TB7-10718

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 : TB7-10718 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 17, 2018 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Diana Gallego 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 INTRODUCTION [1] XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to refer the matter back to the RPD for re-determination. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleges that after she became pregnant, her boyfriend and his family insisted that she undergo some rituals to confirm that her boyfriend was actually the father of the child. They also informed her that once the child was born, he or she would have to undergo rituals, which included circumcision. In November 2015, the Appellant went to the United States (US) to get away from the situation. When the boyfriend and his father discovered she had left, they threatened the Appellant's father with arrest if he did not disclose her whereabouts. Her father then went to the police to file a complaint, but was warned that they would not intervene as they considered this a family matter. Her father subsequently gave in, and gave her number to her boyfriend, who warned her that he would use the family's contacts in the US to bring her back to Nigeria and undergo the rituals. At this point, her friend advised her to come to Canada and seek protection. [4] The Appellant's application for refugee protection was heard on February 14, 2017 and March 14, 2017. In a decision of May 17, 2017, the RPD rejected the claim. The RPD had concerns with the Appellant's credibility and found that she had an internal flight alternative (IFA) in Port Harcourt. THE ISSUES [5] The Appellant submits the following as grounds for appealing: i. Issues in the hearing related to natural justice, such as the RPD's findings on credibility, counsel's capacity, and factual issues in the RPD's Reasons and Decision; ii. An issue of law and fact that it was proven on a balance of probabilities that there was no internal flight alternative in Nigeria; and iii. An issue of law, as the United States is not a safe third country for asylum seekers. ROLE OF THE RAD [6] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica1 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [7] In light of the Court's ruling, when conducting an appeal of a determination by the RPD, the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed a meaningful advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. ANALYSIS Credibility [8] The RPD had a number of concerns with the Appellant's credibility. Failure to Claim in the US [9] The RPD noted that the Appellant travelled to the US in November 2015 and that her boyfriend continued to telephone and threaten her to return to Nigeria to perform traditional rituals. When asked why she did not claim asylum in the US, she replied that her boyfriend's father was wealthy and influential, and she feared that she could be found in the US and be forced to return to Nigeria. She also stated that she did not realize she could claim asylum in the US. [10] The RPD did not accept the Appellant's explanation, noting that she had four years of college education and was in possession of a valid visitor's visa. It found that, given her level of education, she could have researched how to apply for asylum in the US and, with her visitor's visa, did not risk deportation in the US as she did in entering Canada illegally. The RPD found as well that if the Appellant feared that she might have been discovered in the US, she could have relocated to many different areas. Her failure to seek asylum in the US led the RPD to find that the Appellant demonstrated a lack of subjective fear and to draw a negative inference with respect to her allegations. [11] The Appellant submits that the US is not "a safe third country for asylum seekers like Ms. XXXX" and that the designation of the US as a safe third country is currently being litigated in Federal Court. The Appellant further submits that empirical studies have shown that there are dramatically inconsistent rates of acceptance for similar cases across the US, and cites Atlanta where immigration judges denied 98% of claims, as an example. Given the variance and inconsistency in refugee determination across the US, the Appellant submits that a reasonable person would therefore not make an asylum claim in the US. [12] The RAD has considered the Appellant's submissions and supporting documentation2 with respect to asylum claims in the US. First of all, the RAD notes that consideration as to whether the US is indeed "a safe third country" is, as she has highlighted, before the Federal Court, and current jurisprudence does not support the Appellant's position that the US is not a safe place for asylum seekers such as the Appellant. Secondly, the RAD notes the Appellant, while in the US, resided in Maryland and there was no evidence to indicate that she would have appeared before an immigration judge in Atlanta. [13] The RAD has also considered the Appellant's testimony when questioned as to why she did not seek asylum in the US during her five-month stay. Several times, during both sittings of the hearing, the Appellant was asked why she did not make an asylum claim in the US where she had status, and instead risked deportation by entering Canada illegally. The Appellant testified that she was unaware of the process for seeking asylum in the US. The RPD noted, however, that her US visitor's visa was valid for a two year period, allowing plenty of time to inquire about and research the asylum process in the US. While the Appellant had two years of post-secondary education, not the four years cited by the RPD, the RAD finds that she had sufficient education and time to inquire about protection in the US. Further, she was living with her paternal uncle during her time in the US, and could have turned to him for assistance. [14] The Appellant testified that she was fearful during her entire time in the US, believing that somehow her ex-boyfriend and his family had contacts in the US or some influence with US police. This fear was so debilitating that she was unable to take action. The RAD finds the Appellant's explanation unreasonable. [15] The RAD also found the Appellant's explanation as to how she located an agent to bring her to Canada, improbable. According to the Appellant, the one and only time she went out during her five-month stay in the US, she went to a club and while sitting at a table, she was approached by a woman who noticed how sad she looked and told the Appellant that she was someone the Appellant could talk to. After the Appellant shared her experience in Nigeria, the woman told her to come back the next day. When the Appellant returned, the woman was there with the agent, and told her she could go to Canada to get protection. [16] The RAD found the Appellant's account of her time in the US, her failure to seek protection there, and her eventual travel to Canada, unreasonable and improbable. As the Federal Court of Appeal has stated in Shahamati: "the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense."3 The RAD concurs with the RPD and finds the Appellant's failure to claim asylum in the US indicative of a lack of subjective fear, and draws a negative inference with respect to the Appellant's credibility. The disclosure of the Appellant's telephone number [17] The RPD also found that it was illogical and unreasonable that her father would have disclosed her telephone number to her boyfriend and his family whom she feared. Further, it found it unreasonable that the Appellant would not have changed her telephone number so that the boyfriend could not continue to contact her. The RPD found the Appellant's actions to be inconsistent with her alleged fear of her boyfriend and his family, raising concerns with the credibility of her allegations. [18] The Appellant submits that she testified that her ex-boyfriend made violent threats to her father and that fearing for his own safety, he relented and provided the ex-boyfriend with her telephone number. She submits that the RPD never addressed her testimony in its Reasons and Decision, and determined that the father's actions were "not logical." She submits that the RPD had no basis for doubting her sworn testimony and its finding is in violation of the Board's own guidelines.4 [19] The RAD has reviewed the Appellant's testimony as well as the statements in her Basis of Claim (BoC), narrative. The RAD notes the actions of the Appellant's father in this regard are not entirely clear. In her testimony at the first sitting of the hearing,5 the Appellant stated that her boyfriend told her father that if he did not provide him with the Appellant's telephone number, he would do something to the father that he was "going to regret." In her submissions, the Appellant has suggested that the "something" her father was "going to regret," was some form of violence. While this submission would appear to be a reasonable inference by the Appellant, the RAD notes that in her BoC narrative, she stated: "...XXXX and his father went to my house threating [sic] my father arrested if he didn't tell him where I was. So my father went to the police to make complain [sic] after XXXX father threating [sic] my father arrested but the police said is family issue that we have to settle it ourselves, so my father gave him my number."6 It would appear from the statements in her BoC that her father acted out of fear of arrest rather than of violence as was suggested by the Appellant in her submissions. The RAD finds the Appellant's oral testimony inconsistent with the statements in her BoC narrative, and draws a negative credibility inference. [20] The RAD also notes that during her testimony at the first sitting of her hearing, the Appellant testified that the boyfriend was in possession of her telephone number: "He had my number when I was still in the US."7 When then asked by the RPD if the boyfriend called her on a landline or on a cell phone, she replied: "He has my own personal cell phone number."8 The RAD finds this testimony curious in light of her assertion that her boyfriend did not have her telephone number, and that he obtained it only after the Appellant's father was threatened. Again, the RAD finds the Appellant's evidence to be inconsistent and draws a further negative inference with respect to her credibility. IFA [21] The RPD applied the two-pronged test established in Rasaratnam9 to determine whether Port Harcourt was a viable IFA for the Appellant. The Appellant was asked whether she could live in Port Harcourt and replied that there was nowhere in Nigeria she could hide, as her ex-boyfriend's father was a wealthy and influential man, with connections to the police. She indicated that when she had previously fled to her schoolmate's house in Abeokuta, which according to her is approximately one and a half hour's drive from her home in Lagos, her ex-boyfriend showed up with an escort of three policeman. She testified that since the police are in possession of her photograph, they will be able to track her down anywhere in the country, and that it is clear that the police have been bribed by the ex-boyfriend's family to try and locate her. [22] The RPD found that while the police may have located the Appellant at her schoolmate's home, it did not mean that they could find her anywhere in Nigeria. The RPD further found that there was insufficient reliable and trustworthy evidence to persuade it to believe that the police have been bribed to look for the Appellant in Port Harcourt and are currently looking for her. As well, the RPD found that there was no clear and convincing evidence to conclude that the ex-boyfriend's family has the ability to find the Appellant anywhere in Nigeria. It therefore found that she could live safely in Port Harcourt. [23] The Appellant submits that the RPD erred in finding that the Appellant had an IFA in Port Harcourt without having refuted that she had been found initially in Abeokuta or presenting evidence that Port Harcourt is a reasonable IFA for the Appellant [24] The RAD notes that the Appellant's initial flight within Nigeria was to the city of Abeokuta. According to her Schedule A, this is where she attended school from XXXX 2010 to XXXX 2015,10 and in her BoC narrative,11 she indicated that Abeokuta is also where her ex-boyfriend's family have a home. Even without the credibility concerns in the Appellant's evidence, the RAD finds that it would not be difficult for the ex-boyfriend to find her in Abeokuta. The Appellant studied there during the same time she was dating her ex-boyfriend (XXXX 2013-XXXX 2015). His family also had a home in the same city, so it would be reasonable to conclude that he would be aware of her schoolmates and where she might reasonably flee to in Abeokuta - the only city in Nigeria with which she was familiar. The escort of three policemen seems, not only superfluous, but suggests that her testimony in this regard is at least an embellishment of her story. [25] The RPD found that there was no clear and convincing evidence that the ex-boyfriend's family has the ability to locate the Appellant anywhere in Nigeria. The Appellant indicated in her BoC that her ex-boyfriend's father, XXXX XXXX XXXX, is wealthy and influential, and the head of a secret cult.12 At the hearing, she testified that he was the head of the cultists and when asked to explain, she stated that he was the XXXX of the "XXXX XXXX." The RPD then asked the Appellant if she had any evidence that her ex-boyfriend's father held this position. She replied that she had photographs of him, which the RAD notes were submitted as evidence. [26] The RAD notes that documentary evidence indicates that the XXXX XXXX13 is a secretive organization also referred to as a "XXXX" society or "XXXX." The evidence as to their degree of influence is mixed. Some sources indicate that: [i]n most Yoruba parts of Nigeria, ... have no real power whatsoever. The only Yoruba parts of Nigeria where they still have some real influence on the traditional administration of the cities are in the Egba, Egbado and Abeokuta parts of Nigeria. These would correspond roughly to pockets of areas in Ogun State and Lagos State. Also, in some rural villages and small towns along in the borders of Ogun State with Oyo, Osun and Ondo States, they might still be able to intimidate pockets of people.14 [27] Other sources state that the XXXX still have "quite significant" influence and power over the affairs of the nation, and that some XXXX XXXX are from the elite "including the Police, Judiciary, government establishment and traditional institutions [which] makes members of the cult to be seemingly above the law."15 [28] The RAD notes the Appellant has described in great detail the rituals and she and her child would have to undergo.16 The RAD finds, however, that her evidence is not consistent with the available evidence on the XXXX XXXX. XXXX XXXX at the University of Leicester indicated that particularities about the rituals and ceremonies of the XXXX XXXX are a "XXXX that only an XXXX XXXX can answer," risking his or her own death.17 Given the documentary evidence, the RAD does not find it reasonable that her ex-boyfriend's family would likely provide with the details of their ritual - especially ahead of time, thereby risking disclosing their "XXXX." [29] With respect to the second prong of the IFA test, which indicates that "...conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the claimant, for her to seek refuge there,"18 the RPD found that it was not unreasonable to have the Appellant seek refuge in Port Harcourt. It noted that the Appellant had four years of post-secondary education in business administration, spoke English and would be able to find employment in Port Harcourt. It noted that Port Harcourt, as a large city, had all the amenities required for the Appellant and her child, and that she had not provided any evidence to indicate that she would be unable to seek assistance in caring for her child if required. It also noted that the Appellant had relocated to Canada without having friends or family here and without knowledge of the country and it customs. [30] When asked about her ability to live in Port Harcourt if she did not have the problems that she alleged, the Appellant replied that she had no support there, that she never had a job in Nigeria and had no work experience, that there was a recession in Nigeria, and that residents of Port Harcourt would receive preferential consideration for any available job opportunities. She indicated that without a job, a place to live, and familial supports, she and her child would end up destitute and fall prey to kidnappers and human traffickers. [31] The RAD has considered the Appellant's situation in light of Chairperson's Guideline 4.19 She is a single parent undergoing significant psychological difficulties. Her psychiatric assessment indicates that "she presents with symptoms of PTSD with dissociation, depressed mood and high level of anxiety."20 She has some post-secondary education in business administration, but did not complete her degree and has no work experience. She has no family or friends in Port Harcourt, and there is no evidence of supports in the City for a single woman, who would also be vulnerable to crime. The RAD finds therefore that it would be unreasonable for the Appellant to relocate to Port Harcourt. [32] Notwithstanding its finding with respect to the absence of an IFA in Port Harcourt, the RAD does not find the Appellant to be either a Convention refugee or a person in need of protection. The credibility concerns highlighted in this decision are sufficient to rebut the Maldonado21 principle regarding sworn evidence, and the RAD finds that there is insufficient credible and trustworthy evidence to support the Appellant's allegations. As indicated in Gebatas: "As stated by this Court numerous times, general findings of lack of credibility can affect all relevant evidence submitted by an applicant, including documentary evidence and ultimately cause the rejection of a claim."22 [33] The RAD has also considered the Appellant's psychiatric assessment in light of Justice Kane's comments in Demberel, which highlights the pitfalls of overreliance on psychological or psychiatric assessments: "the jurisprudence has cautioned that the recounting of events to a psychologist or psychiatrist does not make these events more credible..."23 The RAD finds that, although the Appellant may be suffering from anxiety, depression or PTSD, this may or may not be related to the causes described by her in her evidence. It finds that her psychological difficulties are insufficient evidence to support her allegations that her ex-boyfriend and his family want her and her daughter to undergo a number of rituals. Counsel's Capacity [34] The Appellant submits that there is doubt as to whether she was adequately represented during her hearing. The Appellant notes that her counsel arrived late, was essentially silent for most of the first sitting of the hearing, and that a second sitting of the hearing had to be scheduled because counsel was too ill to continue. The Appellant further submits that her counsel was unable to deliver her written submissions at the end of the hearing because she claimed that she was having technical difficulties and had to fax the submissions, post-hearing. The Appellant submits that her counsel's illness and level of professionalism have sufficiently tainted the appearance that her claim has received fair consideration in accordance with natural justice and therefore merits redetermination by the RPD. [35] The RAD has considered the Appellant's submission with respect to her counsel's level of competence and professionalism. It notes that no formal complaint was lodged with the law society. Nonetheless, it has reviewed the recording the hearing and the written submissions provided by the Appellant's counsel at the RPD hearing. It notes that while there were challenges, the RPD did schedule a second hearing and revisited the testimony given at the first. The RPD did not appear to be negatively influenced by counsel's behaviour and actions. The RPD's response was one of understanding that "these things happen." The RAD has reviewed counsel's written submissions and finds them to fulsome, professional, and reflective of the proceedings during the two sittings. It finds that the Appellant received professional representation at her RPD hearing and that natural justice was not breached. [36] The RAD also notes that the Federal Court of Appeal in Singh has pointed out that: "It is settled that an applicant must live with the consequences of the actions of his counsel"24 and further stated: ...I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved...25 Factual Errors [37] The Appellant has submitted that there are factual issues with the RPD's Reasons and Decisions that raise concerns that she may not have received fair consideration. The Appellant has pointed out that the RPD member erroneously stated that she had completed four years of post-secondary education, when in fact she had only completed two years of college. She submits that this error may have affected the RPD's finding that the Appellant would be able to find a job in Port Harcourt, thus making it a viable IFA. The RAD's finding that Port Harcourt is not a viable IFA addresses the Appellant's concern in this regard. [38] The Appellant also submits that the RPD erred in its assumptions regarding the Appellant's English ability. Se submits that her need and use of a Yoruba interpreter contradicts the RPD's finding. The RAD notes that throughout the hearing, the Appellant responded directly to the RPD's questions and sometimes corrected the interpreter. While the Appellant's level of proficiency in English is unclear, it is apparent that the Appellant understood much of what was being asked by the RPD. The RAD therefore finds that the RPD's finding was not unreasonable. [39] With respect to the lawyer's name appearing as Johnson Babalola, rather than Light Nugusse, the RAD notes that Ms. Nugusse is a lawyer in the firm of Topmark Attorneys, as is Mr. Babalola. As the lead attorney in that firm, Mr. Babalola's name may have been inadvertently placed on the cover page of the Reasons and Decisions. The RAD does not find the error to be egregious or significant. [40] The RAD has considered the Appellant's submissions with respect to factual errors in the RPD's Reasons and Decisions, and finds that they have not affected the decision in this case, nor are they sufficiently significant to override the credibility concerns of the claim. CONCLUSION [41] On the basis of its findings noted above and after an independent assessment of all the evidence in the record, the RAD confirms the decision of the RPD, pursuant to paragraph 111(1)(a) of the IRPA, that the Appellant is neither a Convention refugee nor a person in need of protection, and dismisses the appeal. (signed) "Anthony da Silva" Anthony da Silva January 17, 2018 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. 41-91. 3 Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994. 4 Immigration and Refugee Board of Canada (IRB), "Assessment of Credibility of Claims for Refugee Protection" IRB website: www.irb-cisr.gc.ca 5 Recording of Hearing, Track 1 at 1:23:24 - 1:24:04. 6 Exhibit RPD-1, RPD's Record, BoC narrative at p. 17, 3rd para. 7 Recording of Hearing, Track 1 at 43:25 - 43:49. 8 Ibid., Track 1 at 45:30 - 45:45. 9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 10 Exhibit RPD-1, RPD's Record, Schedule A at p. 38, q. 8. 11 Ibid., BoC narrative at p. 16, 2nd para. 12 Ibid., BoC narrative at p.16, 1st para. 13 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Nigeria (30 November 2016), at item 13.5. 14 Ibid., at p. 3. 15 Ibid. 16 Exhibit RPD-1, RPD's Record, BoC narrative at p. 16, 7th para.; p.17, 1st para. 17 Supra, footnote 13 at p. 4. 18 Supra, footnote 9. 19 Chairperson's Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution. 20 Exhibit RPD-1, RPD's Record, Psychiatric Assessment at p. 237. 21 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 22 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013, 2013 FC 1241, at para. 29. 23 Demberel, Ariunaa v. M.C.I. (F.C., no. IMM-5780-15), Kane, June 28, 2016, 2016 FC 731, at para. 47. 24 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. 66. 25 Ibid., at para. 67. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-10718