TB5-02067

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-02067 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 17, 2016 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Idorenyin Amana Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his claim and he has not requested an oral hearing. The Appellant requests that the RAD set aside the determination of the RPD and substitute a decision that he is a Convention refugee or a person in need of protection. Alternatively, the Appellant requests that the RAD remit the matter 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 that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged his father was a XXXXof the XXXXcult in Akure. Members of the cult often met at his home and sometimes the Appellant was allowed to attend the meetings. He was unaware his father dedicated him to the cult. His father died in XXXX 2014 and high ranking members of the cult asked him when he would like to be initiated into the cult. He refused and told them he was as Christian. They responded that he had no choice and they came to his home on XXXX XXXX, 2014, and told him if he did not choose a date for his initiation, his death was certain. The Appellant chose a date to calm his wife and the cult members left. He contacted a chief for help and was told to accept the initiation. He then approached the police who told him it was a cultural matter and he should settle with the cult. He moved to Oshogbo on XXXX XXXX, 2014, and heard from a neighbour that his house had been vandalized and the police took no action. The Appellant moved to Lagos and the chief called him and advised him to return to Akure for initiation. The Appellant contacted his uncle for help in arranging a Canadian visa. The Appellant, in his Basis of Claim Form (BOC), stated that members of the cult believed that he witnessed some of their meetings and he knows their secrets. They would rather kill him than risk having these secrets exposed. The Issues [4] The RPD panel indicated the determinative issue in this claim is credibility. [5] The Appellant submits the issues in this appeal are the following: * Did the Board ignore or misconstrue relevant evidence? * Did the Board fail to review or assess relevant documentary evidence? * Did the Board commit factual errors?1 The Role of the RAD [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [8] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.2 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [9] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [10] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Panel's Analysis and Findings The Appellant's knowledge of XXXX traditions and practices [11] The panel stated the Appellant testified that the local XXXX cult held meetings in his home but ceremonies were conducted elsewhere. The Appellant further testified that the group met twice a month and he attended most meetings from 1979 to about 1992. The Appellant testified they dealt with cult business and also talked about rituals, spiritual powers and incantations which were secret. When asked, the Appellant stated he could not remember any of the incantations. [12] The panel cited an article by Peter Morton-Williams titled "The Yoruba XXXX Cult in Oyo"3 and noted that the Appellant's testimony that as a non-member he was allowed to attend meetings at which secrets were discussed is not consistent with the documentary evidence. [13] The Appellant was asked if political or community issues were discussed at XXXX meetings, and he testified that if a son entered politics they would support him. The Appellant was further asked what the cult would do if they did not like the king's behaviour, and he responded he did not know and it never happened in his group. The panel cited an article written by XXXX XXXX and XXXX XXXX4 that indicates the XXXX have control over the king and they can even order that he commit suicide. The document further decries other aspects of community involvement, when this was noted in the hearing, the Appellant agreed this was the case. [14] The Appellant was asked how people were initiated into the XXXX and he responded the person must lie in a coffin for one day. The panel noted that XXXX and XXXX5 provide an overview of initiation practices none of which refers to what the Appellant stated. [15] The panel noted that the Appellant testified that when people are initiated into the junior rank, they begin to get some inside knowledge and attend meetings with senior members. He further stated they go through the same initiation ceremony as senior members. The panel cited XXXX and XXXX in which it is stated that "No initiatory ceremonies mark one's acceptance as a junior grade member."6 The panel further cited Morton-Williams which states, "There is no initiation into the grade of juniors, this being really little more than a state in which potential membership of the higher grade is recognized."7 [16] The Appellant was asked about titles and his only response was that the chief is the Apena. The panel cited XXXX and XXXX which indicates that the senior grade includes titled officials and each title is the property of a lineage which determines the successor of the title-holder. Other senior level members include the king's Council of State (Oyo Misi). It is further stated a small number of women represent the interest of the town's women at this level. People with town titles automatically become senior-level (Alawo) members.8 The panel noted that the Appellant stated that 10-20 of the 60 members were women. [17] The panel noted the Appellant testified the Alawo are diviners and soothsayers. The Appellant further testified that one becomes an Alawo upon being admitted to the group as a junior member. The panel cited documentary evidence indicating that "The senior grade, known as Ologboni or Alawo constitutes the core of XXXX. Among those included in the senior grade are titled officials of XXXX."9 The panel noted the Appellant was unaware of this. [18] The panel asked the Appellant what XXXX XXXX XXXX XXXX XXXX means in Yaruba. He responded that it means "If someone is distributing something, it is cut into small pieces to ensure that everybody gets a little."10 The panel cited XXXX and XXXX indicating the junior XXXX grade is known as XXXX XXXX XXXX XXXX XXXX.11 The panel noted the Appellant was unaware of this. [19] The Appellant was asked the meaning of Oyo Misi and he stated that it is a particular tribe in Nigeria. The panel cited XXXX and XXXX which indicates the term refers to the Council of State of the king (Alafin) which forms part of the senior grade membership of the XXXX.12 [20] The Appellant was asked about festivals and he testified there is the Ifa festival and he was unaware of any others. He was asked if there was an Orun festival and he responded that through Orun mila the Ifa (a diviner) came into the world and Orun mila was Ifa's father. Orun is also the place where one goes after death. The panel cited XXXX and XXXX which refers to the Orun festival at which the leader of the Counsel of State can make a declaration concerning the king's fate.13 [21] The Appellant was asked about objects used by the XXXX in worship, and he testified the Pena has a staff of authority filled with demonic powers. He further testified the staff has a carving of an image on it and in a ceremony a goat is slaughtered and placed on an altar. The panel cited XXXX and XXXX which states that members of the sect worship an orifa for which the symbol is earth. It is further indicated the primary object used in worship is the Edan, consisting of a brass image of a naked man and another of a naked woman, each mounted on a spike and linked by a chain. It is noted that according to one source the "Edan are thought to be the only orifa of XXXX."14 The panel noted there is no reference to a staff and the Appellant was not aware of this basic element of XXXX ritual practice. [22] The Appellant was asked the meaning of Adan and he stated it refers to a bat. The panel cited XXXX and XXXX which indicates that Adan was a leper in a story used to explain XXXX origins.15 The panel noted that although Adan plays a central role in XXXX self-identity, the Appellant was unaware of this. [23] The panel stated that the Appellant's allegation that the senior level of the XXXX allowed an uninitiated person to attend meetings from the age of 7 to age 20 is not consistent with the objective evidence that indicates the XXXX is a secret society that closely guards its secrets. The panel further stated that if it is true the Appellant attended meetings several times a month for 13 years except when he was away at school, "it is reasonable to have expected him to have basic knowledge about the structure, membership, responsibilities, foundational story, rituals and festivals of the group."16 [24] Counsel in the RPD hearing submitted that the discrepancies between the Appellant's evidence about the XXXX cult may be attributable to the fact that there are differences between the older pre-colonial group and the contemporary one. The panel noted that this issue is addressed by XXXX and XXXX.17 The panel further noted that research done by Ellis in 1894 and that conducted by Morton-Williams in 1960 reflect differences. The panel noted as well that the 1977 study by XXXX and XXXX makes use of a number of sources. The panel notes 1960 article by Morton-Williams was also disclosed.18 The panel noted these documents provide details concerning XXXX beliefs, rituals and practices as of the 1960s and 1970s. The panel found the Appellant's testimony inconsistent with a person who had a basic familiarity with the XXXX cult as described in the documentary literature. [25] The panel found the Appellant's lack of knowledge of basic information led to its conclusion that he is not a credible and trustworthy witness with respect to his involvement with the XXXX sect and that it is unlikely he had any significant contact with them that resulted in becoming familiar with their practices. Documentary evidence [26] The Appellant disclosed a Nigeria Police report19 containing an XXXX XXXX, 2014 statement from the Appellant to police in Akure. The statement reiterates the information in the Appellant's BOC concerning his father's death and the pressure and death threat from XXXX members. It notes as well that he reported this to the police but they told him it was a community matter. [27] The panel noted the Appellant stated he had made a report to the police on XXXX XXXX, 2014, and asked him if he requested a copy of the May report. The Appellant said no and when his wife went to the police this is what they gave her. The Appellant further stated that the police refused to take a report on XXXX XXXX, 2014. The Appellant was asked why they would accept a report on XXXX XXXX, 2014, when they refused to take a report when he complained in XXXX. The Appellant explained he left a statement with them. [28] The panel noted that the fraudulent Canadian visa application was filed on July 17, 2014, indicating the Appellant had already taken steps to relocate to Canada before he made a statement to the police in August. The panel further noted this statement does not provide independent substantiation of the allegations. The panel found, given its finding that the Appellant is not a credible or trustworthy witness; this document has insufficient probative value to establish his allegations. [29] The Appellant testified his wife obtained three affidavits for him. The affidavit from a friend20 reiterates the information in the Appellant's BOC. The panel noted this document does not state the basis for the information provided by this friend. The panel further noted the letter-writer was aware that the Appellant was in Canada and had made a refugee claim. The panel noted as well the letter-writer does not indicate whether any of the statements are based on personal knowledge or whether they are based on what was told to him. The panel also noted that if the affidavit was based on hearsay evidence, the source is not specified. The panel noted that the Appellant testified he spoke to his friend by phone and told him everything. The panel found that the fact the story is repeated by a friend does not establish that it is likely true. [30] The second affidavit is from the Appellant's wife.21 The panel noted it was sworn the same day before the same Notary Public in Akure as the friend's affidavit noted above. This affidavit also reiterates the information in the Appellant's BOC. It notes that after their home in Akure was destroyed, they moved to Oshogbo and then to Lagos to hide from cult members. The panel noted that the document was signed before a Notary Public in Akure, not Lagos, on XXXX XXXX, 2014. The panel further noted it was written by a dependent of the Appellant with an interest in the outcome of the claim. The panel noted as well that its weight will be assessed in light of all the evidence. [31] The third affidavit is from the Appellant's brother.22 As in the case of the other affidavits, it was notarized by the same notary public and on the same date. The affidavit notes he accompanied the Appellant to report to the police the actions of cult members. This document reiterates that the Appellant and his family went into hiding in Oshogbo and then Lagos. The panel noted the letter was from a family member and does not provide evidence from an uninterested source. The panel further noted the weight to be assigned will reflect all of the evidence. [32] The Appellant also disclosed photographs of a damaged door and two rooms with the contents overturned. The panel indicated that without a police report to provide an independent account, these photographs have insufficient probative value in themselves to establish that this is the Appellant's home that was vandalized by XXXX cult members. The Panel's Conclusions [33] The panel found in the context of the totality of the evidence that it is not satisfied that the Appellant's testimony as to his relationship with the XXXX cult is true. The panel found the Appellant's familiarity with basic issues is incompatible with someone who spent 13 years attending cult meetings. The panel further found the Appellant's evidence is inconsistent with the closely-guarded secrecy of the group. [34] The panel noted independent supporting police evidence was not filed with the exception of a statement from the Appellant. The panel found the affidavits and photographs provided by the Appellant have insufficient probative value to establish the Appellant's allegations on their own merit. The panel found the evaluation of the Appellant's evidence has rebutted the presumption of truth and these documents do not have sufficient weight to establish the facts as alleged in light of its conclusion that the Appellant's narrative in likely untrue. [35] The panel found there was insufficient credible and trustworthy evidence to establish that the Appellant is a person of interest to the XXXX cult or that they are seeking to persecute, kill, torture or subject him to cruel and unusual treatment or punishment. The Appellant's submissions The Appellant's knowledge of XXXX traditions and practices [36] The Appellant submits the panel relied on the practices of the XXXX cult in pre-colonial Nigeria, as opposed to the contemporary XXXX cult. The Appellant further submits there is a great difference between the two. [37] The Appellant submits that the XXXX cult performed important political, religious and judicial functions in pre-colonial Yoruba society, but no such roles were available with the advent of modern government. As a result the original practices have changed and it is unreasonable to rely on those practices in evaluating the Appellant's knowledge about contemporary practices of the cult. The Appellant submits his responses to the panel's questions in this regard were truthful and consistent with contemporary XXXX practices [38] The Appellant cites Responses to Information Requests (RIR) in the National Documentation Package23 in which a law professor stated: "since the people no longer had any use for them as their protectors [during the colonial era and after Nigeria's independence], they now protect any of the self-centred interests of their members by blackmail, intimidation and murder." This document also states that most Nigerians now view the XXXX cult as "an organized crime" syndicate, which runs "all kinds of businesses, both legitimate and illegitimate, without any government interference" as well as supporting "political candidates who can protect their enterprises." The Appellant submits the panel ignored all of this evidence and others which supported his case. The Appellant further submits the panel drew adverse inferences from what it considered incorrect answers to questions based on ancient and "obsolete" precolonial practices of the XXXX cult. Documentary evidence [39] The Appellant submits the panel failed to review or assess two documents as to their probative value, which provided contemporary perspective concerning the XXXX cult: (1) ACCORD Anfragebeantworting, Nigeria: XXXX- Who are the leaders of the XXXX Cult/Punishment in case of refusal to take the father's place24 and (2) XXXX wants my son's head, The Sun (a Nigerian newspaper).25 Factual errors [40] The Appellant submits he did not claim to be a member of the XXXX cult and he was only perceived to have acquired knowledge of their secrets. The Appellant further submits that the panel's extensive questioning as to knowledge of the cult's secrets could only perhaps be directed at members of the cult. The Appellant submits as well that the panel's finding that he was not a person of interest to the XXXX cult is clearly made without regard to his BOC narrative. The RAD's Analysis and Decision [41] The RAD has reviewed and assessed all of the evidence in the record, including the documentary evidence cited by the panel and the documentary evidence cited by the Appellant. [42] The RAD notes the Appellant submits that there is a great difference between pre-colonial XXXX cult practices and the contemporary XXXX cult and the panel erred in relying on information concerning "ancient and obsolete" pre-colonial practices.26 The RAD notes British colonial rule in Nigeria was established in 1900 and Nigeria achieved independence in 1960. The RAD further notes that the XXXX and XXXX article27 cited by the panel was published in 1977 and finds it is likely that any differences between XXXX cult practices in pre-colonial and pre-national Nigeria and practices in colonial and independent Nigeria would have been considered by the authors. [43] The RAD notes that XXXX and XXXX state that XXXX practices have evolved and been modified over the 70 year period between an initial study by Ellis in 1894 and a subsequent study by Morton-Willliams in 1960. XXXX and XXXX state they have based their account of XXXX practices on Morton-Williams and other more recent studies [44] The RAD further notes that the issue in the case at bar is not that the role and power of the XXXX cult have changed in contemporary Nigerian society. Rather the issue concerns the XXXX cult's secrecy and the nature of its rituals, ceremonies and practices. [45] The RAD notes the Appellant cites a number of documents in the record and submits the panel failed to assess their probative value. The RAD agrees with the Appellant in this regard and it has reviewed and assessed these documents below. [46] In regard to the RIR28 cited above, the RAD finds there is no evidence that the secret practices noted by the panel are not still followed by the XXXX cult. This document provides mixed evidence as to the continuing power of the cult. One source indicates it has no power in contemporary Nigeria, while another indicates it continues to have significant power. It is also noted that the cult is now a criminal organization. There is however, as noted above, no evidence that the cult's ceremonies, beliefs and emphasis on secrecy have changed. [47] In regard to the ACCORD Anfragebeantwortung article,29 it is noted that this secret society continues to combine traditional religious practices and social functions. It is further noted that one can negotiate his way out of membership but in extreme cases the only solution is to leave the family network. It is indicated as well that there are usually 6 women members as opposed to the 10-20 stated by the Appellant. [48] This document notes that there could be a death threat if a member breaks his oath of secrecy regarding rituals and beliefs. In regard to pressure to join the cult, the evidence is mixed as to a danger to life. It is further noted if the father was a member of a traditional XXXX cult, a son would risk murder upon return. However it is noted as well that if a son refused to take his father's place in the cult, he would mainly be subjected to social and economic pressures. The RAD finds that this article provides no evidence that the XXXX rituals and beliefs cited by the panel do not retain their relevance in contemporary XXXX practices. [49] In regard to the Sun article30 cited by the Appellant, the RAD notes the Appellant provides no analysis as to the relevance of this article to the issue of contemporary ritual, beliefs and practices of the XXXX cult. The RAD notes the article indicates that a member of the cult described his initiation which included drinking a "blood-like" potion. It also included a black draped coffin, a handkerchief, a ring and incantations with magical powers. The RAD further notes there is no reference to the initiate being required to lie in the coffin for a day as alleged by the Appellant. [50] The article also indicates that a member who left the cult indicated that he had joined to get rich and that a wealthy member told him he got rich only by killing his first born son and also killing his unborn children when he discovered they were male. This man further indicated he was allowed to leave the cult because he had not gotten rich through cult membership. He stated as well that the cult subsequently went after him as reflected in swollen legs that would not heal, but through the church he was delivered. The RAD finds that this article has no relevance to the case at bar. [51] The RAD notes the Appellant makes no submissions concerning the panel's findings in regard to the three affidavits he provided. The RAD has reviewed these documents and notes that the panel gave them little evidentiary weight because the Appellant's brother and wife had a personal interest in the outcome. The RAD notes that the Federal Court has indicated that such a relationship in itself is not a sufficient reason to discount the relevance and truthfulness of an affidavit. The RAD further notes however that the panel provided additional reasons for its findings in this regard. The affidavit of the Appellant's wife was notarized in Akure, the Appellant's home town in which he alleged he and his family were at risk, even though the Appellant testified and his wife confirmed in the affidavit that they went into hiding in Oshogbo and then in Lagos to elude the alleged agents of persecution. In regard to the friend's affidavit, the RAD notes there is no evidence that he personally witnessed the incidents described in the document rather than hearing the story from the Appellant. The RAD finds the panel did not err in giving these documents little evidentiary weight. [52] The RAD has reviewed and assessed the evidence in the record concerning the Appellant's knowledge of XXXX cult rituals and practices. The RAD finds the panel did not err in testing the Appellant's knowledge in this regard as the Appellant indicated that he attended cult meetings for 13 years and cult members pursued him because he was presumed to have knowledge of their secret rituals and practices. [53] The RAD finds the panel did not err in finding that after 13 years of attending such meetings twice a month; it was likely that he would have knowledge of these rituals and practices. The RAD acknowledges that the Federal Court has indicated that there is a low bar as to a claimant's religious knowledge when tested in a refugee hearing. The RAD finds, on the basis of its review of the documentary evidence and the Appellant's responses to the panel's questions in this regard, that the Appellant has not met even this low expectation, and that it is likely he would have substantially more accurate information if he actually attended the meetings to which he testified. [54] The RAD further finds, on a balance of probabilities, that an organization that placed so much emphasis on secrecy would not have allowed the Appellant to attend its meetings over a 13 year period when he was not a member of the cult. [55] The RAD finds as well there is insufficient credible and trustworthy evidence to find the Appellant's allegations are truthful and XXXX cult members are pursuing him. The RAD concurs with the panel's finding in this regard. Disposition [56] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel February 17, 2016 Date 1 Exhibit P-2, Appellant's Record, at p. 78 A. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit RPD-1, RPD's Record, at p.157. 4 Exhibit RPD-1, RPD's Record, at p. 144. 5 Exhibit RPD-1, RPD's Record, at pp. 146-147. 6 Exhibit RPD-1, RPD's Record, at p. 143. 7 Exhibit RPD-1, RPD's Record, at pp.160-161. 8 Exhibit RPD-1, RPD's Record, at p. 143. 9 Ibid. 10 Exhibit P-2, Appellant's Record, at pp. 7-8. 11 Exhibit RPD-1, RPD's Record, at p. 143. 12 Ibid. 13 Exhibit RPD-1, RPD's Record, at p. 144. 14 Exhibit RPD-1, RPD's Record, at p. 145. 15 Ibid. 16 Exhibit P-2, Appellant's Record, at p. 9, para 29. 17 Exhibit RPD-1, RPD's Record, at p. 143. 18 Exhibit RPD-1, RPD's Record, at pp. 154-169. 19 Exhibit RPD-1, RPD's Record, at p. 128. 20 Exhibit RPD-1, RPD's Record, at p. 123. 21 Exhibit RPD-1, RPD's Record, at p. 124. 22 Exhibit RPD-1, RPD's Record, at p. 125. 23 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Nigeria, 28 November 2014, item 13.5 NGA104213.E, Nigeria: "XXXXX Society, including its history, structure, rituals and ceremonies; information on membership and the consequences of refusing to join." 24 Exhibit RPD-1, RPD's Record, at pp. 131-138. 25 Exhibit RPD-1, RPD's Record, at pp. 170-173. 26 Exhibit P-2, Appellant's Record, at p. 79. 27 Exhibit RPD-1, RPD's Record, at p.143. 28 Exhibit RPD-1, RPD's Record, at pp. 129-130. 29 Exhibit RPD-1, RPD's Record, at pp. 131-138. 30 Exhibit RPD-1, RPD's Record, at pp. 170-173. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02067