TB5-08087

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-08087 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a.XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 16, 2015 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal David Matas Barrister and Solicitor 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 XXXX ("Appellant"), citizen of the Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant is not submitting any new evidence and he is not requesting an oral hearing. He requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is dismissed. Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee or a person in need of protection. Background [3] The Appellant states that he is a Christian. In 2004, his General Overseas Pastor opened an Evangelical Pentecostal Ministry in XXXX, District of Nigeria. The name of the church was XXXX XXXX Church. He was a missionary for the church and he would walk through the village three times a week with a microphone preaching and converting Muslims and others to Christianity. [4] He maintains that on XXXX XXXX, 2009, the federal agents, S.S., made a second visit to his residence in XXXX. They arrested him and drove him to their station in XXXX where he was detained for XXXX days, interrogated, tortured, and then released. He says that on December 20, 2009 all the ethnic Igbo people living in various states of the Federation held a mass demonstration commemorating the Biafra day. The march was peaceful and nonviolent but armed men killed some people that day. The federal agents paid another visit to his house but they could not find him. [5] He states that on XXXX XXXX, 2009 the leader of the Abduh Qaqa sect of the Islamic group, Boko Haram, telephoned him and said that he must convert to Islam or be killed. The caller said that in a matter of time, Boko Haram would turn Nigeria into an Islamic nation. The Appellant believed that he was targeted because of his visible activities to convert Muslims to Christians and because he was an active member of the church. He says that he went to the district police station and filed a complaint and the officer at the desk told him that they would investigate the matter. He never heard back from the police to the date of the signing of his Basis of Claim ("BOC"). [6] The Appellant says that members of the Boko Haram sect threw a petrol bomb and explosive device into the XXXX XXXX Church on April 25, 2010. The building was burned and the pastor and some of the church members who were attending church services that evening were killed. He says that he was on a church mission to the Republic of Chad on that day. [7] When he returned from Chad, his relatives told him that federal agents, known as S.S., visited his house while he was away. He alleges that they were searching for him to kill him or arrest him to put him in prison to face treason charges because of his membership in the Sovereign Independent nation of Biafra ("MASSOB"). He was the XXXX XXXX of the organization in XXXX and XXXX state. [8] He says that Boko Haram wants to kill him because of his missionary activities as a Christian. The police would do nothing to protect him. The Nigerian federal agents known as S.S are looking for him to put them in prison to face charges of treason which carries the death penalty because of his activities with the MASSOB organization. [9] The Appellant left Nigeria on XXXX XXXX, 2012. He travelled by container ship to XXXX and arrived on XXXX XXXX, 2012. He subsequently entered the XXXX XXXX XXXX XXXX XXXX XXXX XXXX on XXXX XXXX, 2012. He made a claim for refugee protection in the USA but he was not granted refugee status. He entered Canada on XXXX XXXX, 2014. ROLE OF THE RAD [10] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [11] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [12] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) it is not credible that the Appellant is persecuted because of his MASSOB activities or that he is specifically targeted by Boko Harem for his missionary activities, as a Christian, trying to convert Muslims to Christianity. Submissions [13] The Appellant submits that the RPD erred in finding that he lacked credibility "overall." The RPD found that the Appellant established his identity and therefore, if his claim lacked credibility, if at all, it would only be in part and not "overall." [14] The Appellant argues the RPD stated its first credibility concern was that the Appellant did not provide the court judgment from the USA rejecting his asylum claim. This should not be a credibility concern since the Federal Court has ruled on many occasions, that the absence of documentation in support of a claim is not, in itself, sufficient to question the credibility of the claimant. A claim cannot be rejected on the basis of a lack of evidence if the Appellant's credibility is not in question. [15] The RPD's reasons do not disclose any credibility concerns other than those concerns relating to the failure to produce evidence. In the absence of a credibility concern or any doubts about the Appellant's story other than those pertaining to documentary evidence, it is an error for the RPD to reject the claim solely on the basis of a lack of corroborative evidence. [16] The Appellant submits that the RPD is not applying the presumption of truthfulness when it states that the failure to provide a copy of the USA judgment is evidence of a negative credibility finding. [17] The RPD referred to an amended narrative of the Appellant and noted omissions and contradictions between the two documents. The Appellant states that the document the RPD characterizes as an amended narrative is actually a response to the intervention of the Minister. [18] The Appellant states that the narrative submitted in this matter is identical to the one that was entered into evidence in the USA immigration proceedings. The fact that the two narratives were identical was not considered by the RPD. The failure of the RPD to take this consistency into account is an omission which undermines credibility analysis of the RPD. [19] The RPD stated that the Appellant stayed in hiding until he could find a boat that would take him from Nigeria to Brazil. The Appellant's evidence was that he came to Canada via XXXX and the XXXX. It is inconsistent to say that this sort of mistake by the RPD does not matter, but that a similar sort of mistake by the Appellant undermines his credibility. There is little to distinguish between the sorts of criticism the RPD has of the Appellant and the Brazil/XXXX mistake of the RPD. [20] The RPD states that "there is no convincing evidence before me that the Secret Service have been after you since that time and so there would appear to be no forward-looking risk on [you]." The Appellant disagrees with this statement and says there is evidence of risk. There is a letter from XXXX XXXX XXXX XXXX XXXX, 2015 stating "There were two men presumed to be working for the federal government who visited your residence on several occasions during the past XXXX months, asking for your whereabouts." The failure to mention this evidence shows that the RPD made its decision without regard to the material before it. In the absence of an express adverse finding of credibility, one has to assume that the RPD found the evidence credible, in so far as it was aware of it. [21] The RPD refuses what it found not to be credible from what it found to be credible because the claim is overwhelmingly not credible. The Appellant has shown enough problems with the decision to throw into question the finding that the Appellant is overwhelmingly not credible. [22] The RPD had a duty to separate what it found not credible from what it has found credible and come to a conclusion whether the elements it found credible support of the claim. ANALYSIS OF THE MERITS OF THE APPEAL [23] The RPD found that the Appellant lacked credibility because of inconsistencies between his testimony and the documents he presented, as well as, omissions in various aspects of his story. He said that he feared persecution in Nigeria because he was an active member of the organization known as Movement for the Actualization of the Sovereign State of Biafra (MASSOB). He tendered some business cards in evidence that described him as XXXX XXXX XXXX for the organization. He also stated that he feared the group, Boko Haram, because he was a Christian and an active missionary for his church. There were also indications that he was fearful because his ethnicity as a member of the Igbo tribe. These aspects of his claim were mixed together in his documents and his testimony. [24] He says that he was arrested on XXXX XXXX, 2009 because he was a member of MASSOB. He was detained for XXXX days, during which time he was interrogated and tortured. He goes on to state that on December 20, 2009; there was a demonstration in favor of Biafra statehood. He describes the demonstration as peaceful and nonviolent but armed policeman killed some people that very day. The same day federal agents paid another visit to his house but they could not find him. In his testimony before the RPD he stated that agents came back to his house looking for him in XXXX 2010 after the Biafra day demonstrations. When questioned, he repeated that the SS agents returned on XXXX 2010. He says that the agents did not find him because he had gone into hiding in the "bush" after he was released in XXXX 2009. It was pointed out to him that in his BOC narrative he stated that the SS members came looking for him at his house in XXXX 2009. He was asked why the two dates were different. The Appellant then replied that they had actually come three times to his house. He was asked why he did not remember the XXXX 2009 date. In his narrative there was nothing about the police coming in XXXX 2010. He was asked why the XXXX 2010 date was missing from his narrative. He replied "It should be there." [25] The RPD pointed out to him that in his reply to the Minister's intervention, he stated that he hid in the bush after his XXXX 2009 arrest. He was asked why he did not include this in his original BOC narrative. He replied "Everything is in the narrative." He was asked again and he responded "Maybe it was an omission." [26] He also claimed that as a result of his missionary activities he had been threatened on XXXX XXXX, 2009, by the leader of Boko Haram. The RPD asked him when he went to Chad on an evangelical mission. He replied that he was in in Chad from XXXX XXXX, 2009 until XXXX XXXX, 2009. He stated in his BOC narrative that he was in Chad when his church was firebombed. The RPD asked him when the church was firebombed. He replied "April 25, 2009." It was pointed out to him that his BOC narrative states that this occurred in 2010. He was asked why there was a difference. He stated that it was a slip of the tongue. [27] He was then asked when he was threatened by the leader of Boko Haram and he stated that he was threatened in XXXX 2010. It was pointed out to him that his narrative said he was threatened in 2009. Why was there a discrepancy? He replied "the first time they called me was 2009 and they bombed church in 2010." After an exchange between the RPD and the Appellant as to the discrepancy in dates, the Appellant then said the church burned down in June 2010. The RPD then said "I thought you told me that church was burned down in April 2010? The Appellant replied "Yes". [28] He was asked why he waited until 2012 to leave Nigeria. He stated that he did not want to leave the country but threats existed and because of the movement of the ship. He waited in the bush until the ship came. He was asked why he waited two years since the last event to leave the country. He said he waited in the bush and there was no other way to leave the country. His friend who was worker on the dock in later in Lagos gave him the signal when the boat arrived in Nigeria. [29] The Appellant was inconsistent as to the dates on which the various incidents occurred. He could not give explanations for these inconsistencies. He also could not explain the omission that he hid in the bush after he alleges he was detained and tortured in XXXX or the omission of one of the dates that the SS subsequently came to his home looking for him. He did not give a reasonable explanation why he had to wait two years after the last incident to leave the country. In listening to the recording of the RPD hearing, the Appellant's testimony sounded convoluted and disjointed. The RPD found that, as a result of the matters outlined above and the demeanour of the Appellant, he was not credible. The RAD agrees with this finding based on its assessment of the evidence and the particular advantage of the RPD in hearing the Appellant's testimony directly. [30] The Appellant produced membership cards for MASSOB2 that describe him as an XXXX XXXX XXXX. He also tendered a letter3 from a XXXX of the MASSOB organization stating that the Appellant is a member and an XXXX XXXX XXXX. In regard to his membership in MASSOB, documentary evidence4 states that in 2010, a representative of MASSOB stated that there were over 1000 cases of MASSOB members being detained by the police. According to the MASSOB representative these incidents involved both "ordinary" and "high-ranking" members who were taking part in peaceful protests. In January 2010, the leader of MASSOB was arrested for allegedly kidnapping and imprisoning a Nigerian-American man. Media sources report that the leader was detained until May 2010, when he was granted bail. Nigerian newspapers report that in March 2010, MASSOB members were arrested for protesting the leader's detention in peaceful demonstrations. Newspapers also reported that in April 2010, police shot at least one person, arrested at least another 27 and deployed tear gas on a crowd that included MASSOB members were gathered to support the leader who was being delivered to court for trial. In July 2010, 68 MASSOB members, travelling in buses displaying the Biafran flag, were reported to have been arrested. According to the MASSOB representative it is standard procedure for arrested and detained MASSOB members to be physically tortured during interrogation.5 There was no persuasive evidence that the Appellant took part in any of these demonstrations. [31] Documentary evidence states that the Constitution and law provide for the right to associate freely with other persons in political parties, trade unions, or other special interest organizations and the government mostly respected this right. On August 6, 2013, six members of MASSOB were arrested for alleged illegal activities after being found in possession of 114 Biafran flags and Biafran currency totaling 129 Biafra pounds. The six members were arraigned, and the case continued as of years end. In May 2012, six men were sent to prison for wearing MASSOB regalia and announcing their membership in the organization. Counsel for the convicted men stated that they will appeal the judgment. MASSOB petitioned President Jonathan for the release of the six men. Some of the men remained imprisoned as of year's end.6 There is no persuasive evidence that the MASSOB is banned as an organization and the fact that MASSOB could petition the President of the country appears to indicate that the freedom to associate freely with other persons in special interest organizations is generally respected. I acknowledge these matters but in this particular case, as a result of the general credibility findings, I find that there is no persuasive evidence that the Appellant will be persecuted for his membership in MASSOB if he should return to Nigeria. [32] The Appellant stated in his BOC that the firebombing of the church resulted in the death of the pastor and several other members of the church. Documentary evidence7 states that Boko Harem has been responsible for firebombing a number of churches in the north of Nigeria but there is no evidence that this particular church was firebombed because of the activities of the Appellant. As a result of not being able to accurately state the date on which the various events took place, the RAD cannot find that the Appellant has been targeted personally by Boko Harem. [33] There is documentary evidence of problems between tribes in Nigeria and discrimination but there is no persuasive evidence that the Appellant has been specifically targeted because of his Igbo ethnicity. [34] The RAD, therefore, finds that there is not a serious possibility that the Appellant will be persecuted if he returns to Nigeria or that on a balance of probabilities he will be at risk to his life or at risk of cruel and unusual treatment or punishment or torture if he returns to Nigeria. DISPOSITION [35] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Ken Atkinson" Ken Atkinson September 16, 2015 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit P-2, Appellant's Record, at p.42. 3 Ibid., at p. 41. 4 Exhibit 3, National Documentation Package (NDP) for Nigeria ( November 28, 2014), Item 4.6, RIR NGA103912.E.December 12, 2011. 5 Exhibit 3, National Documentation Package (NDP) for Nigeria ( November 28, 2014), Item 4.6, RIR NGA103912.E.December 12, 2011. 6 Exhibit 3, National Documentation Package (NDP) for Nigeria ( November 28, 2014), Item 2.1, U.S. Department of State, Country Reports onHuman Rights practices for 2013, February 27, 2014. 7 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08087