TB9-28743

RAD File / Dossier de la SAR : TB9-28743 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision January 30, 2020 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the person who is the subject of the appeal Peter Obuba Kalu Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. I substitute my own decision that the Appellant is a Convention1 refugee. a. XXXX XXXX (Appellant), a citizen of Nigeria and no other country, seeks refugee protection from persecution in Nigeria based on his sexual orientation as a bisexual male. b. The Appellant submits that although he is married with children, he has had covert same-sex relationships since his youth. The Appellant says that his bisexuality was exposed when a partner was arrested by police. He fears that he will be persecuted in Nigeria based on his sexual orientation c. The Refugee Protection Division (RPD) found that the Appellant has not credibly established his sexual orientation as a bisexual male. The RPD further found that, although the Appellant was identified as homosexual/bisexual in Nigerian media articles, he would not face a future risk of persecution based on imputed sexual orientation because the articles would be unlikely to be read by many people in Nigeria. d. The determinative issues for the Refugee Appeal Division (RAD) are (1) did the RPD err in finding that the Appellant is not bisexual and (2) did the RPD err in finding that the Appellant does not face a forward-looking risk based on the perception that he is bisexual or homosexual. e. When I consider the evidence before me I find that, on a balance of probabilities, the Appellant is bisexual. Given this finding, I find that that the Appellant faces a serious possibility of persecution in Nigeria, a country where homosexual and bisexual activity are inherently illegal. I also find that the existence of articles in the Nigerian media identifying the Appellant as being complicit in homosexual activity raises a serious possibility that he will suffer persecution in Nigeria for imputed homosexuality. ANALYSIS [2] My role is to look at all the evidence and decide if the RPD made the correct decision.2 The Appellant is bisexual and faces persecution in Nigeria [3] Sworn testimony is presumed to be true unless the presumption of truth is rebutted. The Appellant stated in his Basis of Claim (BOC) Form and in his testimony at the RPD that he is bisexual and he described a number of same-sex relationships he says he has had. The RPD found that the Appellant was not credible with respect to his sexual orientation as a bisexual man. For the reasons that follow, I find that the RPD erred in its credibility assessment. [4] The Appellant argues on appeal that the RPD erred in impugning the Appellant's credibility because the Appellant did not expressly mention his second boyfriend, XXXX, in his BOC. The Appellant testified he had an on-and-off relationship with XXXX and that XXXX was one of three men with whom he had relationships at school. The RPD takes negative inference from the fact that the Appellant and XXXX were "dating" for three years yet XXXX is not mentioned in the BOC. The RPD did not canvas the nature of the relationship with the Appellant but rather focussed on the non-disclosure of the relationship in the BOC. The Appellant testified that he focussed on relationships that were core to his narrative. I find the Appellant's explanation reasonable and I find that the RPD erred in impugning the Appellant's credibility. [5] The Appellant argues on appeal that the RPD erred in impugning the Appellant's credibility because the RPD found that the Appellant did not provide sufficient detail of the measures he took to conceal his same-sex liaisons. The Appellant testified that he was careful about with whom he met, where they met, and what they did. I have reviewed the Appellant's testimony and I find his explanations reasonable. I find that the RPD erred in impugning the Appellant's credibility. [6] The Appellant argues on appeal that the RPD erred in finding that his delay in leaving Nigeria undermined his subjective fear of persecution. The Appellant testified that he was in hiding, he needed time to get money he was owed and settle his affairs, and that flights purchased 14 days in advance were more affordable than immediate flights. While one might question the wisdom in any delay in leaving Nigeria, I accept the Appellant's explanation as reasonable and do not find that a 14-day delay undermines the existence of subjective fear. [7] The RPD canvassed inconsistencies regarding the Appellant's movements after XXXX XXXX arrest. The RPD did not accept the Appellant's explanations and found that these inconsistencies further undermined the Appellant' credibility. I do not agree with the RPD's assessment. I find that the inconsistencies are not material to the core determinative issue, being the Appellant's sexuality. [8] Based on the testimony and the evidence, I find that, on a balance of probabilities, the Appellant is bisexual. I find that the RPD erred in finding that he is not bisexual. [9] Homosexual acts are illegal in Nigeria as is any activity that might be construed as supporting or promoting homosexuality. Where I have found that the Appellant is bisexual, he faces a serious possibility of persecution in Nigeria based on his sexual orientation. State protection is not available to the Appellant given that homosexuality is against the law. He has no internal flight alternative in all of Nigeria given that homosexuality is against the law throughout Nigeria. [10] The Appellant argues on appeal that the RPD erred in finding that the Appellant is not at risk due to imputed sexuality in the media. The Appellant submitted as evidence a Nigerian media article naming the Appellant as complicit in homosexual acts. The RPD found that the information in the media article was not genuine but that the article itself existed in print and online. Nonetheless, the RPD found that the Appellant did not face a forward-looking risk because "the panel notes that the claimant testified that the Observer is a paper based in Edo State, and though it is available to some extent outside Edo State it is not considered a leading newspaper in the country. The online version of the article in evidence at Exhibit 5 indicates that it has a total of 73 views at the time it was submitted to the panel, some five months after its publication and in a country of a population of over 200 million".3 [11] I find that the RPD erred in its assessment of the forward-looking risk to the Appellant inherent in the media article. The allegations against the Appellant are now part of the permanent public record that is searchable and accessible on the internet. There is a serious possibility that the Appellant would face persecution if these allegations were to surface at some point in the future. CONCLUSION [12] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "Michael Gardiner" Michael J. Gardiner January 30, 2020 January 30, 2020 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, RPD Reasons, para. 27. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-28743 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français