MB9-29751

RAD File / Dossier de la SAR : MB9-29751 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 Ottawa, ON Appel instruit / entendu à Date of decision December 4, 2020 Date de la décision Panel Aaron David Smith Tribunal Counsel for the person who is the subject of the appeal Felipe Morales 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] I dismiss this appeal. [2] XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. [3] The Appellant alleges fear of serious harm or death in Nigeria by Fulani herdsmen and Miyetti Allah based on his work as a XXXX with the XXXX Church. He also fears politicians who have allegedly sponsored the Fulani herdsmen and Miyetti Allah who have targeted him. [4] The Refugee Protection Division (RPD) rejected the Appellant's claim based on credibility. [5] The Appellant appeals this decision, asking that the Refugee Appeal Division (RAD) substitute a positive decision or remit the matter to a newly constituted panel of the RPD for redetermination. The Appellant has not requested an oral hearing and has not submitted new evidence. [6] The Appellant submits that the RPD erred in: a. Its credibility findings; b. Scheduling a hearing before the completion of his Basis of Claim (BOC) form; and c. Setting aside the affidavit of his Nigerian lawyer and a Police report. [7] The determinative issue in this appeal is credibility. [8] I listened to the audio recording of the hearing before the RPD on November 15, 2019 and analyzed all of the evidence. I considered all the Appellant's arguments. [9] After an independent review of the record, I find that the RPD did not err in its decision. DECISION [10] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [11] The Appellant is a XXXX from XXXX, Delta State, Nigeria, who is also involved with voluntary XXXX work. The Appellant was XXXX and conducting XXXX work with the XXXX XXXX Church in Benue State and alleges he was required to move his family to Lagos State on XXXX XXXX XXXX 2015 after Fulani herdsmen and the insurgent group "Miyetti Allah" began destroying churches and killing Christians. [12] The Appellant alleges his XXXX work, involving visits to the victims of these crimes to pray with them, providing temporary housing, and making arrangements for the children who had lost their parents, caused XXXX, including himself, to become targets of the alleged agents of persecution. The Appellant also alleges that the agents of persecution are motivated by political and religious issues with the support of high-ranking politicians. [13] On XXXX XXXX XXXX 2015, the Appellant alleges that his former church, in XXXX village, Benue State, was visited by the alleged agents of persecution with the purpose of finding him. The Appellant alleges that the agents of persecution were informed by their supporters that the Appellant and his family lived on the church premises. After finding that he was not there, the agents of persecution beat a security guard and burned down the church. [14] The Appellant traveled to the United States on XXXX XXXX XXXX 2018 to attend a three-week XXXX program. On XXXX XXXX XXXX 2018, he received a telephone call from a colleague, XXXX XXXX XXXX XXXX, who informed that the Appellant's, and other XXXX pictures and names were displayed publicly on posters in the streets of Lagos. The posters sought information regarding their whereabouts. The Appellant alleges Miyetti Allah was behind the posters, supported by high-ranking politicians, and that the agents of persecution would be willing to go to great lengths to obtain information about their targeted enemies. [15] The Appellant alleges that his family went to the nearby military barracks for safety on XXXX XXXX XXXX 2018 after seeing the posters. The Appellant upon learning of the posters traveled to Canada and sought protection. ANALYSIS [16] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD did not err in assessing the Appellant's credibility [17] The Appellant argues that the RPD erred in its assessment of his credibility through incorrectly: applying the legal presumption of truthfulness; drawing negative credibility inferences from his BOC omissions; and disbelieving his entire "statement" because his narrative did not include the political aspect of his alleged persecution. Legal presumption of truthfulness [18] The Appellant's Counsel contends that the RPD erred by incorrectly applying the legal presumption of truthfulness. Counsel asserts that the RPD made a finding negating all credibility in the Appellant's testimony because his BOC, submitted 15 months prior to his hearing, "did not contain in detail answers to questions neither the Claimant nor his Counsel foresaw as relevant."2 I disagree. [19] In Maldonado v. M.E.I, the court found the presumption of truthfulness is rebutted when there are reasons to doubt a refugee claimant's truthfulness.3 One of the primary methods of testing credibility is to compare testimony with the Basis of Claim (BOC) form.4 Inconsistencies between the two or omissions from the BOC, particularly with respect to "facts that directly concern the very basis of a claim for refugee protection", can result in a negative inference when there is no reasonable explanation.5 BOC omission of political advocacy [20] The RPD found three omissions from the Appellant's BOC form impugned his credibility. First, the Appellant omitted from his BOC form that he engaged in political advocacy. The RPD asked why politicians would be interested in harming him and the Appellant gave several answers. The Appellant testified that it was due to his work in assisting those in need, his religious affiliation to the church, XXXX, for the use body parts in rituals, and later that in the course of his XXXX work, he would discuss how elections should not be rigged, educated people on how to vote and to not accept bribes from politicians.6 The RPD asked the Appellant why he omitted this information from his BOC and the Appellant responded that he listed that the issue was "political/religious" and sponsored by "high politicians."7 He added that he was not a politician but a XXXX that educates people to vote.8 The RPD found the Appellant's response unreasonable. The RPD noted that the omission was important because the Appellant alleged, in his narrative, that he was targeted for religious reasons while his testimony introduced a political dimension to his alleged persecution. [21] I agree with the RPD. The information omitted by the Appellant in his narrative should have been foreseen, including by his Counsel, as relevant since it identifies the Appellant's actions that are directly attributable to the allegation that politicians are motivated to actively support Miyetti Allah and the Fulani herdsmen. This information is central to his claim for protection and the RPD was correct in drawing a negative inference from its omission. BOC omission of cutlass attack [22] Second, the Appellant omitted from his narrative an incident where he allegedly engaged with the agents of persecution and narrowly escaped being attacked with a cutlass.9 When the RPD asked the Appellant to explain this omission, he explained that when he came to Canada there were many things he could not recall.10 The RPD was correct in drawing a negative inference from this omission since the Appellant provided a BOC in XXXX 2018 and a subsequent, and complete, BOC in XXXX 2019. The Appellant provided a signed copy on XXXX XXXX XXXX 2018 but with the same narrative submitted on XXXX XXXX XXXX 2018. The RPD noted that the Appellant was represented by Counsel when completing his BOC and rejected his explanation because the event was a major incident in his story.11 The Appellant was also provided an opportunity, prior to the commencement of his RPD's hearing, to affirm the contents of his BOC.12 I concur with the RPD. The omitted event is the only incident where the Appellant allegedly came into contact with the agents of persecution and they sought in that instance to inflict harm upon him. It should have been seen as relevant because the Appellant alleges that the agents of persecution want to harm him because of his work and this example supports his allegation. The RPD was correct in drawing a negative inference from this significant omission. BOC omission of threats [23] Third, the RPD asked the Appellant why he omitted from his narrative that his family was threatened by the alleged agents of persecution and he testified that he was traumatized when he came to Canada.13 He added that he thought he would write a summary and explain later.14 The RPD found his explanation unreasonable since his narrative described how his family ran from their home and went to the military barracks but didn't mention that their lives were threatened by the agents of persecution. The RPD also noted that the Appellant was given the opportunity to include the information at the time of the BOC affirmation prior to the hearing.15 I agree with the RPD. The alleged threats to the Appellant's family are significant and relevant because it demonstrates the agents of persecution are pursuing the Appellant through his family and seeking to inflict harm on the Appellant is central to his claim. The RPD was correct to draw a negative inference from the omission because the detailed description of the threat the Appellant provided in his testimony, related to his family being slaughtered and raped, is more likely than not information he is unlikely to forget for the entire time period between submission of his original BOC and the RPD's hearing. [24] I do not accept the Appellant's argument that, due to the passage of time, he would forget the serious and significant events he described at his hearing but omitted from his narrative. The omission of his political advocacy in his community that allegedly motivated the politicians he suggests support the Fulani herdsmen and Miyetti Allah, being nearly attacked with a cutlass in the course of his XXXX work, and serious threats to his family's safety are omissions of significant facts directly related to his claim for refugee protection. I do not think it is an impractical expectation that the Appellant would be able to provide consistent evidence about the agents of persecution and the events he alleges that led him to seek protection, despite the passage of time. Likewise, I do not accept that the passage of time would cause the Appellant to forget significant events and ongoing threats he alleged to have experienced and that his family continued to receive following his departure from Nigeria. I do not find the RPD erred with respect to the presumption of truthfulness but reasoned, as outlined in Maldonado, that the Appellant's truthfulness was rebutted given the omissions of significant events central to his protection claim. RPD's finding related to BOC omission regarding political advocacy [25] The Appellant's Counsel argues that the RPD erred in concluding that the Appellant's "entire statement was unbelievable"16 because he did not describe the political aspect of his alleged persecution in his narrative. I disagree and find the assertion mischaracterizes the RPD's findings. [26] The RPD identified the omission and noted that the Appellant testified when he XXXX to people, in his work as a XXXXandXXXX XXXX, that "he would talk about how elections should not be rigged, educated people on how to vote, advised against accepting bribes from politicians and stated there should be free and fair elections."17 The omission led the RPD to draw a negative inference regarding the Appellant's credibility and concluded, on a balance of probabilities, that he "did not engage in discussions about free and fair elections while carrying out his XXXX and XXXX work in Nigeria."18 The RPD did not conclude the Appellant's entire statement was unbelievable based on the omission of politically related activities from his narrative because the RPD explicitly stated that the Appellant carried-out work as a XXXX and XXXX. The RPD did not err regarding procedural fairness [27] Counsel asserts that Divisions of the Immigration and Refugee Board of Canada (IRB) are expected to ask questions of a claimant or Appellant "about details and specifics which are not included" in the narrative and that "it is impossible for any person to foresee each and every question and particular [sic] that a Board Member will wish to draw attention to."19 I disagree. [28] Counsel is correct in asserting that RPD is expected to pose questions regarding details and specifics related to the Appellant's allegations. However, the RPD did not hold the expectation that every detail of the omitted activity be included but questioned why the activity, central to the claim, was not included in the Appellant's narrative. The failure to mention material allegations in one's narrative is a reasonable basis for concern, while the omission of peripheral details is not.20 Information contained in one's narrative need not be fully elaborated but it is incorrect to assert that information should not be complete with all relevant facts. Testimony should explain information not contained in the narrative, but all relevant facts should be included.21 The RPD did not err by asking the Appellant to account for an omission regarding a relevant and important fact that is directly related to the central allegations of the Appellant's claim. [29] Counsel also contends that "applying a standard where every detail raised in an oral question that was not in the BOC would place all claimants in an impossibility to comply" and this is "a denial of procedural fairness."22 When an issue of procedural fairness is argued, it is important to ask whether the principles of natural justice have been adhered to while also considering the particular circumstances of a case.23 In refugee protection claims heard at the RPD, procedural fairness aims at ensuring that the claimant understands the procedure, has a reasonable opportunity to adduce evidence in support of his claim and has the opportunity to persuade the RPD that his claim is well founded.24 The RPD questioned the Appellant as to why his political advocacy was not included in his narrative25, which provided the Appellant with the opportunity to respond.26 I disagree with Counsel's assertion. The RPD did not focus on "every detail" raised in testimony related to his political advocacy that was not included in the Appellant's narrative. The RPD questioned the Appellant on the omission of this relevant and important fact and provided the Appellant with the opportunity to respond to those questions. The RPD did not err or deny the Appellant procedural fairness in the course of its questioning. The RPD did not mischaracterize the Appellant's work [30] Counsel contends that the Appellant, in the course of his work as a XXXXandXXXX XXXX, spoke to the ethical and moral duty, on religious grounds to not accept bribes and to participate in the electoral process. Counsel states that the Appellant never intended or purported to be a political actor but acknowledged that his statements, in this regard, were "transformed into a political issue by the powers that be..."27 Counsel asserts that it was an error for the RPD to impugn the Appellant's credibility by characterizing his work as "purely political and dismiss his credibility for not doing so."28 I disagree. The RPD did not characterize the Appellant's work as purely political. The RPD found the opposite when it concluded the Appellant did not, on a balance of probabilities, engage in the political advocacy alleged in his testimony. The RPD impugned the Appellant's credibility regarding his advocacy because he omitted this relevant and important information from his narrative. The suggestion that his advocacy was transformed into a political issue by those in power does not overcome the omission from the Appellant's narrative, given its material relevance to his claim for protection, and his explanation as to why it was omitted. The RPD did not err in assessing the cutlass attack [31] The Appellant's Counsel submits that the RPD erred regarding its assessment of the events surrounding the alleged attack by the agents of persecution when a cutlass was brandished in an attempt to harm the Appellant. Counsel argues that the sole discrepancy rests with the Appellant omitting the incident from his narrative. [32] Counsel suggests the RPD erred by focusing on the discrepancy between the Appellant's use of 'they' and 'he' to describe who allegedly attacked him with a cutlass. I agree with the Appellant with respect to the RPD's assessment of this discrepancy but do not find the RPD's reasoning fatal to its determination. The Appellant did interchange 'they' and 'he' in describing the alleged incident, but he effectively explained the events he alleges occurred and what he meant by the use of the two descriptions. However, as Counsel argues, the sole discrepancy remains with the omission of this incident from the Appellant's narrative. The Appellant explained the omission by stating that there were many things that he could not recall upon arriving in Canada. As discussed previously, the RPD noted that the Appellant had opportunities to revise his narrative on several occasions.29 The Appellant was also provided an opportunity, prior to the commencement of the hearing, when he was asked at the RPD's hearing to affirm the contents of his BOC.30 The RPD rejected his explanation given the opportunities available to amend his narrative to include this significant event, material to the allegations of his claim for protection. I agree with the RPD. The Appellant's assertion that he did not recall this event upon arrival in Canada does not explain omitting the information in several iterations until its introduction during testimony. The RPD correctly drew a negative inference from this event's omission in the Appellant's narrative given that this allegation is significant and material to his claim as the only alleged event where the Appellant came in direct contact with the agents of persecution. The RPD did not err in scheduling a hearing [33] The Appellant's Counsel argues that it is the duty of the IRB to ensure files are complete before scheduling a hearing and that it is not reasonable to expect that a person's memory would not vary and alter with the lapse of time. I disagree. [34] The IRB recognized that the Appellant's BOC, submitted in XXXX 2018, was only partially completed and requested a completed BOC, which was provided in XXXX 2019. The Appellant's narrative remained unchanged from an XXXX XXXX XXXX 2018 version he submitted. As discussed previously, the Appellant was given several opportunities, including immediately prior to his RPD's hearing, to amend the contents of his narrative and it is not the administrative duty of the IRB to assume the content of a narrative is incomplete before scheduling or conducting a hearing. The onus to provide a complete, true and correct BOC rests with the Appellant, as outlined in Section 6(1)(a) of the RPD Rules. [35] Furthermore, memory may alter or vary over time but the RPD's conclusions with respect to the Appellant's credibility were founded on complete omissions of significant events or activities from his narrative rather than details surrounding those events or activities. The RPD did not err since it is not incumbent on the RPD to question the completeness of a narrative, especially given the number of opportunities made available to the Appellant to provide a complete, true and correct narrative. The argument that the passage of time encumbered the Appellant's memory cannot be reconciled with his introduction of significant events and activities in his testimony, which could have been provided at the outset when he was asked to affirm the contents of his BOC. The RPD did not err rejecting the Appellant's documentary evidence [36] Counsel argues that the RPD erred in giving no weight to the affidavit submitted by the Appellant's Nigerian solicitor and a police report obtained by this solicitor. Counsel contends that the RPD reasoned contrary to sections of the Canada Evidence Act because a public document from a Commonwealth police force obtained based on the sworn statement by an officer of a Commonwealth nation's court should be given the presumption of validity. Counsel asserts that the RPD's decision to give the documents no weight is tantamount to determining that the Appellant's solicitor "would commit perjury and a perversion of justice"31 to assist the Appellant. I disagree. [37] In its decision the RPD stated that the information contained in the affidavit submitted by the Appellant's solicitor was information the solicitor learned from the Appellant's spouse rather than witnessing any of the events or incidents himself. The RPD noted that the affidavit states the Appellant's life is being threatened "for their religious beliefs for the divide which their XXXX has caused their members and group".32 The RPD asked the Appellant what his solicitor meant by "divide" and the Appellant testified that it was reference to politicians who are "getting groups to hunt us" because the politicians attempt to bribe people and the Appellant instructs people not to take bribes.33 The RPD afforded no weight to the affidavit since the Appellant's solicitor did not witness any of the events or incidents described.34 I agree with the RPD and do not find the RPD erred in giving the affidavit no weight. The RPD did not state the contents of the affidavit were invalid but that the solicitor's knowledge of the incidents or events emanated from what was learned from the Appellant's spouse. While the solicitor can speak to what the Appellant's spouse told him, he is not able to speak to the validity of the Appellant's allegations since he did not personally witness any events or incidents. The RPD did not err in rejecting the affidavit. [38] The RPD gave the Police report, obtained by the Appellant's solicitor, no weight since the report repeats "word for word the information provided in the affidavit."35 I agree with the RPD and find the RPD did not err in giving the Police report no weight. The transcription of the information in the affidavit into a Police report, based on information gleaned from the Appellant's wife rather than the deponent's first-hand account of events or incidents, does not lend credibility to the events or incidents actually occurring as alleged by the Appellant. As a result, the report does not provide probative value in establishing the events or incidents occurred as described. Since, the RPD did not state the affidavit or report were fraudulent or elaborations, giving the documents no weight is not tantamount to accusing the solicitor of committing perjury or perverting justice but based on the relevance of the documents to the Appellant's allegations. CONCLUSION [39] After independently assessing all the evidence, I find that the Appellant's allegations are, on a balance of probabilities, not credible. The RPD was correct in finding that the Appellant failed to credibly establish, on a balance of probabilities, that his life is being threatened by Fulani herdsmen, Miyetti Allah and politicians supporting these groups. I find the Appellant has not credibly established that he faces a serious possibility of persecution or a personal risk to life, or a risk of cruel and unusual treatment, or a danger of torture, upon return to Nigeria. [40] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither Convention refugee nor a person in need of protection. Aaron Smith Aaron David Smith 04-12-2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 P-2, Appellant's record, Memorandum of Argument, page 25. 3 Maldonado v. M.E.I., [1980] 2 FC 302 (C.A.). 4 Shulha v. Canada (Minister of Citizenship and Immigration), 2004 FC 1191 at paras. 25-27. 5 Ibid. at para. 27; Hamidi v. Canada (Citizenship and Immigration), 2015 FC 243 at para. 28; Aragon v. Canada (Minister of Citizenship and Immigration), 2008 FC 144 at para. 21; Gonzalez Hernandez v. Canada (Citizenship and Immigration), 2012 FC 1097 at para. 35. 6 Audio of RPD's Hearing on November 15, 2019 at 43:13, 43:50, 1:30:48, 1:33:43, and 1:35:42. 7 Ibid., at 1 :33:43. 8 Ibid., at 1:33:42. 9 Ibid., at 58 :40. 10 Ibid., at 1:31:51. 11 RPD-1, RPD record, Reasons, November 25, 2019, pp.6-7, para 11. 12 Audio of RPD's Hearing on November 15, 2019 at 22:17. 13 Audio of RPD's Hearing on November 15, 2019 at 1:23:43. 14 Ibid., at 1:25:32. 15 Ibid., at 22:17. 16 P-2, Appellant's record, Memorandum of Argument, page 25. 17 RPD-1, RPD record, Reasons, November 25, 2019, page 5, para 6. 18 Ibid., page 6, para 8. 19 P-2, Appellant's record, Memorandum of Argument, page 26. 20 Fedadov v Canada (Minister of Citizenship and Immigration), 2007 FC 101 at para 18. 21 Basseghi, Kourosh v. M.C.I. (F.C.T.D., no. IMM-2227-94) 22 P-2, Appellant's record, Memorandum of Argument, page 26. 23 Wai Kheong Ching v. Canada (M.C.I.) 2015 FC 725, para. 75; Zheng v. Canada (M.C.I.), 2011 FC 1359, para. 7. 24 Nemeth v. Canada (M.C.I.), 2003 IPFC 590, para. 10. 25 Audio of RPD's Hearing on November 15, 2019 at 1:33:43. 26 Ibid., at 1:35:42. 27 P-2, Appellant's record, Memorandum of Argument, page 26. 28 Ibid., at page 26. 29 RPD-1, RPD record, Reasons, November 25, 2019, page 6-7, para 11. 30 Audio of RPD's Hearing on November 15, 2019 at 22:17. 31 P-2, Appellant's record, Memorandum of Argument, page 29. 32 RPD-1, RPD record, Reasons, November 25, 2019, page 9, para 18. 33 Audio of RPD's Hearing on November 15, 2019 at 1:57:57. 34 RPD-1, RPD record, Reasons, November 25, 2019, page 9, para 18. 35 Ibid., at page 9, para 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-29751 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