TB9-34721

RAD File / Dossier de la SAR : TB9-34721 TB9-34722 / TB9-34723 / TB9-34724 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 24, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the persons who are the subject of the appeal Bolanle Olusina (Sina) Ogunleye Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellants are XXXX XXXX XXXX XXXX ("the Principal Appellant"), his wife XXXX XXXX XXXX XXXX ("Ms. XXXX XXXX XXXX"), their minor son XXXX XXXX XXXX XXXX ("XXXX"), and their minor daughter XXXX XXXX XXXX XXXX XXXX ("XXXX"). The Principal Appellant, Ms. XXXX XXXX XXXX, and XXXX are Nigerian citizens. XXXX was born in the United States and is therefore an American citizen. The Appellants fear political persecution in Nigeria due to the Principal Appellant's involvement in the All Progressives Congress ("APC"). The Appellants fear that members of the People's Democratic Party ("PDP") will seek to harm them. The Refugee Protection Division ("RPD") rejected the Appellants' claims. The RPD identified problems with the credibility of the Principal Appellant's testimony. The panel appeared to accept the facts around the Principal Appellant's political activities, but it determined that there was a viable internal flight alternative ("IFA") in Abuja. The Appellants dispute this decision and provide new evidence that addresses the RPD's findings. [2] The result of this appeal is a split decision. A claim against the United States was not advanced for XXXX at the RPD, nor have the Appellants disputed the RPD's reasons for rejecting her claim. No risks have been identified for XXXX in the United States that would entitle her to refugee protection. The Refugee Appeal Division ("RAD") therefore agrees with the RPD's reasons for rejecting her claim. Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal in regard to XXXX claim is dismissed. [3] As for the remaining Appellants, their appeals are allowed, pursuant to paragraph 111(1)(c) of the IRPA. I cannot agree with the RPD's reasons for rejecting their claims. I disagree with the RPD's credibility findings as well as its assessment of whether an IFA exists in Abuja. I set aside the RPD's negative decision and refer this matter back to the RPD for redetermination before a differently constituted panel. BACKGROUND [4] The Principal Appellant was an active member of the APC in XXXX, Lagos State. He convinced his XXXX XXXX XXXX XXXX XXXX, an influential PDP member in the community, to join the APC in 2014. The XXXX XXXX XXXX XXXX XXXX home became a meeting point for APC members and members of the community. The Appellants say there was political violence against APC and community members who were suspected of supporting APC candidates. On two occasions, political mercenaries allegedly threw stones and bottles during their meetings at the XXXX XXXX XXXX XXXX XXXX residence, and they threatened to harm the Principal Appellant and his XXXX XXXX XXXX XXXX XXXX XXXX However, the XXXX XXXX XXXX XXXX XXXX change in political affiliation supposedly contributed to the political shift in the area that saw the APC succeed in XXXX and throughout Lagos State in the March 2015 elections. On XXXX XXXX, 2015, a XXXX XXXX out at the XXXX XXXX XXXX XXXX XXXX XXXX and he was killed. Police investigated for several months, but they made no arrests. [5] The Principal Appellant continued his political activities. He claims the XXXX XXXX XXXX was colluding with PDP and APC leaders to run for the presidency of Nigeria in the 2019 elections. The Principal Appellant was contacted by the XXXX XXXX XXXX XXXX, who informed him that he would become the XXXX XXXX for the campaign in Lagos State, with the understanding that they may have to break away from the APC. The Principal Appellant denied interest, but he was told this would not go well with the leaders and that he should take time to reconsider. After he denied the proposal a second time and declared his support for an APC candidate for State House of Assembly, the Principal Appellant claims he was targeted. [6] On XXXX XXXX, 2018, the Principal Appellant was in his car with a fellow party member when armed individuals on motorcycles followed them. The Principal Appellant's car crashed. He managed to cross the highway but fainted upon reaching the other side. He woke up in the hospital and learned that his fellow party member had been beaten, stabbed, and told that they would make the Principal Appellant regret declaring his support for the APC candidate in XXXX. The Appellants reported the attack to the police, but while at the police station, two men tried to enter their home. They left a letter with the gatekeeper, which contained death threats against the Principal Appellant and his family. The Appellants reported this to the police and relocated to another home until they left Nigeria in XXXX 2018. They made their way to Canada in XXXX 2018 to make their claims for refugee protection. [7] The RPD heard the claims on November 15, 2019 and rejected them in an oral decision that same day. The determinative issue for the Principal Appellant's claim was the existence of a viable IFA in Abuja. The RPD did not believe there would be a serious possibility of persecution there, since the Principal Appellant's political involvement was highly localized, and he was not a person of such importance in the APC that he would come to the attention of high-level politicians in Abuja. The RPD did not believe it would be unduly harsh for the Principal Appellant and his family to relocate to Abuja. In addition, with respect to the claims for Ms. XXXX XXXX XXXX and XXXX, the RPD noted that there were some credibility issues. The threat letter issued to the Appellants had not been produced, and there was inconsistent evidence as to whether the attackers sought to harm XXXX. There was also little objective evidence to indicate that family members were targeted in situations of political violence. Role of the Refugee Appeal Division [8] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. Admissibility of new evidence and request for an oral hearing [9] The Appellants provide the following new evidence in their appeal: i. A letter from a Nigerian law firm, dated XXXX XXXX XXXX 2020, about their efforts in obtaining copies of the Appellants' police file in Nigeria;2 ii. A copy of a police extract, dated XXXX XXXX, 2018;3 iii. A copy of the threat letter given to the Appellants' gatekeeper;4 iv. A letter from the APC ward secretary in XXXX, dated XXXX XXXX XXXX 2020;5 v. Various news articles about violence against APC members in Nigeria;6 and vi. A series of WhatsApp messages from the Principal Appellant's brother, about his efforts to obtain copies of the police records.7 [10] None of these documents will be admitted. [11] Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.8 Items (i) to (iii): Documents pertaining to Nigerian police file [12] The Appellants describe that they attempted to obtain a copy of their police file prior to the RPD's decision, but that they were unsuccessful. After seeing the RPD's decision they have revived their efforts by hiring a law firm to obtain the documents. After retaining the law firm on XXXX XXXX, 2019, the Appellants soon received copies of a police extract and the threat letter that formed part of the police file. [13] The Appellants say this evidence was not reasonably available at the time the RPD rejected their claims. I disagree. I acknowledge that the Appellants were making efforts to access the police file. However, the Appellants initiated their refugee claims in XXXX 2018 and their hearing was not held until XXXX 2019. They had a great deal of time to gather evidence in support of their claims. Evidence to corroborate their reports to the police and the threat letter would have been of obvious importance. The Appellants have not provided any information as to when they began their efforts to access the police file. Once it became clear that family members in Nigeria were having difficulty obtaining this evidence, it would have been open to the Appellants to seek assistance from a third party, a law firm in this instance, to obtain the evidence on their behalf. They did not request additional time from the RPD to gather this key evidence. [14] The Appellants have only resorted to retaining a law firm in Nigeria because the RPD rejected their claim. However, the importance of these documents should have been apparent well before that. Refugee claimants are required to put their best foot forward at the RPD stage. A RAD appeal is not a second chance to supplement the evidentiary record and answer weaknesses identified by the RPD.9 I am not satisfied that items (i) to (iii) meet any of the criteria under subsection 110(4) of the IRPA. The documents will not be admitted. [15] I would note, in addition, that the threat letter would not pass the credibility criterion under the Singh/Raza factors. The short letter simply happens to address, line by line, the RPD's findings. It indicates: 1) That the agents of persecution have been monitoring the Principal Appellant and his family, listing their workplaces and the son's school; 2) That the agents of persecution are connected to the XXXX that killed the Principal Appellant's XXXX XXXX XXXX XXXX XXXX; and 3) That the agents of persecution have eyes everywhere and that they will find them anywhere in Nigeria.10 It is notable that the Appellants never suggested that their family was being monitored to the extent indicated in the letter, nor did they speak to how the agents of persecution explicitly informed them that they intended to follow them across Nigeria. This is despite the Basis of Claim ("BOC") form asking about the availability of an IFA at question 2(d) and why the Appellants could not live in another part of their country. In addition, the RPD asked the Principal Appellant why he believed the XXXX was politically motivated. In response, the Principal Appellant mentioned nothing about the threat letter. Instead, he spoke about how the timing coincided with previous threats and how there was nothing in the home, such as gas, electrical, or candles, that could have been likely XXXX XXXX XXXX XXXX. [16] It would be an incredible coincidence for the threat letter to coincidentally address the IFA issue, the risk to the Principal Appellant's wife and son that is apparent from the monitoring of their whereabouts, as well as the connection between the XXXX and the persecution against the Appellants, which were all significant matters identified in the RPD's reasons and which were facts completely omitted from the BOC form and oral testimony. In my view, the evidence is too fortuitous to be genuine. Item (iv): Letter from APC [17] The Appellants provided a support letter to the RPD that was authored by the XXXX XXXX XXXX XXXX XXXX. However, the letter spoke only to the Principal Appellant's political activities. It did not address the acts of persecution against him. The RPD took issue with the letter during the hearing and in its decision. The Principal Appellant has therefore contacted the APC and obtained another letter that addresses the RPD's concerns. The letter responds to the RPD's various findings, about how the APC is aware of the attempt on the Principal Appellant's life and the subsequent threat towards his family. The author says they are saddened that they cannot offer any form of security or protection to party members, as the Nigeria Police Force has sole responsibility for that. The letter discusses political violence against other party members. [18] The Appellants say this evidence was not reasonably available to them. I disagree. The Appellants had every opportunity to request a support letter from the APC to address the relevant facts around their claim. The new APC letter indicates that they believed the Principal Appellant was only asking for a letter to confirm his membership and achievements in the party, and this is why their first letter did not address any other matters. During the hearing, the RPD questioned the Principal Appellant about the letter, and why none of his problems were addressed in the support letter. The Appellants could have requested the opportunity to present evidence on this issue. However, they did not. They were content to allow the proceedings to continue, for submissions to be made, and for a decision to be issued. I reiterate that refugee claimants are required to put their best foot forward at the RPD stage. The new APC letter merely represents an effort to supplement the record in response to the RPD's findings. As item (iv) does not meet any of the criteria under subsection 110(4) of the IRPA, it will not be admitted. Item (v): News articles about violence against APC members [19] The new APC letter was accompanied by various articles about violence against APC members. None of the articles appear to pre-date the rejection of the Appellants' claims. The Appellants had the opportunity to present documents to the RPD about political violence against APC members. They provided several documents on this issue.11 The news articles in item (v) all appear to have been printed from online sources. There is nothing to suggest to me that they were not reasonably available to the Appellants when the RPD considered their claims. As none of the criteria of subsection 110(4) of the IRPA have been met, the documents in item (v) are inadmissible. Item (vi): WhatsApp messages from the Principal Appellant's brother [20] Finally, the Appellants have submitted various WhatsApp messages from the Principal Appellant's brother-in-law, about his efforts to obtain copies of a police report. This is not new evidence as contemplated under subsection 110(4) of the IRPA. Instead, it is evidence that was presented to the RPD in an application for late disclosure, which the RPD refused. I find that the RPD correctly rejected this evidence. [21] The WhatsApp messages were sent on XXXX XXXX, 2019. The author of the messages explains that he went to the police to obtain a copy of the police report, but that he was turned away because the appropriate officer was not present. Upon returning, he was told that the file had been transferred to Abuja and he was unable to obtain a reference number. The RPD rejected this evidence, as it was late and the RPD did not believe it had significant relevance or probative value. The RPD pointed out that the Appellants could provide testimony on the subject. [22] The RPD correctly rejected the application for late disclosure. I acknowledge that the WhatsApp messages might have had probative value with respect to the brother's efforts to obtain a police report and that the Appellants might not have been able to provide the WhatsApp messages earlier. However, I agree with the RPD that these messages had little relevance and that they did not bring any significant new information to the proceedings. As the RPD correctly pointed out, the Appellants had the opportunity to explain their efforts to obtain the police report through oral testimony. For whatever reason, they chose not to do this, but the RPD did not doubt that they had made efforts to obtain the police report. Though the Appellants point out that the RPD went on to dispute the absence of the threat letter, the WhatsApp messages related only to the police report. In addition, the RPD's findings about the threat letter are separate and distinct from the question of whether the RPD correctly rejected the late application to disclose the WhatsApp messages. In my view, the RPD considered the relevant factors and I agree with the decision not to admit the evidence. Request for an oral hearing [23] As no new evidence has been admitted, I must reject the Appellants' request for an oral hearing. ANALYSIS [24] The main issues in this appeal are the following: a) Whether the RPD erred in its credibility findings; b) Whether the RDP erred in determining that there was a viable IFA in Abuja; and c) Whether the RPD erred in its assessment of the claim against the United States. [25] These will be addressed in detail below. a) Whether the RPD erred in its credibility findings [26] The decision is a difficult one to review. Though the RPD clarified that the claims were not rejected on the issue of credibility, the panel made multiple adverse credibility findings, some of which were determinative of the claims for Ms. XXXX XXXX XXXX and her son, XXXX. I have independently assessed the credibility issues and cannot agree with the RPD. Evidence around intention to harm the entire family [27] Due to inconsistencies in the evidence, the RPD did not believe the agents of persecution were motivated to harm Ms. XXXX XXXX XXXX and her son. The RPD noted that, in the BOC form, the Principal Appellant stated that his entire family was threatened in the threat letter. However, when questioned about this in the hearing, the Principal Appellant stated that the agents of persecution may not seek to harm his son directly. Given this inconsistency, the absence of the actual threat letter, and the absence of objective country conditions evidence indicating that family members of party members are targeted, the RPD was unable to find that there was a serious possibility of persecution for either Ms. XXXX XXXX XXXX or XXXX. As for the death of Ms. XXXX XXXX XXXX XXXX in a XXXX, the RPD was not satisfied that there was sufficient evidence to conclude that the XXXX had been started by the agents of persecution. [28] The evidence does not support the RPD's finding. The BOC narrative states: They eventually left but dropped a sealed envelope with [the gatekeeper] to handover to me or my wife. It was threat-to-life letter. After we receive the note from our gatekeeper and read it. We reported to the police yet again but were told to be patient while they investigated. In that letter, my family and were [sic] issued death threats. This meant my wife, my children and I were no longer safe.12 [29] In oral testimony, the Principal Appellant stated that the entire family was in danger. He stated that, in the process of an attack, anything could happen to them too. When questioned as to why anyone would want to harm a four-year old child, the Principal Appellant explained that they would not be harming him directly, but that in the course of trying to harm him, they might also hurt his son. The Principal Appellant then explained that the threat letter had been left with the police, and that the Appellants did not have access to a copy. [30] I do not consider the testimony to be inconsistent with the BOC narrative. I interpret the Principal Appellant's testimony to mean that his wife and child were not the primary targets, but that the agents of persecution may harm them in attempting to pursue him. When the testimony is considered in its full context, I consider that no true inconsistency exists. [31] Once the RPD identified the above concern, it looked to see if there was other evidence available to support the risks for the Principal Appellant's wife and son. The RPD found that the evidence was not sufficient. However, absent the above credibility finding, the presumption of truthfulness would have applied, and the RPD would have had no reason to doubt whether the agents of persecution were seeking to harm the entire family. In short, it seems the RPD rejected the claims of the wife and son principally on this basis. As I cannot agree with the RPD's assessment, I must set aside the RPD's decision on Ms. XXXX XXXX XXXXs claim as well as her son's claim. Evidence about seeking assistance from the APC [32] The only other credibility issue identified by the RPD was what it considered to be inconsistent evidence as to whether the Principal Appellant had sought assistance from the APC for the threats against him. I have reviewed the evidence and cannot agree with this finding. [33] According to the RPD, the Principal Appellant initially testified that he did not go to the APC for help. The RPD considered that he later contradicted himself when he indicated that, in fact, he did tell his ward about his problems. The RPD pointed out how the APC support letter made no mention of his having any problems with the opposition. The RPD rejected the notion that it would not have been very useful for the APC to include information about the problems the Principal Appellant had reported to them. [34] I have reviewed the transcript of the hearing and determine that the RPD's finding is unsupported. When questioned as to whether he had sought help from his party, the Principal Appellant explained that he had not gone to his party for assistance in the matter, but that he reported to them that these problems had occurred. He explained that he was a "small fish", and political parties would not do anything about it.13 It seems the RPD misinterpreted the Principal Appellant's purpose for informing his party of these matters. The RPD wanted to know if the Principal Appellant had sought their assistance for protection purposes, but the Principal Appellant explained that he had reported the matters to them without expecting that any kind of assistance would be forthcoming. [35] I also question the significance of the omission in the APC's letter. The Principal Appellant explained that he asked the APC for a support letter to confirm his membership. That is precisely what the APC provided. The APC would have been in a much better position to verify the Principal Appellant's membership and political activities, as compared to whether he had in fact been threatened by political opponents. The letter, as it appears, does not contradict the Appellants' allegations. The RPD seems to have drawn a negative inference based on what the letter did not say, even though what it does say is entirely consistent with the Appellants' allegations. The Federal Court jurisprudence has cautioned against these kinds of inferences.14 [36] For the above reasons, I cannot agree with any of the RPD's credibility findings. b) Whether the RDP erred in determining that there was a viable IFA in Abuja [37] After rejecting Ms. XXXX XXXX XXXX and XXXX claims, the RPD proceeded to assess the Principal Appellant's claim. The RPD applied the two-prong IFA test and determined that he had a viable IFA in Abuja. The problems in the RPD's analysis lie in its analysis of the first prong. [38] Under the first prong of the IFA test, the RPD had to be satisfied that there was no serious possibility of persecution in Abuja. The Principal Appellant believed his agents of persecution had the means and motivation to pursue him in Abuja, but the RPD was not persuaded. The RPD did not doubt their means to locate him, but rather their motivation. The RPD considered that the Principal Appellant's problems were localized. His political work was in grassroots movements in XXXX. He organized weekly meetings for community members, and though he had done some political campaigning in other states, he had not faced any problems while campaigning in those locations. The RPD noted how the Principal Appellant had referred to himself as a "small fish", and that top politicians would therefore not be interested in him, even if those politicians were situated in Abuja. [39] The above analysis is problematic because it seems to ignore the very basis for the Principal Appellant's claim. The Principal Appellant claimed that he had already attracted the attention of high-level politicians. His narrative described how XXXX XXXX XXXX XXXX XXXX had personally sought him out to assist in his bid for the Nigerian presidency. He was sought because of his success in mobilizing the XXXX in Lagos, and he was tapped to become the XXXX XXXX for the presidential campaign. The Principal Appellant also described that XXXX XXXX XXXX pulled him aside during a meeting about the presidential campaign, telling him that he had heard about the Principal Appellant's good work, and how XXXX XXXX XXXX would need his loyalty in the task ahead. The Principal Appellant's refusal to assist in the campaign is what led to the persecutory actions against him. I am unable to see how, without doubting the credibility of these allegations, the RPD could conclude that top politicians would not be motivated to pursue the Principal Appellant in Abuja, where they are based. The RPD's finding is particularly troubling in light of the Principal Appellant's testimony that he would continue his political work for the APC in the event of his return to Nigeria, including in Abuja. [40] For the above reasons, I cannot agree with the RPD's characterization of the Principal Appellant as a low-profile party member whom the agents of persecution would have little motivation to pursue. This error requires me to set aside the RPD's determination on the Principal Appellant's claim. c) Whether the RPD erred in its assessment of the claim against the United States [41] The RPD rejected XXXX claim, as she had not made any claim about a well-founded fear of persecution in the United States, or any section 97 risks for her there. Accordingly, the RPD rejected XXXX claim. [42] The Appellants have not disputed that determination on appeal. I agree with the RPD's reasons. As XXXX was born in the United States, she is an American citizen. Her possession of an American passport demonstrates that she is recognized as a citizen by the United States government.15 Though she may be entitled to Nigerian citizenship, refugee claimants are required to establish a claim against every country of citizenship. The Appellants have not shown that XXXX faces any risks in the United States that would entitle her to refugee protection. I therefore confirm the RPD's decision with respect to her claim. CONCLUSION [43] For the above reasons, I disagree with the RPD's decision on the claims made by the Principal Appellant, his wife, and son. The negative decisions on their claims are set aside. I decline to substitute a positive decision, as in my review of the record, the RPD did not canvas the core allegations thoroughly. I would not be able to test the credibility of the allegations without the benefit of an oral hearing. The appeal is allowed with respect to the claims of the Principal Appellant, Ms. XXXX XXXX XXXX, and XXXX. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD remits their matters back to the RPD for redetermination before a differently constituted panel. [44] The RPD's decision on XXXX claim is confirmed. As an American citizen, XXXX is neither a Convention refugee nor a person in need of protection. The appeal with respect to her claim is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) M. Oh M. Oh February 24, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit P-2, Appellants' Record, at pp. 176-177. 3 Ibid., at p. 178. 4 Ibid., at p. 179. 5 Ibid., at p. 181. 6 Ibid., at pp. 182-202. 7 Ibid., at pp. 172-174. 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Singh, supra, at para. 54; Abdullahi v. Canada (Citizenship and Immigration), 2016 FC 260 at para 15; see also Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036, at paras. 33-34. 10 Exhibit P-2, Appellants' Record, at p. 179. 11 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 173-192. 12 Exhibit RPD-1, RPD Record, Exhibit 2.1, Basis of Claim narrative, at p. 21. 13 Exhibit P-2, Appellants' Record, Hearing transcript, at p. 213. 14 Arslan v. Canada (Citizenship and Immigration), 2013 FC 252 at paras 87-88; see also at Argueta v. Canada (Citizenship and Immigration), 2011 FC 1146 at para. 32. 15 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 63. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-34721 TB9-34722 / TB9-34723 / TB9-34724 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français