TB7-01390

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 : TB7-01390 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 26, 2017 Date de la décision Panel Pasquale Fiorino 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) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX, is a citizen of Nigeria and appeals a decision of the Refugee Protection Division (RPD) dated January 5, 2017, rejecting his claim for refugee protection. The Appellant is not requesting a new hearing but is submitting new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is either Convention refugee or a person in need of protection, or that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to section 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 nor a person in need of protection. BACKGROUND [3] The Appellant fears returning to Nigeria on account of his alleged sexual orientation. He alleges that he is perceived to be a bisexual man. The Appellant was employed by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He alleges that Mr. XXXX XXXX XXXX XXXX XXXX a Nigerian politician, in XXXX of 2014, borrowed 120 million Nigerian Naira. The loan was issued in XXXX of 2014 and was to have been repaid monthly for the next 12 months at an interest rate of 25% per annum. Beginning in XXXX of 2015 XXXX stopped making a payments toward the loan. At the end of the 12 month period, that is, XXXX 2015, the Appellant alleges that, since XXXX still owed 39 million Nigerian Naira, the XXXX XXXX the Appellant to seek repayment from XXXX. The Appellant alleges that XXXX and his associates began to threaten him and in XXXX of 2016, he was allegedly assaulted. The Appellant arrived in Canada for a vacation on July 16, 2016. Two weeks later, on XXXX XXXX, 2016, he was informed by his wife, who did not vacation with him to Canada, that the Nigerian police came to their house looking for the Appellant because XXXX accused him of being a gay man. ROLE OF THE RAD [4] 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. The Appellant justices stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. ANALYSIS ON THE MERITS OF THE APPEAL [6] The RPD concluded that the Appellant was not a credible witness. The Appellant submits that the RPD erred in its credibility analysis and that the RPD did not fully consider all of the documentary evidence. [7] The Appellant has provided a written transcript of the November 16, 2016, RPD session.2 CREDIBILITY [8] The Appellant alleges that XXXX began to threaten him around the end of XXXX 2016. In XXXX of 2016 he alleges that the threats became more serious. He alleges that in XXXX of 2016 the threats became more aggressive and on XXXX XXXX, 2016, he was allegedly assaulted. He arrived in Canada on July 16, 2016 and then two weeks later, on XXXX XXXX, 2016, he was notified by his wife, who is still residing in Nigeria, that XXXX had accused the Appellant of being a gay man. The Appellant provided testimony as to the fact that XXXX is an experienced politician in Nigeria with considerable political experience. The Appellant alleges that he was threatened by XXXX or his agents beginning in XXXX of 2016. These threats continued until the end of XXXX 2016 and then in early XXXX the Appellant alleges that agents of XXXX assaulted him. And yet, this experienced politician, with knowledge of Nigerian society's attitude toward gays, utilized the accusation of the Appellant being a gay man only after the Appellant left Nigeria and was vacationing in Canada. [9] The RPD found that there were three areas of credibility concerns with respect to the Appellant's testimony: a) the date of the alleged assault; b) the Appellant's continued employment at the bank; and c) the reason provided by the Appellant as to what purpose XXXX had utilized the money received from the loan. The use of the money by XXXX [10] The Appellant speculated as what purpose XXXX had utilized the money which he received from the bank. The RAD does not consider this testimony as central to the allegations of the Appellant and therefore will not deal with it in this appeal. The Appellant's XXXX XXXX XXXX XXXX XXXX [11] The Appellant alleges that he began to fear for his life in XXXX of 2016 when XXXX began to call the Appellant directly. The RPD asked the Appellant a number of questions relating to the fact that he had continued his XXXX XXXX XXXX XXXX even after he had begun to receive threats in XXXX of 2016. The Appellant made it very clear that he feared for his life because of his XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. RPD: So at what point did you actually begin to fear for your life because of what was happening with this loan? Appellant: When XXXX called me himself... RPD: When was that? Appellant: XXXX. RPD: So why did you continue to XXXX XXXX XXXX XXXX if you feared that your XXXX with them was putting your life in danger? Appellant: I have no other jobs at that time and I decided to get another job, I have to make reference to them that I was working somewhere before getting a new job and knowing fully well that they were not ready to assist me, I know that they won't give me any supportive response... RPD: OK let's be clear, you believe that you were being target merely because you were fulfilling functions as an XXXX XXXX XXXX XXXX. Appellant: Yes. RPD: This has nothing to do with you personally. Appellant: No.3 [12] The RPD concluded that the Appellant's failure to terminate his XXXX XXXX XXXX XXXX after he began to fear for his life is not consistent with his fear. The Appellant submits that the RPD failed to consider the Appellant's inability to find other employment if he had terminated his XXXX XXXX XXXX XXXX.4 The RAD cannot agree with this submission. [13] The Appellant testified that he had been threatened solely because of his XXXX XXXX XXXX XXXX. Both the Federal Court and the Federal Court of Appeal have analyzed the question of whether a refugee claimant is: "...obliged to make lifestyle or other employment changes which would offer protection from persecution or which could protect the life and safety of a claimant and, if so, what is the test for making such a determination?"5 The Federal Court of Appeal upheld the decision of the Federal Court6 where the court had concluded that: "Applicants failed to offer any material evidence to support the theory of risk from FARC extending beyond the incidents complained of and those were specific to Mr. XXXX part-time employment"7 In this particular appeal, the Appellant testified that the threats he received from XXXX were specific to his XXXX XXXX XXXX XXXX. There is no evidence to indicate that XXXX would have continued threatening the Appellant if he had terminated his XXXX XXXX XXXX XXXX. [14] The RAD acknowledges that the XXXX decision involved the question of whether the Appellant could return to his native country as a result of the threats which he had received from the agent of persecution. In this particular appeal, the Appellant alleges that there is a new threat, being targeted as a gay man, which would prevent him from returning to Nigeria. However, this new threat is based on the allegation that he had been threatened and assaulted by XXXX for XXXX XXXX XXXX XXXX XXXX XXXX. The question for the RAD is whether the actions of the Appellant in failing to terminate his job, something which he did after his arrival in Canada,8 were indicative of a lack of a fear. The Appellant provided no evidence which would indicate that he would not have been able to find employment if he had terminated his XXXX XXXX XXXX XXXX prior to his arrival in Canada. The fear of being unemployed in and of itself does not create a fundamental human right. The Appellant's employment was neither fundamental to the preservation of his core human rights, nor was it essential to his right to earn a living generally. It is reasonable to expect that the Appellant would have terminated his XXXX XXXX XXXX XXXX, especially after allegedly having assaulted by XXXX, in order to avoid any further threats or physical harm. As the Federal Court has stated: "... the denial of an employment interest of this sort by the actions of a criminal agency does not engage a principle of fundamental human rights or dignity worthy of refugee protection."9 The RAD concludes that the failure of the Appellant to terminate his XXXX XXXX XXXX XXXX is indicative of a lack of subjective fear. The date of the assault [15] In his written evidence, the Appellant wrote that on XXXX XXXX, 2016, unknown men assaulted him and told him to consider XXXX loan paid in full. In support of this allegation, the Appellant submitted a copy of an affidavit from Mr. XXXX XXXX.10 The Appellant provided a detailed account of the alleged assault in his oral testimony to the RPD.11 During examination by the RPD with respect to the alleged assault, the Appellant, on three different occasions,12 testified that the alleged assault had taken place on XXXX XXXX, 2016. The RPD pointed out to the Appellant that the affidavit of Mr. XXXX stated that the alleged assault had taken place on XXXX XXXX, 2016 and the Appellant was asked to explain the contradiction. The Appellant replied that possibly the Appellant had made a mistake with respect to the month.13 The RPD rejected this explanation. NEW EVIDENCE [16] In an attempt to clarify the contradiction between his own oral testimony and the affidavit of Mr. XXXX, the Appellant submitted as new evidence a new affidavit sworn by Mr. XXXX XXXX on February 16, 2017, in Nigeria.14 Admissibility of Evidence Submitted on Appeal [17] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4) which states: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [18] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.15 Application of Section 110(4) [19] Section 110(4) establishes a disjunctive test.16 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [20] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.17 [21] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [22] Section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.18 [23] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.19 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [24] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [25] In Singh,20 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza21 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.22 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).23 [26] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [27] Relevance is a basic condition for the admissibility of any piece of evidence.24 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [28] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.25 [29] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [30] The new evidence was submitted in order address a credibility issue which arouse during the Appellant's oral testimony. Mr. XXXX had submitted a previous affidavit sworn on October 27, 2016, in support of the Appellant's allegation that the Appellant had been assaulted by XXXX in the XXXX of 2016. However, the first affidavit of Mr. XXXX stated that the assault had taken place on XXXX XXXX, 2016 while the Appellant had stated in his oral testimony that the assault had taken place on XXXX XXXX, 2016. [31] In the new evidence, Mr. XXXX states that he had mistakenly stated in his previous affidavit that the assault had taken place on XXXX XXXX, 2016 and that the assault actually took place on XXXX XXXX XXXX 2016. Although the affidavit is sworn after the RPD rendered its decision, the RAD finds that the information was readily available to the Appellant prior to the RPD rendered its decision. [32] The RPD hearing took place over two sittings: November 16, 2016, December 12, 2016. The RPD decision was rendered on January 5, 2017. The issue of the difference of the date of the assault between the Appellant's oral testimony and Mr. XXXX affidavit was first canvassed by the RPD at the first sitting. At the second sitting on December 12, 2016, nearly a month after the first RPD sitting, the RPD once again canvassed the issue of the discrepancy of the date of the assault. The RPD rendered its decision on January 5, 2017, almost two months after the RPD's first sitting. [33] It is reasonable to expect that, after realizing the contradiction between his oral testimony and Mr. XXXX affidavit, he would have made every reasonable effort to obtain a new affidavit from XXXX soon after the first RPD sitting on November 16, 2017. It is also reasonable to expect that, when the RPD canvassed the same issue at the December 12, 2016 sitting, the Appellant would have attempted to contact Mr. XXXX for a new affidavit. The Appellant did not do so. Instead, he waited until after the RPD had rendered its negative decision on January 5, 2017 to contact Mr. XXXX for a new affidavit. The RAD concludes that the information in the new evidence was readily available to the Appellant prior to the RPD rendering its decision. The RAD will therefore not admit the new affidavit sworn by Mr. XXXX as new evidence. [34] The Appellant further submits that it is possible for him to make inconsistent statements without compromising the truthfulness of the testimony,26 and that the RPD should have taken into consideration his psychological state.27 The RAD cannot agree with this submission. [35] The issue for the RAD is not only the discrepancy between the affidavit of Mr. XXXX and the oral testimony of the Appellant with respect to the month of the alleged attack, but also the contradictory testimony provided by the Appellant after the RPD had brought the contradiction to this attention. [36] At the RPD session of November 16, 2016, the following exchange took place between the RPD and the Appellant: RPD: I believe that your co-worker wrote something different in this affidavit. He wrote that he knows that you were attacked on XXXX XXXX, 2016...So why does your co-worker believe that his happened in a different month? Appellant: Maybe because I am mistaken about the month. RPD: So it is possible that you are mistaken about the month? Appellant: Probably. Yes. RPD: Are you saying that he is correct... Appellant: It is in XXXX. RPD: It was in XXXX that it happened? Appellant: Yes.... RPD: So to the best of your recollection, when did this attack take place? Appellant: XXXX. RPD: So do you believe that your co-worker is mistaken in his affidavit? Where he wrote that it happened in XXXX2016? Appellant: It happened in XXXX.28 [37] Initially, the Appellant testified on three different occasions that the alleged assault had taken place on XXXX XXXX, 2016. After the contradiction between his oral testimony and the affidavit of Mr. XXXX was put to him, the Appellant could not provide consistent testimony as to when the alleged assault had taken place. At first he states that he had made the mistake and that the alleged assault had taken place in XXXX of 2016. Then he changes his answer once again and says that it had happened in XXXX of 2016. When asked once again if Mr. XXXX had been mistaken as to the date of the alleged assault, the Appellant once again changes his answer and says that the correct month was XXXX. [38] At the second sitting of the RPD hearing, the issue of the date of the alleged assault was once again broached by the RPD. The Appellant once again changed his answer and stated that it had taken place in XXXX of 2016. The Appellant explained to the RPD that he had stated in the previous sitting that the alleged assault had taken place in XXXX of 2016 because he had been confused and tense. The RAD cannot accept this explanation. [39] The Appellant submitted the affidavit of Mr. XXXX to the RPD and therefore the Appellant is aware of the information contained therein.29 The Appellant arrived in Canada two weeks after the alleged attack had occurred. During the two different sittings of the RPD, the Appellant changed his answer as to the date of the alleged assault four different times. Given all of these factors, it is reasonable to expect that the Appellant would have been consistent in his oral testimony as to when the alleged assault had taken place. This the Appellant did not do. [40] Given all of the credibility issues discussed above, the RAD finds that the Appellant was not assaulted or threatened by Mr. XXXX. PSYCHOLOGICAL REPORT [41] The Appellant submits that he provided contradictory evidence at the RPD due to his psychological state of mind. He submitted psychological reports to the RPD. However, the report is based on a story which the RAD does not believe. The report does not cure the issues of credibility. As the Federal Court has stated: "A psychological report cannot be used to establish the credibility of the applicant's refugee claim."30 Therefore the RAD gives the psychological report no evidentiary weight. DECISION [42] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [43] The Appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino June 26, 2017 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 Exhibit P-2, Appellant's Record, at pp. 38-103. 3 Exhibit P-2, Appellant's Record, at pp. 77-78. 4 Exhibit P-2, Appellant's Record, at pp. 120-121. 5 Trujillo Sanchez, Luis Miguel v. M.C.I. (F.C.A., no. A-310-06), Richard, Sharlow, Malone, March 8, 2007, 2007 FCA 99, at para 7. 6 Trujillo Sanchez, Luis Miguel v. M.C.I. (F.C., no. IMM-3818-05), Barnes, May 16, 2006, 2006 FC 604. 7 Ibid., at para 14. 8 Exhibit RPD-1, RPD's Record, exhibit 11. 9 Trujillo Sanchez, Luis Miguel v. M.C.I. (F.C., no. IMM-3818-05), Barnes, May 16, 2006, 2006 FC 604, at para 20. 10 Exhibit RPD-1, RPD's Record, at pp. 303-304. 11 Exhibit P-2, Appellant's Record, at pp. 78-83. 12 Exhibit P-2, Appellant's Record, at pp. 78, 79, and 82. 13 Exhibit P-2, Appellant's Record, at p. 83. 14 Exhibit P-2, Appellant's Record, at p. 105. 15 Section 3(3)(g)(iii), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 16 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, at para 19. 17 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, at para 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 63. 18 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 54. 19 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para 16. 20 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 64. 21 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 22 Ibid., Raza, paras 13-15. 23 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 64. 24 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 45; Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para 64. 25 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 48. 26 Exhibit P-2, Appellant's Record, at p. 118, para 36. 27 Exhibit P-2, Appellant's Record, at pp. 112-117. 28 Exhibit P-2, Appellant's Record, at pp. 83-84. 29 Konare, Oumar v. M.C.I. (F.C., no. IMM-5313-15), Bell, August 30, 2016, 2016 FC 985, at para 16. 30 B296 v. M.C.I. 2015 FC 761, at para 54. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-01390