TB4-06006

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 : TB4-06006 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 February 1, 2015 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Giovanni Rico 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 (the Appellant), a citizen of Nigeria, has appealed a negative decision of the Refugee Protection Division (RPD) dated June 6, 2014. DETERMINATION [2] The Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection as per s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [3] The Appellant alleges that she owned a store in XXXX Village. She alleges that she gave credit and products for free to those who needed them. In 2005, the Appellant stopped providing credit and products for free. Since that time the Appellant has received threatening phone calls from people who wanted to kill her. The Appellant reported the incidents to the police; however, the police indicated that it was a business matter and told her that she should ask her daughter in Canada to send money to pay them off. The Appellant alleges that XXXX, along with four other individuals, was responsible for the threats. She alleges that XXXX has the protection of the police and influence throughout Nigeria. [4] The Appellant also alleges that she is Christian and a lot of her customers were Muslims who threatened her because of her religion. The Appellant alleges that she was beaten three years ago because she refused to pay protection money. The people extorting the Appellant knew that her daughter was in Canada and intimidated the Appellant to ask her daughter for money. [5] The Appellant alleges that she has begun to suffer XXXX XXXX XXXX XXXX. The Appellant wants to remain in Canada with her daughter who is a nurse who can take care of her. [6] The Appellant left Lagos on XXXX XXXX, 2012 and travelled through London to Canada. The Appellant arrived in Canada on XXXX XXXX, 2012 and made her claim for refugee protection on February 5, 2013. [7] The Appellant submitted an amended Basis of Claim (BoC) narrative in which she alleged that she was misrepresented by an immigration consultant regarding the detail that was presented in her narrative. In her revised narrative, the Appellant alleged that she had married a Muslim until his death on XXXX XXXX, 2005. The Appellant alleges that it was her husband's family who had been taking products from her store without paying. The Appellant alleges that she was threatened and her store was robbed and vandalized. The Appellant closed the shop and went to the Bahamas to visit her daughter. Upon her return to Nigeria, the Appellant learned that her in-laws had moved into her property and refused to leave. The Appellant was told by her husband's brother that the house was his and that she had nothing. The Appellant reported this to the police; however, the police laughed at her and said that a woman could not own property without a man. The Appellant was given a room in her former house and was responsible for cooking, cleaning, and washing. The Appellant alleges that her in-laws were verbally abusive to her. In XXXX 2010, the Appellant suffered a XXXX and was hospitalized for one week. [8] The Appellant alleged that when she called Nigeria around Christmas of 2012, she was informed that her husband's family had taken over the house completely and that her husband's brother had brought another woman into her house. [9] The Minister provided a Notice of Intent to Intervene1 along with supporting documents. In the Notice, the minister alleged that the Appellant's allegations were not credible. The Appellant misrepresented the fact that she had been previously refused a visitor's visa (CVV) to Canada as she was denied a CVV by our office in Jamaica on XXXX XXXX, 2010. The Appellant also submitted a CVV application in Lagos which was also refused on XXXX XXXX, 2012. The Appellant's third CVV application was approved on XXXX XXXX, 2012. The Appellant did not disclose her time in the Bahamas between XXXX 2008 and XXXX 2010 in her claim for refugee protection. The Appellant made no reference to leaving Nigeria for the Bahamas. The Appellant also did not explain why she returned to Nigeria in 2010, given that she had a fear in Nigeria. The Minister submitted that the Appellant's actions do not support a subjective fear of persecution and that the Appellant was not credible. [10] The Appellant had a refugee determination hearing which spanned 6 sittings (April 8, 2013; April 26, 2013; May 15, 2013; May 30, 2015; June 20, 2013; August 20, 2013). Written reasons were issued on June 6, 2014. In its reasons, the RPD found that the Appellant's allegations were not credible. The RPD made the following findings: a) The RPD assigned a negative credibility inference to the Appellant's issuance of her revised narrative, which was substantially different than the narrative included in her original BoC, which she signed and confirmed as complete, true and correct. b) The Appellant failed to support her allegation that the original consultant was responsible for the concerns with her narrative. No complaint was filed with any professional body against the consultant. No corroborating evidence was provided to establish that the consultant has been made aware that the Appellant accused her of incompetence or of filling in the BoC incorrectly and advising her to sign it. The Appellant did not follow the Federal Court Guidelines as they relate to allegations of incompetent counsel. The RPD gave little weight to the allegations made by the Appellant for the inconsistencies between her original and amended narrative, as her explanation for the inconsistencies was not reasonable. c) The RPD found that the Appellant's medical condition could not reasonably explain the fundamental discrepancies between the two narratives and the testimony of the Appellant and her daughter at the hearing. d) The RPD found the inconsistent evidence regarding when her in-laws moved into her home undermined the credibility of the Appellant and her allegations. e) The RPD found the inconsistent testimony regarding the Appellant's continued work at the store after her husband's death undermined the credibility of the allegation. f) The RPD found that the Appellant provided few documents to establish elements of her claim such as her marriage, her husband's death, her ownership of shop or trading business in Nigeria, and documents to establish that her shop was broken into and that this was reported to police. g) The RPD placed little weight on the affidavit from XXXX XXXX, given that the contents of the affidavit were vague and imprecise and no documents were presented to confirm the affiant's identity or address. h) The RPD assigned little weight to the psychological report for several reasons, including the fact that the report does not indicate that the assessor was aware that the Appellant had previously had a XXXX, and suffered other medical conditions including XXXX and XXXX. The psychological report attributes the Appellant's issues of memory and concentration problems to psychological causes including XXXX, which were attributed to the elder abuse that the Appellant alleged. The RPD also noted that the information relied on in the psychological report was provided by the claimant to bolster the conclusion she draws as to the causes of the Appellant's psychological condition. The RPD found that, given that the allegations presented were found not to be credible, the Appellant's mental health condition cannot be attributed to the allegations as presented. [11] Appeal pleadings were received on July 18, 2014. The Appeal was accompanied by six documents which the Appellant asks the RAD to accept as new evidence. In the Appeal, the Appellant's representative argued that the RPD erred regarding its findings related to the Appellant's identity. Specific errors included: a) The RPD erred in drawing a negative credibility inference based on the Appellant's production of an amended narrative, given the fact that the Appellant had the assistance of her daughter in completing her claim forms. It is a breach of natural justice to produce a negative inference to the Appellant for the mistakes made by third parties. b) The RPD erred by accepting the medical evidence that the Appellant may have lapses in memory due to her XXXX but then goes on to draw a negative inference regarding the inconsistency in the Appellant's memory of dates. c) The RPD erred in stating that no documents were supplied it to establish a marriage between the Appellant and her husband. The Appellant's daughter was present at all the hearings, and therefore could have testified regarding the relationship between her mother and her father. d) The RPD erred by failing to fully take into consideration the fact that death certificates are not always kept and complications may arise due to religion, where the death took place, and the fact that only relatives have access to these records. Since the claim is being made against the Appellant's husband's family, it cannot be expected that the Appellant be able to provide such documents. e) The RPD erred by disbelieving the Appellant's evidence regarding her ownership of the store and the fact that the store had been broken into based on her failure to provide documents in support of these allegations. This goes against the principle of the presumption of truth. [12] The Appellant asks that the new evidence be accepted and that the RAD hold a hearing under s. 110(6) of IRPA. In the alternative, counsel request that the RAD set aside and substitute the RPD's determination, or refer the matter back to the RPD for redetermination. [13] In reviewing the recording of the hearing, the RAD noted that the first three sittings were not included on the CD in the RPD's record. The RAD disclosed the complete CD to both counsel and the Minister and requested submissions on the CD. At the time of signing these reasons, no submissions had been received. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL AND REQUIREMENT TO HOLD A HEARING [14] 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 the subject of the Appeal. The Appellant provided 6 new documents2 which it asks the RAD to accept as new evidence. The RAD requested that the Appellant provide it with all original documents and evidence of how the documents came to Canada before Friday, January 16, 2015.3 As of the date of rendering this decision, the Appellant or her representative have not complied with the RAD's request for the information. [15] The RAD had before it a Statement4 which provided an explanation for the new documents. The Appellant's representative indicated that: "The claimant had extreme difficulties contacting her acquaintances in Nigeria, and has no other close relatives in Nigeria, which made it extremely difficult for her to have the supporting documentation in time for her hearings." The RAD noted that the Appellant's hearings spanned a period of approximately 5 months, and that approximately 9 months elapsed after the hearing before the RPD rendered its decision. The Statement in the pleadings did not explain the nature of the difficulties that the Appellant experienced. It did not mention the number of attempts that the Appellant made to obtain evidence in support of her claim between the first sitting on April 8, 2013 and the end of the hearing on August 20, 2013, or any efforts that she made in the 9 months after the hearing. The Appellant did not explain how the documents came into her possession and how the documents were sent to her. The RAD also noted that the Appellant was able to obtain an affidavit from a church member before the first sitting of her hearing and that no evidence was presented attesting to any difficulties in obtaining such evidence. The Appellant's explanation was not sufficient to meet the test in s. 110(4). [16] The RAD considered the death certificate5 for the Appellant's husband which pre-dated the rejection. The Appellant was questioned regarding the death certificate during the May 15, 2013 and June 20, 2013 sittings. She testified that the death certificate was with her brother-in-law. The statement with the pleadings did not explain how the Appellant managed to obtain a document which was under the control of the agent of persecution. The RAD also noted that the Appellant was made aware before the final hearing on August 20, 2013 that death certificates could be obtained by family members; however, the pleadings do not indicate that she or her daughter obtained the document from Nigerian authorities. Given the concerns with the fact that the document presented was not original; given that no explanation as to the provenance of the document was provided; and given that the document could have been made available to the Appellant through a request to Nigerian authorities6 before or during her hearings, the RAD finds that the credibility of the document is questioned, and that the Appellant did not provide a reasonable explanation as to why it was unreasonable for her not to have been expected to provide the death certificate at the time of the rejection. [17] The RAD considered the remaining letter7 and affidavits.8 The RAD noted that the letter from the legal counsel was dated March 15, 2013 which was before the Appellant's first sitting. The proceedings ended on August 20, 2013. The Appellant made no attempts to provide this letter in the 6 sittings of the proceedings and before the rejection of the claim. The pleadings did not explain why this letter was not presented. In addition, the RAD noted that the letter indicates that the Appellant was married under the Muslim Tradition which was not consistent with the Appellant's testimony that she had been married in her parents' home under her own tribe's custom, and that she did not know that her husband was Muslim until she arrived at his home after the wedding. Given this and given the fact that the letter predated the end of the proceedings, the RAD finds that the Appellant has not provided a reasonable explanation as to why this letter was not reasonably available to her before the rejection as per s. 110(4). [18] The Appellant testified that she feared her brother-in-law and his family. The remaining 4 affidavits came from family members and the Appellant's former priest who were not affiliated with the agent of persecution. As highlighted above, the Appellant did not provide a reasonable explanation regarding the difficulty that the Appellant had in obtaining the documents after the rejection. In addition, the Appellant did not explain why she did not make efforts to obtain the documents during the proceedings, especially given that she was put on notice related to the credibility of her allegations during extensive questioning on May 15, 2013. The Appellant did not provide evidence of any efforts to obtain supporting documents between May 15, 2013 and the end of the proceedings on August 20, 2013. As such, the RAD finds that the Appellant has failed to provide a reasonable explanation as to why it would have been unreasonable to have been expected to provide these documents at the time of the rejection. [19] In addition, the RAD noted that, while the Appellant may have little education, she was supported by her daughter in Canada who has post-secondary education and speaks and reads English fluently. The Appellant was aware of her requirement to provide evidence in support of her claim as she managed to provide evidence from Nigeria as well as Canada before her first sitting. In addition, the Appellant was represented by experienced counsel after she submitted her BoC and claim documents. The Appellant was placed on notice regarding the RPD's concerns with her evidence and testimony since May 15, 2013 (third sitting), in which 3 hours of substantive testimony was taken. It would be reasonable for her to have provided further evidence in support of her claim between the sittings and before the rejection. [20] Finally, as identified above, the RAD requested the original documents and evidence attesting to how the documents were received in Canada. Section 171(a.3) of IRPA directs the RAD to receive and base a decision on evidence that is adduced in the proceedings and is considered credible or trustworthy in the circumstances. Given the Appellant's failure to provide original documents and proof of their provenance, the RAD finds that the credibility of the documents has not been established and that they do not meet the requirements of s. 171(a.3). [21] For the reasons highlighted above, the RAD did not accept the six documents as new evidence. Analytical Approach [22] In the pleadings, the Appellant's representative argued that the RAD should analyze whether the RPD relied on a wrong principle of law or "mis-assessed the facts to the point of making a palpable and overriding error." In addition, the Appellant's representative reiterated a request for an oral hearing under s. 110(6) to assess the credibility of the Appellant based on the Federal Court's direction to assess the totality of the evidence. In assessing the Appeal, the RAD is directed by the Huruglica9 Decision which was issued on the issue of the Standard of Review after the Alvarez Decision. In this decision, Justice Phelan had indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD determination that, in its opinion, should have been made as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. The RAD concurs with counsel on the approach to analysis and will assess the claim based on the guidance in the Huruglica decision. [23] Given that no new evidence has been accepted, the RAD finds that it does not have the jurisdiction to hold a hearing as per s. 110(6) of IRPA as the Appellant's representative requested. Analysis of the Evidence [24] In analyzing the appeal, the RAD focused on whether or not the Appellant provided sufficient credible or trustworthy evidence to her allegations of persecution or harm at the hands of her brother-in-law and his family in Nigeria. Psychological and Medical Evidence [25] The RAD addressed the evidence on the record regarding the Appellant's mental and physical health as this evidence was presented to explain the difficulties in the Appellant's memory and concentration. The RPD found that the Appellant's medical condition could not reasonably explain the fundamental discrepancies between the two narratives and the testimony of the Appellant and her daughter at the hearing. The RPD assigned little weight to the psychological report for several reasons. The Appellant's representative argued that the RPD erred by accepting the medical evidence that Appellant may have lapses in memory due to her XXXX but then goes on to drive a negative inference regarding the inconsistency in the Appellant's memory of dates. [26] As a first step in its analysis, the RAD considered the jurisprudence related to forensic expert evidence provided by a claimant in support of a claim. The RAD noted that Justice Annis in Czesak10 indicated that decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation. Courts caution a review on conclusions of forensic experts which have not undergone a rigorous validation process under court procedures. In relation to administrative tribunals, Justice Annis indicates that caution should be exercised in accepting them (forensic reports) at face value, particularly when they propose to settle important issues to be decided by the tribunal. Unless there is some means to corroborate the neutrality or the lack of self-interest of the expert in relation to the litigation process, the forensic results should be accorded little weight. [27] The RAD noted in Avagyan,11 Justice LeBlanc supports Justice Phelan's statement in Saha12 as follows: It is within the RPD's mandate to discount psychological evidence when the doctor merely regurgitates what the patient says are the reason for his stress and then reaches a medical conclusion that the patient suffers stress because of those reasons. This is particularly the case when the RPD rejects the underlying facts of the diagnosis. In this case, there were no independent clinical studies performed to support the psychological assessment and no other medical basis for the diagnosis. [28] The RAD noted that XXXX XXXX XXXX XXXX assessment13 and the medical evidence from XXXX XXXX XXXX14 regarding the Appellant's medical conditions were produced specifically for the purpose of supporting the claim. [29] The RAD considered the RPD's treatment of the psychological report15 by XXXX and Associates. The RAD finds that it cannot find the psychologist an expert witness based on concerns with the credentials and authority of the author of the report. As a general rule, an expert is characterized as a person possessed of the special skill and knowledge acquired through study or practical observation that entitles him [or her] to give opinion evidence or speak authoritatively concerning his or her area of expertise.16 The RAD considered the credentials of XXXX XXXX-XXXX who labelled herself as a "therapist" and who signed the report. The report does not provide any details related to Ms. XXXX XXXX XXXX credentials and expertise to administer psychological tests and to make clinical findings based on the XXXX XXXX XXXX. The writer uses the title "therapist" and indicates that she has a MPsy and ICCDPD with no clarification of what these credentials mean. The assessment does not indicate that the author was a member of any college of regulated health professionals in Ontario or any other province such as the College of Psychologists of Ontario, which has been given the jurisdiction to make medical or psychiatric diagnoses. [30] The Regulated Health Professions Act of Ontario17 (Act) sets out the requirements for controlled acts that a person is legally able to perform. The Act also specifies acts that are controlled which include: Controlled acts (2) A "controlled act" is any one of the following done with respect to an individual: 1. Communicating to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis. [31] Given that the evidence presented was not prepared by a member of a regulated health profession in Ontario; given that the writer's assessment contained a diagnosis for which the writer did not have legal authority in Ontario to put forward; given that the assessment was produced for the purposes of the hearing; given that the psychological report makes no link between the Appellant's physical condition and her cognitive and mental health presentation; and given that the contents of the report were based on the self-reports of the Appellant, the RAD finds that the conclusions in the letter "Mrs. XXXX presents a clear and consistent pattern of psychological problems. Diagnostically, Mrs. XXXX presents with XXXX XXXX XXXX (309.81), resulting from the stressors associated with elder abuse" are to be provided no weight. [32] In addition, the RAD noted that the claims included in the psychological report and in the letter from XXXX18 were based on self-reported events and symptoms which were found not to be credible. As such, the RAD finds that the findings in the psychological report and the letter from XXXX do not support the Appellant's allegations as presented. [33] The RAD noted that the evidence from Dr. XXXX19confirmed the Appellant's medical situation and her history of a XXXX; however, the RAD finds that the letters do not provide sufficient diagnostic or clinical information to attest to the claim that the Appellant had difficulty with memory and concentration. For example, Dr. XXXX could have indicated that he had observed the Appellant's difficulty with concentration or memory, or that specific tests were performed that would attest to these issues. No such evidence was provided. As such, the RAD finds that the evidence is insufficient to ground the Appellant's claim of difficulties with her memory and concentration, and therefore, was given little probative value in explaining any concerns with the Appellant's testimony and evidence. [34] For the reasons highlighted above, the RAD concurs with the RPD's finding that the Appellant's medical condition could not reasonably explain the fundamental discrepancies between the two narratives and the testimony of the Appellant and her daughter at the hearing, and could not explain the remaining credibility concerns with the Appellant's testimony and evidence. BOC Amendment and Alleged Counsel Incompetence [35] The RPD assigned a negative credibility inference to the Appellant's issuance of our revised narrative which was substantially different than the narrative included in her original BoC, which she signed and confirmed as complete, true and correct. The Appellant's representative argued that the RPD erred in drawing a negative credibility inference based on the Appellant's production of an amended narrative and given the fact that Appellant had the assistance of her daughter in completing her claim forms, as it is a breach of natural justice to produce a negative inference to the Appellant for the mistakes made by third parties. [36] The RAD noted that the RPD correctly applied the jurisprudence to this issue in distinguishing the facts of this claim from those in Ameir20and in finding that the principles of Aragon21 and Zeferino22 applied to this claim, as the BoC amendments were not minor discrepancies. In the case at hand, the revised narrative represents a completely different set of allegations, including the agent and basis of persecution. The RAD also noted that there were several discrepancies and omissions in the Appellant's refugee claim documents, such as the fact that the Appellant had lived with her daughter in the Bahamas for an extended period of time, and that she had been denied 2 visas to come to Canada. [37] The Appellant and her daughter's explanation for the BoC amendment is that they trusted the advice of their immigration consultant, despite their knowing that the original BoC did not indicate the real basis for the Appellant's fear to return to Nigeria, and contained mistruths and errors. The RPD found that the Appellant failed to support her allegation that the original consultant was responsible for the concerns with her narrative. No complaint was filed with any professional body against the consultant. No corroborating evidence was provided to establish that the consultant has been made aware that the Appellant accused her of incompetence or of filling in the BoC incorrectly and advising them to sign it. The Appellant did not follow the Federal Court Guidelines as they relate to allegations of incompetent counsel. The RPD gave little weight to the allegations made by the Appellant for the inconsistencies between her original and amended narrative as her explanation for the inconsistencies was not reasonable. [38] The RAD concurs with the RPD that the Appellant has failed to comply with the direction of the Federal Court in Vieira23 and Shirvan,24 which require supporting evidence of allegations of incompetence, including notice to counsel, and an opportunity for the impugned counsel to reply. This undermined the credibility of the explanation that an immigration consultant was responsible for the significant concerns with the first BoC. [39] A review of the record indicates that the Appellant has failed to provide sufficient credible or trustworthy evidence regarding the existence of their alleged immigration consultant XXXX XXXX. The revised narratives provided an office address and phone number for Ms. XXXX, but this information was not verified, and no additional information regarding Ms. XXXX and her business was provided. The Appellant alleged that she was referred to Ms. XXXX from XXXX XXXX a fellow parishioner at church; however, the Appellant did not provide a letter or affidavit from XXXX, and did not invite this person to be a witness at the proceedings. The Appellant testified that someone loaned her daughter the $1,000 to pay Ms. XXXX; however, no evidence was provided to substantiate this loan or any payment to Ms. XXXX. [40] The Appellant and her new counsel were made aware of the RPD's concerns regarding the BoC amendment and the lack of notice to Ms. XXXX at the May 15, 2013 sitting of the hearing; however, the Appellant or her counsel did not follow-up the RPD's concerns with additional evidence or witness, and did not serve Ms. XXXX with notice of the allegations against her. The failure to provide notice to the impugned person undermined the credibility of the Appellant's allegations that she was the victim of an unscrupulous immigration consultant. [41] Both the Appellant and her daughter signed the original BoC forms indicating that they were complete, true, and correct. The Appellant's claim documents indicated that her daughter had assisted her in completing the forms. There is no documentary evidence on the file, other than the revised narrative, to attest to the fact that anyone other than the Appellant and her mother were involved in producing the BoC, the revised narrative, and the claim documents. The Appellant and her daughter were experienced in dealing with the Canadian immigration system, having completed 3 CVV applications, and the Appellant's daughter having completed the process to become a landed immigrant in Canada. [42] The Appellant testified that she trusted Ms. XXXX. This does not seem plausible given that the Appellant testified that she was aware that the original BoC was not correct. It defies logic how the Appellant could trust Ms. XXXX fully knowing that she did not listen to her; and had told them to sign documents which they knew were false. This also does not adequately explain why the Appellant did not indicate at the time she submitted her claim documents to CIC that there were concerns with the BoC. [43] After having reviewed the evidence on the record, the RAD finds that there was not sufficient credible or trustworthy evidence to establish the existence of Ms. XXXX or that she was hired and paid to provide counsel and complete the first BoC. Even if the Appellant was successful in establishing Ms. XXXX existence, the RAD finds that there was not sufficient credible or trustworthy evidence to establish that she played a role in producing a fraudulent BoC and narrative which were replete with errors as the Appellant alleged. [44] The claim of counsel incompetence is based solely on the oral testimony of the Appellant and her daughter. The RAD finds, however, that there was sufficient evidence on the record to undermine the credibility of both the Appellant and her daughter, especially in relation to their providing truthful information in documents presented to the Canadian government. For example, the Appellant testified that her daughter completed the CVV application submitted in Kingston, Jamaica, and the first CVV submitted in Lagos. These CVVs had inconsistencies regarding the Appellant's employment. The Appellant's claim documents failed to mention the fact that she had lived with her daughter in the Bahamas for an extended period of time and that she had been denied a Canadian CVV on two occasions. These omissions are evidence of the Appellant's lack of truthfulness in dealing with Canadian officials. [45] The Appellant testified that she hired a lawyer to assist her in preparing the third CVV which was successful. The Appellant provided a letter25 written by the Appellant in support of the CVV. The letter indicates that the Appellant had close family ties in her village with extended family and friends. The Appellant denied that she had close family ties in Nigeria. When questioned regarding her letter in support, alluding to family support provided in support of her third CVV application at the August 20, 2013 sitting, the Appellant admitted that the statements in the letter were not true. She stated: "You know how it is. That's how it is back home, if you want to go anywhere you couch your language in a way that you are allowed to go. If you don't talk like that they will not give you the visa." The CVV was made before the Appellant allegedly feared to return to Nigeria and therefore, there was no reason for the Appellant to deceive Canadian officials. As such, the RAD finds that the Appellant's credibility and the presumption of truthfulness was undermined by the Appellant's conscious deception of Canadian officials in order to travel to Canada. [46] The RAD noted that the provision of two vastly different narratives and the lack of a reasonable explanation and evidence in support of the differences undermined the credibility of the Appellant and her daughter as witnesses, and undermined the credibility of the Appellant's allegations. The Appellant did not support her claim that she was provided with improper advice by an unethical immigration consultant. There was evidence on the record to indicate that the Appellant and her daughter signed the BoC and the claim documents and confirmed that they were complete, true and correct. In fact, the claim documents26 have a declaration indicating that it was the Appellant's daughter who assisted her in completing the claim documents. The form allows for the identification of: NGO; lawyer, consultant; friend, other. The Appellant did not indicate that she had been assisted by a consultant. The RAD finds that there is sufficient evidence on the record to attest to the fact that the Appellant and her daughter produced the BoC and the amended narrative. [47] At the hearing, the Appellant testified that her allegations of a fear of XXXX and the community were fabrications. The RAD noted that the Appellant's revised narrative was significantly different from the first narrative in both the agent of persecution (brother-in-law) and the motive for the persecution (steal the Appellant's property and assets). This is not an omission of a few details or a typographical error. The entire basis of the Appellant's claim is different in the revised narrative. As highlighted below, the RAD finds that there was not sufficient credible or trustworthy evidence on the record to establish the fact that the Appellant owned a store or property in Nigeria. Given this; given the failure to support a claim that she had been given improper advice; and given that she had a record of deceiving Canadian immigration officials in order to meet her ends, the RAD finds that the Appellant's allegations of persecution or harm in Nigeria were not credible. Allegations of Property Ownership [48] The RPD found that the Appellant did not provide evidence of her ownership of a shop or that she was involved in petty trading. The RPD found that without corroborating documents, and in light of the credibility findings of the Appellant and her daughter, the Appellant has failed to establish that she had a trading business. The RAD concurs with this finding. The Appellant did not provide evidence of her shop at the hearing, and the RAD noted that she failed to provide evidence of her business and property in support of her CVV application,27 during which time she would have had access to and control over such documents. The Appellant also did not provide any evidence of her ownership of a family home or any other property. [49] The RAD finds that the Appellant provided inconsistent testimony regarding her business dealings. Firstly, the RAD noted that the Appellant testified that the store had been established in 1973 at the same time as the house was built. This was not consistent with the BoC amendment which indicated: "Before my husband died he had opened a store for me..." The Appellant's husband died in 2005. There is a significant time difference (approximately 30 years) between the BoC allegation for when the store was established and the Appellant's oral testimony. [50] Secondly, the Appellant testified at the June 20, 2013 sitting that she continued to trade to a lesser extent after the store was robbed and up until the time that she came to Canada. The RPD confronted the Appellant that this testimony was not consistent with her earlier testimony on May 15, 2013 that the store was never resuscitated after the robbery which occurred sometime in February 2006. The Appellant explained that she was trying all the time to keep the shop running and that she did not close it completely and she did some petty trading and that even before she came to Canada she was still trading. When asked why she gave an inconsistent answer, the Appellant explained that maybe she did not understand the question. The RAD referred to the recording of the May 15, 2013 sitting and found that the Appellant voluntarily stated that her store was never resuscitated in response to the question: "When did you stop running the store." It was evident from the Appellant's response that she understood the question and she provided a direct response to the question. As such, the Appellant's explanation for her inconsistent testimony regarding her store and her trading after the break-in undermined the Appellant's credibility regarding her business. [51] The RAD also noted that the Appellant and her daughter provided inconsistent testimony regarding when the Appellant closed her store and stopped trading. As identified above, the Appellant testified that she continued trading until coming to Canada. The Appellant's daughter testified that her mother did not work between 2010 and 2012 as she had had a XXXX. The daughter explained that she put down that her mother was trading until 2012 as this was her profession. [52] The RAD considered the affidavit28 from XXXX XXXX, which supported the Appellant's allegations. The RAD concurs with the RPD that the affidavit has little probative value given the vagueness of the contents of the affidavit, and the failure to mention the assistance of church members after the Appellant's stroke. The RPD also found that no documents were provided to attest to the identity or address of the affiant, and the contents of the affidavit were untested. The RAD also noted that the Appellant was willing to provide Canadian officials with a fraudulent document in support of her CVV, and therefore, the RAD had additional reason to doubt the genuineness of the claims included in Ms. Gbamgbala's affidavit. For these reasons, the RAD concurs with the RPD that the affidavit has little probative value in supporting the Appellant's allegations. [53] Given the concerns above, the RAD finds that the Appellant has not provided sufficient credible or trustworthy evidence to attest to the fact that she owned a store, and other properties for which she was threatened. As such, the RAD finds that the Appellant has failed to establish the basis of her claim. Overall Credibility [54] Upon review of the recordings, the RAD noted that the Appellant was not spontaneous or forthcoming in her oral testimony. The Appellant was unable to provide clear recollections for specific dates and details; however, was able to provide specific testimony about other details of her claim. The inconsistent and uneven memory of the Appellant undermined her credibility as a witness. In addition, the RAD noted that the Appellant's recollection of facts sometimes did not conform to the information in her BoCs or claim documents. For example, the Appellant was unable to explain why she testified that she did not know where her brothers were living, despite making reference to their occupations and place of residence in her claim documents. The Appellant provided confusing testimony regarding which police station she reported to (XXXX v. XXXX XXXX) and was unable to provide a reasonable explanation for the confusion. The Appellant omitted from her BoCs the fact that she was accused of trying to lure Muslim women in the community into Christianity and as a result she was threatened by some hooligans. The RAD noted that the allegations of threats by her brother-in-law evolved as they were provided. The revised BoC indicated that the Appellant was told by her brother-in-law that she should remain in Canada as she was not wanted in Nigeria. It goes on to indicate that a church member reported that the in-laws were threatening to push her out by any means necessary. In oral testimony, both the Appellant and her daughter indicated that the brother-in-law threatened to kill the Appellant if she returned to Nigeria. This threat was not included in the original BoC and the RAD found this to be an embellishment. [55] The RAD finds that the credibility concerns highlighted above further support the finding that the Appellant's allegations of persecution or harm were not credible. SUMMARY AND DISPOSITION [56] Based on a review of the totality of the evidence, the RAD concurs with the RPD that the Appellant has not provided sufficient credible or trustworthy evidence in support of her alleged persecution or harm in Nigeria. The Appellant has failed to establish that owned family property and a store and was threatened by her brother-in-law who had seized the properties. The Appellant has failed to provide sufficient credible or trustworthy evidence to support her claim that she was a victim of an unscrupulous immigration consultant. The provision of two substantively different BoC narratives undermined the credibility of the allegations as well as the Appellant's overall credibility as a witness. The Appellant deceived Canadian officials both in terms of a CVV application in Nigeria, as well as in her claim documents. [57] For the reasons highlighted above, 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 as per s. 111 (1)(a) of IRPA. [58] The appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney February 1, 2015 Date 1 RPD's Record, Exhibit 3, Notice of Intent to Intervene and Supporting Documents, pp. 101 - 145. 2 Appeal Pleadings, Exhibit P-2, 6 documents, pp. 39 - 45. 3 Exhibit RAD-1, Request for Original Documents, January 12, 2015. 4 Appeal Pleadings, Exhibit P-2, Statement, p. 21. 5 Appeal Pleadings, Exhibit P-2, Death Certificate, p. 39. 6 RPD's Record, Exhibit 11, Item 3.8, Response to Information Request NGA103704.E, 7 March 2011. 7 Appeal Pleadings, Exhibit P-2, Letter from XXXXX, 15 March 2013, p. 40. 8 Appeal Pleadings, Exhibit P-2, Affidavits, pp. 41 - 45. 9 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 10 Czesak, Maria v. M.C.I. (F.C., no. IMM-9539-12), Annis, November 14, 2013, 2013 FC 1149. 11 Avagyan v. Minister of Citizenship and Immigration, (IMM-2596-13), LeBlanc, October 22, 2014, 2014 FC 1003. 12 Saha, Gobinda Chandra v. M.C.I. (F.C., no. IMM-5193-07), Phelan, March 23, 2009; 2009 FC 304 at para. 16. 13 RPD"s Record, Psychological Report byXXXX and Associates, pp. 205 - 209. 14 RPD's Record, letter from Dr XXXX dated March 8, 2013, p. 192; Doctor's Certificate dated XXXX 2013 p. 202. 15 RPD's Record, Psychological Report by XXXX and Associates, pp. 205 - 209. 16 Stobo, G., Expert Evidence, I.R.B. Legal Services, July 11, 1989, p. 3. 17 Regulated Health Professions Act, 1991, S.O. 1991, c. 18. 18 RPD's Record, Exhibit 13, Letter from XXXX dated XXXX, 2013, pp. 272-273. 19 RPD's Record, Exhibit 12, Exhibit 6, Doctor's Letter, p. 192; Exhibit 8, Doctor's Certificate p. 202; Doctor's Certificate Exhibit 13, p. 262. 20 Ameir, Ameir (Makame) v. M.C.I. (F.C., no. IMM-9426-04), Blanchard, June 20, 2005, 2005 FC 876. 21 Aragon, Romel Abutan v. M.C.I. (F.C., no. IMM-651-07), Frenette, February 4, 2008, 2008 FC 144. 22 Zeferino, Maria Luisa Esteban v. M.C.I. (F.C., no. IMM-4058-10), Boivin, April 13, 2011, 2011 FC 456. 23 Vieira, Jefferson v. M.P.S.E.P. (F.C., no. IMM-2277-07), Shore, June 14, 2007, 2007 FC 626. 24 Shirvan, Hassan v. M.C.I. (F.C., no. IMM-1768-05), Teitelbaum, November 8, 2005, 2005 FC 1509. 25 RPD's Record, Exhibit 14, Letter from XXXX, p. 305. 26 RPD's Record, Exhibit 1, IMM-0008, Schedule 12, page 4 of 4. p. 48. 27 RPD's Record, Exhibit 1, GCMS Information Request, p. 66. 28 RPD's Record, Exhibit 10, Affidavit from XXXX dated XXXX 2013, p. 197. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06006