TB4-08129

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 No. / N° de dossier de la SAR : TB4-08129 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 29, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, a citizen of Nigeria, is appealing the decision of the Refugee protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal and he is requesting an oral hearing pursuant to subsection 110(6) of IRPA. The Appellant requests that the Refugee Appeal Division (RAD) find him to be a Convention refugee or a person in need of protection or, in the alternative, that the matter be referred back to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. Background: [3] The Appellant's claim is based on his sexual orientation, namely, bi-sexual. However, while studying XXXX XXXX, the Appellant met a female, XXXX, whom he married on XXXX XXXX, 2006. The following year he and XXXX had a baby girl. Although the Appellant had been happy, his feelings for men began to grow. This, in turn, caused problems within his marriage, as his wife was unaware of these feelings. [4] The Appellant would remain late at work and eventually he began a relationship with one of his apprentices, XXXX, whom he dated for three years, before he moved away and the Appellant lost contact with him. In 2011, the Appellant's wife gave birth to a baby boy. However, the Appellant was depressed and attempted to obtain a visitor's visa to the UK, but it was denied in XXXX 2012. Subsequently, the Appellant had an affair with one of his customers, however, in late XXXX 2013, he stopped coming around. Later, the Appellant learned that this individual had been arrested for being a homosexual. This lead the Appellant to have concerns that he may have provided his name to the police. [5] Out of fear of being arrested, the Appellant contacted an agent, who assisted him in obtaining a Canadian visa. The visa was issued on XXXX XXXX, 2014 and the Appellant left Nigeria without telling anyone, including his wife. After his arrival in Canada, the Appellant told his wife about his sexuality, and that he would be absent for some time. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] If the statutory requirements have been met, the panel will then consider the factors in Raza,1 in which the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a) for the PRRA (Pre-Removal Risk Assessment). The Court held that new evidence should be considered for its newness, credibility, relevance, and materiality, in addition to any express statutory provisions. NEWNESS [8] Is the evidence new in the sense that it is capable of: * Proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, * Proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, * Contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. CREDIBILITY [9] Evidence that passes the test in Section 110(4) must be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. RELEVANCE [10] The RAD must consider whether the evidence is relevant to the appeal. Is it capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. MATERIALITY [11] Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. RAD'S FINDINGS: [12] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: * Photographs (marked Exhibit D as per Appellant's affidavit) of the Appellant and his partner. [13] In the absence of identification of the individuals contained in the photographs or a date that these photographs were taken, together with an explanation as to why these were not reasonably available at the time of the hearing, the RAD denies the admittance of these photographs, as they do not meet the statutory criteria. However, in the alternative, given their lack of identification, they are unable to meet any of the factors as set out in Raza. [14] Since no new evidence, pursuant to ss. 110(4) of IRPA has been admitted, an oral hearing pursuant to subsection 110(6) is also denied. ROLE OF THE RAD [15] A recent Federal Court decision in Huruglica2 has provided the RAD with guidance, which the RAD will follow. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [16] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,3 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply one of two approaches, including the "hybrid appeal" approach described by Justice Phelan in Huruglica as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. SUBMISSIONS BY COUNSEL [17] Counsel submits that the RPD's credibility findings are based largely on peripheral matters. He further submits that the RPD erred in failing to conduct a thorough s. 97 IRPA analysis and that the RPD ignored the corroborating documentation. [18] The RAD must consider the credibility findings made by the RPD to determine if they support its conclusion. Temporary Resident Visa Applications: [19] The RPD found that inconsistencies contained in the two visa applications lead to a general negative credibility finding and a mistrust of the Appellant. The Appellant's first visa application was refused on or about XXXX XXXX, 2013. The second application was approved and issued on or about XXXX XXXX, 2014. The RPD noted that, in the Appellant's original Basis of Claim form (BOC), he makes no mention of the earlier refused visa application from XXXX XXXX2013. However, in his amended BOC, the Appellant indicates that he wanted to travel out of Nigeria in XXXX 2013, sought the assistance of an agent for a visa to either the UK or the U.S., who later informed him that he could not assist him. In his amended BOC, however, the Appellant states that he had no idea that the agent had applied for a Canadian visa on his behalf, and it was only after his arrival in Canada, that he discovered that this application had been filed and refused. The Appellant was unable to explain why the agent would have made an application to Canada, when the Appellant had specifically requested visas to either the UK or the U.S. Moreover, when the RPD noted the Appellant's signature on the XXXX 2013 application, he was asked to explain. The Appellant insisted that it was not his signature, however the RPD found that the signatures on both visa applications appeared to be the same. [20] The RPD found that the testimony surrounding these applications went to the material aspect of the claim, in that it undermined the Appellant's allegations with respect to the timing of the discovery of his boyfriend's arrest and his application for a visa to Canada. [21] Furthermore, the RPD found that, despite the Appellant's oral testimony, he had used the services of different agents; the RPD noted that the family information forms for the two different applications in XXXX and XXXX 2013 were both dated on the same date, XXXX XXXX, 2013. The RPD concluded that the foregoing concerns lead to a general negative credibility finding with respect to the timing of the discovery of XXXX' arrest and the Appellant's application for a visa to Canada to flee Nigeria. [22] The Appellant submits that the RPD utilized the prior temporary resident visa applications to impugn the credibility of the Appellant, and moreover, that this was a peripheral issue. Specifically, the Appellant takes issue that the RPD did not accept that an agent applied for a visa to Canada without the Appellant's knowledge. The Appellant further argues that it is, in fact, not implausible for a travel agent to submit multiple simultaneous applications for their respective clients in order to maximize their possibility for temporary travel. He submits that, although the RPD admits to not being a signature expert, it does not accept the Appellant's testimony that the visa application and BOC signatures are, in fact, not the same. The Appellant argues that the RPD's suspicions surrounding the same information contained in the two visas submitted by two different agents were unwarranted because he did go to two different agents, even though they worked in the same office. [23] The RAD finds that the RPD erred in stating that it was not an expert in handwriting analysis, then proceeded to indicate in its Reasons that the two signatures appear to be the same, notwithstanding the Appellant's testimony that they are not. The RAD concurs with the Appellant that this observation is an error, in the absence of expertise in the field of handwriting. The RAD also concurs that it is, in fact, plausible for multiple simultaneous applications to be filed, in the hopes that one will succeed. [24] However, having said this, there are two important aspects with respect to the travel visas. One is the timing of the applications and the other is the knowledge of the second visa application which the Appellant denies. [25] The RAD finds that it is implausible that the Appellant would be unaware of the second TRV application made on his behalf in XXXX 2013. This was particularly noteworthy when the Appellant had indicated that he had requested a travel visa to either the UK or the U.S., and he could not provide an explanation for the agent having made an application to Canada. However, the RPD then drew a significant negative inference regarding the Appellant's general credibility, his account for fearing persecution, his allegations surrounding the timing of his discovery of his partner XXXX' arrest and his application for a TRV to Canada, in its Reasons (paragraph 19). [26] The RAD finds the timing of XXXX arrest, which is a material aspect of the claim, and the cause of the Appellant's departure, is called into question when examining the testimony surrounding these applications. The RPD did not specifically indicate why this timing was called into question, but did include it in its general negative credibility findings. The RAD finds that the answer to this question lies in paragraph 31 of the RPD reasons, when the RPD made a finding, with respect to the Appellant's relationship with XXXX and XXXX arrest, that lead to a conclusion that neither happened. This is dealt with in more detail below. Relationship with XXXX [27] The RPD found the Appellant's testimony and the information contained in the BOC to be inconsistent, with respect to when this relationship ceased. In oral testimony, the Appellant stated that he attempted to find out why XXXX had stopped coming around by visiting his house where XXXX younger sister advised that XXXX was travelling and that he never saw XXXX again. In his BOC, he stated that he and XXXX had dated for almost three years before he moved away, and thereafter they would only see each other once in awhile, and eventually he stopped coming around at all and they lost contact. [28] The RPD, based on the foregoing, concluded that it was more likely than not that the Appellant was never intimately involved with XXXX, but rather that he had fabricated the relationship in order to bolster his refugee claim. [29] The Appellant argues that the RPD became confused by the terms "moved away" and "travelled," and that the RPD erred when stating that the oral testimony and the information contained in the BOC are inconsistent. [30] The RAD finds that whether XXXX moved or travelled is not a relevant issue, and by basing its conclusion on this evidence, in the RAD's opinion, the RPD took a quantum leap to then find that the relationship did not exist. However, the RAD finds that this error is not fatal to the claim as it was the relationship with XXXX, which lead to the Appellant's departure. Relationship with XXXX and his discovery of his arrest: [31] The RPD found the Appellant's testimony contradictory with the allegations set out in his BOC original and amended narratives. Specifically, there was conflicting testimony as to the last time he had seen XXXX; the beginning of XXXX or the end of XXXX. In response to the RPD's question as to the reason for the contradiction, the Appellant responded "I saw him last at the beginning of the month but it was at the end of the month he stopped coming." [32] The RPD did not accept the further explanation provided by the Appellant that "I still saw him in the month of XXXX XXXX to satisfactorily explain the contradiction. This lead to a finding by the RPD that it was more likely than not that the Appellant was not in a relationship with a man named XXXX in Nigeria, and that XXXX arrest was called into question. This lead to a general credibility finding that the Appellant is not a bi-sexual. [33] The Appellant argues that the RPD imposed Western standards in its interpretation of when he last saw XXXX as well as the discovery of XXXX XXXX arrest to be unreliable and contradictory. Moreover, the Appellant argues that the RPD offered no explanation as to why it was unreliable or contradictory and it conflated its determination about its belief regarding the last time he saw XXXX XXXX with the circumstances surrounding the Appellant's discovery of XXXX arrest. [34] The RAD does not concur with the Appellant that the RPD imposed Western standards in interpreting the testimony surrounding the Appellant's relationship with XXXX. The RAD does, however, concur that the RPD provides no reasons for disbelieving the discovery of XXXX alleged arrest. Nevetheless, since the RPD found, on a balance of probabilities, that the Appellant was not in a relationship with XXXX in Nigeria, then the RAD finds XXXX arrest is not relevant. Canadian supporting documents: [35] The RPD found that the Appellant's willingness to acquire and submit non-genuine documentation in support of his applications to Canadian authorities in the past, coupled with the general corruption which is endemic in Nigeria, lead to little weight being accorded to the personal documentary evidence attesting to the Appellant's activities inside Canada. [36] The Appellant submits that the RPD erred when it ignored the affidavit of XXXX XXXX, letter from XXXX, Letter from XXXX XXXX, Letter from XXXX XXXX supporting photographs, and a psychological report. [37] The RAD finds, after conducting an independent assessment, that, although the Appellant had submitted numerous documents to corroborate his involvement in the gay community in Toronto, mere membership did not automatically confer sexual identity, particularly since the RPD had made a finding that the Appellant's allegations that he was bi-sexual were lacking in credibility. Similarly, the RAD finds that, although the psychological evaluation indicated that the Appellant was suffering from XXXX XXXX and XXXX XXXX XXXX, in terms of identification as a bi-sexual, this report did not establish the Appellant's sexual identity. The RPD erred in not stating the foregoing in its Reasons, however this is not fatal to the outcome, having already found that the Appellant was not bi-sexual and that his activities in Nigeria were lacking in credibility. The RAD concurs with the RPD that, although some findings were peripheral, the findings, with respect to the temporary resident visa applications and the evidence surrounding the Appellant's relationship with XXXX, lead to the RPD's finding that the Appellant is not a bi-sexual, which then lead to little weight being accorded to the Canadian supporting documents. Failure to consider s. 97 of IRPA: [38] In response to Counsel's submission with respect to the failure of the RPD to analyze section 97 of IRPA in this claim, the RAD finds that the credibility findings equally apply to both sections 96 and 97 of IRPA. Affidavit: [39] With respect to the affidavit of XXXX XXXX XXXX this simply confirms the marriage between the Appellant and his wife, and does not go to the issue of the Appellant's bi-sexuality. Therefore, the RAD finds that this omission in the RPD Reasons is not an error, as it does not address the material aspect of the claim. CONCLUSION [40] After conducting an independent assessment of the entire record, including the Reasons, the RAD finds that there was insufficient persuasive evidence to establish the Appellant's identity as a bi-sexual. Accordingly, the RAD finds that the Appellant is not a Convention refugee or a person in need of protection. [41] This appeal is therefore dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. (signed) 'Roslyn Ahara' Roslyn Ahara December 29, 2014 Date 1Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R.; Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 2Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Alyafi, Aghiad v. M.C.I (F.C. No. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08129