Docket: IMM-4368-15
Citation:
2016 FC 504
Ottawa, Ontario, May 4, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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YUSUF OLAWALE
MOSHOOD
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (“RPD”), dated August 13, 2015, finding that the Applicant is
neither a Convention refugee nor a person in need of protection pursuant to s
96 or s 97, respectively, of the Immigration and Refugee Protection Act,
SC 2001, c 27 (“IRPA”) and that the Applicant’s claim had no credible basis
within the meaning of s 107(2) of the IRPA.
Background
[2]
The Applicant is a 21 year old Nigerian citizen.
He claims that his father was assassinated as was his cousin who had been designated
to assist in the management of his father’s transportation business. Two weeks
later, the Applicant was attacked by two unknown assailants and was stabbed in
the hand. The Applicant claims that his uncles have sold some of his father’s
properties and kept the sale proceeds and that they are also attempting to
access funds held in his father’s bank account. One of these uncles hired an
agent to assist the Applicant in applying to Canadian schools and for a
Canadian student visa, which was granted. He arrived in Canada in May 2014 and
soon discovered that only the school application deposit had been paid. While
waiting for his uncle to pay his tuition, the Applicant resided in Calgary for
seven months. The agent then told him that he had been accepted at several
other colleges and, in January 2015, he moved to Lethbridge to begin a program
there. However, his uncle again failed to pay his fees.
[3]
The Applicant applied for refugee status on June
3, 2015. He claimed that he could not return to Nigeria as his father’s family
was seeking to harm him to gain access to the funds remaining in his father’s
bank account. He also claimed that, in addition to his father and cousin, there
had been an assassination attempt against his older brother. Although he does
not know who is acting against his family, he claimed that they are still
looking for him to prevent him from avenging his father’s death or to prevent
him from taking possession of his father’s wealth.
Decision Under Review
[4]
In denying the Applicant’s claim the RPD found
that credibility was the determinative issue and that his claim had no credible
basis.
[5]
The RPD noted that the Applicant had unreasonably
delayed in making his claim for over a year after entering Canada. It did not
accept the Applicant’s explanation that he did not know how to make a claim or how
to consult a lawyer or do any research. Nor did the Applicant provide a
credible explanation as to why his uncle would continue to pay an agent to make
applications to colleges and then fail to pay the tuition. The RPD noted that
the Applicant claimed that his paternal family members who had seized his
father’s property were trying to harm him but found that the Applicant had
failed to provide a reasonable explanation for his claim that the same uncle
who assisted him in coming to Canada wanted to harm or kill him if he were
returned to Nigeria. Further, the Applicant’s student visa application
contained discrepancies, including his father’s name and date of death. While
the Applicant claimed that the agent had completed the application, the RPD
noted that it also contained accurate information which must have come from the
Applicant. The RPD concluded that the inconsistent information indicated a
lack of credibility and that it was unable to ascertain what was credible and
what was not. Finally, the RPD found that the Applicant provided little
reasonable and credible evidence to indicate that he is at risk of harm from
the same people who killed his father, based on a belief that he will avenge
his father’s death. The Applicant formed his belief based on his father and
cousin’s deaths and the fact that he was stabbed in an attack but did not know
if those events were linked and, although his mother’s affidavit referred to
people enquiring about the Applicant, it was not clear who was seeking the
Applicant or why.
[6]
The RPD also assessed the documents submitted by
the Applicant in support of his claim. It found that while the Applicant
submitted a newspaper article referring to Rabiu Moshood’s death, because of
the discrepancies in the visa application regarding his father’s name and date
of death, and the lack of a birth certificate, it was unable to ascertain
whether Rabiu Moshood was in fact the Applicant’s father. While the affidavit
from the Applicant’s mother attested to the relationship, the RPD placed no
weight on it due to the credibility problems with the Applicant’s claim and similarly
dealt with a death certificate, noting the prevalence of document fraud in
Nigeria.
[7]
The RPD concluded that the delay in applying for
protection was unreasonable, the Applicant’s reasons for fleeing were not
objectively supported and his fears were not well substantiated in light of his
evidence as to who had helped him leave the country and why. Therefore, his
claim failed and, further, it had no credible basis.
Issues and Standard of Review
[8]
The sole issue in this matter is whether the
RPD’s decision was reasonable.
[9]
As this Court has previously determined,
credibility findings of the RPD, sometimes described as the “the heartland of
the Board’s jurisdiction”, are essentially pure findings of fact that are
entitled to deference and are reviewable on a reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 62 [Dunsmuir]; Pournaminivas
v Canada (Citizenship and Immigration), 2015 FC 1099 at para 5 [Pournaminivas];
Zhou v Canada (Citizenship and Immigration), 2013 FC 619 at para 26 [Zhou]).
The determination of whether a claim has no credible basis is a question of
mixed fact and law which has also been found to attract the reasonableness
standard (Hernandez v Canada (Citizenship and Immigration), 2016 FC 144
at para 3 [Hernandez]). Reasonableness is concerned with the existence
of justification, transparency and intelligibility, and whether the decision
falls within a range of possible, acceptable outcomes (Dunsmuir at para
47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
59).
Analysis
Credibility
[10]
The Applicant submits, in essence, that the RPD
engaged in a process of substituting its own speculative views as to what was
plausible over and above the Applicant’s uncontradicted evidence. Further,
that its decision was not based on the totality of the evidence but on its own
speculation and unwarranted inferences. As noted above, credibility findings
are at the core of the RPD’s jurisdiction and are entitled to significant
deference (Pournaminivas at para 5; Zhou at para 26). For the
reasons that follow, I find the RPD’s conclusion that the Applicant was not
credible to be reasonable based on the record before it.
[11]
The Applicant claimed in his Basis of Claim Form
that he feared his father’s business partners, some of his uncles and his step
mother. At the hearing before the RPD the Applicant was asked why his father
had been killed. He testified that his father had been the chairman of the Nigerian
Association of Road Transport Owners (“NARTO”) at a trailer park and that the
people who killed his father had been hired by those who work to get out of the
trailer park. When asked why the people who had killed his father because he
was the leader of the transport union workers would also want to kill the
Applicant, he testified that this was because those people thought that he
might seek revenge for his father’s death. No explanation was given as to why
those people might think this. The RPD noted that when asked if he had ever
made such statements or given an indication that he would avenge his father’s
death, the Applicant indicated that he had not. Further, that the Applicant
could not explain why those people would be motivated to seek him out if he
returned to Nigeria and settled in another city. In my view, based on this, the
RPD reasonably concluded that the threats asserted by the Applicant by unknown
persons, assumed to be connected to the death of this father, lacked
credibility.
[12]
The Applicant also asserted that he was at risk
from his uncles because they want to take control of his late father’s assets.
However, one of the same uncles that he claimed wished to harm him also paid an
agent to make applications to Canadian schools and apply for a Canadian student
visa. And, according to the Applicant, his uncle continued to pay the agent to
seek admissions to other schools after refusing to pay the tuition in the
first, and then again refused to pay tuition when he was subsequently accepted
at another school. In my view, in the absence of an explanation as to why his
uncle would spend money to assist the Applicant but would harm him if he were
to return to Nigeria, the RPD reasonably found that the Applicant’s fear of
harm by his uncle was not explained and was contradicted by the assistance
afforded to him by his uncle.
[13]
Further, other than the Applicant’s testimony,
the record contained no support for his claim that he was at risk from his
family members. His mother’s affidavit states that her husband was killed by
unknown persons. After this, his cousin was assassinated, the Applicant was
stabbed in the hand and his brother’s car was attacked. She further states
that strange people had been coming to ask after the Applicant since he left
Nigeria, claiming to know him. The affidavit makes no mention of a threat to
the Applicant from his own family nor does it suggest any motivation for the
assignations or alleged attacks on her sons.
[14]
As noted by the RPD, the Applicant testified
that he suspected the people who shot at his brother’s car were either related
to his uncle or were the same people who killed his father, but that he did not
know who was responsible for the attack. He also testified that after his
cousin’s assassination he suspected his uncle and speculated that perhaps his
uncle had just wanted to take possession of everything. In my view, given the vague
and unsupported evidence as to the agent of persecution, the RPD reasonably
concluded that the Applicant’s claims as to the threats of harm he would face
if returned to Nigeria lacked credibility.
[15]
With respect to the issue of delay in making his
claim for refugee protection, the RPD did not accept the Applicant’s
explanation for the thirteen month delay in claiming refugee status, being that
he did not know how to claim and did not consult a lawyer or conduct any
research, despite the fact that people had recommended he claim refugee
status. The RPD also found his testimony as to why he would continue to try to
obtain admission to other schools when his uncle would not pay his tuition to
be confusing and nonsensical. The Applicant submits that the RPD’s conclusion
was implausible, based on speculation and unwarranted inferences. Further, he possessed
a valid student visa and therefore did not need to make an immediate claim for
refugee protection.
[16]
In my view, it was not unreasonable in these
circumstances for the RPD to reject the Applicant’s explanation and to make
adverse credibility findings based on the Applicant’s delay in claiming refugee
status (Kostrzewa v Canada (Citizenship and Immigration), 2012 FC 1449
at para 27; Gutierrez v Canada (Citizenship and Immigration), 2015 FC
266 at paras 44-46; Licao v Canada (Citizenship and Immigration), 2014
FC 89 at paras 53-60). A review of the transcript of the hearing confirms that
the RPD raised this issue a number of times and that the Applicant’s answers
provided little clarity. There was also no evidence before the RPD that he
considered it to be unnecessary to make a claim because of his valid student
visa. Delay is a relevant consideration when assessing a claim for refugee
status on the basis that a person who is truly fearful would claim protection
at the first opportunity, although it may not be sufficient to dispose of the
claim in all cases (Bhandal v Canada (Citizenship and Immigration), 2006
FC 426 at para 29; Garcia v Canada (Citizenship and Immigration), 2012
FC 412 at paras 19-20). In this case, the RPD’s findings regarding
delay were not determinative, they were just one of the reasons it provided for
impugning the Applicant’s credibility. These are noted above and also include
the RPD’s finding that there were discrepancies in the application for a study
permit which precluded it from ascertaining what was credible and what was not.
Further, just because an applicant gives an explanation does not mean that the
explanation must be accepted by the RPD, it is open to it to consider the
response or explanation and determine if it is sufficient (Sinan v Canada (Minister
of Citizenship and Immigration) 2004 FC 87 at para 10), which is what it
did in this case.
[17]
The RPD also assessed the supporting
documentation provided by the Applicant. This was limited and included his
mother’s affidavit and two other affidavits apparently provided for purposes of
obtaining copies of the death certificates of the Applicant’s father and cousin.
The death certificates do not mention the cause of death and the news reports do
not mention the death of the Applicant’s father, but speak generally to
assassinations in Nigeria and the crisis between factions of the NARTO.
[18]
The RPD noted the lack of a birth certificate to
confirm that Rabiu Moshood was the Applicant’s father, who died on April 13,
2013, as claimed by the Applicant. Further, that the information in the death
certificate and given by the Applicant in his testimony was inconsistent with
his visa application, which identifies his father as Ola Moshood who died on
May 19, 2008. The RPD concluded that it was unable to ascertain whether Rabiu
Moshood was in fact the Applicant’s father. And, given its numerous
credibility concerns and because the objective evidence indicates that document
fraud is prevalent in Nigeria, it placed no weight on the provided death
certificate. It concluded that the documents submitted to corroborate the
Applicant’s claim, including his mother’s affidavit, did not outweigh the
credibility problems it had identified.
[19]
The Applicant asserts that the RPD misunderstood
the evidence as his own sworn affidavit stated that Rabiu Moshood was his
father and that this is uncontradicted, further that the RPD failed to consider
the totality of the evidence.
[20]
I am not convinced that the RPD misunderstood
the evidence or failed to consider it. It is true that when an applicant
swears to the truth of certain allegations, this creates a presumption that
those allegations are true unless there are reasons to doubt their truthfulness
(Maldonado v Canada (Minister of Employment and Immigration), [1980] 2
FC 302 (FCA) at para 5). In this case the RPD found the Applicant not to be
credible and gave reasons for this finding. Once the RPD came to the
conclusion that the Applicant was not credible, it was not sufficient for him
to file an affidavit and affirm the truth of its content, some form of
corroboration or independent proof was required to offset the RPD’s negative
conclusion on credibility (Hamid v Canada (Minister of Employment and
Immigration) [1995] FCJ No 1293 at para 20). The RPD referred to the
documents submitted by the Applicant in support of his claim and specifically
referenced his mother’s affidavit, the death certificates, a captioned
photograph referring to the death of Rabiu Moshood and news articles.
There is also a presumption that the RPD considered all of the evidence that
was before it (Hassan v Canada (Employment and Immigration), [1992] FCJ
No 946 (FCA) at para 3) and a failure to mention a particular piece of evidence
does not mean that it was ignored or that the RPD committed a reviewable error,
unless it contradicts the RPD’s finding (Li v Canada (Citizenship and Immigration),
2008 FC 266 at para 19 [Li]). While the Applicant asserts that, given
his other evidence, there was no need to produce a birth certificate to
establish his paternity, I would note that where a claimant’s story is found to
lack credibility, the absence of documentary corroboration is a valid
consideration (Matsko v Canada (Citizenship and Immigration), 2008 FC
691 at para 14).
[21]
As to the RPD’s reference to the availability of
fraudulent documents in Nigeria, in my view, a more thorough assessment was
required if the RPD sought to impugn the validity of purportedly
government-issued documents. Such documents are presumed to be valid (see Chen
v Canada (Citizenship and Immigration), 2015 FC 1133 at para 10). However,
while the death certificates and the photographs may confirm that Rabiu Moshood
died in 2013, they do not speak to the cause of his death or to the Applicant’s
paternity. The newspaper articles are of little assistance as they report
unrelated assassinations in Nigeria and ongoing conflict within the NARTO
organization. Therefore, it was reasonable for the RPD to assign little weight
to these documents as they do little to support the basis of the Applicant’s
claim.
[22]
As to the Applicant’s mother’s affidavit, as
noted above, this states that Rabiu Moshood was the Applicant’s father and that
he was assassinated on April 13, 2013. One of the uncle’s affidavits also
states that Rabiu Moshood was assassinated on April 13, 2013. However, despite
the RPD’s reference to the availability of fraudulent documents, in my view,
the RPD did not impugn the validity of the Applicant’s mother’s affidavit,
rather it found that the contents of the affidavit did not serve to
sufficiently corroborate his claim and, together with the other documentary
evidence, it did not outweigh the RPD’s credibility concerns.
[23]
This is a reasonable conclusion. As the Court
stated in Li at paragraph 19, “A general finding
of a lack of credibility on the part of the applicant may conceivably extend to
all relevant evidence emanating from the applicant's testimony”. The
affidavits from the Applicant’s mother and uncle reiterate the same claims the
RPD found not credible in the Applicant’s evidence. They provide no other
details about the alleged assassins. His mother’s affidavit states that her
husband was killed by unknown assassins. She does not make any link between
his death and alleged attacks on the Applicant or his brother. Nor does she
indicate why her husband was assassinated or why there were alleged attacks on
her sons. These were all concerns with the Applicant’s claim and testimony as
raised by the RPD. The only additional evidence relating directly to the
Applicant is his mother’s statement that “strange
people have been coming to ask after [him] since he left Nigeria…” which
provides little support for his claim. In my view, it was open to the RPD to
give no weight to this affidavit evidence in the face of its negative
credibility findings regarding the Applicant’s claim.
[24]
In conclusion, I am satisfied that the RPD
reasonably assessed and considered the totality of the evidence before it and
that its decision falls within the range of possible, acceptable outcomes.
No credible basis
[25]
The RPD also found that there was no credible
basis for the Applicant’s claim. The Federal Court of Appeal in Rahaman
v Canada (Minister of Citizenship and Immigration), 2002 FCA 89 at para
19 [Rahaman] found that when the only evidence linking an applicant to
the harm that he alleges is found in their own testimony and the claimant has
been found to be not credible, the RPD may, after examining the documentary
evidence, make a general finding that there is no credible basis for the claim.
This is only the case where there is no independent and credible documentary
evidence that is capable of supporting a positive determination of the refugee
claim (also see Ouedraogo v Canada (Minister of Citizenship and
Immigration), 2005 FC 21 at para 19; Levario v Canada (Citizenship and
Immigration), 2012 FC 314 at paras 18-19; Rahaman at para 51).
[26]
In this case, even if it were accepted that
Rabiu Moshood was the Applicant’s father and that he was assassinated, the only
evidence that could potentially corroborate the Applicant’s claim were the
affidavits from his mother and his uncle. As I have already found, given the
RPD’s credibility findings and the lack of specificity in the affidavits, it
was not unreasonable for the RPD to accord them little weight and to find that
they were insufficient alone to support a positive determination of the Applicant’s
claim (see Hernandez at para 11). There is also no supporting evidence
of the Applicant’s claim that family members seek to harm him in Nigeria. Accordingly,
and while noting the high threshold for a no credible basis finding and its serious
implications (Hernandez at para 10; Rahaman at paras 51-52), in
my view the finding was open to the RPD based on its credibility findings and
the record.
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