MB9-05082

RAD File / Dossier de la SAR : MB9-05082 MB9-05083 / MB9-05084 / MB9-05085 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 26, 2020 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the persons who are the subject of the appeal Uzo Aghaegbuna Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, XXXX XXXX XXXX, and their children Iremide XXXX XXXX and XXXX XXXX XXXX are citizens of Nigeria.1 They appeal a decision of the Refugee Protection Division (RPD), dated February 20, 2019, rejecting their claims for refugee protection. DETERMINATION [2] For the reasons that follow, the appeal is dismissed. The Refugee Appeal Division (RAD) confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [3] The Principal Appellant alleges he and his family were threatened by the Muslim community, because of his work converting young people to Christianity. He also alleges his life is at risk because he refused to become the next king of his family's traditional community. [4] The determinative issue for the RPD was credibility. The panel found that the Appellants had delayed leaving Nigeria when they had valid visas available; that there were significant omissions in Mr. XXXX Basis of Claim narrative; and that the alleged kingship threat was not consistent with the objective country documentation. [5] The Appellants submit that the RPD breached procedural fairness, drew unreasonable conclusions, and was unreasonable in its assessment of the evidence. In particular, they take issue with the panel's credibility assessment in relation to the threats alleged from the Muslim community, its failure to take judicial notice of a "full-blown jihad afoot in Nigeria," and its questioning regarding internal flight alternatives. The Appellants are not challenging the RPD's findings with respect to the kingship threat. ROLE OF THE RAD [6] Counsel made confusing submissions with respect to standard of review, first arguing that the standard is reasonableness when applied to the decision as a whole and correctness when applied to the interpretation of the law, and later arguing that the standard is correctness. In any event, it is now settled law that the RAD reviews decisions of the RPD on a standard of correctness, after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which may attract deference in particular cases. 3 In this case, the RPD had no advantage. I have therefore applied a correctness standard. NEW EVIDENCE AND ORAL HEARING New evidence partially accepted; hearing not required [7] The Appellants seek to admit the following articles into evidence on appeal: i. The Cable, "Miyetti Allah: We lost 1000 Advertisement people, two million cows to gang backed by Benue govt," 14 January 2018 ii. Sahara Reporters, "Miyetti Allah Is A Privileged Terrorist Organization, Rights Activist Slams Buhari Over Handling of Fulani Herdsmen Killings," 18 January 2018 iii. Newsflash 247, "Buhari is the Sponsor of Fulani Jihadist's Invasion - Gen Ty Danjuma Explodes," 25 October 2018 iv. The Igbo Revolution, "Where are the Herdsman?" 13 February 2019 v. Chuka Udeze, "Fulani Herdsmen Attack in Enugu, Benue and Lagos Nigeria - Here's All You Need To Know," Undated vi. CBN.com, "Nigerian Christians Under Siege: Attacks Claim 120 Lives Since February," 17 March 2019 [8] The RAD can only accept evidence that arose after the RPD decision, or was not reasonably available at the time of the decision, or could not reasonably have been expected to be presented to the RPD before it made its decision.4 If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.5 [9] Four of the articles pre-date the decision of the RPD, and are therefore inadmissible on appeal.6 One is undated, and for this reason is also rejected.7 I am not persuaded by counsel's submission that the Appellants were too intimidated to present this evidence to the RPD. The Appellants were represented by counsel before the RPD, and have not made a complaint about her competence.8 Nor have the Appellants provided any psychological evidence to support their assertion. [10] Counsel's further argument that the evidence was "freely available to the [RPD] as resources" is also misplaced. These articles were not in the National Documentation Package, nor were they presented by RPD counsel. There is no obligation on the part of the RPD to consult evidence outside of the NDP which is not disclosed by the claimants. [11] Finally, the Appellants' counsel's reliance on Dimgba is also misplaced.9 In that case, the Court held that the Applicant could adduce extrinsic evidence on judicial review to respond to the Minister's allegation of fraud in her skilled worker application. First, the context is distinguishable; the admission of new evidence at the RAD is governed by IRPA s. 110(4). Second, it is not clear which fraud these articles are meant to address; counsel's submissions on this point were vague. [12] The March 2019 article from the Christian Broadcasting Network (CBN)10 post-dates the decision. While I have concerns about the impartiality of the source, I am prepared to accept the underlying events it speaks to as credible, noting it cites other sources, including the BBC. While the article's discussion of violence against Christians in Kaduna State by Fulani herdsmen is not particularly relevant to the determinative issue on appeal, I accept that the issue of violence against Christians is broadly relevant to the claim. It is therefore accepted into evidence. [13] The RAD can only hold a hearing if there is new evidence that raises a serious issue with respect to the Appellants' credibility, which is central to the decision in the claim, and, if accepted, would justify accepting or rejecting the claim.11 In this case, the Appellants have not requested a hearing, nor is one required, as the new evidence does not raise any issues regarding the Appellants' credibility. ANALYSIS [14] Credibility remains the determinative issue in this appeal. For this reason, it is not necessary for me to address the Appellants' submissions regarding judicial notice and internal flight alternative. Before turning to credibility, I will first address counsel's arguments on alleged breaches of procedural fairness. a. Breach of procedural fairness not established [15] Counsel submits that the RPD violated the Appellants' rights to procedural fairness by prejudging the claim; engaging in rigid posturing, mockery, and stereotyping; questioning in a brusque and intimidating manner; and by failing to allow Mr. XXXX to explain himself. The test for a reasonable apprehension of bias is well settled in the case law.12 It asks whether an informed person - viewing the matter realistically and practically, and having thought the matter through - would conclude that the decision-maker is more likely than not to decide unfairly.13 The test takes into account the presumption of impartiality, which is equally applicable to administrative tribunals.14 A real likelihood of bias must be demonstrated: an allegation that a decision-maker demonstrated bias will require clear evidence that a predetermination did in fact occur. 15 An allegation cannot rest on "mere suspicion, pure conjecture or mere impressions" and it "must be supported by material evidence."16 [16] In this case, no such evidence was provided. A review of the oral recording of the hearing and the transcript shows that the RPD was respectful. While the panel did ask Mr. XXXX multiple questions at certain points, which was not ideal, this is not evidence of bias or intimidating conduct. The Appellants were represented by counsel before the RPD, who did not object at any point in the proceeding. They have not made any complaints about her competence. Contrary to counsel's assertion, the panel's use of the word "um" throughout the hearing is not evidence of mockery, but rather just a mannerism of speech. Nor am I persuaded that the disagreement between the panel and RPD counsel as to whether to adjourn is evidence of intimidating conduct. The panel expected counsel to be prepared to question her clients at the first sitting; when she insisted she was too tired, they eventually set a date for a second sitting. While the panel was clearly frustrated, this is not evidence of bias. [17] I am also not persuaded by counsel's submission that the panel engaged in stereotyping against those with mental health issues and ignored the Appellants' psychological condition. Indeed, no medical or psychological evidence has been tendered to support counsel's assertion that the Appellants were suffering from any psychological impairments. Counsel before the RPD did not request any accommodations, nor did she object at any point to the panel's questioning. This allegation is unfounded. [18] Finally, the panel did not demonstrate bias in drawing negative inferences based on significant omissions and inconsistencies, as set out below. b. Threats from Muslim community not credibly established [19] The RPD did not err in determining the threats from the Muslim community had not been credibly established. Contrary to the Appellants' submission that Mr. XXXX testimony was straightforward and consistent with his narrative, the RPD identified important omissions and inconsistencies that went to the heart of the allegations. These included the location of persecution, the identity of the agents of persecution, and the response of police to the threats. The panel was correct to draw a negative inference on this basis.17 [20] Mr. XXXX indicated for the first time in testimony that the threats took place in the small town of Ibafo. This detail was entirely absent from the Appellants' Basis of Claim forms, and was also inconsistent with their Schedule A address histories. I agree with the RPD that Mr. XXXX explanation that he simply listed his mailing address, which was his family home in Lagos, does not adequately explain the omission. As the panel noted, while this might be a reasonable error in the forms filled out at the Port of Entry, such as the Schedule A, the location of alleged persecution should have been disclosed in the Basis of Claim, at the very least as an amendment. The Appellants were represented by counsel before the RPD, and have not made any complaints about her competence. [21] In addition, I note that the Ibafo address is inconsistent with the Appellants' prior study and work permit applications to Canada, filed in XXXX 2016. These application forms clearly ask for both residential and mailing addresses; the Appellants list the Lagos address for both.18 This further undermines their explanation and calls into question the credibility of their allegations regarding the Muslim community in Ibafo. [22] With respect to the identity of the agents of persecution, the threats are simply described as coming from the "Muslim community" in the narrative. Mr. XXXX indicated for the first time in testimony that the threats in fact came from the "Mieti Allah Group" and that the threatening notes were received on the group's letterhead. This is a significant omission. [23] The Appellants also argue that the RPD mischaracterized Mr. XXXX testimony as to why he no longer had the threat letters by indicating in its reasons that he testified they were "not nice souvenirs,"19 and that the decision should be overturned on this basis alone. The relevant portion of the transcript is as follows: Member: Do you have copies of those letters or notes? Mr. XXXX: What? Ah, now we don't have -- I -- I don't have, ah, any one of those here because, ah, we never -- we just -- it's not something that's (INDISCERNIBLE) keeping as a memorial. And we did not -- apart from showing it to the Police and they never took any action. So if the Police never took action on what we are presented as, ah, evidence of a threat to our life, who are we keeping it -- what are we now going to use the note for? You know, so we -- when we are packing, ah, trying to move our so those things are not things and, ah things that we feel are not -- it's only to us in the discarded.20 [24] While the term "souvenir" was used in the member's reasons rather than "memorial," this is not an inaccurate characterization of the testimony. Although the RPD failed to mention that Mr. XXXX felt he would no longer need the letters since the police had no use for them, this was not fatal. Had this lack of corroborating evidence been the sole basis for the RPD's negative credibility finding, this would have been an error.21 However, contrary to the Appellants' submission, this was not the case here. In addition to discrepancies regarding the location of persecution and the nature of the agents of persecution, as noted above, Mr. XXXX also provided inconsistent testimony regarding the police response to the threats. The real issue here is that there were significant concerns about the Appellants' credibility; the letters could have potentially offered corroboration to offset these concerns. [25] In his narrative, Mr. XXXX indicated that when he reported the threatening letters to the police, they simply told him to stop preaching in the area. In testimony, Mr. XXXX explained that the police initially advised him not to worry, and that they would investigate the threats; then at follow-up visits, informed him his agents of persecution were too powerful and their hands were tied.22 Again, this is a material inconsistency going to the heart of the claim. [26] Counsel also submits that the threatening incidents alleged by the Appellants, including having their home broken into and being run off the road three times, could not be mere coincidence, and that the only plausible explanation is that the Muslim persecutors were to blame. In support of this argument, he cites James Bond. The argument is not persuasive. The RPD did not engage in speculation in finding that there could be other plausible explanations for these incidents, such as a robbery or road rage. The Appellants did not establish, on a balance of probabilities, that the Muslim community or indeed "Mieti" were behind these incidents. [27] Based on the foregoing, I find that the RPD did not err in its credibility findings and agree that the Appellants have not met their burden to establish their claim. CONCLUSION [28] For the reasons set out above, the RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Caitlin Maxwell" Caitlin Maxwell February 26, 2020 Date 1 Exhibit RPD-1, RPD Record, Appellants' Nigerian passports at pp. 172, 195, 220, 237. 2 Canada (MCI) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, para. 103. 3 Ibid., at para. 70. 4 Immigration and Refugee Protection Act (S.C. 2001, c. 27), s. 110(4). 5 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96, at para. 74. 6 Exhibit P-2, Appellants' Record, The Cable, "Miyetti Allah: We lost 1000 Advertisement people, two million cows to gang backed by Benue govt," 14 January 2018, p. 230; Sahara Reporters, "Miyetti Allah Is A Privileged Terrorist Organization, Rights Activist Slams Buhari Over Handling Of Fulani Herdsmen Killings" 18 January 2018, p. 226; Newsflash 247, "Buhari is the Sponsor of Fulani Jihadist's Invasion - Gen Ty Danjuma Explodes," 25 October 2018, p. 222; The Igbo Revolution, "Where are the Herdsman?" 13 February 2019, p. 239. 7 Exhibit P-2, Appellants' Record, Chuka Udeze, "Fulani Herdsmen Attack in Enugu, Benue and Lagos Nigeria - Here's All You Need To Know" (Undated), p. 233. 8 Abuzeid v. Canada (Citizenship and Immigration), 2018 FC 34, at para. 21. 9 Dimgba v. Canada (Citizenship and Immigration), 2018 FC 14. 10 Exhibit P-2, Appellants' Record, CBN.com, "Nigerian Christians Under Siege: Attacks Claim 120 Lives Since February," 17 March 2019, p. 224. 11 Immigration and Refugee Protection Act (S.C. 2001, c. 27), s. 110(6). 12 See, e.g., X (Re), 2014 CanLII 94250 (CA IRB), at paras. 18-31; Re Satiacum and M.E.I., [1985] 2 FC 430, 1985 CanLII 3128 (FCA), at para 8; Committee for Justice & Liberty et al. v. National Energy Board et al. [1978] 1 S.C.R. 369, 1976 CanLII 2 (SCC). 13 Satiacum, supra, at para. 8, citing the dissenting opinion of de Grandpré J. in Committee for Justice & Liberty et al. v. National Energy Board et al. 14 Fehr v. Canada (N.P.B.) (1995) 93 F.T.R. 161, at para. 22; R. v. S. (R.D.), 1997 CanLII 324 (SCC), at para. 92. 15 Arsenault-Cameron v. Prince Edward Island, [1999] 3 SCR 851, 1999 CanLII 641 (SCC), at para. 2; Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45 (CanLII), at para. 76. 16 Ali v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1034 (CanLII). 17 Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, at para. 12; Khalifa v. Canada (Minister of Citizenship and Immigration), 2004 FC 369, at para. 18; Guzun v. Canada (Citizenship and Immigration), 2011 FC 1324, at para. 18. 18 Exhibit RPD-1, RPD Record, Applications for Work and Study Permits Made Outside of Canada, at pp. 321, 328, 338, and 435. 19 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at para. 12. 20 Exhibit P-2, Appellants' Record, Transcript, pp. 44-45. 21 Ndjavera v. Canada (Citizenship and Immigration), 2013 FC 452, at para. 6. 22 Exhibit P-2, Appellants' Record, Transcript, pp. 53-54. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-05082 MB9-05083 / MB9-05084 / MB9-05085 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français