TC1-05576

RAD File / Dossier de la SAR : TC1-05576 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision October 19, 2021 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Jacqueline M Lewis 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 appeal is dismissed. XXXX XXXX XXXX (the Appellant) is a citizen of Kenya. He alleges to fear persecution from the Chinkororo militia group because of unpaid fines. The Refugee Protection Division (RPD) heard the refugee claim over two sittings on December 17, 2020, and on March 24, 2021. The RPD rejected his claim in its written decision on April 30, 2021, finding the Appellant not to be credible. DECISION [2] The Refugee Appeal Division (RAD) dismisses the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleges to fear retribution from the Chinkororo militia in Kenya. The Appellant alleges that the militia demands payments from local residents. The Appellant did not wish to contribute to funding the militia because of his Christian beliefs and so he refused to make payments. The militia threatened to harm the Appellant and his family. The Appellant eventually travelled to Canada on XXXX XXXX XXXX 2019, with a visitor visa. The Appellant alleges that his family in Kenya remains in hiding. [4] The Appellant submits that the RPD erred in its credibility assessment. The RAD carefully considered the merits of the appeal in its decision below. Standard of review [5] The role of the RAD is to look at all the evidence and decide if the RPD made the correct decision.1 No new evidence and no request for oral hearing [6] The Appellant is not submitting new evidence and is not requesting an oral hearing.2 ANALYSIS The RPD was correct in assessing inconsistent statements [7] The RPD found that the Appellant provided inconsistent statements at the Port of Entry (POE) and in his Basis of Claim (BOC) and oral testimony.3 At the POE interview on October 19, 2019, the Appellant stated that he feared those who provided him with fraudulent documents to enter Canada.4 In his BOC and in his oral testimony, he alleged to fear the Chinkororo militia group because of unpaid extortion payments.5 The RPD rejected the Appellant's explanations indicating that he "could not understand himself" and was under pressure to give information in a foreign country.6 The RPD did not accept these explanations as they failed to reasonably explain why he gave drastically different answers at the POE as to who he feared and why.7 [8] The Appellant submits that the RPD was microscopic in its assessment.8 The RPD failed to consider the Appellant's condition of depression and anxiety disorder as evidenced in the psychological report.9 The Appellant submits that the RPD should have considered the effect of his condition on his ability to answer questions at the POE.10 The Appellant further indicates that the psychological reports are not intended nor expected to explain away inconsistencies.11 Further the RPD did not consider that the Appellant's mistrust of the authorities would impact his answers at the POE.12 [9] The RAD has reviewed the Appellant's statements at the POE and in his BOC, as well as the psychological report. The RAD disagrees with the Appellant and finds that the RPD was correct in drawing a negative inference for the inconsistencies. The RAD does not find that the RPD failed to properly consider the psychological evidence. [10] According to the psychological report dated XXXX XXXX, 2020, the Appellant demonstrates signs of "XXXX XXXX XXXX consisting of "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX".13 The report also describes the Appellant as having trouble sleeping and being "XXXX XXXX XXXX to be precise".14 [11] The RAD accepts that the Appellant may have been experiencing these symptoms of depression and anxiety disorder at the time he entered Canada. Furthermore, the RAD accepts that the POE interview was conducted after the Appellant had just entered Canada after a lengthy flight. [12] At his RPD hearing, the Appellant explained that he "could not understand himself" and felt pressure to give information.15 The RAD does not find this to be a satisfactory response for the inconsistencies. [13] At the POE interview, the questions were posed to the Appellant in his native Swahili.16 The Appellant indicated that he understood the interpreter.17 Also, at the start of the interview, the POE officer advised the Appellant to let him/her know if he did not understand any of the questions posed to him.18 The Appellant indicated that he understood these instructions. When the Appellant did not answer the question directly, the officer asked follow-up questions to ensure that the response provided was clear.19 The Appellant did not indicate at any point during the interview that he did not understand the officer's questions, nor did he request clarification. [14] In addition, at the POE interview, the Appellant provided clear, direct responses to the questions about why he was making a refugee claim and whom he feared. There is no indication in the interview that the Appellant had trouble understanding or focusing on the questions posed to him. Therefore, the RAD does not find that the accuracy of his statements was a result of his psychological condition, on a balance of probabilities. [15] These responses are entirely different from those in his BOC and in his oral testimony. The Appellant's inconsistent statements are not merely a matter of imprecise details or challenges with remembering events. The entire premise of whom he feared in Kenya and why he needed protection from Canada was significantly inconsistent with his BOC. The RAD finds that the RPD was correct to draw a negative inference to the Appellant's credibility. The RPD was correct in its assessment of the wife's affidavit [16] The RPD found that the appearance of the wife's affidavit was inconsistent with what is expected to appear on Kenyan affidavits.20 The same party who commissioned the affidavit also drafted the documents. This is contrary to the requirements for affidavits in Kenya. Also, the wife's affidavit mentioned ongoing tensions with the Chinkororo militia as the reason why they missed church whereas the Appellant alleges this is when their problems began.21 This is inconsistent with the Appellant's initial explanation regarding the first time they had problems with the Chinkororo, which he stated was on the day his family missed church in XXXX 2019.22 The RPD rejected the Appellant's explanation that his wife had been given a report that he owed payments to the Chinkororo.23 [17] The Appellant submits that the RPD misevaluated the documentary evidence.24 The Appellant submits that the documentary evidence indicates that a commissioner for oaths in Kenya can do everything including preparing and commissioning the affidavits.25 Even if the affidavit was commissioned incorrectly; it does not necessarily mean that it is fraudulent, as the cultural context must be considered.26 Furthermore, one peripheral inconsistency is insufficient to discredit the entire affidavit.27 [18] The RAD has reviewed the documentary evidence regarding Kenyan affidavits and disagrees with the Appellant's submissions regarding the requirements for affidavits. The article in question states the following: The lawyer at Daly & Inamdar Advocates explained that affidavits are "usually drawn up by lawyers" and "endorsed before a commissioner for oaths/notary public/court officer" who "must be different from the lawyer who drew up the affidavit" (Lawyer at Daly & Inamdar Advocates 28 July 2016). [Emphasis added] The same source underlined that the "deponent personally appears before the [c]ommissioner for [o]aths" (ibid.). According to the lawyer at Gitonga-Mwangi & Company Advocates, [o]ne can prepare [an affidavit] themselves, or have an [a]dvocate draw it up. However, once drawn, it has to be signed before a [c]ommissioner for [o]aths, who attests the execution. (29 July 2016)28 [19] The Appellant alleges that the following passage from the same article suggests that the same commissioner for oaths can draw up the affidavit and endorse it: The lawyer at Ashitiva & Company Advocates described the procedure to obtain an affidavit as follows: * The commissioner for oaths[,] after ascertaining [that the deponent] is 18 years old and of sound mind[,] gets the facts and subject matter of the affidavit from the deponent; * The commissioner for oaths prepares an official affidavit document with the sworn statement based on the deponent's information and belief; * The deponent executes the affidavit in the presence of the advocate [serving as a commissioner for oaths]; * The commissioner of oaths attests to the affidavit by stamping and executing the document. (29 July 2016)29 [20] The RAD does not find that the two passages above contradict one another. In the first passage, it clearly states that the commissioner for oaths or lawyer who endorses the affidavit "must" be different from the commissioner for oaths who drew up the affidavit.30 The role of the commissioner for oaths is described using absolute rather than permissive language. [21] The second passage cited by the Appellant immediately follows the first in the article. This passage outlines the general steps taken to obtain an affidavit before a commissioner for oaths.31 There is no indication that the commissioner for oaths is the same individual, but merely someone who can act in this role, which can be a second commissioner for oaths. There is no other content within this article which explicitly indicates that there are exceptions regarding a commissioner for oath's duties. From a plain language reading of the objective evidence, the RAD finds that the same commissioner for oaths cannot perform both roles. [22] The RAD also finds that the Appellant failed to provide a satisfactory response regarding the inconsistency in his wife's affidavit regarding when they began having problems with the Chinkororo. The Appellant testified that he first learned that he was targeted by the Chinkororo in XXXX 2019, when his home was vandalized, and he was threatened.32 In her affidavit, the wife states that there were "ongoing tensions" between the family and the Chinkororo.33 However, according to the wife's affidavit, the family had been experiencing problems with the Chinkororo before the cumulating incident in XXXX 2019.34 The RAD does not accept the Appellant's explanation that he did not realize he was being personally targeted until XXXX 2019.35 The wife's affidavit clearly indicates that there were "tensions" between their family specifically and the militia group. [23] The RAD finds that this is a significant inconsistency. Whether or not the Appellant and his family had long been targeted by the Chinkororo or whether the persecution began in XXXX 2019 could indicate the motivation, capacity, and resources of the Chinkororo to continue persecuting the Appellant and his family for payments. [24] For the reasons above, the RAD finds that the RPD's assessment of the wife's affidavit is correct. The RAD agrees with the RPD that the wife's affidavit is not credible and trustworthy evidence, and on a balance of probabilities, it is fraudulent. The RAD finds that the differences between the affidavit's appearance and content is inconsistent with the objective documentary evidence. Therefore, it is given no weight in corroborating the Appellant's claim. Affidavits from friends and neighbours [25] The RPD found that the affidavit from the Appellant's friend XXXX was fraudulent. The photograph of XXXX on his identification card is unclear and so the person cannot be identified.36 The RPD also found that the personal number on the front and back of the identification card are different.37 The Appellant did not have any comment to provide regarding these discrepancies. The RPD found that the affidavit was therefore not credible evidence.38 [26] The Appellant submits that in the absence of documentary evidence or specialized knowledge, the RPD cannot reasonably reject his supporting documents.39 Furthermore, his identity card information is fairly consistent throughout.40 The Appellant also produced affidavits from two individuals named XXXX and XXXX.41 The Appellant submits that the RPD erred in failing to consider these affidavits as well. [27] The RAD disagrees with the Appellant. The purpose of a government-issued identity card is to verify the identity of the person to whom the card was issued. If there are discrepancies in the information found on the card, then the card itself becomes less reliable as evidence. Having an identity card with "fairly consistent" information is not reliable. The RAD does not find that drawing such a finding requires specialized knowledge, as one only needs to examine the card at face value to see that the numbers do not match. The RAD finds that the RPD was correct to find that the identity card is fraudulent based on this finding, and that the identity of the individual who swore the affidavit cannot be verified. Therefore, the RAD gives the affidavit no weight in corroborating the allegations. [28] The RAD also considered XXXX and XXXX affidavits.42 As indicated above, the objective evidence indicates that commissioners for oaths cannot draw up the affidavit and endorse its contents. The RAD notes that in both the affidavits provided, the commissioners performed both roles. The RAD finds that this is inconsistent with the requirements for Kenyan affidavits as discussed above. [29] Furthermore, the RAD notes that XXXX affidavit is missing the date when the affidavit was allegedly sworn.43 The RPD noted the missing date on the affidavit at the hearing to which the Appellant had no comment.44 The Oaths and Statutory Declarations Act governs the law around commissioners for oaths. Section 5 indicates the following [emphasis added]: Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.45 [30] The RAD finds that the missing date on this affidavit is another discrepancy that contravenes the requirements for Kenyan affidavits. Taking this into account, along with the issue regarding the commissioners for oath performing both roles; the RAD finds that both XXXX and XXXX affidavits are also fraudulent evidence, and they are given no weight. The RPD was correct in assessing omissions from the Appellants' BOC [31] The RPD found that the Appellant made two omissions from his BOC. The Appellant mentioned that between XXXX 2019 and XXXX 2019, his wife was approached by Chinkororo.46 The Appellant also testified that his friend XXXX advised him that the Chinkororo was still looking for her during this time.47 The RPD rejected the Appellant's explanation that he was shocked and confused while writing his BOC.48 The RPD found that the Appellant had the assistance of counsel and that he swore that his BOC was true, complete and correct prior to his testimony.49 [32] The Appellant submits that omission of these events has no bearing on the allegations.50 Furthermore, the Appellant is not required to disclose every piece of information related to the claim, especially immaterial facts.51 The Appellant submits that he provided a reasonable explanation for the omissions in light of the psychological report.52 [33] The RAD disagrees with the Appellant and finds the omissions to be significant to the allegations. If the Chinkororo personally located and approached the Appellant's wife and his friend while they were in hiding, then this could be an indication of the militia's ability and willingness to locate and harm the Appellant and his family in Kenya. The RAD does not find these to be peripheral details. The BOC narrative is not simply a summary of events. The BOC narrative is a sworn statement of facts describing why the Appellant needs refugee protection from Canada. [34] The RAD does not find that the Appellant provided a satisfactory response for the omissions. The RAD does not accept that the Appellant's continued shock and confusion prevented him from remembering these events. The RAD agrees with the RPD and finds that the Appellant had ample opportunity to revise, review, and amend his BOC prior to his hearing. Furthermore, the RAD considers the existing credibility concerns in assessing the truthfulness of these omissions. The RAD finds on a balance of probabilities, that the militia did not approach the Appellant's wife nor his friend XXXX. Therefore, the RAD finds that the Appellant attempted to embellish his claim. In summary [35] The RAD finds that the Appellant was not previously nor presently targeted by the Chinkororo militia. The RAD finds that the Appellant was not credible in his allegations, on a balance of probabilities. [36] The Appellant provided inconsistent statements at the POE and in his BOC regarding whom he feared in Kenya and why he was seeking refugee protection in Canada. The Appellant also indicated that his children were in Kenya studying during his POE interview, but later indicated that his family was in hiding. The RAD finds that these inconsistencies are significant. Openly attending school is entirely different from living in hiding to avoid harm from a militia group. Fearing the people who gave him fraudulent travel documents is very different from fearing retribution from an organized militia demanding payments. [37] The RAD also considers that the Appellant provided affidavits which did not conform to the requirements described in the objective evidence. The wife's affidavit contains information that was inconsistent with the Appellant's allegations. There were discrepancies in XXXX identity card and one of the affidavits was missing a date. On a balance of probabilities, the RAD finds that the Appellant provided affidavits which were fraudulent to bolster his claim. [38] The RAD further considers that the Appellant made two significant omissions of events in his BOC with no satisfactory explanation. [39] For the reasons above, the RAD finds that the Appellant was not credible in his allegations on a balance of probabilities. The RAD finds that the Appellant was not being targeted by the Chinkororo for payments, nor is he presently a person of interest to this militia. The RAD finds that the Appellant would not face a serious possibility of persecution if he were to return to Kenya, nor is he a person in need of protection. [40] Therefore, the RAD finds that the Appellant is not a Convention refugee, nor is he a person in need of protection. The RPD's decision is correct, and it is upheld. CONCLUSION [41] The RAD dismisses the appeal and confirms the RPD's decision for the same reasons. (signed) M. Lee M. Lee October 19, 2021 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit P-2, Appellant's Record, Written Statement, at page 11. 3 Exhibit RPD-1, RPD Record, RPD Reasons, at page 6, para. 15. 4 Exhibit RPD-1, RPD Record, Exhibit 1, at page 55. 5 Exhibit RPD-1, RPD Record, RPD Reasons, at page 6, para. 15. 6 Ibid. 7 Ibid., at page 7, para. 17. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 20, para. 16. 9 Ibid., at page 22, para. 21. 10 Ibid., at page 26, para. 32. 11 Ibid., at page 24, para. 29. 12 Ibid., at page 26, para. 33. 13 Exhibit RPD-1, RPD Record, Exhibit 8, at page 249. 14 Ibid. 15 Exhibit RPD-1, RPD Hearing Transcript, dated March 24, 2021, at page 17, lines 19-20. 16 Exhibit RPD-1, RPD Record, Exhibit 1, at page 54. 17 Ibid. 18 Ibid. 19 Ibid., at page 56. 20 Exhibit RPD-1, RPD Record, RPD Reasons, at page 8, para. 24. 21 Ibid., at page 8, para. 25. 22 Ibid., at page 9, para. 26. 23 Ibid., at page 9, para. 27. 24 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 29, para. 43. 25 Ibid., at page 30, para. 46. 26 Ibid., at page 31, para. 51. 27 Ibid., at page 32, para. 54. 28 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Kenya, (30 September 2020), item 9.2. Immigration and Refugee Board of Canada, Response to Information Request, KEN105566.E, 10 August 2016, at page 4. 29 Ibid. 30 Ibid. 31 Ibid. 32 Exhibit RPD-1, RPD Hearing Transcript, dated December 17, 2020, at page 14, lines 30-35. 33 Exhibit RPD-1, RPD Record, Exhibit 6, at page 142. 34 Ibid. 35 Exhibit RPD-1, RPD Hearing Transcript, dated March 24, 2021, at page 12, lines 5-18. 36 Exhibit RPD-1, RPD Record, RPD Reasons, at page 9, para. 27. 37 Ibid. 38 Ibid. 39 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 34, para. 64. 40 Ibid. 41 Ibid., at page 33, para. 56. 42 Exhibit RPD-1, RPD Record, Exhibit 6, at pages 151-154. 43 Ibid., at page 152. 44 Exhibit RPD-1, RPD Record, RPD Hearing Transcript, dated March 24, 2021, at page 14, lines 1-6. 45 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Kenya (30 September 2020), item 9.2. Immigration and Refugee Board of Canada, Response to Information Request, KEN105566.E, 10 August 2016, at page 8. 46 Exhibit RPD-1, RPD Record, RPD Reasons, at pages 9-10, para. 29-30. 47 Ibid. 48 Ibid., at page 10, para. 31. 49 Ibid. 50 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 35, para. 68. 51 Ibid., at page 38, para. 71. 52 Ibid., at page 38, para. 72. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-05576 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français