TB4-10934

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 : TB4-10934 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 (a.k.a. XXXX XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 22, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye 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 (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence and does not request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to find him to be a Convention refugee or, in the alternative, refer the matter back to a different member of the RPD for a redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that, upon return to Nigeria, he will be harmed by members of his community, family members and the police because he is bisexual. [4] The Appellant's application for refugee protection was heard on February 28, 2014, April 25, 2014 and July 29, 2014. By a decision of October 7, 2014, the RPD rejected the claim. The RPD found, on a balance of probabilities, that the Appellant had not provided sufficient credible and trustworthy evidence to establish his allegations, particularly his sexual orientation as a bisexual male and the alleged incidents of threats and abuse in Nigeria. The Appellant submits that the RPD erred when it based its credibility and identity findings largely on suspicion and conjectures and by ignoring evidence and not considering the psychologist's report, thus denying him procedural fairness. ANALYSIS ROLE OF THE RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? The Appellant submits that the RAD has the authority to undertake its own analysis of the evidence and to substitute the impugned decision with a determination that should have been made. The RAD notes in Huruglica that the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [6] Justice Phelan stated the following in Huruglica: 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.3 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."4 [7] The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its credibility findings? Peripheral, irrelevant and tangential issues [8] The Appellant submits that the RPD committed an overriding error when it fixated on peripheral, irrelevant or tangential issues to impugn his credibility. [9] The RAD does not concur with the Appellant's submission. The Appellant fails to identify or provide examples of the peripheral, irrelevant or tangential issues he submits the RPD fixated upon. In reviewing the RPD's reasons, it is clear that the RPD concentrated its findings on significant issues. In the reasons for its decision, the RPD used headings such as "The Claimant's Sexual Orientation," "Timeline of Events," "Same-sex Relationship with XXXX" and "Who does the claimant fear in Nigeria?" to categorize its findings for each significant issue. The RAD does not note any significant findings in the RPD reasons that were based on peripheral, irrelevant or tangential issues. The reasons that follow demonstrate that the RPD concentrated its findings on significant issues and not on peripheral, irrelevant or tangential issues as the Appellant submits. Omissions and vague testimony [10] The Appellant submits that the RPD erred in stating that he was vague, evasive and not forthcoming when it did not cite examples of him being vague, evasive and not forthcoming and not taking into consideration the findings of the psychologist indicating that he suffers from all kinds of psychological trauma including concentration and memory problems. He argues that the RPD was in error when it fixated on the variances in his evidence without addressing or analyzing these in light of the psychologist's diagnoses or his suffering. [11] The RAD is not persuaded by the Appellant's argument. The RPD indicates in its reasons that the Appellant's testimony was not easily forthcoming and key areas were evasive and vague, as well as inconsistent with his other evidence. It provided a number of references to the Appellant's testimony for each of the anomalies it identified. For example, in paragraph 10 of the reasons for its decision, the RPD writes: The panel asked the claimant how he identified his sexual orientation. The claimant paused and stated he did not understand. The panel repeated the question and the claimant responded that he sleeps with both men and women but his feeling is stronger with men. The panel asked the claimant whether he considered himself to be gay. The claimant responded that he did not understand. The panel repeated the question and asked the claimant to identify his sexual orientation. The claimant responded that he sees himself as bisexual but he leans more towards men. The panel found the claimant's testimony in this area to be evasive and vague.5 [12] In paragraph 11, the RPD writes: The panel asked the claimant a series of questions regarding his history of relationships with both men and women. For example, the panel asked the claimant whether he had any same-sex relationships with anyone other than XXXX. The claimant paused and eventually stated he met someone when he was twenty-nine years old while he was in university. The panel notes the claimant is currently twenty-nine years old. The claimant described he has lost touch with this person and does "not know where he is." The panel asked the claimant how long this relationship lasted. The claimant responded, "until I finished." The panel repeated the question and asked how many years or months the relationship lasted. The claimant paused and stated, "years." The panel asked the claimant how many years. The claimant paused and stated, "I am guessing two or three years." The panel continued asking the claimant for further details about this relationship. The panel found the claimant's testimony to be similarly vague and very evasive, including why and when the relationship ended...6 [13] The RAD notes that the RPD provided examples of the Appellant's testimony being evasive, vague or hesitant in paragraphs 10, 11, 14, 16, 18, 19, 20 and 21. As such, the Appellant's argument that the RPD failed to provide examples fails. [14] Furthermore, the RAD notes that the Appellant's testimony, concerning his allegations of persecution, is lacking in details and specificity. The Appellant provided very little in the way of details of the events alleged. His testimony at his hearing was punctuated by long pauses and very short responses. The RAD should recognize and respect the credibility findings of the RPD and, in particular, give deference where those findings are based on an assessment of witness behaviour/testimony. Psychological Report [15] As noted above, the Appellant submits that the RPD fixated on the variances in his evidence without addressing or analyzing these in light of the psychologist's diagnoses or his suffering. The RPD indicated in its reasons that it carefully considered the Appellant's psychological report but found that it did not address the shortcomings of his evidence, including its cumulative concerns with his overall credibility and the credibility of his allegations and evidence. The RPD noted that the psychologist met the Appellant on one occasion for approximately 50 minutes and described him as having concentration problems. The RPD also noted that the psychological report included a summary of the Appellant's allegations that he self-reported but this did not necessarily corroborate the situation he alleges, as opinion evidence is only as valid as the truth of the facts on which it is based. [16] The RAD notes that the psychological report indicates that the Appellant exhibited symptoms consistent with XXXX XXXX XXXX and XXXX XXXX XXXX.7 The psychologist indicates the following with respect to the Appellant's mental and emotional functioning. [17] Mr. XXXX feels very distracted by negative thoughts, causing him to have concentration problems which interfere with fluidity of thought and daily tasks. It is important to note that concentration problems and memory problems are common among people exposed to traumatic stress. Difficulties are exacerbated under pressure, such as arises in the high-stakes context of Immigration proceedings. Symptoms can take the form of difficulty understanding questions, requests for questions to be repeated or rephrased, inability to retrieve specific details of the past, or an apparent inability to formulate a coherent response. Stress-related cognitive problems can... (illegible)... important to understand that they likely reflect the disorganizing effects of traumatic stress rather than an effort to evade or obfuscate.8 [18] As noted above, the RPD indicated that it carefully considered the Appellant's psychological report. The RAD notes that a medical opinion is only as valid as the truth of the facts on which the opinion is based. If a panel does not believe the underlying facts, it may discount a medical report in light of that finding.9 The RPD did not believe the Appellant's story, and yet that story forms much of the basis for the psychotherapist's conclusions. The psychotherapist indicates in her report that the assessments she conducts are based on in-depth clinical and psychodynamic interviews, typically extending for 50 minutes. Even if the Appellant does suffer from the disorders described in the psychological report, this does not establish that they were caused by the events he alleges. [19] There is little in the psychological report to indicate that the Appellant's condition might cause him to provide inconsistent evidence. The psychotherapist does note that the Appellant felt very distracted by negative thoughts, causing him to have concentration problems, which interfere with fluidity of thought and daily tasks. However, there is no indication in the report that the Appellant's concentration problems impeded his ability to provide the psychoanalyst with extensive and detailed information about the key elements of his claim. Similarly, it does not appear that the Appellant had concentration problems at the port of entry when he was interviewed by immigration officials, but his evidence was simply not internally consistent or consistent with his later statements. [20] The RAD notes that the Appellant appeared to have no difficulty answering certain questions from the RPD; regarding his name, age, citizenship, date of travel to Canada and travel route to Canada for example. He was not vague or hesitant in his responses to certain types of questions. He was, however, vague and hesitant in response to questions about his sexual orientation and the incidents he alleges caused him to flee Nigeria. The RAD finds that the Appellant had a selective inability to form coherent answers. [21] As stated in Rokni, a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony."10 In this case, the RPD found that the Appellant's psychiatric report did not address all the shortcomings in his evidence, which included contradictions and inconsistencies. [22] The Appellant submits that the RPD erred in failing to properly apply the psychologist's report to his testimony. He argues that the RPD did not consider the psychologist's diagnosis of his memory and concentration problems. He further submits that the RPD overlooked the purpose of the psychological report which was meant to alert the RPD to the quality of the evidence to expect from a suffering claimant and not to first assess the evidence, find the evidence not to be credible and then use the lack of credibility in the oral testimony of the applicant as a basis to reject, discount or give little weight to the report. [23] The RAD considered further jurisprudence related to psychological evidence provided by a refugee claimant in support of a claim. The RAD notes that Justice Annis in Czesak11 indicated that decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation. Courts have developed a guarded approach and caution a review on conclusions of forensic experts which have not undergone a rigorous validation process under court procedures. In relation to administrative tribunals, Justice Annis indicates that caution should be exercised in accepting them (forensic reports) at face value, particularly when they propose to settle important issues to be decided by the tribunal and, unless there is some means to corroborate either the neutrality or the lack of self-interest of the expert in relation to the litigation process, they should be accorded little weight. [24] The RAD notes in Avagyan,12 Justice LeBlanc supports Justice Phelan's statement in Saha13 as follows: It is within the RPD's mandate to discount psychological evidence when the doctor merely regurgitates what the patient says are the reason for his stress and then reaches a medical conclusion that the patient suffers stress because of those reasons. This is particularly the case when the RPD rejects the underlying facts of the diagnosis. In this case, there were no independent clinical studies performed to support the psychological assessment and no other medical basis for the diagnosis. [25] In this case the psychotherapist's assessment was produced specifically for the purposes of supporting the Appellant's claim and to explain any potential credibility concerns with the Appellant's testimony. The report indicates that the Appellant exhibited symptoms consistent with generalized anxiety disorder as well as major depressive disorder. The psychotherapist offers her opinion on issues external to the Appellant's medical condition such as the physical danger he would face if he returns to Nigeria. She also offers her opinion on difficulties the Appellant may exhibit at his immigration proceeding. The assessment was based on a short 50 minute interview. [26] The RAD notes that the report does not directly comment on how the diagnosis of XXXX XXXXdisorder and XXXX XXXX disorder affected the credibility of the statements that the Appellant made during the psychological assessment. The report does not provide insight or rationale as to how the Appellant, who has been diagnosed with disorders that may cause concentration and memory problems, can provide a Basis of Claim Form narrative of 19 paragraphs (4 typed pages) which include significant detail on events which occurred in his early childhood and youth. [27] Given these concerns and in consideration of the jurisprudence regarding the weight that should be placed on psychological reports provided for the purposes of a hearing, the RAD concurs with the RPD's assignment of little weight to the report in terms of establishing the Appellant's allegations of persecution, as well as in terms of the weight that the RPD placed on the credibility of the Appellant's oral testimony and other evidence. As such, the Appellant's argument that the RPD failed to consider his psychological report fails. Appellant's background, culture and previous experiences [28] The Appellant submits that the RPD failed to consider or properly consider his background, culture and previous experience. He argues, while it is conceded that there were some minor problems with his testimony, his overall evidence was credible and projected and/or demonstrated his fear of persecution, particularly when viewed from the lenses of his background, culture, previous experience and the psychologist's report, all of which the RPD failed to consider or properly consider. While the Appellant submits that the RPD failed to consider or properly consider his background, culture and previous experience, he fails to set out what effect his background, culture and previous experience had on his evidence. As such, the RAD is unable to properly analyze the Appellant's argument in this respect. [29] Nonetheless, the RAD notes that the Appellant was questioned by the RPD about his cultural and employment background. He was also questioned about his experiences in Nigeria. Considering the above, the RAD finds that the RPD properly considered the Appellant's background, culture and previous experience in arriving at its findings and decision. Date Appellant was seen engaging in a same-sex relationship [30] The Appellant submits that the RPD erred in its credibility finding that he provided inconsistent evidence regarding the date he was discovered with his same-sex partner. He argues that he testified that this happened in XXXX 2012, which contradicted the date in his Basis of Claim Form indicating that it happened in XXXX 2013. He explained at his hearing that he was assisted by his counsel to fill out the form while he was in detention and did not complete the form personally. The Appellant submits that, given his situation and state of mind at this period, his explanation is plausible and the RPD's adverse credibility finding on this issue was erroneous. [31] The RAD is not persuaded by the Appellant's argument with respect to the above-noted inconsistency. The RPD noted in the reasons for its decision the Appellant's vague, evasive and inconsistent testimony regarding the timeline of his allegations. It noted that the Appellant indicated at his hearing that his problems began in XXXX 2012 when he was caught with XXXX. When questioned further, the Appellant indicated that it was XXXX XXXX, 2012 and not XXXX 2012. The RPD also noted a discrepancy between the dates in his testimony at the hearing as compared to the dates in his Basis of Claim Form. The Appellant testified at his hearing that he was caught with his same-sex partner on XXXX XXXX, 2012 whereas he had indicated in response to question 2(f) of his Basis of Claim Form that the alleged incident occurred in late XXXX 2013. The RPD did not accept the Appellant's explanation that he had not looked at the form properly. It noted that the Appellant had the assistance of counsel when he completed his Basis of Claim Form and he had confirmed at the outset of his hearing that the information in his Basis of Claim Form was complete, true and correct. The RPD drew a negative inference with respect to the Appellant's overall credibility as well as the credibility of his allegation that he was caught with his same-sex partner XXXX. [32] The alleged incident when the Appellant was caught with his same-sex partner is a significant element of the Appellant story, particularly because it was allegedly the incident that caused him problems requiring him to flee Nigeria. It is reasonable to expect the Appellant to give consistent evidence about this incident, especially the date it occurred, and his failure to do so seriously damages his credibility. The RAD concurs with the RPD findings with respect to the anomalies in the Appellant's evidence regarding the timeline of events. The RAD further finds that the anomalies, without reasonable explanations, undermine the Appellant's credibility. Did the RPD breach the Appellant's right to procedural fairness? [33] The Appellant submits that the RPD breached his right to procedural fairness in the treatment of the arrest warrant14 submitted in evidence. He notes that he submitted a document15 post-hearing to confirm that validity of the arrest warrant but the RPD rejected the document due to irregularities. The Appellant argues that the RPD erred when it did not request to view the original of the document even though it was made available to it. He also argues that the RPD did not establish, by documentary evidence or any other evidence, that the procedure followed in providing or sending the letter to Canada was different than that adopted by the police in sending the confirmation document to Canada. He submits that for the reasons noted above the RPD breached his right to natural justice. [34] The RAD finds the Appellant's arguments with respect to the arrest warrant confusing. In his Memorandum, he incorrectly refers to the confirmation document as the warrant when it should have been referred to as the letter confirming the validity of the arrest warrant. Nonetheless, the RAD reviewed the evidence, the RPD findings and the issue of procedural fairness with respect to the Appellant's arrest warrant and letter concerning the validity of the arrest warrant. [35] The RPD noted at the Appellant's hearing that the arrest warrant submitted was not very clear and requested the original. The Appellant's counsel indicated that an original was not available but provided the RPD with a better photocopy of the warrant. Even with the better copy the RPD found that much of the writing in the document was illegible and noted that there were other irregularities, including the misspelling of the word "duly." Due to various irregularities on the document and the cumulative credibility concerns with the Appellant and his evidence, the RPD gave little weight to the arrest warrant in terms of establishing the Appellant's allegations, including his sexual orientation as a bisexual. [36] The Appellant submitted a document post-hearing to confirm the validity of the arrest warrant. The RPD noted that the letter was from police in XXXX in XXXX State whereas the letterhead indicated that it was from police in XXXX. It also noted that there was no seal or stamp visible on the letter. It further noted the very low quality of two images of an elephant emblem that did not match each other. Due to the irregularities and the cumulative credibility concerns with the Appellant and his evidence, the RPD gave little weight to the document in terms of establishing the Appellant's allegations, including his allegation that a warrant was issued against him. [37] In response to the Appellant's post-hearing disclosure, Minister's counsel indicated that he attempted to verify whether the author of the document works for the Nigeria Police Force to determine the authenticity of the document but had not received a reply from the Nigerian authorities. Minister's counsel submits that no weight should be given to this document without further information from the author, without the opportunity to cross-examine the author, and in light of the apparent fabrication of other court documents. [38] The RAD notes that there is no document in the record to indicate that the Appellant responded to the Minister's concerns outlined above. The Appellant had approximately one month to respond to the Minister's submissions on the document submitted post-hearing prior to the RPD making a decision in his claim but failed to do so. [39] The RAD has reviewed the evidence, including the arrest warrant. It notes irregularities in the arrest warrant, some of which are mentioned in the RPD reasons. The arrest warrant appears to be dated XXXX XXXX, 2013, yet it refers to an event (his failure to appear to answer to the said charge) that allegedly occurred on a date in the future (XXXX XXXX, 2014). The RAD finds it implausible that a court document refers to the actions, or lack thereof, of a defendant that have not yet occurred. The arrest warrant contains grammatical errors in the statement, "You are therefore hereby command to bring...." The arrest warrant misuses the word "duty" where it should read "duly" in the statement, "duty served with the summons" rather than "duly served with the summons." The RAD concurs with the Minister's submission that the document appears to have been fabricated by someone who does not fully grasp the content of a warrant or words frequently used in a legal context. It would be reasonable to expect a document issued by a court to not contain such errors. [40] Given the irregularities with the arrest warrant listed above, the RAD finds that it cannot be relied on to corroborate the Appellant's allegations and is likely fraudulent. The RAD notes documentary evidence indicating that fraudulent documents are readily available in Nigeria. As noted in the National Documentation Package, Benin City, Nigeria is a center of the engraving industry, and practically any falsified document can be procured there, from birth certificates to diplomas.16 [41] The RAD is not persuaded that the document verifying the authenticity of another document found to be fraudulent is itself authentic. Corroborating documentation does not make a fraudulent document authentic. The Federal Court has held that submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the claimant, especially when they are interrelated.17 Furthermore, the RAD acknowledges the irregularities on the face of the letter confirming the validity of the arrest warrant as identified by the RPD in its reasons. As such, the RAD concurs with the RPD's allocation of little weight to the letter in terms of establishing the Appellant's allegations, including the allegations that an arrest warrant was issued against him. Given the irregularities with the letter and the arrest warrant, the RAD finds that the letter cannot be relied on to authenticate the arrest warrant and the letter is also likely fraudulent. [42] The RAD is not persuaded by the Appellant's argument that the RPD breached his right to procedural fairness and natural justice by not requesting to view the original letter confirming the validity of the arrest warrant, even though it was made available to it, and by not noting in its reasons documentary or other evidence it relied on to make a finding regarding the procedure followed by the Nigerian authorities in sending a letter. The RAD notes that there is no mention in the Appellant's correspondence to the Board that the original letter confirming the validity of the arrest warrant was available to be viewed. A letter dated August 18, 2014 from the Appellant's counsel requests the RPD to consider a copy of the confirmation letter from the Commissioner of Police and copies of two envelopes.18 If the Appellant was in possession of the original confirmation letter, it was his obligation to provide it to the RPD for consideration. [43] Furthermore, the RPD noted various anomalies on the face of the letter that are self-explanatory and not necessarily rooted in published procedural documentation. For example, one would not expect a letter to contain two return addresses, especially when the addresses are located in different cities in different regions of the country. Upon viewing the letter, it appears that a letter from the Commissioner of Police is superimposed on letterhead for the Inspector General of Police. The RAD further notes that the letter lacks a reference number. Immediately below the letterhead the space following the heading "In reply please quote:" is blank. One would expect the authorities to note a reference number in official correspondence. If there is a space for a reference number and it is clearly written to quote a reference number in the correspondence, one would expect to see a reference number in the space allocated for it. [44] Based on its review of the evidence, the RAD concurs with the RPD's findings noted above. With respect to procedural fairness, the evidence regarding the arrest warrant was not ignored. The Appellant had an opportunity to submit additional information regarding the arrest warrant and the additional information was assessed. RPD Findings The Appellant's Sexual Orientation [45] The RPD found the Appellant's testimony with respect to how he identified his sexual orientation to be evasive and vague. It noted pauses in the Appellant's testimony, the Appellant indicating that he did not understand some questions, and short and unclear responses. The RPD also found that the Appellant's testimony regarding his history of relationships with both men and women were similarly vague and very evasive, including why and when a particular relationship ended. The RPD noted that the Appellant did not present any corroborating letters or documents from his wife who allegedly was aware of his situation. It did not accept the Appellant's explanation that his wife was busy with exams and did not have the time. [46] The RAD notes that the Appellant has been in Canada for approximately one and a half years and has not presented corroborating evidence from his wife. It is unlikely that his wife has been busy with exams and has not had time to provide this documentation in well over one year. The RPD noted that the Appellant requested additional time post-hearing to provide documentary proof of his involvement with XXXX XXXX XXXX XXXX XXXX XXXX yet he failed to provide such a document even though he was granted the time to do so. The RPD found that the Appellant had failed to establish with sufficient trustworthy and credible evidence his sexual orientation as a bisexual male. Following a review of the record, including the testimony of the Appellant at his hearing, the RAD concurs with the RPD's findings. Timeline of Events [47] The RPD found the Appellant's testimony involving the timeline of his allegations to be vague, evasive, and inconsistent both internally within his own testimony, as well as compared to his Basis of Claim Form. It noted numerous examples in its reasons. As a result, the RPD drew a negative inference as to the Appellant's overall credibility, as the timeline of his allegations was a key element of his claim. The RPD drew a negative inference from an inconsistency in the Appellant's evidence regarding the date he was allegedly caught with his same-sex partner. It drew a negative inference as to the Appellant's overall credibility, as well as the credibility of his allegation that he was caught with his same-sex partner XXXX. The RAD reviewed the evidence with respect to the RPD's findings and concurs with the RPD. The alleged timeline of events that caused the Appellant to flee Nigeria is a significant element of his story. It is reasonable to expect the Appellant to give consistent evidence about the timeline of events, and his failure to do so seriously damages his credibility. Fear of Family Members [48] The Appellant indicates in response to question 2(a) in his Basis of Claim Form that people in his community, including his uncle XXXX XXXX and two of his cousins, threatened to kill him. However, at his hearing when asked to provide details of his allegations against his family members, the Appellant was not able to provide specific details such as the names and dates regarding his allegations involving his family members. The RPD drew a negative inference with respect to the Appellant's overall credibility, as well as the credibility of his allegations involving his family. It found that the Appellant had not established with sufficient trustworthy and credible evidence that he was threatened by his family. The RAD concurs with this finding. It would be reasonable to expect a refugee claimant to provide specific details regarding allegations involving the agents of persecution, especially when the agents of persecution include family members. The Appellant's inability to provide the names and dates regarding his allegations involving his family members further damage his credibility. Visitor Visa Application to Canada - XXXX Championship [49] The RPD found that the Appellant's testimony concerning his visa application to Canada extremely vague and evasive. It noted several examples in the Appellant's testimony to support its findings. The RPD drew a negative inference as to the overall credibility of the Appellant, as the timeline of his allegations and the circumstances of his travel to Canada are important elements of his claim. The RAD concurs with the RPD's findings. The Appellant alleges that he applied for a visa to Canada in order to leave Nigeria because of the problems he had encountered. It would be reasonable to expect the Appellant to provide specific details regarding his visa application and his failure to do so further undermines his credibility. Visa Applications to the United States of America, Finland and Germany [50] The RPD found the Appellant's testimony regarding his various applications to visit other countries, especially the United States, to be hesitant, vague and evasive. It noted that the Appellant described applying to visit the United States for an XXXX XXXX in 2012, however, he was not able to provide any specific details about the conference's location or subject matter. The RPD also noted that the Appellant described applying to the USA, Finland and Germany in 2013. The RPD drew a negative inference as to the Appellant's overall credibility, as the timeline and circumstances of the alleged incidents in 2012 and 2013 are key elements of his claim. Following a review of the record related to the Appellant's visa applications, the RAD concurs with the RPD's findings. Lawyer in Abuja [51] The Appellant testified before the RPD that he told a lawyer in Abuja about his problems. When asked by the RPD about his efforts to obtain corroborating documentation from the lawyer, the Appellant indicated that he had not made any effort because he had only gone to see the lawyer for advice. The RPD rejected the Appellant's explanation and drew a negative inference as to his credibility. It found that the Appellant had not established with sufficient trustworthy evidence that the Appellant revealed his problems to a lawyer in Nigeria in or about XXXX 2013. [52] The Federal Court has established that the burden of proof to establish a claim lies with the refugee claimant. A claimant must come to a hearing with all of the evidence that they have to offer and believe necessary to prove the claim.19 The Board may draw a negative inference from a claimant's lack of effort in acquiring evidence to corroborate central elements of a claim since Rule 11 of the Refugee Protection Division Rules clearly states that the applicant must provide such documents. It is entirely reasonable for the Board to attach great importance to documentation which would have supported the allegations.20 As such, the RAD concurs with the RPD findings above, including the drawing of a negative inference from the Appellant's lack of effort to obtain corroborating documentation from the lawyer in Nigeria. Royal Summons [53] The RPD noted that the Appellant made no mention of a Royal Summons being issued against him in his original Basis of Claim Form. It also noted that the Appellant mentioned in his amended narrative that a Royal Summons was issued in XXXX 2013 thereby triggering his relocation to Lagos and coming across his friend, a XXXX expert, who later made travel arrangements for him to travel to Canada as part of a XXXX XXXX XXXX XXXX. The RPD found that the dates and sequence of events as presented by the Appellant are not plausible as the XXXX invitation letter is dated prior to the Royal Summons. The RPD drew a negative inference as to the Appellant's overall credibility, as well as the credibility of his allegation involving a Royal Summons being issued against him. It found that the Appellant had not established with sufficient trustworthy and credible evidence that a Royal Summons was issued against him. The RAD concurs with the RPD drawing a negative inference and concurs with its finding. The RAD agrees that the dates regarding the summons and invitation letter are problematic. Affidavit of Appellant's Mother [54] The RPD noted that the Appellant presented an affidavit from his mother which included a spelling of her name that differed from the spelling of her name on the Appellant's Basis of Claim form. The RPD assigned little weight to this document due to the spelling irregularity and the documentary evidence indicating the presence and availability of fraudulent documents from Nigeria. The RAD concurs that little weight can be ascribed to the affidavit from the Appellant's mother for the same reasons identified by the RPD. Additional finding [55] The RAD notes that the Appellant told immigration officials at the port of entry that he did not have any fears of returning to Nigeria, that he was not in Canada to stay and that he would only be in Canada for two or three weeks.21 He made no mention that he feared returning to Nigeria because he was discovered in an intimate act with a person of the same sex. He made no mention that he was being sought by police in Nigeria or that he would be killed or subjected to sacrifices. At his hearing before the RPD, the Appellant explained that he feared telling immigration officers in Canada his real story because of his fear of police in Nigeria and he did not know if homosexual acts were illegal in Canada. [56] The RAD rejects the Appellant's explanation for failing to tell Canadian immigration officials about his problems immediately upon his arrival. It is unreasonable for a person fleeing persecution based on sexual orientation to flee to a country where he is not sure if his sexual orientation is accepted. The Appellant indicated at his hearing that a friend in university would regularly travel to the United Kingdom and tell him how gay men expressed themselves openly without reprisal. The Appellant indicates in his Basis of Claim Form narrative that, in XXXX 2012, he started researching on how to travel for safety. He also indicates that he applied for a visa to various countries, including Finland, Germany and the United States of America, from XXXX 2012 to XXXX 2013. The RAD notes that the Appellant is well educated with 17 years of formal education, including five years of post-secondary studies in the field of microbiology.22 One would expect an educated and well informed person such as the Appellant to have conducted the appropriate research on the human rights conditions for LGBT individuals in Canada prior to departing Nigeria. One would expect an educated and well-informed person such as the Appellant to have conducted the appropriate research on the refugee claim process in Canada prior to departing Nigeria. It would be reasonable to expect the Appellant to have informed immigration officials in Canada about his sexual orientation and the resulting problems he faced in Nigeria immediately upon his arrival in Canada. His failure to do so, without a reasonable explanation, further damages his credibility. Disposition [57] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD agrees with the RPD's finding that the Appellant has not established, on a balance of probabilities, that he is bisexual. The RAD further agrees with the RPD finding that the Appellant has not established, on a balance of probabilities, the alleged incidents of threats and abuse having taken place in Nigeria. [58] Therefore, the RAD finds that there is not a serious possibility of persecution should the Appellant return to Nigeria. The RAD therefore concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons, the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [59] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) 'M. Pettinella' M. Pettinella April 22, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 Exhibit RPD-1, at p. 7. 6 Exhibit RPD-1, at p. 7. 7 Exhibit RPD-1, at p. 339. 8 Exhibit RPD-1, at pp. 338-339. 9 Danailov (Danailoff), Vasco (Vassil) Vladimirov v. M.E.I. (F.C.T.D., no. T-273-93), Reed, October 6, 1993. 10 Rokni, Mohammad Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995. at paras. 10-11. 11 Czesak v. Minister of Citizenship and Immigration, (IMM-09539-12), Annis, November 14, 2013, 2013 FC 1149. 12 Avagyan v. Minister of Citizenship and Immigration, (IMM-2596-13), LeBlanc, October 22, 2014, 2014 FC 1003. 13 Saha, Gobinda Chandra v. M.C.I. (F.C., no. IMM-5193-08), Phelan, March 23, 2009, 2009 FC 304 at para. 16. 14 Exhibit RPD-1, at p. 335. 15 Exhibit RPD-1, at pp. 368 to 370. 16 Exhibit RPD-1, National Documentation Package, Nigeria, at p. 117, item 3.19. 17 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002, 2002 FCT 451. 18 Exhibit RPD-1, at pp. 366-367. 19 Kante, Abdoulaye v. Canada (Minister of Employment and Immigration), (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994. 20 Luzi, Tshongo Ngongo v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-4183-03) Pinard, June 28, 2004; 2004 FC 916. 21 Exhibit RPD-1, at pp. 251-255. 22 Exhibit RPD-1, at p. 49. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10934