MB9-16597

RAD File / Dossier de la SAR : MB9-16597 MB9-16598 / MB9-16599 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 13, 2019 Date de la décision Panel Joel Bousfield Tribunal Counsel for the persons who are the subject of the appeal Jeffrey Platt Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the decision in the appeals of XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The appellants are citizens of Nigeria from Lagos. They appeal a Refugee Protection Division (RPD) decision dated June 28, 2019, rejecting their claims for refugee protection. They are requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that they are Convention refugees or persons in need of protection. In the alternative, they request that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. They have requested to submit new evidence. DETERMINATION [2] The appeal is allowed. The RAD finds the RPD's decision incorrect and therefore sets it aside. However, as the RAD finds that it cannot confirm the RPD's decision or substitute its own decision under subsections 111(1)(a) or (b) the Immigration and Refugee Protection Act (IRPA)1 without hearing evidence that was presented to the RPD, it refers the matter back to the RPD under subsection 111(1)(c) of the IRPA for re-determination by a differently constituted panel. BACKGROUND Basis of Claim [3] The appellants fear domestic violence, female genital mutilation (FGM), harmful tribal rituals and/or other serious harm at the hands of the principal appellant's husband's extended family. The rest of the central allegations in the case are summarized in paragraphs [3]-[7] of the RPD decision. RPD Decision [4] The RPD rejected the claims because it found the central allegations not credible. REQUEST FOR ADMISSION OF NEW EVIDENCE DECLINED [5] The appellants requested that the RAD admit a corroborating affidavit of facts from the principal appellant's husband that post-dated the RPD decision.2 As the RAD has allowed the appeal based on the evidence that was before the RPD, the RAD declines to address the admissibility of this evidence because this request is moot. The affidavit is therefore not admitted and was not considered in deciding this appeal. ANALYSIS Determinative Issue [6] The determinative issue in this appeal is whether the RPD erred in assessing the appellants' credibility. For the following reasons, the RAD finds that it did. [7] In rendering this decision, the RAD has considered Chairperson's Guideline 4.3 The RAD has also done an independent assessment of the record. The RAD is reviewing the RPD decision on a standard of correctness. The RAD has not considered the written Basis of Claim form (BOC) narrative4 submitted with the appeal record as it is not in the RPD record but was available before the RPD rejected the claim and the appellants have not submitted an explanation as to why it was not provided by then. BOC Omissions [8] The RPD drew a negative inference because the principal appellant omitted to mention in her BOC form that she is afraid that the male minor appellant will have to undergo harmful tribal rituals associated with his initiation into the family cult. When confronted, the appellant explained that she told her lawyer about this fear but her lawyer told her that she only needed to write about her fear concerning FGM of the female minor claimant and that she would be allowed to talk about her fear for her son at the hearing. The RPD refused to accept this explanation as reasonable because the harmful tribal rituals concerning her son are a crucial aspect of the central allegations. The appellants argue that the RPD should not have drawn this negative inference because her fear of these harmful tribal rituals is mentioned in her BOC. The RAD disagrees with this argument. This fear is not mentioned in the principal appellant's BOC and the RAD concurs with the RPD that the principal appellant's explanation for its omission is not reasonable. [9] The RPD drew another negative inference because the principal appellant's BOC also fails to mention several incidents of prior persecution before the XXXX 2014 attack. When asked to explain, the principal appellant testified that her lawyer only pinpointed the XXXX 2014 attack. The appellant argues that the RPD should not have drawn this negative inference because the prior abusive incidents are mentioned in her BOC. The RAD also disagrees with this argument. These incidents are not mentioned in the principal appellant's BOC and her explanation for their omission is not reasonable. [10] However, the RAD finds that these BOC omissions are not determinative of the appeal because the RPD otherwise made critical credibility assessment errors and the negative inferences that these BOC omissions support are not sufficient to counterweigh the other reasons set out below that the RAD has to disagree with the RPD about the appellants' overall credibility. Several supporting documents dismissed based on one BOC omission [11] The RPD proceeded to use the first BOC omission regarding the principal appellant's fear for her son as its sole reason for rejecting the credibility of several of the appellants' supporting documents - an affidavit from the principal appellant's sister, an affidavit from her nephew, a letter from the families, and a police investigation report.5 [12] While the appellants did not advance an argument taking issue with this particular finding, the RAD still finds it wrong. The RAD has listened to an audiotape of the hearing. The RPD did not confront the principal appellant about the discrepancy between her BOC which does not mention her fear for her son and all of these documents which do mention her fear for him. The RPD erred in failing to do so. Medical report dismissed based on unconfronted microscopic inconsistencies [13] The RPD drew a negative inference about the appellants' credibility and dismissed a medical report6 because of contradictions between it and the police investigation report and her oral testimony. These contradictions are discussed in paragraphs [29] and [30] of the RPD decision. [14] The appellants argue that the RPD should not have drawn this inference because the contradictions were minor. The RAD agrees. Having listened to an audiotape of the hearing, the RAD finds that the RPD did not confront the appellant with these inconsistencies. The RPD erred in failing to do so. Moreover, the RAD finds these inconsistencies concern microscopic details which would not support a correct negative credibility inference anyway. The rest of the evidence [15] The affirmed evidence of refugee claimants is presumed to be true unless it is internally inconsistent, inherently implausible, or inconsistent with the documentary evidence on country conditions.7 Having reviewed the record and assessed it independently including an audiotape of the hearing, the RAD finds no such issues with the rest of the appellants' evidence. The RAD also notes that the principal appellant delivered her testimony with frequent and persuasive displays of spontaneous emotion. Furthermore, in addition to those documents discussed above, the RAD finds that the central allegations are supported by several further corroborating documents including affidavits from friends,8 outpatient treatment cards,9 and a police investigation request.10 CONCLUSION [16] In light of the quality of the rest of the evidence and the errors that the RPD made above, the RAD finds that the appellants' BOC omissions do not provide a sufficient foundation for a negative credibility determination. Therefore, as the RAD has found that the RPD made critical errors in assessing the credibility of the appellant's evidence, the RAD is allowing the appeal and setting aside the RPD's decision. [17] However, as the appellants are fleeing non-state agents of harm, the RAD finds that it cannot confirm the RPD's decision or substitute its own decision as to whether or not the appellants are Convention refugees or persons in need of protection without hearing evidence as to whether the appellants have a viable internal flight alternative, an issue which was not sufficiently canvassed during the hearing at the RPD. [18] The RAD therefore refers the matter back to the RPD under subsection 111(1)(c) of the IRPA for re-determination by a differently constituted panel. (signed) "Joel Bousfield" Joel Bousfield December 13, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 P-3, Appellants Submissions, Letter from Appellant's Counsel (September 16, 2019). 3 Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993; Update: November 1996, as continued in effect by the Chairperson on June 28, 2002, pursuant section 159(1)(h) of the Immigration and Refugee Protection Act. 4 Exhibit P-2, Appellant Record, at pp. 25 and 26. 5 Exhibit RPD-1, RPD Record, Exhibit 2.4, at pp. 185, 186, 188, 189, 195, and 196. 6 Exhibit RPD-1, RPD Record, Exhibit 2.4, at p. 197. 7Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.). 8 Exhibit RPD-1, RPD Record, Exhibit 2.4, at pp. 191-192. 9 Ibid., pp. 198-201. 10 Ibid., p. 206. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-16597 MB9-16598 / MB9-16599 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