TB9-03511

RAD File / Dossier de la SAR : TB9-03511 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 23, 2019 Date de la décision Panel Christopher G. Harrison Tribunal Counsel for the person who is the subject of the appeal Gabriella Utreras Sandoval Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Q. Liu Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, the Minister of Immigration, Refugees and Citizenship Canada (the "Minister") appeals the decision of the Refugee Protection Division (the "RPD") whereby XXXX XXXX XXXX (the "Respondent") was found by the RPD to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act1 (the "IRPA"). The Minister asks that the Refugee Appeal Division (the "RAD") set aside the decision of the RPD and substitute its own decision that the Respondent is not a Convention refugee or a person in need of protection pursuant to the IRPA. In the alternative, the Minister asks that the RAD refer the matter back to the RPD for re-determination, giving such directions to the RPD as the RAD deems appropriate. [2] The Minister has not submitted new evidence in this appeal and has not requested an oral hearing. The RAD notes that despite the fact that the Respondent indicates at paragraph 12 of the Memorandum of Argument that no new evidence is submitted, an affidavit dated March 27, 2019 forms part of the Respondent's Record and is referenced in the Respondent's Memorandum.2 The RAD has reviewed the affidavit and notes that, for the most part, its contents provide little more than a restatement of information that was already before the RPD. As such, the affidavit has not been taken into consideration in rendering this decision. DETERMINATION [3] The appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is not a Convention refugee or a person in need of protection. BACKGROUND [4] The Respondent's claims were set out in her Basis of Claim ("BOC") form, as well as an amended BOC and Narrative dated April 18, 2017. She alleges that she has a well-founded fear of persecution in her country of origin, Nigeria, due to her sexual orientation as a lesbian. The Respondent alleges that, if returned to Nigeria, she would face persecution at the hands of authorities and/or her fellow citizens as a result of her sexual orientation. [5] The Respondent's hearing before the RPD took place on January 7, 2019. At that time, the RPD found that the Respondent was a Convention refugee and delivered its decision orally with written reasons following. [6] The Minister appeals the RPD decision on the following grounds: (a) The RPD made an error in law when, despite a number of negative credibility findings, it afforded the benefit of the doubt to the Respondent; (b) The RPD erred in its determination that the Respondent was a Convention refugee on the basis of her sexual orientation and in application of the legal test to determine such refugee status; (c) The RPD erred in finding the Respondent to be credible in respect of her sexual orientation claim, particularly given the fact that the RPD made a number of credibility findings against the Respondent. [7] The Respondent contends that the RPD held a meaningful advantage over the RAD in questioning the Respondent and a witness and, as such, argues that the RAD should defer to the RPD decision. Further, the Respondent states that the RAD reasons were intelligent, transparent and justified by the evidence on record and represented a global and contextual assessment of the testimony and documentary evidence. Counsel for the Respondent also argues that the standard of review remains whether the decision viewed as a whole in the context of the record is "reasonable." [8] In its independent review of the matter, the RAD has had an opportunity to listen to the audiotape of the RPD hearing which, of course, includes the testimony of the Appellant and her witness. The RPD record and other documentary evidence have also been reviewed. In addition, the submissions of the Minister, as well as the Respondent have been considered, as well as a review of the credibility findings of the RPD. In so doing and in conducting its independent analysis, the RAD has determined that the RPD had no such meaningful advantage and has assessed all of the evidence independently and upon its merits. Lastly, the RAD notes that the case law consistently holds that the standard of review for such matters is correctness, not reasonableness. [9] For reasons which follow, the RAD finds that the RPD erred in its determination that the Respondent was a Convention refugee pursuant to section 96 of the IRPA due to her sexual orientation. ROLE OF THE REFUGEE APPEAL DIVISION [10] The RAD reviews decisions of the RPD on a standard of correctness after having conducted an independent assessment of the evidence.3 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard which may, in certain cases, allow for the RAD to defer to RPD findings. As indicated above, the RAD is of the view that the RPD had no meaningful advantage because all of the evidence before the RPD has been taken into consideration by the RAD, including the oral testimony of the Appellant and her witness. [11] In addition, the RAD has been described in the jurisprudence as the "safety net" that would catch mistakes made by the RPD whether those mistakes be on the law or the facts.4 In this regard, the RAD is to provide a final determination, either by confirming the RPD decision or setting aside and substituting its own determination of the merits of the refugee claim. In certain limited circumstances, the RAD may send the file back to the RPD where the RAD cannot confirm or substitute a decision without hearing evidence that was presented to the RPD. ANALYSIS OF THE MERITS OF THE APPEAL General Considerations [12] In reviewing matters of sexual orientation, gender identity and expression, the RAD has taken into consideration the Chairperson's Guideline 9 ("SOGIE Guidelines") which provides guidance for decision-makers and other Immigration and Refugee Board ("IRB") personnel.5 In so doing, the RAD is aware that an individual's testimony may be the only available evidence of sexual orientation and that corroborating or additional evidence may not be reasonably available in cases involving SOGIE. [13] That being said, a refugee claimant must still bear the onus of proving his or her claim. The courts have stated that such guidelines are not, in and of themselves, intended to serve as a cure for deficiencies in a claimant's claim or evidence. As such, decision-makers are free to make negative credibility findings or inferences as a result of material inconsistencies, contradictions or omissions. Testimony that is vague and lacking in detail may support a negative credibility inference. RPD Negative Credibility Findings [14] The RPD member identified that the determinative issues were credibility and sexual orientation. In the course of the hearing, the RPD Member made the following negative credibility findings: (a) Despite it having been an alleged same-sex relationship of approximately 10 years and a friendship dating back to childhood, the Respondent could not spell or, for that matter, could not even articulate the name of her purported same-sex partner in Nigeria for the RPD Member; (b) The Respondent's witness was found to have been lacking in detail and particulars, especially in regard to the intimacy of their purported same-sex relationship; (c) The RPD found that "if anything, they are known to each other and are good friends and they have even said so"6; (d) Despite the fact that (at the time of the hearing) it was one of only three alleged same-sex relationships in her life, the Respondent was unable to provide the last name of one of her partners, "XXXX"; (e) Regarding the relationship with XXXX, the Respondent gave conflicting testimony about the duration of that relationship; and (f) When confronted with these inconsistencies regarding her relationship with XXXX, the Respondent provided no plausible or reasonable explanation for the conflicting testimony. [15] The Minister argues that the RPD listed ample instances where the Respondent's testimony gave rise to or concern about the basis of the claim. In spite of these credibility concerns, the panel concluded that she was a Convention refugee based on sexual orientation. [16] Respondent's counsel submits that it was open to the RPD to come to that conclusion after having considered the claimant's testimony, the testimony of the witness and the documentary evidence. Having considered the totality of the evidence, the Respondent states that the positive decision was thorough, transparent and reasonable. [17] The RAD is not persuaded by this argument and finds, on a balance of probabilities, that the Respondent has failed to establish her sexual orientation. This finding is based, in part, upon the RPD negative credibility findings listed above which cast doubt upon the very foundation of the claim, namely: The Respondent's claim that she is a lesbian, hence, at risk of persecution in Nigeria. Relationship with XXXX [18] In coming to this conclusion, the RAD has, among other things, considered the evidence regarding the Respondent's purported relationship with "XXXX" in Nigeria. According to the Respondent's evidence, this relationship would be characterized as follows: (a) The relationship commenced when they were 12 years old and lasted until the Respondent left Nigeria;7 (b) They attended school and were schoolmates through to university and beyond graduation; (c) As schoolmates, they realized that they were not interested in boys and became sexually interested in each other at an early age and carried on a same-sex relationship both at school and after graduating; (d) XXXX was someone who, according to the Narrative, the Respondent was in love with and with whom she had contemplated marriage; and (e) The Respondent alleges that she was waiting for XXXX to join her in North America. [19] As noted in the RPD decision, despite the alleged length and intensity of this relationship, when questioned, the Respondent was unable to spell XXXX surname and, in fact, having listened to the audiotapes of the RPD proceeding, the RAD notes and is particularly concerned about her inability to even state the name aloud. [20] When the RPD Member pursued this question, the Respondent attempted to spell the name indicating that it started with the letters "UKA."8 The Respondent submitted certain documentary evidence as part of her claim, one such item being a letter purportedly authored by XXXX. The RAD observes that the correct spelling begins with the letters "UWA."9 The RAD is less concerned about the fact that she was unable to spell XXXX surname as it is lengthy; however, as indicated above, the inability to even articulate the name of the person with whom she alleges to have had a 10-year relationship is highly problematic. The RPD found that it was incredible that she was unable to tell the panel the alleged last name of her former partner. The RAD agrees with that finding particularly since, as noted by the RPD, the Respondent is university-educated and claims to have been in a long-term relationship with this person dating back to high school. [21] This concern is compounded by the fact that at no time in the Respondent's testimony did she ever refer to her relationship with XXXX as being sexualized thus, omitting key components of her Narrative. Indeed, the closest she came to the nature of that relationship was in regard to questioning regarding XXXX sexual orientation indicating that, like the Respondent, XXXX was a lesbian.10 The fact that XXXX may have had a certain sexual orientation does not establish that the pair were involved in a sexual relationship, nor does it establish the Respondent's sexual orientation and the RAD finds this omission to be material and further damaging to the Respondent's credibility. Relationship with XXXX [22] With respect to the witness "XXXX" with whom the Respondent alleges to have had a brief sexual relationship, the RPD found that her testimony was vague, particularly as to the details about the intimacy of the relationship. Having listened to the audiotape, the RAD would concur with the RPD finding that XXXX was not particularly forthcoming about details of the relationship. [23] While she used the word "intimate" on several occasions and testified that she and the witness had been intimate more than once, at no time did the witness equate intimacy with sexual activity or orientation and, in fact, the RPD ultimately found that XXXX testimony fell short of establishing a sexual relationship. In this regard, the RPD stated that, "if anything, they are known to each other and are good friends and they even have said so."11 The RAD agrees with this conclusion and finds that her testimony was vague and lacking specificity with respect to the nature of the relationship. [24] The RAD finds that the witness failed to advance the Respondent's claim in establishing her sexual orientation and, as such, did little to dispel the concerns with respect to her credibility or to corroborate her allegation of sexual orientation which would form the basis of the well-founded fear of persecution necessary for a successful refugee claim. Relationship with XXXX [25] The Respondent alleges that she has been involved with a woman named "XXXX" since coming to Canada. In testimony, she gave conflicting evidence regarding the duration of this relationship, initially testifying that it commenced in XXXX or XXXX 2017 and lasted until XXXX. Later in her testimony, she indicated that she and XXXX met in XXXX of 2017 and that the relationship lasted into 2018. When this was pointed out to her, she was unable to provide any explanation for the inconsistency in her testimony. [26] The RPD was troubled by the fact that, as with her testimony regarding XXXX, the Respondent was unable to spell XXXX last name. Given the short-term nature of this relationship, the RAD is of the view that, in its decision, the RPD assigned too much weight to this finding. Regardless, the RAD has taken the duration of the relationship into account and assigns no negative inference to her inability to spell the name. However, as with XXXX, the RAD is troubled by the fact that the Respondent was unable to articulate XXXX last name. Coupled with the conflicting testimony as to the duration of the XXXX relationship (for which the Respondent gave no reasonable explanation) the RAD finds that her inability to articulate the names of two of the three alleged same-sex relationships in her life detracts from her overall credibility as to the foundational issue of the claim. RPD Erred in "Benefit of the Doubt" [27] Regardless of its negative credibility findings, the RPD afforded the Respondent the "benefit of the doubt" and found, on a balance of probabilities, that she was credible with respect to her sexual orientation and found that she had satisfied the requirements of section 96 of the IRPA as a Convention refugee. [28] The Minister argues that, in light of the negative credibility findings, the RPD made an error of law in giving her the benefit of the doubt. [29] The RAD finds that for reasons which follow, based upon the United Nations Handbook on Procedures and Criteria for Determining Refugee Status and the jurisprudence, the RPD did, in fact, err in affording the benefit of the doubt to the Respondent. [30] The RPD made a number of negative credibility findings against the Respondent and, for the most part, the RAD agrees with and confirms those findings. However, despite those negative credibility findings, following her analysis of the witness XXXX testimony, the RAD Member stated: "While I will say, while I found her answers lacking in detail, that would otherwise not allow me to overcome the credibility concerns that were raised with respect to the claimant's overall testimony, in this case on the slightest of the pendulum shift, given the duration of time of that relationship and given the time that has elapsed since that time, I will afford the claimant the benefit of the doubt."12 [31] With respect to the RPD, the RAD cannot accept this conclusion. Both the UN Handbook and the jurisprudence are quite clear that the benefit of the doubt should not be awarded to a refugee claimant where the examiner is not satisfied as to the claimant's credibility. Accordingly, the RAD finds that, based upon the negative credibility findings, the general credibility of the Appellant was in question and the RPD erred in awarding the benefit of the doubt to the Respondent. [32] On the benefit of the doubt, the UN Handbook states as follows: 203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements...it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. 13 [33] The Supreme Court of Canada has referred to the UN Handbook as having been formed from the cumulative knowledge available concerning the refugee admission procedures and criteria of signatory states.14 In citing the preceding passages from the UN Handbook with approval, the Court further stated: "Accordingly, the UNHCR Handbook must be treated as a highly relevant authority in considering refugee admission practices. This, of course, applies not only to the Board but also to a reviewing court".15 [34] As such, our highest Court has approved the principle set out in the UN Handbook that the benefit of the doubt should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. Based on the foregoing analysis, the RAD finds that after having found a number of credibility issues with the evidence, the RPD erred in law in affording the benefit of the doubt regarding sexual orientation to the Respondent. [35] The RPD Member then went on to state that on a balance of probabilities, the claimant was "credible with respect to her sexual orientation, if not with respect to some of her core allegations contained in her Basis of Claim".16 The RAD finds that the core allegation of the claim is sexual orientation and for the RPD Member to find on a balance of probabilities that the claimant was credible regarding her sexual orientation but not credible with respect to some of her core allegations is internally inconsistent. The RAD finds that the RPD did not clearly articulate why it found the Appellant to be credible, given the negative credibility findings that went to the heart of the claim. [36] When a refugee claimant swears that certain facts are true, this creates a presumption that they are indeed true unless there is a valid reason to doubt their truthfulness.17 The determination as to whether a claimant's evidence is credible is based upon a balance of probabilities. While the SOGIE Guidelines have been considered in this appeal, those guidelines do not shield a refugee claimant from having the evidence tested, nor does it entitle her to have her evidence accepted without inquiry. [37] As noted earlier, the RAD has found that, given these particular circumstances, the RPD did not correctly apply the benefit of the doubt. Furthermore, the RAD finds, as noted below, that the supporting evidence provided by the Respondent failed to overcome the credibility concerns that go the heart of her claim. If, on a balance of probabilities, the Respondent fails to establish her sexual orientation, her claim must necessarily fail. The RAD finds that the RPD erred in its assessment of the Respondent's sexual orientation by ignoring the serious credibility findings relating to her identity as a lesbian. Assessment of Corroborating Evidence [38] The Respondent submitted documentary evidence including photographs and support letters from organizations such as "519" and the Metropolitan Community Church ("MCC") known for their efforts in the LGBTQ community. In addition, there were letters from XXXX and the Respondent's sister submitted as evidence corroborating the Respondent's claim in respect of her sexual orientation. [39] The RPD found that the community support letters and the photographs failed to overcome the RPD panel's credibility concerns and the RAD agrees with this assessment. The RAD notes that letters from MCC and 519 relate information that is largely self-reported to them by the Respondent and, as such, the author is essentially restating information that has been provided by the Respondent and which is not first-hand knowledge. The RAD has taken these support letters into account but, based upon the self-reported nature of the information these letters contain, the RAD assigns little weight to this evidence. Similarly, the letter from Kingsview Café has extremely limited probative value and the RAD finds that this letter, as well as the photographs submitted are not materially corroborative of the Respondent's claim. [40] The Respondents Memorandum of Argument acknowledges the RPD findings that "on their own, the documentary evidence does not establish sexual orientation. However, the Respondent submits these statements do not detract from the panel's final determination of her claim because the RPD's determination is not based on the weight of one piece of documentary evidence alone."18 [emphasis added] The RAD accepts this argument and finds that the documentary evidence does not establish sexual orientation. With respect to the second part of the Respondent's argument above, my comments follow below. [41] In addition to the documents referenced above, in its independent review of the evidence, the RAD has also considered a letter provided by the Respondent's elder sister, XXXX XXXX. In this letter, the sister claims to have first become aware of the Respondent's sexual orientation in 2015. This letter indicates that she had been visiting the Respondent and met her quarreling with her friend who threatened to involve the police. The sister claims to have made peace between the two but it was after this incident that the Respondent confessed her lesbianism to XXXX.19 There is no mention of police involvement. [42] The Respondent's testimony (and her Narrative) is markedly different on the manner in which her family became aware of her sexual orientation. In testimony, the Respondent stated that her sister "received" the police who were knocking at the door. This testimony is consistent with her Narrative where she states that the police came banging at the door looking "to arrest the homosexual girls that live there."20 According to the Respondent, she immediately fled the residence without even putting shoes on her feet, never to return and took flight from Nigeria as soon as resources permitted. [43] The testimony stands in stark contrast to the sister's letter where neither police involvement, nor the Respondent fleeing from the house were mentioned. The RAD is of the view and finds that had the incident occurred in the manner described by the Respondent, it would be reasonable to expect that the sister's letter would reflect police involvement and the urgency of her flight. The letter fails to do so and this significant gap between the letter and the Respondent's testimony not only detracts from the Appellant's credibility, it casts doubt upon the reliability of the purported letter from the sister. [44] The marked inconsistency between the Respondent's testimony and the letter from her sister is extremely troubling to the RAD which finds that this incongruity concurrently undermines the Respondent's core allegations, her credibility and the credibility of this documentary evidence. Summary [45] Based upon its analysis of this matter, the RAD concurs with the RPD findings that there were numerous negative credibility concerns arising from the testimony and documentary evidence filed in support of the refugee claim. In particular the RAD finds that the following allegations that formed the foundation of the claim were not credible for reasons stated above: (i) the alleged same-sex relationships with XXXX and XXXX; (ii) the relationship with XXXX lacked detail and specificity and failed to advance the Respondent's claim of sexual orientation; and (iii) the significant discrepancy between the letter from the Respondent's sister describing the incident when her sexual orientation was allegedly discovered and the Respondent's testimony and BOC/Narrative account. [46] The RAD is unable to conclude and does find that the Respondent has, on a balance of probabilities, failed to establish that these were same-sex relationships. [47] The RPD decision finding the claimant credible with respect to sexual orientation but not credible with respect to the core allegations of her claim is inconsistent, in error and is not sustainable. Given these credibility concerns, the RAD finds that the RPD erred in assigning the benefit of the doubt to the Respondent regarding her sexual orientation. [48] The RAD finds that on an examination of the evidence as a whole, the Respondent has failed, on a balance of probabilities, to establish her sexual orientation. Having failed to establish her sexual orientation, she has failed to establish that she has a well-founded fear of persecution in her country of origin or is a person in need of protection. CONCLUSION [49] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Respondent is not a Convention refugee or a person in need of protection. (signed) "Christopher G. Harrison" Christopher G. Harrison December 23, 2019 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 2 Exhibit P-2, Respondent's Record, at p. 34, para.6. 3 Canada (Citizenship and Immigration)v Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 4 Ibid. 5 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 6 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7. 7 RPD Hearing Recording, January 7, 2019, at 33:00. 8 Ibid., at 32:00. 9 Exhibit RPD-1, RPD Record, Exhibit 5, at p 86. 10 RPD Hearing Recording, January 7, 2019, at 37:29. 11 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, lines 5-6. 12 Ibid., at p. 7, lines 20-24. 13 United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status. Geneva: 1979 (the "UN Handbook"). 14 Chan v. Canada (Minister of Employment and Immigration), [1995] 3 SCR 593 at 620 per La Forest J. ("Chan") 15 Ibid. 16 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, lines 26-27. 17 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.) 18 Exhibit P-2, Respondent's Record, at p. 44, para. 46. 19 Exhibit RPD-1, RPD Record, Exhibit 5, p. 88. 20 Exhibit RPD-1, RPD Record, Exhibit 4, p. 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-03511 RAD.25.02 (April 04, 2019) Disponible en français 2 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.25.02 (April 04, 2019) Disponible en français