TB4-07234

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 : TB4-07234 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 December 1, 2014 Date de la décision Panel Roslyn Ahara 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, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal nor has he requested an oral hearing. He is, however, requesting that either he be found to be a Convention refugee or, in the alternative, that the matter be referred back to a newly-constituted panel of the RPD. DETERMINATION [2] This appeal is allowed. Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant's claim is based on his sexual orientation, namely, homosexual. He began to have feelings for the same sex at the age of nine. However it was not until university that he had a relationship. He and his partner were caught on campus, although initially the Appellant did not realize that his sexuality had been uncovered. It was not until he began losing friends and the news spread on campus. [4] The Appellant then received insults, threats and "pushings," which made it difficult for him to move about freely on campus. He then told his father, and other family members became aware of his sexuality. The Appellant's father feared that his son would be forced to make sacrifices, which involved drinking an herbal concoction. He believed this would be harmful to his son's health and could possibly lead to death. [5] As a consequence, the Appellant and his father travelled on vacation to the United States on XXXX XXXX, 2013. He had already obtained a U.S. visa earlier and, when in the U.S., his father arranged for an agent to bring him to Canada. ROLE OF THE RAD [6] Counsel made submissions on the Standard of Review, quoting the use of "palpable and overriding error" as well as earlier decisions using a standard of "reasonableness," and whether the RPD's decision is "within a range of possible, acceptable outcomes." However, a recent Federal Court decision in Huruglica1 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." [7] 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 Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach 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 [8] Counsel submits that the RPD erred when it based its credibility and identity findings largely on suspicion and conjectures and by ignoring evidence. [9] Counsel submits that the RPD did not consider the Psychologist's report, thus denying the Appellant procedural fairness. CREDIBILITY FINDINGS [10] The RPD questioned the Appellant with respect to the fact that he travelled with his father to the United States (U.S.), using his own genuine passport; however, when his father returned to Nigeria, he took the Appellant's passport. The RPD noted that the Appellant did not know why his father had taken this passport. He further explained that he would not ask him now as he does not have "the liberty to ask these kinds of questions." In light of the affidavit from the Appellant's father sworn at the high court, the RPD questioned the Appellant on his latter statement. The Appellant's response was that, when his father sends documents, they are sent through his aunt, and, in the case of the passport, his father had not sent it. Moreover, the Appellant, when asked if he could obtain the passport following the hearing, responded that he did not think so. Finally, the Appellant, when prodded, acknowledged that he believes his father cannot find his passport, otherwise he would have sent it. In light of the inconsistencies provided by the Appellant, the RPD found that the Appellant had never asked his father to send his passport. Moreover, the RPD noted the material aspect of this document for both establishing identity and travel history. In totality, the RPD found the Appellant's responses to be indicative of a conscious attempt to evade producing his passport to the RPD and, in addition, the RPD found that this spoke to his credibility as a witness. [11] The Appellant submits that the RPD was fixated on the fact that his father had taken his passport back to Nigeria, when he was, in fact, a minor when he came to Canada and he did not have control over his travel documents and even his itinerary. The Appellant further submits that the RPD placed an unreasonable emphasis on the Appellant's travel documents, and the inconsistencies, contradictions and implausibilities were not satisfactorily explained by the RPD. [12] The RAD concurs with the Appellant that, at the time of entry into Canada, he was a minor, and, as such, he would have deferred to his father. However, having said this, the RAD finds that the RPD did in fact fully explain the inconsistencies within the Appellant's testimony when making its findings. It notes that the Appellant was represented by a competent counsel, and that a passport is an important document. The RAD concurs with the RPD that the fact that the Appellant provided other documentation, then begs the question as to why this important document was not requested. [13] Having acknowledged the inconsistencies, the RAD finds that the Appellant's identity was established without the passport, and leniency must be accorded to the Appellant given the fact that he was a minor at the time he entered Canada. Finally, the RAD finds that, even if it was reasonable for the RPD to have considered the testimony in this regard, the passport would not have established his identity as a homosexual as alleged. The Appellant's Homosexual Relationship [14] The RPD found the lack of spontaneity with respect to the month in which this relationship began, undermined the Appellant's credibility. The RPD did not accept that the school years overlapped and therefore it was difficult to remember the month, but he knew it was in 2012. The RPD found that the Appellant's inability to provide the month and year with some accuracy and certainty led it to doubt the credibility of the relationship and the Appellant's allegations. [15] The Appellant submits the lack of spontaneity is an inappropriate characterization, and that the omission of a month, when considering the contents of the Psychologist's report (see below), is a reviewable error. [16] The RAD concludes that the RPD was microscopic in its foregoing finding. Moreover, the RAD concurs with the Appellant that in terms of the Appellant's ability to recall details, e.g. dates, the contents of the Psychological report were not considered before making this finding. Affidavit Submitted by the Appellant's Father [17] The RPD examined the affidavit sworn by the Appellant's father indicating some inappropriate behaviour in which his son was engaged on school property. However, the RPD notes that the Appellant's Basis of Claim form (BOC) makes no mention that his father was contacted by school authorities, but rather his testimony is that the Appellant's father learned of his homosexuality through him. When confronted with this discrepancy, the Appellant responded that initially he was unaware that the school authorities had contacted his father, but became aware when he received the affidavit. The RPD did not find it reasonable that the Appellant only came to know how his father learned of his homosexuality after he received his father's affidavit here in Canada. The RPD found that even if it accepted the Appellant's explanation, this amendment to the BOC should have been made as university officials' alleging that they had caught the Appellant heightens the level of risk. Moreover, it begs the question as to why the Appellant would not question his father upon learning this after his arrival in Canada. [18] The Appellant submits that his credibility was impugned when the RPD misconstrued or misconceived the evidence as contained in paragraph 15 of its Reasons. He submits that his father became aware of his sexuality through both sources; initially through him and later through the university. Moreover, the Appellant submits that the RPD assumed that he must have known that his father had been called and notified of his activities on campus, when there was nothing in evidence to suggest such was the case. [19] The RAD finds that the Appellant's argument has some merit. However, in light of the RAD's findings below, it is not necessary to make a finding in this regard. Sojourn in the U.S. [20] The RPD questioned the Appellant with respect to his sojourn in the U.S. It found the Appellant's lack of knowledge of the name of the airport, the name of the hotel, the length of the taxi ride, the cost of the fare, etc. to be implausible. [21] The RAD finds that, given the fact that the Appellant was a minor at the time of the one day sojourn in the U.S., this finding of implausibility was not justifiable The RAD concurs with the RPD, that a taxi ride from Atlanta to New York is implausible. However, in light of the psychological report and the fact that the Appellant's father was in control of his itinerary and documents throughout the sojourn, those details should not be discredited in light of the fact that the Appellant was a minor at the time. Psychologist's Report [22] The RPD gave no probative value to the above report, as it was "based entirely on the applicant's story,"...... which the RPD disbelieves. [23] The RAD finds that the Psychological report is not a document which can establish the Appellant's sexual identity. Having said this, the RAD concurs with the Appellant that the RPD erred when it accorded no probative value to this report in terms of assessing the Appellant's credibility. [24] For example, the contents of this report stated...."at times his mind went blank, he confuses dates and details of past events, he forgets familiar telephone numbers and addresses, he may have difficulty in understanding questions, etc"...... [25] The RAD finds that the RPD was required to consider the foregoing contents of the Psychological report. The RPD made its findings on the issue of credibility. It may be that the Appellant's Psychological report could not fully explain these inconsistencies, however it is incumbent upon the RPD to make reference to that report in considering credibility. The RAD refers specifically to the Appellant's inability to provide a specific date when he was first engaged in a homosexual relationship. The RAD finds that the RPD, in its Reasons, simply accords no weight "based entirely on the applicant's story"....which the RPD disbelieves. The RAD concludes that the RPD's lack of explanation as to why the Psychological report was ignored is a reviewable error. The RAD further concludes that this is a denial of natural justice in not considering these comments by a professional when assessing the Appellant's credibility. CONCLUSION BY THE RAD [26] The RAD finds that the RPD has erred in its consideration of the Psychological report. In addition, the RAD finds that the RPD erred when considering evidence relating to the Appellant when he was a minor. Finally, the RAD concludes that, although the RPD concluded that its credibility findings did not support the Appellant's allegations, it did not, in fact, make a finding that he was not a homosexual. [27] While the RPD reached its finding in error, there remain significant credibility issues. The RAD finds it would be unable to substitute a determination without holding a hearing that would require it to hear evidence heard by the RPD. Therefore, the RAD must send the matter back for re-determination. [28] Accordingly, this appeal is allowed. Pursuant to subsection 111(1)(c) of the IRPA, this matter is referred back to the RPD to a newly-constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara December 1, 2014 Date 1Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 2 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 : TB4-07234