TB8-33622

RAD File / Dossier de la SAR : TB8-33622 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 12, 2019 Date de la décision Panel Elana Rose Tribunal Counsel for the person who is the subject of the appeal Mbong Elvira Akinyemi 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 (the Appellant), citizen of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated December 7, 2018, rejecting her claim for refugee protection. DETERMINATION [2] The appeal is dismissed. BACKGROUND [3] The Appellant fears returning to Nigeria as she believes that her husband's family will harm her as they hold her responsible for her mother-in-law's illness and subsequent death, which occurred while the Appellant was visiting her daughter in Canada. [4] The Appellant also fears her husband's family as they have accused her of being a XXXX for inspiring her husband to convert to Christianity. The Appellant alleges that her in-laws abused her in 2006 and 2007, when she assisted her daughter to escape to Canada from Nigeria in order to avoid being subjected to Female Genital Mutilation (FGM) by her in-laws. [5] The standard of review I have applied in this decision is correctness, as there were no areas where the RPD had a meaningful advantage on credibility which required deference. [6] The Appellant is not relying on any new evidence pursuant to s.110 (4) of the Immigration and Refugee Protection Act (IRPA), and does not request an oral hearing. ISSUES IN APPEAL [7] The Appellant argues in the Appellant's memorandum that the RPD erred in its subjective fear and credibility assessment in the following ways: 1. The RPD erred by relying on immaterial and peripheral issues when finding that the inconsistency in the details of the 2006/2007 assaults against the Appellant undermined the credibility of the Appellant's present fear of her in-laws based on different events. 2. The RPD erred by finding that the Appellant was not credible around her mother-in-law's illness and death as the Affidavit provided by her husband dated July 17, 2017 contained internally inconsistent information. The Appellant argues that this was a typographical error that was corrected by the post hearing Affidavit provided. 3. The RPD erred by finding that the Appellant's delay in claiming undermines the Appellant's subjective fear and credibility. [8] The Appellant also argues in the Appellant's memorandum that the RPD erred in finding that Port Harcourt, Ibadan and Abuja are viable IFA's for the Appellant in the following ways: 1. The RPD erred by failing to consider the Appellant's sworn testimony on the agents of persecution, their reach and influence. 2. The RPD erred by finding that women can relocate in Nigeria and that it is reasonable to expect that. 3. The Board erred by not considering that the Appellant has carpal tunnel syndrome; has no post-secondary education; cannot reasonably support herself in Nigeria; speaks Edo and pigeon English only; and the RPD erred by following the Jurisprudential Guide blindly and failed to consider the high cost of living in Port Harcourt. [9] For the purpose of this appeal, I find that the determinative issue is credibility. As a result the issues raised on appeal relating to the IFA analysis are not addressed in these reasons for decision. ANALYSIS [10] I have conducted an independent analysis of the evidence on the record and the Chairperson's Gender Guidelines were taken into account when considering the evidence in this appeal. I find that the Appellant failed to establish a well-founded fear of persecution with credible and trustworthy evidence. Injuries and Beating [11] The RPD noted that the Appellant had testified that she had been beaten by her husband's family members after she fled to her sister's home in Lagos in XXXX 2007. She testified that she had suffered an injury to her breast from this attack, and in support of the event she provided an Affidavit1 from her sister in Nigeria. The RPD noted that the Affidavit raised inconsistency with the Appellant's evidence on the event and timing, and found that the inconsistency undermined the Appellant's credibility. [12] The Appellant argues that the RPD focused on a peripheral issue by allowing the evidence around an event that occurred in 2006 or 2007, to undermine the credibility of unrelated events pertaining to the Appellant's future risk of persecution from her husband's family members, - a 2017 accusation that the Appellant is a witch and somehow responsible for the illness and death of her mother-in-law. [13] I do not find merit to the Appellant's argument that inconsistent evidence on the Appellant's past persecution is irrelevant to the risk of future persecution. Had this been the only area of inconsistent evidence I do agree that it would not have been determinative, however, this is not the case here. [14] The Appellant has provided detailed evidence in her narrative and in oral testimony about the violent history that she endured at the hands of the agents of persecution. Establishing the nature, reach and existence of the agents of persecution is essential for establishing the well-founded-ness of her claim. This rests on credible evidence around the events past and present involving them. While past persecution is not essential to establishing a future risk, the Appellant must establish her overall credibility and the alleged past persecution. [15] In fact, these violent events towards her are important for establishing that she was targeted by his family for following Christian values, past and present, as alleged; and targeted for assisting her daughter evade FGM. She herself links these historic events to her husband's family's ongoing hatred of her, and a desire to punish her for her husband's conversion to Christianity. [16] As such, the credibility of the events in 2006/2007 are important, as the Appellant's Basis of Claim (BOC) and narrative is a sworn document, and the Appellant further took an oath to be truthful at her hearing, inconsistencies between her oral testimony and her supporting evidence are relevant to her overall credibility. Bearing in mind that she obtained the supporting documents through her husband from Nigeria and provided them at the hearing, it is curious that the supporting documents are rife with inconsistent information and deficiencies on their face. [17] The Appellant does not dispute that the Affidavit of her sister is inconsistent with her own testimony and narrative. The Appellant testified at her hearing, and stated in her narrative that in September 2006 she was injured in the head by her in-laws2 as she had assisted her daughter in evading FGM. She stated that she left her husband and fled to her sister's home in Lagos, and in November 2007 they located her in Lagos, where they beat her and threw a bottle at her, injuring her breast. While the Appellant testified that the first incident occurred when she was in Benin City in September 20063, the Affidavit4 of her sister, XXXX XXXX states: 'That in late September 2006, the husband family traced my sister to my place in Lagos, insisting she must produce XXXX, and in the process she was mistreated, beaten and even stabbed in the breast'.5 [18] The Appellant was unable to explain her sister's differing recollection at the RPD, and I note that the Appellant's sister indicated that the Appellant was stabbed in the breast; whereas the Appellant stated that a bottle was thrown at her6. In response to counsel's questions, the Appellant stated that she was stripped naked and beaten during the November 2007 event, and does not spontaneously mention a stabbing or bottle assault. [19] A review of the record reveals several other confusing areas of evidence around this event. The Appellant testified that she left Lagos after this event and went to hide in the village of Iguoubiobo. This is confirmed in the Affidavit of XXXX XXXX7, who indicates that she took the Appellant in. [20] I note that there are some inherent problems with the Affidavit provided by XXXX XXXX. Firstly, she is referred to as 'XXXX by the Appellant's sister in her Affidavit8, and not XXXX, and the Affidavit appears to have been stamped on July 18, 2017, four days after it was sworn on July 14, 2017. While these problems are not individually significant, the Affidavit does not serve to rescue the mounting credibility issues in the bulk of the evidence before me. [21] Furthermore the Appellant testified that she stayed in Iguoubiobo village for four years9 and returned to Benin City in 2011 where she reunited with her husband and lived from 2011 to 2016.10 This is inconsistent with the tombstone background data provided by the Appellant in the Schedule A form11, where she wrote that she resided in Benin, Nigeria from 2007-2016. This actually places her in Benin City during the pivotal event in November 2007 and following. [22] While the Appellant argues that she is the only one who can know for sure when the event took place, in response to her sister's statement, this begs the question as to why she would even provide evidence that is contrary to her own. Furthermore, her daughter XXXX was in a strong position to clarify events for the RPD, as these events flowed from her escape to Canada and alleged risk of FGM, however she did not provide any supporting evidence on these events. [23] A review of the audio confirms that the Appellant offered vague and evasive evidence around the absence of her daughter, and would not precisely state her daughter's current location until asked several times.12 Despite indicating that her daughter is supportive of her refugee claim13, XXXX was not available to provide evidence. While the Appellant indicated that her daughter had left Toronto seven months prior to the Appellants RPD hearing in November 2018, the Appellant hesitated to provide an exact location for her. After persistent questions, the Appellant stated 'I think she is in Calgary'. [24] The Appellant explained XXXX failure to provide witness testimony as an inability to afford plane tickets back to Toronto for the hearing in November 2018.14 This, however, does not address why the Appellant's daughter could not testify over the phone, or provide a detailed Affidavit on events that she experienced. Similarly, the Appellant provided an Affidavit from her sister in Canada but did not call her as a witness to clarify events. [25] The evidence provided in support of the past abuse of the Appellant by her husband's family falls short of being credible and reliable on a complete review of the record. While the Appellant argues that the evidence in this area is not central to the claim, or relevant to the Appellant's newest accusations by her husband's family of being a witch, I do not agree. [26] The Appellant provided that evidence to show a pattern of abuse, and also to bolster her claim by showing that the agents of persecution are capable of harming her. For that reason, the credibility of her allegations of past harm are essential to her overall credibility and to establishing the future risk on return. [27] I do not find that the RPD erred by finding that the inconsistencies around the past harm inflicted by the Appellant's husband's family undermined her credibility. This was not a determinative issue for the RPD, but part of a cumulative finding. Illness and Death of Appellant's mother-in-law [28] The RPD did not find that the Appellant provided sufficient credible evidence around the illness and death of the Appellant's mother-in-law. The RPD noted that there was inconsistency between the Appellant's sworn evidence and her husband's supporting Affidavit. It was noted that the Affidavit15 sworn on July 17, 2017 stated that the Appellant's mother-in-law was sick16; and also that she had already passed on17. A post hearing Affidavit18 was provided by the Appellant to rectify the inconsistency, which the RPD found to be insufficient to explain the confusion in the first sworn document. [29] The Appellant argues that the second Affidavit19 provided by the Appellant's husband, dated November 18, 2018 adequately explains the confusion and inconsistency on the date of death in the first Affidavit, and that furthermore the Death Certificate provided establishes that the Appellant's mother-in-law died on XXXX XXXX, 201720. [30] I do not find merit in the Appellants arguments for the following reasons. Effectively the second Affidavit raises more questions than it answers, and is inconsistent with the Appellant's contention that the first Affidavit contained a typographical error on review of the entire record I conclude that these supporting documents have been fabricated to bolster the claim. [31] When the Appellant was asked about the internal inconsistency in her husband's Affidavit dated July 14, 2017 she maintained that her husband meant to write in paragraph 19 that her mother-in-law 'nearly passed away'; and stated in questioning from counsel that she had asked her husband and he had stated that his mother 'nearly passed away'; implying it was merely a typographical error. [32] The second Affidavit21 of XXXX XXXX, dated November 13, 2018, at paragraph 3 indicates that he was told by his brother that their mother had passed away, however his brother had given him incorrect information, and she has not yet died. In other words, the Appellant's explanation that there was a typographical error was not accurate, and the Affiant suggests that his brother conveyed that their mother had died, when she had not. [33] There is no explanation offered as to how a mistake can be made as to whether this central family member had died or not; and the Affidavit gives rise to more questions than it resolves. [34] A situation where the Appellant's husband is told that his mother has died in error, by his brother; and simultaneously is charged with the duty of getting the death certificate as he is the first born22, is just not credible. [35] I have also reviewed the Death Certificate which indicates that XXXX XXXX died on XXXX XXXX XXXX 2017. This document is relied upon by the Appellant who noted that her husband obtained it on her request. She stated that her husband was charged with the duty of getting the death certificate as he is the first born23. [36] The Death certificate was registered and issued on July 20, 2018; which is just two days after the Appellant alleged that her husband was attacked by his family for supporting the Appellant24. If in fact the Appellant's husband had been ostracized and beaten by his family due to his ongoing relationship with the Appellant, as the Appellant alleged in her evidence, it is not plausible that he would simultaneously be charged with getting the Death certificate for the family that has beaten and ostracised him, as the first born. The conflicting evidence undermines the events as relayed and brings the authenticity of the Death certificate into question as well. [37] I note that submitting a false or irregular document has an impact on the weight assigned to other documents provided by the Appellant, especially when they are interrelated25, and on the overall credibility of the Appellant as well26. [38] Overall the evidence on the death of the Appellant's mother-in-law was confusing, even for the Appellant's counsel, who provided written submissions indicating that the Appellant found out in June 2006 that her mother-in-law was ill; which was prior to coming to Canada.27 [39] The Appellant provided vague evidence on her mother-in-law's illness throughout the hearing28. She testified to learning that her mother-in-law was sick in April 2017, and the only information that she could share was that she was in the hospital and then was taken to an herbalist. [40] The Appellant confirmed in oral testimony that she had contact with her husband between April and October 2017 and that he continued to state that his mother was ill, with no details of the diagnosis, despite a hospital visit. The Appellant confirmed that she never asked how her mother-in-law died, even after she learned that she was dead. [41] No hospital report was provided to the RPD or to the Refugee Appeal Division (RAD), and the only information that the Appellant could provide about her mother-in-law was that 'she was swollen'. She presented an undated photograph of an elderly woman with a swollen stomach29 at the RPD hearing, which is not accompanied with any primary identity documents confirming the identity of the woman pictured. This is given no weight. [42] I find that the Appellant's incoherent, repetitive and vague testimony undermines her credibility30. Her disinterest in details about her mother-in-law's health and the lack of sufficient knowledge or detail reasonably expected of a person in the Appellant's situation undermines her credibility also. [43] The Appellant's husband did not provide any witness evidence at the hearing in support of the Appellant. He was not available to explain the supporting Affidavit, with its internal inconsistency, and errors on the face of the Affidavits make them generally unreliable. [44] Given that the Appellant's husband provided two internally inconsistent Affidavits, the circumstances surrounding the issuance of the Death certificate, a document also provided by him, are important to the credibility of the document. I note that the Appellant's husband had the Death certificate issued during the time period that he was allegedly ostracized by his family, and just two days after he was attacked by his family members. As a result of this timing, the Death certificate can be given little weight. [45] I find no error in the RPD findings regarding the Appellant's mother-in-law's illness and death, and find that the illness and death were not established with credible evidence. Delay in Claiming [46] The RPD did not find the Appellant's explanation for a two month delay in claiming for protection to be reasonable and drew an adverse finding on her subjective fear. [47] The Appellant argues that the RPD erred in drawing an adverse finding on the Appellant's subjective fear and argues that the RPD should have focused on the risk of future persecution, and not subjective fear. [48] I do not agree with the Appellant that the RPD erred in considering subjective fear and credibility in conjunction with a delay in claiming protection. Someone who is truly fearful can reasonably be expected to claim refugee status at the first opportunity31; and delay is a relevant consideration when considering a subjective fear of persecution32 and overall credibility. [49] As both subjective and objective components are required to meet the definition of a convention refugee33, a lack of evidence going to the subjective element of the claim is in itself sufficient for the claim to fail.34 [50] According to the Appellant she learned on April 11, 2017 that her life was in danger if she returned to Nigeria, as she was accused of being a XXXX and of being responsible for her mother-in-law's illness. The Appellant testified that she waited for two months to make a claim as she was in shock, confused, and did not know what to do. In fact she provided this explanation repeatedly throughout the hearing.35 [51] I agree with the RPD that in the circumstances of the Appellant, her delay in seeking protection further undermines the credibility of events; however I note that the RPD did not make the delay a determinative issue, it formed part of a cumulative finding. I also do not find the two month delay to be determinative. [52] I note from the record that it was the Appellant who facilitated her daughter's escape from Nigeria in 2006. Her daughter came to Canada, to the Appellant's sister who resides in Canada, and made a successful refugee claim. [53] As both the Appellant's daughter and Appellant's sister have firsthand experience with the Canadian refugee system, the Appellant's explanation for her delay, that she was in shock and had to wait for the church members to advise her on what to do36, is simply not credible. [54] I do not find that the RPD erred in finding that the Appellant's credibility was further eroded by her evidence around the delay in claiming. CONCLUSION [55] After conducting my own analysis of the entire record, I find that the RPD did not err in its overall findings. [56] As a result of the cumulative anomalies in the Appellant's evidence, I arrive at the same conclusion as the RPD, and find that the Appellant lacks credibility. I do not accept that the material events as relayed by the Appellant in her BOC form, and at the hearing, occurred as described. [57] I find that the Appellant has provided internally inconsistent supporting documents which lack reliability in order to bolster her claim. [58] The appeal is dismissed and I confirm 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 IRPA. (signed) "Elana Rose" Elana Rose September 12, 2019 Date 1 Exhibit RPD-1, RPD Record, and Exhibit #4, at p.89. 2 RPD Hearing Recording, November 9, 2018, at 53:40. 3 RPD Hearing Recording, November 9, 2018, at 54:20. 4 Exhibit RPD-1, RPD Record, Exhibit #4, at p.89. 5 Ibid, at paragraph 6. 6 RPD Hearing Recording, November 9, 2018, at 53:40. 7 Exhibit RPD-1, RPD Record, Exhibit #4, at p.90. 8 Exhibit RPD-1, RPD Record, Exhibit #4, at p.89, para 7. 9 RPD Hearing Recording, November 9, 2018, at 1:20:00. 10 RPD Hearing Recording, November 9, 2018, at 1:33. 11 Exhibit RPD-1, RPD Record, Exhibit #1, at p.45. 12 RPD Hearing Recording, November 9, 2018, at 2:42:54. 13 RPD Hearing Recording, November 9, 2018, at 2:41:54. 14 Exhibit RPD-1, RPD Record, Exhibit #7, at p. 115. 15 Exhibit RPD-1, RPD Record, Exhibit #4, at p.86. 16 Ibid para 13. 17 Ibid, para 16. 18 Exhibit RPD-1, RPD Record, Exhibit #8, at p.134. 19 Exhibit RPD-1, RPD Record, Exhibit #8, at p.134. 20 Exhibit RPD-1, RPD Record, Exhibit #6, at p.111. 21 Exhibit RPD-1, RPD Record, Exhibit #8, at p.134. 22 RPD Hearing Recording, November 9, 2018, at 1:02:10 23 RPD Hearing Recording, November 9, 2018, at 1:02:10 24 Exhibit RPD-1, RPD Record, Exhibit #4, at p.107. 25 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 26 Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 27 Exhibit RPD-1, RPD Record, Exhibit #7, at p.116, para 5. 28 RPD Hearing Recording, November 9, 2018, at 36:50; 38:41; 2:25:19. 29 Exhibit RPD-1, RPD Record, Exhibit #4, at p.97. 30 Chen, Xing Kang v. M.C.I. (F.C.T.D., no. IMM-808-00), Gibson, November 29, 2000. 31 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003. 32Castillejos, Joaquin Torres v. M.C.I. (F.C.T.D., no. IMM-1950-94), Cullen, December 20, 1994; Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.) 33 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 34 Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999. 35 RPD Hearing Recording, November 9, 2018, at 46:00-48:40; 2:09:00. 36 RPD Hearing Recording, November 9, 2018, at 2:09:20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-33622 RAD.25.02 (April 04, 2019) Disponible en français 13 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