TB9-20799

TB9-20799

The RPD erred by giving excessive weight to minor omissions and documentary gaps and by misapplying the standard of proof; admitting the corrected psychological report and assessing the totality of testimony and corroboration establishes the Appellant's bisexuality on a balance of probabilities and a serious possibility of persecution in Nigeria with no state protection or viable internal flight alternative, therefore the RPD decision is set aside and the Appellant is a Convention refugee.

Citation
TB9-20799
Parties
Principal Appellant (designated Representative): XXXX XXXX XXXX; Associate Appellant (minor): XXXX XXXX XXXX; Respondent (minister): Minister of Immigration
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
24 January 2020
Procedural Posture
Refugee Appeal Under Immigration and Refugee Protection Act / Appeal to Refugee Appeal Division Following Refugee Protection Division Decision
Outcome
Appeal of principal Appellant (File TB9-20799) allowed; appeals of Associate Appellants (Files TB9-20800 and TB9-20801) dismissed.
Legal Topics
Credibility Assessment, New Evidence Admissibility, Sexual Orientation Claims (sogie), Internal Flight Alternative, State Protection, Well Founded Fear of Persecution
Source Language
English
Immigration Law Refugee Law Human Rights Law LGBTQ Rights Credibility Assessment New Evidence Admissibility Sexual Orientation Claims (sogie) Internal Flight Alternative +2 more

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Parties

XXXX XXXX XXXX

Principal Appellant (designated Representative)

XXXX XXXX XXXX

Associate Appellant (minor)

Minister of Immigration

Respondent (minister)

Procedural Posture

Refugee Appeal Under Immigration and Refugee Protection Act / Appeal to Refugee Appeal Division Following Refugee Protection Division Decision

Legal Issues

  1. 1 Whether the RPD erred in its credibility findings regarding the Appellant's sexual orientation claim
  2. 2 Whether the RAD should admit and rely on new psychological evidence
  3. 3 Whether an oral hearing was required under subsection 110(6)(c) IRPA

Ratio Decidendi

The RPD erred by giving excessive weight to minor omissions and documentary gaps and by misapplying the standard of proof; admitting the corrected psychological report and assessing the totality of testimony and corroboration establishes the Appellant's bisexuality on a balance of probabilities and a serious possibility of persecution in Nigeria with no state protection or viable internal flight alternative, therefore the RPD decision is set aside and the Appellant is a Convention refugee.

Court Disposition

Appeal of principal Appellant (File TB9-20799) allowed; appeals of Associate Appellants (Files TB9-20800 and TB9-20801) dismissed.

Orders

  • Set aside the Refugee Protection Division determination regarding the principal Appellant and substitute a determination that the Appellant is a Convention refugee (IRPA s.111(1)(b))
  • Confirm the RPD decision that the two United States born Associate Appellants are not Convention refugees nor persons in need of protection (IRPA s.111(1)(a))