TB6-15323

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 File No. / N° de dossier de la SAR : TB6-15323 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Date(s) of Hearing January 24, 2017 Date(s) de l'audience Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 15, 2017 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ram Sankaran Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of the Federal Republic of Nigeria (Nigeria), is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits new evidence in support of her appeal; she does not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that her first husband, XXXX, was a violent man. She left XXXX in 2001. In 2008, the Appellant married XXXX XXXX (XXXX). [4] When the Appellant's daughter, XXXX XXXX (XXXX), from her first marriage, turned eighteen, the Appellant learned from her mother that XXXX demanded that the Appellant and XXXX present themselves to him because his family wanted XXXX circumcised. The Appellant refused because she had suffered serious health problems as a result of her own circumcision. [5] In March 2014, the Appellant went to Lagos but returned home because she could not find a place to stay. [6] In May 2014, XXXX, accompanied by three men, attended the Appellant's home and advised XXXX that he was to return the Appellant and XXXX to him otherwise he would send Boko Haram to grab them. The Appellant and her daughter went to Port Harcourt and then the daughter went to Ghana. The Appellant remained only two weeks in Port Harcourt because the friends with whom she stayed did not want to be involved in her problems due to safety concerns. The Appellant did not feel safe in Port Harcourt because she feared she might be found. [7] In July 2014, XXXX attended the Appellant's home and told her this would be the last time he would issue his demand for their daughter to be circumcised. The Appellant suffered a miscarriage. She moved around among friends' homes. Her husband, XXXX, sold their home in order to pay for her to travel out of Nigeria. The Appellant sent her daughter to Ghana and she, the Appellant, went to Lagos. [8] The Appellant arrived in Canada on XXXX XXXX, 2014 and made a claim for refugee protection on September 15, 2014. [9] The Appellant had a refugee determination hearing on December 30, 2014. In a written decision issued on January 7, 2015, the RPD rejected the claim. The RPD member found that the Appellant was not credible and had a viable internal flight alternative (IFA) in Nigeria. [10] Appeal pleadings were received at the RAD on January 28, 2015. On July 14, 2015, the RAD rendered its decision. The RAD accepted the appeal and referred the matter back to the RPD for redetermination before a differently constituted panel of the RPD. [11] The Appellant had a second refugee determination hearing on June 2, 2016. In an oral decision provided the same day, the RPD rejected the claim. The RPD had some credibility concerns but found the determinative issue to be a viable IFA. The RAD received the Appellant's appeal on August 12, 2016. The Appellant submits that the RPD erred in its findings regarding a viable IFA in Nigeria. ROLE OF THE RAD [12] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [13] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD's decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [14] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] The Appellant submits the following new evidence with her Appellant's Record: a) An affidavit from XXXX XXXX XXXX, June 10, 2016;2 b) A letter from XXXX XXXX XXXX, dated June 10, 2016.3 [16] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh,4 in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [17] If the proposed new evidence meets the tests set out in the statutory requirements the RAD will then go on to assess the FCA's considerations in Raza5 with the exception of materiality which is to be considered only in relation to s. 110(6) of the IRPA. [18] In the case at hand, the Appellant submits that the two documents, a) and b), postdate the date upon which the RPD refused her claim for protection. The Appellant also submits that the documents provide evidence of her current husband's recent divorce application. [19] The RAD accepts that the documents provide evidence that the Appellant's current husband intends to divorce her, information that was not before the RPD when it rendered its decision. The RAD notes that the documents, both dated June 10, 2016, do not postdate the RPD's decision rendered on June 16, 2016. Nevertheless, given the small amount of time in which these documents might have reached Canada from Nigeria before June 16, 2016, the RAD accepts the documents. [20] The RAD will consider the documents in the analysis below. ORAL HEARING AT THE RAD [21] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to section 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. When read together, however, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new evidence (section 110(4)), in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim (section 110(6)). The Appellant has provided new evidence as per section 110(4) of the IRPA; the RAD has admitted the Appellant's new evidence. [22] The RAD considered the Appellant's new evidence in the context of the totality of the evidence submitted/adduced at the RPD, including the testimony of the Appellant, and the Appellant's Record. The RAD finds that these documents and the testimony of the Appellant are relevant to a core aspects of the claim, credibility and internal flight alternative. In consideration of the totality of the evidence and the Appellant's new evidence admitted at the RAD, if found to be credible, it may lead the RAD to accept the Appellant as a Convention refugee. Therefore, the RAD finds that the new evidence admitted raises a serious issue with respect to the Appellant's credibility and the viability of an internal flight alternative and is central to the Appellant's refugee claim. The RAD, thus, decided to conduct an oral hearing. A Notice to Appear for a Hearing on January 24, 2017 was issued by the RAD on December 16, 2016. NEW EVIDENCE OFFERED AFTER THE APPEAL WAS PERFECTED [23] On January 12, 2017, the RAD received from the Appellant three documents to be entered as evidence at the hearing before the RAD. No application was submitted, pursuant to Rules 29 and 37 of the Rules of Refugee Appeal Division, for an order to allow her to provide and use documents not previously submitted. [24] The Appellant provided the following documents: a) A letter of support from XXXX XXXX, dated December 13, 2016;6 b) A letter of support from XXXX XXXX, dated December 13, 2016;7 c) A Petition for Decree of Dissolution of Marriage, dated December 6, 2016.8 [25] Rule 29 of the RAD Rules states: 29. (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [26] Rule 37 of the RAD Rules states: 37. (1) Unless these Rules provide otherwise, an application must be made in writing and without delay. (2) If a date for a hearing has been fixed, the Division must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date. [27] At the hearing, counsel for the Appellant explained that he had been short-staffed in his office during the holiday season and early in the new year, he had to deal with the XXXX XXXX XXXX XXXX which necessitated travel to the United States for himself and arranging same for his parents who reside in India. The RAD found the counsel's explanations satisfactory and, thus, accepted the late evidence. [28] The RAD assesses the late evidence in the analysis below. ANALYSIS OF THE EVIDENCE [29] According to Rule 57. (1) of the RAD rules: A hearing is restricted to matters relating to the issues provided with the notice to appear unless the Division considers that other issues have been raised by statements made by the person who is the subject of the appeal or by a witness during the hearing. [emphasis added] [30] The Notice to Appear states that the issues to be considered are whether the new evidence submitted with the Appellant's appeal is credible and trustworthy and, if so, what impact that would have on the RPD's finding with respect to an IFA. At the hearing before the RAD, the RAD indicated that the credibility and trustworthiness of the late evidence would also be an issue at the hearing. The RAD indicated that the issue was how the evidence impacted on the Appellant's credibility and on the RPD's finding with respect to an IFA. [31] As indicated above, although the RPD had some credibility concerns, the determinative issue made by the RPD in the second hearing was IFA. However, as a result of issues that arose at the hearing before the RAD, the RAD finds that the determinative issue is credibility. The RAD, therefore, finds it unnecessary to consider the issue of IFA. Credibility [32] The sworn testimony of an Appellant is presumed to be truthful unless there is valid reason to doubt its truthfulness.9 Nevertheless, after careful consideration of all of the evidence and representations, including that provided at the hearing before the RAD, the RAD finds that the Appellant has failed to advance her claim with evidence that is credible. The RAD is aware that none of the credibility concerns raised here may be sufficient, each on its own, to negate this claim. However, the cumulative effect of all of them is that I do not have sufficient credible and trustworthy evidence upon which to base a determination that the claimant is a Convention refugee. [33] At the beginning of the hearing before the RAD, the RAD began by questioning the Appellant about information contained in the affidavit of XXXX XXXX (XXXX),10 the Appellant's husband, which, as indicated above was accepted as new evidence. Whereabouts of the Appellant's daughter, XXXX [34] In the affidavit referred to in the previous paragraph, XXXX affirms that his life and that of the Appellant's two children remain at risk from the Appellant's first husband.11 [35] According to the allegations in the Appellant's Basis of Claim (BOC)12 and according to the recording of the hearing before the RPD on June 2, 2016, the Appellant testified that XXXX was sent to live in Ghana in 2014 in order to avoid the demands of her father that she be circumcised. The Appellant provided a letter from her daughter XXXX, dated April 19, 2016, as evidence for her claim before the RPD.13 In the letter the daughter states that she is residing in XXXX, Ghana. [36] At the beginning of the hearing before the RAD, the RAD questioned the Appellant about her contact with XXXX XXXX The Appellant testified that she continued to be in contact with XXXX by telephone every one or two months. When asked what information XXXX provided about his situation in Benin City, the Appellant testified that he has been making arrangements for the children and looking for a place for them. The Appellant was asked about her son; she testified that her son had moved to Lagos before Christmas of 2016. She testified that she was sending money to help support her son. The RAD then asked what plans were being made for her daughter, XXXX. The Appellant testified that XXXX had to move because she was living with XXXX. When the RAD asked the Appellant to confirm that XXXX was living with XXXX, the Appellant's counsel interrupted and advised the Appellant to listen. The Appellant then changed her testimony and stated that XXXX was not living with XXXX. Before the RAD could ask the Appellant to explain the contradiction in her testimony, she changed her testimony a second time and stated that XXXX was living with relatives. Her counsel then asked the Appellant where the relatives resided and the Appellant testified that they lived in Ghana. When the RAD asked the Appellant to explain the changes in her testimony, she testified that she did not say that XXXX was living with XXXX. She testified further that XXXX had moved within Ghana to live with friends. The RAD finds the Appellant's explanations unsatisfactory. The Appellant's immediate response upon being questioned about plans for XXXX was to testify that she lived with XXXX. Her testimony changed upon the interruption from her counsel. In any event, her explanation contradicts her first testimony and provides no explanation for the contradiction. The RAD finds that it is reasonable to believe that the Appellant spoke spontaneously and truthfully when first asked about her two children. A person's first account of events is usually more reliable and must be considered more trustworthy.14 As a result of the Appellant's testimony, the RAD finds the Appellant's credibility undermined. The RAD, thus, finds, on a balance of probabilities, that the Appellant's daughter never relocated to Ghana as a result of the threats of circumcision made by the Appellant's first husband. Affidavit of XXXX XXXX, dated June 17, 2014 [37] In the affidavit of XXXX XXXX15 offered as new evidence for the appeal, XXXX refers to numerous documents he provided to the Appellant as evidence for her hearings before the RPD, including his affidavit of June 17, 2014.16 The RAD found there to be a number of serious contradictions between information contained in the affidavit of June 17, 2014 and allegations the Appellant made in her BOC.17 The RAD questioned the Appellant about these contradictions. [38] During the hearing before the RAD, the Appellant testified that when she left her first husband she lived with her mother in the same village. The port of entry (POE) notes indicate that the Appellant lived with her mother from 2001 to 2007.18 The Appellant's BOC indicates that she lived with her mother after she separated from her husband in 2001.19 In the affidavit of June 17, 2014, XXXX affirms that after the Appellant separated from her abusive first husband she fled to Benin City for protection and safety. XXXX affirms that several years later, in 2007, he met the Appellant and she informed him about the facts of her first marriage. At the hearing before the RAD, the RAD referred the Appellant to this information and information contained in the POE notes and in her BOC regarding where she lived after she separated from her first husband. The RAD asked the Appellant to explain the contradiction between information provided by XXXX in his affidavit and information she provided at the POE and her BOC. The Appellant testified that she thought XXXX wrote stuff. She testified that she still had moved to another part of her village. The RAD finds the Appellant's explanation unsatisfactory. The RAD reasonably assumes that XXXX, having been married to the Appellant since 2008, would know her personal history with regards to her living arrangements. The RAD finds this particular information in the affidavit to be an attempt to embellish the Appellant's claim. [39] In the affidavit of June 17, 2014, XXXX affirms that the Appellant and her daughter, XXXX, were traced and located by her first husband and his thugs in Port Harcourt where they had fled to seek refuge. XXXX affirms that the Appellant and XXXX then returned to Benin City. As indicated above, the Appellant alleged in her BOC that she remained only two weeks in Port Harcourt because the friends with whom she stayed did not want to be involved in her problems due to safety concerns.20 She also alleged that she did not feel safe in Port Harcourt because she feared she might be found. She alleges that she sent XXXX to Ghana when she, the Appellant, returned to Benin City. At the hearing before the RAD, the RAD referred the Appellant to this information and asked her to explain the discrepancies. She testified that the information in the affidavit was a mistake. The RAD finds this explanation inadequate. Given that XXXX was living with the Appellant at the time of the first alleged threats from the Appellant's first husband, the RAD reasonably assumes that XXXX would be aware of the Appellant's reasons for returning from Port Harcourt and that XXXX did not return to Benin City but went to Ghana. Therefore, the RAD finds that the affidavit does not support the Appellant's allegations regarding events that led her and XXXX to flee to Port Harcourt, XXXX to then relocate to Ghana and the Appellant to return to Benin City. [40] As a result of the above analysis, the RAD assigns little weight to the affidavit of XXXX XXXX, dated June 17, 2014. The RAD finds the Appellant's credibility undermined as a result of providing evidence that not only does not support critical allegations of her claim but provides serious contradictory evidence. The RAD finds that the Appellant has thus shown herself able to obtain and willing to use as evidence a sworn document that contains information that seriously contradicts her own allegations. The RAD finds that such a document casts doubt on the Appellant's allegations and casts doubt on other documents provided by the affiant, XXXX XXXX. Extract from Crime Diary, issued June 17, 2014 [41] In the affidavit from XXXX XXXX offered as new evidence, he refers to the Extract from Crime Diary, issued June 17, 2014, 21 which he provided as evidence for the Appellant's claim. For the following reasons, the RAD assigns little probative value to the Extract from Crime Diary. [42] The information contained in the Extract was provided to the police by XXXX XXXX. The same information was provided to the police as is affirmed in the affidavit of XXXX XXXX, dated June 17, 2014. The same contradictions, as discussed above, are contained in the Extract. As discussed above, the Appellant testified before the RAD that the information in the affidavit was not correct. [43] The police Extract states that the Appellant's first husband comes from a notorious community in the Niger Delta where there is a presence of Boko Haram. During the hearing before the RAD, the RAD referred the Appellant to this information and advised her that there is no objective evidence of Boko Haram's presence in the Niger Delta. The Appellant testified that there is a set of people, who if they want something, refer to Boko Haram because it is meant to scare people. The RAD asked the Appellant why the police, as a professional body, would state in an official document that Boko Haram was present in the Niger Delta in 2014. The Appellant testified that they put together all the groups who commit kidnapping. The RAD finds the Appellant's explanation unsatisfactory. The documentary evidence indicates that there are militant group in the Niger Delta and a Joint Task Force was formed to deal with the problems in the Niger Delta.22 The considerable objective evidence regarding the activities of Boko Haram do not locate this group in the Niger Delta.23 The RAD reasonably believes that the Nigerian Police would be aware of the activities of Boko Haram and that Boko Haram is not active in the Niger Delta. Extract from Crime Diary, issued November 22, 2015 [44] In the affidavit from XXXX XXXX offered as new evidence, he refers to the Extract from Crime Diary, issued November 22, 2015, 24 which he provided as evidence for the Appellant's claim. The RAD assigns little probative value to the Extract from Crime Diary because of the RAD's concerns found on the face of the document. [45] According to a Response to Information Request (RIR), "the police logo displayed on police reports is the same across the country."25 An example of the logo is attached to the RIR. The logo contains an eagle atop an elephant and the name "The Nigeria Police" under the elephant. The heading of the Extract contains a logo which contains an eagle atop an elephant. The logo does not contain the title "The Nigeria Police" but rather the title "Edo State Police Command". [46] Under the heading of the extract are two parallel lines; rather than being horizontal, the lines are on a slight angle such that they intersect with the title "EXTRACT FROM CRIME DIARY". [47] When these anomalies where pointed out to the Appellant at her hearing before the RAD, she had no explanation. [48] The RAD finds, on a balance of probabilities, that the two Extracts from Crime Diaries are fraudulent documents. [49] The RAD notes that the independent documentary evidence provides considerable information regarding the availability of fraudulent documents in Nigeria. A Response to Information Request (RIR) indicates that Benin City, in the southern area of Nigeria, is a center of the engraving industry, and practically any falsified document can be procured there. Apparently, a Nigerian posing as a doctor was arrested by the Special Fraud Unit after providing a Nigerian living in Canada with fraudulent medical bills.26 A second RIR indicates that there is the massive procurement of fake documents in Lagos, Oyo, Delta, Ogun, Osun, and Ondo states.27 According to the information the Appellant provided at the POE28 and in her BOC, she employed an agent to obtain false documents to assist her in travelling to Canada. The Appellant has thus shown herself able to obtain and willing to use documents obtained in a fraudulent manner. [50] The RAD finds that documents found to be counterfeit cast doubt on the allegations themselves. The RAD, thus, finds that submitting a false or irregular document has an impact on the overall credibility of the Appellant. Attacks on the Appellant's husband, XXXX XXXX, by the agent of persecution Timing of Attacks and ability to escape [51] In the affidavit from XXXX XXXX offered as new evidence, he refers to affidavits and police reports he provided as evidence for the Appellant's claim which provide information regard attacks or attempted attacks on his person by the Appellant's first husband, XXXX. [52] According to a police report, dated December 3, 2014,29 XXXX reported that on XXXX XXXX, 2014 he was able to escape when his life was threatened by XXXX and his thugs who had traced him to the home of his friend. [53] In an affidavit of XXXX XXXX, with conflicting dates of issue,30 XXXX affirms that on XXXX XXXX, 2015, he was able to escape from XXXX who was accompanied by three fierce looking thugs and a woman posing as the Appellant's sister. [54] In the affidavit from XXXX XXXX submitted as new evidence, XXXX affirms that on XXXX XXXX, 2016 he was able to escape an attempt to abduct him which was made by XXXX and three thugs.31 [55] At the hearing before the RAD, the RAD pointed out to the Appellant that the first two attempted attacks by XXXX and his thugs against her husband occurred shortly before her first hearing before the RPD held on December 30, 2014. The RAD pointed out to the Appellant that the third attempted attack against her husband occurred shortly before her second hearing before the RPD on June 2, 2016. The RPD offered the opinion that the timing of the attacks appeared to occur coincidently just before her hearings before the RPD. The RAD asked the Appellant to comment on the coincidences. The Appellant offered no comment. In oral submissions before the RAD, the Appellant's counsel submitted that the Appellant had no control over when XXXX was attacked and that coincidences happen. [56] The RAD is not persuaded by counsel's submissions. By the time the Appellant had her second hearing before the RPD, she had been in Canada almost two years and, according to documents provided as evidence, during that time her husband was attacked shortly before each hearing. The RAD finds, on a balance of probabilities, that the timing of the alleged attacks on XXXX by the agent of persecution extraordinary coincidences and which raise a significant doubt regarding their timing. The RAD draws a negative inference in this regard. [57] At the hearing before the RAD, the RAD pointed out to the Appellant that in documents provided by her husband XXXX XXXX XXXX refers to her former husband XXXX as a person, with the assistance of fierce thugs, relentless in his determination to punish him. The RAD reminded the Appellant that even though the police had advised XXXX to relocate, he remained in Benin City. The RAD asked the Appellant how it was that XXXX was able to escape on each occasion that he was pursued and located by the agent of persecution. The Appellant provided no explanation. [58] The RAD finds it highly unlikely that the Appellant's husband was able to escape on three separate occasions when pursued and located in Benin City. The RAD is guided by the words of Mr. Justice Mahoney in Orelien32 wherein he stated: It seems to me one cannot be satisfied the evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so. The Affidavit of XXXX XXXX, issued April 20, 2015 [59] As mentioned above, the Appellant provided as evidence for her claim an affidavit from XXXX XXXX33 in which he affirms that on XXXX XXXX, 2015 he managed to escape when he was located by the Appellant's former husband in the company of three fierce thugs and a woman posing as the Appellant's sister. At the hearing before the RAD, the RAD referred the Appellant to the affidavit and pointed out to her that the typed date on the document reads: "BENIN CITY............DAY OF ..................2015" and the 20th of April has been filled in by hand. The RAD noted that the date of issuance is a date before the event upon which the affiant reports. The RAD pointed out that a handwritten date of 20/04/16 appears under a signature of the Deputy Chief Registrar. When asked if she could explain the error in the typed date, the Appellant testified that it was a mistake and that she had no explanation. The RAD finds the Appellant's explanation unsatisfactory. The RAD finds it highly unlikely that a High Court of Justice in Nigeria would issue an official document with an incorrect printed date. In addition, the RAD has found problematic another affidavit provided by XXXX XXXX. The RAD has also commented on the availability of fraudulent documents and the Appellant's ability to obtain and willingness to use fraudulent documents. [60] The RAD, therefore, finds on a balance of probabilities that the affidavit under discussion is a fraudulent document. The RAD, thus, finds the Appellant's credibility diminished as a result of providing a fraudulent document. The RPD's Credibility Findings [61] As indicated at the outset of this decision, the RPD outlined in its written reasons credibility concerns regarding the Appellant but found that IFA was the determinative issue. [62] In her appeal the Appellant addresses the issue of the IFA. The Appellant provides no submissions regarding the credibility findings of the RPD. Therefore, at the conclusion of its hearing, the RAD asked the Appellant's counsel to provide oral submissions with regard to the Appellant's credibility. Counsel submitted that he would depend upon the submissions he made at the end of the hearing before the RPD on June 2, 2016. When the incident with XXXX began [63] The RPD found that the Appellant's testimony regarding when XXXX first came to her home, July 2014, contradicted information contained in her BOC that he first appeared at her home in May 2014. The RPD found that the Appellant testified that she also had her miscarriage in July 2014 whereas medical evidence she provided indicates that the miscarriage occurred in May 2014. The RPD found that the Appellant testified that her daughter was sent to Ghana in July 2014 though, according to other evidence, this occurred in June 2014. The RPD did not accept the Appellant's explanations regarding the inconsistencies in dates, that is, that the events happened some time ago. The RPD noted that it could accept that the Appellant could mix up dates of events from two years ago. However, the RPD expected that the Appellant could maintain a chronological order of events given that the timeframe was marked by her miscarriage, her travels to Port Harcourt, and her daughter going to Ghana. The RPD did not find it reasonable that the Appellant would be unable to maintain the order of these significant events. [64] According to the recording of the hearing, the Appellant's counsel, who has represented her since her first hearing before the RPD, submitted that one could not say that the Appellant's testimony was perfect but that she was generally consistent with her story. The counsel submitted further that if the discrepancies were ignored there was corroborative evidence. At the hearing before the RAD, counsel submitted that the Appellant is bright but has no formal education. [65] For the following reasons, the RAD does not agree with the counsel's submissions. [66] According to the recording of the hearing before the RPD, when the Appellant was asked when XXXX first came to her home in Benin City, she testified that he only sent a note and that XXXX came to her home in July 2014. Upon being asked, she testified that this was the first time he had done so. She testified further than she and her daughter had not been at home but when they subsequently learned that XXXX said he would find them and take them to his village, they went to Port Harcourt. When the RPD asked the Appellant if they had gone to Port Harcourt in July 2014, the Appellant responded in the affirmative. The Appellant testified that XXXX came to the house in Port Harcourt when she and her daughter were out. She testified further that when she learned of the note that XXXX had left at the house in Port Harcourt, she and her daughter returned to Benin City. When asked what happened once they returned to Benin City, the Appellant testified that she had a miscarriage around XXXX XXXX, 2014 and then she took her daughter to Ghana. The Appellant then testified that she had mixed up the dates and that her daughter had gone to Ghana in June and that she had accompanied her daughter from Port Harcourt. Shortly after that, the Appellant testified that she had confused the months in her earlier testimony and that she had a miscarriage before she went to Ghana and then went back to Benin City before going to Ghana. When the RPD asked the Appellant if she saw XXXX again, she testified that she saw him in July at her home in Benin City. The RPD reminded the Appellant that she had earlier testified that it was in July that XXXX first attended her home and she did not see him on that occasion. The Appellant testified that she had earlier been speaking about the time XXXX only spoke to her husband. She testified further that she could not remember. The RPD then asked the Appellant what happened the second time XXXX attended her home. She testified that XXXX threatened to kill her if she did not bring their daughter to the village and that he burned her hand with a lighter from his car. She testified further that she then returned to Port Harcourt. She testified that when XXXX then found her in Port Harcourt, she went to stay with another friend. The RPD asked the Appellant to explain the contradiction between her oral testimony, that XXXX had come to the house in July, while in her BOC she alleges he came in May. The Appellant testified that she cannot recall dates and that is why she referred to months. The RPD pointed out to the Appellant that she did not mention in her BOC that she went to Port Harcourt a second time. According to the recording of the hearing, the Appellant's counsel then referred to the "choppy PIF" (Personal Information Form, now called BOC). The Appellant provided no explanation to the RPD's comment about the omissions. [67] The RAD finds that the Appellant could not consistently tell her story. The RAD finds the Appellant's explanations for the discrepancies unsatisfactory. The RAD appreciates that according to information in the POE notes, the Appellant has five years of education.34 Nevertheless, the RAD finds it reasonable to believe that the Appellant is capable of providing information about events in her life in a straightforward manner. The RAD finds that she was unable to do so. The RAD agrees with the RPD, that while one could accept problems the Appellant might have recollecting dates, the Appellant was unable to provide information regarding critical events in a chronological order. The RAD does not accept counsel's submission that the Appellant had a "choppy PIF". The RAD notes that the Appellant provided a BOC, dated August 19, 2014, in which information was provided by the Appellant with the assistance of a counsellor from the YWCA.35 The Appellant provided addendums to the original BOC narratives, through her counsel, before her first hearing before the RPD.36 The Appellant had the opportunity to provide any further addendums or corrections to her BOC before her second hearing before the RPD, held a year and a half after the first hearing. The RAD, thus, finds the Appellant's credibility seriously undermined. [68] The RAD notes that some of the Appellant's testimony recounted above is omitted from the Appellant's BOC. The Appellant did not allege in her BOC that she returned a second time to Port Harcourt and was found by the agent of persecution nor did she allege that the agent of persecution burned her with a lighter. The RPD did not put these omissions to the Appellant. The RAD finds that the Appellant's testimony regarding the incident in which she was burned, not mentioned in her BOC, appears to have been given to coincide with documentary evidence in the form of a letter from her husband XXXX, dated August 26, 2016.37 [69] While Appellant provided a substantial amount of documentary evidence to support her claim, the RAD is not persuaded that this evidence is sufficient to overcome the RAD's credibility concerns. The RAD provided reasons above for assigning little weight to the affidavit of XXXX XXXX, dated June 17, 2014,38 an affidavit which provided evidence regarding the Appellant's alleged problems with her first husband. The RAD also provided reasons above for finding on a balance of probabilities that the two Extracts from Crime Diaries39 which provide information regarding the alleged problems caused by the agent of persecution for the Appellant and XXXX are fraudulent documents. As the RAD has previously stated the submission of fraudulent documents casts serious doubts on the allegations found in such documents and diminishes the credibility of the Appellant. [70] The RAD gives little weight to the other documents40 provided by the Appellant to support her allegations regarding the agent of persecution. A number of these documents emanate from XXXX XXXX whom the RPD has found provided to the Appellant unreliable or fraudulent documents. In not giving weight to documents submitted by the Appellant to corroborate her allegations, the RAD is guided by the Federal Court decision in Devundarage41 which establishes the principle that when a story recounted by the claimant is found to be untrustworthy and fabricated, then it is reasonable to question the veracity of the documents submitted by the claimant. In finding the Appellant not credible, the RAD is not prepared to give these corroborative documents probative value. Omissions [71] The RPD found it unreasonable that the incident to which the Appellant provided testimony in which XXXX and XXXX had a direct confrontation around October or November of 2014 was omitted from her BOC. The RPD found that the Appellant had no other explanation for the omission other than to state that her husband told her about it and that it was on that occasion that XXXX burned her hair salon at her home. The RPD noted that none of the letters provided by XXXX as evidence mention this incident and found it unlikely that he would fail to reference such a direct confrontation in which he was threatened. The RPD also found that the date provided by the Appellant during her oral testimony of the incident in which the hair salon was destroyed was inconsistent with information contained in a letter from Patrick. The RPD noted that the Appellant's testimony was inconsistent with allegations in her BOC that indicate that XXXX sold their home to pay for the Appellant's flight to Canada. [72] The RAD is not persuaded by counsel's submissions, as indicated above, that the Appellant was generally consistent with her story and that if the discrepancies were ignored there was corroborative evidence. [73] According to the recording of the hearing before the RPD, when the Appellant was asked to explain the omission of the incident in which XXXX was confronted and threatened by XXXX and the contradictions with XXXX letter regarding the date of the destruction of her hair salon, she did not do so. The RAD finds that the Appellant provided no satisfactory explanation for the omission or contradictions. According to the recording of the hearing, she instead continued to provide and repeat her testimony. The RAD finds that the Appellant embellished her claim with the particular testimony with regards to the confrontation between XXXX and XXXX. The RAD finds that the Appellant was unable to keep dates of events involving the agent of persecution consistent. The RAD, thus, finds the Appellant's credibility impugned. [74] The RAD has, above, provided reasons for not accepting counsel's submissions regarding corroborating evidence to support the Appellant's allegations. Additionally, as mentioned by the RPD, the letter from XXXX dated August 26, 201642 does not support the Appellant testimony regarding the timing of the alleged destruction of her hair salon nor does any letter, affidavit or police report made by XXXX support the Appellant's testimony regarding a serious confrontation between XXXX and XXXX in October or November 2014. Documentary Evidence [75] The RPD found that the Appellant's testimony was inconsistent with her other evidence on various material events. The RAD has reviewed the various findings of the RPD with respect to its findings of inconsistences. The RAD has also outlined above, various inconsistencies made by the Appellant which were not addressed by the RPD, such as the Appellant testified that XXXX found her in Port Harcourt the second time she fled there and XXXX burned her with a lighter on another occasions. [76] The RPD found, however, that on the strength of the documentary evidence provided by the Appellant, it accepted the Appellant's broad allegations that XXXX is pursuing the Appellant and her daughter for the circumcision ritual. The RAD, respectfully, does not agree with the RPD's finding in this regard. The RAD has outlined above its rejection of the documentary evidence provided by the Appellant for her claim. The RAD has, above, found the Appellant to be an untrustworthy witness. The RAD finds that the Appellant, on a balance of probabilities, fabricated her story in order to make a claim for protection. New Evidence [77] As discussed above, the Appellant provided an affidavit and a letter from XXXX XXXX XXXX, 43 the Appellant's husband, both dated June 10, 2016. Both documents provide evidence regarding the Appellant's allegations and also inform the Appellant that her husband is seeking separation and divorce. The RAD assigns little evidentiary weight to these documents for the following reasons. [78] The affidavit refers to previous documents provided by the affiant, in particular an affidavit, issued on June 17, 2014, to which the RAD has assigned little weight and two Extracts from Crime Diaries, which the RAD has found to contain information contradictory to the Appellant's allegations and on a balance of probabilities to be fraudulent. The RAD has given no probative weight to other documents to which the affiant refers in the affidavit. [79] The RAD has found the Appellant to be an untrustworthy witness. As such, the RAD is not prepared to assign weight to two documents that provide information which the RAD has found on a balance of probabilities fabricated. Serious contradictions between the Appellant's testimony and her BOC, as well as previously submitted unreliable evidence provided by the affiant, irreparably taint the probative value of the documentary evidence submitted by the Appellant. [80] In addition, the RAD cannot ignore the timing of the request for separation and divorce. At the hearing before the RAD, the RAD referred the Appellant to these two documents which inform the Appellant that her husband is seeking a separation and divorce. Upon being asked, the Appellant testified that she had never before discussed with her husband the possibility of a divorce. The RAD noted to the Appellant that the documents were issued June 10, 2016, barely one week after the RPD issued an oral decision in which it found that the Appellant had a viable IFA. The RAD reminded the Appellant that in its decision the RPD noted that the Appellant would not be relocating to Lagos as a single woman because she was still married to XXXX. The RAD also reminded the Appellant that XXXX had supported her for almost two years in her claim for protection by providing numerous documents. The RAD expressed the opinion of the coincidence of the timing of XXXX decision to divorce from the Appellant barely one week after the RPD found that she could relocate as a married woman to Lagos. The RAD then asked the Appellant if she had any response to the RAD's opinion. The Appellant testified that she never told XXXX about the hearing. She testified that XXXX thought that by divorcing her he would be done with it (presumably the problems with XXXX) and that XXXX just wanted peace. During the hearing before the RAD, counsel submitted that XXXX was sick of the whole situation and that the Appellant could not be penalized for things beyond her control. [81] The RAD appreciates that the Appellant's husband might be sick of the whole situation. Nevertheless, the timing of the decision for a divorce, a divorce which would seriously affect the RPD's finding of Lagos being a reasonable location for the Appellant as a married woman, is too fortuitous in nature to be believed. Late Evidence Letters from XXXX XXXX and XXXX XXXX [82] The RAD gives little evidentiary weight to a letter from XXXX XXXX, 44 dated December 13, 2016, for the following reasons. The letter provides information about the whereabouts of the Appellant's son, XXXX. Apparently XXXX resides with Mr. XXXX in Lagos. The letter provide no persuasive information regarding the Appellant's allegations critical to her claim. [83] For the following reasons the RAD assigns little evidentiary weight to a letter from XXXX XXXX, dated December 13, 2016.45 The letter is not affirmed and no identity documents were provided from the letter's author. Ms. XXXX states that the Appellant's ex-husband has been coming to her house in Lagos making trouble for her. At the hearing before the RAD, the Appellant testified that she speaks to Ms. XXXX about once a month and that about a year ago. Ms. XXXX informed the Appellant of her ex-husband's visits to MsXXXX XXXX home in Lagos. When the RAD asked the Appellant why she did not obtain this evidence for her hearing before the RPD, the Appellant testified that she had not thought about it. The RAD voiced the opinion of the coincidence of evidence of the Appellant's ex-husband looking for her in Lagos arising only after the RPD found that the Appellant could safely relocate to Lagos. The Appellant testified that it did not occur to her to ask earlier for this evidence of her ex-husband looking for her in Lagos. The RAD does not find the Appellant's explanations satisfactory. According to the Appellant's allegations, and earlier testimony the agent of persecution searched for her since 2014 only in Benin City through her husband and through her mother in their home village. The RAD finds it significant that the agent of persecution would expand his search over a year ago to the Appellant's friend in Lagos. The RAD finds it highly questionable that this evidence of the agent of persecution searching for the Appellant in Lagos arose only after the RPD found Lagos to be a viable IFA. The RAD notes that according to the recording of the hearing of the RPD, the Appellant made no mention of this situation when she was questioned about locating in Lagos. [84] With regards to the two letters discussed above, the Appellant provided the two envelopes in which letters were sent through DHL.46 During the hearing before the RAD, the Appellant was asked if the authors of the two lettersXXXX XXXX XXXX and XXXX XXXX, knew one another. The Appellant responded in the negative. The RAD then referred the Appellant to the two envelopes and pointed out her that XXXX XXXX and XXXX XXXX used the same DHL account number to send their respective letters.47 The Appellant was asked how it was that two people in Lagos, who do not know each other, used the same DHL account to send her letters to be used as evidence for her appeal. The Appellant testified that they both live in Lagos. The RAD finds the Appellant's explanation unreasonable. The RAD, thus, finds the provenance of the two letters to be seriously problematic. Petition for Decree of Dissolution of Marriage [85] For the following reasons the RAD gives little evidentiary weight to the documents48 included in the petition. [86] The Appellant did not provide the originals of the documents. The petition contains a stamp as do two affidavits included with the petition. Without the originals the RAD is unable to ascertain whether the documents contain proper security features and whether they are genuine. [87] At the hearing before the RAD, the RAD asked the Appellant why original documents were not provided. Counsel responded by stating that he believed the originals were required to be returned to the Appellant's husband. The RAD can give no weight to counsel's explanation. There is nothing in the documents that indicates that all of the pages had to be returned to the Appellant's husband. The Appellant testified that she had been sent the documents in December 2016 in order for her to sign. Upon being asked, the Appellant testified that she had signed and returned the document to her husband. Among the papers contained in the petition is an Acknowledgement of Service which the Appellant was to sign and date, signifying receipt of the petition.49 The Appellant is to acknowledge that she received a sealed copy of the petition in the proceedings and the notice addressed to her. The acknowledgement does not contain the Appellant's signature or date. The Appellant was asked why she had not provided a signed copy and proof that the acknowledgement had been returned to her husband in Nigeria. The Appellant provided no explanation. The RAD reasonably believes that only the one page acknowledgement was to be returned, not the remaining documents. Thus, the RAD finds that the Appellant has provided no reasonable explanation for not providing the original documents. The Appellant provided no satisfactory explanation as to why she did not provide a copy of the acknowledgement she signed and proof that the acknowledgement was mailed to Nigeria. [88] The documents were provided by XXXX XXXX, a person whom the RAD has found to have provided untrustworthy documents for the Appellant's hearings. [89] During the hearing before the RAD, the RAD asked the Appellant why her husband waited six months after sending her a letter and affidavit informing her that he wished to divorce her before filing a petition on XXXX XXXX, 2016 for the dissolution of their marriage. The Appellant testified that XXXX said it takes a while for the procedure to come through. The RAD pointed out to the Appellant that on file is evidence in the form of an e-mail that on November 15, 2016 the RAD requested that her counsel be advised that the RAD had decided to hold an oral hearing and evidence in the form of an e-mail dated November 21, 2016 that counsel had acknowledged receipt of the RAD's decision to hold a hearing. The RAD then asked the Appellant about the coincidence of the timing of the RAD's decision to hold a hearing and XXXX filing a petition for the dissolution of their marriage. The Appellant testified that she had no comment about the coincidence. She testified that she didn't know that XXXX had sent the documents. The RAD finds the Appellant's explanations unsatisfactory. Nevertheless, the timing of the petition for the divorce being issued shortly after the RAD decided to hold an oral hearing is another coincidence that the RAD finds to be too fortuitous in nature to be believed. [90] The RAD wishes to emphasize what it finds to be the strong correlation between the finding by the RPD of a viable IFA in Lagos for the Appellant as a married woman and the evidence provided by the Appellant for her appeal, evidence which undermines the IFA finding. The RAD finds that the Appellant appears to have taken the opportunity with this evidence to complete a deficient record. In Summary [91] When considering in totality the cumulative adverse credibility findings noted above, the RAD finds, on a balance of probabilities, that the Appellant's evidence with regard to central allegations in Nigeria are neither credible nor trustworthy. [92] The RAD is supported by the jurisprudence where the Federal Court held in Sheikh that: ... even without disbelieving every word [a claimant] has uttered, a ... panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim... In other words, a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony.50 [93] The RAD finds that, in light of the cumulative adverse credibility findings, the Appellant is not credible and that overall her allegations lack veracity. The RAD, therefore, finds that there is not a serious possibility of persecution for the Appellant, nor would she be subjected personally, on a balance of probabilities, to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture, should she return to Nigeria. CONCLUSION (signed) "Lesley Mason" Lesley Mason February 15, 2017 Date [94] The Appellant is neither a Convention refugee nor a person in need of protection. Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, pp. 177-178. 3 Ibid., pp. 179-180. 4 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 6 Exhibit P-4, pp. 5-6. 7 Ibid., pp. 7. 8 Ibid., pp. 8-16. 9 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 10 Exhibit P-3, Appellant's New Evidence, pp. 1-2. 11 Ibid. 12 Exhibit RPD-1, RPD's Record, pp. 8-25. 13 Ibid., pp. 166-167. 14 Mohacsi, Janos v. M.C.I. (F.C.T.D., no. IMM-1298-02), Martineau, April 11, 2003. Reported: Mohacsi v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C. 771 (T.D.) 15 Exhibit P-3, Appellant's New Evidence, pp. 1-2. 16 Exhibit RPD-1, RPD's Record, pp. 59-60. 17 Exhibit RPD-1, RPD's Record, pp. 8-25. 18 Ibid., p. 47, question 8. 19 Ibid., pp. 8-25. 20 Exhibit RPD-1, RPD's Record, p. 12. 21 Ibid., pp. 102-103. 22 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (April 29, 2016), items 1.7, 2.1. 23 Ibid., items 1.7,1.16, 2.1, 7.4, 7.7., and 7.10. 24 Exhibit RPD-1, RPD's Record, p. 175. 25 Exhibit RPD-1, RPD's Record, NDP for Nigeria (April 29, 2016), item 10.3, p. 3, section 2.1. 26 Ibid., item 3.10, p. 7. 27 Ibid., item 9.2, p. 14. 28 Exhibit RPD-1, RPD's Record, pp. 52-53. 29 Ibid., p. 130. 30 Ibid., pp. 173-174. 31 Exhibit P-3, Appellant's New Evidence, pp. 1-2. 32 Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.). 33 Exhibit RPD-1, RPD's Record, pp. 173-174. 34 Exhibit RPD-1, RPD's Record, p. 31. 35 Ibid., pp. 8-20. 36 Ibid., pp. 23 and 25. 37 Exhibit RPD-1, RPD's Record, pp. 99-100. 38 Ibid. pp. 59-60. 39 Ibid., pp. 102-103, p. 175. 40 Ibid., pp. 98-100, 129-130, 166-172. 41 Devundarage, Shiromi Priyadarshini v. M.C.I. (F.C., no. IMM-2443-04), Kelen, February 16, 2005, 2005 FC 245. 42 Ibid., pp. 99-100. 43 Exhibit P-3, Appellant's New Evidence , pp. 1-4. 44 Exhibit P-4, Appellant's Late Evidence, pp. 5-6. 45 Ibid., p. 7 46 Ibid., p. 7-8. 47 Ibid., pp. 19-20. 48 Ibid., pp. 8-16. 49 Ibid., p. 15. 50 Sheikh, Abdulhakim Ali v. M.E.I. (F.C.A., no. A-521-89), MacGuigan, Iacobucci, Desjardins, July 4, 1990. Reported: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); 11 Imm. L.R. (2d) 81 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-15323