aware of her views about FGM due to this earlier discussion, but otherwise saying little about this previous interaction. [20] As noted, the Appellant also testified that after the December 20, 2017 visit to his home, neither those three people nor anyone else had any further interaction or communication with him or his family about the FGM issue for the next two years, until his wife had a chance encounter with XXXX. the day before the RPD hearing. Given that, I do not see any sort of progressive mounting of pressure, but even were I to accept that this was the case, I note it does nothing to address the determinative issues in this matter, and in any way help to credibly establish that the Appellant faces a risk of danger warranting refugee protection. I also note that the mere fact that the RPD did not directly mention this interaction in its decision cannot be taken to indicate that the RPD ignored or was unaware of this evidence. It is a well-established precept that the RPD is presumed to have considered all of the evidence before it in reaching its decisions, even where it does not directly reference every occurrence in a decision. Regardless, in my view, the RPD did not err in omitting to mention the earlier contact with XXXX. [21] I likewise find that the RPD did not err in failing to note in its decision that the December 20, 2017 group had mentioned to the Appellant, before they left his house, that they would return. The Appellant now describes this as these parties having "announced the threat that they are going to come back".11 But again, other than noting that they had said they would return, in his testimony the Appellant fails to define or elaborate on what would happen then, or what the threat is that he would face, if they did. It is exactly this inability to explain the danger that he allegedly faces that led the RPD to impugn the credibility of his allegation regarding the risk he faced. In fact, a review of the record indicates that it was actually in the course of responding to one of the RPD's requests that he please be specific in terms of explaining what he thought these people would do to him, that he then went on to vaguely state for the first time that they had mentioned they would return.12 As previously noted, he also testified that they ultimately did not, as he has had no personal interaction with them since the December 20, 2017 meeting, and even his wife met one of them only by chance some two years later. [22] On a balance of probabilities, I find that the Appellant has not credibly established that he personally faces a serious possibility of persecution, nor has he demonstrated that he faces a risk to his life, or of cruel and unusual punishment, or of a danger of torture due to his refusal to permit his daughters to be subject to FGM. The unchallenged findings of the RPD are correct [23] The Appellant did not challenge the RPD's finding that the evidence established that he is able to refuse the FGM of his daughters without facing consequences rising to persecution, risk to his life, cruel and unusual treatment or punishment, or torture. The RPD essentially noted that the objective evidence in the national documentation package (NDP) for Nigeria reports that decisions of parents in relation to the FGM of their daughters tend to be respected, even in areas where FGM remains prevalent, and that parents who refuse the procedure do not face dire consequences, such as retaliation. Rather, the evidence indicates that those who opt to subject their children to the practice do so more from a sense of cultural belonging or fear of alienation, or the denial of communal benefits, as opposed to coercion or physical danger. [24] I have reviewed the evidence relating to this issue, including the most recent NDP for Nigeria (which reports consistent information on this point),13 the fact that the Appellant and his wife are united in the refusal to allow the FGM of their daughters and that the Appellant testified that those pressing the FGM are his two distant relatives and a person from the same village as his family, all of whose only influence stems from their being older than him. Based on the record before me, I find that the Appellant has not established that he is unable to refuse the FGM of his daughters without facing consequences rising to the level of a serious possibility of persecution or, on a balance of probabilities, a risk to his life, of cruel and unusual treatment or punishment, or of torture. [25] The Appellant also did not challenge the RPD's finding that it drew a negative credibility inference from his sudden mid-hearing attempt to introduce a new claim: that he might also be at risk in Nigeria because of unspecified social media posts he had made in relation to the Nigerian government. I have reviewed the evidence relating to this allegation and I agree with the RPD's findings on this issue set out in paragraph 13 of its decision. [26] Similarly, the Appellant did not challenge the RPD's finding that a psychologist's letter, which he submitted after the hearing, would be given little weight. The RPD had noted that the letter was brief, did not provide any diagnosis or treatment, and also directly stated that the author was not able to confirm the veracity of the stress factors reported by the Appellant. Again, I have reviewed the evidence relating to this allegation and I agree with the RPD's findings on this issue, as set out in paragraph 14 of its decision. CONCLUSION [27] Based on the above, the Appellant has failed to credibly establish that he would face a serious possibility of persecution on a Convention ground if he returned to Nigeria. He has also failed to credibly establish, on a balance of probabilities, that, if returned to Nigeria, he would personally be subject to the risk of any of the harms listed in section 97 of the IRPA. [28] For these reasons, the appeal is dismissed. In accordance with paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the IRPA. (signed) Darren Thorne April 30, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 4 at p. 178. 2 Exhibit P-2, Appellant's Record, pp. 6-14. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 IRPA, S.C. 2001, c. 27, as amended, section 110(6). 6 RPD Hearing Transcript, December 17, 2019 at pp. 33-34; see also p. 58. 7 RPD Hearing Recording, December 17, 2019 at 00:54:20. 8 RPD Hearing Recording, December 17, 2019 at 00:56:00. 9 Exhibit-P-2, Appellant's Record, Appellant's Memorandum at p. 18. 10 RPD Hearing Recording, December 17, 2019 at 1:19:57. 11 RPD Hearing Recording, December 17, 2019 at 00:56:58. 12 RPD Hearing Recording, December 17, 2019 at 00:56:58. 13 National Documentation Package (NDP) for Nigeria, (30 November 2020), item 5.12, Response to Information Request (RIR), NGAI06183 .FE, Immigration and Refugee Board of Canada (IRB), October 29, 2018 at p. 2-3; See also item 5.16, United Kingdom. Home Office, August 2019, at s. 5.1.3, p. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-04698 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