TB9-26548

RAD File / Dossier de la SAR : TB9-26548 TB9-26549 / TB9-26550 / TB9-26551 TB9-26552 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision February 18, 2020 Date de la décision Panel Alison Kennedy Tribunal Counsel for the persons who are the subject of the appeal Warren Chin Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Principal Appellant / PA) and her children (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) are citizens of Nigeria. The PA's youngest daughter, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, is an American citizen. The Appellants are appealing a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. [2] The Appellants alleged in their initial BOC that the PA is in danger as a result of her husband witnessing a fatal shooting, and that her family wanted her eldest daughter to undergo FGM. In her updated BOC, the PA also alleged that she is bisexual and that her husband's family is also insisting that their eldest daughter undergo FGM. [3] Because I.O.A. was born in the U.S., the RPD found that there was not a serious possibility of persecution or a risk if she returns there. The Appellants have not contested this finding on appeal. Consequently, I will not consider the claim of I.O.A. further. [4] The RPD determine that the determinative issue in this case was a lack of credibility. The Appellants argue that the RPD erred in finding that the Appellants' allegations lacked credibility. I agree with the RPD that the determinative issue in this case is credibility, and I dismiss the appeal. ROLE OF THE REFUGEE APPEAL DIVISION [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which may attract deference. I have applied a correctness standard in this case. ANALYSIS RPD findings Inconsistent addresses [6] The PA testified that she fears criminals who are pursuing her husband for witnessing a murder near their home in Benin City in XXXX 2016. She testified that, after this incident, she and her husband then moved to Ibadan, and armed men came to Ibadan to find them. [7] However, the RPD noted that her application form stated she lived in Benin City from 2007 to 2011, and in Ibadan from XXXX 2011 to XXXX 2016. Therefore, the PA's application states that she lived in Ibadan long before the alleged murder took place in Benin City in XXXX 2016. [8] The PA explained this discrepancy by saying she went to go live with her husband's mom in Ibadan in XXXX 2011 because she was pregnant, and she returned to Benin City in 2013 after her son's birth. However, the RPD did not accept this explanation, finding that she could not have been pregnant with her son in 2011, given that he was born in 2013. The PA then explained that she went to go live with her mother-in-law in Ibadan because she was all alone. [9] The RPD did not accept the PA's explanation that she did not understand the requirement to provide all addresses, given that she provided a clear chronology of where she lived. [10] The RPD noted that the PA's evidence was inconsistent where the Appellants were living at the time the events allegedly occurred. Furthermore, the RPD found that, based on the inconsistencies between her application form and her BOC, there was no credible or trustworthy evidence that the Appellants were living in Benin City in XXXX 2016 and were subject to attacks as alleged. Inconsistent work history [11] The PA testified that she began working at a XXXX XXXX as a XXXX in XXXX 2016. She provided a letter from her employer and an affidavit from her colleague to support this testimony.2 However, the RPD found that this evidence conflicted with the information in her application which states she worked at the XXXX XXXX XXXX until XXXX 2012 as a XXXX XXXX XXXX XXXX. The application stated that she was unemployed from XXXX 2012 to XXXX 2015, and that she taught from XXXX 2016 to XXXX 2016 at XXXX XXXX XXXX in Ibadan.3 [12] When asked why her application said she was working as a XXXX rather than at the XXXX XXXX XXXX as per her oral testimony and documentary evidence, the PA testified that she was a XXXX until XXXX 2016, prior to when she started XXXX the XXXX XXXX. [13] The RPD did not accept the Appellant's explanation that she did not have a lawyer when she filled out the form, that it was difficult to complete, and that she had difficulty remembering events that occurred long ago. Rather, the RPD found that the PA failed to explain the contradictions between her oral testimony and her application, and also noted that the job listed on her application was consistent with her field of study in school. The RPD also found that there was no indication that the PA had problems filling out the information required in the application. [14] The RPD also found it significant that the PA's application did not report working at the XXXX XXXX after 2012, or ever having worked there as a XXXX, given that she alleged having a same-sex relationship with a colleague during this employment. While the RPD considered the letter and affidavit provided from the PA's employer and co-worker with regard to her alleged employment as a XXXX, it preferred the evidence contained in the Appellant's application form. Bisexuality [15] The RPD also noted that the PA only mentioned bisexuality in her amended BOC submitted on XXXX XXXX XXXX 2019 (not in the original BOC dated XXXX 2019). When asked about this omission, the PA explained that she feared being jailed if she reported her sexuality. The RPD did not find this explanation credible given that the PA had been in the U.S. for two years and alleged being in a long-term same-sex relationship with no legal issues during this time. The RPD also noted that the PA was well-educated. [16] Consequently, the RPD did not find it credible that the PA would not know she could travel safely to Canada as a bisexual woman, or that she would come to Canada if she believed she would be jailed for her bisexuality as alleged. Appellant's arguments [17] In determining that the PA provided inconsistent evidence about where she lived and when, the Appellants submit that the PA testified that she moved back to Benin City in 2013 after her son was born and that the RPD erred by ignoring this evidence. Rather, the RPD relied instead on a trivial omission from a form that was completed at the port of entry without a lawyer to make a negative credibility finding against the PA.4 [18] Furthermore, the Appellants argue that the RPD failed to properly consider the PA's explanation that she did not understand the question when she was completing the application, and the RPD erred in reaching a negative credibility finding on this point as there was no reason to doubt the explanation provided by the PA. Furthermore, the Appellants argue that the PA's sworn testimony is entitled to the presumption of truth as per Maldonado.5 [19] The Appellants also argue that the PA provided credible testimony that the inconsistencies regarding the PA's employment history occurred because she did not have a lawyer when she completed the application. They argue that she filled out the form in haste and had trouble remembering the events to fill out the form.6 [20] Furthermore, the Appellants allege that the RPD erred in ignoring the letters from her same-sex partner and employer, as well as her testimony with regard to her sexuality. Rather, the RPD erred in relying instead on a trivial omission in the application form, when the PA explained the circumstances around her filling out the form.7 [21] The Appellants also argue that the RPD was over-vigilant in its microscopic examination of the evidence and in making its credibility findings. Furthermore, they argue that the RPD exaggerated the importance of a few minor contradictions.8 [22] Moreover, the Appellants argue that the RPD erred in finding that the application was complete and full of details. Rather, there is some indication that it was completed hastily and she did not understand its contents (for instance, because some questions were left unanswered).9 Consequently, the Appellants argue that the RPD erred in finding that there is no indication that the PA had problems filling out the BOC.10 [23] Furthermore, the Appellants argue that the RPD erred in putting too much weight on the application form, considering it was completed without a lawyer. Indeed, the Appellants argue that it is unreasonable for the RPD to prefer the incomplete application document, which was rife with errors, over the complete and consistent disclosure documents, including the letter from the PA's former employer and the letter from her same-sex partner.11 [24] The Appellants also argue that the RPD had an elevated duty of fairness because they were unrepresented and that the RPD failed to observe this duty in relying so heavily on the application form, given the documentary and oral evidence before it which confirmed the contrary.12 The Appellants argue that the PA was ill-equipped to handle the complexities of the refugee process and her application documents reflect this.13 RAD findings Inconsistent addresses [25] I agree with the RPD that the PA provided oral testimony that was inconsistent with her application about where the Appellants were living at the time her husband allegedly witnessed a murder and that, as a result of this discrepancy, there is no credible or trustworthy evidence that the Appellants were living in Benin City in XXXX 2016 and were subject to home invasions as alleged. [26] The Appellants have argued that the PA's testimony is subject to the presumption of truth, as per Maldonado. This is true. However, this presumption is rebutted where there is a valid reason to doubt the truthfulness of the testimony, for instance, inconsistencies and omissions.14 [27] In this case, I find that the significant inconsistency between the PA's testimony and her written application about where she lived and when rebuts the presumption of truth of the PA's testimony on this point. Furthermore, I do not accept the Appellants' arguments that the PA simply omitted information in her application. This is especially so where additional credibility concerns arise with the PA's attempt to reconcile the evidence, in first stating that she moved to Ibadan in 2011 because she was pregnant with her son, but then changing her explanation when she was challenged on the implausibility of her being pregnant with her son at the time she moved to Ibadan in 2011 when she gave birth to him in 2013. [28] Furthermore, I also agree with the RPD that the PA's explanation that she did not understand the requirement to provide all addresses was not a reasonable explanation for any alleged confusion, given that the PA's application provided a clear chronology of where she lived and when, and also given that the PA is well-educated. [29] Consequently, I find that the RPD was correct in determining that a negative inference should be drawn with regard to the credibility of the PA's allegations regarding the armed invasion that occurred because of her husband witnessing a murder, given that she was unable to provide a reasonable explanation for the inconsistency about where they lived at the time of this alleged murder. Inconsistent work history [30] I agree with the RPD that there is also a significant difference between the employment described in the PA's application form and what she testified at the hearing. Indeed, the Appellant provided oral testimony (and supporting documentation) that she was a XXXX for the XXXX XXXX XXXX from XXXX to XXXX 2016. However, this testimony conflicts with her application, which notes that she worked for the XXXX XXXX XXXX from 2009 until 2012 as a XXXX XXXX XXXX XXXX.15 Her application then lists no other employment from 2012 until 2015, at which time she reports working as a XXXX in Ibadan until XXXX 2016.16 [31] The Appellants argue that the RPD erred in putting too much emphasis on the application that was completed prior to her retaining a lawyer, and that she had problems filling out the forms. However, the Appellants have failed to explain why the PA completed her personal history information as she did, including listing employment at the XXXX XXXX XXXX as a XXXX XXXX XXXX XXXX until 2012, and later XXXX at a XXXX in Ibadan at the same time she was allegedly working at the XXXX XXXX XXXX as a XXXX. It is clear that the PA's testimony differs greatly from her application, and that the employment information is correct in only one of these instances. [32] While the Appellants are correct that there is a presumption of truthfulness, I find that this presumption is rebutted by the inconsistencies between the PA's oral testimony (and the corroborating evidence on file) and her written application regarding her employment history. Indeed, the PA had no reason to provide incorrect information on her application form at the time it was written, and has not provided a reasonable explanation for allegedly doing so. Furthermore, before submitting the BOC, the PA declared that the information contained in the BOC was complete, true, and correct.17 The PA then swore this BOC to be complete, true, and correct again at the hearing.18 [33] However, the PA did have a reason to provide modified (and incorrect) employment information during the hearing, that being to bolster her claim regarding her alleged bisexuality, which was not included in her initial claim. Furthermore, I agree with the RPD that the position listed in the PA's application (XXXX XXXX XXXX XXXX) correlates with the education reported in her application, that being in the field of XXXX XXXX XXXX.19 This internal consistency in the PA's initial application between her field of study and her reported employment suggests that the information provided in the PA's application with regard to her employment history is the correct version of her employment history. [34] The inconsistent evidence about where the PA was working and when is important, given that her claim of bisexuality is based (in part) on a relationship that allegedly occurred during her employment as a XXXX at the XXXX XXXX XXXX in 2016. However, based on the inconsistency between her initial application and her testimony and corroborating evidence noted above, I find that the PA did not work as a XXXX at the XXXX XXXX XXXX in 2016 as alleged. Consequently, I also find that the PA did not have a same-sex relationship with her colleague during this employment. Bisexuality [35] I am mindful of the SOGIE guidelines and have considered them in relation to this claim. However, I have found that the PA's same-sex relationship at work did not occur as alleged, based on the significant inconsistencies noted above about the PA's employment. I also find that the presumption of truthfulness of the PA's testimony has been rebutted given the significant inconsistencies noted above regarding the PA's addresses and work history. As a result of these inconsistencies, I also draw a negative credibility inference regarding the PA's credibility, and find that the PA has not provided sufficient credible evidence to prove having any of the same-sex relationships she alleges having. [36] The PA also provided a letter from her alleged former partner. However, I do not find that this evidence is convincing in light of the inconsistency between the PA's oral testimony and the application she provided earlier with drastically different employment information which does not corroborate the relationship claim she is now making. [37] I also draw a negative inference with regard to the PA's bisexuality as a result of her failure to include her bisexuality as a ground in her initial BOC. I agree with the RPD that the PA's explanation that she was afraid of being jailed in Canada if she self-reported as bisexual is not credible, given that she alleges being in a long-term same-sex relationship in the U.S. with no repercussions. Furthermore, it is unlikely that she would travel to Canada to claim refugee status if she believed she would be jailed for her bisexuality here. I find this explanation is also unreasonable given the PA's level of education. [38] The PA has also alleged that she had a long-term same-sex relationship in the U.S., but has failed to provide any corroborating evidence of this relationship. Given that the presumption of truth regarding her oral testimony has been rebutted, I find that her testimony with regard to this alleged relationship is not sufficient to prove it occurred as alleged, or that she is bisexual as alleged. Duty of fairness [39] I am mindful of the Appellants' argument that the RPD had an elevated duty of fairness because the PA was unrepresented during her hearing. Having reviewed the recording of the hearing, however, I find that the RPD was conscientious about the fact that the Appellants were self-represented and made every effort to ensure that the hearing was fair. Furthermore, I do not find merit in the Appellants' argument that the RPD failed to observe this duty in relying on the information contained in the application in reaching its decision. Rather, the role of the RPD includes considering the entirety of the evidence before it to determine whether the Appellants' allegations are credible. When faced with significant contradictions and omissions, such as in this case, it was correct for the RPD to determine that the Appellants' allegations were not credible. The RPD did not err in this regard as alleged. CONCLUSION [40] The PA's youngest daughter, XXXX XXXX was born in the U.S. I concur with the RPD that there is not a serious possibility of persecution or a risk if she returns to the U.S. For this reason, I find she is not a Convention refugee nor a person in need of protection. [41] With regard to the remaining Appellants, there are several significant inconsistencies and omissions which lead me to find that their allegations are not credible. Consequently, I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Alison Kennedy" Alison Kennedy February 18, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), 2016 FCA 93, at para. 103. 2 Exhibit RPD-1, RPD Record, partner letter (at p. 154) and employer letter (at p. 158). 3 Exhibit RPD-1, RPD Record, ibid., Employment history, at p. 91. 4 Exhibit P-2, Appellant's Record, Memorandum at p. 44. 5 Maldonado v. Canada (MEI), [1980] 2 F.C. 302 (C.A,); 31 N.R. 34 (F.C.A.) 6 Exhibit P-2, Appellant's Record, Memorandum, supra note 4 at p. 45. 7 Exhibit P-2, Appellant's Record, Memorandum, ibid. at pp. 45-46. 8 Exhibit P-2, Appellant's Record, Memorandum, ibid. at p. 46. 9 Exhibit P-2, Appellant's Record, Memorandum, ibid. at p. 47. 10 Exhibit P-2, Appellant's Record, Memorandum, ibid. 11 Exhibit P-2, Appellant's Record, Memorandum, ibid. at p. 48. 12 Exhibit P-2, Appellant's Record, Memorandum, ibid. at p. 49. 13 Exhibit P-2, Appellant's Record, Memorandum, ibid. 14 Maldonado, supra note 5. 15 Exhibit RPD-1, RPD Record, supra note 3, at p. 91. 16 Exhibit RPD-1, RPD Record, ibid. at p. 91. 17 Exhibit RPD-1,RPD Record, ibid., BOC, at p. 25. 18 Recording of RPD hearing at ~ minute 00:17 of the hearing. 19 Exhibit RPD-1, RPD Record, supra note 2, Education history, at p. 90. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-26548 TB9-26549 / TB9-26550 / TB9-26551 TB9-26552 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français