MB9-22867

RAD File / Dossier de la SAR : MB9-22867 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 30, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Claudia Aceituno 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. The Appellant, XXXX XXXX XXXX, is a citizen of Nigeria. The Appellant has not applied to admit new evidence, pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) nor has she requested an oral hearing, under subsection 110(6) of the IRPA. Digital audio recordings for the three days of the hearing are available, but not a transcript. I listened to the recordings. Summary of Basis of Claim (BOC) narrative [2] A neighbour, XXXX XXXX XXXX XXXX XXXX XXXX1 asked the Appellant's husband to join the group Boko Haram. He was also advised him to take their 13-year old daughter out of school and make her available for marriage. The Appellant confronted XXXX XXXX XXXX XXXX XXXX XXXX several days later and told him to stay away from her family. Her brother-in-law, D.Y. witnessed this and warned XXXX XXXX XXXX XXXX XXXX XXXX that he would report him to the police for recruiting people to Boko Haram. The brother-in-law was followed home from prayers at the mosque on the following Friday and killed at his house. The Appellant reported this to the police, but they were not able to protect people from Boko Haram. She was able to leave Borno State on March 24, 2018, arriving in Lagos on XXXX XXXX, 2018. She then flew to the United States (U.S.), arriving the next day. She took a taxi to the Canadian border and entered Canada on XXXX XXXX, 2018. Refugee Protection Division (RPD) Reasons for Decision [3] The RPD rejected the claim for the following reasons: i) There are significant omissions and contradictions between oral testimony and the BOC narrative. Omissions seriously undermine her credibility; ii) Contradictions concerning the death of the Appellant's brother-in-law undermine her credibility; iii) Contradictions regarding the alleged sexual assault undermine her credibility; iv) As a result of adverse credibility findings, no probative value was given to the affidavit of the Appellant's brother's; and v) Other supporting documents have errors on their face and are insufficient to overcome credibility concerns. Grounds for the Appeal [4] The Appellant submits that the RPD erred in the following ways: i) The RPD erred in its credibility assessment; ii) The RPD erred by indulging in microscopic analysis of the Appellant's testimony; iii) The RPD erred by giving limited weight to the evidence; iv) The RPD failed to respect the presumption of truth; and v) The RPD failed to accept reasonable explanations regarding the omissions. Summary of Refugee Appeal Division Decision [5] The determinative issue for the appeal is credibility. The RPD considered all of the evidence and correctly concluded that the Appellant is not a credible witness and that the supporting documentary evidence is unreliable. DECISION [6] 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. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The RPD did not err by failing to accept reasonable explanations for contradictions and omissions The February 14, 2018 attack [8] According to the BOC narrative signed on May 25, 2018, the Appellant's brother-in-law was killed by unknown gunmen at his home following Friday night prayers at the mosque. The date is not given. [9] A letter from the University of Maiduguri Teaching Hospital dated XXXX XXXX, 2019, states that the Appellant was admitted on XXXX XXXX, 2018, for treatment of a gunshot wound to XXXX XXXX XXXX XXXX.3 She was discharged twenty-one days after the bullet was removed. A certificate from the same hospital dated February 14, 2018 indicates that the Appellant's brother-in-law died from a gunshot wound on February 14, 2018.4 An affidavit from her brother, XXXX XXXX XXXX XXXX confirms the event.5 According to a Nigeria Police diary extract dated March 17, 2018, the Appellant reported on that day that Boko Haram attacked her home on February 14, 2018 at which time her brother-in-law was shot dead. She was also injured and had just left the hospital.6 She filed a handwritten note which states that she was hospitalized for one month and three days beginning on XXXX XXXX.7 [10] The Appellant testified that her house was attacked on XXXX XXXX, 2018 and burned when she was in hospital. This date was a Wednesday. She testified that her brother-in-law was killed in front of her during the attack when he tried to run back into the house. The police report also indicates that the brother-in-law was killed at her house. This contradicts her BOC narrative according to which he was killed at his home after Friday prayers. The RPD drew an adverse inference from this inconsistency. In addition, the Appellant testified that her house was burned when she was in hospital, but there is no mention of this in either her BOC narrative or in her subsequent handwritten note. [11] The RPD did not accept the explanation that someone at the shelter wrote the narrative for her. According to the BOC, it was prepared with the assistance of the same counsel who represented her at the hearing. In addition, by signing the BOC, the Appellant declared that it was complete, true and correct.8 The RPD concluded that she did not provide a reasonable explanation for the inconsistency. In addition, the two hospital statements concerning the events of XXXX XXXX, 2018 were given no weight because the name of the state is misspelt in the letterhead of her medical letter and in the hospital stamp of her brother-in-law's death certificate. The affidavit from her brother, XXXX XXXX XXXX., is unreliable because of a significant inconsistency. The Appellant testified that she travelled to Lagos on her own, whereas her brother's affidavit states that he went to XXXX in Borno to bring her back to Lagos. The photograph of the burnt house and car provides no contextual information which could give it probative value in itself.9 [12] The RPD did not err in this assessment. The inconsistencies are material and go to the root of the claim. The BOC narrative was drafted with the assistance of counsel, and no BOC amendment was filed which outlines important issues which should have been included. [13] The Appellant testified that she wrote the BOC narrative in a shelter and that her lawyer only went through what she already wrote. She was not aware that there were mistakes until the hearing. Counsel then interjected and stated that she met with the Appellant four weeks before the hearing and went through the narrative. After review, the Appellant told counsel that it was accurate. The Appellant then confirmed that what counsel said was true. The Appellant went on to say that she did not know that she would be asked questions and did not know what to write. However, when asked by the RPD if counsel told her that there would be a hearing, the Appellant responded yes. When asked if counsel gave her instructions, the Appellant stated that she thought that the narrative she gave to counsel would be enough. [14] The RPD did not err in rejecting this explanation. The BOC narrative contains reference to the attached document in response to questions in section 2. A typewritten narrative is then attached. Section 9 indicates that the BOC was prepared with the assistance of the same counsel who represented her at the hearing. This counsel is a member of the Quebec Bar. The RPD inquired into the Appellant's ability to understand English and correctly determined that she likely understood the contents of the BOC. The Appellant declared that the information in the BOC form is complete, true and correct. Counsel confirmed at the hearing that she reviewed the narrative with the Appellant and was told that it was accurate. The RPD assessed the fact that the Appellant is XXXX XXXX who takes medication, and correctly concluded the evidence does not establish that this factor likely affected her memory. [15] The RPR identified errors in the spelling of the state (Bornu instead of Borno) in the letterhead of one of the statements from the University of Maiduguri Teaching Hospital and in the wet stamp on the other one. In addition, the police report incorrectly identifies the day of the report, March 17, 2018 as being a Sunday instead of a Saturday. Her brother's affidavit materially contradicts her testimony. These anomalies in themselves are insufficient to conclude that the documents are not reliable. However, they are factors which may be taken into consideration in the context of an evaluation of the totality of the evidence. Information contained in these documents directly contradicts what the Appellant wrote in her BOC narrative about the death of her brother-in-law. In addition, no reference is made to an attack on her home, injuries that she sustained, or hospitalization in the BOC narrative. The handwritten note about hospitalization was filed during the hearing. Although the Appellant was assisted in the preparation of the BOC by counsel, she did not amend the BOC to include most of this information, and included other details later. When all of these factors are taken together, I conclude that the RPD did not err in its conclusion that the alleged events of February 14, 2018 did not likely occur and that the supporting documents should be given little weight. Sexual assault [16] Counsel requested an adjournment on the first day of the hearing held on June 13, 2019, after the Appellant informed her during the hearing that she had been sexually assaulted. The application was granted. [17] A BOC amendment was not submitted in accordance with the RPD rules.10 However, a handwritten note dated July 2, 2019 was filed by fax on July 9, 2019, one week before the resumption on July 16, 2019. According to the note, the Appellant does not remember the day of the attack, but remembers that it took place on a Saturday. Her brother-in-law came to her house when her husband was away. After waiting a long time for him to return, the Appellant went to XXXX XXXX XXXX XXXX XXXX XXXX's house to look for him. She was met by four men who told her to sit down because his husband would be back soon. They then raped her.11 [18] The Appellant testified that she could not recall the day of the week, but that the sexual assault took place on either January 15 or 16, 2018. She went to a doctor for a washing, but did not report this to the police because she did not want her husband to find out what happened. Although her younger brother was able to get the medical report about the February 14, 2018 incident, he was not able to get one from the doctor who treated her after the sexual assault. [19] The RPD first noted that the Appellant testified that she could not remember the day of the week when she was sexually assaulted, but that it was either January 15 or 16, 2018. The RPD noted that this was either a Monday or a Tuesday. However, she wrote in her handwritten note that this took place on a Saturday. When asked about the inconsistency, the Appellant changed her account and said that she knows that the sexual assault happened on a Saturday because it was not a working day for her husband. [20] The RPD did not accept the Appellant's explanation that the inconsistency can be attributed to forgetfulness resulting from the fact that she is XXXX XXXX. Although a medical report was filed which indicates that the Appellant is XXXX XXXX, it does not link this condition to memory loss. No evidence was filed which indicates that her physical condition or any medication that she was taking affected her memory. In addition, no application was made to file post-hearing evidence on this issue. [21] Although the Appellant did not raise the issue of the applicability of Chairperson Guideline 4, the RPD erred by failing to mention it.12 In particular, section D outlines special problems that women who have been victims of domestic violence may encounter. Some may be reluctant to disclose what happened out of shame or unwillingness to dishonour their family. Some may be experiencing Rape Trauma Syndrome or Battered Woman Syndrome which makes them reluctant to talk about what happened. In some cases, accommodations may need to be made in order to facilitate testimony outside of the hearing room. The decision-maker needs to be sensitive to the social, cultural, traditional and religious norms of the culture in light of the woman's personal circumstances. [22] The RPD made no mention of any of these factors, and counsel made no submissions about the issue either. The Appellant was represented by counsel beginning with the BOC preparation. A handwritten note was filed with the RPD, which indicates that the Appellant was sexually assaulted on a Saturday. She confirmed this at the hearing on the grounds that her husband was not working on the day in question. Although the note was filed one week before the resumption of the hearing, she initially testified that she could not remember the day of the week, but could recall the date. No psychological evidence was filed which indicates that the Appellant was experiencing memory problems which could reasonably explain her inability to remember what she recently wrote. Similarly, she did not submit expert evidence concerning any effects that a sexual assault may have had on her psychologically. Of particular note is the fact that she attempted to account for the inconsistencies on the basis of her XXXX, not because she was suffering from psychological impediments. The onus lies with the Appellant to present her case and to explain why she failed to include the allegation of sexual assault in her BOC narrative. She did not do so, notwithstanding the fact that she was represented by counsel. The Appellant did not reasonably explain the inconsistency, nor did she address the factors outlined in Guideline 4, which could explain delay in presenting the allegation. Although the RPD erred by failing to provide adequate reasons, I agree with the conclusion that the Appellant is not credible with respect to this issue. The RPD respected the presumption of truth and considered the totality of the evidence [23] The RPD is required to assess all significant documents. The RPD gave specific attention to the supporting documents and gave reasons why they were found to be unreliable. The RPD considered the totality of the evidence before arriving at its conclusion that the Appellant is not a credible witness and that the corroborative documents should be assigned little weight or probative value. My independent assessment of the RPD record leads me to agree with the RPD's conclusion, despite some errors in the RPD's reasons. [24] The presumption that sworn testimony is true can be rebutted if there are good grounds to do so. The RPD correctly concluded that the presumption has been rebutted on the specific facts of this case. [25] Therefore, the RPD did not err in its conclusion that the Appellant does not have a well-founded fear or persecution nor would she likely be killed, tortured or subject to cruel and unusual treatment or punishment if she returns to Nigeria. CONCLUSION [26] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) H. Shepherd H. Shepherd July 30, 2020 Date 1 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII). 3 Exhibit RPD-1, RPD Record, Exhibit 1,, p. 145. 4 Ibid., p. 146. 5 Ibid., p. 148. 6 Ibid., p. 147. 7 Ibid., p. 141. 8 Exhibit RPD-1, RPD Record, Exhibit 2, p. 41. 9 Idib., Exhibit 1, p. 143. 10 Refugee Protection Division Rules (SOR/2012-256). 11 Exhibit RPD-1, RPD Record, p. 125. 12 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines issued by the Chairperson pursuant to Section 65(3)of the Immigration Act, IRB, Ottawa, Effective date: November 13, 1996. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-22867 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