TB8-09525

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 / Dossier de la SAR : TB8-09525 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 11, 2018 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person(s) who is(are) the subject of the appeal Tien Tran Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION BACKGROUND [1] The Respondent, XXXX XXXX XXXX, is a twenty-eight-year old citizen of Nigeria who came to Canada with a student visa. He was arrested by officers of the Canada Border Services Agency (CBSA) after ceasing his studies. He then made a refugee claim on the basis of religion and sexual orientation in which the Minister intervened. The claim was heard on July 26, 2016 and rejected on September 13, 2016 because the panel did not believe that the Respondent is bisexual. The Respondent appealed to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) on the issue of sexual orientation only. The appeal was allowed on the basis that the RPD failed to consider testimony about attraction to other men that did not involve valuable consideration. The claim was reheard by another member of the RPD on January 12, 2018, and it was allowed on February 8, 2018. This is an appeal by the Minister of that positive determination, pursuant to section 110 of the Immigration and Refugee Protection Act (the Act). [2] The Minister filed new evidence in the form of the Respondent's student visa application, an email from XXXX XXXX and a statutory declaration from a Hearings Officer in accordance with paragraph 171(a.5) of the Act. An oral hearing was not requested. The Respondent did not file new evidence, nor did he request an oral hearing. DETERMINATION [3] The RAD confirms the determination of the RPD and dismisses the appeal, pursuant to paragraph 111(1)(a) of the Act. The Role of the RAD [4] Subsection 110(1) of the Act provides that a claimant or the Minister may appeal to the RAD on a question of law, of fact or of mixed law and fact, against a decision of the Refugee Protection Division (RPD) to allow or reject the person's claim for refugee protection, subject to some statutory exceptions. Absent the admission of new evidence, the RAD must proceed without a hearing on the basis of the record of the RPD proceedings. Although it may accept documentary evidence and written submissions from both the claimant and the Minister, new evidence presented by the claimant is restricted to documents that arose after the rejection of their claim, that were not reasonably available, or that the claimant could not reasonably have been expected in the circumstances to have presented at the time of the rejection of the claim. The RAD may conduct a hearing if the new evidence raises a serious issue with respect to the credibility of the claimant that is central to the RPD's decision, and, if accepted, would justify allowing or rejecting the claim. Section 111 of the Act requires that the RAD confirm the RPD's determination, set it aside and substitute its own determination, or refer the matter back to the RPD for redetermination with directions, if appropriate. A referral may only be made if the RPD is wrong in law, in fact or in mixed law and fact, and the RAD cannot make a decision without hearing evidence that was presented to the RPD. [5] The Federal Court of Appeal in Huruglica has held that the RAD must review RPD decisions on the standard of correctness on findings of fact, law and mixed fact and law.1 In situations in which the RPD enjoys a meaningful advantage over the RAD in assessing the credibility of oral testimony, a degree of deference may be shown. The role of the RAD is to intervene when the RPD is wrong in fact, law, or in mixed fact and law. In order to do this, the RAD must carry out its own independent analysis of the record to determine whether, as submitted by the appellant, the RPD erred. The RAD must make a final decision either affirming the decision or substituting its own determination unless it cannot do so without hearing oral testimony presented to the RPD, in which case the matter must be referred back to the RPD for re-determination. THE POSITIONS OF THE PARTIES Delay [6] The Appellant submits that the RPD erred in its assessment of the issue of delay in making a refugee claim. The Respondent waited over seven months to claim refugee protection after learning that he was attracted to men. At the first RPD hearing, he testified that he realized that he was attracted to men about three to four months after arrival in Canada in XXXX 2014 (XXXX 2014 or XXXX 2015). However, he did not make a refugee claim until XXXX 2015 after he was arrested. Although the Respondent had a student visa that expired in XXXX 2016, he was arrested because he failed to meet the conditions of his visa that required him to remain a student. The RPD did not consider the question of why he did not claim asylum after he ended his studies, given that he already realized that he was attracted to men at this point. The RPD erred in failing to take delay in claiming asylum into consideration. The Federal Court Peti decision is cited in support of the submission that an adverse inference can be drawn from this.2 [7] The Respondent submits that the Peti decision is not relevant because the facts of the case were significantly different, and it did not concern sexual orientation that must be considered in light of the SOGIE Guidelines3 and the Enam decision.4 The Respondent testified that he was not comfortable discussing his sexuality with authorities or unknown persons. The RPD considered this explanation and concluded that it was reasonable. Omissions in Original BOC [8] The Appellant submits that the RPD erred in not properly considering omissions to the original Basis of Claim (BOC). The Respondent failed to identify sexual orientation as being a risk when his original BOC form was completed on October 26, 2015. Although it was amended in May 2016, no details were provided about relationships in Canada or Nigeria. In addition, he failed to provide meaningful details about his relationships in Canada at the first RPD hearing. [9] In response, the Respondent submits that he testified that he failed to disclose this to the CBSA officer because he was uncomfortable discussing this with an officer. The RPD accepted this explanation as being reasonable in light of the SOGIE Guidelines. In addition, his uncle disclosed this to the officer on October 28, 2018. The BOC Amendment of December 2017 and Evolving Testimony [10] The Appellant submits that the RPD erred in not adequately assessing amendments to the BOC. It was amended a second time on December 21, 2017 to include details about these relationships in Canada and Nigeria that were missing from the amended narrative of May 2016. This was done a few weeks before the second RPD hearing. The Appellant submits that the RPD failed to consider the plausibility of the Respondent's explanation for withholding significant details at the first hearing. The Respondent testified that he did not disclose more at the first hearing because he did not know that it was private, and he was afraid of being mocked by his friends if it became public. In addition, he wanted to keep the names of his partners confidential. He added more details before the second hearing when new counsel explained that the hearing was private and asked for more details. The Appellant submits that the Respondent was represented by counsel and that the first counsel works for the same law firm as the second one. Counsel at the same law firm assisted the Respondent in drafting the first amended BOC that disclosed sexual orientation. The BOC was sworn to be true. The RPD ought to have taken this into consideration. The RPD also failed to account for the progressive disclosure of his testimony about relationships. [11] Counsel for the Respondent submits that he testified that he did not provide many details about his relationships at the first hearing because he was not asked. The focus of the questioning was on financial gain. Questions were not asked in compliance with SOGIE Guideline 7.3.1 that states that those asking questions should be sensitive and non-confrontational. Questions asked at the second hearing were appropriate in light of the Guidelines. Evolving Testimony about Relationships [12] The Appellant submits that the RPD erred in failing to take adequate account of the Respondent's evolving testimony about relationships. Testimony at the first RPD hearing was confusing and evasive with no meaningful details about them. The Respondent testified at the first hearing that he had three short encounters with men in Canada, but he did not obtain contact information from them. The longest was for three nights. However, the December 2017 BOC is inconsistent. It indicates that he lived with XXXX from XXXX 2015 to XXXX 2015 and with XXXX from XXXX 2015 to XXXX 2015. He was also with XXXX for a about week. The RPD erred in not addressing these inconsistencies. [13] Counsel for the Respondent submits that this issue was addressed by the RPD and that the Respondent's explanation was found to be reasonable. First, questions at the first hearing concerned whether he engaged in sex for financial gain, not the length of his relationships. Second, the RPD determined that the Respondent was more comfortable discussing his sexual identity at the second RPD hearing. Failure to Consider Significant Details in the First Claim [14] The Appellant submits that the RPD failed to justify its credibility findings with specific and clear reference to the evidence before it. In particular, the RPD erred in failing to account for the fact that the Respondent alleged risk based on religion, tribal affiliation, extremist groups and sexual orientation at the first hearing, but he only pursued sexual orientation at the second. This was ignored by the RPD. Uncle's Evidence [15] The Appellant submits that the RPD erred in assessing evidence from the Respondent's uncle. The Respondent stated that he disclosed his sexual orientation to his uncle in the United States on his birthday in XXXX 2015; whereas, a letter from this uncle states that this happened in XXXX 2015. His uncle did not testify at either RPD hearing. When a CBSA officer contacted the Respondent's uncle to ask questions, he declined to answer. [16] The Respondent submits that the RPD considered this inconsistency. It is trivial and could be attributed to memory by either the Respondent or his uncle. The difference is minor and is not determinative of inconsistency. In addition, his uncle was aware of his sexual orientation and was the first to raise the issue. The XXXX XXXX Letter [17] The Appellant submits that the RPD erred in not adequately accounting for omissions and inconsistencies in the Respondent's evidence that lacked reasonable explanations. In particular, the Appellant submits that the letter from the XXXX XXXX, dated XXXX XXXX, 2016, was contradicted by the Respondent's testimony. According to the author of the letter, the Respondent's sexual orientation was condemned by friends and acquaintances in Nigeria. However, he testified at the first RPD hearing that he did not know if anyone in Nigeria was aware of his sexual identity. In addition, it only speaks to the issue of self-identification, not to the Respondent's sexual orientation. The RPD erred in failing to consider this. [18] The Respondent submits that the Appellant has misinterpreted the Respondent's testimony at the first hearing and that the letter is not inconsistent with it. He said that friends in Nigeria were calling him gay because of a picture of himself and another man, XXXX, while half-naked. This was also disclosed in the December 2017 BOC. Evidence to the RAD [19] The Appellant submits that the Respondent failed to provide any new evidence to the RAD about his relationships in Canada. The Respondent failed to provide any details regarding relationships to the RAD although his sexual identity was an issue before the RAD. [20] Counsel for the Respondent submits that it is unnecessary to provide these details in an appeal to the RAD given its role. Mental Health and Medical Evidence [21] The Appellant submits that the RPD erred in its reading of the medical evidence with respect to memory problems. The Appellant submits that no medical evidence was filed that indicates that the Respondent has memory problems when he is not on his medication. The RPD erred in concluding that mental health issues can reasonably account for his inability to recollect events and specific dates or to recount details and explain omissions and inconsistencies. The RPD erred in appreciating the nature of the medical evidence. [22] Counsel for the Respondent submits that medical reports indicate that he suffers from chronic XXXX XXXX, XXXX XXXX, thought XXXX and other mental health issues. His condition has led to his hospitalization in Nigeria and Canada. The RPD correctly concluded that the Respondent suffers from mental health problems that resulted in him being forgetful, anxious, depressed and paranoid when not on his medication. Overall Credibility Findings [23] The Appellant submits that the RPD erred in failing to account for the evidentiary burden imposed by Rule 11 of the Refugee Protection Division Rules. In addition, the RPD failed to adequately analyse the inconsistencies and omissions and the degree to which they could affect his overall credibility. Counsel for the Respondent submits that the RPD correctly concluded that the Respondent is suffering from mental health issues and that the RPD reasonably considered the totality of the Respondent's evidence with respect to his disclosure of his sexual identity. ANALYSIS [24] Although other issues were raised at the first RPD hearing, only the issue of sexual orientation was pursued by the Respondent at the second one. The RPD concluded that he is a Convention refugee because of membership in a particular social group as a bisexual Nigerian man. The panel acknowledged that it had a number of credibility concerns about the Respondent's testimony, particularly with respect to his relationships with men in Nigeria and in Canada. Notwithstanding these doubts, the RPD concluded that the Respondent has established that he is likely a bisexual or would be perceived as being so in Nigeria. [25] Rather than first considering all of the evidence in order to establish a credible and trustworthy basis of fact on which the claim could be assessed, the RPD skirted many of the credibility problems in order to decide the claim on the basis of the Respondent's residual profile. By proceeding to the determinative issue in this way, the Appellant submits that the RPD failed to account for the many problematic aspects of the evidence. According to this submission, the RPD erred by failing to provide adequate reasons to support its determination. The RAD agrees with this assessment of the decision for the following reasons. Mental Health [26] The RPD first reviewed the Respondent's mental health for purposes of assessing credibility. Medical documentation indicates that the Respondent has been diagnosed with XXXX, but it does not provide information with respect to how this condition could affect memory. The Respondent testified that he tends to forget things when he is not taking his medication. The RPD found this to be a reasonable explanation for why he was unable to remember details and dates during his testimony. However, reference was not made to parts of the medical evidence that could support the conclusion that this condition affects memory. [27] The RAD concludes that the RPD erred in not providing adequate reasons to support the conclusion that the Respondent's mental health issues affected his memory. The Minister correctly observed that none of the mental health professionals who wrote about the Respondent noted memory problems as being an issue. Concerns about evolving testimony could be explained reasonably by factors other than his psychological state. The RPD ought to have considered all of the relevant factors before drawing this conclusion. [28] Based on the record, the RAD concludes that the evidence does not support the explanation that memory issues related to his mental health challenges can reasonably account for difficulties in recollection. Progressive Disclosure of Sexual Orientation Failure to Disclose at the Port of Entry [29] The RPD noted that risk attributable to sexual orientation was not disclosed in the original October 2015 BOC. It appeared for the first time in the May 2016 amended narrative and concerned three short-term relationships in Canada. It was amended a second time in December 2017 to provide more details about relationships, particularly with respect to sexual encounters with a priest while in Nigeria. [30] Rather than considering all of the evidence together, the RPD separated events. First, the panel assessed the failure to disclose the issue of sexual orientation at the port of entry and drew no adverse inference from it. Reference is made to the Respondent's testimony that he was nervous and paranoid because he was not taking his medication. In addition, he did not trust people in authority because of the homophobic nature of Nigerian culture. The panel accepted this explanation as being reasonable without explaining why. Notwithstanding this omission, the RAD agrees with the conclusion that the Respondent's explanation was reasonable under the circumstances. [31] Paragraph 7.4.1 of the SOGIE Guidelines stipulates that decision-makers should consider whether there are any barriers, including cultural or psychological ones, which could reasonably explain the inconsistency.5 An example is given of the reluctance to disclose one's sexual orientation to a government official at a port of entry. This approach is consistent with Federal Court jurisprudence. For example, in the Gabila decision, Justice Diner affirmed that case law is clear that caution is needed in evaluating statements made at a port of entry.6 He agreed with submissions that adverse conclusions should not be generally drawn from the failure to declare one's sexual orientation at the screening phase or in the early stages of the interview.7 Allowance should be made for basing the refugee claim on other grounds. The claimant's explanation that he was anxious and concerned about privacy was set in the context of country conditions and the apparent authority of CBSA officers. The Court agreed with the RPD that the explanation provided was reasonable under those circumstances.8 [32] The Respondent is from a country which has criminalized sexual activity with a member of the same sex. Among other provisions, section 214 of the Criminal Code Act provides for a term of imprisonment not exceeding fourteen years in such cases.9 Nigerian society demonstrates deep-rooted prejudices against sexual practices that do not conform to heterosexual norms related to procreation. A Response to Information Request (RIR) indicates that there is a general perception that such practices are socially unacceptable. According to this document, some people consider these practices to be "unnatural," "immoral," "demonic," "sinful" or "an abomination". In addition, a distinction is not made between homosexuality and bisexuality for cultural reasons related to the role of marriage within Nigerian society.10 Harassment and threats have increased against members of the LGBTI community.11 [33] The Respondent testified that he was reluctant to disclose his sexual orientation to CBSA officers. Given the cultural norms and county conditions in Nigeria, and in light of the SOGIE Guidelines and applicable jurisprudence, his explanation for not disclosing his sexual orientation during the interviews with CBSA officers is reasonable. Addition of Details after First RPD Hearing [34] The RPD then considered the amended narrative of December 2017 that contains details found neither in the May 2016 narrative nor in his oral testimony at the first RPD hearing. He explained that he did not disclose these details at the first hearing because he did not know that it was confidential and because he was afraid that his friends and family would learn about what he said. He changed counsel and now knows that the hearing is confidential. Second, he did not want to mention names of past lovers because he wanted to keep their relationship secret. He now feels free about naming one of them because he moved out of Vancouver. He also stated that he was more open at the second hearing because of the nature of the questioning. He did not mention his relationship with the priest in Nigeria because he promised his father not to do so. The Minister submitted that significant omissions have not been reasonably explained. [35] The issue of progressive disclosure was acknowledged by the RPD and identified as one that raises serious questions with respect to the Respondent's credibility. Rather than addressing them and making findings of fact with respect to the overall reliability of the Respondent, the panel set the issue aside because it had concluded that the Respondent's claim to be bisexual was consistent at both hearings and determinative of the claim. [36] The RPD abstracted consistent evidence from the problematic aspects of the claim in reaching its conclusion. The panel noted that testimony concerning three short-term relationships with men, relationships with women, and meeting people at downtown clubs was consistent between the two hearings. The Respondent also testified at both hearings that he is attracted to both men and women that he considers to be good looking without reference to financial benefits. He testified at both hearing that he posted a photo on social media in XXXX 2015 that he had to remove because of negative comments made by friends in Nigeria. The Respondent also provided common testimony with respect to informing his uncle about his sexual orientation in either XXXX or XXXX 2015. Most of the questions at the first hearing were directed to whether the Respondent engaged in sex with other men for financial benefit. Finally, the panel concluded that the Respondent provided a reasonable explanation for not disclosing his relationship with a priest in Nigeria on the grounds that he promised his father not to do so and that this could be classified as sexual abuse. [37] The RPD erred in not considering all of the evidence for purposes of assessing the credibility of the Respondent with respect to consistent testimony. The panel concluded that the Respondent was a trustworthy witness with respect to his sexual orientation without having first assessed his overall credibility. In so doing, the RPD failed to provide adequate reasons for accepting the Respondent's testimony on these points in the face of evidence to the contrary that was not adequately considered. Although it was open to the RPD to accept the Respondent's testimony at the first hearing, the problematic aspects of the claim should have been addressed to determine whether an overall finding of lack of credibility undermined what he said at the first hearing. The RAD will now proceed to do so. [38] The Respondent's first Basis of Claim form was completed on October 26, 2015 without the assistance of counsel while living at a Vancouver shelter. Another BOC was submitted by counsel, XXXX XXXX, of XXXX XXXX XXXX XXXX XXXX on June 23, 2016 with amendments dated May 22, 2016. It was accompanied by a May 11, 2016 Statutory Declaration from the Respondent that declares that the information provided is complete, true and correct.12 [39] Although the Federal Court in Gabila dealt with the question of the failure to disclose sexual orientation at the port of entry, not in the BOC, the RAD notes that the first version was completed on October 26, 2015 during the course of interviews with CBSA officers that took place between the 24th and 28th of October.13 The BOC was completed in a Vancouver shelter without the assistance of counsel in the context of port-of-entry questioning. On the facts of this case, the Respondent's explanation that he was not prepared to talk about his sexual orientation until he consulted with counsel is reasonable. The RPD did not err in concluding that an adverse inference should not be drawn from the fact that sexual orientation is raised for the first time in the May 2016 amendments. [40] However, the RPD erred in failing to provide adequate reasons accepting the reasonableness of the subsequent amendments. The first hearing of the claim took place on July 26, 2016. During oral testimony, the Respondent stated that he realized that he was attracted to men three or four months after his arrival in Canada. He met generous men in clubs. The longest relationship lasted three nights. He has not encountered any of these men recently, and he does not have contact information for them. He posted a picture of himself on Facebook that he took down when he received negative comments about his sexuality.14 [41] The negative RPD decision was quashed by the RAD on January 31, 2017 and sent back to the RPD for redetermination. An amended narrative dated December 21, 2017 was filed by another lawyer with the same law firm that adds a significant number of new allegations of fact that had not been previously disclosed.15 He begins by a description of sexual abuse that he experienced from a priest in Nigeria. The RAD draws no adverse inference from the Respondent's failure to disclose this previously. It does not relate to his sexual orientation nor to his choice of partners in Nigeria, but to the Respondent being a victim of a serious crime in Nigeria. It is not directly material to the issue of his sexual orientation. As a result, the Respondent was not required to disclose this information during the first hearing of the claim. [42] The allegation that he changed his apparel and grooming habits after a cousin in the United States told him that this made him look gay does not address the question of sexual orientation either. This statement provides additional background information that is not material to the determinative issue. The fact that the Respondent went on to re-affirm that he began to feel attracted to other men after he arrived in Canada demonstrates that this issue was a matter of his appearance, not of his sexual orientation. The RAD draws no adverse inference for his failure to disclose this previously. It is not sufficiently material to the determinative issue for disclosure to be required. [43] However, other allegations go beyond adding details or background information. Although the Respondent claimed to have engaged in three short-term relationships and that he did not retain contact information from any of his partners, his amendments are inconsistent with previous sworn testimony. The later allegation that he lived with XXXX in his apartment from XXXX 2015 until XXXX 2015 is fundamentally incompatible with what he said at the first hearing. The same is true concerning his statement that he lived with XXXX for one month from XXXX until XXXX 2015. The Respondent explained his lack of candour by stating that he did not know that the first refugee hearing was confidential and that he feared that some details would be disclosed. In addition, he was more comfortable disclosing information about XXXX after he moved out of Vancouver. This explanation is not reasonable. The Respondent amended his BOC narrative with the assistance of counsel. He signed a Statutory Declaration affirming that it was complete. He did not amend the BOC again before the hearing. Although the Respondent was questioned by his counsel during the hearing, this information was not presented. He was represented by the same law firm at both refugee hearings and in both RAD appeals. Under these circumstances, the RAD does not accept the Respondent's claim to have been afraid of telling the whole truth to counsel because of fear that it could be made public. The RAD draws an adverse inference from the Respondent's lack of credibility on this issue. [44] Other details are not problematic. The relationship with "XXXX" was indeed short term: three encounters over the period of one week in the hotel room of someone visiting from Toronto. Although references to relationships with two women are added, they are not directly material to the question of sexual orientation towards men. Details about his relationship with XXXX date to XXXX 2017, after the first hearing. Delay in Claiming [45] The RPD erred in failing to consider the question of why the Respondent delayed in making a refugee claim, notwithstanding the fact that this issue was raised by the Minister during submissions. The Respondent had valid status as a student from XXXX 2014 until leaving school in XXXX 2014. He claimed refugee protection in October 2015 after he was detained by CBSA. During this ten-month period, the Respondent did not have lawful status in Canada. The Appellant's submission concerning delay in making a refugee claim was challenged by the Respondent by reference to the SOGIE Guidelines. Although this reasonably explains why he did not claim refugee protection on the basis of sexual orientation, it does not address the particular facts of this case. The Respondent ceased to be a student in XXXX 2014, but did not make the claim until after he was detained in XXXX 2015. At that time, he did make a refugee claim, but on other grounds. The SOGIE Guidelines address the question of why he did not disclose his sexual orientation at an earlier point. However, the question of why he did not claim refugee protection after he lost his student status on the grounds advanced in his October 2015 BOC were never considered by the RPD. The Federal Court in Gabila notes that an adverse inference should not be drawn from the fact that someone makes a refugee claim on allegations other than sexual orientation. [46] The relevant factors related to delay in claiming concern the Respondent's mental health. His living arrangements were unstable. He was taking street drugs and was suffering from XXXX. Symptoms included XXXX and XXXX XXXX. Although he did not have lawful immigration status after ceasing his studies, he testified that he was trying to earn money and get by on his own. His personal situation was such that his failure to make a refugee claim is not indicative of a lack of subjective fear on these particular facts. Under these circumstances, it would not be reasonable to discount his serious mental health challenges and hold him to the same standard as would apply to someone with normal psychological functioning. XXXX XXXX Letter [47] According to a letter from XXXX XXXX of XXXX XXXX, the Respondent attends monthly drop-in meetings that support lesbian, gay, bisexual and transgendered people. He identifies himself as being bisexual. Although the letter is dated XXXX XXXX, 2016, it does not indicate when he first contacted their organization or when he began attending meetings. The letter states that friends and acquaintances in Nigeria learned that he is bisexual and have condemned him for this.16 This goes well beyond the Respondent's testimony that he took down a social media post of himself with a male friend clad only in underwear because of derogatory comments about his sexuality. This letter does not provide independent testimony about events within the personal knowledge of the author. It recounts what the Respondent told staff at the centre. The letter was sent one month before the first refugee hearing. As a result, this document does not constitute independent confirmation of the underlying allegations of fact. It does, nevertheless, indicate that the Respondent identified himself to them as being bisexual. This document is of insufficient probative value to establish the facts, as alleged, nor the Respondent's sexual orientation. Given the conclusion that the Respondent has likely engaged in embellishment of his testimony, this letter has no probative value in establishing the facts stated therein. Rule 11 and New Evidence [48] The Appellant submits that the RPD failed to consider adequately the requirements of Rule 11. This requires a claimant to provide a reasonable explanation for not having provided important supporting evidence. The RAD agrees. The Respondent was not questioned systematically concerning the potential people who could provide supporting testimony and then record his explanation as to why this was not forthcoming. However, the RAD is not in a position to draw an adverse inference from this, given that these questions would have to have been put to the Respondent during the hearing. This issue could only be fully addressed if the matter were sent back to the RPD for redetermination. However, given that this is not a determinative issue that could affect the outcome of the decision, the matter should not be sent back to the RPD. [49] The Appellant also submits that an adverse inference should be drawn from the fact that the Respondent did not file new evidence before the RAD. The Rule 11 obligation to obtain and disclose evidence that is reasonably available does not apply to the RAD. Although it may have been helpful if new evidence that is legally admissible had been submitted, the RAD must deal with the appeal based on the record before it. It is not appropriate for the RAD to speculate about what evidence the Respondent may have been able to obtain and then to draw an adverse inference. The Respondent is under no legal obligation to explain in a RAD appeal why he has not submitted new evidence. Given that the RAD new evidence rule is permissive, no adverse inference may be drawn. Communications from the Uncle [50] The Minister submits that that RPD erred in failing to assess documentary evidence from the Respondent's uncle adequately, particularly with respect to inconsistent dates. [51] A note from the Respondent's uncle, dated XXXX XXXX, 2016, was accompanied by a copy of his XXXXn driver's licence.17 He affirms that the Respondent confided in him that he is bisexual. Because he is very paranoid and afraid of sharing this information, he fears being killed by his friends. [52] The Respondent was first questioned by a CBSA officer on October 24, 2015 at Vancouver City Jail after the Respondent was detained by Vancouver Transit Police following an alleged altercation at a XXXX station. He stated that his uncle provided him with financial support, but he suddenly stopped answering his phone and sending money.18 As a result, he is unable to get in contact with his uncle. [53] The Respondent was questioned by another officer on October 26, 2015.19 He affirmed that he could not get in touch with his uncle. He feared attack from radicals in Nigeria because he is a Christian. His uncle in the United States could help obtain a baptismal certificate. When asked for his phone number, the Respondent indicated that his cell phone was with the police. [54] A Statutory Declaration from the same Canada Border Services Agency officer, dated October 28, 2015, provides details about contact with the Respondent's uncle.20 She contacted him by phone on October 27, 2015 and asked about identity documents. He undertook to contact the Respondent's parents about the matter. The uncle called back the next day and said that the Respondent's father was travelling outside the country. This uncle asked the officer to tell the Respondent that he cannot return to Nigeria because he risks death because of his sexual orientation. The officer declined to do so and referred him to the Respondent's lawyer. [55] The Respondent testified that he informed his uncle about his bisexuality during a conversation that took place on his birthday in XXXX 2015. [56] It is clear from testimony of the Canada Border Services Agency officer who contacted the Respondent's uncle in October 2015 that he was of the view that the Respondent ought not to be returned to Nigeria because he is bisexual. Whether information about sexual orientation was disclosed on his birthday in XXXX 2015 or the following month is insufficient to question the reliability of the document, given that the two dates are close, and memory cannot reasonably be expected to be perfect. The RPD did not err in not drawing an adverse inference from this particular inconsistency. [57] Paragraph 31 of the RPD's decision mentions the Respondent's uncle in support of the conclusion that the Respondent is likely bisexual. References are made to the Respondent's testimony that he disclosed this information in XXXX 2015, to a letter from the uncle stating that the Respondent informed him about his sexual orientation in May 2015, and to the fact that the uncle specified the Respondent's sexual orientation to a Canada Border Services Agency officer in October 2015. The RPD gave full weight to the statements from the Respondent's uncle without providing reasons why this was done in light of the credibility concerns identified. [58] The RAD notes that the uncle's testimony that the Respondent is bisexual and is at risk in Nigeria was volunteered to a Canada Border Services Agency officer without prompting. The CBSA interview notes indicate that, during this interview, he inquired about whether the Respondent had been released from detention. The circumstances are not indicative of advance contact between the Respondent and his uncle for purposes of collusion in strategizing about the contents of a refugee claim. This uncle provided several letters and included a copy of his driver's licence by way of identity. This uncle is a XXXX. A CBSA officer contacted the uncle in March 2018 to ask more questions, but he refused to do so.21 The officer was to contact his nephew's lawyer and to follow due process. The officer responded that he did not need to do so. From a strict legal point of view, the officer was correct. Although it is improper in judicial proceedings for one party to contact the witness of the other party without first obtaining the consent of counsel, this does not fetter the discretion of CBSA officers to investigate. The RPD is not bound by legal or technical rules of evidence and can admit documents that are considered to be credible or trustworthy.22 In order to draw an adverse inference from the uncle's refusal to answer questions, the reason for the refusal would need to justify it. Under the circumstances, the uncle mistakenly believed that answering questions posed by an officer without the knowledge of his nephew's counsel was a breach of due process. Although he may have failed to distinguish between Canadian judicial and quasi-judicial proceedings, his answer indicates that his refusal was not based on unwillingness to discuss his evidence or evasiveness, but rather on concern that proper legal procedures be followed. The RAD has no good reason to draw an adverse inference with respect to the reliability of the uncle's testimony on this basis. [59] The circumstances in which testimony was received from the uncle, its spontaneous nature before talking with the Respondent and its consistency between communications leads the RAD to conclude that the uncle likely told the truth. As a result, the RAD gives his statements and letters full weight. RAD Assessment [60] The Appellant did not challenge the RPD's conclusion that adequate state protection is not available to those who are perceived to be bisexual in Nigeria. The RAD's review of the documentation pertaining to country conditions confirms that those so perceived are at risk of threats, harassment, social ostracization, violence, or arrest. Both as a result of a direct risk of direct and on a cumulative grounds basis, this amounts to persecution. [61] There is a nexus between the stated risk and the Refugee Convention by means of membership in a particular social group: sexual minorities who have been targeted for persecution. [62] The RPD erred in failing to address the many inconsistencies in the testimony, together with the evolving nature of the testimony. Although the SOGIE Guidelines can help to accept some responses as being reasonable, there are limits when a claimant is represented by counsel and then he significantly amends the narrative after the first hearing. The medical evidence does not address the question of memory to help explain problems in testimony. Although the medical reports provide a diagnosis and a description of symptoms, no expert testimony was provided that explains how the Respondent's mental health challenges relate to the evolving nature of his testimony. The testimony went from stating that the Respondent was having casual sex with men he met at clubs for financial compensation to someone who was living with men in the context of a relationship. This development took place when the Respondent was represented by counsel. When all of the evidence is taken together, the RAD concludes that the Respondent was not likely telling the truth about the nature of his Canadian relationships in later testimony. He likely engaged in embellishment of his testimony. [63] On the other hand, the original testimony about having sex with men for valuable consideration is uncontradicted. In addition, he indicated at the first hearing that he was interested in having sex with other people, be they men or women, if he finds them attractive. Whether the lack of credibility identified elsewhere extends to this testimony depends on how it fits into all of the other evidence. Given that the Respondent is inherently an unreliable witness, credible supporting evidence is needed. [64] The circumstances of the uncle's testimony lead to the conclusion that he is likely telling the truth. This, however, is not dispositive of the determinative issue, given that he may not have been told the truth. The Respondent disclosed to him in the spring of 2015 that he is bisexual. This was in the context of him asking his uncle for financial support in Vancouver after he left school. His uncle is a XXXX with training in XXXX. He is aware of the mental health issues that the Respondent faces and believes the Respondent when he volunteered information to him about his sexual orientation. Given these factors and their common cultural heritage, his uncle was in a good position to judge the reliability of the Respondent's disclosure to him. [65] The Respondent told his uncle that he is bisexual in the spring of 2015, XXXX or XXXX months before his arrest and his decision to make a refugee claim. It was volunteered outside the context of immigration and refugee issues. This disclosure to the uncle is consistent with the Respondent's testimony at the first hearing that he engaged in short-term sexual encounters for men for profit but that he also was attracted to men and engaged in sexual activities with those he found attractive. Although the Respondent likely embellished his claim, evidence from his uncle rehabilitates testimony presented at the first hearing to the effect that he engages in sex with men he finds attractive as part of his lifestyle. [66] When all of the evidence is viewed together, the RAD concludes that the Respondent is likely a bisexual who, at a minimum, has engaged in casual sexual encounters with men in the past. The RAD has no good reason to doubt that he will continue to do so with men that he feels attracted to. Notwithstanding the serious credibility problems identified, the RAD concludes that the Respondent has established a profile of being a bisexual man who has engaged in sexual activities with men in the past, and who will likely continue to do so in the future. [67] Although the RPD erred in its treatment of the evidence, the RAD conducted an independent assessment of the evidence and concludes that the RPD did not err in its final determination that the Respondent has, on a balance of probabilities, established that he is a bisexual. [68] In terms of a forward-looking analysis, the RAD adds that refuge law does not require that the Respondent hide his sexual orientation in order to be safe in his home country. The Respondent has established, on a balance of probabilities, a standard that his bisexual lifestyle would put him at serious risk of persecution in Nigeria. Although the RPD's state protection analysis was not questioned, an independent review of the country condition documentation leads the RAD to conclude that adequate state protection is not available to bisexuals in Nigeria. Given that the risk is present through the country, he does not have an internal flight alternative. [69] For all of these reasons, the RAD confirms the determination of the RPD and dismisses the appeal, pursuant to paragraph 111(1)(a) of the Act. (signed) "Harold Shepherd" Harold Shepherd December 11, 2018 Date 1 Canada (Minister of Immigration, Refugees and Citizenship) v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93 (CanLII). 2 Peti, Qamile, v. M.C.I. (F.C., no. IMM-1764-11), Scott, January 19, 2012, 2012 FC 82. 3 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression: issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, effective date: May 1, 2017. 4 Enam, Obaid v. M.C.I. (F.C., no. IMM-1735-17), Brown, December 7, 2017, 2017 FC 1117, at para. 33. 5 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017. Guidelines issued by the Chairperson, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 6 Gabila, MacMillan Nuyebga v. M.C.I. (F.C., no. IMM-4702-15), Diner, May 27, 2016, 2016 FC 574 (CanLII), at para. 34. 7 Ibid., Gabila, para. 23. 8 Ibid., Gabila, para. 31-32. 9 Exhibit RPD-1, RPD Record, p. 65, National Documentation Package (NDP) for Nigeria (April 29, 2016), item 6.1, IRB, RIR NGA105321.E, "Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015)", November 13, 2015. 10 Ibid., p. 65, NDP for Nigeria (April 29, 2016), item 6.7, IRB, RIR NGA105219.E, "Information on how bisexuality is understood and perceived in Nigeria; whether bisexuality is distinguished from both male and female homosexuality (2014-June 2015)", September 9, 2015, at pp. 1-3. 11 National Documentation Package for Nigeria (July 10, 2018), item 2.1, United States Department of State, "Nigeria: Country Reports on Human Rights Practices for 2017", April 20, 2018. https://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2017&dlid=277033#wrapper 12 Exhibit RPD-1, RPD Record, pp. 82-93. 13 Gabila, supra, footnote 6, para. 25. 14 Exhibit RPD-1, RPD Record, pp. 547-548, 590, and 599. 15 Exhibit RPD-1, RPD Record, pp. 489-496. 16 Exhibit RPD-1, RPD Record, p. 123. 17 Ibid., pp. 467-471. 18 Ibid., p. 41. 19 Ibid., pp. 45-49. 20 Ibid., pp. 50-51. 21 Exhibit M-2, Appellant's Record, p. 28. 22 IRPA, para. 170(g) and (h). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09525 RAD.25.02 (September 18, 2018) Disponible en français 21 RAD.25.02 (September 18, 2018) Disponible en français