TB7-06994

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 / Dossier de la SAR : TB7-06994 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 at Toronto, ON Appel instruit à Date of decision November 14, 2017 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Richard Odeleye Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence before the Refugee Appeal Division (RAD) and has not requested an oral hearing. DETERMINATION [2] Pursuant to paragraph 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. The appeal is dismissed. BACKGROUND [3] The Appellant claims that he fears persecution if he returns to Nigeria due to his bisexuality. He claims that he had a sexual relationship with Mr. K.,1 whom he met in July 2014. He claims that, on May 29, 2016, after being discovered by police and community vigilantes engaging in sexual acts with Mr. K. in a parking lot, he was beaten and detained. After Mr. K. paid a bribe, both men were released. However, as a result of the incident, the Appellant claims he became known as a bisexual in the community. [4] On June 3, 2016, the Appellant applied for a visa to visit his daughter in Winnipeg, which was issued on XXXX XXXX, 2016. [5] The Appellant claims that, in August 2016, some of the property at his business was destroyed in what he considers to be an attack attributable to hostility towards his bisexuality. He claims further that, in early September 2016, an attempt was made on his life, again due to the fact that he was a known bisexual. The Appellant claims that while he managed to escape the September attack, the attackers beat his mother, who later died from her injuries. He claims that he fled to Ibafo, where he stayed until he left for Canada on XXXX XXXX, 2016. [6] He arrived in Canada on September 28, 2016 and claimed refugee status on October 28, 2016. His claim was heard by the RPD on February 2 and March 8, 2017. On March 22, 2107, his claim was refused. ANALYSIS [7] The determinative issue in this case is credibility. The RPD found that the Appellant did not present as a credible witness, noting that his testimony was frequently vague and that it required a great deal of prompting. Moreover, it found that his evidence was inconsistent in several important respects. Each finding of inconsistency will be considered in turn. [8] Before doing so, however, it may be noted that, on May 1, 2017, the Chairperson of the Immigration and Refugee Board (the IRB) issued Guideline 9, Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression ("SOGIE Guideline").2 As elaborated therein, the assessment of credibility in a case involving sexual orientation may be more difficult than in other cases. This Guideline will inform the following analysis. [9] It may be noted at the outset that, while the Appellant is represented by counsel, the Appellant's Memorandum has some very serious flaws. At times, the document misstates the sex of the RPD panel member who decided the claim and of the Appellant himself. Moreover, it refers to testimony from a same-sex partner in Canada,3 when the Appellant did not have a same-sex partner in Canada and when no testimony, other than that of the Appellant himself, was presented to the RPD. The RAD is left with the impression that, in preparing the Appellant's Memorandum, counsel for the Appellant acted hastily, relying on Memoranda from other cases, without taking the trouble to modify passages to reflect the facts of this case. The fact that the document has a number of spelling errors provides an additional indication that it was prepared in haste. As a result, the argumentation in the Appellant's Memorandum is not always coherent or clear; moreover, it is frequently very general in nature. Despite its serious concerns with the quality of the argumentation, the RAD will, nevertheless, try to make sense of the arguments in the Appellant's Memorandum, which must guide this analysis. [10] The five findings of the RPD on credibility will be examined one-by-one. 1. Inconsistency about when the Appellant went into hiding [11] The RPD noted certain inconsistencies with regard to the Appellant's evidence as to why he did not leave Nigeria until XXXX XXXX, 2016, despite holding a Canadian visa since XXXX XXXX, 2016. The RPD noted that the Appellant first indicated that he was in hiding during this period; however, he later stated that he did not go into hiding until early September, after the attempt was made on his life. The Appellant argues that there were no inconsistencies in his evidence and that, if there were any, they were not significant: the Appellant had "explained what happened...as best he could considering this was an unfamiliar proceeding to him and he was obviously nervous."4 [12] Based on a review of the recording of the hearing, the RAD finds that there was indeed an inconsistency in the Appellant's testimony, as outlined by the RPD. In short, the Appellant recounted two different versions of when he went into hiding. When confronted with this inconsistency, the Appellant attempted to explain it away by indicating that he had been in hiding while residing at his home with his family. The RAD does not find this attempt to reconcile the two versions of the Appellant's story to be credible. [13] The RAD is not persuaded by the argument that the RPD was wrong not to take into account the Appellant's nervousness. The RAD notes that RPD explicitly stated that it had considered the difficulties faced by claimants in an unfamiliar hearing environment.5 While such a statement, alone, is not, of course, dispositive of the issue, when coupled with the RPD decision-maker's overall approach as is evident from a review of the recording-including his patient manner, his provision of careful guidance to the Appellant regarding the importance of waiting for the question to be posed before attempting to answer it, and the fact that he afforded the Appellant every opportunity to explain away perceived inconsistencies-it leads the RAD to find that the Appellant's potential discomfort with the proceedings before the RPD does not provide a sufficient explanation for this inconsistency. 2. Inconsistency about whether the claimant was working after May 29, 2016 [14] The RPD considered the testimony of the Appellant regarding whether he was attending work after the incident in May 2016 (when he and Mr. K were discovered engaging in sexual acts in a parking lot) to be inconsistent and incoherent, noting that his answers were not responsive and were, at times, contradictory. At one stage in his testimony, the Appellant said he went to work on "a few occasions"; later he said he had only gone once, on August 28. When asked to explain this inconsistency, the Appellant indicated he may have misunderstood the question. The Appellant argues that there were no inconsistencies and that if there was any variation, it was not significant. [15] The RAD finds that the Appellant did indeed contradict himself, as outlined by the RPD. The RAD finds that the Appellant's claim to have misunderstood the question is not credible. As regards the Appellant's argument that this contradiction is not significant, the RAD disagrees. An inconsistency as to when the Appellant went to work impacts on the truthfulness of his claim to have gone into hiding as a result of the May 2016 incident. The truthfulness of his claim to have gone into hiding impacts on the truthfulness of his claim that the May incident occurred. And the truthfulness of his claim that the May incident occurred is relevant to whether the Appellant is, on a balance of probabilities, a bisexual. 3. Inconsistency about the Appellant's host while in hiding in Ibafo [16] The RPD noted that, while in the narrative attached to his Basis of Claim (BOC) form the Appellant indicated that he had stayed with a relative when he was in hiding in Ibafo, in his testimony he claimed to have stayed with someone from his village to whom he was not related. When asked to explain this inconsistency, he said that people from his village tended to refer to each other as relatives, whether they were related or not. The Appellant characterizes this inconsistency as trivial and claims that the RPD showed a lack of regard for the Appellant's cultural norms. [17] While the RAD is alert to the need to consider the evidence of an individual from another continent, such as the Appellant, with a heightened regard for the existence of different cultural practices, neither the explanation put forward by the Appellant in his oral testimony, nor the argumentation put forward in the Appellant's Memorandum, provide any explanation as to why the Appellant would refer to the person with whom he stayed in Ibafo as a "relative" in his BOC narrative and, later, give oral testimony that the person was not a relative, but, instead, was from his village. If such a cultural norm exists in Nigeria (or in the particular village whence the Appellant came), some explanation or evidence of the nature of the norm would be expected. In the absence of any elaboration of the alleged norm, the RAD considers that a more reasonable explanation of the inconsistency is that the Appellant was not telling the truth. 4. Inconsistency about contact with Mr. K. after the incident on May 29, 2016 [18] The RPD found that the Appellant's testimony was inconsistent about whether or not he had contact with Mr. K. after they were discovered having sexual relations in a parking lot in May 2016: in the first sitting he said that they had spoken on the telephone but in the second sitting he said that they had had no further contact, including telephone contact. When asked to explain this inconsistency, the Appellant stated that he had perhaps misunderstood the question. The Appellant argues that the RPD had "fixated" on irrelevant matters in engaging in this line of questioning. [19] The RAD notes that there was indeed an inconsistency, in the terms described by the RPD. The Appellant's claim that he may not have understood the question is not convincing; the line of questioning in this regard was extremely clear and careful. As to the Appellant's argument that the RPD was focussed on matters that were not relevant to this case, the RAD rejects this. Clearly issues relating to the nature of the Appellant's relationship with his same-sex lover are relevant to his claim that he is a bisexual-a matter that is at the very heart of this case. 5. Inconsistency about the nature of the Appellant's initial meeting with Mr. K. [20] The RPD noted that, in his BOC narrative, the Appellant testified that when he and Mr. K. met for the first time, he (the Appellant) indicated that the impending sexual relationship had to be kept secret. In his oral testimony, the Appellant characterized the relationship with Mr. K. as beginning as a friendship, with the topic of sexual relations only being broached several weeks later, when the two men came to know each other better. When the RPD put this apparent inconsistency to the Appellant, he stated that he was just "summarizing" in his BOC narrative; the events described therein were not meant to be in sequence. The Appellant argues that the testimony was not inconsistent with the BOC narrative and that the RPD was overly-vigilant and "ready to pounce on any perceived discrepancy even if it amounted to nothing."6 [21] The Appellant's BOC narrative provides in relevant part as follows: As I was contemplating making a move to approach him, our eyes met and I winked at him, he responded by waving at me. Before long he came over to me with a bottle of wine and two glasses and I was glad. His carriage, voice and gesticulations show that he is gay. At that point in time I took him to the balcony where we talked and became very friendly. We also exchanged phone numbers. But I made him to understand that I am married so that [he] would know that what we have has to be kept very secret, he obliged.7 [22] The RAD finds that the Appellant was indeed inconsistent in recounting the origin of his relationship with Mr. K. It is clear from the above passage that the Appellant's act of making Mr. K. understand the need for secrecy came immediately after the Appellant and Mr. K. exchanged phone numbers. This is inconsistent with the Appellant's testimony, which was to the effect that the relationship began without any clear understanding that the two men would engage in sexual acts together. The RAD does not accept the Appellant's explanation that the narrative in the BOC was, somehow, meant not to be in sequence. The passage reproduced above clearly sets out a sequential description of events. Nor does the RAD, based on its review of the recording, find any merit in the assertion that the RPD was overly-vigilant as regards the Appellant's inconsistencies. This allegation is entirely baseless and it is highly regrettable that it would be made in such a casual way and without support. Conclusions on the impact of the above-discussed inconsistencies [23] In view of the above-described inconsistencies in the Appellant's evidence, the RPD found that the Appellant had serious credibility issues and concluded that he had not established his allegations on a balance of probabilities. The Appellant argues that while there might have been minor problems with the Appellant's testimony in relation to the provision of specific dates and details of some events, the overall evidence taken together was credible and corroborated by documentary evidence. [24] Putting to one side the impact of the documentary evidence, which will be considered below, the RAD finds that the five above-described inconsistencies, cumulatively, substantially undermine the Appellant's credibility. While an isolated minor inconsistency could, perhaps, be ignored on the basis that it was not central to the issue of the Appellant's claimed bisexuality or was attributable to the Appellant's discomfiture with the procedure, the number and significance of the inconsistencies in the Appellant's evidence, coupled with the Appellant's unwillingness to answer questions clearly or satisfactorily, leads the RAD to find his credibility to be severely undermined. The RAD must now consider what impact the supporting documents submitted by the Appellant may have on his credibility. Supporting Documents [25] The RPD considered an affidavit from the Appellant's neighbour in Nigeria, an affidavit from a work colleague in Nigeria, and a letter from a LGBTQ community group in Toronto. As regards the first two documents, the RPD indicated that the credibility of the authors' evidence was untested as neither had been called to give evidence before the RPD by teleconference. Having said that, the RPD noted that it had not identified any discrepancies in the documents, and it gave them "some weight in establishing the claimant's allegations".8 However, the RPD found, based on the entirety of the evidence, that the credibility issues "significantly outweigh the claimant's supporting evidence."9 As to the letter from the Toronto community organization, the RPD found that it was more likely than not that the claimant merely attended the organization's meetings to "bolster a fraudulent claim for refugee protection".10 [26] As regards the RPD's observation that neither witness had been called by teleconference, the Appellant notes that he was not aware of a teleconference facility. He also argues that even though the RPD had issues with the credibility of the Appellant's oral testimony, the evidence must, nonetheless, be considered on its own merits. The Appellant argues further that the RPD "in effect stated that because it had found some inconsistencies in the testimony of the Appellant, it would not find the other evidence submitted by the Appellant credible."11 [27] The RAD notes that the RPD made clear that even in the absence of testimony by teleconference, it gave the letter and affidavit weight; as such, the RAD need not consider the merit of the Appellant's claim that he was unaware of the existence of teleconference facilities. [28] The Appellant's argument that the RPD was wrong to reject the documentary evidence simply because it found inconsistencies with the Appellant's evidence might have been a meritorious one, if the RPD has indeed so acted. However, the Appellant's Memorandum mischaracterizes the RPD's finding. What the RPD held was that the documents were deserving of "some weight in establishing the claimant's allegation" but that, based on "the entirety of the evidence...the credibility issues...significantly outweigh the claimant's supporting evidence."12 The RAD finds that this weighing process is entirely appropriate; indeed, it falls to the RAD to engage in a similar weighing process herein. [29] As regards the documentary evidence from the LGBTQ community support organization, the RPD stated as follows: In relation to the documents from the 519 Centre, although I am satisfied that the claimant attended at the 519 Centre, I find that it is more likely than not that the claimant merely attended there in order to bolster a fraudulent claim for refugee protection rather than out of a genuine desire to seek support for his sexual orientation.13 [30] The RPD offers no support for this finding. While, as noted, the RAD agrees that the Appellant's testimony was frequently evasive and unresponsive and at times inconsistent, and, consequently, agrees with the RPD that the Appellant's credibility is seriously undermined, this determination alone does not provide a basis for a conclusion as regards his motivation to participate in the community organization's events. The RAD finds that this finding is unsupported and, therefore, in error. The existence of such an erroneous finding is not, however, sufficiently grave to undermine the otherwise carefully considered conclusion of the RPD. [31] The RAD will now weigh the three pieces of documentary evidence independently in order to determine their value and whether their cumulative value may outweigh the above finding that the Appellant's credibility is severely undermined. [32] Turning first to the affidavit from the Appellant's colleague indicating that there had been damage to the Appellant's property at work, the RAD finds that this is of very limited value. The document provides no linkage between the damage to the Appellant's property and his claimed status as a bisexual. As such, even accepting that the damage to the Appellant's property occurred, the affidavit offers little evidence in support of the claim. [33] As regards the affidavit from the Appellant's neighbour, this does provide a link to his claimed sexual orientation. It attests to the occurrence of an attack on the Appellant and his mother in early September 2016 and attests further to the fact that the Appellant was widely known to be a bisexual, something for which he was said to have been widely reviled in his community. The RAD accepts this letter as providing evidence regarding the Appellant's claim to be a bisexual. [34] Finally, the RAD must turn to the documentary evidence provided by the 519 Centre. The RAD accepts that the Appellant participated in the Centre's events; however, given that there would be nothing to prevent a heterosexual or cisgendered individual from participating in events held by a community group focussed on assisting the LGBTQ community where, for example, that person considered that such participation would be advantageous to a refugee claim, evidence of such participation must be treated with caution. The weight to be given such evidence in the overall assessment of a claimant's sexual orientation or gender identity14 will depend on the facts of the case. [35] Having regard to the entirety of the documentary evidence, the RAD finds that the value it attributes to the documentary evidence cumulatively is limited. As such, it is significantly outweighed by the fact that the RAD has found the Appellant's credibility to have been seriously undermined, as elaborated upon above. CONCLUSION [36] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor person in need of protection. The appeal is dismissed. (signed) "James Sloan" James Sloan November 14, 2017 Date 1 Initials are used here to ensure privacy, as recommended at paras. 5.1 and 5.2 of the Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, issued by the Chairperson of the IRB, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, May 1, 2017 ("SOGIE Guideline"). 2 Ibid. 3 Exhibit P-2, Appellant's Record, p. 65, Appellant's Memorandum, para 10. 4 Exhibit P-2, Appellant's Record, p. 73, Appellant's Memorandum, para. 24. 5 Exhibit P-2, Appellant's Record, p. 7, RPD Reasons and Decision, para. 11. 6 Exhibit P-2, Appellant's Record, p. 75, Appellant's Memorandum, para. 27. 7 Exhibit P-2, Appellant's Record, p. 31, BOC Narrative, para 9. 8 Exhibit P-2, Appellant's Record, p. 13, RPD Reasons and Decision, para. 34. 9 Ibid. 10 Ibid., para. 35. 11 Exhibit P-2, Appellant's Record, pp. 67-68, Appellant's Memorandum, para. 15. 12 Exhibit P-2, Appellant's Record, p. 13, RPD Reasons and Decision, para. 34. 13 Exhibit P-2, Appellant's Record, p. 13, RPD Reasons and Decision, para. 35. 14 As outlined in the SOGIE Guideline, supra, footnote 3, evidence of participation of "[a]n individual with diverse SOGIE ... in LGBTQ+ culture, organizations or events ... may be presented by the individual for the decision-maker to consider." (para. 7.2.3). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 9 RAD.25.02 (September 11, 2014) Disponible en français RAD File / Dossier de la SAR : TB7-06994