TC0-12736

RAD File / Dossier de la SAR : TC0-12736 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision July 13, 2021 Date de la décision Panel Jennifer Anne Moore Tribunal Counsel for the person who is the subject of the appeal Peter Obuba Kalu Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX is a citizen of Nigeria. She claims to fear her half-brothers because of an intra-family inheritance dispute. The Refugee Protection Division (RPD) found the Appellant not to be credible and rejected her claim in a decision dated December 15, 2020. The Appellant appeals the RPD's decision to the Refugee Appeal Division (RAD).1 The Appellant asks that the RAD set aside the decision of the RPD and substitute its own determination that she is a Convention refugee or person in need of protection. In the alternative, the Appellant requests that the matter be referred to a different panel of the RPD for redetermination. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ISSUES [3] Did the RPD err in finding the Appellant not to be credible? BACKGROUND [4] The Appellant is a 65-year-old Christian woman of Yoruba ethnicity from Ondo State. She is married and the mother of four children. Her family remains in Nigeria. [5] The Appellant is the eldest child of a successful XXXX who had three wives. Her father died in 1975 and left 60% of his farmland to the Appellant and her sister, who are the children of his first wife. The Appellant's seven half-siblings received the remaining 40% share. Her father died intestate, and this arrangement was conveyed to the beneficiaries by the father's younger brother, XXXX XXXX XXXX XXXX XXXX The land was never conveyed to the beneficiaries and the Appellant and her siblings operated the farm over the subsequent few decades, sharing the profits. [6] In 2017, her half-brothers wanted to sell the farm but allegedly refused to acknowledge that the Appellant owned 60% of the land. According to Yoruba culture, male children are expected to be treated favourably when it comes to inheritances. Her brothers threatened her and were physically violent when she refused to consent to an amended sharing formula whereby, she would receive 10% of the land. XXXX and the other elder in her family also disagreed with the amended formula as it went against the father's wishes. [7] On June 14, 2017, her half-brother, XXXX, allegedly attended the Appellant's house and demanded that she consent to the amended formula otherwise she would be killed within two weeks. The Appellant reported these threats to the police, but the police said it was a family matter which did not warrant their intervention and that she should give the land to her brothers. On the advice of her husband, and a desire to live in peace, the Appellant called a family meeting to announce that she would consent to the amended sharing formula. [8] Two weeks after the Appellant publicly gave up her entitlement to the land, her brothers once again allegedly attended her house and demanded that she swear to a heathen oath to ensure that she wouldn't make a future claim to the land. The oath involved fetish activities and drinking animal blood. The oath went against the Appellant's Christian beliefs and, thus, she refused to take it. This angered her brothers who resumed their threats. [9] The Appellant allegedly relocated to her maternal uncle's home in Kaduna in July 2017 to escape attack. However, the threats continued, and it was then that she decided to leave Nigeria and travel to the United States of America (USA), which she did on a visa that was issued on February 13, 2018. [10] It is for these reasons that the Appellant left Nigeria for the USA on XXXX XXXX XXXX 2018, entered Canada on XXXX XXXX XXXX 2019, and made a claim for refugee status. Her hearing before the RPD was held on November 18, 2020. ROLE OF THE RAD [11] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.2 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.3 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [12] Following my independent assessment of the record, including reading the transcript of the proceeding before the RPD, I find the Appellant not to be a Convention refugee. In making my decision, I have considered Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.4 Credibility Inconsistencies in the Appellant's evidence about where she was and what she did from July 2017 to April 2018 undermines her credibility [13] The RPD correctly found that inconsistencies in the Appellant's evidence about being in hiding during the period of July 2017 to April 2018 undermines her credibility. In her testimony, the Appellant claimed to have hidden in her own home without leaving for this period but the RPD found that she had left the home on at least two occasions during that time. The Appellant argues that the inconsistencies in her evidence are consistent with her profile as a victim of domestic violence and the RPD erred by failing to ask the Appellant about the abuse she suffered. [14] In her BOC, the Appellant claims that she moved to Kaduna State and stayed with her maternal uncles when the resumed threats became unbearable but that the agents of harm continued their threats and discovered that she was in Kaduna, which made her decide to leave Nigeria. In her testimony, she said she went to her uncle's home in Kaduna but quickly returned to her own home to hide, without leaving the home, for ten months. She testified that the agents of harm never became aware of her return and that her children would cook, bring her food and that they took over her responsibilities in her shop. Contrary to the Appellant's testimony that she remained hidden and didn't leave her house for ten months, there is evidence before me that she left on XXXX XXXX XXXX 2018, to have a meeting with her lawyer in Akure, Ondo State and again on XXXX XXXX, 2018, to have her fingerprints taken for her US visa application in Lagos. [15] The Appellant admits to leaving her home to attend her lawyer's office. She testified that her husband took her in his car and that she turned her head to avoid being identified. The Appellant denies going to Lagos to have her fingerprints. She claims an agent completed all parts of the visa application on her behalf. [16] The Minister submitted a package of evidence including information from the USA biometric immigration database - Automated Biometric Identification System (Biometric Report). This database stores fingerprints taken by USA Department of Homeland Security and contains fingerprint records including those from individuals who have applied for visas overseas. By her own evidence, the Appellant has applied for two separate visas for the USA. The Biometric Report indicates that she was fingerprinted by the Department of State, Consular Affairs in Lagos on May 20, 2015, and again on February 6, 2018. The information contained in the Biometric Report is objective and clearly states that the Appellant's fingerprints were collected in Lagos on February 6, 2018. This is not something an agent could do on her behalf. Accordingly, I find that the Appellant did attend USA consular services in Lagos on February 6, 2018, contrary to her testimony. [17] I further find that the Appellant did not stay hidden in her home for the ten months preceding her departure from Nigeria and this discrepancy with her evidence undermines her credibility. I acknowledge that the Appellant has provided a psychotherapist's letter dated February 17, 2020, and a nurse practitioner's letter dated October 29, 2020, both of which indicate she has XXXX XXXX XXXX XXXX XXXX XXXX XXXX. I also acknowledge that the Chairperson's Guidelines 4 instruct that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. I accept that she may have forgotten that she travelled to Lagos in XXXX 2018 and do not draw a negative credibility finding in that regard. However, this trip does undermine her credibility with respect to her allegation that she needed to remain in hiding to preserve her safety during the period of July 2017 to April 2018. [18] In addition, the inconsistencies in the Appellant's evidence about where she stayed prior to leaving for the USA also undermines her credibility. In her BOC, she indicates that she moved to Kaduna State and stayed with her maternal uncle. When asked why she didn't include that address in her Schedule A form, the Appellant testified that she did not stay in Kaduna State for more than five days before surreptitiously returning to her own home during the night. The language she used in her BOC about "moving" to Kaduna cannot be reconciled with her testimony about Kaduna. In her BOC she states: "When the threats became unbearable I moved to another city and state, Kaduna, Nigeria to escape attack." Even with the most generous interpretation, this cannot be taken to mean that she went to Kaduna State for less than five days. I find the inconsistencies in her evidence about her presence in Kaduna State to further undermine her credibility. No Documents Pertaining to Land Dispute [19] The RPD correctly found that the lack of documentation pertaining to the land dispute undermined the Appellant's credibility. The RPD noted that the Appellant did not produce any documentation to show where the land is, who owns the land, or what share of the land she is allegedly entitled to. When asked what efforts she made to obtain these documents, the Appellant claimed that she asked her husband to obtain these documents, but the documents were in the possession of her uncle, XXXX, who refused to release them out of fear for his own life. The RPD did not accept this explanation. The Appellant was then asked if she tried to get an affidavit or a letter of support from her uncle to which she replied she had not. Asked why she didn't solicit documentary support from her uncle, she replied, "I don't know. Because I was kind of in total confusion. I thank God. I wasn't psychologically ok. I wasn't thinking straight. Thank God. I think I would have been dead." The RPD also did not accept this explanation. [20] The Appellant argues that the RPD erred because they failed to appreciate that her uncle would be at risk of harm if he released the documents and that the RPD further erred because it failed to consider the Appellant's psychological issues in assessing her explanation for failing to get a supporting affidavit from her uncle. [21] The land, its value and her father's intended bequest are foundational to the Appellant's claim. It is the responsibility of the Appellant to obtain and provide to the RPD any documents that may support her claim. In the case before, there can be no documentation more probative than documentation pertaining to the land in question. I do not accept the Appellant's assertion that her uncle refused to release these documents out of concern for his own life. The purpose for which the Appellant needed the documentation was to support her claim for protection status in Canada which is unrelated to enforcing any rights she may have to an inheritance in Nigeria. A successful Canadian claim would have no bearing on a Nigerian land claim other than perhaps to keep the Appellant away from Nigeria where she might attempt to enforce her rights. Her half-brother's interests would not be impacted whatsoever by the release of these documents for the purposes of a protection claim in Canada. [22] However, even if her uncle did refuse to release the documents, the Appellant could have tried to obtain documentation through a central land registry system. There is country condition evidence before me that refers to the ability to register land in Nigeria. Although the system is not without difficulties, it does exist and there is evidence that it is becoming more dependable in recent years. "The climate for private enterprise in recent years has benefited from advancements in ...property registration."5 There is no evidence that the Appellant or her husband attempted to get the deed to the property or other probative documents from the central registration authorities. Even if the Appellant and her family were unaware of the property registration system, they had retained the help of Nigerian lawyers and paralegals to help with her claim and they could have navigated the property registration system. [23] I find the Appellant's failure to make reasonable attempts to secure these documents or explain why she could not secure these documents undermines her credibility. [24] The Appellant's explanation that she didn't think to request a supporting affidavit or letter from her uncle is incongruous with the fact that she obtained supporting affidavits from her children. The evidence provided by her children is substantially less probative than evidence that could have been provided by her uncle. I do not accept that she thought to request supporting letters and affidavits from eight different people in Nigeria but did not think to obtain an affidavit from the source closest to the crux of her claim. I find her explanation for failing to provide an affidavit or supporting letter from her uncle undermines her credibility. [25] I also note that the Appellant claims that the land wasn't transferred at the time of her father's death despite the arrangement being supported by her uncle and other elder relatives because of the "men in the family kicked against it." I note at the time of her father's death, her brothers were 15, 7, 5, and 3 years of age. Out of all her siblings, the Appellant was the only one who had reached adulthood at the time of her father's passing. I find that children under the age of 15 years of age would not have the ability to prevent the legal transfer of land that was supported by all the elder members of the family. Therefore, I find that the Appellant's half-brothers did not prevent their father's wishes from being carried out at the time of his death. The Appellant's allegation to the contrary undermines her credibility. Inconsistency in the Appellant's testimony and BOC about the police does not undermine her credibility [26] The RPD incorrectly found that the Appellant had shifting testimony about whether the police asked for a bribe which undermined her credibility. In her testimony, the Appellant claimed that when she went to report her half-brother's threats to the police, she was asked to pay a bribe and then eventually told it was a family matter. In her BOC, the Appellant failed to mention being asked to pay a bribe. The Appellant argues that the RPD erred by failing to properly consider the psychological report provided by the Appellant which states that she has concentration and memory issues. [27] There is country condition evidence before me that Nigerian police routinely ask for bribes. In fact, 33% of Nigerians claim to have paid a bribe to the police or have been asked to pay a bribe.6 It is possible to draw a negative credibility finding from a claimant's failure to include information in their BOC but only if the omitted information is significant to her claim.7 In this case, I find the request for a bribe is peripheral and is merely an elaborative detail about her efforts to make a police report. This omission does not undermine her credibility. Omission in the Appellant's BOC of her uncle's role does not undermine her credibility [28] The RPD incorrectly found that the Appellant's omission of her uncle's substantial role in her claim damages her credibility with respect to her core allegations. When asked why she didn't mention her uncle's involvement in her BOC, she said she wasn't herself when writing her BOC and there were many other things she "would have forgotten." The RPD considered the psychotherapist's and nurse practitioner's letters and found the letters to be insufficient in explaining why her uncle's substantial involvement was omitted from her BOC. The Appellant argues that the RPD erred by failing to take into consideration the peculiar circumstances of the Appellant which include her age, and that she is a victim of domestic violence, and failed to properly consider the Chairperson's Guideline 4. [29] In her BOC, the Appellant claimed that it was her uncle who told her of her father's wishes with respect to his estate and her inheritance. She also claimed that her uncle resisted her half-brother's proposed formula for sharing the land because it went against her father's wishes. Lastly, she provided evidence that her uncle, like herself, was subject to threats from her half-brothers due to his insistence that his brother's bequests be honoured. [30] While further information about this uncle was revealed in her testimony, these additional details were not central to her fear of persecution nor significant to her claim. The details were about her uncle's refusal to release documents in support of her claim out of fear of retribution from the agents of harm. The Appellant had already provided evidence in her BOC that her uncle was subject to threats, and therefore the evidence elicited in her testimony simply elaborated on the evidence already provided in her BOC and does not undermine her credibility. [31] Although, I have found that the RPD erred in making some credibility findings these errors are not enough to overcome the other negative credibility findings that were correctly made. CONCLUSION [32] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Jennifer A. Moore Jennifer Anne Moore July 13, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & s. 111(1)(c). [IRPA]. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Canada: Immigration and Refugee Board of Canada, Chairperson's Guideline 4 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. 5 National Documentation Package, Nigeria, 16 April 2021, tab 2.9: ?Nigeria. Freedom in the World 2020. Freedom House. 2020, p. 19. 6 National Documentation Package, Nigeria, 16 April 2021, tab 10.2: ?Governance, Accountability, and Security in Nigeria. Africa Center for Strategic Studies. Oluwakemi Okenyodo. 21 June 2016, p. 1. 7 Selvakumaran v. Canada (Citizenship and Immigration), 2002 FCT 623. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC0-12736 RAD.25.02 (May 19, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (May 19, 2021) Disponible en français