MB8-27357

RAD File / Dossier de la SAR : MB8-27357 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 Toronto, ON Appel instruit / entendu à Date of decision March 2, 2020 Date de la décision Panel Joseph Wyger Tribunal Counsel for the person who is the subject of the appeal Jessica Lipes 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 (the Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated November 19, 2018, rejecting his claim for refugee protection. The RPD found that the Appellant was not credible. (a) The Appellant fears for his life because of Boko Haram and its insurgents. He belongs to the XXXX XXXX and he had been part of an XXXX XXXX XXXX XXXX XXXX XXXX. When the Appellant was on a trip to the U.S, his village was attacked by Boko Haram militants on XXXX XXXX, 2015. His father XXXX XXXX and his two sons XXXX XXXX. Hearing this news, the Appellant decided to remain in the U.S. His sister was later XXXX in XXXX of 2015. He travelled to Canada on XXXX XXXX, 2017. (b) The RPD concluded that there was no attack, the Appellant's XXXX do not exist, his sister was XXXX XXXX, and that he is not an XXXX XXXX XXXX XXXX XXXX. The Appellant's position is that the RPD erred in its negative credibility finding because it was based on an overzealous and microscopic examination of contradictions and inconsistencies in the Appellant's narrative. (c) The determinative issue is whether the Appellant's narrative is credible. (d) I conclude that the Appellant's narrative is not credible because of inconsistencies, contradictions and the overall lack of credibility in his testimony. DECISION [2] The Refugee Appeal Division dismisses the appeal and confirms 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 Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant is a member of the XXXX ethnic group and was living in XXXX in 2015. He moved to the U.S. in XXXX 2015 to pursue his education. During his absence on XXXX XXXX, 2015, XXXX was attacked by Boko Haram militants who killed villagers and set the mosque on fire. The Appellant's father was a XXXX XXXX XXXX XXXX XXXX XXXX XXXX, while his two sons were allegedly abducted. His mother and sister's location during the attack is a matter of some uncertainty. The Appellant stayed in the U.S., while his mother went to live in a camp for internally displaced persons (IDP) in XXXX 2016. The Appellant's sister was allegedly XXXX XXXX XXXX XXXX XXXX XXXX XXXX fishermen in a XXXX in XXXX of 2018. The RPD made the following findings: 1. The Appellant's testimony was vague and evasive regarding a contradiction about the presence or absence of the Appellant's mother and sister at the XXXX XXXX, 2015 attack by Boko Haram; 2. There are anomalies in the Appellant's testimony about his sons and sister; 3. The Appellant is not XXXX XXXX XXXX XXXX XXXX XXXX; 4. The Appellant's testimony on his fear of XXXX XXXX is embellished. ROLE OF THE RAD [4] My role is to conduct an independent assessment of the evidence and decide if the RPD made a correct decision.1 APPELLANT'S POSITION [5] The Appellant advanced several arguments in support of his position that the RPD erred in drawing a conclusion of general negative credibility: 1. The RPD was overzealous and microscopic in finding contradictions after posing vague questions that encouraged the Appellant to speculate about his mother and sister's involvement in the XXXX XXXX, 2015 attack; 2. The RPD relied on a minute, peripheral issue in finding that a news article about the Appellant's father raised an inconsistency regarding the father's age; 3. The RPD was wrong to draw a negative credibility inference from the Appellant's testimony regarding the XXXX of his sons; 4. The RPD was mistaken in making an unreasonable interpretation of the Appellant's account of his sister's XXXX XXXX XXXXThe RPD erred in relying on a peripheral issue to find that the Appellant was not XXXX XXXX-XXXX XXXX XXXX XXXX 5. The RPD was incorrect to reject the Appellant's explanation for not recording his fear of XXXX XXXX in his original narrative. ANALYSIS [6] I determine that the RPD was correct to draw a general negative credibilty inference about the Appellant's narrative. RPD was correct in its assessment of the Appellant's testimony regarding his mother and sister's involvement in the XXXX XXXX, 2015 attack [7] I have conducted an independent assessment of the evidence, including listening to the audio recording of the RPD hearing. I agree with the RPD that the Appellant's testimony was confused and evasive on the question of his mother and sister's attendance and involvement in the XXXX XXXX, 2015 attack by Boko Haram. [8] The Appellant's narrative states that his mother and sister were outside the village the day of the attack. The sworn statement of his sister2 says she and her mother were present during the attack and sutained serious injuries. A police report3 confirms that his mother and sister were injured during the attack. The RPD did not accept the Appellant's explanation for this central contradiction, that he was not sure where they were, that maybe they were sleeping or had gone to the IDP camp. Given that the serious events of XXXX XXXX, 2015 were central to the narrative, the RPD found that the contradiction undermines the Appellant's credibility. [9] The Appellant argues the RPD posed vague questions that encouraged the Appellant to speculate about his mother and sister's involvement in the XXXX XXXX, 2015 attack, even though he was not there. He asserts that he did not state that they did not experience the attack, but rather that he could not give the exact whereabouts of his mother and sister when the attack took place. The Appellants contends that there was no contradiction because it is not surprising that he did not know their exact whereabouts since he was not there at the time of the attack. [10] I am not persuaded by the Appellant's submissions. The RPD posed specific questions which drew vague responses and guesses. The Appellant did in fact state in his narrative that his mother and sister were outside the village. If he did not know where they were, I find it reasonable to expect that he would not state their location as outside the village in his Basis Of Claim (BOC) narrative. While it is true that he did not state that they did not experience the attack, that is implied in the statement that they were outside the village because the attack was in the village. He argues that he simply could not give their exact whereabouts when the attack took place, but if he knew they were attacked, he should have known that they were in the village because that is where the attack occurred. He testified that he was not sure where they were, but he speculated that they may have been asleep or gone to the IDP camp. This implies that they were not in the village during the attack. I find that it would be reasonable to expect that if his mother and sister suffered serious injuries in the attack, that he would have known, especially since almost all of his information about the incident came from his mother. [11] On the assertion that it is not surprising he didn't know because he wasn't there, I find that it would be reasonable to expect that at the time of writing his narrative, the Appellant would have known that his mother and sister sustained serious injuries in a violent attack on his village that is central to his fear of going back, whether he was there or not. [12] A news article4 says that the Appellant's mother and sister "narrowly escaped being killed", suggesting they were in the village, but managed to flee without getting injured. The Appellant's sister swears that she and her mother sustained serious injuries during the attack in the village. The Appellant's narrative and testimony suggest that they were not in the village during the attack, and therefore not injured. I find these differing versions of the central incident render all of this evidence not credible. I conclude that the Appellant's explanation is unpersuasive. [13] I accept that there was an attack by Boko Haram on the Appellant's village. In my independent assessment of all the evidence, I determine that there is insufficient credible evidence for me to draw the inference that Appellant's mother and sister were attacked in that raid. I agree with the RPD that the varying accounts of what happened to the Appellant's mother and sister during the attack, undermines the Appellant's credibility. RPD was correct in finding that a news article about the Appellant's father raised an inconsistency regarding the father's age [14] I agree with the RPD that an inconsistency in the news article gives it dubious probative value. [15] The RPD pointed to a National Daily news article5 that discusses the attack, and pointed out that the author does not provide the date that it occurred. The panel fixed on an inconsistency in the age of the Appellant's father who was the XXXX XXXX XXXX XXXX XXXX in his village. The RPD pointed to that inaccuracy, as well as the absence of evidence that the Appellant or his family had ever resided in the village or were present before, during, or after the attack. In light of those findings, the RPD assigned no probative value to the news article. [16] The Appellant's Memorandum contends that the newspaper quote does not suggest that his father has XXXX XXXX XXXX XXXX XXXX XXXX, but rather that he was part of the community for XXXX XXXX XXXX The Appellant says he struggles to see how that is inconsistent with the father having been born in 1958 because that makes him 60 years old in 2018. [17] Contrary to the Appellant's submission, the article does in fact specifically say that the Appellant's father was "...XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX." I find that the inconsistency derives from the unlikelihood that the Appellant's father XXXX XXXX upon his birth in 1958. I find this article unreliable for that reason and also because its' version of the Appellant's mother and sister escaping the attack was contradicted by the police report and the sister's sworn testimony. I concur with the RPD's assigning no probative weight to the conflicting news article, police report and the sister's affidavit. RPD not wrong to draw a negative credibility inference from the Appellant's testimony regarding the XXXX of his sons [18] I agree with the RPD that the Appellant's narrative surrounding his two sons is unsupported by the evidence. [19] The RPD found the Appellant's testimony vague and confusing. It was troubled by the lack of any details on the Appellant's two sons XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX no details over who was watching them during the attack; no photos of the children; no evidence from the mothers of boys; and no documentary evidence or corroboration whatsoever of efforts by police or family to search for them. The RPD had an issue with how the Appellant obtained copies of his sons' birth certificates, when the originals had been burned in a house fire. The panel rejected the explanation that copies were on his phone for the purposes of school registration, because the children were years away from attending school. [20] With respect to XXXX XXXX the RPD drew a negative inference over the Appellant spontaneously using the pronoun "she" in referring to his son. Further, that XXXX was actually more than a year older than the Appellant testified he was, when he XXXX XXXX. The Appellant submits that the RPD was over-vigilant in its examination of the accidental use of the wrong pronoun, a frequent error made by foreign language speakers. [21] The Appellant argues that the RPD was wrong to make a negative inference based on vague and confusing testimony of the Appellant on how XXXXs mother had died. He asserts that XXXX's mother died giving birth to a different child, not XXXX XXXX and that is why the Appellant had no further information on her death. [22] Following my independent review of the evidence, I determine that there is insufficient evidence for me to draw the same inference as the RPD that the Appellant's sons did not exist. However, I agree with the RPD that the Appellant's vague and confusing testimony regarding those sons increases the lack of credibility of his allegations. The overall tenor was that he had little information about his own children, or as the RPD pointed out, any corroboration of efforts to search for them, as might reasonably be expected. I note that the alleged house fire that caused the destruction of the birth certificates, was the first time that incident was mentioned anywhere. I note also that the Appellant used "she" to refer to XXXX a second time before correcting himself, and I thought he spoke English quite well. The RPD did not place a great deal of weight on the use of the wrong pronoun, but it was just one of several anomalous items. I find that the cumulative effect of all of the items mentioned by the RPD has the effect of undermining the Appellant's credibility. The RPD did not make an unreasonable interpretation of the Appellant's account of his sister's XXXX [23] I find that the RPD was correct to doubt the Appellant's account of his sister's alleged abduction. [24] The RPD had a number of concerns with the evidence dealing with the XXXX XXXX the uncertainty about her and her mother's travels between the IDP camp and XXXX around the time of the XXXX; the photos of a XXXXwoman that was supposedly taken by people walking by in the street; a suspicious news article regarding his sister's XXXX that contained many anomalies including the untrue statement that the Appellant was a member of XXXX XXXX XXXX XXXX; the Appellant in XXXX 2017 referring to the XXXXr 2016 XXXX as "recently". The RPD gave no probative weight to the news article and did not accept that the Appellant's sister was XXXX. [25] The Appellant did not counter the RPD's findings on the photos or the news article and I accept those findings as correct, and also give no weight to the photos or the article. The Appellant contended that the RPD was wrong to find that there were two versions of the abduction narrative due to the Appellant using the word "recently". He argues that the RPD's unreasonable interpretation shows the panel's efforts to find contradictions; that "recently" is inherently subjective and could refer to events that happened less that a year ago. [26] I agree with the Appellant that his reference to the traumatic event of his sister's XXXX as recently, is not sufficient grounds to further undermine his credibility. The RPD's finding is incorrect but that is not fatal to its decision. There are sufficient other reasons that undermine the Appellant's credibility with respect to his sister. The Appellant provided photos and news articles that are not authentic. The RPD noted during the hearing that the Appellant's mother's letter of attestation does not mention the sister's XXXX XXXX I note that it does not refer to her earlier XXXX either. During the hearing, counsel noted the numerous times the Appellant answered questions on the source of his information with "my mother told me". In my review of the audio recording, I confirm that the Appellant sounded un-informed about his own narrative, as most of it was reliant on the hearsay account from his mother. [27] I note further, that in answer to his counsel's questions, the Appellant did not identify Boko Haram as his sister's XXXX, but said it was "unknown gunmen" who XXXX XXXX XXXX. He also stated that he did not know why or by whom his sister was XXXX XXXX XXXX. I determine, on a balance of probabilities that the Appellant's sister was XXXX XXXX XXXX XXXX, but that there is insufficient evidence to conclude that it was Boko Haram who did it. RPD was correct to find that the Appellant was not XXXX XXXX XXXX XXXX XXXX XXXX [28] I find that there is insufficient evidence to conclude that the Appellant possesses the profile of an anti-Boko Haram activist. [29] The RPD found that the Appellant's testimony lacked spontaneity and depth. His testimony regarding the fate of other activist colleagues was vague, and informed by his mother. The single specific example of a colleague who was killed was XXXX, but details of who killed him and why were vague. [30] The Appellant argues that the admittedly less than comprehensive information regarding XXXX death was just to demonstrate the threat posed to XXXX XXXX XXXX XXXX XXXX. He contends that the RPD erred in relying on the question of the fate of colleagues, as this issue is not central to the Appellant's claim that he is at risk from Boko Haram. The panel should have made a more a thorough analysis of the Appellant's clear, coherent and consistent testimony about his XXXX XXXX XXXX XXXX campaign work in XXXX XXXX XXXX XXXX XXXX XXXX [31] I find that the RPD's characterization of the Appellant's testimony as lacking spontaneity and depth is in reference to his testimony about his XXXX XXXX XXXX XXXX XXXX XXXX, and it could have been more fulsome. In my independent assessment of the audio recording of the hearing, I am not persuaded that he was clear, coherent and consistent about that work. He did not display the depth of knowledge, detail or elaboration on his activities that would be reasonably expected. [32] I do not agree with the Appellant's assertion that the fate of his colleagues is not central to his claim of prospective risk. He fears the risk of death at the hands of Boko Haram, but has no direct evidence that they have killed any activists. His source for the allegation that they have killed many XXXX XXXX XXXX XXXX XXXX was again that his mother told him, but he did not know how she would know. He testified that they killed many of his colleagues, but had difficulty naming one. He could not identify XXXX killers as Boko Haram, but testified that they were "unknown gunmen". [33] I find that there is not enough evidence that Boko Haram is killing activist colleagues of the Appellant, and so he has not demonstrated on a balance of probabilities that there is a serious possibility of being persecuted or a prospective risk that he will be killed if returned to Nigeria. Essentially, the only evidence that he will be persecuted or killed is that his mother says so. I conclude that the unsourced hearsay evidence of the Appellant's mother is not sufficient to establish S. 96 or S 97 criteria for refugee status. The RPD was correct to reject the Appellant's explanation for not recording his fear of XXXX XXXX in his original narrative [34] The RPD found the Appellant's account of fearing XXXX XXXX to be an embellishment, that not even his mother mentioned in her attestation. The panel rejected the Appellant's explanation for why this fear was not mentioned in his narrative or at the outset of the hearing. The RPD did not believe that his mother's friend was attacked by XXXX XXXX. [35] The Appellant argued that the attack occurred after the signing of the BOC, and he did not know that he would need to mention the updated events about the XXXX at a time other than his testimony at the hearing. The Appellant asserts that it was reasonable for him to have a limited understanding of the process, and the RPD erred in the assessment of his credibility. [36] I agree with the RPD that raising an entirely new fear during the hearing, is on a balance of probabilities, an embellishment by the Appellant. There was no amendment to his BOC at the outset of the hearing, as he was invited by the RPD. It was almost two hours into the hearing when the Appellant alleged that the XXXX XXXX were working with Boko Haram to kill him. There was no explanation how an attack by the XXXX on a friend of his mother's near XXXX, puts the Appellant at risk. I conclude that even if the XXXX did kill a friend of the Appellant's mother, there is no nexus to a prospective risk to the Appellant from the XXXX. I conclude that the Appellant added the XXXX fear during his testimony simply to bolster his claim, and thereby undermined his credibility further. CONCLUSION [37] The RAD dismisses the appeal and confirms 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 Immigration and Refugee Protection Act (IRPA). (Signed) "Joseph Wyger" Joseph Wyger March 2, 2020 Date 1 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 2 Exhibit RPD-1, RPD Record Exhibit E-5, at page 86-87. 3 Ibid., Exhibit E-4, page 85 4 Exhibit RPD-1, RPD Record, Exhibit E-12 page 66-67 5 Ibid., Exhibit E-7, National Daily Article (XXXX XXXX-XXXX XXXX 2017) page XXXX --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-27357 RAD.25.02 (April 04, 2019) Disponible en français 3 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 (April 04, 2019) Disponible en français