TB6-05092

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 : TB6-05092 TB6-05093 TB6-05094 TB6-05095 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXXa.k.aXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.aXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 15, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "principal Appellant") and her minor children, XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX (the "minor Appellants") are citizens of Nigeria. They appeal a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Appellants have submitted new evidence in this appeal and request an oral hearing. The Appellants asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellants are persons in need of protection. In the alternative, the Appellants request that the RAD refer the matter back to the RPD for reconsideration by a differently constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellants alleged before the RPD that they have been accused of being witches by the family of the Appellant's husband (father of the minor Appellants). They allege they face serious mistreatment in Nigeria, including female genital mutilation of the females, and that they cannot obtain the protection of police. [4] The Appellants' refugee claim was heard on March 8, 2016. In a decision of March 22, 2016, the RPD rejected the claim, finding that the Appellants were not credible. The Appellants submit that the RPD erred in its findings on credibility and in its treatment of their documentary evidence. ROLE OF THE RAD [5] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [6] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that 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 rejection. [8] The Appellants have submitted the following documents as new evidence in this appeal: (a) An affidavit from the principal Appellant's husband, dated XXXX XXXX, 2016, together with a police Letter of Invitation (for interview), dated XXXX XXXX, 2016; and (b) A medical letter of support from the Appellant's MD, dated XXXX XXXX, 2016. [9] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). The RAD finds that, in addition to the statutory requirements, further analysis of the evidence is required before the RAD can accept the proposed new evidence. In that regard, the RAD is guided by the analysis as set out in Raza.2 Although Raza is not entirely appropriate for the purpose of assessing evidence submitted to the RAD, the RAD is guided by the Federal Court of Appeal decision in Singh.3 Accordingly, the RAD has adapted the analysis in Raza to the assessment of evidence submitted to the RAD. [10] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim.4 (b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.5 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.6 (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,7 or that it proves a fact that was unknown to him at the time of the hearing?8 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.9 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza, the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [11] If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the document. [12] The factors need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.10 [13] If the Appellants' proposed new evidence meets the test in Section 110(4), as described above, and is new, credible and relevant, then it is admissible before the RAD. Affidavit and Police Letter of Invitation [14] The Appellants submit that these documents meet the requirements for admission as new evidence in this appeal because they were not available at the time of the hearing. They argue that the Letter of Invitation was received only two days prior to the rejection of the claim and that they were unaware of it. They further argue that the affidavit explains the circumstances around the document and that the Letter of Invitation is relevant because it corroborates her assertions that she is in fact in danger of persecution in Nigeria and that the police are in fact looking for her. [15] The RAD finds that this document appears to meet the test in Section 110(4) in that it was not reasonably available prior to the rejection of the claim. The RAD finds that it does not meet the Raza criteria in that the document suffers from a lack of credibility. The RAD notes that the evidence in the National Documentation Package (NDP) for Nigeria states that the police logo displayed on police correspondence is the same across the country.11 The RAD notes that the Letter of Invitation bears a letterhead which is quite different from the examples provided in the NDP. In particular, the RAD notes that the examples provided, and as also described in the NDP, the address of the police station and telegraphic address should be part of the letterhead. The RAD notes, however, that the Letter of Invitation submitted does not include that information in the letterhead but rather includes it in the footer of the document. The RAD also notes that the logo of the police on the examples provided does not include an oak leaf border. [16] Furthermore, the RAD notes that the Letter of Invitation is purported to be from the Force Intelligence Bureau and indicates that they are conducting an undercover investigation. The term "undercover investigation" infers a clandestine investigation which is inconsistent with the Appellants' allegations that they have been identified as witches to the police and that the police are actively pursuing them. The Appellant alleges that the allegations that they were witches were made to the police in XXXX 2015 and that, at that time, the police were provided with their photographs. She alleges that her husband was told by the police officer investigating the matter as well as their superior officer that she and her children would be arrested for witchcraft. Furthermore, the RAD notes that there is nothing in the letter which indicates that the principal Appellant or minor Appellants are alleged to be the subject of the inquiry. [17] In addition, the RAD cannot ignore the convenient timing of this document. The RAD notes that the Appellant alleged that she and her children were being pursued by the police and that she believed that a warrant was issued for her and her children's arrest as early as XXXX 2015. The Appellant was questioned with regard to failing to provide evidence of the police interest in her at the hearing, and the RPD drew an adverse inference in its Reasons from the failure to tender that evidence for her RPD hearing. The RAD finds it too coincidental that the police would suddenly issue this document after the rejection of the claim-nearly seven months into the alleged investigation-particularly when the Appellants allege that the police declared their intent to arrest them as early as XXXX 2015. [18] The RAD finds that, in light of the foregoing and in the context of evidence in the NDP concerning the prevalence and accessibility of fraudulent documents in Nigeria, the Letter of Invitation cannot be relied upon as a credible document, and, as such, it is not admitted as evidence in this appeal. [19] The RAD notes that, in addition to providing the circumstances of the Letter of Invitation, the affidavit of the principal Appellant's husband also provides additional information with regard to the agents of persecution reach throughout the country. The RAD notes that this evidence clearly addresses a concern raised by the RPD in its Reasons with regard to the principal Appellant's failure to provide details to corroborate her allegations that, because her husband's family lives in major cities throughout Nigeria, she and her children are at risk everywhere in Nigeria. The RAD notes that Appellants do not provide an argument why this portion of the affidavit meets the statutory and Raza requirements to be accepted as evidence in this appeal. The RAD finds the evidence which the Appellants are attempting to adduce did not arise after the rejection of the Appellants' refugee claim. The RAD finds that the Appellants could reasonably have been expected to present this evidence to the RPD. [20] The RAD further finds there is a requirement on the Appellant to provide an explanation about why the proposed new evidence meets the statutory requirement. The Court has held that, if an applicant believes that the evidence meets the requirements of paragraph 113(a), it is up to the applicant to provide explanations as to why it conforms to the statutory requirement.12 For example, if the evidence pre-dates the RPD's decision, it is the duty of the person submitting the new evidence to provide why it had not been placed in front of the RPD under the express statutory requirements under paragraph 113(a).13 [21] Under a Pre-Removal Risk Assessment (PRRA), the Federal Court has held that it is the applicant's obligation to provide an explanation as to why the evidence could not have been presented to the RPD. Evidence can be rejected for this reason, and this is in conformity with the requirements set out in the IRPA and found in Raza.14 [22] Similarly, the Refugee Appeal Division Rules15 (RAD Rules) provide that the Appellant's Record must contain: (i) a written statement indicating whether the Appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, and (ii) a memorandum that includes full and detailed submissions regarding how any documentary evidence that the Appellant wants to rely on in the appeal meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the Appellant. [23] The RAD has considered the recent Federal Court decision in Singh16 and finds that there is nothing in the decision which takes away the burden of the Appellant to provide an explanation of how the proposed new evidence meets the test set out in s. 110(4) of the IRPA. [24] The RAD finds that the Appellant has provided an insufficient explanation regarding why it was not reasonable for them to tender that evidence prior to the rejection of their claim. For these reasons, the Appellants' proposed new evidence is not admissible in this appeal. [25] As such, this document is not admitted as new evidence in this appeal. Medical Letter [26] The Appellant tendered a medical letter from her family doctor in which her doctor states that the principal Appellant's depression, anxiety and related symptoms are as a result of her uncertain immigration status. In the letter dated, XXXX XXXX, 2016, the principal Appellant's doctor states that the principal Appellant expressed suicidal ideation following the rejection of her refugee claim. The Appellants submit that the medical letter ought to be admitted as evidence in this appeal because it affirms the psychological report of Dr. XXXX that the principal Appellant would suffer greatly if she returns to Nigeria. They further submit that the report offers new information in that she is exhibiting suicidal ideation. [27] The RAD is not persuaded by the Appellant's argument. The RAD finds that, regardless of the date of this document, the bulk of the details with regard to the antecedents relating to the principal Appellant's medical health predated the hearing. The Appellants have not provided a sufficient explanation as to why they could not reasonably have tendered that evidence at their RPD hearing. Furthermore, insofar as it "affirms" the evidence provided in Dr. XXXX report already in evidence, the RAD finds that this evidence is not new. [28] In addition, the RAD finds that the fact that the principal Appellant is suffering from suicidal ideation since the rejection of her claim does not provide evidence which is relevant to the allegations. [29] Accordingly, this proposed evidence is not admitted as new evidence in this appeal. Oral Hearing [30] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the person who is the subject of the appeal. The person who is the subject of the appeal may, pursuant to Section 110(4), 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 rejection." [31] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [32] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,17 in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [33] The RAD finds that, as there is no new evidence admitted in this appeal, the RAD must proceed without a hearing. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [34] The Appellants submit that the RPD erred by impugning the credibility of the principal Appellant when it relied heavily on speculative reasoning and conjecture. They further argue that the RPD failed to conduct a principled analysis of the evidence that directly contradicts its conclusions and derived findings from its own skepticism rather than reasoned analysis of the evidence. They argue that all of the RPD's credibility findings fail to demonstrate a lack of credibility. They further argue that the RPD failed to analyze how the principal Appellant's testimony was affected by her psychological condition and in the context of the Chairperson's Gender Guidelines.18 Principal Appellant's Testimony regarding her Husband's Interaction with Police [35] The Appellants submit that the RPD relied on "peripheral or tangential information to make sweeping negative credibility findings" in relation to the principal Appellant's interaction with police. Discrepancy in Dates [36] In particular, the Appellants submit that the RPD's adverse credibility finding drawn from a perceived inconsistency between the principal Appellant's testimony and the Basis of Claim (BoC) document about when he went to the police was based on a minor difference in date. They argue that the timeline was extremely close, and it is not unreasonable to believe that the principal Appellant became confused. Although she initially incorrectly identified the date as XXXX XXXX, 2015 instead of the actual date of XXXX XXXX, 2015, they argue that the sequence of when her husband went to the police was consistent with the other events. More importantly, they argue that the principal Appellant later corrected the error in her testimony. [37] The RAD is not persuaded by the principal Appellant's argument in this regard. As noted by the RPD, the RAD finds that, while it is only one day difference, it is nonetheless a significant discrepancy. The events alleged by the principal Appellant over the course of these days are the centrepiece of her allegations of persecution. The RAD notes that the principal Appellant alleged in her BoC narrative that, on XXXX XXXX, 2015, her uncle XXXX, passed away and that she was blamed for his death. On XXXX XXXX, 2015, her uncle and the chief attended her home and told her husband that she and the children would have to undergo rituals to be cleansed. It was not until after the chief and her uncle met with her husband that her husband went to two different police stations. After its own review of the testimony in the hearing, the RAD finds that the principal Appellant was questioned at length on this issue and repeatedly stated that her husband went to the police on XXXX XXXX. Rather, the RAD finds that the principal Appellant was inconsistent in her testimony about when she learned of the alleged threats against her and the minor Appellants. [38] The RAD finds that the RPD gave the principal Appellant every opportunity to clarify the situation and agree with the Appellants' counsel to allow her to testify in English if she wished. The principal Appellant declined to testify in English. The RAD finds, however, that the principal Appellant did not correct the date discrepancy until the discrepancy was pointed out to her in the hearing after previously providing the incorrect date several times. The RAD again notes that the Appellants have alleged that the events of these two days are the reason that they have claimed refugee protection in Canada. The RAD finds it reasonable to expect that the principal Appellant could recall the events of these two seminal dates without difficulty. The RAD finds that the RPD did not error in this regard and further finds that this inconsistency in testimony undermines the credibility of the allegations. Pursuit by Police [39] The Appellants submit that the RPD erred when it impugned the credibility of the principal Appellant with respect to her testimony concerning an arrest warrant. They argue that the principal Appellant was abundantly clear in her testimony which did not waiver that she was uncertain about whether a warrant for her arrest had been issued. They argue that it was an error for the RPD to suggest that her testimony was inconsistent on this issue. [40] The RAD is not persuaded by the Appellants' argument. The RAD finds, after its own review of the evidence, that the RPD did not err in this regard. The RAD finds that the principal Appellant's testimony was very consistent that the police were after her and the minor Appellants and that they would be arrested. She testified that she had been charged with witchcraft and believed that the police had issued a warrant for her and the minor Appellants. The RAD finds that the principal Appellant implied in her testimony that there was no other conclusion to draw from the facts given that she was alleged of witchcraft and the police had demanded that her husband submit their passport photographs to them. [41] The RAD notes, from the recording of the testimony of the hearing, that the principal Appellant maintained her testimony that the police were searching for her and the minor Appellants. The RAD notes that the principal Appellant did not waiver from this testimony until she was questioned in a leading way by her counsel. The RAD notes that the principal Appellant was questioned by the RPD in relation to the police pursuit of her regarding why the police had not arrested her husband in light of the evidence in the NDP which states that police will arrest family members to force the wanted person to turn themselves in to police. The principal Appellant testified that actions of the police were subject to the gravity of the offence. Counsel for the Appellants immediately interjected and told the Appellant, "I think you're just speculating now; you now so....." After a recess, the Appellant was again questioned by her counsel and was asked if she was certain about being charged with witchcraft or if she was just speculating. It was at that time that the principal Appellant adjusted her testimony and stated that she was just speculating. [42] The RAD finds that the Appellants' arguments that the principal Appellant's testimony evolved only after the leading questioning of her counsel at the hearing and that her testimony concerning being charged with witchcraft was inconsistent. The RAD finds that the RPD did not err in this regard and further finds that the internal inconsistency in the principal Appellant's testimony and the inconsistency between her testimony and the BoC narrative undermine the Appellants' allegations that they are wanted by the police. [43] The RAD further notes that the RPD drew a further adverse credibility finding uncontested by the Appellants. The RAD notes that the RPD drew an adverse credibility finding based on the fact that the Appellants have not supported their allegations that the police are pursuing them. The RPD noted that the Appellants have not tendered any documentary evidence to support the allegations in this regard. The RPD also noted that the affidavit19 of the husband, which was tendered in support of their claims, made no reference to the principal Appellant's allegations that the police were pursuing her and the minor Appellants on charges of witchcraft. The RAD notes that the principal Appellant has alleged in her BoC and has testified that her husband was told by the police that they were going to arrest the Appellants on charges of witchcraft. The RAD finds it reasonable to expect that, if such was the case, the husband's affidavit would reflect those allegations, particularly given the seriousness of the allegations and their importance to the Appellants' risk of persecution. The RAD agrees with the RPD and finds that the absence of corroborating documentary evidence in this regard further undermines the Appellants' allegation that they are wanted by the police in Nigeria because they are perceived to have engaged in witchcraft. The RAD further finds that the absence of this essential aspect of the allegations not only undermines the allegations that the Appellants are being pursued by the police but also undermines the reliability of the affidavit of the husband. Principal Appellant's Testimony Concerning the Reach of the Agents of Persecution [44] The RPD drew an adverse credibility finding based on the principal Appellant's testimony concerning the influence and reach of her husband's family, whom she alleges are the agents of persecution. The RPD noted that the principal Appellant has alleged in her BoC that her husband has family members that are "Judges, Bankers, Businesspeople ... etc."20 who live in various cities in Nigeria and will seek to harm her if she returns and ensure the rituals take place and turn her over to the police. However, when asked for specifics of whom she was afraid of and in which cities of Nigeria, she indicated that she did not know. The RPD found that the principal Appellant's testimony was exaggerated and lacking in credibility. [45] The Appellants submit that it was unreasonable for the RPD to expect the principal Appellant to recite the names of the extended family members of her husband who, although they had allegiance to her primary agents of persecution, were not directly involved in the persecution faced by the Appellants. The Appellants further submit that this information was peripheral to the core of the Appellants' claim. [46] The RAD is not persuaded by the Appellants' argument in this regard. Contrary to the Appellants' argument that these individuals were not directly related to the alleged persecution, the RAD notes that the principal Appellant has alleged that all of these individuals were informed of the allegations of witchcraft and were told to watch out for them throughout Nigeria and that they all wanted the Appellants to go through the rituals. The RAD also notes that the principal Appellant alleged that they held positions of power and influence and that they feared them. As such, the RAD finds that, in light of the allegation, they play a larger role in the alleged persecution than asserted by the Appellants in their pleadings. In light of this, the RAD finds this information was not peripheral but integral to their alleged risk throughout Nigeria. The RAD further finds that the RPD did not make its findings based on the principal Appellant's inability to name every one of her husband's extended family but rather because of the vagueness of her testimony in relation to these allegations. The RAD finds that, given the Appellants' allegations that they feared these individuals and were prevented from going anywhere in Nigeria due to their power and influence throughout Nigeria, it is reasonable to expect the principal Appellant would be able to provide greater details on who these individuals were. The RAD agrees with the RPD and finds that the principal Appellant's testimony in this regard lacked details that she ought to have provided under the circumstances. The RAD further agrees with the RPD that this undermines the principal Appellant's allegations that her husband's family has the power and influence throughout Nigeria and that they are seeking to harm the Appellants. Lack of Police Interest in Husband [47] The RPD drew an adverse credibility finding based on the principal Appellant's testimony that her husband has not experienced any difficulty from the police. The RPD rejected the principal Appellant's explanation that her husband was exonerated by the oracle. The RPD noted the Response to Information Request (RIR) which states that family members of wanted persons are, in many cases, held by police in order to force the surrender of the wanted persons.21 The RPD reasoned that the principal Appellant's explanation that the exoneration by an oracle would protect her husband from the police, when it is her belief that police all over Nigeria would want them, is unreasonable given the gravity of the allegations. [48] The Appellants submit that the RPD's finding in this regard is not reasonable because the documentary evidence it relies upon does not state conclusively that the police always take this action. They argue that the RPD essentially speculated that all police would take such action in all cases. The Appellants argue that the RPD was wrong to make such a finding in light of the documentary evidence from United States Department of State, Country Reports on Human Rights which states that there were no reports of such detentions in 2006, 2007 and 2008. [49] The RAD is not persuaded by the Appellant's argument. The RAD notes that the Appellants cite Response to Information Request (RIR) NGA102904.E, which they state is item 10.1 of the NDP in the record. However, item 10.1 of the NDP in the record is RIR NGA105249.E. The RIR does not include the quotation cited by the Appellants but does have some references to the 2014 US State Department's Report on Human Rights. The RAD further notes that there is no indication in the RIR that such arrests do not take place. Rather, the RIR is clear that many such arrests do take place. ... In correspondence with the Research Directorate, the National Coordinator of the Network on Police Reform in Nigeria (NOPRIN), a coalition of 46 Nigerian civil society organizations committed to promoting police accountability and respect for human rights (NOPRIN n.d.), stated that NOPRIN is aware of "many" cases in which the Nigerian police detained both family members and friends of wanted persons, including a recent one "in which a man was wanted by the Special Anti-Robbery Squad of the Lagos state police command. In his absence, his sister and her visitor were arrested and detained until he returned home from a journey and voluntarily went to the police station" (ibid. 26 July 2015). ...22 [50] The RAD finds that the documentary evidence does establish that police in Nigeria will in many instances take such action when a wanted person is not located. The RAD notes that the Appellants have alleged that the police have been looking to arrest them since XXXX 2015. In light of their allegations of the power and influence of the agents of persecution and the involvement of the police in looking for them, the RAD finds it is reasonable to expect that the police would employ commonly used tactics to secure the arrest of the Appellants in this circumstance. The RAD agrees with the RPD findings in this regard. Uncontested Credibility Finding [51] The RAD notes that the RPD made a further uncontested adverse credibility finding with regard to the principal Appellant's testimony concerning the relationship between her husband and the person who died. The RAD notes that the Appellants alleged that the death of this individual led to the allegations that she and the minor Appellants were witches. The death of this individual is the keystone of their allegations of risk. However, under questioning of the RPD, the principal Appellant's testimony was inconsistent as to the relationship of this person to her husband. The RAD finds that the principal Appellant's inconstant testimony in this regard undermines the credibility of the principal Appellant's allegations that she was accused of causing the death of her husband's relative and was branded a witch. Treatment of other Supporting Documentary Evidence [52] The RPD found that the Appellants' supporting documentary evidence does not overcome the totality of the adverse credibility findings. The Appellants submit that the RPD failed to conduct an independent assessment of its documentary evidence and relied on circular reasoning to reject vital supporting documents. Psychological Report of Dr. XXXX [53] The RPD found that, while the principal Appellant may be suffering from the symptoms described in the psychological report of Dr. XXXX, it concluded on the basis of its credibility analysis that it was not for the reasons she alleged. [54] The Appellants submit that the report of Dr. XXXX makes it clear that she was suffering from poor concentration and found it difficult to recollect dates, times, names and events. They argue that the RPD failed to properly consider the psychological report in relation to the principal Appellant's testimony even though it was apparent that she was struggling during the hearing. They also argue that, although it was open to the RPD to afford no probative value to a medical report, if that report is founded essentially on the Appellant's story, which was disbelieved. The Appellants argue, however, that there are instances such as in this case where the report is based on clinical observations that can be drawn independently of the Appellant's credibility. [55] The RAD finds that the RPD's treatment of the report was lacking in some respects. The RAD notes that the RPD seems to find that the Appellant was suffering from the symptoms described in the report of Dr. XXXX. As such, it was incumbent on the RPD to assess the impact of those symptoms on her testimony before determining her testimony was not credible. [56] Notwithstanding the error of the RPD, the RAD finds that there is reason not to give significant weight to the report of Dr. XXXX. The RAD has reviewed Dr. XXXX psychological report and acknowledges Dr. XXXX substantial clinical experience. The RAD notes as well the references to the theoretical and clinical literature provided by Dr. XXXX as a context for his conclusions. [57] The RAD finds, however, that Dr. XXXX reaches very serious conclusions as to the principal Appellant's psychological health after only a one-hour interview. The RAD also notes, however, that Dr. XXXX does not make a "clinical diagnosis" but rather provides a "clinical impression" that the principal Appellant satisfies the diagnostic criteria for a person with major XXXX XXXX of moderate severity. [58] Although Dr. XXXX finds that the Appellant provided a credible account of her experiences, the RAD notes that Dr. XXXX did not have the benefit of the evidence and testimony that is before this panel. The RAD finds that Dr. XXXX assessment of the Appellant's credibility cannot usurp the findings of the RAD in this regard. For instance, the RAD notes that Dr. XXXX reports quotes the principal Appellant as stating that "her husband resents that he continues to face danger in Nigeria although she and her children remain in Canada."23 The RAD notes that this statement is directly contradictory to her testimony at the RPD hearing in which she stated that her husband has not experienced any trouble from the police and that he is not at risk in Nigeria because the oracle exonerated him from any wrongdoing. [59] The RAD further notes that Dr. XXXX indicates in his report that concentration and memory problems are common among people who are exposed to traumatic stress and that difficulties are exacerbated under pressure, such as in the high-stakes context of Immigration proceedings. Symptoms may arise in the form of difficulty understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details of the past or an apparent inability to formulate a coherent response. Dr. XXXX further indicates in his report that stress-related cognitive problems can lead to difficulties in providing clear and consistent testimony. He states that if "such problems become evident it will be important to understand that they likely reflect the disorganizing effects of traumatic stress rather than an effort to evade or obfuscate." [60] The RAD finds that Dr. XXXX statement attempts to explain away all of the principal Appellant's testimonial failings in advance of the hearing based upon his clinical impression made three months in advance of the hearing. The RAD finds that such an assessment may have had more value if Dr. XXXX had the opportunity to assess the principal Appellant's actual testimony rather than to speculate about how her testimony may be affected. However, Dr. XXXX impression was based on an interview conducted three months in advance of the hearing. [61] The RAD also notes that Dr. XXXX reports that the psychological interview was stressful for the principal Appellant. He indicated she experienced painful memories, threat, vulnerability and stress-related physiological arousal (I feel like crying; I am feeling cold right now). She experienced psychic numbing and depersonalization, as if she was in a movie or a dream. She developed a headache, and she had concentration problems which rendered it difficult for her to focus; at times her mind went blank and she sighed. Despite the fact that the principal Appellant displayed all of these symptoms, Dr. XXXX found the principal Appellant's responses to his question to be credible and internally consistent. The RAD finds it reasonable that if Dr. XXXX could accurately assess the principal Appellant's credibility in the face of her displaying all of these symptoms than it would be equally reasonable for the RPD to make such an assessment, particularly in light of the fact that the RPD had access to evidence not considered by Dr. XXXX. [62] The RAD further notes that, although the Appellants argue in their pleadings that the principal Appellant was "obviously suffering" during the hearing, they have not cited any examples. The RAD finds, after its own review of the testimony, that where the Appellant's testimony was called into question, there is no indication that she was suffering from the symptoms as described by Dr. XXXX. [63] The RAD further finds that, while Dr. XXXX report falls short of crossing the line separating expert opinion from advocacy, the RAD takes note that Dr. XXXX indicates in his report that the assessment was done to "accompany [the Appellant's] request to remain in Canada" rather than as an independent assessment of her psychological health. [64] The RAD is guided in this regard by the decision of the Federal Court in Molefe24 in which the Court stated that "Expert opinion reports should not be given exalted status in administrative proceedings simply because they are prepared by a licensed profession." In Molefe, Mr. Justice Mosley cites the Court's decision in Czesak25 in which Mr. Justice Annis warned of the dangers posed by expert reports submitted to administrative tribunals. Moreover, I am of the view that decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation. This remark would apply to the report of Dr. Koczorowska which went as far as to advocate on the applicant's behalf in the guise of an opinion on the very issue before the panel. Our legal system has a long experience in dealing with forensic experts testifying on matters relating to technical evidence for the purpose of assisting courts in their determinations. From that experience, the courts have developed what I would describe as a guarded and cautionary view on conclusions of forensic experts which have not undergone a rigorous validation process under court procedures. [...] This is not to say that every expert report prepared for litigation should be dismissed as having no, or little, weight. But what the court's experience with forensic experts does suggest in relation to these reports being proffered before administrative tribunals where there exists no defined procedure to allow for their validation, is that caution should be exercised in accepting them at face value, particularly when they propose to settle important issues to be decided by the tribunal. In my view therefore, unless there is some means to corroborate either the neutrality or lack of self interest of the expert in relation to the litigation process, they generally should be accorded little weight.26 [65] The RAD finds, on the basis of its analysis, that the report of Dr. XXXX should be given little weight in regard to assessment of the credibility of the Appellants' allegations. Letter from Riverdale Immigration Women's Centre [66] The Appellants submit that the RPD erred when it drew an adverse credibility finding from the fact that the letter in question contained inconsistent allegations to that contained in her BoC without putting that concern to her at the hearing. [67] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellants tendered this document in support of their claim. As such, they ought to be aware that the document contains allegations which go directly to her fear of her husband's family not included in their BoC. The RAD also notes that the Appellants were represented by competent counsel at the RPD hearing. [68] Notwithstanding the foregoing, as noted by the RPD, the letter does not offer independent information to corroborate the Appellants' allegations but rather other than the omission noted, it mirrors the allegations in the Appellants' BoC. The RAD notes that the Appellants' allegations have been found to be not credible and that the letter does not offer sufficient evidence to undermine that finding. The RAD further notes that, even if the letter was taken for truth of its content, it could not overcome the totality of the adverse credibility findings. Affidvits of XXXX XXXX XXXX XXXX XXXX XXXX XXXX [69] The Appellants submit that the RPD erred in its treatment of these documents because it failed to engage in meaningful assessment of the documents. They argue that they were rejected solely on the basis that the principal Appellant was found not to be a credible witness. [70] The RAD is not persuaded by the Appellants' argument in this regard. The RAD notes that the RPD found in its Reasons that little weight could be given to the affidavit from XXXX XXXX XXXX XXXX, as previously found in these reasons. The discrepancy between the principal Appellant's testimony and the affidavit were such that little weight could be given to the affidavit. The RAD notes that this finding was not contested by the Appellants. [71] With regard to the remaining affidavit, the RAD notes that, while the RPD does not conduct an independent analysis of it, the RAD finds that, nonetheless, there is sufficient reason to find that little weight can be given to it in establishing the allegations. The RAD notes that, while the affiant purports to have independent information about the extended family of the husband as well as their traditional beliefs, his information with regard to risk that the Appellants face in Nigeria are based on what the principal Appellant's husband told him. The RAD also notes that, although the information with regard to the risk facing the Appellants in Nigeria was provided by the husband, there is no corroboration that it was based on allegations of witchcraft or that the police are involved in the search for the Appellants on allegations that they were involved in the death of the husband's relative. The affiant's evidence is that the principal Appellant and her daughter were asked to take allegiance to the oracle (Ogun) and that her husband reported that to the police. The RAD finds the absence of any allegation of witchcraft and that the police are searching for the Appellants undermine the Appellants' allegations in that regard. The RAD finds that little weight can be given to this affidavit in establishing the allegations of the Appellants. Chairperson's Gender Guidelines [72] The Appellants submit that the RPD has failed to consider the Chairperson's Gender Guidelines27 in rendering its decision. They argue that, while not binding on the RPD, the Federal Court has asserted that, nonetheless, the RPD must apply the principles enshrined in them in a meaningfully way. [73] The RAD finds that, although the Appellants identify in their pleadings that the RPD unreasonably failed to apply the Chairperson's Gender Guidelines in assessing the claim, the Appellants fail to make any direct argument on this submission. The RAD notes that the allegations of persecution were found not to be credible. The RAD finds that the Appellants have failed to demonstrate how the application of the Gender Guidelines undermine the findings of the RPD. While the Chairperson's Gender Guidelines have been considered in this claim, the Gender Guidelines do not shield the principal Appellant from having her evidence tested, nor does it entitle her to have her evidence accepted without inquiry. [74] After its own assessment of the evidence, the RAD finds that the record reveals that the RPD did err in this regard. The RAD finds that the principal Appellant's alleged personal situation and the circumstances did not impact the evaluation of the weight and credibility of the Appellant's testimony. Since this claim involves gender-related violence, the RAD carefully considered the Chairperson's Guidelines on gender-related persecution. The RAD is particularly aware of the Guidelines in this case, as there was insufficient or persuasive corroborative evidence submitted by the Appellants to support the allegations. The Guidelines speak to the difficulty faced by women who suffer gender-based persecution. The Appellants' allegations, if true, would certainly meet the criteria of gender-based persecution. The allegations of the risk they alleged they face in Nigeria are the foundation of their claim. In this case, there was no other way to assess the credibility without questioning the principal Appellant in this regard. The RAD notes that the RPD questioned her in a respectful way. As stated, however, the Appellants' allegations are found not to be credible. CONCLUSION [75] The RAD finds, on the basis of the totality of the adverse findings and in light of its analysis of the evidence in the record, that the Appellants' allegations that they are being pursued by the husband's extended family and the Nigerian police because they are perceived to be witches is not credible. On the basis of the totality of the credibility concerns identified, and having reviewed all of the evidence in this appeal, the RAD finds that the Appellants have not satisfied their burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, they would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. DISPOSITION [76] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. The Appellants appeal is denied. (signed) "L. Favreau" L. Favreau June 15, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, para. 13.3(a). 5 Raza, para. 16. 6 Raza, para. 13.5(b). 7 Raza, para. 13.5(a). 8 Raza, para. 13.3(b). 9 Raza, para. 13.5(a). 10 Raza, paras. 14, 15 11 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria (November 30, 2015), item 10.3, Response to Information Request (RIR) NGA103988.E. 12 Bengabo, Serge Cedrick v. M.C.I. (F.C., no. IMM-2750-08), Shore, February 23, 2009, 2009 FC 186, at para. 23. 13 Jessamy, Gracel Bernadet v. M.C.I. (F.C., nos. IMM-2302-09, IMM-2639-09), Phelan, May 4, 2010, 2010 FC 489; See also: Aleziri, Abdullah Mohammed v. M.C.I. (F.C., no. IMM-360-08), Lagacé, January 15, 2009, 2009 FC 38; and Haque, Rahela v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-5356-08), O'Keefe, June 28, 2010, 2010 FC 703. 14 Tran, Hoa Van v. M.P.S.E.P. and M.C.I. (F.C., no. IMM-3222-09), Beaudry, February 19, 2010, 2010 FC 175. See also Founding, Allen Robin v. M.C.I. (F.C., no. IMM-2182-09), Shore, May 14, 2009, 2009 FC 500. (This is a motion for a stay of removal. Leave to be heard was denied on July 7, 2009 by Justice Harrington.) 15 Refugee Appeal Division Rules, SOR/2012-257 http://laws-lois.justice.gc.ca/eng/regulations/SOR-2012-257/index. html. See RAD Rules 3(3)(d)(i) and (g)(iii), 5(2)(d)(ii), and 29(3). 16 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022. 17 Section 110(4) of the IRPA. 18 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, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 19 Exhibit RPD-1, RPD's Record, Exhibit 11, Affidavit of XXXX XXXX XXXX XXXX XXXX, pp. 348-349. 20 Exhibit P-2, Appellant's Record, BoC narrative, p. 40. 21 Exhibit RPD-1, RPD's Record, Exhibit 6, NDP for Nigeria (November 30, 2015), item 10.1, RIR NGA105249.E. 22 Ibid., NDP for Nigeria (November 30, 2015), item 10.1. 23 Exhibit RPD-1, RPD's Record, Dr. XXXX Report, p. 327, para. 5. 24 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015, 2015 FC 317. 25 Czesak, Maria v. M.C.I. (F.C., no. IMM-09539-12), Annis, November 14, 2013, 2013 FC 1149. 26 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015, 2015 FC 317. 27 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines 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 to section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB6-05092 TB6-05093 TB6-05094 TB6-05095