TB5-05858

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 : TB5-05858 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 Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 05, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (Appellant), a citizen of Nigeria appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. The Appellant has submitted new evidence with the appeal as referred to in s.110(4) of the IRPA1 and requests an oral hearing be held pursuant to s.110(6) of the IRPA. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that he would face persecution in Nigeria because of his sexual orientation as a bisexual individual. [4] The Appellant alleged that he came to Canada with his wife and three children in June 2013. He said that he went back to work in Ilorin, Nigeria in July 2013, and his family stayed in Canada where they requested protection. Their claim was initially denied, however, his family was later accepted in Canada under Humanitarian and Compassionate grounds in August 2014. [5] On XXXX XXXX, 2014, when in Nigeria, the Appellant alleged that XXXX XXXX, found the Appellant and his same-ex partner, XXXX making love at the Appellant's house. XXXX was XXXX female girlfriend and despite all the efforts that the Appellant and XXXX made to communicate with her, she refused to talk to them and left. The Appellant alleges that one week later, on XXXX XXXX, 2014, during his XXXX birthday's party the police came and arrested him. An officer informed the Appellant that he was charged as homosexual along with his same-sex partner because XXXX XXXX had reported them to her father who was a divisional police officer. The Appellant alleges that he was detained at the police headquarters for homosexual acts and that during his detention he was abused, beaten and humiliated by police officers because of his alleged bisexuality. He was released on bail after six days. When he arrived at his house, he found out that the house had been vandalized. People in his neighbourhood started throwing rocks at him, saying that they did not want him in the neighbourhood. The Appellant alleges that he went to report the incident to the police, but they only offered to lock him up in a police cell until his case would be heard in court on XXXX XXXX, 2014. The Appellant then left Ilorin that same day, on XXXX XXXX, 2014, and went into hiding at a friend's house in Lagos. [6] The Appellant alleged that he left Nigeria on October 16, 2014, and then travelled to the United States of America (U.S.) on October 17, 2014. He also said that he boarded a plane to Canada on October 19, 2014, and landed at Pearson airport where he was refused entry because his family were failed refugee claimants; he alleged that "meanwhile [his] wife had informed [him]" that she and his children had been accepted under Humanitarian and Compassionate grounds in August 2014. The Appellant alleged that he wanted to be reunited with his family, so he came to Canada through the U.S. on October 30, 2014. [7] The Appellant alleged that his wife originally wanted to sponsor him. However, one week after his arrival in Canada, when he revealed to her his sexual orientation, his wife became very hostile. The Appellant said that on January 8, 2015, his wife asked him to leave the house. Since then the Appellant claims he has not seen his family and he does not know their whereabouts. The Appellant asked for protection in March 2015. [8] The Appellant's refugee claim was heard on May 4, 2015. In a decision dated May 20, 2015, the RPD rejected the claim, finding that the Appellant was not a credible witness and that he had not established the central elements of his claim and that he did not have a well-founded fear of persecution. [9] The Appellant submits the following issues: a) The RPD erred in determining the Appellant was not credible in returning to the police station following his release. b) The RPD erred in impugning the Appellant's identity as a bisexual. c) The RPD erred in not assessing his supporting documents. d) The RPD erred in finding he re-availed to Nigeria. (The RPD erred in determining the Appellant was not credible in returning to the police station following his release.) e) The RPD erred in finding the Appellant delayed in making his claim for refugee protection. f) The RPD erred in not conducting an analysis under section 97 of the IRPA. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in s. 110(3) of 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. Subsection 110(4) of 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 present, at the time of the rejection. [11] The Appellant has tendered two documents as proposed new evidence in support of his appeal. The first is the Appellant's personal affidavit,2 the second is an affidavit and photographs from XXXX XXXX,3 the same-sex partner of the Appellant. [12] In determining how the statutory provisions of Section 110(4) apply to this proposed new evidence, the RAD considered the following: [13] First, did the evidence arise after the rejection of the Appellant's refugee claim? * The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove. It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD's hearing but rather after the rejection of the Appellant's claim. * Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [14] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4); was it not reasonably available at the time of the rejection or could the Appellant not reasonably have been expected to have presented it before the time of rejection? * If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, or that it proves a fact that was unknown to him at the time of the hearing? [15] In the case at hand, the proposed new evidence does not meet the requirements under s. 110(4). [16] The RAD finds the Appellant's affidavit is a summary of the mistakes the RPD made in its interpretation of the evidence during the hearing. The Appellant states he was unable to provide the affidavit from his partner because the relationship began on May 5, 2015. Other than this statement, this document does not provide new evidence. [17] The RAD has reviewed the second document, an affidavit and photographs from the Appellant's current same-sex partner. The RAD finds in its review of the document that the affiant states the relationship between the Appellant and the affiant began on May 5, 2015, one day after the hearing of his claim for refugee protection. The document carries on stating that the affiant immediately began to co-habitate with the Appellant. The RAD notes that subsection 110(4) of IRPA provides that the person who is the subject of the appeal has the ability to present 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 present, at the time of the rejection. [18] The Appellant was represented by experienced counsel who ought to have known that the Appellant's identity as a bisexual would be an issue at the Appellant's hearing. However, the Appellant has not provided an acceptable explanation of why he could not reasonably be expected to have tendered these documents before the rejection of his claim. The RAD finds the information contained in this affidavit was reasonably available to the Appellant and it could have been submitted to the RPD in the form of post-hearing disclosure prior to the issuing of the RPD decision in the Appellant's claim. Accordingly, the RAD finds that the proposed new evidence does not meet the test of new evidence and, as such, will not be accepted as new evidence in this appeal. REQUEST FOR AN ORAL HEARING [19] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [20] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this, unless there is new (Section 110(4)) evidence, 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. [21] The Appellant has submitted no admissible new evidence in support of his appeal. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and his application for an oral hearing is denied. ROLE OF THE RAD [22] The RAD finds that the recent Federal Court decision, in Huruglica4 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [23] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD. ANALYSIS OF THE MERITS OF THE APPEAL Re-availment/Failure to claim in the United States of America (U.S.) [24] The RPD made a negative inference to the Appellant's credibility and subjective fear based on his multiple re-availments to Nigeria. The Appellant submits that the RPD wrongly concluded that it did not accept the Appellant's explanation. The RAD is not persuaded by the argument of the Appellant. [25] The Appellant confirmed in his testimony that he recognized he was a bisexual in 1989 at age 15 and he was aware of the risks he faced in Nigeria. The RAD has previously addressed that the Appellant has submitted extensive documentation5 to support the risks and danger faced by members of the LBGT population in Nigeria. This is also well supported in the IRB's National Documentation Package for Nigeria.6 [26] The RAD notes the Federal Court has commented that, "Return to the country of nationality may indicate that a well-founded fear of persecution is lacking where the claimant's conduct is inconsistent with such fear".7 The RAD notes the Appellant's testimony confirmed he travelled out of Nigeria and returned to his country of citizenship on multiple occasions in 2012, 2013 and 2014. The Appellant explained that he was not in danger prior to September 2014 because his bisexual identity had not been discovered. The RAD rejects the Appellant's explanation. [27] The RAD has considered the documentary evidence of the prevalence and level of homophobia and persecution of LBGT individuals in Nigeria. The RAD finds as much as the Appellant has alleged he was not at risk because he testified to not having any active bisexual relationship, the documentary evidence8 serves to confirm recent legislation has been enacted that "could lead to imprisonment solely for a person's actual or imputed sexual orientation". The RAD finds that simple allegations could lead to imprisonment for the Appellant. [28] The RAD has considered the Appellant's testimony and level of sophistication. He has alleged he has been a bisexual since age 15 and he is well aware of the dangers he faces if identified as a bisexual in Nigeria. He is a well-educated individual who held a position as a XXXX XXXX in Nigeria. He has extensive travel experience and is capable of researching as to how he could obtain refuge protection in other countries. [29] The RAD has also considered the submission of the Appellant where he argues at paragraph 55 of his memorandum that there are three requirements for re-availment under the Convention, (voluntariness, intention and ability to obtain such protection). The RAD notes the documentary evidence confirms that there is no ability for members of the LBGT community to obtain adequate state protection in Nigeria. The RAD finds the Appellant's own submissions undermine the credibility of his allegations of harm. [30] The RAD concurs with the RPD finding that the Appellant's multiple returns to Nigeria undermine his subjective fear. The RAD has reviewed the Appellant's evidence as well as the documentary evidence and the RAD concurs with these findings. [31] The RAD further notes the Appellant presented at the Canadian border and was denied entry to Canada in April 2014 and October 2014, because his wife was a failed refugee claimant. The RAD notes the Appellant had travelled to Canada from the U.S. where he held valid temporary status, on these two failed entries. On the second occasion, the Appellant's testimony confirmed he had no option to return to Nigeria, he was essentially trapped. The RAD finds the Appellant's failure to make a refugee claim in the U.S. following two failed attempts to enter Canada is particularly egregious as he had few remaining options. The RAD has considered the Appellant's testimony and finds that following two failed attempts to enter Canada and the Appellant's failure to initiate a claim for refugee protection in the U.S. further detracts from his subjective fear and the credibility of his allegations of harm in Nigeria. [32] The RAD finds when one considers the Appellant's testimony and all of the evidence in respect of the Appellant's allegations of harm in Nigeria, the RAD concurs with the finding of the RPD and the Appellant's argument must fail. Delay in initiating his claim for refugee protection [33] The RPD found, on a balance of probabilities, the actions of the Appellant in failing to make a claim for refugee protection upon his arrival in Canada on October 30, 2014, are not those of a person who has a well-founded fear of serious harm in Nigeria. The Appellant submitted that he wanted to personally explain to his wife that he was bisexual; he did not want her to hear it from a third party. The RAD is not persuaded by the argument of the Appellant. [34] The RAD finds the Appellant's explanation for failing to make a refugee claim upon entry to Canada makes little sense. There is no reason to believe he would be detained and unable to communicate with his wife. The RAD notes the Appellant did manage to enter Canada on October 30, 2014. He did not make a claim for refugee protection until March 2015. [35] The RAD finds the statements of Justice Shore of the Federal Court provide guidance in this issue: There is a well-established principle to the effect that any person having a well-founded fear of persecution should claim refugee protection in Canada as soon as he or she arrives in the country, if that is his or her intent. On this point, the Federal Court of Appeal has already concluded that any delay in claiming refugee protection is an important factor which the Board may take into consideration in its analysis. Such a delay indicates a lack of a subjective fear of persecution, since there is a presumption to the effect that a person having a well-founded fear of persecution will claim refugee protection at the first opportunity. Accordingly, in conducting its assessment, the Board is entitled to take into consideration the applicant's delay in claiming refugee protection.9 [36] The Appellant's testimony confirmed that he told his wife about his bisexuality one week after he arrived and she became very hostile and refused to sponsor him in her Humanitarian and Compassionate Relief (H&C) claim. The Appellant was further questioned about why he delayed making his claim for refugee protection. He provided a rambling response, which essentially concluded with him hoping she would change her mind. The Appellant further testified that he had no contact with his wife since early January of 2015, yet he continued to delay initiating his claim for refugee protection. The RAD rejects the Appellant's explanation. [37] The RAD notes there is no evidence before it to confirm that the Appellant's wife had a positive H&C determination or that at any point that she had considered sponsoring the Appellant in that claim. The RAD further notes the Appellant had no guarantee that if his wife were to sponsor him that his application would be successful. The RAD notes the Appellant has alleged he was in prison, abused and humiliated by the authorities in Nigeria, a mere three weeks prior to coming to Canada. The RAD upon review of the Appellant's testimony and the evidence before it finds it reasonable to believe the Appellant would have made his claim for refugee protection at his first opportunity if his allegations of harm in Nigeria were credible. The RAD finds the Appellant's argument must fail. Cumulative subjective fear findings [38] The RAD has considered the Appellant's cumulative actions of re-availing the alleged country of persecution, failing to seek refugee protection in the U.S. and his delay in seeking refugee protection following his arrival in Canada. In the Ahoua decision, the court held: "[t]he Minister properly pointed out that a negative finding regarding subjective fear may render the assessment of the objective aspect of the complaint superfluous and may in itself warrant the dismissal of the claim."10 [39] Further to this the Federal Court has stated that a lack of evidence of subjective fear is in itself sufficient for the claim to fail under s. 96: "The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition - subjective and objective - must be met."11 [40] The RAD finds when these findings are viewed in the full context of the Appellant's claim, the Appellant's allegations of harm in Nigeria and his identity as a bisexual individual are lacking in credibility and the RAD finds there is insufficient credible evidence upon which a claim for refugee protection can succeed. The Appellant returns to the police [41] The RPD made a negative inference to the credibility of the Appellant's allegations because he returned to make a complaint to the police following his release. The Appellant submits this finding is illogical and an error in law. The RAD is not persuaded by the argument of the Appellant. [42] The RAD in its review of the record and the audio recording of the hearing notes the Appellant testified that when he was detained he realized that the police wanted "to beat me to death". He was questioned as to why he went back to the police if he knew his life was in danger. He stated that he wanted to report, as he was asked to do and he wanted to report the vandalism. The RPD subsequently inquired why he would return to the police when he had previously been incarcerated, abused, beaten and humiliated by them and he repeated his answer and did not further address the question put to him. The RAD finds in light of his prior testimony the Appellant's explanation is lacking in credibility. [43] The RAD notes there is reference to the Appellant being on "bail", in a copy of an affidavit12 from the Appellant's sister. The RAD in examining this document notes it is a copy, not an original. Further to this the RAD notes the affiant does not provide background as to how she became aware of the information in her affidavit. The RAD places little weight on this affidavit as support for the Appellant's claim for refugee protection. [44] The RAD in its review of the record finds no persuasive documentation was adduced to confirm the Appellant was released from incarceration on bail and had reporting requirements and what those requirements were. The RAD further notes the Appellant's documentary evidence as well as information contained in the IRB National Documentation Package,13 confirm the participation of the authorities in the abuse and persecution of members of the LBGT community. [45] The RAD has considered the Appellant's submission that it is reasonable to expect that the police in Nigeria provide protection from the assault and vandalism. The RAD has considered the actions of the Appellant, a sophisticated middle-aged man who has confirmed that he was well aware of the dangers facing bisexuals in Nigeria. The RAD does not find the Appellant's explanation credible. It finds it implausible that after having been abused, beaten and humiliated, the Appellant would expect that the same police would now receive his complaint about vandalism and abuse because of his sexual identity. The RAD further finds the Appellant's testimony undermines his allegations that he was arrested and charged as a bisexual individual in Nigeria. The RAD supports the finding of the RPD and the Appellant's argument fails. Treatment of the Appellant's corroborating documents [46] The Appellant submits the RPD erred in finding the Appellant was not bisexual because he supplied evidence of his arrest and his identity as bisexual. The RAD finds it is problematic that the RPD did not address these documents in its Reasons. The RAD finds that it is provided with jurisprudence in Huruglica14 that would allow it to independently assess the Appellant's documents. The affidavits [47] The Appellant submitted a series of affidavits15 from friends and relatives attesting to his arrest by the authorities in Nigeria as well as his sexual identity. The RAD in reviewing these documents notes they confirm the Appellant was arrested. The RAD finds they do not identify how they became aware of the basis for the arrest of the Appellant, beyond self-reporting by the Appellant. The RAD places little weight on these documents as corroborative support for the Appellant's identity as a bisexual in Nigeria. The warrant of arrest [48] The Appellant submitted a certified copy of a "Warrant of Arrest" for "homosexuality and same sex marriage" dated October 1, 2014.16 The RAD in assessing the genuineness of the document notes it appears to be a faxed copy or photocopy of the document and not an original. The RAD notes no samples are available in the IRB's country documents for comparison to valid original documents. [49] The RAD notes the warrant is a hand-filled document. The RAD is not able to verify what type of stock it is printed on, nor able to ascertain whether the document was produced with any security features. The RAD additionally notes that the document bears a stamp. However, it appears that information is written over the stamp although without the original, the RAD is unable to confirm one way or the other. The purpose of a stamp is to "seal" the document to attest to its genuineness and as a means to demonstrate that it has not been altered or tampered with. The presence of data written over a seal undermines the integrity of the stamp and as a result, the credibility of the document itself. [50] The RAD notes that documentary evidence17 indicates fraudulent documents are readily available to Nigerian refugee claimants. With this information in in mind, considering the that the Appellant's warrant is not an original document and the concerns surrounding the stamp on the document the RAD places little evidentiary weight on the "Warrant of Arrest" presented as support for his arrest by the authorities in Nigeria and his identification as bisexual in this claim. The support letters [51] The Appellant submits the RPD erred in failing to consider his support letters18 from various organizations in Toronto and that these letters support his identity as a bisexual individual. The RAD is not persuaded by the argument of the Appellant. [52] The RAD has reviewed the letters submitted by the Appellant. The RAD notes that the authors of the letters do not necessarily attest as to whether they are aware of the Appellant's sexual orientation. If the author of the letter does identify the Appellant's sexual orientation it appears to be based on self-reporting by the Appellant. [53] While it is true that the RPD did not make reference to the Appellant's letter from the 519 Church Street Community Centre, the Black Coalition for Aids Prevention, the Metropolitan Community Church of Toronto, Access Alliance, Men Sleeping with Men, and Africans in Partnership Against Aids other than in a general way, the RAD finds, contrary to the Appellant's argument, that the letters do not offer any reliable evidence of his sexual orientation. The Appellant's membership in an organization such as the 519 does not require that the individual be a member of the LGBTQ community. The 519 is a community centre that serves the gay community, as well as other communities. Membership at 519 is open to any individual as well as providing the ability to participate in activities at the centre, regardless of the individual's sexual identity. [54] In a similar manner, volunteerism with an agency such as Africans in Partnership Against Aids does not establish sexual orientation. The RAD gives these letters little weight to advance the Appellant's claim that he is bisexual. [55] The RAD has reviewed and considered the Appellant's supporting documents submitted in this appeal. The RAD finds they do not provide sufficient persuasive evidence to overcome the totality of the adverse credibility findings in this appeal. The RAD finds the Appellant's argument that his supporting documents confirm his identity as a bisexual individual must fail. Section 97 analysis not required [56] The RAD finds upon its review of the evidence, the Appellant has not acted as a credible witness and he did not prove the central element of his claim that he is a bisexual male who fears persecution in Nigeria. The Appellant submits that the RPD erred in not conducting a separate analysis of section 97 of the IRPA. [57] In Kaleja,19 Justice Near writes in paragraph 34 of his decision: The jurisprudence on this issue is mixed, but, as per Justice Mosley at para 22 of Soleimanian v Canada (Minister of Citizenship and Immigration), 2004 FC 1660, 135 ACWS (3d) 474, "this Court seems to have come to a consensus that a separate section 97 analysis is not required if there is no evidence that could go to establishing that the person is in need of protection ..." [58] The RAD finds that the RPD concluded the Appellant was not credible and a separate analysis is not required. The RPD found that he would not be personally subject to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger should he return to Nigeria. The RAD finds the Appellant's argument fails. The psychological report [59] The Appellant submits the RPD did not consider the Appellant's psychological report20 in its assessment of the Appellant's state of mind in reference to his delay in claiming refugee protection. The RAD is not persuaded by the argument of the Appellant. [60] The RAD notes that there is no obligation for the RPD to address the report directly, but that it must consider its findings in its reasoning. The RAD has considered the decision of Justice Mosely in Molefe, Nana Joy: "While the RPD did not specifically refer to the psychological report in its reasons, the Court was satisfied that it was taken into account."21 [61] The RAD further notes that the Appellant did not identify any specific instances where it felt the RPD did not consider the psychological report and its impact on the hearing. The RAD will review and consider the psychological report of Dr. Devins in its Reasons. [62] The report indicates the assessment, consisted of a clinical impression based upon a sixty-minute interview, with a single post-traumatic stress disorder (PTSD) test. Dr. Devins' clinical impression is that the Appellant satisfies the diagnostic criteria for a major depressive disorder of moderate severity and post-traumatic stress disorder with dissociative symptoms, which will require mental-health treatment. No treatment is suggested and he states that the Appellant's condition can improve with appropriate care and guaranteed freedom from the threat of removal. He also notes that it will be impossible for the Appellant to feel safe anywhere in Nigeria, but offers no explanation of how he has come to these opinions. The RAD finds these last two statements deviate from clinical opinion and amount to a form of advocacy. There is no further information provided to indicate that the Appellant was referred for further care or if any follow up examinations were conducted. Without an explanation of the clinical basis on which these opinions were formed, the RAD finds that Dr. XXXX' opinions amount to mere speculation. [63] Dr. XXXX recommended that the Appellant be given opportunities to take breaks during his testimony and restore himself. The RAD notes that its review of the record indicates that the RPD was mindful of the stresses that an individual such as the Appellant might experience during his refugee claim hearing and he was given the opportunity to correct or explain his aberrant testimony. The RAD finds it gives the psychological report little evidentiary weight in assessing the Appellant's psychological condition and as support for his testimonial failings during the hearing. The RAD finds the RPD as much as it did not directly address the psychological report was cognizant of the Appellant's situation during the hearing. The RAD finds the Appellant's argument must fail. CONCLUSION [64] The RAD finds that, based on its analysis of all the evidence in the record, there is sufficient evidence to support the RPD's overall determination. [65] The RAD agrees with the RPD's determination and finds that, on the basis of the totality of the evidence in this appeal, the Appellant has not satisfied the burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Nigeria. The Appellant has alleged that the RPD erred in rejecting his claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD. [66] Accordingly, this appeal is dismissed. (signed) "Robert Bebbington" Robert Bebbington October 05, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 2. 2 Exhibit P-2, Appellant Record, pp. 13-18. 3 Ibid., pp. 134-138. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 5 Exhibit RPD-1, RPD Record, pp.174-192. 6 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria, version 28 November 2014. 7 Hoballah, Hassane v. M.E.I. (F.C.T.D., no. IMM-3670-93), Joyal, January 10, 1995. 8 Exhibit RPD-1, RPD Record, NDP for Nigeria, version 28 November 2014, item 6.5. 9 Singh, Pritam v. M.C.I. (F.C., no. IMM-2513-06), Shore, January 25, 2007; 2007 FC 62, para 24. 10 Ahoua, Wadjams Jean-Marie v. M.C.I. (F.C., no. IMM-1757-07), Blais, November 27, 2007; 2007 FC 1239, at para 16. 11 Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999. 12 Exhibit RPD-1, RPD Record, pp. 70, 71. 13 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria, 28 November 2014, item 2.1, p. 2. 13 Ibid., item 6.5, p. 1-2. 14 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799, para 54. 15 Exhibit RPD-1, RPD Record, pp.52-56. 16 Exhibit RPD-1, RPD Record, p.72. 17 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Nigeria, 28 November 2014, item 3.10. 18 Exhibit RPD-1, RPD Record, pp.37-38, 62, 67-68, 91, 94. 19 Kaleja, Michal v. M.C.I. (F.C., no. IMM-4106-10), Near, June 9, 2011, 2011 FC 668. 20 Exhibit RPD-1, RPD Record, pp.57-61. 21 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015; 2015 FC 317. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05858