TB9-29089

RAD File / Dossier de la SAR : TB9-29089 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 27, 2021 Date de la décision Panel Paul Muldoon Tribunal Counsel for the person who is the subject of the appeal Casimir Eziefule Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant) is a citizen of Nigeria who is appealing a decision of the Refugee Protection Division (RPD), dated October 8, 2019, dismissing her claim for protection. The Appellant submits that the RPD erred in assessing her claim, and she asks the Refugee Appeal Division (RAD) to allow the appeal and determine that she is a Convention refugee or a person in need of protection, pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA) or to send the matter back to the RPD for redetermination. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. I find that the RPD erred in a number of its findings when it found the Appellant not to be credible. Although I have found that the RPD erred, I still have a number of credibility concerns with respect to the Appellant's evidence. Moreover, the RPD only very briefly examined the viability of an internal flight alternative (IFA) in Nigeria and made no findings with respect to this issue in its decision. BACKGROUND [3] The Appellant fears persecution in Nigeria due to her conversion to Christianity. The Appellant was born into a polygamous Muslim family. As her father could not afford to support all of his wives and children, she was sent to live with her older half-brother, XXXX, his Christian wife, XXXX, and their family. The family lived in Lagos state until she returned to Kano state for school. Upon her return to Kano, her family noted that she did not wear a headscarf and forced her to attend an Islamiyah (a school for teaching Islam) where she was assaulted. The Appellant left Nigeria for Canada on XXXX XXXX XXXX 2017. She applied for protection in Canada in XXXX 2018. ROLE OF THE RAD [4] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 In doing so, I have carried out my own independent analysis of the RPD record, including the RPD's reasons and decision, to determine whether the RPD erred. [5] I considered this appeal in light of the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Gender Guideline).2 The Gender Guideline provides guiding principles for adjudicators in deciding cases involving women enduring gender-related persecution by addressing the particular challenges they may face in presenting their cases before the Immigration and Refugee Board of Canada (IRB). NEW EVIDENCE [6] The Appellant makes a request for new evidence and an oral hearing. She is requesting that the affidavit of XXXX XXXX, dated XXXX XXXX XXXX 2019,3 be admitted as new evidence. [7] Subsection 110(4) of the IRPA outlines the provisions with respect to new evidence. It states that an appellant may present only evidence that arose after the rejection of their claim, or that was not reasonably available at the time of the rejection, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection.4 If the evidence meets one or more of these requirements, the Federal Court of Appeal in the Singh decision requires me then to decide if the evidence is new, credible and relevant before I can accept it.5 [8] The Appellant submits that this evidence is credible because the sworn testimony came directly from XXXX XXXX, and the affidavit was not available to the Appellant on or before the hearing. The Appellant submits that the affidavit is relevant because it corroborates the basis of the claim and contradicts the assertion by the RPD that the Appellant is not credible. [9] I have reviewed the affidavit and note that it is dated after the rejection of the claim. However, the fact that the document is dated after the rejection of the claim does not necessarily make the evidence "new" under subsection 110(4).6 Instead, I have to assess the information in the document in order to properly determine whether the evidence arose after the claim. In reviewing the document, I find that most of the affidavit relates information that was available prior to the rejection of the claim and could have been introduced into evidence prior to the hearing. I find that all of the paragraphs, with the exception of paragraphs 10, 11 and 12, seek to corroborate allegations in the Appellant's narrative, and there is no explanation why this could not have been introduced prior to the hearing or at the hearing. It should be noted that the RPD record already has an earlier affidavit sworn by her in the record.7 Further, I find that because the affidavit, with the exceptions of paragraphs 10, 11 and 12, elaborate on information she already has sworn to in an earlier affidavit, hence, the Appellant could have reasonably have been expected in the circumstances to have presented such information at the time of rejection. The role of new evidence is not to provide the opportunity to complete or supplement a deficient RPD record with information that was available prior to the rejection the claim. With the exception of paragraphs 10, 11 and 12, it appears that is what parts of the affidavit are attempting to achieve. [10] Only paragraphs 10, 11 and 12 relate "new" information that could not have been put into evidence prior to the rejection of the claim. I find that the information in paragraphs 10, 11, and 12 is new, credible and relevant. I find that paragraphs 10, 11 and 12 can be admitted as new evidence. [11] The Appellants requested that the RAD convene an oral hearing on the basis of the new evidence. The tests in subsection 110(6) of the IRPA permit the RAD to hold an oral hearing where the new documentary evidence raises a serious issue with respect to the credibility of the Appellants, is central to the issue to be decided, and, if accepted would justify allowing or rejecting the claim. [12] The Appellant submits that, if the new evidence is accepted, it would justify allowing her claim for protection. I disagree. This evidence in the paragraphs of the affidavit that I found to be new evidence, on its own, would not be determinative of the appeal. This evidence outlines that the Appellant's putative mother is now leaving her husband in marriage. This one new allegation of fact, if accepted, would not lead me to finding that the appeal would be allowed or rejected. Even if this fact is accepted and the marriage ended after many years, the issue remains as to whether the Appellant's putative father would tolerate her religious views, among other issues to be determined. ANALYSIS [13] The issue in this appeal is whether, as the RPD found, the Appellant is credible. Did the RPD err in finding that the Appellant was not credible? [14] The RPD found that the Appellant was not credible because her putative mother, XXXX, was Christian; the Appellant's putative mother did not claim protection while in Canada; the Appellant's conversion to Christianity was not genuine, and she delayed in seeking protection in Canada. The Putative Parents' Marriage and XXXX Roman Catholic Faith [15] The RPD did not accept, on a balance of probabilities, that XXXX XXXX the Appellant's putative father, or other members of her family, including her brother, XXXX XXXX are agents of persecution who are opposed to her Christian faith and who want to force her into a Muslim marriage. The RPD found that the Appellant had not credibly demonstrated, on a balance of probabilities, why she would be treated differently for her adherence to Christianity than her putative mother's religious beliefs. [16] The RPD found that the Appellant's putative father was Muslim and that her putative mother, XXXX, was Roman Catholic. The RPD further found that the Appellant had not credibility explained, on a balance of probabilities, how the marriage between XXXX and XXXX lasted thirty years without the necessity of XXXX converting to Islam. The RPD found the explanation that XXXX tried unsuccessfully to convert XXXX but remained in the marriage was too vague. [17] The Appellant states that the RPD speculated and assumed without any contradictory evidence to that of the Appellant that it was implausible for her guardian, who is a Muslim and a major general in the Nigerian Army, not to accept her desire to convert to Christianity from Islam when he accepts the same from his wife. The Appellant submits that it is unreasonable and illogical for the RPD to speculate that the guardian would treat the Appellant in the very same manner that he treats his wife. The Appellant testified that XXXX was in an abusive relationship, and religion was a persistent reason for the acrimony. The Appellant states that XXXX affidavit confirms that her marriage ended due to differences in religions. [18] I find that the RPD erred in finding that the Appellant would not be treated differently than her putative mother for her religious beliefs. In this matter, the RPD made a finding that the Appellant's putative father would treat the Appellant in the same manner that he treated his wife, XXXX. However, there is evidence that, although XXXX XXXX XXXX husband, has not made her convert to Islam, she nevertheless has been subject to his abuse for some thirty years due to, at least in part, their differences in religious beliefs and, as the new evidence points out, the demise of the marriage. The RPD failed to consider the broader implications of its finding with respect to the relationship between the Appellant's putative mother and father. Although XXXX was not made to convert to Islam, she was in an abusive environment, at least in part, owing to the tension to convert. Hence, even if the Appellant would be able to practice her Christian beliefs in that household, it would not necessarily mean that she could do so without the similar abusive behaviour from her putative father. I find that the RPD erred in making a finding that the Appellant's religious beliefs would be tolerated because her putative mother's beliefs were tolerated by an agent of persecution. [19] Further, the Appellant, in order to succeed in her claim, must establish a forward-looking fear of persecution. The RPD did not make an express finding in this regard as to whether the Appellant would face a forward-looking risk from the agents of persecution should she return to Nigeria. XXXX Failure to Claim While in Canada [20] The RPD states that the Appellant's putative mother, XXXX, is similarly situated to the Appellant in the sense of being under XXXX control. XXXX disagreed with XXXX religious beliefs and was allegedly abusive to her. The RPD asked why XXXX did not make a claim for protection in Canada when she visited Canada numerous times.8 The RPD found the Appellant's explanation that XXXX did not know she could apply was not credible and drew a negative inference. [21] The Appellant acknowledged this finding in her Legal Memorandum;9 however, she did not make any submissions with respect to this finding. [22] Although the Appellant did not specifically make submissions on this finding, I find that the RPD erred in drawing a negative inference from her mother's failure to claim while in Canada. First, the RPD made a negative inference regarding the Appellant's credibility based on the behaviour of someone else, that is, XXXX failure to claim. I note that XXXX is not in a position to respond as to why she did not claim and may have a valid reason for not seeking protection in Canada. Further, the allegation in the Appellant's narrative is that XXXX and XXXX were in a long-term, abusive marriage, and the Gender Guideline reminds us to recognize that abused women stay and return to abuse relationships, a consideration that was not discussed by the RPD. The Appellant's Religious Beliefs [23] The RPD found that the Appellant's conversion and her baptism to Christianity is not genuine. The RPD found that the Appellant did not know that the church she was attending, the XXXX XXXX Church of God (XXXXCG), was Pentecostal but only that it was a Protestant church. The RPD found it would have been reasonable for her to know such information since she had been attending the church since XXXX 2017, and she was baptized there. The RPD found that her knowledge of Christianity was a neutral factor in its assessment of her evidence. [24] The Appellant states that she gave reasonable responses to the RPD's questions concerning her religious beliefs in that she wanted to be Christian and not necessarily a Roman Catholic, that she did not join the Roman Catholic church because of the length of time it would take to learn about it, and that she responded to questions showing the depth of her understanding of the tenets of her faith. [25] I find that the RPD erred in finding that the Appellant's conversion to Christianity is not genuine. The Appellant testified that she believed in Christian beliefs, and although she lacked in-depth knowledge of the Pentecostal religion, I find that does not necessarily mean she is not a Christian. She testified that she is a Christian, and there is no evidence to directly contradict her allegation. [26] Although I accept the Appellant's testimony that she is a Christian, I give low probative value to her supporting documents. The RPD found that the baptism certificate10 does not reflect that her baptism reflects a genuine conversion. The attestation letter from the Senior Pastor of the XXXXCG, XXXX XXXX XXXX XXXX,11 is not particularly compelling. Although he states that she is a new convert to the faith, the letter speaks more to her volunteer contributions including cleaning and maintenance. The affidavit of XXXX XXXX XXXX12 states that the Appellant practiced Christianity discretely and practiced her Muslim faith when her putative father was around. The affidavit also speaks to how her relatives implored her to practice the Muslim faith and follow the principles of that faith. Delay in Claiming While in Canada [27] The RPD found that it would have been expected that, in light of the risk to her in Nigeria, the Appellant would have made a claim for protection in Canada at the earliest opportunity. The RPD found that, even considering that she had a six-month visa when arriving in XXXX 2017, she waited one year after the expiry of the visa before making a claim for protection. The RPD found the Appellant's explanation that she thought her visa expired in XXXX 2019 and that she was exploring other options to remain in Canada was not reasonable. The RPD also considered the Gender Guideline in assessing the Appellant's explanation that she did not make a claim for protection earlier because she lacked independence and experience because of the controlling environment created by XXXX. The RPD rejected this explanation finding it not to be true. [28] The Appellant states that her explanation that she is reclusive and introverted and did not feel comfortable discussing her circumstances with anyone until she met a friend, XXXX, is reasonable. The Appellant states that, contrary to the RPD's findings, the explanations given were neither vague nor evasive. The Appellant states that the jurisprudence states that a short delay in making a claim with a reasonable explanation cannot be determinative of a negative decision in a refugee claim. [29] The Appellant states that the RPD erred in impugning her credibility because she failed to consult XXXX and her two half-sisters concerning the permitted length of stay as a visitor. The Appellant states that these individuals are not immigration officers, and there is no evidence to suggest that they have a better understanding of the immigration system than that of the Appellant. The Appellant states that the visitor's permit and length of stay as a visitor is not relevant to a refugee claim and that the RPD undertook selective reasoning. The Appellant states that the RPD failed to intelligibly explain the correlation between a valid visitor's visa and a refugee claim and how that became a rallying point in the decision to reject the claim. [30] I find that the RPD did not err in drawing a negative inference from the Appellant's failure to claim in Canada. First, I find that, contrary to the submissions of the Appellant, the overstay of one year is not "short." The Appellant arrived in Canada in XXXX 2017 and was permitted under the terms of her visa to stay for six months. She applied for protection in XXXX 2018. Hence, she did not apply for protection for almost a year after her visa term expired, and she was in Canada for almost a year and one-half by that time. [31] Second, I do not find the Appellant's explanation for not applying for protection earlier that she was inexperienced and raised in a controlling environment compelling. The RPD asked why she did not explore options to stay in Canada until almost a year after her visa expired. She stated that "it never occurred to me."13 The Appellant is XXXX years old and has XXXX years of education, including spending five years in university. She states in her Basis of Claim (BOC) form that she studied XXXX XXXX. She was employed full-time for seven years in Nigeria and left that employment a few months before she travelled to Canada. She had travelled abroad numerous times and applied for visas for both the U.S.14 and Canada. She admitted in her testimony that she had access to, and used, the internet for the purposes of research.15 It is reasonable for a person with the Appellant's profile and the length of time she spent in Canada to explore options available to claim protection in light of the subjective fear of persecution she was claiming in her narrative. [32] Moreover, I find that the RPD did not err in finding the Appellant's explanation that she explored the possibility of a protection claim only after confiding with a friend, XXXX, as not credible. She lived with her sister, XXXX, who was in Canada on a student visa, for a year. I find that the RPD did not err in finding the Appellant not to be credible that she would not talk to XXXX because of XXXX close relationship with her father. The Appellant stated that she wanted to explore options of staying in Canada, and XXXX has direct knowledge of one of those options, namely, obtaining a student visa. The Appellant stated that she did not talk to her other sister, XXXX, although XXXX helped raise funds for the Appellant's trip to Canada and states "I am afraid if she comes back, the torture will continue."16 Moreover, XXXX visited the Appellant while in Canada.17 Despite XXXX considerable concern for the Appellant's safety, it is not credible for the Appellant to state that she did not, or would not, discuss with her the possibility of furthering a protection claim in Canada. [33] Similarly, I find the RPD did not err in finding that her excuse that she thought the visa expired in XXXX of 2019 was unreasonable and not credible. The Appellant is fluent in English and had access to the internet. She had applied for travel documents in the past, and it is only logical and rational that she would have some understanding of the terms and conditions of those travel documents. As noted above, the overstay was neither short nor inconsequential. The Appellant was residing in Canada for almost one year without status. While the Appellant stated that she was exploring other options to stay in Canada, it is logical and rational that she would have realized she was overstaying the terms of her visa, and one of the options of remaining in Canada would be to file a claim for protection. [34] I also do not find the Appellant's submission that her sisters are not immigration consultants as compelling. The Appellant lived with one sister for a considerable period of time, and the other sister and her putative mother visited her from time to time in Canada. It is reasonable to expect the Appellant's relatives to have some basic understanding of the visa process since the sister was resourceful enough to apply for a student visa and other relatives' abilities to attain visas to visit Canada. [35] I agree with the general principle stated by the Appellant that the delay in making a claim for protection is not, in and of itself, determinative and a reason to deny a refugee claim. Instead, the context of all of the facts in the case needs to be considered before any inference can be drawn from the Appellant's delay in making a claim for protection. A delay in claiming for protection can ground a negative inference if the claimant offers no satisfactory explanation for the delay.18 Moreover, the courts have noted that delay in claiming protection can be inconsistent with subjective fear because it is generally expected that a genuinely fearful claimant would seek protection at the first opportunity.19 [36] When reviewing the evidentiary record as a whole, I find that any negative inference that can be made regarding the Appellant's delay in claiming asylum in Canada is insufficient on its own to conclude that the Appellant lacked subjective fear of persecution in Nigeria and dismiss the appeal solely on that ground. However, the delay in claiming protection does have a significant negative inference on the credibility of the Appellant's fear of persecution or degree of risk should she return to Nigeria. Whether the RPD appropriately applied the Gender Guideline [37] The Appellant states that the RPD failed to state how it used the Gender Guideline in assessing the Appellant's claim. The Appellant states that the Appellant testified that she lived a restricted life and took "baby steps" to walking and took some time for her to manage the trauma she experienced in Nigeria. The Appellant states that the RPD should have realized that it took some time for the Appellant to manage the trauma she experienced in Nigeria. [38] I note that the Appellant does not state in her submissions how the RPD erred in applying the Gender Guideline other than stating it failed to recognize that the Appellant needed time to manage the trauma she endured in Nigeria. However, I find that the RPD only applied the Gender Guideline in part. [39] Guideline 4 outlines the particular problems women may face in testifying at a hearing at a refugee protection claim, particularly when it is difficult for them to speak about their sexual or abusive experiences. I have conducted an independent assessment of the audio-recording of the hearing, and I find that the RPD hearing was conducted in a way that complied with the Gender Guideline in this respect. The RPD specifically stated that it considered the Appellant's evidence in light of the Gender Guideline.20 The Appellant was emotional during certain portions of the hearing; however, I found that the RPD was patient, respectful and sensitive to the needs of the Appellant. The RPD asked a number of times how she was doing.21 There were no objections or intervention by Counsel with respect to how the hearing was being conducted. [40] The Appellant states that the RPD should recognize the trauma the Appellant experienced in Nigeria. I find that the RPD appropriately applied the considerations in the Gender Guideline. The Appellant neither put forth this submission at the hearing nor explained how the RPD would have recognized this trauma. The RPD found that the Appellant was in Canada for one-and-one-half years and failed to explore options to stay in Canada prior to that time, although she had family support in Canada while residing with her sister and with visits by other family members. There are no medical reports outlining the nature or depth of the psychological challenges, and, as noted, this condition was not put forth at the hearing. [41] The Gender Guideline also requires that the decision-maker demonstrate a degree of knowledge, understanding and sensitivity in assessing the Appellant's evidence and the social, cultural, religious context with respect to the evidence before the hearing. In this matter, I find, as outlined above, that the RPD may not have appreciated that there was evidence that the Appellant's putative mother, XXXX, lived in an abusive relationship for decades, despite her religious beliefs, yet she remained in the relationship and, in fact, returned to it. I find that the RPD, as per the Gender Guideline, should have been more sensitive to such issues in its analysis to recognize that her putative father may have tolerated his wife's religious beliefs, but it was within a context of an abusive environment. Should I substitute the RPD's decision? [42] The Appellant submits that, based on the record before me, I should substitute the decision of the RPD and find that the Appellant is a Convention refugee. I find that I am unable to assess certain aspects of the Appellant's evidence and must refer the matter back to the RPD with directions with respect to two issues. [43] First, I have found that the RPD did not make an express finding as to whether there is forward-looking risk from the agents of persecution should she return to Nigeria. In terms of forward-looking risk, there needs to be further exploration as to the credibility of the Appellant's narrative in light of the fact that the Appellant applied for a U.S. visa and was intending to travel to the U.S. with two friends and that she also travelled abroad on a number of occasions without claiming protection. [44] Second, I find that I cannot assess whether an IFA exists with respect to the Appellant. The RPD did raise this matter as an issue at the commencement of the hearing and only briefly raised this issue toward the end of the hearing without making any findings with respect to it in its decision. CONCLUSION [45] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. DIRECTIONS TO THE RPD [46] The RPD is to consider the totality of the evidence that forms the RPD record including: (a) The credibility of the allegations, particularly as they relate to the forward-looking risk of persecution from the alleged agents of persecution; and (b) The possibility of an IFA in Nigeria. (signed) Paul Muldoon Paul Muldoon January 27, 2021 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the IRPA. 3 Exhibit P-2, Appellant's Record, at pp. 28-29. 4 IRPA, at ss. 110(4). 5 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FC 385. 6 Tuncdemir, Omer v. M.C.I. (F.C., no. IMM-808-16), Gagné, August 31, 2016, 2016 FC 993, at para. 14. 7 Exhibit RPD-1, RPD Record, at pp. 90-92, Exhibit 4. 8 Audio Recording of the RPD Hearing, September 18, 2019, from 00:24:05 to 00:24:50. 9 Exhibit P-2, Appellant's Record, at p. 34. 10 Exhibit RPD-1, RPD Record, at p. 94, Exhibit 4. 11 Exhibit RPD-1, RPD Record, at p. 93, Exhibit 4. 12 Exhibit RPD-1, RPD Record, at pp. 90-92, Exhibit 4. 13 Audio Recording of the RPD Hearing, September 18, 2019, from 00:39:40 to 00:42:40. 14 Exhibit RPD-1, RPD Record, at p. 100, Exhibit 6. 15 Audio Recording of the RPD Hearing, September 18, 2019, from 00:39:40 to 00:42:40. 16 Exhibit RPD-1, RPD Record, at pp. 90-91, Exhibit 4. 17 Audio Recording of the RPD Hearing, September 18, 2019, from 00:22:05 to 00:22:35. 18 Osinowo, Kayode Afeez v. M.C.I. (F.C., no. IMM-2056-17), Diner, March 12, 2018, 2018 FC 284, at para. 21; Pournaminivas, Raju v. M.C.I. (F.C., no. IMM-8229-14), Boswell, September 22, 2015, 2015 FC 1099, at para. 6. 19 Renee, Leandra v. M.C.I. (F.C., no. IMM-2845-19), LeBlanc, March 24, 2020, 2020 FC 409, at para. 27. 20 Exhibit RPD-1, RPD Record, RPD' Reasons and Decision, at para. 8. 21 Audio Recording of the RPD Hearing, September 18, 2019, from 00:27:44 to 00:27:50; at 00:29:00; from 00:42:40 to 00:42:50. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-29089 RAD.25.02 (January 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 2020) Disponible en français