VB9-02414

RAD File / Dossier de la SAR : VB9-02414 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 December 15, 2020 Date de la décision Panel Kiran Qureshi Tribunal Counsel for the person who is the subject of the appeal Gabriel Ukueku 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] XXXX XXXX XXXX (Appellant) is a citizen of Nigeria. Her allegations are as follows. [2] The Appellant states that in 2005 she became the assistant to the XXXX XXXX of the local government, who was also a member of the Action Congress Party (AC). The Appellant had belonged to the People's Democratic Party (PDP) but later converted to the Action Congress (AC). The Appellant was nominated into the position of XXXX XXXX XXXX XXXX XXXX XXXX for the Independent National Electoral Commission (INEC) from XXXX 2006 to XXXX 2006. The Appellant states that as a result of these two positions, assistant to the XXXX XXXX and XXXX, she became a target for other politicians who were seeking information from her in order to bolster their own political goals. The Appellant says she was first accosted and threatened by a group of three PDP members, and then, in 2007, PDP members fired shots into her office building. For her safety, the Appellant was transferred to a different office location. In 2010 the Appellant moved to Hungary for university studies on a government scholarship. She says that while she was in Hungary, she still received telephone threats. In 2017 the Appellant went to the United States (US) and applied for asylum but withdrew her claim. She irregularly crossed the border into Canada on XXXX XXXX XXXX 2017 and claimed asylum in Canada. [3] The Appellant's claim was heard on February 18, 2019 and an oral decision was rendered rejecting her claim. The Refugee Protection Division (RPD) concluded that the Appellant's claim was not credible. The Appellant has appealed to the Refugee Appeal Division (RAD). DECISION [4] 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. The determinative issue is credibility. NEW EVIDENCE The evidence presented by the Appellant is partially accepted [5] According to the law,1 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 the Appellant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [6] 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.2 [7] The Appellant submits the following two articles as new evidence: a. INEC Urges Speedy Passage of Electoral Offences Commission Bill dated March 29, 20193 b. 11 Nigerian Incoming Senators Facing Corruption Probe dated February 27, 20194 [8] The Appellant submits the new evidence meets the requirements of s. 110(4) because the articles arose after the rejection of the claim.5 The Appellant also submits the articles are relevant and probative because they demonstrate there are ongoing investigations into corrupt politicians going back to 2007, and that there is a serious possibility that the Appellant will be called by the Commission to testify against fraudulent acts that she witnessed. [9] Article "a" indicates that INEC has called for the "speedy passage of the Electoral Offences Commission bill to stem impunity in Nigeria electoral process." This is due to some political parties and candidates attempting to harm or compromise INEC officers. I do not find that this article meets the requirements of s. 110(4). The article quotes the INEC Chairman calling for the passage of a Bill, however the Bill was in existence before the article was written. That is, the article does not give new information, such as that the Bill was recently passed or effected into law. Rather, publicly available and not novel information from Google6 from The Policy and Legal Advocacy Centre indicates that the Bill was in the works since 2018,7 or before the rejection of the claim. As the fact of a Bill seeking to create an Electoral Offences Commission pre-dates the rejection of the claim, this information is not new under s.110(4) and the article is rejected as new evidence. [10] Article "b" concerns incoming senators that were elected on February 23, 2019 and have previously committed financial crimes. The article goes on to discuss judicial or Economic and Financial Crimes Commission (EFCC) cases against each particular incoming senator. The central reason for why the Appellant produced this article is to convey that there are investigations and proceedings into corrupt politicians for their actions as far back as 2007, and therefore there is a risk that the Appellant will be called upon to testify with respect to fraudulent acts that she witnessed. Having reviewed the article however, I note that most of the cases referred to in the article predate the rejection of the claim. However, to the extent that the article refers to future prosecutions or investigations, and the outcome of the election of February 23rd itself, I will permit those aspects of the article to be admissible under s.110(4). [11] Regarding Singh/Raza, I accept that information pertaining to future investigations or cases against newly elected senators is a development that post-dates the rejection of the claim and is therefore new. Regarding relevance, I note that the cases against the incoming senators pertain to financial crimes, as opposed to voter fraud which is the crux of the Appellant's claim, however I will accept that the new portions of the article are relevant for the purposes of the admissibility stage, and a full assessment of relevance will be considered later. As the article appears to be duly published in a newspaper, I will accept that it is credible. I therefore accept portions of the article that refer to future prosecutions or investigations, and the outcome of the election of February 23rd itself, as new evidence for this appeal. Oral Hearing is refused [12] Subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) gives the RAD the discretion to hold an oral hearing if new evidence has been accepted that raises a serious issue with respect to the credibility of the appellant, that is central to the decision with respect to the appellant's claim and that, if accepted, would justify allowing or rejecting the appellant's claim. [13] On the basis that the accepted portions of the article dated February 27, 2019 do not justify allowing or rejecting the claim, the request for an oral hearing is denied. ANALYSIS [14] I have reviewed the RPD decision on a standard of correctness and conducted an independent assessment of all of the evidence.8 In the course of my analysis, I acknowledge that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their veracity. [15] The Appellant submits the RPD erred as follows: a. By finding the Appellant was not credible9 and breaching natural justice and procedural fairness in this regard,10 b. By finding the Appellant lacked subjective fear,11 c. By requiring the Appellant to produce corroborating evidence,12 d. Failing to weigh and consider all the evidence.13 RPD did not breach natural justice or procedural fairness [16] The Appellant submits the RPD "did not presume truthfulness in this case" and approached it "with a closed mind and an attitude of persistent skepticism."14 The Appellant explains that the RPD "questioned nearly every aspect of the Appellant's narrative" and concludes that the RPD "did not afford the Appellant a fair hearing." [17] Based on my independent assessment, I find this submission has no merit. First, the Appellant has not adequately explained or articulated its submission, nor has she provided any examples, at the very least, to elucidate her assertion. Secondly, I have reviewed a transcript of the hearing and I find the RPD's questioning is neutral and its questions are appropriate. The RPD is also entitled to question the Appellant on any or every aspect of its narrative. I find there was no breach of natural justice or of procedural fairness and the RPD did not err in this regard. RPD did not err in its credibility findings [18] The Appellant submits the RPD erred in its credibility findings.15 A review of the RPD decision indicates it drew a negative inference from an omission in the narrative.16 Specifically, the Appellant testified that PDP thugs barged into her family's home in Nigeria and assaulted her sister and father on XXXX XXXX XXXX 2016. However, as the RPD raised at the hearing, this was not mentioned in the narrative, which only referred to her family's fear of being stalked or hurt by the PDP. The RPD did not accept the Appellant's explanation that she had now provided the information at the hearing and drew a negative credibility inference. The RPD also did not accept the Appellant's later answer elicited in questioning by her counsel that she did not know about the attack until she learned about it from her father's affidavit dated XXXX of 2019. The Appellant repeats in this appeal that she did not know about the attack, that she was not obliged to mention it in her Basis of Claim (BOC) given that she did reference that her family was facing harassment, and that this detail is not "critical."17 [19] Based on my independent assessment, I do not find the RPD erred by drawing a negative inference from the omission of the physical assault on the Appellant's sister and father from the BOC. First, even though her father's affidavit was not compiled until XXXX XXXX XXXX 2019, I do not accept the Appellant's explanation that she did not know about the attack until then. As the RPD stated, the Appellant continued to be in touch with her father until early 2017.18 There is also evidence that she continued to be in contact with other family members, such as her brother, and that she has continued to receive updated information regarding her family. For example, although the Appellant has not been in Nigeria since 2010, she conveyed in her narrative that her sisters left the home because of the PDP, that her mother had a stroke due to fear of the PDP,19 that her father also left the home20 etc. Given the significance of the attack, I do not accept it is credible that the Appellant's family would have only told her about it two days before the hearing by way of an affidavit. I also agree with the RPD that the Appellant did not proffer this explanation until later in the hearing when she was questioned by her counsel, and that this further undermines the credibility of her explanation. [20] Regarding the Appellant's submission that she is not obliged to include the attack in her narrative and that it is not "critical," I disagree. First, the Appellant's central allegation is that she is at risk of harm by the PDP if she returns to Nigeria. Therefore, the allegation that PDP members stormed into her family's home demanding to know her whereabouts and physically assaulted her father and sister is material information that goes to the heart of her claim. Secondly, the website of the Immigration and Refugee Board of Canada (IRB or "the Board") specifically states the following regarding the importance of ensuring one's BOC is comprehensive, "You must also provide a declaration stating that the information in the BOC Form together with the changes and additions is complete, true and correct and that you understand that the declaration has the same force as an oath" (emphasis added).21 I also do not accept that the reference in the narrative to her family's fear of being harmed is sufficient, as actual harm to her family is a far stronger indicator of the potential threat to the Appellant. Therefore, it was not simply open to the Appellant to expand on her narrative with respect to important details only at the hearing itself. [21] Overall, on the basis of the foregoing, I find, on a balance of probabilities, that the incident of XXXX XXXX XXXX 2016 did not occur. I also find that the father's affidavit is not credible and I give it no weight. [22] The RPD also drew a negative credibility inference from a contradiction in the Appellant's testimony regarding threats from the PDP between 2007 and 2010.22 The decision states that initially the Appellant testified she received threatening letters from the PDP between 2007 and 2010. When it was raised to the Appellant that this was not in her BOC narrative, she retracted her testimony to say she did not receive any threats between 2007 and 2010. The Appellant also submits in this appeal that there were no threats between 2007 and 2010 because she had transferred to another office and, in any event, events between 2007 and 2010 are not central.23 Based on my independent assessment I do not find the RPD erred by drawing a negative credibility inference from the Appellant's contradictory testimony regarding threats between 2007 and 2010, for the following reasons. [23] First, the suggestion that there was a lack of threats between 2007 and 2010 because the Appellant changed offices is not an adequate explanation. Although the Appellant allegedly changed offices, she continued to work in the same position which had the same level of public profile, reside in her own regular residence in the same city, Lagos, and otherwise continued her normal daily routine. I find the lack of threats between 2007 and 2010 is important because if the PDP were so intent on pursuing the Appellant that she alleges they attacked her family in their home many years later in 2016 and are still interested in her today, 13 years after the alleged attack in 2007, then, on a balance of probabilities, a simple change of office location would not have thwarted them between 2007 and 2010, a period of three years. I therefore find that the lack of threats between 2007 and 2010 undermines the credibility of the Appellant's allegations. [24] Secondly, regarding the Appellant's testimony on this point, having reviewed the transcript of the hearing, I agree with the RPD that the Appellant outright contradicted herself. The transcript indicates the following:24 Q: I am asking you between 2007 and 2010 did anything happen to you? A: They keep sending letters. They keep sending letters to me that okay, you still have chance to comply or else we'll kill you or else we'll rape you, we do this to you. They sent series of letters and then from that after the letters they are like, okay, if you do this, if you don't do this we are going to do this to you, so many things, like.... Q: between 2010 -- '07 and '10. You're saying in terms of you there were threats and letters and you had -- and you had to report it to the police, do I have that right? A: Yeah Q: Okay. It's not in your -- none of that is in either one of your basis of claim forms, in 2.2 and 2.3. Neither one of them say that, that anything happened between 2007 and '10. Do you have any comments? .... Q: ... I'm going to ask one more time and then we'll just move on to something else. Did anything else happen to you between 2007 and '10? A: No. [25] Therefore, on the basis of the foregoing, I do not find the RPD erred by drawing a negative credibility inference against the Appellant due to her contradictory testimony regarding threats between 2007 and 2010, and that the lack of threats undermines the credibility of her allegations of persecution. RPD did not err by finding the Appellant lacked subjective fear [26] The RPD found the Appellant lacked subjective fear on the basis that after she was allegedly attacked by three PDP members in 2006 and her office was attacked in 2007, she did not hide or move to a different location or change her regular routine, such as going to and from work by herself, despite her testimony that the PDP continued to pressure her.25 The RPD concluded that this undermined the Appellant's credibility.26 The Appellant submits there is an objective basis to her fear based on information in the National Documentation Package (NDP) regarding electoral violence.27 The Appellant also submits that "a finding of lack of subjective fear could not be supported without a negative finding of credibility" and, in the Appellant's case, that "the Panel's credibility finding was unreasonable." [27] Regarding the objective basis for the Appellant's subjective fear, I note the RPD did acknowledge that "There is evidence that political parties hire thugs during elections and they harm people. The PDP has done this."28 However, the crux of the RPD's finding that the Appellant lacked subjective fear was on the basis of its conclusion that the Appellant failed to take any serious steps to protect herself until she left for Hungary in 2010. The Appellant does not specifically take issue with this finding. I have also read the RPD's rationale for finding the Appellant's actions demonstrate a lack of subjective fear and I agree. [28] Overall, I do not find the RPD erred in concluding that the Appellant's actions demonstrate a lack of subjective fear, and that this further undermines the credibility of her allegations of persecution. RPD did not err by requiring the Appellant to produce corroborating evidence [29] The RPD found that basic elements of the Appellant's claim had not been corroborated.29 For example, there was no corroboration of the allegation that she had worked with INEC or that she had worked under the Executive Chairman of the local government, or that she was a member of the PDP or the AC. Finally, there was no corroboration of the attack on her office in XXXX 2007. The RPD found the Appellant did not provide an adequate explanation for the lack of corroboration on the basis that the Appellant first stated she had not tried to obtain such documentation, and then later stated that she did try but was unsuccessful. The Appellant submits the RPD erred by requiring her to produce corroborating evidence because the events occurred over a decade ago and it would be unreasonable to expect her to still have such documents.30 The Appellant also submits that the NDP confirms the general violence of the 2007 election and that she did provide other corroborative evidence, such as with respect to her scholarship. [30] Based on my independent assessment, I do not find the RPD erred by drawing a negative inference from the lack of corroborative documentation. First, with respect to the Appellant's explanation that the events occurred over a decade ago, I note that despite this passage of time the Appellant clearly did have access to older documents given that she produced letters from 2009 and 2010 regarding her scholarship31 as well as her local government ID card.32 However, these documents only establish that the Appellant once worked as a clerical officer with the Ayobo Ipaja Local Government and received a scholarship to study in Hungary. That is, despite the Appellant having access to older documents, the documents only pertain to generic and basic information and there are no documents that are probative with respect to her allegations of persecution. [31] Also, despite the passage of time, the Appellant's own narrative indicates that some corroborative documents were available to her. For example, her narrative writes "I have documents of my appointments for my job at the local government and there will still be records at the local government that I worked closely with the chairman at the time."33 However, the Appellant did not actually produce these records. Her narrative also indicates that she was unable to produce documents for use in her claim for asylum in the US because the documents had been hidden by her cousin, but that she was later able to retrieve them after she left for Canada.34 However despite allegedly having gone to the lengths of getting her uncle to intervene with her cousin who had been hiding documents, the Appellant still did not produce anything that is probative with respect to her allegations of persecution. [32] Finally, the Appellant stated in her narrative that news of the attack on her office was "in the media." 35 Notably, when she was asked at the hearing if the attack was in the news or internet, the Appellant vaguely and contradictory responded "Newspapers, yeah. No."36 Given the vastness and breadth of the internet, I find that such media coverage would still be available on the internet today, on a balance of probabilities. [33] Finally, I acknowledge the Appellant's assertion that there is information in the NDP regarding electoral violence in 2007. However, the fact of a historical event alone, such as past election violence, does not establish the Appellant's allegations of persecution. [34] Overall, given the adverse credibility findings against the Appellant, I find it was open to the RPD to expect corroborative evidence and that it was reasonably available to her. I find that the lack of such corroboration further undermines the credibility of the Appellant's claim. RPD did not err by failing to weigh and consider all of the evidence [35] The Appellant submits the RPD failed to consider articles and evidence in the NDP regarding electoral violence in 2007. 37 I note first, as previously mentioned, that the RPD did acknowledge that "There is evidence that political parties hire thugs during elections and they harm people. The PDP has done this."38 However, as mentioned previously, the fact that there was electoral violence in 2007 alone does not establish the Appellant's allegations of persecution. [36] Regarding the scholarship documents, these simply convey that the Appellant received a scholarship to go to university in Hungary, which I accept she did. These documents do not, however, contain any information to establish that she worked under the Executive Chairman of the local government and that she was also an Officer with INEC and that she and her family have been relentlessly pursued by the PDP for not divulging confidential information to them 13 or 14 years ago. That is, the documents are not probative with respect to the Appellant's allegations of persecution. [37] Overall, I do not find that the RPD failed to weigh and consider all of the evidence. Also, I acknowledge that the RPD decision goes on to discuss that there is no evidence in the NDP to suggest that there are any ongoing hearings or investigations or future plans for any investigations to expose fraud perpetrated by the PDP in past elections years ago. However, based on my independent assessment, I find that even if there were such hearings or investigations, the Appellant nevertheless has not established that she was employed under the Executive Chairman of the Local Government or with INEC, and that she faces a serious possibility of persecution by the PDP for not assisting them in a past election. Summary [38] Overall, I do not find, on a balance of probabilities, that the Appellant has credibly established her allegations of persecution. I agree with the RPD that the Appellant does not face a serious possibility of persecution in Nigeria or that, on a balance of probabilities, a danger of torture or a risk to life or cruel and unusual treatment or punishment. CONCLUSION [39] 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) K. Qureshi K. Qureshi December 15, 2020 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Exhibit P-2, Appellant's Record, at p. 13. 4 Exhibit P-2, Appellant's Record, at p. 15. 5 Exhibit P-2, Appellant's Record, at p. 34-35. 6 Olanrewaju v. MCI, 2020 FC 569. 7 http://placng.org/wp/wp-content/uploads/2018/02/FACTSHEET-OF-THE-NIGERIA-ELECTORAL-OFFENCES-COMMISSION-BILL-PASSED-BY-THE-HOUSE-OF-REPRESENTATIVES-.pdf 8 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. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 17-24. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum at para. 22. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 13-16. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 24-25. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 29-33. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 21-22. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 17-24. 16 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 4-6 (of the decision itself). 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 24. 18 Transcript of hearing, February 18, 2019, at p. 9 line 15. 19 Exhibit RPD-1, RPD Record, Amended BOC Narrative, p. 38. 20 Transcript of hearing, February 18, 2019, at p. 9, line 29. 21 Immigration and Refugee Board of Canada. 29 August 2018. "Claimant's Guide (Print version)." Version 5. <https://irb-cisr.gc.ca/en/refugee-claims/Pages/ClaDemGuide.aspx>, at section "Can I make changes to my BOC Form?". 22 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 6 lines 6-17 (of the decision itself). 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 23. 24 Transcript of hearing, February 18, 2019, at p. 28-9. 25 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 3-4 (of the decision itself). 26 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 3, line 11(of the decision itself). 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 13-16. 28 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, line 31 (of the decision itself). 29 Exhibit RPD-1, RPD Record, RPD Reasons, p. 7 (of the decision itself). 30 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 24-26. 31 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 96-7. 32 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 61. 33 Exhibit RPD-1, RPD Record, Exhibit 2.3, Amended BOC, at p. 37. 34 Exhibit RPD-1, RPD Record, BOC, p. 33. 35 Exhibit RPD-1, RPD Record, BOC, p. 32. 36 Transcript of hearing, February 18, 2019, at p.32, line 20. 37 Exhibit P-2, Appellant's Record, Appellant's Memorandum at paras. 3, 29-33. 38 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, line 31 (of the decision itself). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-02414 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