TB8-27039

RAD File / Dossier de la SAR : TB8-27039 TB8-27040 / TB8-27041 / TB8-27042 TB8-27043 / TB8-27044 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX XXXXXXXX XXXX XXXX (a.k.a XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 12, 2019 Date de la décision Panel N. Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Henry Igbinoba Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Appellants, XXXX XXXX XXXX and her minor sons XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, and minor daughter XXXX XXXX XXXX, all appeal the decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. [2] The mother of the children, the principal Appellant, acted as the designated representative. [3] The Appellants have submitted new evidence in support of this appeal and request an oral hearing before the Refugee Appeal Division (RAD). The Appellants ask the RAD to substitute a finding that they are Convention refugees or persons in need of protection. In the alternative, the Appellants ask the RAD to refer the matter back to a different member of the RPD for a redetermination. DETERMINATION [4] The appeal is dismissed. Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are not Convention refugees nor persons in need of protection. Background [5] The Appellants had their claims for refugee protection heard by the RPD over the course of two sittings, July 24, 2018 and October 2, 2018. Their claims were denied in a written decision on October 3, 2018. [6] The Appellants allege that the minor daughter (born XXXX 2014) will be forced to undergo female genital mutilation (FGM). The principal Appellant refused along with her husband yet they were threatened by the husband's extended family members. Attempts were made to abduct the minor female Appellant. [7] The Appellants travelled to Canada on XXXX XXXX, 2017 and made port of entry refugee claims. [8] They fear FGM will be performed on the minor female Appellant and that family members will harm them all based upon the principal Appellant's refusal to submit her daughter to the practice. Role of the RAD [9] When reviewing the RPD decision, I am required to independently assess all the evidence and determine whether the RPD erred in relation to each alleged error of law, fact or mixed fact and law. For this assessment, I have applied the standard of correctness as per the Federal Court of Appeal decision in Huruglica.1 If I find that the RPD had a meaningful advantage in a particular circumstance I may defer to the RPD's credibility assessment of oral testimony. RPD findings [10] The RPD found that the determinative issues were both credibility and an internal flight alternative (IFA). The RPD found that the principal Appellant was lacking in credibility as well as many of the documents submitted to corroborate her claim. The RPD also found the Appellants to have an IFA in Port Harcourt. Appellants' Arguments [11] The Appellants argue that the RPD erred in both its credibility and IFA assessment. With respect to the credibility findings, the Appellants argue that the RPD erred in the following ways: * in analyzing the supporting documents, * in not considering the principal Appellant's explanation for errors, * misapprehending the evidence, and * selectively assessing the evidence. [12] With respect to the IFA, the Appellants argue that the RPD erred in finding Port Harcourt is a reasonable IFA. [13] The Appellants also submit new evidence2 in their appeal and request an oral hearing. RAD Analysis [14] Having reviewed the evidence before the RPD as well as the RPD Reasons3 I find the determinative issue to be credibility. I will only be addressing the issue of credibility in my decision. [15] In general, I find that the RPD did not err in its credibility assessment. The RPD was respectful, diligent, fair, and transparent. The RPD reasons comprehensively addressed the numerous credibility problems in this claim. While there were findings made by the RPD that were microscopic in nature, these were not determinative nor fatal to the overall decision. The principal Appellant was lacking in credibility. Many of her documents submitted to corroborate her claim were inconsistent or contradictory to her allegations. Her testimony did not alleviate the numerous inconsistencies. I concur with RPD that the Appellants' claims were lacking in credibility on a balance of probabilities. [16] Because of the nature of the allegations in this matter, I have considered and, where appropriate, applied the Chairperson's Gender Guidelines.4 New evidence [17] The Appellants submit two documents as new evidence in their appeal and are requesting an oral hearing5. Subsection 110(4) of the IRPA provides that Appellants "...may present only 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." [18] If the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.6 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [19] The Appellants' Memorandum refers to irrelevant jurisprudence on the test for new evidence7. This is not the correct test, as the test is set out in the legislation as well as related jurisprudence as stated above. While the Memorandum erroneously refers to the wrong legislative test, I have applied the correct test. [20] The first document is a sworn affidavit from Mr. XXXX XXXX and is dated October 25, 20188. The author appears to be a cousin of the principal Appellant. The affidavit confirms the author's knowledge of the events leading the Appellants to seek refugee protection and refers to events that occurred on August XXXX, September XXXX and October XXXX 2018 where members of the principal Appellants husband's family have threatened the principal Appellant's husband, who resides in Nigeria. [21] The second document submitted is a sworn affidavit from Mr. XXXX XXXX, dated November 7, 2018.9 This affidavit appears to be from an individual originating from the same town as the principal Appellant's husband. He indicates in his affidavit that the community is in search of the Appellants and that the community sanctioned the principal Appellant's husband on October XXXX, 2018 and ordered him to dissolve his marriage. [22] In applying the subsection 110(4) factors I find that much of the new evidence refers to issues that were already before the RPD and are therefore inadmissible, such as the threats from family, the allegations of being sought, and the events up until the RPD decision. The details on both documents that refer to events that post-date the RPD decision which includes threats from October XXXX, 2018 and the community ordering the principal Appellant's husband to "disengage from the marriage" with the principal Appellant (October XXXX, 2018) are new. I will consider these events as they post-date the RPD rejection and are therefore admissible under subsection 110(4). [23] In applying the adapted Raza factors endorsed in Singh, I find that this new evidence is admissible as it meets the factors in the jurisprudential test. Therefore, the specified new events that post-date the RPD decision will be considered in the context of the appeal. [24] Based upon my analysis of the evidence before the RPD, which follows, I find that this new evidence does not outweigh the numerous credibility problems with the Appellants' claims. There are numerous inconsistencies and contradictions that are not reasonably explained in these claims and the principal Appellant has demonstrated her complicity in putting forth documents lacking in credibility. [25] The Appellants' request for a hearing is denied as I find that although I have accepted parts of the new evidence, it does not justify allowing the refugee claims.10 Psychological report [26] The Appellants submit that the RPD erred in its assessment of the principal Appellant's credibility as it did not consider her mental state. The Appellants state that errors found in the psychological reports demonstrate the principal Appellant's diminished mental health and problems with the reports should not impugn her credibility. [27] I do not agree with this submission by the Appellants. The RPD considered both of the psychological reports submitted.11 The first report discussed the Appellant's reasons for leaving Nigeria and it indicates that the information came from the Appellants' Basis of Claim (BOC) form and also directly from the principal Appellant. This first report indicates that the principal Appellant had suicidal ideation based upon her husband marrying another woman. This allegation is nowhere in the Appellants' claim. The principal Appellant testified before the RPD that this information was incorrect and that her husband had previously had an affair but never married. A second report from Dr. Pilowsky was submitted to the RPD.12 This second report also contained information not found in the BOC, that the principal Appellant is "escaping" her husband. This is also not the allegation found in the BOC. The RPD asked the principal Appellant about information in the second report and the principal Appellant conceded that this information was also incorrect. [28] The RPD accepted the diagnosis made by the psychologist and made accommodations for the principal Appellant, including allowing for an adjournment part way through the first sitting. The RPD did find that the report carries diminished weight beyond the diagnosis due to contradictions in the report regarding the Appellants' allegations. I find this aspect of the report undermines the principal Appellant's overall credibility. While the Appellants argue that the misinformation demonstrates the principal Appellant's mental state, and the RPD should have considered this, by the same logic the allegations put forth by the principal Appellant in her BOC are also undermined as they too are originating from the principal Appellant. I see no error in the RPD impugning the credibility of the principal Appellant based upon contradictory information contained in the two psychological reports. [29] Furthermore, having listened to the hearings, the principal Appellant provided similar explanations for other errors in her documents; that affiants made mistakes in their statements as well. The psychological reports are not the only pieces of evidence that contain mistakes. There are many mistakes in the Appellants' evidence and this undermines the credibility of their entire claim. The RPD did not ignore evidence [30] The Appellants submit that the RPD erroneously ignored corroborating affidavits and a police report. Oddly, the Appellant then states that the RPD weighed the evidence, though it found it inexplicable13. I do not agree with this submission. The RPD demonstrated a comprehensive evaluation of all of the evidence in the claim. The RPD had concerns with specific pieces of evidence and addressed it. The RPD also noted other corroborating evidence, such as the police report, but found that it did not outweigh the negative credibility findings in the claim.14 This is not ignoring evidence but, rather, weighing the evidence which the RPD was correct in doing. I see no error in the RPD analysis of documents in this case. The RPD did not selectively assess the evidence [31] The Appellants submit that the RPD selectively addressed the evidence in this case. They refer first to the attempts to abduct the minor female child and characterize it as being "corroborated by uncontradicted evidence."15 This is, once again, an incorrect characterization of the RPD's findings. The RPD asked the principal Appellant about an attempted abduction that allegedly took place on March XXXX, 2017. The principal Appellant testified that she stayed with a friend, XXXX, for three days and then went to her sister, XXXX. The corroborative evidence from the friend, XXXX, indicates that the principal Appellant and her daughter stayed with her for three days.16 However the affidavit from the principal Appellant's sister, XXXX, indicates that the principal Appellant and her daughter arrived on March XXXX, 2017 which is 6 days after staying with XXXX.17 The principal Appellant's explanation for this inconsistency was that her sister forgot the date, essentially that there was a mistake on the affidavit. There is no error in the RPD's analysis of this evidence. Furthermore, this evidence was considered in relation to a plethora of other evidence which the RPD considered and found lacking in credibility. [32] The Appellants also submit that the RPD selectively analyzed the objective evidence when it relied on a Response to Information Request (RIR) found in the National Documentation Package (NDP) on the issue of female genital mutilation. The Appellants indicate that the RPD relied on a finding that "nobody would walk into someone else's home to circumcise their child".18 This is not a finding made by the RPD but this statement emanates directly from the objective evidence in the NDP.19 The RPD was not obligated to examine the objective evidence in this case, as the determinative issues were credibility and IFA. However the RPD went further in its analysis to examine the objective evidence to find that the situation the Appellants are alleging is highly unlikely based upon the objective evidence on FGM. I see no error in the RPD analysis. [33] The Appellants quote from the objective evidence to make the point that police protection is not available. State protection was not a determinative issue in this claim and therefore I will not be addressing these arguments nor will I address the evidence found in the NDP on the issue of FGM. The Appellants fail to address numerous credibility findings made by the RPD [34] The RPD made extensive credibility findings in its decision. Many were not argued by the Appellants and I find that many of them are serious and substantial. For example, the Appellants had submitted before the RPD an affidavit from the brother-in-law of the principal Appellant referring the practice of FGM in their family.20 He states that the tradition is to circumcise female children at three months of age. According to the BOC of the principal Appellant she was informed by her husband's family that they practice FGM on female children at three years of age.21 When this inconsistency was put to the principal Appellant she once again stated that there was an error in the affidavit. [35] Other more basic and less central issues were also discussed at the RPD hearings and the principal Appellant's testimony differed from her evidence. For example, the RPD asked the principal Appellant basic questions about herself such as where she lived in Nigeria, where she worked, how long she worked etc. The principal Appellant was unable to provide a consistent response. When she was asked about her most recent address in Nigeria, she said she was living on "XXXX Street" (phonetic). She testified that she lived there for two years and prior to that lived at "XXXX Road" in XXXX. The RPD asked the principal Appellant if she lived anywhere else in Nigeria and she testified that she did not. According to the Schedule A form22 completed by the principal Appellant, she lived at "XXXX Street" for one year just prior to coming to Canada, and four years at "XXXX XXXX Road". When asked why she provided a different account of her address history in her testimony the principal Appellant stated she "did not understand the question." Reviewing the hearing I do not find the principal Appellant's response to be credible. She clearly testified to her addresses, demonstrating her understanding of the question. [36] In another instance, the RPD asked the principal Appellant about her employment history. She was asked about her work as an XXXX in the Edo State XXXX XXXX XXXX. According to the immigration forms she completed, she worked in the State XXXX XXXX XXXX for three years from 2014 to 2017.23 When asked about her work the principal Appellant testified the following: RPD MEMBER (RPD): How long did you work there? APPELLANT (A): I work there for few months. RPD: A few months? A: Yeah. RPD: How many months? A: Almost eight months. RPD: Did you ever work anywhere else? A: No.24 [37] When asked why she indicated three years on her forms the principal Appellant said "Three years? No." This testimony also contradicts the employment documents the principal Appellant submitted that indicate she was working for the Edo State XXXX XXXX XXXX beginning in September 2014 and promoted in 2016.25 Her testimony not only does not reasonably explain why she indicated three years on her immigration forms but also undermines the credibility of her education documents. [38] Finally, when asked about what her husband does for a living the principal Appellant was only able to state that he is a "politician". She was unable to specify which party he belonged to and could not say anything specific about the work he did. Considering the principal Appellant's level of education, and sophistication26, the RPD correctly found the principal Appellant was lacking in credibility. [39] In summary, I do not agree with the Appellants' submissions in this appeal. The RPD conducted a comprehensive assessment and analysis of the credibility of the Appellants' claims. Taking into consideration the mental health of the principal Appellant, credibility issues were not only a concern with respect to the principal Appellant's testimony, but with many of the documents. When considered as a whole there were numerous credibility issues in the claims and I see no errors in the RPD analysis on credibility. I agree with the RPD findings that the Appellants are lacking in credibility. New evidence does not outweigh the credibility concerns inherent in the claims [40] The new evidence that was admissible in the appeal relate to further threats. In considering the source, as well as the timing of the new threats, and considering this evidence in relation to the claims as a whole I do not find this new evidence sufficiently outweighs the numerous credibility problems in the claims. This appeal is dismissed. CONCLUSION [41] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "N. Qadeer" N. Qadeer March 12, 2019 Date 1M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellants' Record. 3 Exhibit RPD-1, RPD Record, Reasons and Decision. 4 Immigration and Refugee Board of Canada, Chairperson Guidelines 4:Women Refugee Claimants Fearing Gender Related Persecution, Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 5 Exhibit P-2, Appellant Record, pp. 20-21.. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para 64. 7 Public School Boards'Assn. of Alberta v. Alberta (Attorney General) 2000 SCC 2. 8 Exhibit P-2, Appellants' Record, at p.75. 9 Ibid, p. 76. 10 Subsection 110(6)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. 11 Exhibit RPD-1, RPD Record, Exhibit 12, at p.528-531. 12 Exhibit RPD-1, RPD Record, Exhibit 15, amended psychological report, at pp. 555-559. 13 Exhibit RPD-1, RPD Record, Reasons and Decision at para. 33. 14 Exhibit RPD-1, RPD Record, Reasons and Decision at para. 33. 15 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 86 at para.32. 16 Exhibit RPD-1, RPD Record, Exhibit 13, at pp.538. 17 Exhibit RPD-1, RPD Record, Exhibit 12, at p. 512. 18 Exhibit P-2, Appellants' Record, at para.31. 19 Exhibit RPD-1, RPD Record, Exhibit 8, National Documentation Package (NDP) for Nigeria, 10 July 2018, item 5.12. Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR). NGA104220.E. 21 November 2012. 20 Exhibit RPD-1, RPD Record, Exhibit 13 at p. 534. 21 Exhibit RPD-1, RPD Record, Exhibit 2, at paragraph 7. 22 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 366. 23 Ibid, at p. 365. 24 Audio of RPD Hearing. 25 Exhibit RPD-1, RPD Record, Exhibit 13 at pp. 548-549. 26 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A; indicates the principal Appellant has a Bachelor of Science Degree and has travelled to Europe and the UAE in the past. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27039 TB8-27040 / TB8-27041 / TB8-27042 TB8-27043 / TB8-27044 RAD.25.02 (September 18, 2018) Disponible en français 11 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 (September 18, 2018) Disponible en français