VB9-07589

RAD File / Dossier de la SAR : VB9-07589 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 Vancouver, BC Appel instruit / entendu à Date of decision October 9, 2020 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the person who is the subject of the appeal Cynthia Bergevin 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. XXXX XXXX XXXX (Appellant), a citizen of Nigeria, appeals a decision by the Refugee Protection Division (RPD) dated September 9, 2019. [2] The Appellant fled Nigeria because he fears persecution as a Biafran who supports the establishment of an independent Biafran State. The RPD found that the Appellant was not credible in his claim for refugee protection. The Appellant argues on appeal that the RPD did not consider all the evidence. The determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in finding that the Appellant is not credible with respect to his claim. [3] I find that the RPD did not err. I find that the Appellant is not credible with respect to key elements of his claim. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. NEW EVIDENCE The Evidence Presented by the Appellant at Perfection is Rejected [5] The Appellant seeks to introduce the following as new evidence: a) MASSOB wants a United States of Biafra from Nigeria, article dated March 9, 2017; b) Biafra: Why a United States of Biafra, USB, is a reality article September 12, 2018; c) United States of Biafra article dated July 19, 2019; d) Bill of Rights for Africa, article from book copyright in 2019; and, e) Letter from XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2019. [6] In order to be considered, new evidence must meet the requirements of section 110(4) of the Immigration and Refugee Protection Act (IRPA)2 and the Singh/Raza3 factors being credibility, relevance and newness. [7] According to the law,4 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.5 [9] In terms of evidence that arose after the rejection of the claim, it is the content of the evidence and not the date of the document that is determinative. With respect to the admissibility of new evidence, the burden lies with the Appellant. The RAD applies a narrow interpretation of section 110(4). This is not an opportunity to complete a deficient record submitted before the RPD.6 It is expected that full and detailed submissions on the admissibility and the relevance of the proposed new evidence will be included.7 The articles that pre-date the RPD decision are not accepted as evidence. [10] The three articles from the media that were published before the RPD decision are not accepted as evidence. The Appellant argues that he could not reasonably have been expected to have presented this evidence to the RPD. I do not agree. The Appellant was represented by Counsel at the RPD, so the Appellant has the onus to present sufficient, credible evidence to the RPD to establish his claim. The Appellant argues that these articles establish a fact that is key to a credibility finding of the RPD. I do not agree. These articles speak to United State(s) of Biafra as a political goal or aspiration, not as an organization to which the Appellant belongs and that is central to his claim. An article from Africa in the Twenty-First Century: The Promise of Development and Democratization is not accepted as evidence. [11] The Appellant seeks to introduce a page from an article by Rufus T. Akinvele titled "Bill of Rights for Africa: Uneven Regional Development and Indigenous Peoples Protest."8 [12] I am not able to independently determine from the information before me if the article predates or post-dates the RPD decision. In the Appellant's Memorandum, the Appellant states that this article, along with the three articles I have already considered, was published before the RPD decision. [13] I accept the Appellant's statement and I find that the article pre-dates the RPD decision. For the reasons set out above, I do not accept the Appellant's explanation that he could not reasonably have been expected to have presented this evidence to the RPD. A letter from XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2019 is not accepted as evidence [14] The Appellant seeks to introduce a letter from XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2019 into evidence. The letter is dated after the RPD decision. The Appellant argues that the letter is credible in that it is signed and on letterhead. The Appellant also argues that the letter provides new evidence. I do not agree. The letter does not contain new information, in fact the information in the letter was before the RPD. The Appellant argues that "it is possible to believe that this new evidence would probably have changed the decision of the Tribunal."9 I do not agree. The letter seeks to repair credibility issues identified by the RPD. While the letter is new in the sense that it is dated after the date of the RPD decision, the information in the letter is not new. The letter seeks to answer concerns raised by the RPD. The Appellant argues that he could not reasonably have been expected to have presented this evidence to the RPD. I do not accept this explanation. The Appellant was represented by Counsel at the RPD, the onus is on the Appellant to adduce sufficient credible evidence at the RPD to support his claim. Late evidence is rejected [15] In a submission dated December 14, 2019, the Appellant seeks to introduce the following documents as new evidence: a) Affidavit from the Appellant dated December 14, 2019 b) Letter from XXXX XXXX XXXX XXXX dated XXXX XXXX XXXX 2019 [16] RAD Rule 2910 allows the Appellant to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of section 110(4) of the IRPA and how that evidence relates to the Appellant. [17] In deciding whether to allow an application for late submissions or late evidence, I must consider any relevant factors, including: a) the document's relevance and probative value; b) any new evidence the document brings to the appeal; and, c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [18] The Appellant's application to admit these documents states that they are credible and pertinent. The Appellant provides no explanation as to why the letter from XXXX XXXX XXXX XXXX is credible. The affidavit from the Appellant is a sworn document. The Appellant argues that the documents are relevant because they provide details of the whereabouts of the Appellant's wife and children. The Appellant argues that the documents are new and speak to events that arose after the Appellant's hearing. [19] I have examined the documents and I find they are not admissible as evidence. [20] I find that the Appellant's affidavit has no probative value. The determinative issue in this appeal is whether the RPD erred in finding the Appellant's claim for refugee protection was not credible. The Appellant's affidavit does not provide new information that is relevant to the determinative issue. The details of his wife's stay with XXXX XXXX XXXX were included in a letter from his wife that was before the RPD. The Appellant restates and reframes details of that stay, but he does not establish that he has new evidence regarding any interaction with the Nigerian authorities based on political opinion. The Appellant relates the recent movements of his wife and children in Nigeria, but he does not provide any explanation as to how he knows these details. The Appellant does not explain the relevance to his appeal of this update of his wife's movements and attempts to leave Nigeria. [21] I find that the letter from XXXX XXXX XXXX XXXX has no probative value. The letter states that the Appellant's wife and their four children attempted to cross the border from Nigeria into Ghana but were unable to do so because of border closures. The letter says the Appellant's wife communicated that she intended to make a second attempt to cross the border and has not been heard from since. The Appellant has not provided any information regarding the author of the letter or the letter's provenance. The Appellant has not provided an explanation as to why the contents of the letter are relevant to his claim. NO ORAL HEARING [22] Where I have not admitted new evidence in this case, I cannot hold an oral hearing as requested by the Appellant. ANALYSIS [23] My role is to look at all the evidence and decide if the RPD made the correct decision.11 [24] I have conducted my own independent analysis of the evidence that was before the RPD and the arguments that the Appellant makes upon appeal. [25] Testimony before the Immigration and Refugee Board (IRB) is presumed to be true unless there are valid reasons to doubt its truth.12 The RPD canvassed the jurisprudence regarding credibility in its decision.13 [26] The RPD had four main concerns with the Appellant's claim: 1. Material omissions from the Appellant's BOC; 2. Material Contradiction with respect to medical evidence; 3. Material Contradiction with respect to documentary evidence; and, 4. Material Contradiction with respect to political affiliation and activities [27] I have conducted my own independent analysis of the record. I agree with the RPD that the Appellant did not provide an acceptable explanation for the omissions, inconsistencies and contradiction when the RPD put the omissions, inconsistencies and contradictions to the Appellant. I find that the RPD did not err in finding that the Appellant is not credible for the reasons that follow. Material Omission [28] The RPD found that the Appellant's Basis of Claim (BOC) contained a serious material omission. The Appellant's BOC does not mention death threats he received between XXXX 2015 and XXXX 2016 as a result of his political activities. When the RPD asked the Appellant to describe when he was first threatened in Nigeria, the Appellant testified that he had received these death threats. The Appellant testified that he received weekly death threats between XXXX 2015 and XXXX 2016. He initially testified that these threats were text messages, then subsequently referred to both text messages and phone calls in his testimony. [29] When the RPD asked the Appellant why there was no mention of the death threats in his BOC, the Appellant replied that he did not want to make his BOC too long. The RPD did not accept this explanation. The Appellant was advised by Counsel when he filled out his BOC and also at the RPD hearing. The Appellant affirmed the accuracy of his BOC to the RPD at the opening of the RPD hearing and he declined an opportunity to amend it. [30] The RPD found that the omission of the death threats from the Appellant's BOC was a serious material omission that undermines the Appellant's credibility. I agree with the RPD. I find that the omission of the death threats, which are core to his claim, undermines the Appellant's credibility. The Appellant was represented by experienced Counsel both in the preparation of his BOC and at his proceedings before the RPD, so the fact that he did not amend his BOC and had no reasonable explanation for the omissions are factors that properly weigh against his credibility. [31] The BOC omissions here were not found to be minor or collateral, but instead were important to the Applicant's claim. The Federal Court found in Jele v. Canada that omissions and contradictions are a reasonable basis for doubting an applicant's credibility.14 Material Contradiction with respect to medical evidence [32] The RPD took a negative inference from a material contradiction between the Appellant's testimony and the medical record he submitted in evidence to corroborate injuries he testified he received in a government attack on XXXX XXXX, 2016. The Appellant showed the RPD a large scar on his neck with visible marks from stitches. The Appellant testified that he received the scar from a bullet wound received that day, that he received stiches, and that the wound bled for several days. The RPD fully canvassed his wounds with the Appellant. The RPD put to the Appellant that the medical report he adduced in evidence described different injuries from the injuries he testified he received. The RPD describes the contradictions in detail and the Appellant's explanation in its RPD Reasons.15 I have examined the evidence and the RPD transcript. I agree with the RPD and find that the RPD did not err in taking a negative credibility inference. I take a negative inference from the contradictions and the Appellant's inability to provide an explanation. [33] The Appellant argues on appeal that the RPD erred in taking a negative credibility inference. The Appellant argues that the RPD is not an expert in foreign medical reports and was not qualified to assess the report. I do not agree. The RPD is required to test the evidence before it. In this case, the medical report does not mention significant injuries to the Appellant's neck such that they would bleed for several days and require stitches. When the RPD asked the Appellant to describe the injuries he received, the Appellant initially testified at the RPD that he received serious neck injuries on the day in question. The Appellant showed a scar on his neck to the RPD. The medical report describes bruises to his body and an x-ray of his leg. [34] The RPD did not err in assessing the evidence that was before it. There are obvious material contradictions between the medical report and the Appellant's testimony. When the RPD put the contradictions to the Appellant, he attributed the contradictions to the sloppiness of the Nigeran medical system and provided an explanation that he was complaining about his leg when he was at the hospital which was why an X-ray of his leg was taken. The RPD took a negative inference from the contradictions between the report that the Appellant adduced in evidence and his own testimony. The RPD questioned the authenticity of the medical report and gave it no weight. [35] I find that the RPD did not err in questioning the authenticity of the medical report and giving it no weight. I find that the there are obvious contradictions between the injuries the Appellant testified he received on XXXX XXXX XXXX 2016, and the injuries described in the medical report he adduced to corroborate his injuries. The medical report is cursory, lacks detail, and is poorly written. The Appellant's testimony describing his injuries evolved as the RPD put contradictions between his testimony and the medical report to the Appellant. Given the contradictions and the quality of the report itself, I find that, on a balance of probabilities, the report is not genuine. I give the medical no weight and I take a negative credibility inference. Material Contradiction with respect to documentary evidence [36] The RPD took a negative inference from documentary evidence submitted by the Appellant that the RPD found not to be genuine. I have conducted my own independent analysis of the evidence; I find the RPD did not err. [37] The Appellant submitted a media article with a picture that the Appellant says is of him. The person in the article is identified as being 27 years old, while the Appellant would have been 39 years old at the time. When the RPD put the discrepancy to the Appellant, the Appellant said that he had asked for his age to be lowered to deter the government from finding him. The RPD did not accept the explanation. [38] The Appellant submitted media articles from the Daily Sun and Punch that include the Appellant's picture and name. The Research Directorate of the IRB found that the publications are genuine, but that the articles citing the Appellant and his organization do not exist on the dates given by the Appellant. When the RPD put this discrepancy to the Appellant, the Appellant said that sensitive articles are taken down from the internet. The Research Directorate found genuine articles from these media outlets with similarly sensitive stories, however it did not find any mention of the Appellant or his organization. The RPD did not accept the Appellant's explanation. I find that the RPD did not err. I find that, on a balance of probabilities, the media articles are not genuine. [39] I agree with the RPD. I take a negative inference from the non-genuine articles submitted in evidence. Material Contradiction with respect to political affiliation [40] The RPD found material contradictions with respect to the Appellant's political affiliation and profile. I have examined the evidence and the Appellant's testimony. The determinative issue in this case is whether the RPD erred in finding that the Appellant was not credible. The Appellant grounds his claim for refugee protection on a fear of persecution based on his political opinion. The Appellant's political identity and activity are at the core of his claim. [41] When the RPD tested the Appellant's testimony and evidence regarding his political activities and affiliation, the Appellant did not provide consistent answers to the RPD regarding the name and activities of the group to which he belonged. The RPD fully canvassed the many inconsistencies in its reasons. I agree with the RPD and make its analysis my own. These are not peripheral details but rather they are central to the Appellant's claim. I find that the RPD did not err. I take a negative credibility inference. [42] The Appellant was unable to explain why he refers variously to the United State of Biafra (USB) and the United State(s) of Biafra and why the membership card he adduced in evidence is from the United State of Biafra (singular) when he had confirmed that the correct form of the organization's name was the Untied States of Biafra (plural). I discuss this inconsistency further when I consider the Appellant's arguments. [43] The Appellant was unable to explain to the RPD why his home organization, the USB, is not mentioned as an organization in the many pages of documentation in the NDP for Nigeria or in other credible sources. [44] The Appellant was not able to discuss the structure of the Biafran independence movement, although he says that he was the social media coordinator for an organization he claims is part of the movement. When the RPD asked the Appellant for the name of the umbrella organization promoting Biafran independence, the Appellant first named MASSOB (Movement for the Actualization of the Sovereign State of Biafra). When the RPD asked if there was another name for the umbrella organization besides MASSOB, the Appellant named IPOB (Indigenous People of Biafra). Both MASSOB and IPOB are important constituents of the umbrella organization that was called the Biafra Peoples National Council during the period the Appellant says he was a political activist and served in a leadership position as social media coordinator. The Appellant did not identify the Biafra Peoples National Council as the umbrella organization for Biafran independence. Specific Arguments on Appeal [45] The Appellant argues on appeal that the RPD erred in not considering the entirety of the evidence. I do not agree with the Appellant's argument for the reasons that follow. I find that the RPD did not err in its consideration of evidence the Appellant argues corroborates his credibility. Letter from the Appellant's wife, XXXX XXXX XXXX [46] The Appellant argues on appeal that the RPD erred when considering the letter from the Appellant's wife. The Appellant argues that the letter corroborates his narrative. I do not agree. I find that the RPD did not err. [47] The letter contradicts the Appellant's testimony with respect to the date when the Nigerian government began to target him. In his appeal, the Appellant quotes from the letter from his wife that with the launch of XXXX XXXX XXXX XXXX (in XXXX 2017), "I now became more afraid for my husband's life, this started his ordeal in the hands of the Nigerian Government."16 The Appellant testified at the RPD that he received weekly death threats from individuals associated with the Nigerian Government from XXXX 2015 until XXXX 2016, which are not mentioned in the letter; rather she states that the Appellant's "ordeal' began more than two years after the Appellant testified that he began receiving weekly death threats. Letter from XXXX XXXX XXXX XXXX XXXX [48] The Appellant argues that this letter corroborates the Appellant's testimony. The Appellant argues that the letter and other country condition documents demonstrate the persecution on the basis of political opinion that similarly situated persons would face in Nigeria. [49] The Appellant argues that the letter must be considered for what it says and not what it does not say. The Appellant argues that RPD erred in not giving reasons for not considering the letter. The Appellant cites jurisprudence that it was doubtful that an adverse inference as to credibility could be drawn on the basis of documents, such as a letter that does not corroborate the claimant's credibility. [50] I find the RPD did not err. The RPD did not give weight to the letter because the letter does not corroborate the details of Appellant's narrative. The RPD fully canvassed the contents of the letter in its reasons. I agree with the RPD. Medical Report [51] The Appellant argues on appeal that the RPD erred in not giving weight to the medical report submitted by the Appellant. I have already considered the medical report and found that it is not a genuine document. I find the RPD did not err in giving no weight to the medical report. United States of Biafra [52] The Appellant argues on appeal that the RPD "misinterpreted" the evidence regarding the USB.17 [53] The Appellant argues, "Firstly, we want to underline that the Appellant did not mention the United States of Biafra was its own organization."18 The record of the RPD hearing contradicts this statement. The RPD asked the Appellant about the USB, an organization for which he submitted a membership card: "I first wanted to ask you -- yeah, I want to ask you about the United State of Biafra. What is the United State of Biafra?" The Appellant replied in sworn testimony that, "The United State of Biafra is a non-violent group that it's aim is to establish a Biafran federation."19 [54] The Appellant subsequently confirmed for the RPD that the name of the group is the United States [plural] of Biafra not the United State [singular] of Biafra.20 When the RPD asked the Appellant why the membership card he submitted in evidence was from the United State of Biafra (emphasis added), not the United States of Biafra, the Appellant could not provide an explanation to the RPD. The Appellant testified that he was the social media coordinator of the United State of Biafra for Delta State. [55] I find that the Appellant has not adduced sufficient credible evidence to establish a profile as a political activist who faces a serious possibility of persecution by the Nigerian state. CONCLUSION [56] 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. (signed) Michael J. Gardiner Michael J. Gardiner October 9, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 IRPA, section 110(4). 5 Supra, at endnote 3. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230, at para. 54. 7 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g)(iii) how any documentary evidence referred to in paragraph (e) meets the requirements of section 110(4) of the IRPA and how that evidence relates to the Appellant. 8 Exhibit P-2, Appellant's Record, "Bill of Rights for Africa: Uneven Regional Development and Indigenous Peoples Protest" by Rufus T. Akinvele (in Africa in the Twenty-First Century: The promise of Development and Democratization. Edited by Gashawbeza W. Bekele. Adebavo Qvebade London. Lexington Books. 2019 p. 138), at p. 27. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 3.1.6, at p. 35. 10 Refugee Appeal Division Rules, SOR/2012-257, Rule 29: Documents or Written Submissions not Previously Provided. 11 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 12 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 13 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 12-16. 14 Jele v Canada (Immigration, Refugees and Citizenship), 2017 FC 24, at para. 50. 15 Exhibit RPD-1, RPD Record, RPD Decision, at p. 5, at line 42 to p. 6, at line 24. 16 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 2.1.10, at p. 11. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 2.1.48, at p. 19. 18 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 2.1.50, at p. 19. 19 RPD Transcript (September 9, 2019), at p. 5, at lines 20-24. 20 RPD Transcript (September 9, 2019), at p. 6, at lines 12-13. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07589 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