Docket: IMM-18799-24
Citation: 2025 FC 1981
Ottawa, Ontario, December 17, 2025
PRESENT: The Honourable Madam Justice Saint-Fleur
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BETWEEN: |
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DAVID IKHENA SUGABA |
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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 |
JUDGMENT AND REASONS
I. Overview
[1] This is an application for judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board dated September 23, 2024 [Decision] rejecting the Applicant’s appeal of the decision of the Refugee Protection Division [RPD].
[2] This application for judicial review is dismissed. I find the Decision to be reasonable.
II. Background Facts
[3] The Applicant is a Nigerian citizen who fears harm by the police because of his participation in the EndSARS protests.
[4] Between October 15, 2020 and October 17, 2020, the Applicant participated in the EndSARS protests in Nigeria. The Applicant, along with other protestors, was attacked and detained by the police on October 17, 2020. The Applicant was released the following day.
[5] The police allegedly attempted to locate the Applicant at his home on December 20, 2020. The Applicant subsequently went into hiding and lived with a reverend in the Applicant’s neighbourhood.
[6] The Applicant was informed by his friend the police were rearresting protestors who had been released.
[7] Before participating in the protests, the Applicant applied to a Master’s program in Switzerland. He received his acceptance in December 2020, successfully applied for a Swiss study visa, and left Nigeria on April 6, 2021.
[8] The Applicant remained in Switzerland for approximately 2 years and 8 months. However, the Applicant could not afford to continue his Master’s program. At this time, the Applicant learned the police had allegedly attended to his house twice inquiring about his whereabouts and, on one occasion, the police detained his mother. The Applicant testified at his hearing these inquiries were made in January 2022 and August 2022.
[9] The Applicant decided to apply for a Canadian visa. While awaiting a decision, the Applicant visited three countries: France, to provide his biometrics for his Canadian temporary visa; Spain, for his birthday; and England, where he resided from February 2023 to June 2023. These three countries are all signatories to the 1951 Convention on the Status of Refugees.
[10] After being granted a Canadian temporary visa, the Applicant arrived in Canada on June 15, 2023, and commenced his refugee claim in August 2023.
III. Decision Under Review
[11] The RAD denied the Applicant’s appeal of the decision of the RPD rejecting his refugee protection claim. The determinative issues before the RAD were the Applicant’s credibility and forward-facing risk.
A. Admissibility of New Evidence
[12] The Applicant provided eight news articles about the treatment of EndSARS protestors which were dated after the Applicant’s claim was decided by the RPD. The RAD admitted these articles, finding they met the temporal requirements set out in subsection 110(4) of the IRPA. The RAD also held that these articles appeared to be credible and relevant to the Applicant’s forward-facing risk since they refer to the continued arbitrary detention of EndSARS protestors and violence in Nigeria.
[13] The Applicant also submitted two affidavits: one from himself and the other from a student from his counsel’s office. The RAD did not admit the affidavit from the student because it attached documents that were in the RPD Record and were already before the RAD. The Applicant’s affidavit was not admitted either since it did not contain any new information not already before the RAD. Furthermore, the RAD found the Applicant’s own affidavit did not satisfy the temporal requirements set out in subsection 110(4) of the IRPA because it contains explanations which could have been presented to the RPD during his hearing. No reason was provided as to why he did not do so.
B. Credibility Assessment and Forward-Facing Risk
[14] The RAD upheld the RPD’s decision.
[15] First, the RAD found the Applicant’s evidence was not credible considering the several inconsistencies and omissions across his Basis of Claim [BOC], his testimony at his hearing, and his documentary evidence.
[16] The RAD considered that the Applicant did not mention in his BOC that the police visited his mother’s house and inquired about him on December 20, 2022. The Applicant also did not mention in his BOC that he hid in the Reverend’s house from December 2020 until April 2021 when he left Nigeria. However, the Applicant did testify to both at his RPD hearing. Similarly, the Applicant omitted in his BOC that the police returned to his mother’s house on January 2022 and August 2022 looking for him which he referred to in his testimony.
[17] The RAD assigned little weight to the affidavits of the Applicant’s friend and mother, and the letter from the Reverend finding they lacked specificity and were inconsistent with the Applicant’s own timelines.
[18] Specifically, the RAD noted the mother’s affidavit did not mention the December 2020 police visit to her house, nor did she provide dates for the following two alleged police visits. The RAD found the mother’s affidavit to be of limited probative value, insufficient to establish the police inquired about the Applicant, and inconsistent with the Applicant’s testimony related to the visits by police.
[19] The friend states in his affidavit the police were rearresting protestors and harassing their families “shortly after”
the Applicant left for his Master’s program in April 2021. The friend also states, at this point, he contacted the Applicant to warn him his mother was being harassed and the police were looking for him. The RAD identified this evidence as being inconsistent with the Applicant’s own testimony where he states the first of the two times the police inquired about him to his mother was in January 2022. Furthermore, the RAD concluded that January 2022 was not “shortly after”
the time the Applicant left Nigeria. The RAD also questioned whether the Applicant’s friend had first-hand knowledge of the events described in his affidavit.
[20] The RAD also addressed the Reverend’s letter and found it was inconsistent with the Applicant’s BOC which omitted any reference to hiding in the Reverend’s house.
[21] The RAD also identified, as a peripheral issue, the Applicant misrepresented his father’s identity on his Canadian visa application. Rather than properly naming his father, he listed his uncle’s name. The RAD did not accept the Applicant’s characterization that this was a mistake.
[22] Second, the RAD found that the Applicant did not establish a subjective fear of persecution. According to the RAD, from the time his subjective fear crystallized to the time he submitted a refugee claim in Canada, the Applicant’s behaviour did not suggest he had a subjective fear. The Applicant made no efforts to seek refugee protection from any of the three Convention signatory countries he visited before he arrived in Canada. The RAD did not accept the Applicant’s explanations and found it illogical he would not seek legal advice as to his options for claiming refugee protection in Switzerland.
[23] The Applicant deferred his claim for refugee protection in Canada for two months. The RAD concluded he had “ample time to get his thoughts together”
to provide a complete story, despite his claim to the contrary. The Applicant’s delay in leaving Nigeria, remaining in the same neighbourhood, and the delay in making his refugee claim undermine any claim of subjective fear.
[24] Third, the RAD concluded the Applicant’s evidence did not support a forward-facing risk to the Applicant should he return to Nigeria based on the Nigerian police’s lack of action and lack of inquiries about him during the last two years. The RAD concluded the National Documentation Package [NDP] evidence was irrelevant to its analysis and based its determination of the Applicant’s claim for refugee protection on the lack of credibility of the evidence and the Applicant’s lack of forward-facing risk.
IV. Issues and Standard of Review
[25] This matter raises the following issues:
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Is the RAD’s assessment of the Applicant’s credibility reasonable considering the evidence?
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Is the RAD’s assessment of the Applicant’s forward-facing risk reasonable?
[26] The parties concur, and I agree, the standard of review is reasonableness. In this respect, the role of the reviewing court is to examine the decision maker’s reasoning and determine whether the decision is based on an “internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 85-86 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 64). A decision will be reasonable if, when read as a whole and taking into account the administrative setting, it bears the hallmarks of justification, transparency, and intelligibility (Vavilov at paras 91-95, 99-100).
V. Relevant Dispositions
[27] Subsection 110(4) of the IRPA allows the RAD to admit evidence not reasonably available when an applicant’s claim was rejected:
Evidence that may be presented
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Éléments de preuve admissibles
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(4) On appeal, the person who is the subject of the appeal may 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.
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(4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet.
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VI. Analysis
A. The RAD’s Assessment of the Applicant’s Credibility is Reasonable
[28] Firstly, the Applicant submits the RAD made unreasonable credibility findings which he claims are the result of an overzealous analysis of inconsistencies which are peripheral to the claim.
[29] As rightly submitted by the Respondent, there is a presumption of truth that is rebuttable where the evidence is inconsistent with a claimant’s testimony or where the RPD is not satisfied with a claimant’s explanations (Lawani v Canada (Citizenship and Immigration), 2018 FC 924 at para 21 [Lawani]). Credibility concerns with central issues to a refugee claim can extend to other elements of the claim and other documentary evidence relied on to corroborate the applicant’s version of the facts (Lawani at para 24).
[30] Specifically, the Applicant claims the RAD erred in finding his evidence was inconsistent because his BOC did not refer to the police visit in December 2020 or that he stayed somewhere other than his family’s home from December 2020 until his departure from Nigeria in April 2021. I disagree.
[31] The RAD considered the Applicant’s explanation he was unaware he could amend his BOC but found it was unpersuasive considering the instructions in the BOC, the Applicant’s fluency in English, his university education, and the fact he was represented by counsel. The December 2020 visit and the Applicant’s residence with the Reverend are not peripheral issues; they are central and important aspects of the Applicant’s claim. I find these omissions were reasonably assessed by the RAD.
[32] The RAD also considered that the Applicant provided vague and inconsistent information regarding the timeline of the police visits to his house after he left Nigeria. The RAD noted the Applicant testified that his mother told him these visits took place around January and August 2022. Notably, this information was missing from his BOC. Contrary to the Applicant’s submissions and considering the importance of these police visits, these issues are central to his claim and were reasonably assessed by the RAD.
[33] In my view, it was reasonable for the RAD to conclude, with respect to these omissions and inconsistencies central to the Applicant’s claim, that the Nigerian authorities did not go to his house to look for him and that he did not spend four months living in with the Reverend.
[34] I find the Applicant misrepresenting his father’s identity on his Canadian visa application to be peripheral to his claim.
[35] Secondly, the Applicant submits the RAD did not properly assess the documentary evidence before it, specifically the affidavits from his mother and friend, as well as the letter from the Reverend. According to the Applicant, these documents contain information which was not considered and which contradicts the findings of the RAD. The Applicant submits this renders the Decision unreasonable.
[36] More specifically, regarding his friend’s affidavit, the Applicant submits the affiant does not say his mother was harassed shortly after his departure from Nigeria. Instead, the Applicant submits this affidavit states that protestors were being rearrested by the police who were going to their homes and harassing their families. In another paragraph, the Applicant’s friend says the Applicant’s mother was being harassed and was calling the Applicant while he was in Switzerland. However, the Applicant states his friend made no mention of the timing in relation to this fact. He claims the RAD erred in concluding there was an inconsistency between the friend’s affidavit and the Applicant’s testimony. The Applicant submits the RAD further erred by drawing an adverse inference from what the affidavit does not say. I find the RAD is referring to the friend’s description of the timing of these events from his affidavit. Contrary to the Applicant submissions, the RAD did not draw an adverse inference based on what the affidavit does not include in respect of the timing of the phone call, but rather what the friend directly states in his affidavit.
[37] With respect to the RAD’s treatment of his mother’s affidavit, the Applicant argues it was absurd for the RAD to conclude it was insufficient to establish the police inquired about him. He also claims the RAD erred in concluding that “a short while”
, as mentioned by his mother, is not consistent with the first police visit occurring in January 2022 considering he left Nigeria in April 2021. The Applicant submits the RAD has not provided a reasonable basis for rejecting this evidence.
[38] I find the RAD did not engage in speculative reasoning here as suggested by the Applicant. It was reasonable for the RAD to conclude the period between April 2021 and January 2022 is not “a short while”
. The RAD did not conclude when the mother was harassed as the Applicant claims, only that the friend informed the Applicant of this during the stated conversation. The RAD clearly identifies the RPD’s conclusion on the inconsistency between the mother’s affidavit and the Applicant’s testimony as the basis for assigning the affidavit little probative weight.
[39] The Applicant argues the Reverend’s letter is consistent with his testimony that he stayed at the Reverend’s residence until he could leave Nigeria in April 2021 and that the letter corroborates the first visit by the police. The Applicant claims the RAD erred in assigning the letter little probative weight. The RAD did so because the Reverend does not have first-hand knowledge of the police visit which prompted him to ask the Applicant to live with him. I find the Reverend’s letter referred to events the Applicant did not describe in his BOC. It was reasonable for the RAD to note that the Reverend does not have first-hand knowledge of important facts including the police visit in question.
[40] As Justice Diner concluded in Gabila v Canada (Citizenship and Immigration), 2016 FC 574 at paragraph 39, it would be unfair to impugn the credibility of the affiant based on what their letter or affidavit does not include because the affiant is not before the decision maker to be cross-examined on this omission. Further, as Justice McHaffie held in Yusuf v Canada (Citizenship and Immigration), 2024 FC 1656 at paragraph 22, it is impermissible for the decision maker to draw a negative inference on the basis of what is not included in an affidavit.
[41] Here, the RAD properly addressed the Applicant’s affidavits and the letter, and reasonably concluded their content is inconsistent with the Applicant’s testimony on the central issues of his claim. The RAD assigned the probative value it believed was appropriate after an assessment of the affidavits and the letter. The Applicant is asking this Court to disturb the conclusion of the RAD and reweigh and reassess this evidence. This is not the Court’s role on judicial review.
[42] Notably, in his Memorandum of Fact and Law, the Applicant does not address any alleged errors in respect of the RAD’s conclusions on his lack of subjective fear. The Applicant explains that, even if he disagrees with this finding and given that the RAD accepted it is not determinative, he did not make submissions as to the errors with respect to this finding as it would not have an impact on the validity of the overall decision. The Respondent, however, submits the RAD reasonably found the Applicant’s delay in commencing his refugee claim undermined his subjective fear (Cherifi v Canada (Immigration, Refugees and Citizenship), 2023 FC 458 at para 24). I agree.
[43] As pointed out by the Respondent, the evidence indicates the Applicant’s fear crystallized when he arrived in Switzerland in April 2021 where he lived for 2 years and 8 months. He subsequently travelled to France, Spain, and the United Kingdom before arriving in Canada. The RAD considered the Applicant’s explanations as to why he did not claim protection in Switzerland because he was afraid and was informed he could not do so. The Applicant also did not provide an explanation for why he did not claim protection while in France, Spain, or the United Kingdom. The Applicant did not seek legal advice as to whether he could claim refugee protection in Switzerland. It was therefore reasonable for the RAD to conclude these actions undermined his subjective fear and credibility. It was open to the RAD to draw a negative inference and no arguable issue has been raised in this respect.
[44] The RAD’s assessment of the Applicant’s evidence and credibility are reasonable.
B. Is the RAD’s Assessment of the Applicant’s Forward-Facing Risk Reasonable?
[45] The Applicant claims he faces risk upon his return to Nigeria because he gave his name and address to the police. However, the RAD found the lack of contact on the part of the Nigerian authorities suggests they are not interested in the Applicant. The Applicant submits the RAD selectively read the NDP and overlooked evidence which contradicts its findings. The Respondent submits the RAD’s conclusion the Applicant did not establish he had a forward-facing risk if he returned to Nigeria is reasonable. I agree.
[46] The RAD did not ignore the evidence but assessed the objective evidence on file, including the NDP and documents that were submitted as new evidence. The RAD reasonably found these documents provide conflicting information as to whether some EndSARS protestors are still in detention and that it does not support the allegation that protestors were being arrested from their homes. The RAD also considered the circumstances of this case, including the fact that the Applicant was arrested with other protestors, was released the following day, the authorities have not issued a warrant for his arrest, and there is a general absence of evidence the police have been looking for the Applicant. Considering the above, I find it was reasonable for the RAD to conclude the Applicant has not established the police have a continuing interest or motivation to locate him for his EndSARS protest involvement.
VII. Conclusion
[47] This application for judicial review is dismissed. The Applicant has not demonstrated that the Decision under review is unreasonable.
[48] Neither party proposed a question for certification, and I agree none arise.
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