TB4-02750

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 : TB4-02750 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 25, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin Edoh 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 (de la) ministre Reasons and Decision [1] XXXXXX XXXXXX XXXXX (the Appellant) is a citizen of Nigeria. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He did not submit new evidence in support of his appeal, but he did request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] Pursuant to Section 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 alleged before the RPD that he fears for his life in Nigeria. He alleges he was falsely accused by the police and members of the Joint Task Force (JTF) of financially supporting and abetting the Boko Haram. He was detained for two weeks in the police station, during which time he was beaten and interrogated. He was able to bribe one of the police officers, who assisted him to escape. After his escape, he went into hiding, staying in for a period of time in two different cities. The police continued to pursue him from city to city. While in hiding, he applied for and was issued a Canadian visitor's visa in order to attend his brother's convocation. He traveled to Canada in November, 2013. Following the convocation, he traveled to the US with his brother and then later returned to Canada and made a refugee claim. [4] His application for refugee protection was heard on February 24, 2014. In a decision of March 7, 2014, the RPD denied the Appellant's claim finding that the Appellant was not credible. [5] The Appellant submits that the RPD's decision is replete with errors of law and fact. In particular, the Appellant submits that: a) The RPD failed to take into consideration the reasonable explanations offered by the Appellant in describing the mistreatment, torture, death threats he received from the JTF in Nigeria; and b) The RPD committed a fundamental error when it failed to place weight and trust on the documentary evidence before it. Application for an Oral Hearing [6] The Appellant requests an oral hearing pursuant to Section 110(6) of the IRPA. [7] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [8] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [9] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [10] The Appellant has not submitted new evidence in support of his appeal. As such, the RAD must proceed without a hearing in his appeal, and his application for an oral hearing is denied. STANDARD OF REVIEW [11] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. The Appellant makes no submissions on the standard of review. [12] The Federal Court, in Iyamuremye,1 has addressed the question of standard of review to be applied by the RAD in reviewing RPD findings. The Federal Court found that it was correct for the RAD to apply a standard of reasonableness for questions of fact and mixed fact and law, and correctness for questions of law. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, as per Dunsmuir.2 ANALYSIS OF THE MERITS OF THE APPEAL The RPD failed to take into consideration the reasonable explanations offered by the Appellant in describing the mistreatment, torture, death threats he received from the JTF in Nigeria. [13] The Appellant's submission is decidedly vague and does not specify which explanations he alleges the RPD did not consider or where in the record those explanations are located or how the explanations offered overcome the RPD's findings of fact. The Appellant seems to submit that the RPD's findings of fact regarding the credibility of the Appellant's testimony concerning his mistreatment, torture and death threats are rendered unreasonable because the RPD failed to take into consideration his explanation for his perceived testimonial failings. [14] The RAD finds, however, that it is clear from the record that the RPD did consider the Appellant's explanations before coming to its conclusions on credibility. The RPD noted the Appellant's explanations in its reasons and provided sound reasoning in rejecting those explanations. [15] Additionally, the RAD has reviewed the credibility findings of the RPD and finds that the RPD's findings were reasonable in light of the totality of the evidence. The RPD committed a fundamental error when it failed to place weight and trust on the documentary evidence before it. [16] The Appellant submits that the documentary evidence he submitted should have been afforded more weight and trust by the RPD. However, the Appellant does not provide any argument for this submission, and it is impossible to determine which documentary evidence the Appellant is referring to and how that evidence overcomes the findings of the RPD. [17] Nevertheless, the RAD notes that the Appellant tendered two documents before the RPD, a medical report from Zion Hospital3 and an affidavit deposed by Dami Tobie,4 which directly support his allegations of abuse at the hands of the JTF. While the RPD does state in a global way that it considered the entire documentary and viva voce evidence in the hearing, the RPD fails to directly address these specific documents in its reasons. The RAD finds it problematic that the RPD did not directly address this contradictory evidence in its findings; however, the RAD finds that there is sufficient evidence in the record to give these documents little weight. [18] The RPD has made a finding on the lack of generally credibility of the Appellant. The RPD has found that the Appellant's general credibility has been undermined and that the allegations giving rise to his claim for refugee protection have been undermined. Furthermore, the evidence in the national documentation package reveals that Nigeria is a centre for false document manufacturing.5 The RAD finds that, given the significant and numerous credibility findings, it was open to the RPD to place little weight on these documents and find that they do not overcome the totality of the adverse credibility findings. The RAD notes that neither of these documents provides independent evidence of the abuse the Appellant alleges he suffered at the hands of the JTF. Rather, both of these documents are based on information that was self-reported by the Appellant and merely repeated by the authors of the documents. Accordingly, the Appellant's argument in this regard must fail. [19] In light of all the evidence, the RAD finds that the determination made by the RPD in this matter is reasonable. DISPOSITION [20] Pursuant to Section 111(1)(a) of 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. (signed) "L. Favreau" L. Favreau June 25, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 3 Exhibit RPD-1, p. 99. 4 Ibid., p. 100. 5 Exhibit RPD-1, National Documentation Package (NDP) for Nigeria (29 November 2013), items 3.9 and 3.19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-02750